J-S67006-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    MICHAEL MIDGLEY                            :
                                               :
                       Appellant               :   No. 873 MDA 2019

          Appeal from the Judgment of Sentence Entered April 26, 2019
    In the Court of Common Pleas of Lackawanna County Criminal Division at
                        No(s): CP-35-CR-0001781-2018


BEFORE:      OLSON, J., DUBOW, J., and STEVENS, P.J.E.*

MEMORANDUM BY OLSON, J.:                                FILED MARCH 16, 2020

        Appellant, Michael Midgley, appeals from the judgment of sentence

entered on April 26, 2019, as made final by the denial of his post-sentence

motion on June 4, 2019. We affirm.

        On January 31, 2019, Appellant agreed to plead guilty to two counts of

simple assault and one count of terroristic threats.1 During the guilty plea

hearing, the parties articulated the terms of the agreement:

          [Trial Court]: So what are the terms of the plea?

          [Commonwealth]: Your Honor, [Appellant] is going to plead
          guilty to three misdemeanor offenses, two counts of simple
          assault, one count of terroristic threat[s], which is graded as
          a misdemeanor of the first degree. . . .


____________________________________________


*   Former Justice specially assigned to the Superior Court.

1   18 Pa.C.S.A. §§ 2701(a)(2) and 2706(a)(1), respectively.
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        As part of the entry of the guilty plea, [Your] Honor, the
        Commonwealth would not object – I would have no objection
        to the terroristic threats be treated as a long tail of
        supervision if the [trial] court believes that that’s appropriate,
        but it is the intention – it is the intention, [Your] Honor, of
        the Commonwealth that the two simple assaults – [Appellant]
        would be imposed a sentence of consecutive sentences on
        those two counts. If the [trial] court feels that there is
        merger of any of those sentences, which I don’t believe there
        is because there is different elements, then I think he should
        be sentenced on the terroristic threats as a –

        [Trial Court]: Okay. Well, so here the plea agreement has
        stipulated probation but it’s the Commonwealth – the
        Commonwealth does not oppose; is that right? I just want
        to make sure I have this –

        [Commonwealth]: As to the terroristic threats.

        [Trial Court]: I just want to make sure I am accurately
        recording the agreement that you two have reached.

        [Appellant’s Counsel]: That’s correct, judge.

        [Trial Court]: Does no[t] oppose –

        [Appellant’s Counsel]: Between us and the Commonwealth[,
        the Commonwealth] is not going to ask for time on the
        terroristic threats.

        [Trial Court]: Sentence on terroristic threats charge, okay.

        [Appellant’s Counsel]: That’s correct, judge.

        [Trial Court]: Okay. . . .

N.T. Guilty Plea Hearing, 1/31/19, at 2-4 (some capitalization omitted).

     The trial court proceeded to colloquy Appellant and, during this colloquy,

the trial court notified Appellant that it was not bound by any sentencing




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agreement. Id. at 4-9. Further, during the hearing, Appellant agreed that he

committed the following acts:

        [O]n July 28[, 2018], as to Count 1, simple assault,
        [Appellant] did repeatedly hit [A.M. (hereinafter “the
        Victim”)] with a closed fist resulting in a broken nose and a
        broken orbital fracture.

                                       ...

        Secondly, on that same date[, Appellant] did cause bodily
        injury to [the Victim], in which he did strike her with a
        baseball bat in the back of her leg.

                                       ...

        And then, . . . [Appellant] did Count 3, terroristic threats, he
        did directly communicate a threat of violence when he
        attempted to terrorize [the Victim] in that he threatened to
        kill her while holding a baseball bat in his hand.

Id. at 9-10.

      The trial court accepted Appellant’s plea and it scheduled the sentencing

hearing for a later date. Id. at 10.

      During the April 29, 2019 sentencing hearing, the Commonwealth spoke

first and requested that the trial court impose “the maximum sentence you

can give, a sentence within the aggravated range. . . . [W]e are asking for

the maximum sentence.”          N.T. Sentencing Hearing, 4/29/19, at 2-3.

