J-A22022-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,            :    IN THE SUPERIOR COURT OF
                                         :         PENNSYLVANIA
                       Appellee          :
                                         :
           v.                            :
                                         :
CHARLES VANCLETE McCALLISTER,            :
                                         :
                       Appellant         :    No. 78 MDA 2014


    Appeal from the Judgment of Sentence Entered December 16, 2013,
               In the Court of Common Pleas of York County,
             Criminal Division, at No. CP-67-CR-0005351-2012.


BEFORE: PANELLA, SHOGAN and FITZGERALD*, JJ.

MEMORANDUM BY SHOGAN, J.:                       FILED OCTOBER 22, 2014

     Charles Vanclete McCallister (“Appellant”) appeals from the judgment

of sentence entered December 16, 2013, in the Court of Common Pleas of

York County. We affirm.

     Appellant was arrested and charged with drug-related offenses.      On

July 27, 2012, the Commonwealth filed an information outlining the charges

against Appellant as follows: Count one, delivery of cocaine in violation of

35 P.S. § 780-113(a)(30); Count two, criminal conspiracy to possess with

the intent to deliver cocaine in violation of 18 Pa.C.S. § 903; and Count

three, possession with intent to deliver (“PWID”) cocaine in violation of 35

P.S. § 780-113(a)(30). Criminal Information, 7/27/12, at 1-2. Appellant’s

case was consolidated with that of a co-defendant.      On August 3, 2012,



__________________
*Former Justice specially assigned to the Superior Court.
J-A22022-14



Appellant was formally arraigned and Attorney Scott McCabe entered his

appearance. Appellant’s first pretrial conference was scheduled to occur on

September 17, 2012.

     On September 17, 2012, the parties appeared before the trial court

and informed the court that they had reached a plea agreement.          N.T.,

9/17/12, at 1.     Pending court approval, Appellant would plead guilty to

Count two of the information in exchange for a sentence of two years of

probation, court costs and Appellant’s agreement to forfeit all property the

Commonwealth was seeking to have forfeited in Miscellaneous Docket No.

862 of 2011. Id.

     The trial court was advised that the standard minimum sentencing

range, given the offense gravity score and Appellant’s prior criminal record,

was twelve to eighteen months in a state correctional institution.      N.T.,

9/17/12, at 1. After requesting, and hearing, the rationale for the proposed,

mitigated probationary sentence, the trial court indicated that it would not

accept the proposed plea agreement. Id. at 3, 5. The trial court then listed

Appellant’s case for trial during the November 2012 term and informed the

parties that October 26, 2012 was the firm deadline for entering a guilty

plea pursuant to a plea agreement. Id. at 7. The trial court explained that

after the October 26, 2012 deadline, the court would accept no plea




                                     -2-
J-A22022-14



agreements, and Appellant could either proceed to trial or enter an open

guilty plea to all charges. Id.

      On October 26, 2012, the trial court scheduled a plea hearing to occur

on November 1, 2012. On November 1, 2012, the parties appeared before

the trial court and explained that a plea agreement had “fallen through,” and

Appellant was not going to plead guilty. N.T., 11/1/12, at 2. The prosecutor

indicated that Appellant was made aware that was the last date upon which

Appellant could enter a plea pursuant to a plea agreement.                  Id.

Additionally, Appellant was told that if he was later convicted of PWID

cocaine, that with his prior record score, the standard-range minimum

sentence would be twelve to eighteen months. Id. at 1-2. Appellant elected

to proceed to trial. Appellant’s trial was not reached during the November

2012 term.

      On January 7, 2013, Appellant’s case was called for trial, but

Appellant’s counsel requested a continuance, asserting that a “mix-up” in

communication with Appellant had occurred.         N.T., 1/7/13, at 5-7.   After

Appellant executed a Pa.R.Crim.P. 600 waiver, the trial court granted

Appellant’s request for a continuance. Id. at 7.

