J-S02026-20

                                 2020 PA Super 51


    COMMONWEALTH OF PENNSYLVANIA            :   IN THE SUPERIOR COURT OF
                                            :        PENNSYLVANIA
                     Appellee               :
                                            :
               v.                           :
                                            :
    JOSHUA MICHAEL SNOOK                    :
                                            :
                     Appellant              :       No. 1198 MDA 2019

               Appeal from the PCRA Order Entered July 12, 2019
                In the Court of Common Pleas of Snyder County
              Criminal Division at No(s): CP-55-CR-0000094-2013


BEFORE: BENDER, P.J.E., KING, J., and MUSMANNO, J.

OPINION BY KING, J.:                        FILED: MARCH 6, 2020

        Appellant, Joshua Michael Snook, appeals pro se from the order entered

in the Snyder County Court of Common Pleas, which denied his petition filed

under the Post Conviction Relief Act (“PCRA”).1 We affirm in part, vacate in

part, and remand for further proceedings.

        The relevant facts and procedural history of this case are as follows. On

February 17, 2013, Appellant’s wife, Jennifer Snook, drove Appellant to his

grandparents’ home to retrieve a gun to shoot an individual with whom

Appellant had argued that evening.          While in his grandparents’ home,

Appellant fatally wounded his grandmother with a knife and cut the arm and/or

wrist of his grandfather. On March 20, 2014, Appellant entered a negotiated

guilty plea to third-degree murder and a nolo contendere plea to aggravated



1   42 Pa.C.S.A. § 9541-9546.
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assault and conspiracy to commit murder. In exchange, the Commonwealth

agreed to, inter alia: (i) the entry of nolle prossequi on all remaining charges;

(ii) permit Appellant to communicate with his wife, who had been charged as

a co-defendant in the case, after sentencing; and (iii) recommend an

aggregate term of twenty (20) to sixty (60) years’ incarceration. The court

accepted the plea as knowing, intelligent, and voluntary, and imposed the

negotiated sentence on April 23, 2014.       The sentencing order included a

provision permitting Appellant to correspond with his wife. Appellant did not

file post-sentence motions or a direct appeal. Subsequently, co-defendant

Mrs. Snook also entered a guilty plea and received a sentence of incarceration

for her role in the events of February 17, 2013.

      Appellant timely filed pro se his first PCRA petition on April 24, 2015.

On April 28, 2015, the PCRA court appointed counsel, who filed an amended

PCRA petition on July 23, 2015. In the amended petition, Appellant asserted

plea counsel had rendered ineffective assistance for, inter alia, inducing

Appellant to enter into an unenforceable plea agreement.            Specifically,

Appellant averred it was impossible for him to communicate with his wife after

sentencing due to a Department of Corrections (“DOC”) policy prohibiting

communication between co-defendants.          The PCRA court conducted an

evidentiary hearing on October 13, 2015.

      On March 29, 2016, by agreement of the parties, the PCRA court: (i)

deemed plea counsel ineffective for advising Appellant to enter a plea


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agreement which included a term that was impossible to fulfill; (ii) vacated

the April 2014 judgment of sentence; (iii) and ordered resentencing. That

same day, Appellant entered a new negotiated guilty plea to third-degree

murder and nolo contendere plea to aggravated assault and conspiracy to

commit murder. The terms of the parties’ new plea agreement omitted the

provision allowing for communication with co-defendant Mrs. Snook, and

included the Commonwealth’s agreement to a reduced sentence of sixteen

(16) to sixty (60) years’ incarceration.   After conducting a new oral plea

colloquy on the record, the court accepted the plea as knowing, intelligent,

and voluntary, and imposed the new negotiated aggregate sentence of sixteen

(16) to sixty (60) years’ incarceration.    Following sentencing, the court

informed Appellant of his post-sentence and appellate rights.     Appellant,

however, filed no post-sentence motions or direct appeal.

     On March 30, 2017, Appellant timely filed pro se his first PCRA petition

from the March 29, 2016 judgment of sentence. The PCRA court appointed

new counsel on April 3, 2017. On July 12, 2017, Appellant filed an amended

PCRA petition, asserting original PCRA counsel was ineffective during the

March 29, 2016 plea proceedings because counsel failed to, inter alia, object

to the plea colloquy as insufficient where neither the court nor counsel had

explained the mens rea for malice.

