J-A26022-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                                         :
             v.                          :
                                         :
                                         :
DOUGLAS BITZER                           :
                                         :
                   Appellant             :   No. 379 MDA 2017

          Appeal from the Judgment of Sentence October 14, 2016
    In the Court of Common Pleas of Luzerne County Criminal Division at
                      No(s): CP-40-CR-0001327-2016,
                          CP-40-CR-0001328-2016


BEFORE: BOWES, J., OLSON, J., and RANSOM, J.

MEMORANDUM BY OLSON, J.:                        FILED NOVEMBER 27, 2017

      Appellant, Douglas Bitzer, appeals from the judgment of sentence

entered on October 14, 2016, following his guilty pleas to various charges

filed against him by the Commonwealth in two, separate bills of criminal

information. Upon review, we affirm.

      The trial court set forth the facts and procedural history of this case as

follows:

      This matter arises from two informations filed by the Luzerne
      County District Attorney against [Appellant].      Information
      number 1327 of 2016 charged [Appellant] with burglary,
      terroristic threats, simple assault, recklessly endangering
      another person, two counts of stalking, risking catastrophe,
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       disorderly conduct and persons not to possess a firearm.[1]
       Information number 1328 of 2016 charged [Appellant] with two
       counts of simple assault, recklessly endangering another person,
       terroristic threats and harassment.[2]

       [Appellant] signed written plea agreements and entered guilty
       pleas to terroristic threats, stalking, simple assault and risking
       catastrophe on information 1327 of 2016. He also pled guilty to
       terroristic threats, recklessly endangering another person and
       simple assault on information 1328 of 2016.

       Sentencing took place on October 14, 2016. On information
       1327 of 2016, [Appellant] received a sentence of six to twelve
       months on the terroristic threats charge, six to twelve months
       consecutive on the simple assault charge, nine to eighteen
       months consecutive on the stalking charge and nine to eighteen
       months consecutive on the risking catastrophe charge.
       [Appellant] received [concurrent] three to six month []
       sentences on the three counts charged in information 1328 of
       2016. The sentences imposed on information 1328 of 2016 were
       to run concurrent with the sentences imposed on information
       number 1327 of 2106. [Appellant’s] prior record score was four
       and he received credit for serving two hundred thirteen days of
       incarceration prior to sentencing. All sentence[s] were within
       the standard range of the sentencing guidelines.

       On October 17, 2016, [Appellant] filed a [m]otion for
       [p]ost-[s]entence relief. In the motion[, Appellant] requested
       that his sentences [within each criminal information] be modified
       to run concurrently. He also requested that his guilty pleas be
       withdrawn if his sentences were not modified. [Appellant’s]
       motion was denied by [o]rder dated February 1, 2017.

       [Appellant] filed a timely [n]otice of [a]ppeal on February 27,
       2017. An [o]rder was issued [by the trial court] on March 2,
       2017, which required a [c]oncise [s]tatement of [e]rrors
       [c]omplained of on [a]ppeal pursuant to Pa.R.A.P. 1925(b) be
____________________________________________


1 18 Pa.C.S.A. §§ 3502, 2706, 2701, 2705, 2709.1, 3302, 5503, and 6105,
respectively.

2   18 Pa.C.S.A. §§ 2701, 2705, 2706, and 2709, respectively.



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      filed by [Appellant] within twenty-one days.           [Appellant]
      complied with this [o]rder by filing a concise statement on March
      9, 2017 and amended concise statement on March 13, 2017.
      The concise statement and amended concise statement both
      requested modification of sentence or the withdrawal of
      [Appellant’s] guilty pleas.

Trial Court Opinion, 4/19/2017, at 1-2.     The trial court issued an opinion

pursuant to Pa.R.A.P. 1925(a) on April 19, 2017.

      On appeal, Appellant presents the following issues for our review:

      1. Did the [Commonwealth] fulfill its affirmative duty to meet its
         obligations pursuant to the plea agreement?

      2. [Were] the sentence[s] imposed materially premised upon the
         [trial court’s] confusion as to the actual terms and conditions
         of the plea?

      3. In the event the trial [c]ourt [was] not inclined to sentencing
         [Appellant] in accordance with the terms and conditions of
         the plea agreement, should [Appellant] be permitted to
         withdraw his plea?

Appellant’s Brief at 3 (suggested answers omitted).

      All of Appellant’s issues are inter-related in that he seeks to withdraw

his guilty plea because the trial court misapprehended the plea agreement

and the Commonwealth failed to fulfill its obligation under it.   Hence, we will

examine the issues together.       Appellant argues that “[a]t the time of

sentencing, the [Commonwealth] expressly stated on the record that [there

was] no objection to all counts on both [i]nformations running concurrently.”

