J-S67018-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA

                           Appellee

                      v.

EMERY GIBSON


                           Appellant                   No. 379 WDA 2014


           Appeal from the Judgment of Sentence December 6, 2011
               In the Court of Common Pleas of Fayette County
             Criminal Division at No(s): CP-26-CR-0000966-2010

BEFORE: DONOHUE, J., MUNDY, J., and FITZGERALD, J.*

MEMORANDUM BY FITZGERALD, J.:                    FILED NOVEMBER 25, 2015

         Appellant, Emery Gibson, appeals from the judgment of sentence

entered in the Fayette County Court of Common Pleas after he pleaded

guilty to, inter alia, aggravated indecent assault,1 but was sentenced on a

count of involuntary sexual deviate sexual intercourse (“IDSI”).2 This Panel

granted reconsideration to determine whether Appellant was entitled to

enforcement of a plea bargain notwithstanding his statements during the

plea colloquy. Commonwealth v. Gibson, 379 WDA 2014 (Pa. Super. Feb.


*
    Former Justice specially assigned to the Superior Court.
1
    18 Pa.C.S. § 3125.
2
    18 Pa.C.S. § 3123.
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25, 2015) (order).     We vacate the judgment of sentence and remand for

proceedings consistent with this memorandum.

        The procedural history of this case is as follows.     Appellant was

charged on May 16, 2010, with physically assaulting a nineteen-month-old

child (“Victim”) in his care, after Victim was taken to an emergency room.

Following a further evaluation at Children’s Hospital, the treating physician

opined Victim’s injuries–which included “perianal lacerations,” multiple “anal

fissures,” and extensive bruising of the buttocks and inner thigh—were

“highly concerning for a sexual assault.” Report of Monique Higginbotham,

M.D., 5/18/10, at 4.      An amended criminal complaint filed May 24, 2010,

charged Appellant with numerous sexual offenses.

        The Commonwealth subsequently filed an information listing the

following charges:

           Count 1: Rape of Child – Serious Bodily Injury.3

           Counts 2-4: IDSI, involving forcible compulsion, a child
           under 13 years old, and serious bodily injury to a child.4

           Counts 5-8: Aggravated Indecent Assault, involving a
           child,5 without consent, and forcible compulsion.6


3
    18 Pa.C.S. § 3121(d).
4
    18 Pa.C.S. § 3123(a)(1), (b), (c).
5
    18 Pa.C.S. § 3125(b).
6
    18 Pa.C.S. § 3125(a)(1)-(2).




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           Count 9: Endangering the Welfare of Children.7

           Count 10: Simple Assault.8

Information, 7/14/10.

        On September 6, 2011, the parties reached an agreement under which

Appellant would plead nolo contendere to Counts 5 through 10 and be

sentenced to four to eight years’ imprisonment.      After completing written

forms memorializing the agreement on the charges and the sentence, the

parties appeared before the trial court, at which time the following exchange

occurred:

              [Commonwealth]: . . . The offer by the Commonwealth
           is that [Appellant] may enter a no contest plea to the
           charges.

             THE COURT: Why? Was he drunk?

                                  *     *   *

           [W]hy can’t he admit that he committed these offenses? I
           will take a plea of guilty or consider it.

              [Commonwealth]: Your Honor, and I believe that it has
           to do with the nature of the charges.

              THE COURT: Well I won’t accept a nolo contendere for
           that reason. I only accept it if he can’t remember what he
           was doing.

             Okay, who is next? Do we have something next? Call
           your next case.


7
    18 Pa.C.S. § 4303(a)(1).
8
    18 Pa.C.S. § 2701(a)(1).



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            [Commonwealth]: Your Honor, I have been informed by
         defense counsel that [Appellant] will enter a guilty plea.

                                 *    *    *

         . . . And the offer of the Commonwealth is four to eight
         years.

N.T., 9/6/11, at 3-4.

      The trial court conducted a colloquy of Appellant. With respect to the

charge of aggravated indecent assault listed at Count 5, the following

exchange occurred:

            THE COURT: And the allegation is that by forcible
         compulsion he penetrated [Victim] anally resulting in anal
         and rectal tears with significant bruising with part of the
         actor’s body for the purpose other than good faith medical,
         hygienic, or law enforcement procedures. Is that correct?

