J-S39013-15



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                           Appellee

                      v.

MICHAEL J. PANNELL,

                           Appellant                     No. 975 EDA 2014


          Appeal from the Judgment of Sentence November 15, 2013
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-1104631-2005




BEFORE: BOWES, OTT AND MUSMANNO, JJ.

MEMORANDUM BY BOWES, J.:                              FILED AUGUST 11, 2015

        Michael J. Pannell appeals from the aggregate judgment of sentence of

fifty to 100 years incarceration after the court below granted in part and

denied in part his post-conviction relief petition filed pursuant to the Post-

Conviction Relief Act (“PCRA”). For reasons outlined infra, and in light of the

unusual procedural posture of this case, we vacate the order of the PCRA

court    denying    resentencing   before   a   new   judge,   vacate   Appellant’s

subsequent judgment of sentence, and remand for resentencing before a

different jurist.

        Appellant entered an open guilty plea to involuntary deviate sexual

intercourse (“IDSI”), aggravated assault, robbery, burglary, and attempted
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rape on August 3, 2006.             The facts underlying these crimes involved

Appellant’s unlawful entry into the residence of S.Z., robbing her, forcing her

to remove her shorts and then straddling, groping and fondling her while his

penis was exposed, before forcing her to perform oral sex.         During the

episode, Appellant was armed with a knife. The victim resisted, and in doing

so grabbed the blade of Appellant’s knife, causing the tendons in each of her

fingers to be severed down to the bone in both hands. 1 During Appellant’s

plea hearing, the court placed on the record that the Commonwealth

promised not to make a sentencing recommendation.           However, the court

also advised Appellant that, as a result of a prior conviction for a crime of

violence, Appellant was subject to a mandatory minimum sentence for each

crime. See 42 Pa.C.S. § 9714.

       At sentencing, the prosecutor, despite the agreement not to make a

sentencing recommendation stated, “Your Honor, the only just result, after

today’s proceeding, is that the defendant spend the rest of his life in jail.”

N.T., 11/10/06, at 18.2 The court sentenced Appellant consecutively at each

____________________________________________


1
  Appellant’s fingerprints were on both the inside and outside of the window
that he had used to gain entry into the victim’s home. Further, police
discovered at his home shorts that were soaked in blood. DNA testing
confirmed that the blood belonged to the victim.
2
  The prosecutor also later argued, “Prison is the only place he can comply
with the rules. Prison is the only place where he can be trusted to do what
is expected of him.” N.T., 11/10/06, at 25. The Commonwealth also
(Footnote Continued Next Page)


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count to ten to twenty years of imprisonment for an aggregate sentence of

fifty to 100 years.

      Appellant did not file a direct appeal, but timely filed a pro se PCRA

petition seeking reinstatement of his appellate rights. The Commonwealth

agreed that Appellant was entitled to relief, and the court reinstated

Appellant’s direct appeal rights nunc pro tunc.              Thereafter, Appellant

appealed, challenging the discretionary aspects of his sentence. This Court

affirmed.   Commonwealth v. Pannell, 998 A.2d 1015 (Pa.Super. 2010).

Appellant filed a timely PCRA petition.           Therein, he alleged that he was

entitled to withdraw his guilty plea because the Commonwealth agreed not

to recommend a sentence during plea negotiations, but breached that

promise during sentencing.             He also argued that, if he were to be

resentenced, it should occur before a different judge.

      The PCRA court ruled that the Commonwealth had agreed not to

recommend a sentence and violated that agreement. Nonetheless, the court

concluded that Appellant was not entitled to withdraw his plea based on

those facts, and instead found that he was entitled to resentencing.

                       _______________________
(Footnote Continued)

presented a friend of the victim who unsurprisingly requested that Appellant
be sentenced to the maximum possible sentence. Id. at 33. The prosecutor
concluded, “Your Honor, you have the discretion to impose anything
between ten to 20 years and 50 to 100 years. We ask the Court to impose a
sentence, if not the maximum sentence, then close to it, to ensure that the
defendant never hurts another human being.” Id. at 39.



