J-S54031-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                  IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA

                       v.

    MICHAEL J. KELLY

                            Appellant                  No. 231 WDA 2017


            Appeal from the Judgment of Sentence December 29, 2016
                 In the Court of Common Pleas of McKean County
               Criminal Division at No(s): CP-42-CR-0000460-2016

BEFORE: OTT, MOULTON, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                  FILED: SEPTEMBER 29, 2017

        Appellant, Michael J. Kelly, appeals from the judgment of sentence

entered in the McKean County Court of Common Pleas. Appellant contends

the court abused its discretion in determining that he was not eligible for the

state motivational boot camp program. We affirm.

        The facts are unnecessary for our disposition. On December 8, 2016,

docketed December 13, 2016, Appellant entered into a negotiated guilty plea

to robbery,1 simple assault,2 and theft by unlawful taking.3




*   Former Justice specially assigned to the Superior Court.
1   18 Pa.C.S. § 3701(a)(1)(iv).

2   18 Pa.C.S. § 2701(a)(1).

3   18 Pa.C.S. § 3921(a).
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     The guilty plea agreement provided:

        SENTENCE RECOMMENDATION: [Appellant] is to pay the
        costs of prosecution and:

           Aggregate sentence of 22 months to 48 months plus two
           years consecutive probation;

           On Robbery: Incarceration of 22 months to 48 months
           plus two years consecutive probation;

           On Simple Assault: Incarceration of 6 month[s] to 18
           months concurrent to sentence on Robbery; and

           On Theft: Incarceration of 6 months to 18 months
           concurrent to sentences at Count 2 and Count 5.

Guilty Plea Agreement, 12/13/16, at 1.4 The agreement stated that “[t]his

sentencing agreement is entered into voluntarily with full knowledge of the

maximum and/or mandatory penalties which could be assessed for the crimes

charged and with full understanding that the [c]ourt is not bound to accept

the terms of the Agreement.” Id.

     At sentencing, counsel requested that Appellant be made boot camp

eligible. N.T. Sentencing Hr’g, 12/29/16, at 6. The Commonwealth opposed

the request. Id. at 7. The court denied the request for boot camp. Id. at 8,

11. On December 29, 2016, Appellant was sentenced to twenty-two to forty-




4Appellant was also charged with the following crimes: robbery, 18 Pa.C.S. §
3701(a)(1)(ii), two counts of criminal conspiracy/robbery, 18 Pa.C.S. §
903(a)(1), and receiving stolen property, 18 Pa.C.S. § 3925(a). These
charges were dismissed.




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eight months’ incarceration5 plus two years of consecutive probation with

credit for time served of eighty-one days. This appeal followed. Appellant

filed a court-ordered Pa.R.A.P. 1925(b) statement of errors complained of on

appeal, and the trial court filed a responsive opinion.

      Appellant raises the following issue for our review: “Did the sentencing

[c]ourt abuse it’s discretion in determining that Appellant was not eligible for

the state motivational boot camp program, when he was otherwise statutorily

eligible?” Appellant’s Brief at 6.

      Initially, we consider whether Appellant has waived any challenge to the

discretionary aspect of his sentence. In Commonwealth v. Lincoln, 72 A.3d

606 (Pa. Super. 2013), this Court opined: “Settled Pennsylvania law makes

clear that by entering a guilty plea, the defendant waives his right to challenge

on direct appeal all nonjurisdictional defects except the legality of the sentence

and the validity of the plea.” Id. at 609 (citation omitted). ”Where the plea

agreement contains a negotiated sentence which is accepted and imposed by

the sentencing court, there is no authority to permit a challenge to the

discretionary aspects of that sentence.” Commonwealth v. Reichle, 589

A.2d 1140, 1141 (Pa. Super. 1991); see also Commonwealth v. Baney,


5 We note that at sentencing, in response to the court’s inquiry as to its
position on boot camp eligibility, the Commonwealth misstated the sentence
recommendation for robbery in the Guilty Plea Agreement. “When we wrote
the guideline range we were considering that the range was 18 to 24 and the
Plea Agreement was written accordingly. So, if he were to get boot camp it
would be a large reduction in the sentence that was not envisioned in the Plea
Agreement.” N.T. Sentencing Hr’g, 12/29/16, at 7.


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860 A.2d 127, 131 (Pa. Super. 2004) (holding a defendant “having entered a

valid negotiated guilty plea, . . . cannot challenge the discretionary aspects of

his sentence”) (citation omitted)). We have long recognized

         [i]f either party to a negotiated plea agreement believed the
         other side could, at any time following entry of sentence,
         approach the judge and have the sentence unilaterally
         altered, neither the Commonwealth nor any defendant
         would be willing to enter into such an agreement.
         Permitting a discretionary appeal following the entry of a
         negotiated plea would undermine the designs and goals of
         plea bargaining, and would make a sham of the negotiated
         plea process.

Reichle, 589 A.2d at 1141 (citations, quotation marks, and footnote omitted).

      Appellant entered a negotiated guilty plea that included a negotiated

sentence. The court accepted the plea and Appellant received the negotiated

sentence.      See Baney, 860 A.2d at 131; Reichle, 589 A.2d at 1141.

Therefore, he waived any challenge to the discretionary aspect of his

sentence. See Lincoln, 72 A.3d at 609. Accordingly, we affirm the judgment

of sentence.

      Judgment of sentence affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/29/2017



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