Thereafter, Appellant’s counsel addressed the trial court and asked that the

trial court sentence Appellant as follows: “[Appellant] would ask the [trial]

court for an 11 to 23 ½ month [county] sentence and be paroled into the

[domestic violence intervention program (“DVIP”)]. He asks the [trial] court



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to follow up that sentence with probation so that if he fails on the DVIP court

he could go to state prison for a long period of time.”       Id. at 6-7 (some

capitalization omitted).    The Commonwealth did not object to Appellant’s

request for probation. See id. at 3-15.

      The trial court sentenced Appellant to serve an aggregate term of

four-and-a-half to nine years in prison for his convictions. Id. at 14. The trial

court structured Appellant’s sentence as follows: one to two years in prison

for the first simple assault conviction; a consecutive sentence of one to two

years in prison for the second simple assault conviction; and, a consecutive

sentence of two-and-a-half to five years in prison for the terroristic threats

conviction. Id. at 13-14.

      On May 3, 2019, Appellant filed a timely post-sentence motion where

he requested that the trial court:          vacate his sentence because the

Commonwealth violated the plea agreement; allow him to withdraw his plea

because the trial court did not sentence Appellant in accordance with the plea

terms; and, reconsider his sentence because it was “unreasonable, harsh, and

excessive.” See Appellant’s Post-Sentence Motion, 5/3/19, at 1-2.

      On June 4, 2019, the trial court denied Appellant’s post-sentence

motion. Trial Court Order, 6/4/19, at 1. Appellant filed a timely notice of

appeal and now raises three claims to this Court:

        [1.] Whether the trial court erred when it denied Appellant’s
        request to vacate the sentence imposed on terroristic threats
        due to a violation of the plea agreement by the
        Commonwealth[?]


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        [2.] Whether the trial court erred when it denied [Appellant’s]
        request to withdraw his guilty plea to the terroristic threats
        [charge] without holding a hearing/colloquy on his motion to
        withdraw[?]

        [3.] Whether [the trial] court abused its discretion when it
        imposed unreasonable, harsh and excessive sentences on all
        of the charges[?]

Appellant’s Brief at 4 (some capitalization omitted).

      First, Appellant claims that the trial court erred when it denied his

motion to vacate his sentence, due to the Commonwealth’s violation of the

plea agreement.

      “Although a plea agreement occurs in a criminal context, it remains

contractual in nature and is to be analyzed under contract-law standards.”

Commonwealth v. Kroh, 654 A.2d 1168, 1172 (Pa. Super. 1995).                   “In

assessing whether a plea agreement has been breached, we consider what

the parties to the agreement reasonably understood the terms to be.”

Commonwealth v. Hainesworth, 82 A.3d 444, 447 (Pa. Super. 2013) (en

banc) (quotations and citations omitted). “Such a determination is made

based on the totality of the surrounding circumstances and any ambiguities in

the   terms   of   the   plea   agreement   will    be   construed   against   the

Commonwealth.”       Id. (quotations, citations, and corrections omitted).

Further, “[c]ontract interpretation is a question of law, so our standard of

review . . . is de novo and to the extent necessary, the scope of our review is

plenary.” Commonwealth v. Kerns, 220 A.3d 607, 612 (Pa. Super. 2019)

(quotations, citations, and corrections omitted).



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      Our Supreme Court has held:

        there is an affirmative duty on the part of the prosecutor to
        honor any and all promises made in exchange for a
        defendant's plea.      Our courts have demanded strict
        compliance with that duty in order to avoid any possible
        perversion of the plea bargaining system, evidencing the
        concern that a defendant might be coerced into a bargain or
        fraudulently induced to give up the very valued constitutional
        guarantees attendant the right to trial by jury.

        Therefore, in Pennsylvania, it is well settled that where a plea
        bargain has been entered [into] and is violated by the
        Commonwealth, the defendant is entitled, at least, to the
        benefit of the bargain.

Commonwealth v. Zuber, 353 A.2d 441, 444 (Pa. 1976) (quotations and

citations omitted). However, “[w]hile the [Commonwealth] must be held to

the promises it made, it will not be bound to those it did not make.” See

United States v. Fentress, 792 F.2d 461, 464 (4th Cir. 1986).