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Accordingly, on September 27, 2013, the court vacated his judgment of

sentence, ordered a new sentencing hearing, and denied all other PCRA

relief.     The docket reflects that an order was entered on that same date

vacating the original judgment of sentence and scheduling a new sentencing

hearing. However, that order is not contained in the record and there is no

indication that Appellant was advised of his appellate rights relative to the

denial of his PCRA claims.

          Appellant failed to appeal from the September order denying PCRA

relief in part. Subsequently, the court resentenced Appellant to the identical

sentence on November 15, 2013, based on the applicable mandatories.

Appellant filed a post-sentence motion.          Therein, he argued that it was

improper for the court to resentence him and alleged that in doing so, it

precluded him from appealing the denial of his PCRA claims.           The court

denied that motion by operation of law on March 21, 2014. Appellant now

appeals from the judgment of sentence.3 Appellant’s issues on appeal are:

          Did the PCRA court commit an abuse of discretion by denying
          Appellant the right to withdraw his guilty plea after ruling that
          the Commonwealth failed to comply with the plea agreement
          reached between the parties?

          Did the PCRA court err by denying Appellant’s request that the
          matter be transferred to another judge for resentencing after
          ruling that Appellant was entitled to be resentenced?
____________________________________________


3
  The court did not direct Appellant to file a Pa.R.A.P. 1925(b) concise
statement of errors complained of on appeal, but did file an opinion.



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Appellant’s brief at 3.

      Preliminarily,      the   Commonwealth    contends    that   Appellant    is

jurisdictionally barred from contesting the denial of PCRA relief where he is

appealing from his new judgment of sentence.               The Commonwealth

maintains that any appeal from the denial of PCRA relief is untimely and that

Appellant cannot challenge the PCRA rulings by appealing from his new

judgment of sentence.

      Under Pa.R.A.P. 903(a), a notice of appeal must filed within thirty days

of a court’s final order. Specifically, the rule reads in relevant part that, “the

notice of appeal required by Rule 902 (manner of taking appeal) shall be

filed within 30 days after the entry of the order from which the appeal is

taken.” Pa.R.A.P. 903(a). Pa.R.Crim.P. 910 provides, “An order, granting,

denying, dismissing, or otherwise finally disposing of a petition for post-

conviction collateral relief shall constitute a final order for purposes of

appeal.”   Concomitantly, Pa.R.A.P. 341 defines a final order as one that

“disposes of all claims and of all parties[.]” Pa.R.A.P. 341(b)(1).

      Thus, the September 27, 2013 order denying Appellant merits-based

relief but granting resentencing was a final order that disposed of all of

Appellant’s PCRA claims. The Commonwealth could have appealed the grant

of resentencing as a final order, though in this matter it ultimately agreed

with that resolution, and Appellant could have appealed the denial of merits-



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based relief.   See Commonwealth v. Bryant, 780 A.2d 646 (Pa. 2001).

No remaining issues existed to be decided. Thus, an appeal would not have

been dismissed as premature or interlocutory since each of Appellant’s

claims had been determined. Based on the plain language of the applicable

rules, Appellant’s appeal as to his PCRA claims is patently untimely.

      We further find Commonwealth v. Anderson, 788 A.2d 1019

(Pa.Super. 2001), Commonwealth v. Lesko, 15 A.3d 345 (Pa. 2011), and

Bryant, supra, instructive. In Anderson, we ruled that a defendant who is

resentenced at a revocation proceeding has one year from the date of

finality of his new judgment of sentence to challenge, via a PCRA, any issues

relative to the new sentence.    Anderson, supra at 1021 (“where a new

sentence is imposed at a probation revocation hearing, the revocation

hearing date must be employed when assessing finality under § 9545(b)(3)

to any issues directly appealable from that hearing.”).         However, the

defendant could not backdoor any challenges to his underlying conviction

when challenging his new sentence via the PCRA.