           [Commonwealth]: That’s correct. And of course, Your
         Honor, that statute includes that [Appellant] did engage in
         penetration, however slight, of the genitals or anus.

            THE COURT: What was it that he used to penetrate this
         child?

            [Commonwealth]: Your Honor, the Commonwealth can’t
         show specifically what was used but the medical testimony
         supports anal penetration in this case.

           THE COURT: [to Appellant] Did you penetrate her
         anally?

            [Appellant]: Yes.

            THE COURT: What was it that you used to penetrate
         her, your penis?

            [Appellant]: No. A spoon.

            THE COURT: What? I can’t hear you.


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              [Appellant]: A spoon.

            THE COURT: A spoon. You penetrated her anus with a
         spoon?

              [Appellant]: Yes.

Id. at 7-8.     The trial court asked whether the spoon caused the “rectal

tears,” and Appellant answered in the affirmative. Id. at 8.

      The court continued its colloquy on the remaining offenses listed at

Counts 6 through 10 and at the conclusion of the hearing, stated it would

“accept his pleas.” Id. at 11. That same day, the court entered an order for

a sexual offender assessment indicating it accepted Appellant’s plea to, inter

alia, aggravated indecent assault. Order, 2/6/11.

      On December 6, 2011, the trial court convened a sentencing hearing.

The court initially noted Appellant was found not to be a sexually violent

predator. N.T., 12/6/11, at 2. The court stated, “I want to make it clear

that the pleas I took were for [IDSI], . . . endangering the welfare of a child,

and simple assault.        It’s my understanding that he didn’t admit to

penetrating the child with a body part.” Id. at 3. The court proceeded to

sentence on Counts 2, 3, 4, 9 and 10, but imposed the agreed-upon term of

four to eight years’ imprisonment for IDSI involving forcible compulsion

(Count 2).9


9
 The trial court imposed no further penalty on the remaining counts on
which it purported to sentence.



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      On December 15, 2011, Appellant filed a timely post-sentence motion

alleging ineffective assistance of plea counsel, but did not serve the motion

on the trial court. The clerk of the court took no action on the motion due to

the lack of service on the trial court. Appellant, on January 15, 2013, filed a

notice of appeal in this Court.    This Court quashed the appeal due to the

absence of an order disposing of Appellant’s timely filed post-sentence

motion, and remanded for          the   trial court to    consider   the   motion.

Commonwealth v. Gibson, 296 WDA 2013 (unpublished memorandum at

6) (Pa. Super. Nov. 12, 2013).

      On January 15, 2014, the trial court convened a hearing on Appellant’s

post-sentence motion. Appellant orally amended his post-sentence motion

to defer his claims of plea counsel’s ineffectiveness and requested the court

vacate the sentence as to Counts 2 through 4 and impose the agreed-upon

four-to-eight-year sentence on Counts 5 through 10. N.T., 1/15/14, at 5, 8,

16. The Commonwealth did not object to the amendment of the motion or

the relief requested.   Id. at 23, 27.        Although the trial court suggested

withdrawing Appellant’s guilty pleas and restarting the plea proceedings,

Appellant rejected that suggestion. Id. at 7. The trial court, on February 3,

2014, denied Appellant’s amended post-sentence motion asserting that

“relief would be tantamount to the imposition of sentences to charges that

were not admitted by [Appellant].” Trial Ct. Order & Op., 2/3/14, at 2.




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      Appellant, on March 5, 2014, timely appealed and subsequently

complied with the trial court’s order to file a Pa.R.A.P. 1925(b) statement.

This Panel previously issued a memorandum decision concluding the trial

court erred in sentencing on Counts 2 through 4 because Appellant did not

plead guilty to those Counts. Commonwealth v. Gibson, 379 WDA 2014

(unpublished memorandum at 10) (Pa. Super. Jan. 7, 2015), reconsideration

granted, 379 WDA 2014 (Pa. Super. Feb. 15, 2015) (order).              We thus

vacated    the   judgment    of   sentence   and   remanded   the   matter   for

resentencing. Id. at 12. However, our prior memorandum suggested that

the trial court would have the discretion to withdraw Appellant’s plea sua

sponte before resentencing.       Id. at 11-12.    As noted above, we granted

Appellant’s motion for reconsideration to address the enforceability of the

parties’ original plea bargain.