      On March 5, 2013, Appellant appeared before the trial court in a

second attempt to enter a guilty plea pursuant to a plea agreement.         The

proffered plea agreement was that Appellant would enter a plea to simple




                                      -3-
J-A22022-14



possession of cocaine and receive a $500 fine plus court costs. N.T., 3/5/13,

at 3. The trial court indicated that the plea deadline of October 26, 2012

was a firm deadline and would not make an exception to that rule and

thereby refused to accept the proposed agreement. Id. at 4, 7. The matter

was again listed for trial.

      After several additional delays, this matter proceeded to trial from

October 8, 2013, to October 10, 2013.       Following the jury trial, Appellant

was convicted on all three counts listed on the information. On December

16, 2013, Appellant was sentenced to twelve to twenty-four months of

incarceration in a state correctional institution for each count, with counts

two and three to run concurrently with count one.          N.T. (Sentencing),

12/16/13, at 5.

      Appellant timely appealed.    The trial court ordered the filing of a

Pa.R.A.P. 1925(b) statement, and Appellant timely complied.

      Appellant presents the following issues for our review:

      A.    Whether trial court committed error and abused [its]
      discretion when it rejected Defendant’s negotiated plea
      agreement with the Commonwealth.

      B.   Trial court committed error and abused [its] discretion
      when it rejected Defendant’s negotiated plea agreement with the
      Commonwealth because plea deadline expired.

Appellant’s Brief at 2.




                                      -4-
J-A22022-14



      Appellant first argues that the trial court erred and abused its

discretion by rejecting the plea agreement presented to the trial court on

September 17, 2012, at the pretrial conference.       Appellant’s Brief at 5.

While Appellant concedes that the trial court has broad discretion in the

acceptance and rejection of plea agreements pursuant to Pa.R.Crim.P.

590(a)(3), Appellant maintains that the trial court erred when it rejected the

proposed plea agreement “based on the charges filed and not on the

defendant’s conduct.” Id. at 5-6. In support of this claim, Appellant refers

to the following trial court statement:        “I do not understand why

overcharging is permitted, why everybody thinks that’s okay. I don’t think

it’s okay.” Id.

      The plea process is governed by Pennsylvania Rule of Criminal

Procedure 590 and provides in relevant part as follows:

      Rule 590. Pleas and Plea Agreements

      (A) Generally

            (1) Pleas shall be taken in open court.

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

            (3) The judge may refuse to accept a plea of guilty or nolo
      contendere, and shall not accept it unless the judge determines
      after inquiry of the defendant that the plea is voluntarily and
      understandingly tendered. Such inquiry shall appear on the
      record.


                                      -5-
J-A22022-14




      (B) Plea Agreements

            (1) When counsel for both sides have arrived at a plea
      agreement, they shall state on the record in open court, in the
      presence of the defendant, the terms of the agreement, unless
      the judge orders, for good cause shown and with the consent of
      the defendant, counsel for the defendant, and the attorney for
      the Commonwealth, that specific conditions in the agreement be
      placed on the record in camera and the record sealed.

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

Pa.R.Crim.P. 590(A)-(B).

      In addressing plea agreements, this Court has provided the following

analysis:

             “The Pennsylvania Rules of Criminal Procedure grant the
      trial court broad discretion in the acceptance and rejection of
      plea agreements. There is no absolute right to have a guilty
      plea accepted.” Commonwealth v. Hudson, 820 A.2d 720,
      727-28 (Pa. Super. 2003).        Accordingly, our Courts have
      reaffirmed that “[w]hile the Commonwealth and a criminal
      defendant are free to enter into an arrangement that the parties
      deem fitting, the terms of a plea agreement are not binding
      upon the court. Rather the court may reject those terms if the
      court believes the terms do not serve justice.” Commonwealth
      v. White, 787 A.2d 1088, 1091 (Pa. Super. 2001). As these
      holdings make apparent, the Commonwealth’s offer of plea,
      even if accepted by the defendant unequivocally, does not
      dispose of a criminal prosecution; indeed, the plea bargain is of
      no moment until accepted by the trial court.