      Similarly, in Lesko, supra, the Pennsylvania Supreme Court ruled that

a defendant could not seek merits PCRA review of claims relating to his

original judgment of sentence of death after a federal court awarded limited

habeas relief relative to sentencing.      The Lesko Court ruled that the

petitioner could only challenge what occurred at his new sentencing.     See

Lesko, supra at 366-367.        While Anderson and Lesko involve issues

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pertaining to the timeliness of a PCRA petition, and not a notice of appeal,

they illustrate that petitioners cannot seek to enlarge the time frame for

contesting their underlying conviction by relying on a new sentencing

proceeding.   Instantly, Appellant is attempting to enlarge the period for

challenging his PCRA denial, which ultimately relates to his original guilty

plea proceeding.

      Even more apt, is our Supreme Court’s decision in Bryant, supra. In

Bryant, the PCRA court denied guilt phase relief in a capital matter, but

awarded a new sentencing.     The defendant initially appealed the denial of

the guilt phase claims to the Superior Court, and the Commonwealth elected

not to file a cross-appeal. However, the Commonwealth requested, and the

PCRA court agreed, to stay the new sentencing proceeding pending

resolution of the appeal.

      Recognizing that an appeal from a PCRA matter where a death

sentence has been imposed properly belongs with the Pennsylvania Supreme

Court, Bryant moved to transfer the case.    This Court erroneously denied

that motion, and quashed the appeal as interlocutory.         A unanimous

Supreme Court reversed.     In doing so, the High Court relied on Pa.R.A.P.

341(b), Pa.R.A.P. 903, and Pa.R.Crim.P. 1510, the latter of which is now

Pa.R.Crim.P. 910. The Court declared that the order denying relief in part

and granting sentencing relief was a final order as to both Bryant and the

Commonwealth. It held that had Bryant not appealed from the denial of his

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guilt phase claims within thirty days that “he would have waived future

review of the decision of the PCRA court.” Bryant, supra at 648.

       Although Bryant involved a capital case, its discussion of the

predecessor to Rule 910, Rule 1510, and Pa.R.A.P. 903, relative to a final

order applies with equal force in the present setting. It is beyond cavil that

the September order herein was final for purposes of appeal—the court

disposed of all of his claims. See also Commonwealth v. Scarborough,

64 A.3d     602 (Pa. 2013) (discussing what constitutes a final order with

respect to 42 Pa.C.S. § 9543.1 of the PCRA).                 Appellant is seeking to

lengthen the notice of appeal period and challenge his underlying conviction

via the denial of his merits based PCRA claims by appealing from the order

entered after his new sentencing hearing.             We have regularly precluded

defendants     from    contesting     their    underlying   conviction   after   a   new

sentencing via a new PCRA petition.                 Similarly, we agree with the

Commonwealth that a defendant cannot ordinarily challenge the denial of

PCRA relief from a new judgment of sentence order, but must timely appeal

from the denial of PCRA relief.4          Here, Appellant failed to file an appeal

within thirty days of that order.

____________________________________________


4
   We are cognizant that this issue is currently being considered by an en
banc panel of this Court. See Commonwealth v. Gaines, 1497 MDA 2013
(argued June 30, 2015).




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       Nonetheless, the record does not contain the PCRA final order in

question. While the court entered its order orally on the record relative to

denying Appellant’s request to withdraw his guilty plea and directing

resentencing, it did not advise Appellant of his appellate rights. Moreover,

the order that is docketed does not appear in the record and there is no

indication in the record that counsel was ever advised that he had to appeal

within thirty days of the denial.5

       We add that, although there was no evidentiary hearing, the PCRA

court entered its order after a hearing in which oral argument was

presented.     This implicates both Pa.R.Crim.P. 907 and Pa.R.Crim.P. 908.

Under Rule 907, when a petition is dismissed without a hearing, a judge

“shall advise the defendant by certified mail, return receipt requested, of the

right to appeal from the final order disposing of the petition and of the time

limits within which the appeal must be filed.”    Similarly, pursuant to Rule

908, if, after a hearing, a judge disposes of a case “when the defendant is

not present in open court, the judge, by certified mail, return receipt
____________________________________________


5
   In his post-sentence motion after resentencing, counsel averred, “By
denying defendant relief on his claim that he should be permitted to
withdraw his guilty plea and proceeding to sentencing over defendant’s
objection, the court has precluded defendant from raising on appeal an issue
alleging that the court erred by denying his PCRA claim that he was entitled
to withdraw his guilty plea or, at a minimum, proceed to sentencing before
another judge.” Appellant’s Post-Sentence Motion, 11/20/13, at 3 ¶ 9. Of
course, this is technically inaccurate since Appellant should have appealed
from the order denying that relief.