      Appellant presents three questions on reconsideration, 10 which we

have rephrased as follows:

             Was the sentencing proceeding invalid since [Appellant]
          was sentenced to counts that were not the counts in the
          plea agreement the court had accepted?




10
   The Commonwealth filed a motion to deem its appellee’s brief on
reconsideration as timely filed and provided proof of mailing on the extended
deadline of April 29, 2015. See Pa.R.A.P. 2185(a)(1) (“Briefs shall be
deemed filed on the date of mailing if first class, express, or priority United
States Postal Service mail is utilized.”).




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               Did the trial court abuse its discretion by compelling
           [Appellant] to make a statement of guilt in violation of his
           Fifth Amendment right against self-incrimination?

              Will defining the proper administration of an Alford[11]
           plea: 1.) protect the integrity of the justice system by
           reaffirming the factually innocent defendant’s ability to
           take legal responsibility for a crime without committing
           perjury; 2.) reduce the number of post-conviction relief act
           claims . . . ; and 3.) protect defense attorneys from
           suborning perjury?

Appellant’s Brief on Reconsideration at 5.

        It is helpful to reiterate that the issues in this appeal arise from

Appellant’s admission, upon examination by the trial court, that he

penetrated Victim’s anus using a spoon.            Appellant’s admission was

inconsistent with the agreed-upon charges of aggravated indecent assault

(Counts 5-8), because those offenses required, inter alia, his use of a body

part to penetrate another. See 18 Pa.C.S. § 3125(a)(1)-(2), (b). Further,

Appellant’s admission provided sufficient evidence for a conviction upon the

charges of IDSI (Counts 2-4), see 18 Pa.C.S. § 3123(a)(1), (b), (c), which

the parties originally agreed to have withdrawn by nolle prosequi.

        We also summarize the issues not in dispute in this appeal.       The

parties agree that the charge of rape (Count 1) was properly withdrawn.

Second, there is no dispute that Appellant’s convictions for endangering the

welfare of children (Count 9) and simple assault (Count 10). Third, no party


11
     North Carolina v. Alford, 400 U.S. 25 (1970).




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challenges the agreed-upon sentence of four to eight years’ imprisonment.

Lastly, Appellant does not contest the knowing, intelligent, and voluntary

nature of his plea and asserts it should be deemed valid as a “best-interest

plea.”     Thus, the narrow issue, as developed by the parties, is whether

Appellant should be sentenced for IDSI (Counts 2-4) or aggravated indecent

assault (Counts 5-8).

         As to Appellant’s first claim, challenging the sentence on Count 2, we

reaffirm our previous conclusion that the trial court improperly sentenced

Appellant.

               At the hearing on Appellant’s post-sentence motion, the
           parties speculated that there had been communication
           between the Commonwealth and Appellant’s plea counsel
           after the entry of the guilty plea and before sentencing to
           adjust the charges that were pled to pursuant to the plea
           bargain.[ ] N.T., 1/15/14, at 21-22. The apparent purpose
           was to have the charges better coincide with Appellant’s
           factual admission made during his guilty plea colloquy.[ ]
           Id. at 5-6, 21-22. However, none of the purported
           communications between the Commonwealth, defense
           counsel, and the trial court is in the certified record.
           Neither is there any indication in the record that Appellant
           was aware of or agreed to modify his plea. This Court may
           not consider items or circumstances that are not contained
           in the certified record. Commonwealth v. Ross, 57 A.3d
           85, 96-97 (Pa. Super. 2012), appeal denied, 72 A.3d 602
           (Pa. 2013), citing Commonwealth v. Rush, 959 A.2d
           945, 949 (Pa. Super. 2008).

              We conclude, based on the foregoing, that because no
           guilty plea or adjudication of guilt was entered against
           Appellant with respect to the IDSI charges at Counts 2, 3,
           and 4, the sentences imposed on those counts are illegal.
           See [Commonwealth v. Paige, 429 A.2d 1135, 1140,
           n.3 (Pa. Super. 1981)]. Accordingly, we are constrained to
           vacate the December 6, 2011 judgment of sentence in this


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           case and remand for further proceedings.[ ] “An illegal
           sentence must be vacated.” [Commonwealth v. Tanner,
           61 A.3d 1043, 1046 (Pa. Super. 2003)] (citation omitted).