Commonwealth v. Chazin, 873 A.2d 732, 737 (Pa. Super. 2005).




                                     -6-
J-A22022-14



      “An ‘open’ plea agreement is one in which there is no negotiated

sentence.”   Commonwealth v. Shugars, 895 A.2d 1270, 1272 n.1 (Pa.

Super. 2006).   With a negotiated plea agreement, on the other hand, the

parties may agree on the specific sentence to be imposed. Commonwealth

v. Parsons, 969 A.2d 1259, 1267 (Pa. Super. 2009).           Negotiated guilty

pleas may take other forms as well, such as agreements which contain no

specific sentencing term, but include a sentencing recommendation from the

Commonwealth. Id. at 1267.

      A review of the hearing transcript reflects that the statement identified

by Appellant as the reason for the trial court’s refusal to accept the plea

agreement was taken out of context and was not, in fact, the basis for the

court’s decision. During the hearing, the prosecutor advised the trial court

that the parties had come to an agreement.        N.T., 9/17/12, at 1.     The

prosecutor presented the following proposed agreement to the trial court:

      [Appellant] would plead guilty to Count 2, which is criminal
      conspiracy to deliver controlled substance. The recommended
      sentence would be 2 years probation plus costs. [Appellant]
      would agree to forfeit anything in Miscellaneous Docket 862 of
      ‘11. Your Honor, this is a mitigated range sentence. The
      standard range is 12 to 18 months.

Id.   The trial court questioned the rationale for the mitigation.   Id.   The

prosecutor explained that due to “the lower amount of involvement that

[Appellant] had to do with the crime,” the police were in favor of Appellant

getting a probationary sentence for the conspiracy charge. Id. at 2. Upon


                                      -7-
J-A22022-14



further questioning, the prosecutor explained that the Commonwealth’s

allegation on the conspiracy charge would be that:

      [Appellant] knew that the co-defendant had cocaine, and they
      would be able to sell to the confidential informant, and he put
      the confidential informant together with [the co-defendant].

Id.   The trial court stated that such allegation would likely support a

conviction for conspiracy to deliver a controlled substance, and again

questioned: “So I guess I’m back to why the mitigated range deal?” Id. at

2-3. The trial court also questioned what drug was involved, to which the

prosecutor answered, “cocaine.” Id. After additional attempted explanation

by the prosecutor, the trial court stated the following:

      [The trial court]: [Y]ou are asking me to approve a sentence of
      no incarceration when the standard Pennsylvania sentence for
      the crime and the prior record score would be a state sentence.

      [Prosecutor]:     Yes, Your Honor.

      [The trial court]: I think under those circumstances the people
      of York County would think I’m being remiss if I don’t question
      that, and I’m questioning it, and you are telling me, gee, I really
      don’t know. Well, then I guess I am not going to be able to
      accept the deal.

Id. at 3.

      The remainder of the transcript reflects statements by Appellant’s

counsel attempting to justify why the police filed the charges and making

reference to “policing by statistics” and the fact that the Drug Task Force

operates on number of arrests.         N.T., 9/17/12, at 4-5.     After these




                                       -8-
J-A22022-14



explanations, the trial court stated, “I’m not satisfied with the explanation.

I’m not going to take the plea.”      Id. at 5.   The statement referenced by

Appellant was made by the trial court in response to Appellant’s counsel’s

suggestion that statistics were driving the police department’s actions. Id.

at 6.