     On June 15, 2018, again by the parties’ agreement, the PCRA court

vacated the March 2016 judgment of sentence based on the deficient plea


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colloquy. Appellant then entered a new negotiated guilty plea to third-degree

murder and nolo contendere plea to aggravated assault and conspiracy to

commit murder.      As part of the new plea agreement, the Commonwealth

agreed, inter alia, to a reduced aggregate sentence of twelve (12) to forty

(40) years’ incarceration, and to return Appellant’s personal property.     In

exchange, Appellant expressly waived: (i) his right to appeal from the new

judgment of sentence; and (ii) any future PCRA claims. Following a new oral

plea colloquy, the court accepted the plea as knowing, intelligent, and

voluntary, and resentenced Appellant to an aggregate twelve (12) to forty

(40) years’ incarceration, per the plea agreement.       The sentencing order

memorialized the terms of the parties’ plea agreement, in relevant part, as

follows:

           9. It is hereby additionally ordered that as part of this
           sentence the following:

             9.1. [Appellant] has waived his right to appeal this
             sentence and has additionally waived all of claims with
             respect to the filing of petitions for Post-Conviction
             Relief in regard to his entire criminal case.

             9.2. The Commonwealth shall return to [Appellant]
             the following items of personal property after the
             expiration of the 30-day appeal period from this
             sentence:

                His wallet, his Social Security card, his keys
                seized from his home filing cabinet, his birth
                certificate, and two iPhones.

(Sentencing Order, filed June 15, 2018).      Appellant filed no post-sentence

motions or direct appeal.

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      On June 11, 2019, Appellant timely filed pro se the current PCRA

petition, which was his first petition from the June 15, 2018 judgment of

sentence.   In his petition, Appellant asserted several claims of ineffective

assistance of counsel. Appellant also complained the Commonwealth failed to

comply with the June 15, 2018 plea agreement, because it had not returned

Appellant’s personal property. On June 28, 2019, the court issued notice of

its intent to dismiss the petition without a hearing per Pa.R.Crim.P. 907;

Appellant responded pro se on July 9, 2019. On July 12, 2019, the PCRA court

denied Appellant’s petition as an untimely serial PCRA petition filed from the

original April 2014 judgment of sentence. Appellant filed pro se a timely notice

of appeal and a voluntary concise statement of errors complained of on appeal

per Pa.R.A.P. 1925(b) on July 22, 2019.

      Appellant raises the following issues for our review:

         DID THE PCRA COURT ERR IN REJECTING [APPELLANT’S]
         CLAIM THAT THE COMMONWEALTH IS IN BREACH OF
         APPELLANT’S PLEA AGREEMENT AND SENTENCING ORDER
         OF JUNE 15, 2018?

         DID THE PCRA COURT ERR IN DISMISSING APPELLANT’S
         PCRA [PETITION] AS “UNTIMELY” AS IT WAS FILED WITHIN
         ONE YEAR OF THE FINAL JUDGMENT OF SENTENCE OF JUNE
         15, 2018?

         DID THE PCRA COURT ERR/ABUSE ITS DISCRETION IN
         FAILING TO HOLD AN EVIDENTIARY HEARING WHERE
         APPELLANT RAISED ISSUES OF MATERIAL FACT THAT
         WOULD ENTITLE HIM TO RELIEF?

         DID THE PCRA COURT ERR IN FAILING TO APPOINT PCRA
         COUNSEL AND ORDERING AMENDMENT OF APPELLANT’S
         CLAIMS?

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         DID THE PCRA COURT ERR WHEN FAILING TO
         ADDRESS/CORRECT THE MISCARRIAGE OF JUSTICE
         RESULTING FROM COMMONWEALTH’S BREACH OF
         APPELLANT’S PLEA AGREEMENT AND SENTENCING ORDER?

         DID THE PCRA COURT ERR, AS A MATTER OF LAW, WHEN
         FAILING TO REACH THE MERITS OF APPELLANT’S
         REMAINING CLAIMS THAT ARE NOW RESURRECTED, AS A
         MATTER OF LAW, DUE TO THE COMMONWEALTH’S BREACH
         OF APPELLANT’S PLEA AGREEMENT AND SENTENCING
         ORDER?

(Appellant’s Brief at 4).

      For purposes of disposition, we combine Appellant’s issues. Appellant

argues his current PCRA petition is a first, timely petition filed from the June

15, 2018 judgment of sentence. Appellant contends the PCRA court erred

when it failed to appoint PCRA counsel and hold an evidentiary hearing.

Appellant avers plea counsel was ineffective for, inter alia, inducing Appellant

into entering unknowing and unintelligent pleas where counsel should have

investigated Appellant’s intoxication on the night at issue as a possible

defense. Appellant also maintains the Commonwealth breached the June 15,

2018 plea agreement when it failed to return Appellant’s personal property,

which was an express term of the parties’ agreement. Appellant concludes

this Court should reverse the denial of PCRA relief and remand for further

proceedings. We agree some limited relief is due.