Gibson, 379 WDA 2014 (unpublished memorandum at 9-10).12 Thus, the

trial court’s attempts to enforce the purported modifications to the original

plea agreement resulted in an illegal sentence that must be vacated.

        Appellant, in his remaining claims, asserts the trial court erred in

rejecting his request to enforce the original plea agreement between the

parties. He contends the attempt to modify the initial plea agreement “goes

against    the   spirit   and   justification   behind   guilty   plea   proceedings.”

Appellant’s Brief at 15-16.       He also argues that the trial court’s colloquy

exceeded that necessary to accept the terms of the plea agreement and

violated his constitutional privilege against self-incrimination. Id. at 15, 27.

Under the unique circumstances of this case, we conclude he is entitled to

enforcement of the terms of his original plea agreement.

        In Commonwealth v. Fluharty, 632 A.2d 312 (Pa. Super. 1993),

this Court summarized the principles relevant to an “Alford plea.”

              It is a long established principle of constitutional due
           process that the decision to plead guilty must be
           personally and voluntarily made by the accused.

                                      *     *      *

              In order for a guilty plea to be constitutionally valid, the
           guilty plea colloquy must affirmatively show that the
           defendant understood what the plea connoted and its

12
     As noted above, we withdrew this decision after granting reconsideration.



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        consequences.     This determination is to be made by
        examining the totality of the circumstances surrounding
        the entry of the plea. Thus, even though there is an
        omission or defect in the guilty plea colloquy, a plea of
        guilty will not be deemed invalid if the circumstances
        surrounding the entry of the plea disclose that the
        defendant had a full understanding of the nature and
        consequences of his plea and that he knowingly and
        voluntarily decided to enter the plea.

           It is clear that before accepting a plea of guilty, the trial
        court must satisfy itself that there is a factual basis for the
        plea. However, the factual basis requirement does not
        mean that the defendant must admit every element of the
        crime. In this respect, the United States Supreme Court[,
        in Alford, 400 U.S. at 37,] has held:

           [W]hile most pleas of guilty consist of both a waiver
           of trial and an express admission of guilt, the latter
           element is not a constitutional requisite to the
           imposition of criminal penalty. An individual accused
           of    crime    may     voluntarily,   knowingly,    and
           understandingly consent to the imposition of a prison
           sentence even if he is unwilling or unable to admit
           his participation in the acts constituting the crime.

           Nor can we perceive any material difference between
           a plea that refuses to admit commission of the
           criminal act and a plea containing a protestation of
           innocence when, as in the instant case, a defendant
           intelligently concludes that his interests require entry
           of a guilty plea and the record before the judge
           contains strong evidence of actual guilt.

           It would appear, therefore, that a defendant may
        knowingly and voluntarily enter a guilty plea as a matter of
        strategy or expedience even though he or she is unable or
        unwilling to admit guilt.

Fluharty, 632 A.2d 312, 314-315 (citations and quotation marks omitted).

     Plea bargaining “is not some adjunct to the criminal justice system; it

is the criminal justice system.” Missouri v. Frye, 132 S. Ct. 1399, 1407


                                    - 11 -
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(2012) (quoting Robert E. Scott & William J. Stuntz, Plea Bargaining as

Contract, 101 Yale L.J. 1909, 1912 (1992)). As this Court has observed:

            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.

              “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.

Commonwealth v. Anderson, 995 A.2d 1184, 1191 (Pa. Super. 2009)

(citations omitted).

      In Commonwealth v. Parsons, 969 A.2d 1259 (Pa. Super. 2009) (en

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

this Court discussed the trial court’s enforcement of plea agreements.    In

Parsons, the defendant and the Commonwealth reached a plea agreement

as to charges of statutory sexual assault and corruption of minors and a

specific sentence of six to twenty-three months’ imprisonment and five


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years’ probation.    Parsons, 969 A.2d at 1263, 1265.     The court accepted

the agreement at a plea hearing, but deferred sentencing for the completion

of the presentence report.      Id. at 1263.    At sentencing, the defendant

criticized the negotiated sentence, arguing that it was unduly harsh. Id. at

1264.

