J-S77045-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

TREVOR EUGENE NEFF,

                            Appellant                 No. 747 MDA 2016


           Appeal from the Judgment of Sentence December 9, 2015
                 in the Court of Common Pleas of York County
              Criminal Division at No.: CP-67-CR-0006322-2015


BEFORE: PANELLA, J., OLSON, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                         FILED DECEMBER 13, 2016

        Appellant, Trevor Eugene Neff, appeals from the judgment of sentence

entered following his December 9, 2015 negotiated guilty plea to one count

of accidents involving damage to attended vehicle or property, 75 Pa.C.S.A.

§ 3743(a). On appeal, Appellant claims that the trial court did not sentence

him in accordance with the terms of the plea agreement. For the reasons

discussed below, we affirm.

        We take the underlying facts and procedural history in this matter

from our independent review of the certified record. On August 2, 2015, at

approximately 1:00 p.m., Appellant ran a red light and struck another

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
J-S77045-16


vehicle. (See N.T. Guilty Plea Hearing, 12/09/15, at 6). Appellant fled the

scene and police ultimately found his vehicle in a parking space nearby.

(See id.). The police linked Appellant to the car via its registration. (See

id.). Appellant admitted to the police that he was involved in the accident

and had fled the scene. (See id.).

        On October 14, 2015, the Commonwealth filed a criminal information

charging Appellant with one count of accidents involving damage to attended

vehicle or property and one count of traffic controls signals — steady red

indication.1 (See Criminal Information, 10/14/15). On December 9, 2015,

the parties entered into a negotiated guilty plea.   It is undisputed that, in

return for Appellant’s pleading guilty, the Commonwealth agreed to nolle

prosse the charge of traffic controls signals and to a sentence of twelve

months of probation, seventy-five hours of community service, costs and

restitution. (See N.T. Guilty Plea Hearing, at 2, 8; see also Written Guilty

Plea Colloquy, 12/09/15, at 7). At the guilty plea hearing, the trial court,

sua sponte, imposed an additional $1,000.00 fine.      (See N.T. Guilty Plea

Hearing, at 7-8).

        At the hearing, a lengthy discussion took place with respect to the

issue of restitution.     The Commonwealth initially stated that there was a

dispute as to restitution and, therefore, the parties were not specifying an

____________________________________________


1
    75 Pa.C.S.A. § 3112(a)(3)(i).



                                           -2-
J-S77045-16


exact amount for purposes of sentencing.    (See id. at 2). The trial court

stated that it could not impose sentence with an open restitution amount.

(See id. at 2).    Defense counsel then clarified the matter, stating the

following:

           . . . if I can just clear some things up. The number that
      the victim is owed, be it the insurance company as well as
      the victim herself, is not in dispute. What is in dispute —
      he also has an insurance company, and both of them have
      open claims. The hope is that his insurance company will
      pay her insurance company a large portion of what is
      owed.

            So perhaps, since we do actually have a solid number,
      we can put that on the record. I would still file a motion. If we
      have proof that his insurance company is paying out some other
      portion, then what he individually owes would obviously be
      reduced by what his insurance paid out.

(Id. at 2-3) (emphases added).         Attorney Alice B. Richards further

acknowledged that Appellant understood that he would be responsible for

what the insurance company did not pay. (See id. at 3). Appellant did not

object to counsel’s statements.      When questioned by the trial court,

Appellant agreed that he would pay the fixed amount of restitution ordered

by the court and that he had no questions about restitution. (See id. at 4).

The Commonwealth then stated that there were two amounts of restitution

included in the plea agreement; Appellant would pay $15,936.30 to Erie

Insurance, and $2,573.53 to the victim.     (See id. at 5).   The trial court

commented that this totaled $18,509.83. (See id.). The trial court asked




                                    -3-
J-S77045-16


Appellant if he wished to say anything and Appellant replied that he did not.

(See id.). Appellant then pled guilty. (See id. at 6).

       On December 21, 2015, Appellant, represented by new counsel, filed a

post-sentence motion. In the motion, he challenged the imposition of the

$1,000.00 fine.       (See Post-Sentence Motion, 12/21/15, at unnumbered

pages 2-3).      In addition, for the first time, he claimed that there was a

dispute regarding the amount of restitution requested by the victim, arguing

that the restitution for the victim was for the replacement costs for a new

vehicle and that this was improper.2 (See id. at unnumbered pages 3-4).

The motion was denied by operation of law on May 10, 2016.

       The instant, timely appeal followed on May 10, 2016. That same day,

without any order of court, Appellant filed a concise statement of errors

complained of on appeal. See Pa.R.A.P. 1925(b). On June 29, 2016, the

trial court issued an opinion. See Pa.R.A.P. 1925(a).

       On appeal, Appellant raises the following questions for our review:

       1. Whether the [trial] court erred when it failed to strictly
          enforce Appellant’s plea agreement after accepting his plea by
          imposing an additional $1,000.00 fine not part of the plea
          agreement?