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requested, shall advise the defendant of the right to appeal from the final

order disposing of the petition and of the time limits within which the appeal

must be filed.”

      Thus, unless the defendant is present at the time of the entry of the

order, the court must inform the petitioner of his appellate rights.    Here,

Appellant was not present at the argument hearing held on September 27,

2013, although counsel appeared.          The failure of the court to advise

Appellant of his appellate rights can constitute a breakdown in the judicial

system. Commonwealth v. Liebensperger, 904 A.2d 40, 44 (Pa.Super.

2006) (declining to quash appeal as untimely where court failed to advise

defendant of appellate rights in a PCRA matter in either its Rule 907 notice

or final order). Therefore, we decline to quash the instant appeal and will

treat this appeal as arising from the denial of PCRA relief, and reach the

merits of Appellant’s claims.

      Appellant initially argues that the PCRA court erred in ruling that he

was not permitted to withdraw his guilty plea based on the Commonwealth’s

breach of its agreement not to recommend a sentence. He maintains that

he only agreed to enter an open guilty plea “because the prosecutor

promised him that he would not recommend any sentence to the trial

court[.]”   Appellant’s brief at 9.   Appellant points out that throughout the

original sentencing, the prosecutor urged the court to impose a sentence

that would result in Appellant spending the rest of his life in jail.

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      In addition, Appellant highlights that the PCRA court did find that the

prosecutor breached the plea agreement. He submits that the PCRA court’s

resentencing remedy, however, was improper. In support, Appellant relies

extensively on Commonwealth v. Melvin Williams, 481 A.2d 1230

(Pa.Super. 1984). In Melvin Williams, a defendant entered a negotiated

guilty plea to aggravated assault and conspiracy.         The Commonwealth

agreed to nolle prosse charges of attempted murder, carrying an unlicensed

firearm, possession of an instrument of crime, recklessly endangering

another person, terroristic threats, and simple assault.       The prosecutor

therein also agreed not to recommend a sentence. At sentencing, however,

the prosecutor asked the court to impose a sentence of incarceration. This

Court ruled that the prosecutor violated the terms of the plea bargain. The

panel then turned to the appropriate remedy.

      The Melvin Williams Court acknowledged that “it could be argued

that [Williams] is entitled to receive no more than the benefit of his bargain

and that was to receive a sentence with no recommendation from the

Commonwealth.” Id. at 1234. Nonetheless, we rejected that remedy and

ordered that he be permitted to withdraw his plea and granted a trial.

      The Commonwealth does not present any merits-based argument

relative to Appellant’s position, relying solely on its jurisdictional position.

Nevertheless, during the proceedings below it argued that Melvin Williams




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did not control and posited that Commonwealth v. Martinez, 539 A.2d

399 (Pa.Super. 1988), justified resentencing.

      Martinez involved a Post-Conviction Hearing Act (“PCHA”) appeal.

The PCHA was the predecessor statute to the PCRA.          The defendant was

charged with aggravated assault and attempted rape. He agreed to plead

guilty to the aggravated assault charge. In exchange, the Commonwealth

agreed to nolle prosse the attempted rape count and provided that it would

not make any recommendation at sentencing. The prosecutor indicated at

sentencing that the victim did not wish to make a statement but requested

the maximum sentence allowable by law to be imposed.                 The court

sentenced the defendant to the maximum sentence.

      Martinez did not seek to withdraw his plea, but filed a motion

contesting his sentence.     Within that motion, Martinez averred that the

Commonwealth had breached its plea agreement. The motion was denied

and Martinez’s direct appeal was dismissed after counsel failed to file a brief.

Thereafter, Martinez filed a PCHA petition.     The court appointed counsel,

conducted an evidentiary hearing, and denied the petition.

