J-S36030-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
 WILLIAM EDWARD HALSEY                    :
                                          :
                    Appellant             :   No. 2074 MDA 2018

     Appeal from the Judgment of Sentence Entered November 19, 2018
  In the Court of Common Pleas of York County Criminal Division at No(s):
                         CP-67-CR-0001712-2008


BEFORE:    PANELLA, P.J., SHOGAN, J., and PELLEGRINI*, J.

MEMORANDUM BY SHOGAN, J.:                      FILED SEPTEMBER 09, 2019

      Appellant, William Edward Halsey, appeals from the judgment of

sentence entered on November 19, 2018, in the York County Court of Common

Pleas. We affirm.

      The trial court summarized the relevant facts and procedural history of

this matter as follows:

            On October 30, 2007, officers with the Pennsylvania State
      Police (PSP) executed a search warrant at [Appellant’s] residence
      situated at 25 Plank Road, Shrewsbury Borough, York County,
      Pennsylvania. Officers discovered 25 grams of cocaine, some of
      which was packaged for sale and $6,600.00 cash in [Appellant’s]
      bedroom. [Appellant] admitted the cocaine was his property and
      that he sells it. He was subsequently charged with possession with
      intent to deliver a controlled substance pursuant to 35 P.S. § 780-
      113(30).

             Frank C. Arcuri, Esquire represented [Appellant] during trial
      proceedings. On June 24, 2008, [Appellant] entered an open
      guilty plea before the Honorable Judge Michael J. Brillhart and the
      [trial c]ourt deferred sentencing to August 25, 2008. On August
____________________________________
* Retired Senior Judge assigned to the Superior Court.
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       25, 2008, in the interest of justice, sentencing was again deferred
       to October 27, 2008. On October 27, 2008, [Appellant] appeared
       for sentencing, but left the building to purportedly smoke a
       cigarette and never returned, thereby effectively failing to appear.
       The [t]rial [c]ourt issued a bench warrant, which remained active
       until [Appellant’s] reemergence in York County ten years later on
       October 10, 2018.

             On October 10, 2018, this [t]rial [c]ourt vacated
       [Appellant’s] bench warrant and scheduled sentencing at the
       instant docket and [a probation1] violation matter docketed at CP-
       67-CR-3160-2006 for October 22, 2018. On October 22, 2018,
       [Appellant’s] newly retained counsel, J. Rick Robinson, Esquire,
       filed a Motion to Enforce Plea Agreement alleging the
       Commonwealth’s breach of performance duties relative to what
       was [a] bargained-for-exchange at the time of [Appellant’s] guilty
       plea, specifically, a recommendation for a probationary sentence
       in exchange for [Appellant] forfeiting $50,000.00 cash derived
       from illicit drug sales and providing valuable intelligence to the
       York County Drug Task Force. Additionally, counsel requested a
       continuance so as to familiarize himself with [Appellant’s] matter.
       This [t]rial [c]ourt granted counsel’s continuance request and
       moved sentencing to November 19, 2018.

            On November 19, 2018, this Court first convened a hearing
       on [Appellant’s] Motion to Enforce Plea Agreement. After taking
       the testimony of [Appellant], former PSP Corporal Craig
       Fensteracher, former assistant prosecutor William Graff, Esquire,
       and Donna Halsey - [Appellant’s] sister, this [c]ourt denied
       [Appellant’s] motion, citing that the evidence was insufficient to


____________________________________________


1 The trial court refers to the matter at trial court docket 3160-2006 as a
parole violation, Trial Court Opinion, 1/25/19, at 2, and both the
Commonwealth and Appellant reference a parole violation or detainer.
Commonwealth’s Brief at 15; Appellant’s Brief at 5. After our review of the
record, it appears that the action taken relative to trial court docket 3160-
2006 was a probation violation and resentencing. N.T., 11/19/18, at 1, 29.
However, it is possible there was a parole detainer at a separate trial court
docket. Nevertheless, because Appellant appealed only the judgment of
sentence at trial court docket 1712-2008, the references to parole and
probation matters at separate trial court docket numbers do not impact our
discussion.

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       establish the existence of any agreement particularly in light of
       the fact that [Appellant] agreed to [an open guilty plea].

              The Motion Hearing segued into [Appellant’s] Sentencing
       Hearing where this [c]ourt sentenced [Appellant] as follows: three
       (3) to six (6) years of confinement in a State Correctional
       Institution at Docket Number 1712-2008; two and one half (2 ½)
       to five (5) years of confinement in a State Correctional Institution
       at Docket Number 3160-2006[, which was the probation
       revocation case], to run concurrently with the sentence imposed
       at 1712-2008. This [t]rial [c]ourt awarded [Appellant] 66 days of
       credit for time spent in custody and indicated on the record that
       he is eligible for a reduced sentence pursuant to the Recidivism
       Risk Reduction Incentive (RRRI) statute.

