J-S67018-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                        IN THE SUPERIOR COURT OF
                                                          PENNSYLVANIA
                            Appellee

                       v.

EMERY GIBSON

                            Appellant                   No. 379 WDA 2014


           Appeal from the Judgment of Sentence December 6, 2011
               In the Court of Common Pleas of Fayette County
             Criminal Division at No(s): CP-26-CR-0000966-2010


BEFORE: DONOHUE, J., MUNDY, J., and FITZGERALD, J.*

MEMORANDUM BY MUNDY, J.:                             FILED JANUARY 07, 2015

        Appellant, Emery Gibson, appeals from the December 6, 2011

aggregate judgment of sentence of four to eight years’ incarceration

imposed after Appellant entered a negotiated guilty plea to charges in

connection with the abuse of a 19-month-old victim. Because the trial court

sentenced Appellant on charges to which he did not enter guilty pleas, we

vacate the judgment of sentence and remand for further proceedings.

        From our review of the certified record, we recount the procedural

history of this case as follows.        On May 16, 2010, Appellant was arrested

and charged with numerous offenses in connection with his abuse of a 19-

month-old child in his care. Based on subsequent medical information, an

amended criminal complaint was issued on May 24, 2010.           Those charges
____________________________________________
*
    Former Justice specially assigned to the Superior Court.
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were bound over for court, and an information was prepared with the

following charges: Count 1, rape of a child-serious bodily injury; Count 2,

involuntary deviate sexual intercourse (ISDI) by forcible compulsion; Count

3, ISDI with a child; Count 4, ISDI with a child with serious bodily injury;

Count 5, aggravated indecent assault of a child; Count 6, aggravated

indecent assault without consent; Count 7, aggravated indecent assault by

forcible compulsion; Count 8, aggravated indecent assault of a complainant

less than 13 years old; Count 9, endangering the welfare of children by

guardian; and Count 10, simple assault.1

       On September 6, 2011, Appellant and the Commonwealth entered into

a negotiated plea agreement.            At the plea hearing, the Commonwealth

explained the agreement was for Appellant to plead nolo contendere to

certain charges.      N.T., 9/6/11, at 3.        The trial court rejected any nolo

contendere plea unless Appellant professed a lack of memory.             Id.   The

parties subsequently agreed Appellant would enter a guilty plea. Id. The

Commonwealth then advised the trial court that, per the agreement,

Appellant was entering a plea of guilty to Counts 5 through 10, and the

Commonwealth would nolle prosse Counts 1 through 4. Id. at 5-6. In the

plea agreement, the parties also agreed to the imposition of an aggregate

sentence of four to eight years’ incarceration. After performing a colloquy
____________________________________________
1
   18 Pa.C.S.A. §§ 3121(d), 3121(a)(1), 3123(b), 3123(c), 3125(b),
3125(a)(1), 3125(a)(2), 3125(a)(7). 4304(a)(1), and 2701(a)(1),
respectively.



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with Appellant and hearing a recitation of the facts, the trial court accepted

the pleas. Id. at 11.

        At the December 6, 2011 sentencing hearing, the trial court indicated

it had accepted pleas to Counts 2, 3, 4, 9, and 10, and that Counts 1, 5, 6, 7

and 8 were to be nolle prossed. N.T., 12/6/11, at 3. The trial court then

imposed the negotiated sentence of four to eight years’ incarceration for

Count 2 and imposed no further penalty for the remaining counts.          The

Commonwealth then filed a motion to nolle prosse Counts 1, 5, 6, 7, and 8,

which the trial court granted. Neither Appellant nor his counsel raised any

objection at sentencing.

        On December 15, 2011, new counsel entered her appearance and filed

timely post-sentence motions on behalf of Appellant to withdraw his guilty

plea.    This Court further summarized the procedural events following the

filing of the post-sentence motion as follows.