        “Despite the clarity of the plea agreement both as to the charges and

the     specific    sentence,   and     notwithstanding   [the   defendant’s]

acknowledgement of the expected sentence at the plea hearing, the court

allowed [him] to lodge an untimely challenge to the sentencing term of the

plea agreement . . . .” Id. at 1265. The trial court then “refused to impose

the agreed-upon fixed sentence,” and it sentenced him to three months’

supervision by the County Probation Office for statutory sexual assault, and

a consecutive five years’ probation for corruption of minors. Id. at 1264.

        The Commonwealth appealed, asserting the trial court erred because it

“unilaterally modified a non-severable term of the parties’ agreement.” Id.

at 1266.     As remedies, the Commonwealth suggested, “If the [trial] court

were dissatisfied with the sentencing aspect of the agreement, then the

proper recourse would have been to reject the plea agreement and return

the parties to parity.” Id. Alternatively, “[b]ecause the court accepted the

plea but later altered the negotiated sentence provision of the plea

agreement without the Commonwealth’s consent, . . . the case [could be]

remanded for imposition of the sentence pursuant to the plea bargain.” Id.



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     The Parsons Court concluded that the trial court erred in setting aside

the sentencing term without the Commonwealth’s consent. Id. at 1272. In

terms of the appropriate remedy, the Court determined it was appropriate to

vacate the trial court’s sentence “and remand for imposition of the sentence

pursuant to the plea bargain” that the trial court originally accepted. Id. at

1271. We further observed no injustice would occur because the defendant

accepted the terms of the plea bargain and had no reasonable expectation of

the finality of a sentence below the negotiated term. Id.

     In Mebane, the defendant was arrested for drug related offenses

following a traffic stop. Mebane, 58 A.3d at 1244. Appellant filed a motion

to suppress, which was litigated in February 2010. Id. In March 2010, the

Commonwealth negotiated an agreement under which the defendant would

plead guilty to drug related offenses in exchange for a county sentence and

the Commonwealth’s waiver of a mandatory sentence. Id. After the parties

agreed to the bargain, the Commonwealth learned that the trial court

intended to deny defendant’s suppression motion in part.           Id.    The

Commonwealth did not apprise the defendant of the ruling, but rather

appeared at a later hearing and withdrew its offer.          The trial court

determined “fundamental fairness” required enforcement of the terms of the

agreement and sentenced the defendant accordingly. Id.

     The Commonwealth appealed, arguing that the trial court erred in

enforcing a promise to waive application of the mandatory minimum statute.



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The Commonwealth claimed it was under no obligation to abide by its

promise because it was withdrawn before presentation to and acceptance by

the trial court. Id. at 1244-45.

      The    Mebane       Court    rejected    the    Commonwealth’s      arguments,

reasoning:

             Here, we are presented with a unique set of
         circumstances wherein the trial court determined that
         enforcement of a plea agreement was warranted in the
         interest of justice, as a matter of judicial discretion, and
         not as a matter of right to specific performance—a
         distinction that has not been addressed in prior decisions .
         ...

Id. at 1248. This Court found no basis to disturb the trial court’s findings

that the Commonwealth, despite learning of the suppression ruling, led the

defendant to proceed under the impression he would be pleading guilty on

the scheduled trial date.         Id. at 1249.       Under those circumstances, we

concluded that “the trial court acted in conformity with the general policy of

maintaining the integrity of the plea bargain process when it determined that

enforcement    of   the    plea    agreement     was     warranted   in   the   unique

circumstances of this case.” Id.

      Instantly, the parties negotiated clear terms as to the charges and the

sentence.     The agreement was mutually beneficial to parties.                   The

Commonwealth knew it possessed evidence suggesting Appellant anally

penetrated Victim, but could not show what he used.              Appellant knew he

used a spoon to penetrate Victim, which was sufficient for an IDSI



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conviction, and he sought to limit his exposure to punishment.13         Both

parties waived their constitutional rights to avoid the expense and risk of

trial. They proceeded to the plea hearing at which they presented all facts

and circumstances surrounding the agreement.

      Although the trial court initially demanded that Appellant plead guilty

rather than nolo contendere, it accepted the agreement as stated by the

parties, despite the gaps in the Commonwealth’s evidence and Appellant’s

admission regarding the penetration. Appellant, in reliance on the apparent

acceptance of the agreement, proceeded to a presentence investigation and

a sexual offender assessment.       There is no indication that he refused to

comply, asserted he was factually innocent, or claimed his plea was coerced.