____________________________________________


2
  In the motion, Appellant mistakenly claims that counsel had raised this
issue at the plea hearing and that she had informed the trial court that a
restitution hearing would be required with respect to this. (See Post-
Sentence Motion, at unnumbered page 3).




                                           -4-
J-S77045-16


       2. Whether the [trial] court erred by imposing $2,573.53 in
          additional restitution when such restitution amount was
          beyond the actual loss of the victim for purposes of 18
          Pa.C.S.[A.] § 1106?

(Appellant’s Brief, at 5) (unnecessary capitalization omitted).

       In his first issue, Appellant claims that the court erred in imposing the

$1,000.00 fine after accepting his negotiated plea. (See Appellant’s Brief, at

11).    In his second issue, Appellant avers that the trial court erred in

imposing $2,573.53 in restitution to be paid to the victim. (See id. at 19).

Specifically, Appellant argues that this amount was “beyond the actual loss

of the victim for purposes of 18 Pa.C.S.[A.] § 1106[.]”              (Id.) (most

capitalization omitted). Because both issues involve challenges to his plea

agreement, we will treat them together.

       Appellant claims that his issues are challenges to the legality of

sentence and directly on point with this Court’s decision in Commonwealth

v. Parsons, 969 A.2d 1259 (Pa. Super. 2009) (en banc), appeal denied, 982

A.2d 1228 (Pa. 2009).         (See Appellant’s Brief, at 3-4).   We disagree and

instead find that we need not address the merits of Appellant’s claims

because the imposition of the fine and the amount of restitution to be paid

to the victim were agreed-upon terms of the plea agreement and Appellant

is attempting to unilaterally alter them.3

____________________________________________


3
  This is not the basis of the trial court’s decision. However, an appellate
court may affirm an order of the trial court on any basis if its decision is
(Footnote Continued Next Page)


                                           -5-
J-S77045-16


      Here, Appellant does not seek to withdraw his plea agreement but,

instead, seeks the benefit of the plea bargain. (See id. at 8). This Court

has held that there is a duty for 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. Kroh, 654 A.2d 1168, 1172 (Pa. Super. 1995) (citations

omitted).   Moreover, we have cited the federal courts for the proposition

that “[i]n 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.”            Commonwealth v.

Fruehan, 557 A.2d 1093, 1094 (Pa. Super. 1989) (quoting United States

v. Carbone, 739 F.2d 45, 46 (2d Cir. 1984)) (internal quotation marks and

citations omitted). Lastly, we have stated:

             When determining precisely what the terms of a plea
      agreement were, we are guided by the analysis concisely set
      forth in United States v. Hall, 730 F.Supp. 646, 650 (M.D. Pa.
      1990):

                   Although a plea agreement occurs in a criminal
             context, it remains contractual in nature and is to be
             analyzed under contract-law standards. United
                       _______________________
(Footnote Continued)

correct.  See Commonwealth v. Hernandez, 886 A.2d 231, 240 (Pa.
Super. 2005), appeal denied, 889 A.2d 1122 (Pa. 2006).




                                            -6-
J-S77045-16


           States v. Moscahlaidis, 868 F.2d 1357, 1361 (3d
           Cir. 1989).      Furthermore, disputes over any
           particular term of a plea agreement must be
           resolved by objective standards. United States v.
           Nelson, 837 F.2d 1519, 1522 (11th Cir.), rehearing
           denied 845 F.2d 1032 (1988); see also United
           States v. Read, 778 F.2d 1437, 1441 (9th Cir.
           1985) cert. denied 479 U.S. 835, 107 S.Ct. 131, 93
           L.Ed.2d 75 (1986). 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. United
           States v. Grant, 622 F.2d 308, 312 (8th Cir. 1980).

                 Any ambiguities in the terms of the plea
           agreement     will  be     construed     against  the
           Government. [United States v.] Crusco, 536 F.2d
           [21] at 25 [3d Cir. 1976].         Nevertheless, the
           agreement itself controls where its language sets out
           the terms of the bargain with specificity. See United
           States v. Krasn, 614 F.2d 1229, 1233 (9th Cir.
           1980).

Kroh, supra at 1172 (citation formatting provided).