      On this appeal, Appellant, the Commonwealth, and the trial court all

agree on the terms of the plea agreement. As framed by Appellant, the plea

terms were “placed on the record by the Commonwealth [and were as

follows]: ‘As [] part of the entry of the guilty plea, . . . the Commonwealth

would not object – I would have no objection to the terroristic threats be

treated as a long tail of supervision if the [trial] court believes that that’s

appropriate.’” Appellant’s Brief at 12-13, quoting, N.T. Guilty Plea Hearing,

1/31/19, at 2-3; see also Commonwealth’s Brief at 7 (declaring that it did

not violate the plea agreement because it “did not object to [Appellant’s]

request for probation”); Trial Court Opinion, 9/6/19, at 2-5 (same). Thus, for



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purposes of this appeal, we accept that the terms of the plea agreement were

that the Commonwealth “would have no objection to the terroristic threats be

treated as a long tail of supervision if the [trial] court believes that that’s

appropriate.” See Appellant’s Brief at 12-13.

      On appeal, Appellant claims that the Commonwealth violated the terms

of the plea agreement when, at sentencing, the Commonwealth requested

that the trial court impose “the maximum sentence you can give, a sentence

within the aggravated range.       . . . [W]e are asking for the maximum

sentence.” Appellant’s Brief at 11-14; N.T. Sentencing Hearing, 4/29/19, at

2-3. Appellant’s claim fails.

      As stated by Appellant, under the express terms of the plea agreement,

the Commonwealth merely agreed that it had “no objection” to a

probationary sentence for Appellant’s terroristic threats conviction “if the

[trial] court believe[d] that [such a sentence was] appropriate.”

Appellant’s Brief at 12-13 (emphasis added); see also N.T. Guilty Plea

Hearing, 1/31/19, at 2-3 (emphasis added). In other words, under the plain

terms of the agreement, the Commonwealth only agreed that it would not

object to Appellant’s request for a probationary sentence on the terroristic

threats charge and, further, that it would not object to or otherwise challenge

the trial court’s sentence if the trial court believed a probationary sentence for

terroristic threats was appropriate. See Pa.R.Crim.P. 721 (“Procedures for

Commonwealth Challenges to Sentence”).




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         The Commonwealth abided by the terms of the agreement. Indeed, as

the trial court explained:

           [After the Commonwealth requested a sentence of
           imprisonment on the charges, Appellant’s] attorney spoke.
           He recited the various programs [Appellant] intended on
           attending and asked the [trial] court to impose a county
           sentence on the simple assault counts with a probationary
           tail on the terroristic threats count.    At this time, the
           Commonwealth remained silent and did not object to the
           request for a probationary sentence. In addition, [Appellant]
           spoke on his own behalf . . . [and] stated he was willing to
           get help and he also asked for probation. The
           [Commonwealth] again remained silent and did not [object]
           to [Appellant’s] request.

Trial Court Opinion, 9/6/19, at 5 (citations omitted).

         Simply stated, the plea agreement neither required the Commonwealth

to make nor forbade the Commonwealth from making any sentencing

recommendation. Therefore, the Commonwealth did not violate the terms of

the plea agreement when it requested that the trial court sentence Appellant

to “the maximum sentence you can give.” Appellant’s claim to the contrary

fails.

         Next, Appellant claims that the trial court erred when it denied his

post-sentence motion to withdraw his guilty plea.

         “[A] defendant has no absolute right to withdraw a guilty plea; rather,

the decision to grant such a motion lies within the sound discretion of the trial

court.”    Commonwealth v. Muhammad, 794 A.2d 378, 382 (Pa. Super.

2002). We have previously explained:




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         Post-sentence motions for withdrawal are subject to higher
         scrutiny [than pre-sentence motions] since courts strive to
         discourage entry of guilty pleas as sentence-testing devices.
         A defendant must demonstrate that manifest injustice would
         result if the court were to deny his post-sentence motion to
         withdraw a [] plea. Manifest injustice may be established if
         the plea was not tendered knowingly, intelligently, and
         voluntarily. In determining whether a plea is valid, the court
         must examine the totality of circumstances surrounding the
         plea. A deficient plea does not per se establish prejudice on
         the order of manifest injustice.

Commonwealth v. Broaden, 980 A.2d 124, 129 (Pa. Super. 2009) (citations

and quotations omitted).       Nevertheless, “a criminal defendant who is

sentenced to more than was agreed upon in a negotiated plea [must be

permitted to] withdraw his guilty plea upon being deprived of the benefit of

his bargain.”   Commonwealth v. Tann, 79 A.3d 1130, 1133 (Pa. Super.