      On appeal, this Court reversed in part.      Specifically, we ruled that

Martinez was entitled to be resentenced.         In directing Martinez to be

resentenced rather than ordering the withdrawal of his guilty plea, the panel

found it significant that Martinez, unlike Appellant herein, did not allege that

counsel was ineffective in failing to file a post-sentence motion arguing that

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his plea was invalid.     Instead, Martinez argued that his sentence was

excessive and was unduly influenced by the prosecutor’s statement.

Accordingly, the panel did not afford relief in the nature of granting the

withdrawal of the plea.

      It is evident that Martinez does not control.     In the present case,

Appellant did allege that counsel was ineffective in neglecting to move to

withdraw his plea after the prosecution recommended that he be sentenced

to a term of imprisonment for the remainder of his life.    The PCRA court,

nonetheless, found Melvin Williams, supra distinguishable because in that

matter the prosecutor’s promise induced the defendant to enter the plea. In

the instant case, although the court afforded sentencing relief, it found that

Appellant’s decision to enter his plea did not occur as a result of the

prosecution’s promise not to recommend a sentence.        Thus, it ruled that

Appellant’s plea itself was valid, despite the prosecutor’s breach of the

agreement.

      We begin by noting that Appellant did not raise a claim regarding the

withdrawal of his plea during his sentencing or in a post-sentence motion.

Accordingly, his underlying claim is waived and can only be preserved

through the vehicle of an ineffectiveness claim.        Commonwealth v.

Rachak, 62 A.3d 389 (Pa.Super. 2012); Commonwealth v. Anthony




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Williams, 660 A.2d 614, 617 (Pa.Super. 1995); Commonwealth v.

Shekerko, 639 A.2d 810 , 814 (Pa.Super. 1994).6               Although Appellant

leveled such an issue below, his brief on appeal does not set forth the three-

pronged ineffectiveness test relative to prior counsel. Nevertheless, despite

Appellant’s failure to expressly outline the ineffectiveness test, his brief

contains a discussion of numerous post-conviction cases that are specific to

ineffective assistance of counsel and guilty plea withdrawal issues.            See

Appellant’s brief at 18-19 (citing Commonwealth v. Zuber, 353 A.2d 441

(Pa. 1976); Commonwealth v. Kroh, 654 A.2d 1168 (Pa.Super. 1995);

Shekerko,      supra;     Anthony       Williams,   supra);   Id.   at   16   (citing

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

Martinez, supra). Thus, this is not a case where the appellant has failed to

adequately present argument.

       Our Supreme Court has opined that,

____________________________________________


6
    The PCRA statute contains a section specifically governing guilty plea
withdrawals. That provision reads that a person is entitled to relief if the
conviction or sentence resulted from, “A plea of guilty unlawfully induced
where the circumstances make it likely that the inducement caused the
petitioner to plead guilty and the petitioner is innocent.” 42 Pa.C.S. §
9543(a)(2)(iii); see also Commonwealth v. Lynch, 820 A.2d 728
(Pa.Super. 2003) (distinguishing between guilty plea withdrawal subsection
and ineffectiveness claim relative to withdrawing a guilty plea). The original
guilty plea withdrawal subsection passed in 1988 did not have an innocence
averment requirement. The guilty plea subsection was amended in 1995 to
include an innocence standard. Appellant at no point has maintained his
innocence.



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      The standard for post-sentence withdrawal of guilty pleas
      dovetails with the arguable merit/prejudice requirements for
      relief based on a claim of ineffective assistance of plea counsel,
      see generally Commonwealth v. Kimball, 555 Pa. 299, 312,
      724 A.2d 326, 333 (1999), under which the defendant must
      show that counsel's deficient stewardship resulted in a manifest
      injustice, for example, by facilitating entry of an unknowing,
      involuntary, or unintelligent plea.

Commonwealth v. Flanagan, 854 A.2d 489, 502 (Pa. 2004).                 Hence,

generally, prejudice in the guilty plea context requires a showing that the

defendant would not have pled guilty. However, in circumstances where the

allegation relates to the prosecution’s failure to abide by an agreement not

to recommend a sentence, the resulting prejudice has not always focused on

whether the petitioner would not have pled guilty.        See Zuber, supra

(concluding that plea was not voluntarily and knowingly entered but

affording relief in the nature of modifying the sentence and not withdrawing

the plea).