            [Appellant] timely filed a Post-Sentence Motion on
       November 29, 2018, requesting a sentence modification based on
       [Appellant’s] reputation, age, and health ailments. This [c]ourt
       denied [Appellant’s] Post-Sentence Motion, without hearing, by
       Order on December 4, 2018. On December 18, 2018, [Appellant],
       by and through counsel, filed a timely Notice of Appeal to the
       Superior Court [at trial court docket 1712-2008].

Trial Court Opinion, 1/25/19, at 2-4 (internal footnote omitted) (footnote

added). Both the trial court and Appellant complied with Pa.R.A.P. 1925.2

       On appeal, Appellant presents the following issues for this Court’s

consideration:

       I. Whether the honorable trial court erred in denying Appellant’s
       motion to enforce plea agreement in that the Appellant negotiated
       a proposed plea agreement with the Commonwealth and fulfilled
       all of his conditions/obligations and the Commonwealth did not
       follow through with the proposed agreement as to sentencing?

       II. Whether the honorable trial court erred in denying Appellant’s
       post sentence motion without a hearing/argument in that the


____________________________________________


2It does not appear that Appellant filed an appeal at trial court docket 3160-
2006.

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      Appellant had proposed additional factors to consider which were
      not presented at sentencing?

Appellant’s Brief at 4 (full capitalization omitted).

      In his first issue, Appellant avers that the trial court erred when it denied

his motion to enforce the plea agreement.         Appellant’s Brief at 4.     In its

opinion, the trial court concluded that Appellant waived this issue when he

failed to move to withdraw his guilty plea. Trial Court Opinion, 1/25/19, at 6.

Insofar as the trial court concluded that Appellant never moved to withdraw

his guilty plea, we agree with that conclusion.         The record reflects that

Appellant did not move to withdraw his plea prior to sentencing pursuant to

Pa.R.Crim.P. 591 or after sentence was imposed under Pa.R.Crim.P. 720.

      As noted above, Appellant absconded prior to sentencing and was a

fugitive for ten years. In Commonwealth v. Deemer, 705 A.2d 827, 829

(Pa. 1997), our Supreme Court addressed the impact of fugitive status as

follows:

      [A] fugitive who has returned to the jurisdiction of the court should
      be allowed to exercise his post-trial rights in the same manner he
      would have done had he not become a fugitive. If he returns in
      time for post-trial motions, he should be allowed to file them. If
      he returns after the time for post-trial motions has expired, his
      request to file post-trial motions or to reinstate post-trial motions
      should be denied. If he became a fugitive between post-trial
      motions and an appeal and he returns before the time for appeal
      has expired and files an appeal, he should be allowed to appeal.
      If he returns after the time for filing an appeal has elapsed, his
      request to file an appeal should be denied. If he becomes a fugitive
      after an appeal has been filed, his appeal should be decided and
      any fugitive status should be addressed separately. In short, a
      fugitive who returns to court should be allowed to take the system


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       of criminal justice as he finds it upon his return: if time for filing
       has elapsed, he may not file; if it has not, he may.

Deemer, 705 A.2d at 829.

       Accordingly, because Appellant returned to the jurisdiction of the trial

court prior to sentencing, he had available to him the opportunity to move to

withdraw his guilty plea before and after sentencing. Deemer, 705 A.2d at

829.   Appellant availed himself of neither prospect.       Therefore, any issue

regarding the validity of the plea is waived. Pa.R.A.P. 302(a).

       However, we decline to base our affirmance of Appellant’s judgment of

sentence on waiver.        Appellant did not challenge the validity of his plea;

rather, Appellant challenged the trial court’s ruling on his motion to enforce

the plea agreement. Pa.R.A.P. 1925(b) Statement, 12/31/18. Nevertheless,

after review, we affirm the trial court’s denial of relief, although we do so on

separate grounds. See Commonwealth v. Yale, 150 A.3d 979, 985 (Pa.

Super. 2016) (stating that this Court may affirm the trial court’s decision on

any proper basis).3




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3 On the record, the trial court found that there was no evidence of a plea
agreement. N.T., 11/19/18, at 27. However, in its Pa.R.A.P. 1925(a) opinion,
the trial court concluded that Appellant waived this issue because he did not
move to withdraw the plea. Trial Court Opinion, 1/25/19, at 6. Despite the
trial court’s finding of waiver, we agree with the trial court’s on-the-record
conclusion that there is no evidence of a plea agreement. As discussed herein,
we affirm on that basis.