The Commonwealth, at some time before sentencing, initiated the effort to

modify the charging aspects of the agreement to conform with his

admission.

      As noted above, the purported modification of the original plea

agreement was improper and resulted in a sentence on a charge to which

Appellant did not plead. A consideration of an appropriate remedy, however,

involves multiple considerations.


13
     Aggravated indecent assault is generally a second-degree felony.
However, aggravated indecent assault of a child is graded as a first-degree
felony. 18 Pa.C.S. § 3125(b), (c)(1)-(2). IDSI is generally graded as a
first-degree felony. A charge of IDSI with a child less than thirteen years of
age carries an enhanced maximum sentence of forty years. 18 Pa.C.S. §
3123(a), (b), (d).



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      Withdrawal of the plea before sentencing falls within the discretion of

the trial court. Pa.R.Crim.P. 591(A); Commonwealth v. Herbert, 85 A.3d

558, 561 (Pa. Super. 2014) (noting “[w]e will not disturb the trial court’s

decision to sua sponte withdraw a defendant’s plea of guilty absent an abuse

of discretion.”).   Although withdrawal of the plea is conceivable following

remand, several circumstances weigh upon that option as a remedy.

      We reiterate that there are few reported cases guiding a trial court’s

discretion when withdrawing a plea before sentencing.      See Herbert, 85

A.3d at 563. None are on point with the concerns raised in this appeal.

      As the Herbert Court summarized:

            The first case in which we discussed sua sponte
         withdrawal of a guilty plea was in Commonwealth v.
         Kotz, . . . 601 A.2d 811 ([Pa. Super.] 1992). In Kotz, a
         defendant pled guilty and was sentenced on two related
         informations. After sentencing, the defendant moved to
         withdraw his guilty plea as to one of the informations, but
         not the other. The trial court granted Kotz’s motion to
         withdraw his guilty plea as to the one information and sua
         sponte withdrew Kotz’s guilty plea as to the other
         information. We held that “the withdrawal of a guilty plea
         is initiated by application of the defendant.” Thus, we
         concluded that the trial court lacked jurisdiction to sua
         sponte withdraw the defendant's plea of guilty.

         . . . Kotz addressed sua sponte withdrawal of a
         defendant’s guilty plea after imposition of sentence. Thus,
         it fell outside of Rule 591 (then Rule 320), which permits
         the trial court to sua sponte withdraw a defendant’s plea of
         guilty prior to imposition of sentence, which is what
         occurred in the case sub judice. Furthermore, . . . our en
         banc Court later rejected most of the dicta in Kotz.

           In [Commonwealth v. ]Nancy Rosario, [613 A.2d
         1244, 1246 (Pa. Super. 1992),] the trial court chose to sua


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       sponte withdraw the defendant’s guilty plea because there
       was an inadequate factual basis for the plea. Specifically,
       the trial court found that the information provided in the
       pre-sentence investigation report differed significantly
       from what was relayed at the plea hearing. We held that
       “[a] trial [court] is justified in ordering that a plea be
       vacated if [it] discovers that there is [an] insufficient
       factual basis to support the plea.” Thus, we concluded
       that the trial court acted appropriately under former Rule
       320. Our Supreme Court[, in Nancy Rosario, 679 A.2d
       756, 760 (Pa. 1996),] affirmed, finding that the trial court
       did not abuse its discretion in choosing to withdraw Nancy
       Rosario’s guilty plea because of the incomplete information
       afforded the trial court at the plea hearing.

          In Commonwealth v. Agustin Rosario[, 652 A.2d
       354, 356 (Pa. Super. 1994) (en banc)], the trial court sua
       sponte withdrew the defendant’s guilty plea because it
       found that there was no factual basis for the plea. We
       held that the trial court did not abuse its discretion in
       withdrawing the defendant’s plea of guilty because “the
       disparity between the factual basis of the plea presented to
       the court at the plea hearing and the factual statement set
       forth in the pre-sentence report provide[d] a valid reason
       for the trial court's withdrawal of the plea.”