      Preliminarily, a PCRA petition, including a second or subsequent petition,

shall be filed within one year of the date the underlying judgment of sentence

becomes final. 42 Pa.C.S.A. § 9545(b)(1). A judgment of sentence is final

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“at the conclusion of direct review, including discretionary review in the

Supreme Court of the United States and the Supreme Court of Pennsylvania,

or at the expiration of time for seeking the review.”            42 Pa.C.S.A. §

9545(b)(3).

      A petition for collateral relief will generally be considered a PCRA petition

if it raises issues cognizable under the PCRA.         See Commonwealth v.

Peterkin, 554 Pa. 547, 553, 722 A.2d 638, 640 (1998); 42 Pa.C.S.A. § 9542

(stating PCRA shall be sole means of obtaining collateral relief and

encompasses all other common law and statutory remedies for same

purpose). The plain language of the PCRA mandates that claims which could

be   brought   under   the   PCRA,    must    be   brought    under   the   PCRA.

Commonwealth v. Hall, 565 Pa. 92, 96-97, 771 A.2d 1232, 1235 (2001).

Ineffective assistance of counsel claims are generally cognizable under the

PCRA.    See 42 Pa.C.S.A. § 9543(a)(2)(ii) (stating claim of ineffective

assistance of counsel is cognizable under PCRA).

      “On the other hand, a collateral petition to enforce a plea agreement is

regularly treated as outside the ambit of the PCRA and under the contractual

enforcement theory of specific performance. The designation of the petition

does not preclude a court from deducing the proper nature of a pleading.”

Commonwealth v. Kerns, 220 A.3d 607, 611-12 (Pa.Super. 2019) (internal

citations and quotation marks omitted).

      Plea bargains play a critical role in the criminal justice system of this


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Commonwealth:

       With respect to plea bargains, [t]he reality of the criminal
       justice system is that nearly all criminal cases are disposed
       of by plea bargains: [n]inety-seven percent of federal
       convictions and ninety-four percent of state convictions are
       the result of guilty pleas. Plea bargaining is not some
       adjunct to the criminal justice system; it is the criminal
       justice system.      Accordingly, it is critical that plea
       agreements are enforced, to avoid any possible perversion
       of the plea bargaining system. The disposition of criminal
       charges by agreement between the prosecutor and the
       accused, …is an essential component of the administration
       of justice. Properly administered, it is to be encouraged. In
       this Commonwealth, the practice of plea bargaining is
       generally regarded favorably, and is legitimized and
       governed by court rule…. A “mutuality of advantage” to
       defendants and prosecutors flows from the ratification of the
       bargain.

       Assuming the plea agreement is legally possible to fulfill,
       when the parties enter the plea agreement and the court
       accepts and approves the plea, then the parties and the
       court must abide by the terms of the agreement. Specific
       enforcement of valid plea bargains is a matter of
       fundamental fairness. The terms of plea agreements are
       not limited to the withdrawal of charges, or the length of a
       sentence. Parties may agree to—and seek enforcement of—
       terms that fall outside these areas.

       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.

       Any ambiguities in the terms of the plea agreement will be
       construed against the Government.        Nevertheless, the
       agreement itself controls where its language sets out the
       terms of the bargain with specificity.      Regarding the
       Commonwealth’s duty to honor plea agreements, well-

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         settled Pennsylvania law states:

            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.

         Whether a particular plea agreement has been breached
         depends on what the parties to the agreement reasonably
         understood to be the terms of the agreement.

Commonwealth v. Farabaugh, 136 A.3d 99, 1001-02 (Pa.Super. 2016),

appeal denied, 643 Pa. 140, 172 A.3d 1115 (2017) (internal citations and

quotation marks omitted). Further: “[T]he convicted criminal is entitled to

the benefit of his bargain through specific performance of the terms of the

plea agreement. Thus, a court must determine whether an alleged term is

part of the parties’ plea agreement. If the answer to that inquiry is affirmative,

then the convicted criminal is entitled to specific performance of the term.”

Commonwealth v. Martinez, 637 Pa. 208, 233, 147 A.3d 517, 532-33

(2016) (some internal citations omitted).

