March 5, 2014
COMMONWEALTH OF PENNSYLVANIA Appellee
ERNEST EVERETT Appellant
Appeal from the Judgment of Sentence January 17, 2012 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0003113-2009 CP-02-CR-0004862-2009
BEFORE: GANTMAN, J., OTT, J., and FITZGERALD, J. [*]
Appellant, Ernest Everett, appeals from the new judgment of sentence, entered in the Allegheny County Court of Common Pleas, following a hearing on Appellant's timely-filed petition under the Post-Conviction Relief Act ("PCRA"), at 42 Pa.C.S.A. §§ 9542-9546.
The relevant facts and procedural history of this case are as follows. The Commonwealth charged Appellant at CC 200903113 with (count 1) delivery, (count 2) PWI D, and (count 3) simple possession for selling 0.93 grams of cocaine to undercover officers. The Commonwealth charged Appellant at CC200904862 with (count 1) delivery of a controlled substance, (count 2) possession with intent to deliver (" PWI D"), (count 3) simple possession, and (count 4) criminal conspiracy for selling 0.14 gram s of cocaine to undercover officers.
On November 23, 2009, Appellant entered into one counseled plea bargain with the Commonwealth for both docket numbers. In exchange for Appellant's guilty plea, the Commonwealth agreed to withdraw charges for counts 1, 2, and 4 of CC 200904862, leaving only a simple possession count at that docket number. During the plea/ sentencing proceeding, the Commonwealth stated: "In exchange for that we would ask for a period of incarceration of 18 to 36 months with 5 years' probation. That would be concurrent." Notwithstanding that language, counsel for Appellant and the Commonwealth have written notes about the plea bargain indicating probation would be consecutive to the incarceration. I n discussing the agreement with the Commonwealth, the plea/ sentencing court asked, "Want to put the 18 to 36 on the first count and 5 years on the second count?" The court later pronounced the sentence for CC 200903113 as follows: "All right. So we will sentence you on the first count, 18 to 36 months. On the second, we'll put 5 years' probation which will run concurrent to the 36 months." The written sentencing orders, however, placed the incarceration sentence at CC 200903113 and the 5 years' probation at CC 200904862, with the notation that the CC 200904862 sentence was to be served consecutive to the sentence at CC 200903113 . Appellant did not file a direct appeal from the judgment of sentence.
On March 25, 2010, Appellant filed a timely pro se PCRA petition. The court initially appointed counsel, who subsequently withdrew. The court then appointed substitute counsel, who filed an amended petition on July 23, 2010, and a supplemental petition on December 12, 2011, raising challenges to prior counsel's effectiveness and the legality of the sentence imposed. The PCRA court held a hearing on December 16, 2011. During this hearing, Appellant's plea counsel testified and produced written notes indicating the term s of the plea bargain included a period of incarceration to be followed by a period of probation. On January 17, 2012, the PCRA court granted Appellant relief in the form of resentencing Appellant and reinstating his right to file post-sentence motions and a direct appeal, which is now before us. The court resentenced Appellant to 18 to 36 months' incarceration for count 1 at CC 200903113 and to 5 years' probation at count 2 of the same docket number, to run consecutive to the incarceration imposed. Additionally, the court imposed 3 years' probation for the sole remaining count at CC 200904862, to run concurrent with the 5-year probation at CC 200903113 .
Appellant timely filed a post sentence motion on January 18, 2012, and an amended post-sentence motion on January 20, 2012. By an order filed January 25, 2012, the court denied Appellant's post-sentence motions. Appellant timely filed a notice of appeal on January 26, 2012, accompanied by a concise statement of errors complained of on appeal, per Pa.R.A.P. 1925(b).
