J-S54021-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    DERRICK WRIGHT                             :
                                               :
                       Appellant               :   No. 158 WDA 2018

            Appeal from the Judgment of Sentence August 18, 2017
    In the Court of Common Pleas of Erie County Criminal Division at No(s):
                           CP-25-CR-0003882-2016


BEFORE: PANELLA, J., LAZARUS, J., and MURRAY, J.

MEMORANDUM BY LAZARUS, J.:                         FILED SEPTEMBER 21, 2018

       Derrick Wright appeals from the judgment of sentence, entered in the

Court of Common Pleas of Erie County, after a jury convicted him of theft and

related offenses.1 After review, we affirm.

       On August 4, 2016, an associate of Wright entered a home, without

permission, and took from it two debit/credit cards. Later, Wright and the

associate used the debit/credit cards to make various unauthorized purchases.

Following an investigation, the Commonwealth charged Wright with two

counts of theft, two counts of access device fraud, conspiracy and burglary.

On June 21, 2017, a jury found Wright guilty on all charges but burglary. On

August 18, 2017, the trial court sentenced Wright to an aggregate term of 2
____________________________________________


1 Theft by unlawful taking, 18 Pa.C.S.A. § 3921; conspiracy (theft), 18
Pa.C.S.A. § 903; receiving stolen property, 18 Pa.C.S.A. § 3925; access
device, 18 Pa.C.S.A. § 4106; and conspiracy (access device), 18 Pa.C.S.A. §
903.
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to 8 years’ imprisonment.        On August 28, 2017, Wright filed a motion for

reconsideration of sentence, which the trial court denied by operation of law

on December 26, 2017 pursuant to Pa.R.Crim.P. 720(B)(3)(a). On January

25, 2018, Wright timely appealed.          Both Wright and the trial court have

complied with Pa.R.A.P. 1925.        On appeal, Wright raises one issue for our

review: “Did the trial court commit an abuse of discretion when it refused to

accept/enforce a plea agreement that was offered and accepted on the record

and then withdrawn by the Commonwealth.” Brief of Appellant, at 7.

         Wright argues that the trial court failed to exercise its discretion to

determine whether the Commonwealth had inappropriately reneged a plea

offer.

         Pa.R.Crim.P. 590, which pertains to pleas and plea agreements,

provides, in relevant part, as follows:

         (A) Generally

         (1) Pleas shall be taken in open court.

         (2) A defendant may plead not guilty, guilty, or, with the consent
         of the judge, nolo contendere. If the defendant refuses to plead,
         the judge shall enter a plea of not guilty on the defendant's behalf.

                                         ...

         (B) Plea agreements.

         (1) At any time prior to the verdict, when counsel for both sides
         have arrived at a plea agreement, they shall state on the record
         in open court, in the presence of the defendant, the terms of the
         agreement[.]




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      (2) The judge shall conduct a separate inquiry of the defendant
      on the record to determine whether the defendant understands
      and voluntarily accepts the terms of the plea agreement on which
      the guilty plea or plea of nolo contendere is based.

Pa.R.Crim.P. 590(a)(1) and (2) and (b)(1) and (2).

      In Commonwealth v. McElroy, 665 A.2d 813 (Pa. Super. 1995), this

Court interpreted Rule 590 as follows:

      This Rule has been interpreted by our Supreme Court to mean
      that no plea agreement exists unless and until it is presented to
      the court. Our Supreme Court has also held that where a plea
      agreement has been entered of record and has been accepted by
      the trial court, the Commonwealth is required to abide by the
      terms of the plea agreement. . . . However, prior to the entry of
      a guilty plea, the defendant has no right to specific
      performance of an executory agreement.

Id. at 816 (citations, quotations and brackets omitted) (emphasis added).

      Here, the Commonwealth proposed a plea deal in which Wright would

plead guilty to only one first-degree misdemeanor (theft), rather than a felony

burglary count and related misdemeanors; he agreed to that deal. However,

prior to Wright entering his plea pursuant to that plea offer, the trial court

granted the Commonwealth, represented by Assistant District Attorney

(“ADA”) Jeremy C. Lightner, leave to consult with a more senior ADA regarding

the plea offer. Approximately fifteen minutes later, ADA Lightner informed

Wright’s counsel and the trial court that the Commonwealth could not extend

the previously proposed plea offer in light of internal policies regarding

downgrading felonies to misdemeanors. At that time, Wright had not read

and/or recited the colloquy necessary to formalize his entrance of a guilty plea

pursuant to the Commonwealth’s plea offer. In light of the circumstances,


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and as Wright concedes, see Brief of Appellant, at 23, there is nothing in the

record evidencing formal acceptance of the Commonwealth’s plea offer that

would entitle him to specific performance of plea agreement (i.e., an

executory contract) as a matter of right. See generally, N.T. Trial, 6/21/17,

at 17 (“[C]ompletion of the plea is what needs to occur before the plea is . . .

[a] contract.”); see Pa.R.Crim.P. 590(A)(3).

      Instantly, however, Wright argues that the trial court has the discretion

to enforce a plea bargain that had been offered and accepted but subsequently

withdrawn by the Commonwealth. In support of his argument, Wright cites

Commonwealth v. Mebane, 58 A.3d 1243 (Pa. Super. 2012). In Mebane,

this court determined that, in light of the Commonwealth’s bad faith reneging

on its plea offer, the defendant was entitled to the benefit of the withdrawn

plea bargain. There, the Commonwealth extended a plea offer to Mebane,

who accepted it. At the time of Mebane’s acceptance, neither party was aware

of the trial court’s ruling on a pending, but related, suppression motion. At

some point after Mebane accepted the plea agreement, but before his guilty

plea hearing, the Commonwealth became aware that the trial court had denied

Mebane’s suppression motion, but it did not inform Mebane of said

information. When the parties convened for Mebane’s guilty plea hearing, the

Commonwealth, armed with knowledge that the trial court had not suppressed

incriminating evidence, reneged its plea offer. This court determined that the

Commonwealth acted inappropriately in not disclosing that the trial court had

denied Mebane’s suppression motion and, thus, enforcement of the

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Commonwealth’s reneged-upon offer was in the interest of justice. Mebane,

58 A.3d at 1249 (finding that Commonwealth “vulpinely used . . . information

regarding the [t]rial [c]ourt’s ruling prior to its disclosure to defense counsel,”

leading defendant to proceed under belief he had entered into plea agreement

with Commonwealth.”) (citation and quotation omitted).

      Wright argues that the instant circumstances are similar to those in

Mebane. We disagree. First, the Commonwealth timely withdrew its plea

offer after ADA Lightner discovered his proposed plea offer violated office

policy; the Commonwealth withdrew the plea offer in good faith where ADA

Lightner had no authority from the Commonwealth to extend it. Second, as

Wright concedes, the trial court never reached the procedural juncture

necessary to conduct an inquiry into the validity of a guilty plea.           See

Commonwealth v. McElroy, supra at 816 (no plea agreement exists unless

and until it is presented to court).            Additionally, no extraordinary

circumstances existed here that would have permitted the trial court to

exercise discretion to enjoin the Commonwealth to honor a plea agreement

that had not yet been consummated by colloquy.             Cf. Mebane, supra.

Accordingly, Wright’s claim is meritless.

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/21/2018




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