2013).

      According to Appellant, he should have been permitted to withdraw his

plea after sentencing because, he claims, he entered into a negotiated plea

with the Commonwealth and the “sentencing judge[] fail[ed] to follow the

Commonwealth’s sentencing recommendation.”         Appellant’s Brief at 15-16.

Again, Appellant’s claim relates to the Commonwealth’s plea agreement that

it “would have no objection to the terroristic threats be treated as a long tail

of supervision if the [trial] court believes that that’s appropriate.” See id.

Appellant’s claim on appeal fails.

      “In the interest of understanding the consequences of the plea

bargaining process, there must be a clear distinction made between an ‘open

plea’ and a ‘negotiated plea.’” Commonwealth v. Dalberto, 648 A.2d 16, 19


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(Pa. Super. 1994). “[A] strictly negotiated plea agreement” is one in which

“the Commonwealth and the [defendant] had bargained for a specific

sentence.” Id. (emphasis omitted). Whereas, “[i]n an open plea agreement,

there is an agreement as to the charges to be brought, but no agreement at

all to restrict the prosecution's right to seek the maximum sentences

applicable to those charges.” Id. at 20 (citations omitted). Where a “plea

agreement [does] not include a specific term of imprisonment, [but] place[s]

limitations on [the] sentence, i.e. [] to run [sentences] consecutively[,] we

treat [such a] case as an ‘open’ plea.” Id. at 21.

      This Court's en banc decision in Commonwealth v. McClendon, 589

A.2d 706 (Pa. Super. 1991) (en banc) is instructive.       In McClendon, we

determined that the defendant was not entitled to withdraw his guilty pleas to

two armed robbery charges, after the trial court imposed consecutive

sentences. In that case, McClendon signed a written guilty plea agreement,

which the Commonwealth confirmed in open court, that the Commonwealth

would have no objection to the imposition of concurrent sentences.         See

McClendon, 589 A.2d at 711. We determined that when “the terms of the

plea agreement specifically make a recommended sentence nonbinding on the

court, there can be no violation of the plea agreement when the court chooses

not to follow the recommendation. In such cases the defendant has received

nothing less than [what] he bargained for.” McClendon, 589 A.2d at 710.

      In this case, the Commonwealth merely agreed that it “would have no

objection to the terroristic threats be treated as a long tail of supervision if

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the [trial] court believes that that’s appropriate.”   See Appellant’s Brief at

12-13 and 14-16; see also N.T. Guilty Plea Hearing, 1/31/19, at 2-3. Under

these terms, there was no express agreement that compelled the trial court

to impose probation in this case.    As in McClendon, the Commonwealth's

position that it would not object to a probationary sentence was not binding

on the trial court. Accordingly, as in McClendon, there exists no manifest

necessity to allow the post-sentence withdraw of Appellant's guilty plea and

the trial court did not err when it denied Appellant’s motion. Appellant’s claim

thus fails.

      Finally, Appellant claims that the trial court abused its discretion when

“it imposed unreasonable, harsh[,] and excessive sentences on all of the

charges” because “the facts surrounding these charges were not egregious so

as to warrant sentences beyond [the] standard sentenc[ing] ranges.”

Appellant’s Brief at 16 and 18.

      Appellant’s claim attacks the discretionary aspects of his sentence.

“[S]entencing is a matter vested in the sound discretion of the sentencing

judge, whose judgment will not be disturbed absent an abuse of discretion.”

Commonwealth v. Ritchey, 779 A.2d 1183, 1185 (Pa. Super. 2001).

Moreover, pursuant to statute, Appellant does not have an automatic right to

appeal the discretionary aspects of his sentence. See 42 Pa.C.S.A. § 9781(b).

Instead, Appellant must petition this Court for permission to appeal the

discretionary aspects of his sentence. Id.

      As this Court explained:

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         [t]o reach the merits of a discretionary sentencing issue, we
         conduct a four-part analysis to determine: (1) whether
         appellant has filed a timely notice of appeal, Pa.R.A.P. 902,
         903; (2) whether the issue was properly preserved at
         sentencing or in a motion to reconsider and modify sentence,
         Pa.R.Crim.P. 720; (3) whether appellant’s brief has a fatal
         defect, Pa.R.A.P. 2119(f); and (4) whether there is a
         substantial question that the sentence appealed from is not
         appropriate under the Sentencing Code, [42 Pa.C.S.A.]
         § 9781(b).