Appellant raises these issues on appeal:
WHETHER THE SENTENCE AT COUNT 2 AT CC200903113 IS ILLEGAL-IN VIOLATION OF 42 Pa.C.S. § 9765, THE DOUBLE JEOPARDY CLAUSES OF ARTICLE I, SECTION 10 OF THE PENNSYLVANIA CONSTITUTION AND/OR THE FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION, AND/OR OTHER LAW--WHERE A SEPARATE SENTENCE WAS IMPOSED AT COUNT 1 AT CC200903113 AND WHERE COUNTS 1, 2 AND 3 AT CC200903113 CHARGED DELIVERY, POSSESSION WITH INTENT TO DELIVER, AND POSSESSION OF A CONTROLLED SUBSTANCE, RESPECTIVELY, ARISING FROM THE SAME SINGLE SALE OF A DISCRETE AMOUNT OF COCAINE TO AN UNDERCOVER POLICE OFFICER?
WHETHER THE COURT OF COMMON PLEAS ERRED IN HOLDING THE PLEA AGREEMENT PROVIDED FOR A SENTENCE OTHER THAN 18 TO 36 MONTHS' INCARCERATION AND A CONCURRENT TERM OF 5 YEARS' PROBATION?
WHETHER [APPELLANT] IS ENTITLED TO HAVE THE 3-YEAR SENTENCE OF PROBATION MADE EFFECTIVE FROM THE DATE OF THE ORIGINAL SENTENCING IN THIS MATTER (NOVEMBER 23, 2009)?
WHETHER THE FACTUAL BASIS PRESENTED IN SUPPORT OF THE CHARGES AT CC200903113 IS INSUFFICIENT TO SUPPORT CONVICTION FOR TWO SEPARATE COUNTS OF POSSESSION WITH INTENT TO DELIVER AND, CONSEQUENTLY, WHETHER IMPOSITION OF SENTENCE AT COUNTS 1 AND 2 AT CC200903113 IS ILLEGAL IN VIOLATION OF 42 Pa.C.S. § 9765, THE DOUBLE JEOPARDY CLAUSES OF ARTICLE I, SECTION 10 OF THE PENNSYLVANIA CONSTITUTION AND/OR THE FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION, AND/OR OTHER LAW?
(Appellant's Brief at 3).
I n his combined issues on appeal, Appellant first argues that the sentence imposed at count 2 of CC 200903113 for PWID is illegal because a separate sentence was imposed at count 1 of CC 200903113 for delivery of a discrete amount of cocaine arising from a single sale. The factual summary for Appellant's guilty plea at CC 200903113 was based on a single sale of cocaine to an undercover police officer with no indication of an additional amount of cocaine or other controlled substance recovered from Appellant upon his arrest at the conclusion of the sale. Because all three counts at CC 200903113 were predicated on the same sale of a discrete amount of a controlled substance, Appellant submits the counts of possession and PWI D should have merged at sentencing with the count of delivery. Appellant claims the Commonwealth has even conceded it was not the parties' intent to have a separate sentence for count 2 (PWID) at this docket number. Alternatively, to the extent delivery and PWID at CC 200903113 are construed as two counts of PWID, Appellant asserts they must still merge for sentencing because the evidence was insufficient to support two separate counts of PWID at CC 200903113 . Appellant concludes the sentence imposed for PWID at count 2 of CC 200903113 must be vacated.