                               *     *      *

          In Commonwealth v. Przybyla[, 722 A.2d 183, 184
       (Pa.Super.1998)], the defendant pled guilty to statutory
       sexual assault. However, prior to sentencing, the trial
       court had concerns regarding the harshness of the charge,
       and therefore sua sponte withdrew the defendant’s plea of
       guilty and dismissed the statutory sexual assault charge
       pursuant to 18 Pa.C.S[ ] § 312. We vacated the order and
       remanded for further proceedings, finding that the offense
       was not de minimis.

       . . . The main issue in Przybyla was whether the trial
       court erred by dismissing the two felony counts against the
       defendant because it was concerned with the “scarlet
       letter” associated with a felony conviction for “consensual”
       sexual conduct between a 19–year–old and a 13–year–old.
       Thus, the case was decided because of our interpretation


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           of the de minimis statute, and not on factors that the trial
           court could consider under former Rule 320.

              Our Supreme Court, in Nancy Rosario, and our en
           banc Court, in Agustin Rosario, have granted trial courts
           broad discretion in deciding whether to withdraw a guilty
           plea sua sponte.

Id. at 563-65 (Pa. Super. 2014) (citations omitted).

        In Herbert, the Commonwealth charged the defendant with burglary

and related offenses arising from an incident on August 2011. Herbert, 85

A.3d at 560.      In exchange for his promise to cooperate in the police

investigation of a codefendant, Appellant pleaded guilty to a lesser charge of

theft in December 2011. Id. While awaiting sentencing, the defendant was

charged with homicide and other charges for incidents occurring in February

2012.      Id.   In March 2012, the Commonwealth moved to revoke the

defendant’s December 2011 plea because of his failures to cooperate with

police, comply with presentence interviews, and appear at a sentencing

hearing.     Id. at 560-61.      The trial court subsequently withdrew the

December 2011 plea, and the matter proceeded to a trial at which the

defendant was found guilty of, inter alia, burglary.     Id. at 561.   After the

imposition of sentence, the defendant appealed his conviction, alleging the

trial court abused its discretion when withdrawing the December 2011 plea.

Id.

        The Herbert Court rejected the defendant’s argument that he did not

breach the plea agreement by failing to assist in the investigation of his



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codefendant.   Id. at 563. The Court also considered whether the trial court

considered proper factors when withdrawing the defendant’s plea based on

his failure to cooperate with the post-plea procedures.        Id.   The Court

concluded:

         [W]hen deciding whether to sua sponte withdraw a
         defendant’s guilty plea prior to sentencing, a trial court
         may properly consider whether the defendant has fulfilled
         his or her obligations under the plea agreement. This
         includes   considering  whether    the   defendant     has
         cooperated during the sentencing process, i.e. appearing
         for his or her pre-sentence interview and sentencing
         hearing.

Id. at 565.

      Instantly, unlike other cases in which the court’s authority to withdraw

a plea sua sponte has been affirmed, the trial court was presented with a full

recitation of the possible evidence at the plea hearing and purported to

accept the plea and the terms of the plea agreement. Cf. Nancy Rosario,

679 A.2d at 760; Agustin Rosario, 652 A.2d at 356. Further, there was no

indication that Appellant failed to cooperate with the implied terms of his

agreement to cooperate with the post-plea procedures.         Cf. Herbert, 85

A.3d at 565. Lastly, the instant case is distinguishable as the sole basis for

withdrawing the plea and demanding additional proceedings would be

Appellant’s statement from a prior plea colloquy.

      Withdrawal of the plea could return to parties to a relative status quo if

they were to proceed to trial. Appellant’s myriad trial rights would remain

intact. As a general rule, Appellant’s factual admission during the colloquy


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J-S67018-14


would not be admissible at a trial.     See Pa.R.E. 410.14     It is unsurprising,

however, that none of the parties suggested a return to the status quo in

light of the mutual benefits of a plea agreement, the Commonwealth’s

averment that it could not prove what was used to penetrate Victim, and

Appellant’s knowledge that he anally penetrated Victim with a spoon. Thus,

compelling the parties to proceed to trial could leave them in a worse

position than before the plea proceeding.