        As a result, we cannot agree with Appellant that the trial court rejected

the plea agreement “based on charges filed and not on [Appellant’s]

conduct.”    The transcript, read in its entirety, reveals that the trial court

rejected the proposed plea agreement on the grounds that, given Appellant’s

prior record score, the standard sentence on the conspiracy charge was

twelve to eighteen months incarceration, and therefore, the proposed two

years of probation was too lenient and not justified under the circumstances

of the case. N.T., 9/17/12, at 1-5.

        As noted, Appellant has no right to have his guilty plea accepted.

Chazin, 873 A.2d at 737.         The trial court has broad discretion in the

acceptance and rejection of plea agreements and may reject the terms of

the agreement if the court believes the terms do not serve justice. Id. As

such, the trial court did not abuse its discretion in refusing to accept the plea

agreement because it determined that the terms of the agreement did not

serve justice.




                                        -9-
J-A22022-14



      Appellant next argues that the trial court committed error and abused

its discretion when it rejected Appellant’s second attempted plea agreement,

presented to the trial court on March 5, 2013, because the plea agreement

deadline had passed. Appellant’s Brief at 6. Appellant asserts that due to

the trial court’s rejection of Appellant’s first plea on the basis that Appellant

had been “overcharged,” the Commonwealth amended the charges to a

misdemeanor possession.        Id.   Appellant contends that the proposed

agreement provided that Appellant would plead guilty to simple possession

and receive two years of probation.1      Id. at 7.    Appellant contends that

because the trial court rejected the plea agreement, he was “forced to go to

trial, was found guilty of charges that he wished to plead guilty to and

received prison time.” Id. at 7. Appellant further asserts:

      Rejecting the guilty plea for merely being past the plea deadline
      due to no fault of [Appellant] prevents [Appellant] from
      accepting responsibility and seeking redemption and is
      inapposite to judicial economy. The trial court committed error
      and abused [its] discretion when it rejected the Plea Agreement
      merely because the plea deadline had expired when no delay
      was attributed to [Appellant] and there was not prejudice to any
      party, including the Commonwealth.

Id. at 7.




1
  Despite Appellant’s characterization of the proposed plea agreement
presented to the trial court on March 5, 2013, the transcript reflects that the
proposed agreement provided for Appellant pleading to a misdemeanor
possession charge and paying a $500 fine plus costs. N.T., 3/5/13, at 3.

                                       -10-
J-A22022-14



     During the pretrial conference, the trial court made the following

statement:

     [The trial court]: All right. [Appellant] appears before the [trial
     court] for pretrial conference. He is here with Attorney McCabe
     who says that he and [Appellant] are ready to go to trial. The
     Commonwealth says they are ready. Therefore, we put the case
     on the jury trial list for the November 2012 term of Criminal
     Court beginning November 5 ending November 16 of this year.

           [Appellant], his lawyer, and the Commonwealth all must
     be ready to go to trial on one-hour’s notice any time during that
     two-week period or any subsequent term of Criminal Court until
     such time as the case has been tried or otherwise finally
     disposed of.

           Plea deadline is October 26, 2012. Unless the [trial court]
     has received a notice that a plea agreement has been reached
     on or before that day, there is no plea agreement that the [trial
     court] will accept -- I didn’t say that right.

           Plea agreement deadline is October 26, 2012.              Any
     proposed plea agreement -- the [trial court] must be given
     notice of any proposed plea agreement on or before that date.
     Thereafter, there is no proposed plea agreement that the [trial
     court] will accept. This is a firm deadline. No extensions to or
     exceptions to it will be made.         After the plea deadline,
     [Appellant’s] only options are to go to trial on all the charges or
     to plead guilty to all the charges without the benefit of any
     negotiated plea agreement. This deadline remains in full force
     and effect regardless of when the case is actually called to trial.

N.T., 9/17/12, at 6-7. An order including that language was issued on the

same day. Order, 9/17/12, at 1-2.