Commonwealth v. Cook, 941 A.2d 7, 11 (Pa. Super. 2007).

      In the case at bar, Appellant filed a timely post-sentence motion and

notice of appeal.   Moreover, Appellant’s brief includes the requisite Rule

2119(f) statement. See Appellant’s Brief at 10-11. We will now determine

whether Appellant’s claim presents a “substantial question that the sentence

appealed from is not appropriate under the Sentencing Code.”       Cook, 941

A.2d at 11.

      Generally, to raise a substantial question, an appellant must “advance

a colorable argument that the trial judge’s actions were: (1) inconsistent with

a specific provision of the Sentencing Code; or (2) contrary to the fundamental

norms which underlie the sentencing process.” Commonwealth v. McKiel,

629 A.2d 1012, 1013 (Pa. Super. 1993); Commonwealth v. Goggins, 748

A.2d 721, 726 (Pa. Super. 2000) (en banc), appeal denied, 759 A.2d 920 (Pa.

2000).   Here, Appellant claims that his sentence is manifestly excessive

because it constitutes too severe a punishment under the facts of the case.

Under our precedent, this claim raises a substantial question and permits us

to reach the merits of the claim. See Commonwealth v. Best, 120 A.3d


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329, 348 (Pa. Super. 2015) (holding that a claim “that the sentence imposed

was so manifestly excessive as to constitute too severe a punishment . . .

raise[s] a substantial question”).

      Nevertheless, Appellant’s claim that the trial court abused its discretion

in imposing a manifestly excessive sentence fails.      As the trial court ably

explained:

        On April 26, 2019, the sentencing hearing was held. [The
        trial] court noted [Appellant] had a prior record score of
        [three] and all three offenses had an offense gravity score of
        [three]. For count 1, simple assault, the standard range was
        calculated to be RS to less than [12] months. The aggravated
        range was calculated to be [12] months. [The trial] court
        imposed a sentence of [12] to [24] months in a state
        correctional institute.     For count 2 simple assault, the
        standard range was calculated to be six [to 12] months. The
        [trial] court imposed a sentence of [12] to [24] months in a
        state correctional institute, consecutive to count 1. For count
        3, terroristic threats, the standard range was calculated to be
        six [] to less than [18] months. The aggravated range was
        calculated to be [21]. [The trial] court imposed a sentence
        of [two-and-a-half to five years] in state prison.         This
        sentence is above the aggravated [range].

        As required, [the trial] court stated the following reasons for
        the sentence, on the record in open court, stating:

             I must advise you, sir, that the sentence is aggravated.
             It is above the aggravated [range] and the reason is, sir,
             that, number one, this sentence reflects the nature and
             gravity of your offense. It recognizes your failure to
             rehabilitate from past periods of supervision and/or
             confinement. It recognizes past convictions for
             aggravated assault for domestic violence, specifically,
             [another victim], who was stabbed. This individual was
             beaten with a bar and suffered a broken occipital bone.
             That's another reason for the sentence being above the
             aggravated range. It also recognizes that you have a


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            history of violating supervision in the past. Sir, those are
            the reasons for the aggravated sentence and the reasons
            now - the rest of the reasons for the sentence are it
            recognizes your need for rehabilitation and treatment and
            it recognizes that you were cooperative during the
            presentence investigation.

        [N.T. Sentencing Hearing, 4/26/19, at 14-15].

Trial Court Opinion, 9/6/19, at 8-9 (footnote omitted).

      From the above, it is apparent that the trial court did not abuse its

discretion when it concluded that the facts of Appellant’s case – including the

violent facts underlying the current crimes, Appellant’s repeated instances of

domestic violence, Appellant’s failure to reform his conduct despite the

continued intervention of the criminal justice system, and Appellant’s history

of violating supervision – warranted a sentence outside of the standard

sentencing range. Therefore, Appellant’s claim that the “the facts surrounding

these charges were not egregious so as to warrant sentences beyond [the]

standard sentenc[ing] ranges” fails. See Appellant’s Brief at 16 and 18.

      Judgment of sentence affirmed. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/16/2020




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