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     It is well settled that plea agreements must be enforced to avoid the

perversion of the plea-bargaining system. Commonwealth v. Farabaugh,

136 A.3d 995, 1001 (Pa. Super. 2016) (citation omitted).

     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.

Id. (citing Commonwealth v. Parsons, 969 A.2d 1259, 1267-1268 (Pa.

Super. 2009) (en banc)). “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.” Id. (citation omitted). “Although a plea agreement occurs

in a criminal context, it remains contractual in nature and is to be analyzed

under contract-law standards.”     Id.     Disputes over the terms of a plea

agreement must be resolved by objective standards. Id. “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.” Id. at 1001-1002.

     In the case at bar, the record reveals that although Appellant entered a

plea of guilty, there was no agreement relative to the sentence that the trial




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court would impose. Guilty Plea Colloquy, 6/24/08, at ¶¶25-38.4 Thus, there

was no agreement that could be enforced or breached.            Accordingly, we

discern no error in the trial court denying Appellant’s motion to enforce a plea

agreement as there was no plea agreement.

        In his second issue, Appellant avers that the trial court erred when it

denied Appellant’s post-sentence motion requesting a hearing on proposed

mitigating sentencing factors that the trial court allegedly overlooked.

Appellant’s Brief at 4.       An allegation that the sentencing court failed to

consider mitigating factors implicates the discretionary aspects of one’s

sentence. Commonwealth v. McLaine, 150 A.3d 70, 77 (Pa. Super. 2016).

However, we are constrained to point out that, although Appellant mentions

sentencing factors,5 he has waived any challenge to the discretionary aspects

of his sentence. Appellant has not included in his brief a Pa.R.A.P. 2119(f)

statement, discussed the requirements necessary for appellate review of the

discretionary aspects of a sentence, or developed any argument in this

respect.     See Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super.

2010) (discussing the requirements that must be satisfied in order to invoke

this Court’s jurisdiction and to obtain review of a challenge to the discretionary



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4The only reference to sentencing was a handwritten addendum to paragraph
30, which read: “Any cooperation to be reported to Judge at sentencing.”
Guilty Plea Colloquy, 6/24/08, at ¶30.

5   Appellant’s Brief at 9.

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aspects of one’s sentence); see also Commonwealth v. Simmons, 846

A.2d 142, 145 (Pa. Super. 2004) (finding issues concerning discretionary

aspects of sentence waived where Appellant failed to develop any argument

for the claims). Appellant challenges only the trial court’s failure to hold a

hearing on his post-sentence motion. Appellant’s Brief at 9-10. After review,

we conclude that no relief is due.

      After a post-sentence motion is filed, the trial court determines whether

a hearing on the motion is necessary.        Pa.R.Crim.P. 720(B)(2)(b).     The

decision to hold a hearing on a post-sentence motion is within the discretion

of the trial court.   Commonwealth v. Gaffney, 702 A.2d 565, 566 (Pa.

Super. 1997); Commonwealth v. Fowler, 523 A.2d 784, 788 (Pa. Super.

1987).

      Appellant argues that he attached to his post-sentence motion four

letters attesting to his good character.    Appellant’s Brief at 10.   However,

Appellant asserts that because the trial court declined to hold a hearing, these

letters were not considered, and it would have been “beneficial for the court

to hear factors and input which was not received at the time of sentencing.”

Id.

      The record reveals that the trial court heard testimony concerning

mitigating sentencing factors including Appellant’s age and cooperation with

police.   N.T., 11/19/18, at 6, 10.    Additionally, in fashioning Appellant’s

sentence, the trial court specifically considered Appellant’s prior criminal


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record, the Sentencing Guidelines, and that Appellant was a fugitive for ten

years. Id. at 21-31. The fact that Appellant is unhappy with his sentence

does not permit this Court to second guess the trial court’s discretion

concerning the denial of his post-sentence motion or allow this Court to disturb

the sentence the trial court imposed. If Appellant wanted this Court to review

the trial court’s consideration of mitigating factors as they relate to the

duration of the sentence, Appellant should have challenged the discretionary

aspects of his sentence.    As noted, however, Appellant did not appeal the

discretionary aspects of his sentence, and we will not review his claim in that

context. After review, we conclude that Appellant has failed to establish that

the trial court abused its discretion in declining to hold a hearing on his post-

sentence motion.

      For the reasons set forth above, we conclude that Appellant is entitled

to no relief. Accordingly, we affirm Appellant’s judgment of sentence.

      Judgment of sentence affirmed.



 Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/9/2019




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