             [T]he motion went unaddressed for approximately
             ten months.     On or about October 11, 2012,
             Appellant submitted a petition for special relief to
             this Court, which requested this Court to direct the
             Fayette County Clerk of Courts to deny his post-
             sentence motion by operation of law. On October
             18, 2012, this Court ordered the Fayette County
             Clerk of Courts to proceed according to Rules
             720(B)(3)(a) and 720(B)(3)(c) of the Pennsylvania
             Rules of Criminal Procedure, unless the Clerk of
             Courts believed there was a valid reason for not
             doing so, and it informed Appellant of that reason.
             The Fayette County Clerk of Courts responded on
             October 24, 2012, and informed Appellant that the
             Fayette County Clerk of Courts declined to deny his
             post-sentence motion by operation of law because


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           Appellant did not properly serve the motion on the
           trial judge and comply with the Fayette County Local
           Rules. Appellant filed a petition with this Court for
           leave to file an appeal nunc pro tunc, in the absence
           of a trial court order. On December 7, 2012, this
           Court     denied   Appellant’s   petition,  informing
           Appellant that if he filed a notice of appeal despite
           the absence of a Court of Common Pleas order, this
           Court would determine the jurisdictional propriety of
           the appeal at that time.

Commonwealth v. Gibson, 91 A.3d 1281 (Pa. Super. 2013) (unpublished

memorandum at 2-3).      Appellant filed a notice of appeal on January 15,

2013. This Court quashed the appeal for want of a final appealable order

and remanded the case, directing the trial court “to consider and rule on

Appellant’s post-sentence motion.” Id. at 6.

     On remand, the trial court held a hearing on Appellant’s post-sentence

motions on January 15, 2014. At the hearing, Appellant’s counsel, with the

concurrence of the Commonwealth, sought to modify the relief sought in his

post-sentence motion.    N.T., 1/15/14, at 3, 8, 23.    Appellant no longer

wished to withdraw his plea. Instead, he asked the trial court to correct his

sentence to be in conformity with his guilty plea.    Id. at 7-8.   Appellant

argued it was improper for the trial court to sentence Appellant for IDSI at

Counts 2, 3, and 4 when he never entered a plea to those charges. Id. at

26-27. Thus, the relief sought was for “the sentence [to] be modified and

reissued in accordance with the plea that was offered and accepted on

September 6, 2011.” Id. at 26.     The length of the sentence would remain

the same but the charges to which it applied would be corrected. Id. At the



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hearing, the Commonwealth stated it had no objection to the relief sought

by Appellant.2 Id. at 27.

       On February 3, 2014, the trial court denied Appellant’s amended nunc

pro tunc post-sentence motion. Appellant filed a timely notice of appeal on

March 5, 2014.3       On appeal, Appellant raises the following issues for our

review.

              1.     Was the sentencing proceeding invalid since
                     [Appellant] was sentenced to counts that were
                     not the counts in the plea agreement the court
                     had accepted?

                     a.     When a plea agreement is accepted, is a
                            court permitted to sentence [Appellant]
                            on counts to which he did not enter a
                            plea?

                     b.     Are [Appellant’s] due process rights
                            violated when he is sentenced in a
                            manner that is inconsistent with a plea
                            agreement that has been accepted by
                            the court?

Appellant’s Brief at 5.

       As phrased, Appellant’s issue implicates the enforceability of his plea

agreement.

              In determining whether a particular plea agreement
              has been breached, we look to what the parties to
              this plea agreement reasonably understood to be the
____________________________________________
2
  In its appellate brief, the Commonwealth now opposes Appellant’s claim for
relief.
3
  Appellant and the trial court have complied with Pennsylvania Rule of
Appellate procedure 1925.


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             terms of the agreement. 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.

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

banc) (internal quotation marks, brackets, and citations omitted), appeal

denied, 95 A.3d 276 (Pa. 2014).

      Instantly, the terms of Appellant’s plea agreement are undisputed and

were communicated to the trial court at the plea hearing. N.T., 9/6/11, at

4-6; see Written Plea Bargain, 9/6/11, at 1.       In accordance with those

terms, Appellant entered a guilty plea to indecent assault at counts 5, 6, 7,

and 8, endangering the welfare of a child at count 9, and simple assault at

count 10. Id. at 6. In exchange, the Commonwealth agreed to nolle prosse

the charge of rape at count 1, and the IDSI charges at counts 2, 3, and 4.

Id.   The plea agreement further provided for a negotiated aggregate

sentence of four to eight years’ incarceration.   Id. at 5.    The trial court

accepted the plea. Id. at 11.