      Significantly, defendants can waive valuable rights as part of a plea

bargain, including the right to appeal, in exchange for important concessions

by the Commonwealth, so long as the defendant’s waiver is knowing,

intelligent, and voluntary. See, e.g., Commonwealth v. Barnes, 687 A.2d

1163 (Pa.Super. 1996), appeal denied, 548 Pa. 613, 693 A.2d 585 (1997)

(holding defendant’s waiver of right to file motion for post-trial relief in


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exchange for Commonwealth’s agreement not to seek death penalty was

valid). See also Commonwealth v. Byrne, 833 A.2d 729, 736 (Pa.Super.

2003) (stating: “We are aware of no authority that provides an impediment

to a defendant’s express, knowing, and voluntary waiver of a statutory right

if that waiver is key in obtaining a bargained-for exchange from the

Commonwealth”).

     Instantly, Appellant’s June 15, 2018 judgment of sentence became final

on July 15, 2018, after expiration of the time for Appellant to file a direct

appeal in this Court. See 42 Pa.C.S.A. § 9545(b)(3). See also Pa.R.A.P.

903(a) (stating appellant has 30 days to file notice of appeal in this Court).

The PCRA court deemed Appellant’s current filing a serial PCRA petition from

the original April 2014 judgment of sentence, and denied Appellant’s petition

as untimely. The April 2014 judgment of sentence, however, no longer stood

at the time Appellant filed the current PCRA petition.    Rather, the record

confirms the March 29, 2016 proceedings resulted in the vacation of the April

2014 judgment of sentence, entry of a new plea agreement with different

terms, and entry of a new judgment of sentence. Likewise, during the June

15, 2018 proceedings, the court vacated the March 29, 2016 judgment of

sentence, Appellant entered a new plea agreement with different terms, and

the court imposed a wholly new judgment of sentence against Appellant.

Therefore, Appellant’s current June 11, 2019 PCRA petition represented

Appellant’s first PCRA petition from the June 15, 2018 judgment of sentence,


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which was timely filed. See 42 Pa.C.S.A. § 9545(b)(1).

       Nevertheless, Appellant expressly waived his right to PCRA review as

part   of   the   June   15,   2018   plea   agreement,   in   exchange    for   the

Commonwealth’s sentencing reduction. See Byrne, supra; Barnes, supra.

Appellant does not challenge on appeal the validity of his waiver of appellate

rights.     Consequently, Appellant is precluded from raising his current

ineffective assistance of counsel claims, which are otherwise cognizable under

the PCRA. See 42 Pa.C.S.A. § 9543(a)(2)(ii). Thus, we affirm the court’s

denial of PCRA relief, albeit on different grounds.2 See Commonwealth v.

Reese, 31 A.3d 708, 727 (Pa.Super. 2011) (en banc) (stating appellate court

may affirm order of trial court on any basis if ultimate decision is correct).

       Appellant’s claim regarding the return of his personal property,

however, constitutes a claim to enforce the bargained-for exchange he made

in the June 15, 2018 plea agreement and falls outside of the PCRA. See


2 Ordinarily, a PCRA petitioner is entitled to the assistance of counsel to litigate
a first PCRA petition. See Pa.R.Crim.P. 904(c) (stating indigent defendant is
entitled to appointment of counsel for litigation of first PCRA petition). Under
these circumstances, however, remanding for appointment of counsel
concerning Appellant’s PCRA claims would be a futile act.             See, e.g.,
Commonwealth v. Hart, 911 A.2d 939, 942 (Pa.Super. 2006) (explaining
failure to appoint counsel for first-time PCRA petitioner who has served his
sentence is harmless error; remand would be futile act under such
circumstances because defendant who has already served sentence is
ineligible for PCRA relief). Additionally, the court was not required to hold an
evidentiary hearing on Appellant’s PCRA claims. See Commonwealth v.
Hardcastle, 549 Pa. 450, 701 A.2d 541 (1997) (explaining PCRA court is not
required to hold evidentiary hearing where there is no genuine issue
concerning any material fact, petitioner is not entitled to PCRA relief, and no
purpose would be served by any further proceedings).

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Kerns, supra. See also 42 Pa.C.S.A. § 9543(a)(2) (enumerating cognizable

issues under PCRA). The court failed to address Appellant’s claim alleging a

breach of the plea agreement when it denied Appellant’s June 11, 2019 filing.

Therefore, we vacate the court’s July 12, 2019 order only with respect to

Appellant’s claim to enforce the plea bargain and remand for consideration of

whether Appellant was denied his bargained-for exchange regarding return of

his property. Accordingly, we affirm the July 12, 2019 order denying PCRA

relief, vacate the order regarding Appellant’s claim to enforce the plea

agreement, and remand for further proceedings.

      Order affirmed in part; vacated and remanded in part. Jurisdiction is

relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 03/06/2020




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