      In Kroh, supra, this Court, quoting Zuber, opined that, “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.” Kroh, supra at 1172 (quoting

Zuber, supra at 444)). The Commonwealth in Kroh was requesting that

the defendant testify after sentencing in a forfeiture proceeding against

another person.    Kroh alleged that this violated the terms of his plea

bargain, which required cooperation as to criminal prosecutions for three

individuals, including the person involved in the forfeiture case. Kroh filed a



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petition entitled as a petition for specific performance of his plea agreement.

Treating the matter as a PCRA petition, this Court noted that, whenever a

plea bargain is violated, a defendant is entitled to the benefit of his bargain.

The Kroh Court determined that the Commonwealth did violate its plea

bargain. It then opined, “We must decide which remedy is best suited for

appellant: either to permit him to withdraw his guilty plea or to order

specific performance of the plea agreement by the Commonwealth.” Id. at

1174.     Since Kroh specifically sought specific enforcement and was not

attempting to withdraw his plea, this Court held that he was entitled to the

benefit of his bargain and directed the Commonwealth to refrain from

requiring his testimony in the civil proceeding.

        The Kroh decision relied extensively on Zuber, supra. In Zuber, the

Pennsylvania Supreme Court addressed a petition filed under the PCHA.

There, the petitioner claimed that he was induced to plead guilty based on a

promise by the Commonwealth that it would not request that he serve a

parole violation sentence consecutive to his new sentence in the underlying

case.    However, by law, the petitioner was required to serve the time

consecutively. Thus, the promise was meaningless. The Zuber Court held

that the plea was not validly entered. Nonetheless, it concluded that, since

Zuber only asked for a modification of his sentence, withdrawal of the plea

was unnecessary. Accordingly, it modified his judgment of sentence. The




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dissenting justices actually reasoned that Zuber was entitled only to

withdraw his plea.

      The Zuber Court relied on Commonwealth v. Alvarado, 276 A.2d

526 (Pa. 1971). Alvarado involved a capital direct appeal and an allegation

of ineffective assistance of counsel. Specifically, the defendant asserted that

the Commonwealth induced a guilty plea to first-degree murder with a

promise that it would not seek the death penalty.        The Alvarado Court

determined that the prosecutor violated his promise. It then turned to the

appropriate remedy.

      The Court first acknowledged, “The majority of jurisdictions that have

faced this issue permit the withdrawal of a guilty plea when the prosecutor

violates a plea bargain.”   Alvarado, supra at 529.      Continuing, the High

Court recognized “a minority rule which does not permit the withdrawal of

the plea but instead gives the defendant the benefit of the bargain by

modifying his sentence in accordance with the prosecutor's promise.” Id. at

529-530. Lastly, it set forth that courts had “given a defendant the option of

either withdrawing his plea or accepting a modification of his sentence in

accordance with the plea bargain.”     Id. at 530. Ultimately, the Alvarado

Court declined to adopt a bright-line rule and held, “that in the particular

circumstances of this case the appropriate disposition is to modify Alvarado's

sentence to life imprisonment rather than to allow withdrawal of his guilty

plea.” Id.

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      The Court reasoned that because “the Commonwealth did not breach

any promise until [a]fter Alvarado had been found guilty of murder in the

first degree, a life sentence rather than death was the [m]ost benefit he

could have derived from fulfillment of the prosecutor's promise.”          Id.   It

concluded    that   “[n]o    consideration    of   fairness   or   sound   judicial

administration dictates that he now be given an opportunity to withdraw his

plea, stand trial, and possibly escape criminal liability altogether.” Id.

      More recently, in Anthony Williams, supra, this Court declined to

authorize a guilty plea withdrawal based on a claim that the prosecutor did

not abide by the terms of the plea agreement because the record did not

support the factual claim.    However, the panel set forth, “Certainly, if the

prosecutor failed to adhere to the terms of the plea agreement, this would

provide grounds for PCRA relief as it would be a miscarriage of justice for a

person to relinquish cherished constitutional rights based on a promise that

was not kept.” Id. at 619. The Court then, in a parenthetical, posited, “If a

prosecutor fails to abide by the terms of a plea agreement, defendant must

be allowed to withdraw his plea.”      Id.    Hence, Pennsylvania courts have

differed in the remedy that attaches to a guilty plea withdrawal claim based

on the prosecution’s failure to abide by an agreement not to recommend a

sentence.