14
     Pennsylvania Rule of Evidence 410 provides, in relevant part:

              (a) Prohibited Uses.     In a . . .    criminal case,
           evidence of the following is not admissible against the
           defendant who made the plea or participated in the plea
           discussions:

                 (1) a guilty plea that was later withdrawn;

                 (2) a nolo contendere plea;

                 (3) a statement made in the course of any
              proceedings under . . . [Rule] 590 of the Pennsylvania
              Rules of Criminal Procedure, Rule 11 of the Federal
              Rules of Criminal Procedure, or a comparable rule or
              procedure of another state; or

              (b) Exceptions. The court may admit a statement
           described in Rule 410(a)(3) or (4):

                 (1) in any proceeding in which another statement
              made during the same plea or plea discussions has
              been introduced, if in fairness the statements ought to
              be considered together . . . .

Pa.R.E. 410(a)(1)-(3), (b)(1).



                                      - 21 -
J-S67018-14


      Withdrawal of the plea could also permit the parties to accomplish the

modification the trial court previously attempted.      However, such an

outcome would have deleterious effects on the integrity of the plea

bargaining process.      Appellant’s admissions in such a scenario would be

tantamount to a windfall to the Commonwealth, improving its original

bargaining position at the expense of Appellant’s position.   In this regard,

Appellant’s assertion that the use of his admission in renewed plea

negotiation would violate “the spirit and justification behind guilty plea

proceedings” and has merit. Cf. Pa.R.E. 410.

      An alternative remedy, suggested by Appellant, is that we enforce the

terms of the plea bargain as to charges and to sentence. This alternative is

problematic as it requires a concession that a factual basis is lacking upon

the charges of aggravated indecent assault and brings into question the

validity of the plea itself.

      However, this is not a case where Appellant contests the knowing,

intelligent, and voluntary nature of his plea.    Moreover, in light of his

admission during the colloquy, Appellant cannot credibly assert he is

“factually innocent,” if the original plea agreement is enforced.        See

Commonwealth v. Willis, 68 A.3d 997, 1008-09 (Pa. Super. 2013)

(reiterating precept that a defendant “is bound by the statements made

during the plea colloquy,” and “may not [later] assert grounds for




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J-S67018-14


withdrawing the plea which contradicts the statements”).           Thus, the

concerns regarding the underlying validity of the plea are mitigated.

      Further, the absence of a factual basis may be used to withdraw a plea

where the court discovers “a disparity between the circumstances previously

presented to [it] and the physical facts of the case.” Agustin Rosario, 652

A.2d at 360 (citation omitted); see also Nancy Rosario, 679 A.2d at 757

(noting trial court’s statement that presentence report “‘differed materially

from the information provided to the [c]ourt at the time it accepted the

guilty plea . . . .’”).   Such circumstances may convince the court that it

would not have accepted a plea agreement to a lesser charge had it been

aware of the physical facts of the case.

      The circumstances of this case are distinguishable from the Rosario

cases, as there was an agreement as to charges and sentences. Appellant

pleaded to a lesser charge but admitted guilt to a greater charge. However,

there was an agreement upon sentence that no party disputes.            The trial

court further indicated the sentencing term to be “acceptable sentence

consistent with the protection of the public, gravity of the offense as it

impacts upon the life of the victim and [Appellant’s] rehabilitative needs.”

N.T., 12/6/11, at 5.

      The court, when denying Appellant’s amended post-sentence motion,

also suggested no harm would result from the modification. Trial Ct. Order

& Op. at 2.    The same, however, holds true for the Commonwealth if the



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J-S67018-14


sentencing agreement stands. In light of the agreed-upon appropriateness

of the sentence, permitting Appellant to plead to a lesser offense would not

offend the Commonwealth’s or the public’s interest in securing justice. 15

        In light of the foregoing, the principles set forth in Parsons and

Mebane illuminate the appropriate remedy in this appeal and accomplishes

the greater benefit with the lesser harm under the circumstances of this

case.    Therefore, we conclude Appellant is entitled to enforcement of the

charging terms of his plea bargain.

        Judgment of sentence vacated.      Commonwealth’s motion to accept

brief as timely filed granted.   Case remanded for resentencing consistent

with this memorandum. Jurisdiction relinquished.

        Judge Donohue concurs in the result.

        Judge Mundy files a concurring and dissenting statement.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 11/25/2015




15
   It merits further mention that although aggravated indecent assault is a
lesser offense, it carries similar consequences in terms of sexual offender
registration as IDSI. See 42 Pa.C.S. § 9799.14(d).



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