Next, Appellant challenges the court's interpretation of the plea bargain and the terms of his imposed probation. Specifically, Appellant claim s that the transcript of the plea/ sentencing hearing revealed the agreement between the parties was for the 5 years' probation to run concurrent to the 18 to 36 months' incarceration. He contends the imposed sentence, which runs the probation consecutive to the incarceration, violates the term s of the initial plea agreement. Further, Appellant argues the 3 years' probation at CC 200904862 should run concurrent to his 18 to 36 months' incarceration at CC200903113, not concurrent to the 5 years' probation at that docket number. Appellant submits his sentence at count 2 at CC 200903113 and at CC 200904862 must be vacated and the matter remanded for re-sentencing in accordance with his interpretation of the plea agreement. Based on these contentions, Appellant concludes he is entitled to a new legal sentence. We agree in part. "Issues relating to the legality of a sentence are questions of law…." Commonwealth v. Diamond, 945 A.2d 252, 256 (Pa.Super. 2008), appeal denied, 598 Pa. 755, 955 A.2d 356 (2008). "The defendant or the Commonwealth may appeal as of right the legality of the sentence." 42 Pa.C.S.A. § 9781(a). See also Commonwealth v. Edrington, 780 A.2d 721 (Pa.Super. 2001) (maintaining legality of sentence claims cannot be waived, where reviewing court has proper jurisdiction) . When the legality of a sentence is at issue on appeal, our "standard of review over such questions is de novo and our scope of review is plenary." Diamond, supra at 256. "I f no statutory authorization exists for a particular sentence, that sentence is illegal and subject to correction. An illegal sentence must be vacated…." Commonwealth v. Pombo, 26 A.3d 1155, 1157 (Pa.Super. 2011) (quoting Commonwealth v. Bowers, 25 A.3d 349, 352 (Pa.Super. 2011); appeal denied, 616 Pa. 666, 51 A.3d 837 (2012)).
"A claim that crimes should have merged for sentencing purposes raises a challenge to the legality of the sentence. Therefore, our standard of review is de novo and our scope of review is plenary." Commonwealth v. Quintua, 56 A.3d 399, 400 (Pa.Super. 2012), appeal denied, Pa., 70 A.3d 810 (2013). Whether offenses merge at sentencing implicates Section 9765 of the Sentencing Code, which provides:
§ 9765. Merger of sentences
No crimes shall merge for sentencing purposes unless the crimes arise from a single criminal act and all of the statutory elements of one offense are included in the statutory elements of the other offense. Where crimes merge for sentencing purposes, the court may sentence the defendant only on the higher graded offense.
42 Pa.C.S.A. § 9765 (emphasis added). When arising out of a single sale or act, the offenses of possession, PWID, and delivery of the same contraband can merge for sentencing purposes. Commonwealth v. Edwards, 449 A.2d 38, 39 (Pa.Super. 1982) (stating: "Delivery necessarily includes possession with the intent to deliver and possession with the intent to deliver clearly includes possession"; controlled substances delivery conviction necessarily includes and merges with PWID and PWID necessarily includes and merges with possession, when all charges are based on same act and same drugs).
Plea bargains are an integral part of our criminal justice system and must be enforced to avoid any perversion of the plea bargaining system. Commonwealth v. Hainesworth, 2013 PA Super 318, * 4 (filed December 12, 2013). "Assuming the plea agreement is legally possible to fulfill, when the parties enter the plea agreement on the record, and the court accepts and approves the plea, then the parties and the court must abide by the terms of the agreement." Commonwealth v. Anderson, 995 A.2d 1184, 1191 (Pa.Super. 2010), appeal denied, 608 Pa. 634, 9 A.3d 626 (2010) (quoting Commonwealth v. Parsons, 969 A.2d 1259, 1268 (Pa.Super. 2009) (en banc), appeal denied, 603 Pa. 685, 982 A.2d 1228 (2009)).
A plea agreement is "contractual in nature and is to be analyzed under contract-law standards." Anderson, supra at 1191 (quoting Commonwealth v. Kroh, 654 A.2d 1168 (Pa.Super. 1995)). To determine whether a party has breached a particular plea agreement, we must consider what the parties to this plea agreement reasonably understood to be the terms of the agreement. Anderson, supra (quoting Commonwealth v. Fruehan, 557 A.2d 1093, 1094-95 (Pa.Super. 1989)). Any disputes over particular terms of the plea agreement must be resolved with objective standards based upon the totality of the circumstances. Kroh, supra at 1172.