      At the subsequent sentencing hearing, the trial court stated the

following.

                   Secondly, I want to make it clear that the
             pleas I took were for [IDSI], [IDSI] with a child
             causing serious bodily injury, endangering the
             welfare of a child, and simple assault.       It’s my
             understanding that because he didn’t admit to
             penetrating the child with a body part, the remaining
             charges[, Counts 1, 5, 6, 7, and 8,] are to be nol


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              prossed, and we are going to proceed on Counts 2,
              3, 4, 9 and 10….

N.T., 12/6/11, at 3.          When asked by the trial court, “Is that your

understanding…?” the Assistant District Attorney and defense counsel each

responded, “Yes, Your Honor.”           Id. at 3-4.   The trial court proceeded to

sentence Appellant to the aggregate four to eight years’ incarceration agreed

to in the plea agreement, albeit on the revised counts.               Id. at 5-9.

Subsequently the Commonwealth filed a motion to nolle prosse Counts 1, 5,

6, 7, and 8, which the trial court granted. See Motion and Order for Leave

to Enter Nol. Pros., 12/6/11, at 1-2.

       Appellant claims this was error on the part of the trial court, arguing

the following. “This situation violates [Appellant’s] rights in two ways: 1.)

the Commonwealth breached the plea agreement by changing the charges

to which [Appellant] was going to plead; and 2.) the Commonwealth violated

Pa.R.E. 410 by using information obtained during plea proceedings to justify

modifying the plea.” Appellant’s Brief at 14.4

       We agree with Appellant’s first proposition that the Commonwealth

failed to honor its plea agreement with Appellant by acquiescing in the trial


____________________________________________
4
  Appellant’s second proposition is inapt to the posture of this case. Rule
410 addresses the admissibility of evidence. See Pa.R.E. 410 (declaring
statements made during plea proceedings are not admissible in civil or
criminal cases). Appellant’s statements during his guilty plea have not been
offered as evidence in any proceeding in this case.



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court’s sentence and failing to nolle prosse the charges in accordance with

its agreement.

                  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.
            Likewise, 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.

Commonwealth v. Anderson, 995 A.2d 1184, 1191 (Pa. Super. 2010)

(internal quotation marks, bracket, and citations omitted), appeal denied, 9

A.3d 626 (Pa. 2010).

      However, although not argued in such context by Appellant, we

conclude Appellant’s issue implicates the legality of his sentence.        “It is

axiomatic that a court cannot impose a sentence without an adjudication of

guilt.” Commonwealth v. C.L., 963 A.2d 489, 494 (Pa. Super. 2008); see

also Commonwealth v. Paige, 429 A.2d 1135, 1140 n.3 (Pa. Super.

1981) (stating, “[s]ince a court has no power to impose a sentence that is

not based on a determination of guilt, any sentence imposed without such a

determination is illegal[]”). “A general definition of an illegal sentence is one

that exceeds the jurisdiction or power of the sentencing court to impose.”


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Commonwealth v. Tobin, 89 A.3d 663, 668 (Pa. Super. 2014).           “Issues

relating to the legality of a sentence are questions of law…. Our standard of

review over such questions is de novo and our scope of review is plenary.”

Commonwealth v. Hawkins, 45 A.3d 1123, 1130 (Pa. Super. 2012),

quoting Commonwealth v. Brougher, 978 A.2d 373, 377 (Pa. Super.

2009), appeal denied, 53 A.3d 756 (Pa. 2012). “[C]hallenges to an illegal

sentence can never be waived and may be reviewed sua sponte by this

Court.”    Commonwealth v. Tanner, 61 A.3d 1043, 1046 (Pa. Super.

2013), quoting Commonwealth v. Randal, 837 A.2d 1211, 1214 (Pa.

Super. 2003) (en banc).