Id. at 11.   “However, at the time of sentencing, the [trial court] ran the

sentences on the different counts of No. 1327 of 2016[,] consecutively.” Id.

Appellant claims that there were two different attorneys representing the

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Commonwealth, one at the guilty plea hearing and another at the sentencing

hearing. Id.      He claims that the attorney representing the Commonwealth

at   sentencing    denied   that   the   other   attorney   representing   the

Commonwealth at the plea hearing did not object to all counts on both

criminal informations running concurrently. Id.     Appellant alleges that the

trial court’s confusion was apparent when it stated that it had no memory of

an agreement to run all of the sentences for the separate criminal counts

concurrently and instead stated that the agreement merely called for the

aggregate sentences for the two cases to be run concurrently to each other.

Id. at 13.   Appellant avers that we should remand the matter to the trial

court for resentencing consistent with his plea agreement. Id. at 14. In the

alternative, Appellant requests that he be allowed to withdraw his plea. Id.

at 14-15.

      We adhere to the following standards:

      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,
      [t]here 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.

      Although a defendant has no constitutional right to have an
      executory plea agreement specifically     enforced,     once
      a plea actually is entered, and was induced by a prosecutor's

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       promise to abstain from making a sentencing recommendation,
       that promise must be fulfilled. 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 terms of the agreement.

       Where       the   Commonwealth    violates    a   term    of
       the plea agreement, the defendant is entitled to receive the
       benefit of the bargain.

       Although a plea agreement occurs in a criminal context, it
       remains contractual in nature and is to be analyzed under
       contract-law standards.     Furthermore, disputes over any
       particular term of a plea agreement must be resolved by
       objective standards. A determination of exactly what promises
       constitute the plea bargain must be based upon the totality of
       the surrounding circumstances and involves a case-by-case
       adjudication.

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

(internal citations omitted).        Regarding withdrawal of a guilty plea, “[a]

defendant must demonstrate that manifest injustice would result if the court

were    to   deny     his post-sentence motion      to withdraw a   guilty plea.”

Commonwealth v. Baez, 169 A.3d 35 (Pa. Super. 2017).

       “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 (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 in original). 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


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       prosecution's right to seek the maximum sentences applicable to
       those charges.

Id. at 20 (internal 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.

       Moreover, this Court’s en banc decision in Commonwealth v.

McClendon, 589 A.2d 706 (Pa. Super. 1991) (en banc) is instructive herein.

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. This Court

ultimately concluded:

       Pursuant to the express terms of [McClendon’s] plea agreement,
       therefore, the Commonwealth was obligated to do nothing more
       than to inform the sentencing court that it had no objection to
       concurrent sentences. It was not required affirmatively to
       request or recommend that concurrent sentences be imposed.

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        The agreement provided further in clear, explicit and
        unambiguous terms that the sentencing court was not required
        to    accept    any   sentencing   recommendation    by     the
        Commonwealth. During the guilty plea colloquy [McClendon] was
        specifically informed that the sentencing judge was free to
        impose consecutive sentences, with each being up to the
        statutory maximum. [McClendon] acknowledged that he fully
        understood the terms of the plea agreement and that he was
        willing to be bound thereby. The Commonwealth complied with
        the terms of the plea agreement which it made with
        [McClendon], and he is not entitled to withdraw his guilty plea
        merely because he was disappointed by the sentence imposed
        by the court.

Id.

        Upon    review   in   the   case    sub   judice,   we   discern   that   the

Commonwealth and the trial court abided by the terms of the plea

agreement with Appellant and, therefore, there was no manifest necessity to

permit withdrawal of Appellant’s guilty plea.          The Commonwealth issued

written plea agreements at both docket numbers, 1327 of 2016 and 1328 of

2106.     Those agreements stated that “[u]nless otherwise stated herein,

[the] parties have not made any agreement on sentencing.”              Pursuant to

paragraph five of both agreements, under the heading of additional terms

and conditions, the Commonwealth “agrees to run cases concurrent to one

another.”      Each agreement then references the case at the other docket

number.        Moreover, the written agreements set forth the maximum

penalties for each of the charged crimes.          Appellant, an attorney for the

Commonwealth, and defense counsel signed each written guilty plea

agreement.      By their plain terms, the plea agreements executed by the


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J-A26022-17


parties provided only that the aggregate sentences imposed at each

information should run concurrent to each other but there was no agreement

concerning the sentences imposed for each offense within a particular

information.