      In the present case, the Commonwealth did not appeal from the

decision to resentence nor, in light of its argument here and the unusual

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procedural posture of this matter, has it sought a cross-appeal challenging

the award of sentencing relief. Indeed, the Commonwealth requested and

acquiesced in the resentencing. Therefore, we are not faced with examining

whether plea counsel had no reasonable basis for not raising the

Commonwealth’s breach of its agreement. Instead, we are asked to decide

if the remedy the PCRA court fashioned was appropriate.        As noted, the

remedy has varied.

     In cases where the defendant does not seek to withdraw his plea and

proceed to trial, but asks for the benefit of his bargain, both this Court and

our Supreme Court have determined resentencing or a modification of the

defendant’s sentence is appropriate.     See Zuber, supra; Kroh, supra;

Martinez, supra.     Additionally, in a capital case, our Supreme Court has

denied a defendant the opportunity to withdraw his plea but directed that he

be resentenced to life imprisonment where the prosecutor reneged on his

promise not to recommend a sentence. Alvarado, supra. In contrast, this

Court, in a direct appeal matter, held that a defendant was entitled to

withdraw his plea where the prosecutor recommended a sentence in

violation of the negotiated guilty plea. Melvin Williams, supra. Similarly,

in Anthony Williams, supra, we opined that the failure of a prosecutor to

adhere to his promise is grounds to allow such a withdrawal.

     In Melvin Williams, this Court opined that the benefit of the bargain

principle could apply to “those situations where the Commonwealth promises

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to ask for a specific sentence and then in violation of that promise asks for a

more severe sentence which is in fact given.” Melvin Williams, supra at

1234.       While the Commonwealth in this case did not promise to seek a

specific sentence and then asked for a more severe sentence, the sentencing

court was required to sentence the defendant to a mandatory minimum

sentence. The only discretion the sentencing court enjoyed was whether to

impose the mandatory sentence concurrently or consecutively.           Hence,

unlike Melvin Williams, the “implementation of the ‘benefit of the bargain’

principle can be done with certainty and fairness.”    Id. This case is more

akin to Alvarado where the only sentencing options were life imprisonment

or the death penalty. Hence, we do not find that the PCRA court erred in

choosing to order resentencing rather than permit Appellant to withdraw his

plea.

          Nonetheless, we are aware that in Melvin Williams, supra, this Court

noted in dicta that if the defendant therein was entitled to “no more than the

benefit of his bargain” that “[w]e could do that by remanding for sentencing

before a different judge[.]” Id. at 1234. Further, in Martinez, supra, this

Court directed that the resentencing therein take place before a different

jurist.    Appellant in his second issue argues that the PCRA court erred in

denying his request to be resentenced by another judge.            In light of

Martinez and Melvin Williams, we agree. Compare also United States

v. Hayes, 946 F.2d 230 (3d. Cir. 1991); Santobello v. New York, 404

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U.S. 257, 263 (1971).7        Accordingly, we vacate the PCRA court’s denial of

resentencing before a different judge and vacate Appellant’s judgment of

sentence. We direct that Appellant be resentenced before a different judge

without any recommendation from the Commonwealth.

       PCRA order vacated in part.             Judgment of sentence vacated.   Case

remanded with instructions. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/11/2015




____________________________________________


7
   In Santobello v. New York, 404 U.S. 257 (1971), the United States
Supreme Court remanded a matter where it determined that the prosecutor
violated the terms of the plea agreement by recommending a sentence. In
doing so, it directed that if the lower court determined the defendant should
be resentenced rather than allowed to withdraw his plea, such resentencing
must occur before a different judge. Hence, this is not akin to those cases
involving sentencing challenges where the Pennsylvania Supreme Court has
directed this Court to refrain from directing proceedings to occur in front of a
new judge. Compare Commonwealth v. Whitmore, 912 A.2d 827 (Pa.
2006).



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