Pennsylvania courts have consistently recognized that the sentencing court's oral statements, which were not incorporated into the written judgment signed by the sentencing court, are not a part of the judgment of sentence. Commonwealth v. Green, 335 A.2d 392, 393 (Pa.Super. 1975). "I n Pennsylvania, the text of the sentencing order, and not the [ oral] statements a trial court makes about a defendant's sentence, is determinative of the court's sentencing intentions and the sentence imposed." Commonwealth v. Borrin, ___ Pa. __, ___, 80 A.3d 1219, 1226 (2013) (citing Commonwealth, ex rel. Pow ell v. Pennsylvania Dept. of Corrections, 14 A.3d 912, 915-16 (Pa.Cmwlth. 2011) and Green, supra). Thus, the signed sentencing order controls over oral statements of the sentencing judge not included in the signed judgment of sentence. Borrin, supra (citing Commonwealth v. Isabell, 503 Pa. 2, 12, 467 A.2d 1287, 1292 (1983)).
A defendant cannot serve a term of probation at one docket number while simultaneously "constructively" serving a term of incarceration at another docket number. Commonwealth v. Allshouse, 33 A.3d 31, 36 (Pa.Super. 2011), appeal denied, 616 Pa. 649, 49 A.3d 441 (2012) (holding common-sense reading of established law makes clear that defendant cannot "constructively" serve probation at one docket number while serving term of incarceration at different docket number). This resulting "constructive probation" is contrary to the policy considerations underlying sentencing. I d.
Instantly, the court resentenced Appellant to 18 to 36 months' incarceration for count 1 (delivery) at CC 200903113 and to 5 years' probation at count 2 (PWID) of the same docket number, to be served consecutive to the incarceration imposed. Additionally, the court imposed 3 years' probation for count 3 at CC 200904862 to be served concurrent with the 5-year probation at CC 200903113. The crimes of delivery and PWID regarding the same discreet amount of cocaine should have merged for sentencing purposes. The Commonwealth and the trial court agree the court should have sentenced Appellant to 18 to 36 months' incarceration and 5 years' probation at count 1 of CC 200903113, instead of at counts 1 and 2 of CC 200903113, respectively, and the sentence as imposed is illegal.
With respect to the dispute over the terms of the plea agreement, the totality of the circumstances must be objectively considered. See Kroh, supra. At the December 16, 2011 PCRA hearing, Appellant's plea counsel produced written notes concerning the terms of the plea bargain to show the probation term at CC 200903113 was to be consecutive to the incarceration term at CC 200903113. The notes indicated the parties reasonably understood the terms of plea agreement involved a period of incarceration to be followed by a period of probation at that docket number. The written judgment of sentence also indicated the period of probation at CC 200903113 was to run consecutive to the period of incarceration at CC 200903113 . See Borrin, supra (stating text of the sentencing order trumps oral statements trial court made at time of sentencing).
Regarding the 3-year term of probation at CC 200904862, nothing in the record shows this term of probation was designated to run concurrent to the incarceration at CC 200903113 . Appellant's suggested "constructive probation" would contradict the purpose behind the sentence and violate the law. See Allshouse, supra at 36.
Based on the foregoing, Appellant's sentence at count 2 of CC 200903113 was illegal and must be vacated. Accordingly, we vacate the judgment of sentence in its totality and rem and for resentencing. See Commonwealth v. Bartrug, 732 A.2d 1287 (Pa.Super. 1999), appeal denied, 561 Pa. 651, 747 A.2d 896 (1999) (citing Commonwealth v. Vanderlin, 580 A.2d 820, 831 (Pa.Super. 1990) (holding sentencing error in multi-count case requires that all sentences be vacated so court can restructure its whole sentencing scheme). See also Commonwealth v. Goldhammer, 512 Pa. 587, 517 A.2d 1280 (1986), certiorari denied, 480 U.S. 950, 107 S.Ct. 1613, 94 L.Ed.2d 798 (1987)) (stating, "When a defendant challenges one of several interdependent sentences, he, in effect, challenges the entire sentencing plan"; if appellate court alters overall sentencing scheme, then remand for re-sentencing is proper).
Judgment of sentence vacated; case remanded for resentencing. Jurisdiction is relinquished.
JUSTICE FITZGERALD CONCURS IN THE RESULT.