     The trial court made clear to both parties the deadline for accepting

negotiated plea agreements and also made clear that no extensions or

exceptions would be made.       The trial court had discretion to set the


                                     -11-
J-A22022-14



deadline, and the deadline was reasonable in light of the fact that the case

was listed for the November trial term.      Appellant’s second proposed plea

agreement was presented to the trial court well beyond the plea agreement

deadline set by the trial court. As noted, the trial court has broad discretion

in the acceptance and rejection of plea agreements.       Chazin, 873 A.2d at

737. Therefore, we conclude that the trial court did not abuse its discretion

in setting, and holding firm, the deadline for negotiated plea agreements and

thereby refusing to accept the proffered plea agreement.

        Furthermore, with regard to Appellant’s allegations, we note, as

discussed above, that the trial court did not reject Appellant’s first plea

agreement on the basis that Appellant had been “overcharged.” Moreover,

the Commonwealth did not amend the information, or charges against

Appellant, to a misdemeanor possession charge, as Appellant represents.

Instead, for purposes of the proposed plea agreement discussed on March 5,

2013,    the   Commonwealth    amended    the   charges    to   a   misdemeanor

possession charge in exchange for Appellant paying a $500 fine and costs, if

the court accepted the plea agreement. N.T., 3/5/13, at 4. The trial court

did not accept the plea agreement.       Id. at 4, 7.     As such, the criminal

information was not amended. Appellant went to trial on the three charges




                                      -12-
J-A22022-14



outlined in the original criminal information2 and, following a jury trial, was

convicted of all three charges. N.T. (Verdict), 10/10/13, at 2.

      Additionally, despite his representations, Appellant was not “forced to

go to trial.” Appellant’s Brief at 7. As explained by the trial court and noted

in its order, the October 26, 2012 deadline was for negotiated plea

agreements only. Appellant was advised that after that date, he could either

enter an open plea or proceed to trial.       N.T., 9/17/12, at 6-7; Order,

9/17/12, at 1-2. Thus, we cannot agree with Appellant’s contention that, as

a result of the trial court’s holding the October 26, 2012 deadline firm, he




2
 We note that on September 12, 2013, after several delays, Appellant’s case
was called for trial. Appellant requested a continuance and executed a Rule
600 waiver. During the proceeding, the Commonwealth sought to amend
count two of the information. N.T., 9/12/13, at 6. As the Commonwealth
explained, count two of the original information charged Appellant with
“conspiring to commit the offense of possession with intent to deliver
a controlled substance.” Id.; Information, 7/27/12 (emphasis added). The
Commonwealth moved to amend the count to read “conspiracy to commit
delivery of a controlled substance,” in violation of the same statutory
provision. Id. (emphasis added). Appellant’s attorney had no objection to
that amendment and the court allowed it. Id. at 6-7.

      The amendment was permitted under Pa.R.Crim.P. 564 (“The court
may allow an information to be amended when there is a defect in form, the
description of the offense(s), the description of any person or any property,
or the date charged, provided the information as amended does not charge
an additional or different offense”) and related case law. The amendment
did not change the charge, and it involved the same basic elements and
evolved out of the same factual situation as the crimes specified in the
original information. Commonwealth v. Beck, 78 A.3d 656, 660 (Pa.
Super. 2013).

                                      -13-
J-A22022-14



was prevented from “accepting responsibility” and “seeking redemption.”

Appellant’s Brief at 7.

      Moreover, Appellant cites no authority in support of his claim that the

trial court abused its authority in refusing to accept a plea agreement

beyond the deadline set by the court “when no delay was attributed to

[Appellant] and there was no prejudice to any party, including the

Commonwealth.” Appellant’s Brief at 7. The trial court had discretion to set

a deadline and hold it firm. In light of the trial court’s broad discretion in

accepting or rejecting plea agreements, Appellant had no right to have the

court accept his plea. Chazin, 873 A.2d at 737. Thus, Appellant’s second

claim on appeal lacks merit.

      Judgment of sentence affirmed. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 10/22/2014




                                      -14-