     In challenging both the restitution and the imposition of the fine,

Appellant relies on this Court’s decision in Parsons, supra.          (See

Appellant’s Brief, at 3-4, 11, 13, 15). In Parsons, the defendant entered

into a negotiated guilty plea with an agreement as to both the charges and

the sentence.    See id. at 1261-62.      At sentencing, defense counsel

challenged the negotiated sentence, and the trial court concurred, imposing

a lesser sentence than the Commonwealth had agreed to. See id. at 1264-

65. The Commonwealth immediately objected, contending that the change

in the sentence represented a rejection of the plea agreement. See id. at

1265. On appeal, a panel of this Court found that this claim constituted a

                                   -7-
J-S77045-16


challenge to the discretionary aspects of sentence and held that the

Commonwealth waived the claim when it did not file a Rule 2119(f)

statement. See id. An en banc panel of this Court disagreed, holding that a

claim of a breach of a plea agreement does not implicate the discretionary

aspects of sentence. See id. at 1270. However, at no point did this Court

hold that a claim of a breach of a plea agreement was a challenge to the

legality of sentence; rather, we agreed with the Commonwealth that such a

claim was not a challenge “to the sentence imposed” but instead a challenge

to “the court’s failure to accept or reject the entire plea bargain.”   Id. at

1266; see also id. at 1269. Thus, Appellant has not provided any support

for the contention that a claim of a breach of a plea agreement is a non-

waivable challenge to the legality of sentence. We are bound to follow the

decision in Parsons, which did not consider such a claim a challenge to the

legality of sentence. See id.

     Further, this Court has held that a trial court cannot alter unilaterally

the terms of a plea agreement at the request of a criminal defendant. As we

stated in Parsons, “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.” Parsons, supra at 1268

(citations omitted). We have also stated:

          [W]here the parties have reached a specific sentencing
     agreement and the court has conducted a colloquy with the
     defendant regarding the terms of the agreement, the court
     cannot later modify the terms of the agreement without the

                                    -8-
J-S77045-16


      consent of the Commonwealth. In effect, this would deny the
      Commonwealth the full benefit of the agreement which it
      reached with the defendant and the defendant, in turn, would
      receive a windfall.

Commonwealth v. Townsend, 693 A.2d 980, 983 (Pa. Super. 1997).

      In the instant matter, the record reflects that, after the trial court

imposed the fine, defense counsel asked if the fine was “something” the trial

court wanted to add because it was not included in the plea agreement.

(N.T. Guilty Plea Hearing, at 8). When the court indicated that it did wish to

add a fine, defense counsel agreed that the trial court was correct in stating

that Appellant was “eligible for up to 2,500 bucks.” (Id.) Defense counsel

did not attempt to withdraw the plea, but rather accepted the imposition of

the fine as a term of the plea, then moved on to other issues. (See id. at 8-

9). Thus, unlike in Parsons, Appellant never objected to the imposition of

the fine, advised the Court that imposing such a fine was a breach of the

plea agreement, or attempted to withdraw the guilty plea. (See id.); see

also Parsons, supra at 1265.         Thus, the imposition of the fine was an

agreed-upon term of the plea agreement, and once agreed to, the trial court

could not unilaterally alter it.   See Parsons, supra at 1268; Townsend,

supra at 983.

       With respect to restitution, as noted above, Appellant erroneously

argued in his post-sentence motion that defense counsel had challenged the

amount of restitution to be paid to the victim and reserved the right to




                                      -9-
J-S77045-16


contest it in a post-sentence motion.         (See Post-Sentence Motion, at

unnumbered page 3). This is simply not the case.

      The record reflects that the parties initially attempted to enter the plea

without specifying the amount of restitution and the trial court refused to

accept the plea without a specified amount. (See N.T. Guilty Plea Hearing,

at 1-2).   In response, defense counsel stated that Appellant was not

disputing the amount of restitution owed to the victim and that the

only issue that would require the filing of the post-sentence motion was the

issue of how much money Appellant’s insurance company would cover and

that amount would need to be subtracted from the amount of restitution.

(See id. at 2-3). Defense counsel reiterated that Appellant understood that

he would be responsible for any amount that his insurance did not cover.

(See id.). Appellant agreed on the record both that he would pay the fixed

amount of restitution ordered by the court and that he had no questions

about restitution.   (See id. at 4).      The Commonwealth specified that

Appellant would pay $2,573.53 to the victim; Appellant did not dispute this

and, immediately thereafter entered his guilty plea. (See id. at 5-6). Thus,

it is abundantly clear that, at the time Appellant entered his guilty plea, as a




                                     - 10 -
J-S77045-16


part of the plea agreement, he specifically agreed, on the record, to pay

$2,5733.53 to the victim.4

       In the instant matter, Appellant received the benefit of the plea

agreement; the Commonwealth dropped one of the charges against him and

agreed to a sentence of probation, community service, and the payment of a

specified amount of restitution.        Appellant then sought to alter part of the

agreement as to the sentence by challenging the portion of the restitution to

be paid to the victim.        However, as stated above, the trial court had no

ability to alter the agreement. See Parsons, supra at 1268; Townsend,

supra at 983.      Thus, Appellant’s issue lacks merit.

       Accordingly, for the reasons discussed above, we affirm the judgment

of sentence.

       Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/13/2016
____________________________________________


4
 We note that the statements made during a plea colloquy bind a criminal
defendant. See Commonwealth v. Muhammad, 794 A.2d 378, 384 (Pa.
Super. 2002).



                                          - 11 -