        At the guilty plea hearing, the Commonwealth stated the terms of the

written plea agreements on the record.            See N.T., 8/26/2016, at 2-3.     In

each instance, “the Commonwealth agree[d] to run [each] case concurrent

with [Appellant’s] other case[.]”       Id. at 2-3 (emphasis added).        Defense

counsel    then   interjected   that   it   was    his   “understanding”   that   the

Commonwealth “ha[d] no objections to all counts running concurrent[.]”

Id. at 3 (emphasis added).        The Commonwealth agreed, the trial court

inquired if the Commonwealth’s lack of objection applied to both cases, and

the Commonwealth confirmed as such.            Id. at 4 (emphasis added).         The

trial court then asked Appellant if he understood the terms of the plea

agreement. Id. at 5. Before accepting the plea, the trial court also stated

that it was not bound by the agreement as it pertained to sentencing and it

could “run the counts consecutive.”         Id. at 6.     Appellant agreed that he

understood. Id.     The trial court then accepted Appellant’s guilty pleas. Id.

at 9.

        After the trial court sentenced Appellant to consecutive sentences on

docket number 1327 of 2016, counsel for Appellant stated, “although it was

not part of the written plea agreement, at the time of [Appellant’s plea]


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the [Commonwealth] agreed on the record that they would be okay with

concurrent sentence[s] on all things, including the – all the counts of 1327.”

N.T., 10/14/2016, at 5 (emphasis added). The Commonwealth stated that

“the only agreement was that the cases would run concurrent to each

other.”   Id. at 6.   The trial court replied, “That’s what I’ve done.       I’ve

honored the [terms] in the plea agreement.” Id. at 6.

      Initially, we conclude that the parties entered into a hybrid plea

agreement.     The parties specifically negotiated that the trial court would

impose the aggregate sentences at 1327 of 2016 with the aggregate

sentences at 1328 of 2106, concurrently to each other.          The trial court

complied with these provisions of the agreements.

      Moreover,    similar   to   our   decision   in   McClendon,   here,   the

Commonwealth stated on the record that it would not object to the

imposition of concurrent sentences on each count within the two, separate

informations. However, there was no express agreement that compelled the

trial court to impose concurrent sentences on all of the counts contained in a

single case.   Appellant acknowledged at sentencing that the written plea

agreement did not specify that he was to receive concurrent terms of

imprisonment on all of his criminal counts.             As in McClendon, the

Commonwealth’s position that it would not object to the imposition of

concurrent sentences was not binding on the trial court. Thus, it was within

the trial court’s discretion to impose consecutive sentences on the individual


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counts of a single criminal information.3 Hence, we conclude that Appellant

received the benefit of his bargain.           Accordingly, there is no manifest

necessity to allow the post-sentence withdraw of Appellant’s guilty plea.

Thus, Appellant’s issues lack merit.




____________________________________________


3   We note that Appellant challenged the discretionary aspects of his
consecutive sentences before the trial court. However, he did not raise that
issue in his concise Rule 1925(b) statement or develop such a claim in his
brief. As such, we deem this issue waived. See Commonwealth v. Oliver,
128 A.3d 1275, 1279 (Pa. Super. 2015) (“Any issues not raised in a 1925(b)
statement will be deemed waived.”); see also Commonwealth v. Ellis,
700 A.2d 948, 957 (Pa. Super. 1997) (waiver results if an appellant fails to
properly develop an issue or cite to legal authority to support his contention
in his appellate brief). Regardless, “it is well-settled that the right to appeal
a discretionary aspect of sentence is not absolute.”      Commonwealth         v.
Barnes, 167 A.3d 110, 122 (Pa. Super. 2017) (citation omitted). “Rather,
where an appellant challenges the discretionary aspects of a sentence, an
appellant's appeal should be considered as a petition for allowance of
appeal.” Id. In challenging the discretionary aspects of sentencing, an
appellant must invoke this Court’s jurisdiction by satisfying a four-part test,
including “whether there is a substantial question that the sentence
appealed from is not appropriate under the Sentencing Code.” Id. (citation
omitted).    “[A]    defendant may raise      a substantial question where    he
receives consecutive sentences within the guideline ranges if the case
involves circumstances where the application of the guidelines would be
clearly unreasonable, resulting in an excessive sentence; however, a bald
claim of excessiveness due to the consecutive nature of a sentence will not
raise a substantial question.” Commonwealth v. Swope, 123 A.3d 333,
338–339 (Pa. Super. 2015), citing Commonwealth v. Dodge, 77 A.3d
1263, 1270 (Pa. Super. 2013). Were we to address such a claim, we would
not find a substantial question in this case.



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     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/27/2017




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