       At the hearing on Appellant’s post-sentence motion, the parties

speculated that there had been communication between the Commonwealth

and Appellant’s plea counsel after the entry of the guilty plea and before

sentencing to adjust the charges that were pled to pursuant to the plea

bargain.5 N.T., 1/15/14, at 21-22. The apparent purpose was to have the

charges better coincide with Appellant’s factual admission made during his

guilty plea colloquy.6 Id. at 5-6, 21-22. However, none of the purported

____________________________________________
5
  Neither of the attorneys participating in the January 15, 2014 hearing,
were personally involved in the alleged communications. N.T., 1/15/14, at
21-22.
6
  When reviewing the factual allegations supporting the aggravated indecent
assault charges at Counts 5, 6, 7 and 8, all based on a single act, the trial
court asked Appellant what he used to penetrate the victim’s anus.
Appellant responded that he did not use any portion of his body, but used a
(Footnote Continued Next Page)

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communications between the Commonwealth, defense counsel, and the trial

court is in the certified record.       Neither is there any indication in the record

that Appellant was aware of or agreed to modify his plea. This Court may

not consider items or circumstances that are not contained in the certified

record.   Commonwealth v. Ross, 57 A.3d 85, 96-97 (Pa. Super. 2012),

appeal denied, 72 A.3d 602 (Pa. 2013), citing Commonwealth v. Rush,

959 A.2d 945, 949 (Pa. Super. 2008).

      We conclude, based on the foregoing, that because no guilty plea or

adjudication of guilt was entered against Appellant with respect to the IDSI

charges at Counts 2, 3, and 4, the sentences imposed on those counts are

illegal. See Paige, supra.           Accordingly, we are constrained to vacate the

December 6, 2011 judgment of sentence in this case and remand for further

proceedings.7     “An illegal sentence must be vacated.”            Tanner, supra

(citation omitted).


                       _______________________
(Footnote Continued)
spoon. N.T., 9/6/11, at 7-8. It is an element of aggravated indecent assault
that a defendant “engage[] in penetration, however slight, of the genitals or
anus of a complainant with a part of the [defendant’s] body….” 18
Pa.C.S.A. § 3125(a) (emphasis added). Deviate sexual intercourse is an
element of IDSI and is defined in pertinent part as “penetration, however
slight, of the genitals or anus of another person with a foreign object….”
18 Pa.C.S.A. § 3101 (emphasis added).
7
  The parties acknowledge that the trial court’s sentences on Counts 9 and
10 do not violate the plea agreement. N.T., 1/15/14, 30-31. Nevertheless,
we include the entire judgment of sentence in our holding to vacate and
remand to avoid disturbing the trial court’s entire sentencing scheme. See
Tanner, supra, at 1048.


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     Although we vacate the judgment of sentence in this case, we must

further consider the relief sought by Appellant relative to the scope of our

remand.   Appellant urges this Court to remand “for further proceedings in

which the terms of the September 6, 2011 plea agreement are enforced.”

Appellant’s Brief at 20. As discussed above, once a plea that is subject to a

negotiated plea agreement is entered and accepted by the trial court,

neither the Commonwealth nor the trial court may deviate from its express

terms.    See Anderson, supra.        This admonition, however, does not

obligate the trial court to continue its acceptance of the plea agreement if,

upon proper grounds and prior to imposition of sentence, it determines the

plea agreement is not acceptable. See Pa.R.Crim.P. 591 (providing in part,

“any time before the imposition of sentence, the court may, in its discretion,

… direct, sua sponte, the withdrawal of a plea of guilty … and the

substitution of a plea of not guilty); Commonwealth v. Herbert, 85 A.3d

558, 565 (noting our appellate Courts, “have granted trial courts broad

discretion in deciding whether to withdraw a guilty plea sua sponte”);

Commonwealth v. Rosario, 652 A.2d 354, (Pa. Super. 1994) (en banc)

(upholding the trial court’s sua sponte withdrawal of defendant’s guilty plea

where a factual basis for the plea was lacking), appeal denied, 685 A.2d 547

(Pa. 1996).

     Thus in light of all the foregoing, we vacate the December 6, 2011

judgment of sentence in this case and remand for further proceedings.


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Upon remand, the trial court may impose sentence in accordance with

Appellant’s guilty plea and plea agreement.   However, our decision herein

shall not be construed to restrict the trial court’s discretion under

Pennsylvania Rule of Criminal Procedure 591. See generally Pa.R.Crim.P.

591.

       Judgment of sentence vacated.       Case remanded.      Jurisdiction

relinquished.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/7/2015




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