J-S64009-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA           :   IN THE SUPERIOR COURT OF
                                       :        PENNSYLVANIA
                                       :
            v.                         :
                                       :
                                       :
KAREEM GEORGE                          :
                                       :
                  Appellant            :   No. 202 MDA 2017

             Appeal from the PCRA Order November 23, 2016
             In the Court of Common Pleas of Dauphin County
           Criminal Division at No(s): CP-22-CR-0002215-2005


BEFORE:   PANELLA, J., SHOGAN, J., and FITZGERALD*, J.

MEMORANDUM BY PANELLA, J.                     FILED DECEMBER 08, 2017

     Appellant, Kareem George, contends he is not receiving the benefit of

the agreement he entered into when he pled guilty to charges of third-

degree murder and associated crimes. Specifically, he argues the agreement

required his sentences for those crimes (collectively, “the third-degree

murder sentences”) run concurrent to any sentences he was serving due to

parole violations. He claims that in December 2015, he learned his parole

violation sentences were not run concurrent to the third-degree murder

sentences. He therefore filed this petition seeking to have the terms of his

plea agreement enforced. After careful review, we vacate and remand for

further proceedings.

     To raise his claims, George filed a pro se Post Conviction Relief Act

(“PCRA”) petition, asking to have his sentence modified to reflect the terms


____________________________________
* Former Justice specially assigned to the Superior Court.
J-S64009-17


of his plea agreement. In response, the court below dismissed the petition

as untimely under the PCRA’s strictures.

      However, Pennsylvania courts have consistently treated petitions to

enforce plea agreements as contract enforcement actions, not as petitions

under the PCRA. A “prosecutor is duty bound to fulfill the promises made in

exchange for the defendant’s guilty plea.” Commonwealth v. Martinez,

147 A.3d 517, 532 (Pa. 2016) (citation omitted). “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.” Id. (quotation marks and citation omitted). As a result, a convict is

entitled to specific performance of their plea agreement. See id.

      Thus, George’s petition, though self-titled as a PCRA petition, does not

fall under the ambit of the PCRA. It is not subject the PCRA’s timeliness

requirements. It is properly treated as a petition to enforce the terms of his

plea agreement.

      In his petition, George alleges the prosecutor and trial court agreed to

run the third-degree murder sentences concurrent to “any [p]arole sentence

on the technical violations.”     Petition, filed 2/8/16, at 4. Indeed, the

transcript of his sentencing supports his assertion:

      [DEFENSE COUNSEL]: We would ask as discussed at sidebar
      that you make this sentence concurrent[] with the technical

                                     -2-
J-S64009-17


     parole violation he’s already received from his green sheet of a
     one year sentence.

     THE COURT:              To the extent that I can.

     [DEFENSE COUNSEL]: As you can by law. And then we would –
     I think that’s how we covered the parole issue. Am I right,
     Kareem?

     [GEORGE]:               Yes.

     THE COURT:              … Mr. George, I just want to be crystal
     clear, to the extent that I can make it concurrent with your
     technical violations I would do that. But I’m not even so sure I
     can do that. I just want to be clear with you that that may not
     happen. Do you understand that?

     [GEORGE]:               (Nods head.)

     THE COURT:              I’m recommending it. I’m stating that for
     the record. But that can be ignored by the Parole Board. Do you
     understand that?

     [GEORGE]:               Yes.

     THE COURT:               I just don’t want you – I want to be
     crystal clear about that. You understand it?

     [GEORGE]:               (Nods head.)

N.T., Sentencing, 8/27/07, at 9-10. The prosecutor did not object or seek to

modify these comments in any way. See id.

     When it imposed sentence, the court noted, “[t]o the extent that the

[c]ourt can, this sentence can run concurrently with the sentence that the –

parole sentence on the technical violations. That’s pursuant to the plea

agreement.” Id., at 27. The court again qualified this statement by

admitting it might not have the authority to impose concurrent sentences.


                                    -3-
J-S64009-17


See id. In the event that the court was found to not have that authority,

“we’ll give the [George] the appropriate time credit.” Id.

      Thus, it appears that running the third-degree murder sentences

concurrent to at least one parole violation sentence was part of George’s

plea agreement. He has filed a document purporting to be a summary status

of sentence sheet dated December 14, 2015. This document indicates

George began serving his third-degree murder sentences on December 9,

2015, or eight years after he pled guilty. It identifies a sentence that expired

on December 8, 2015 as the cause of the delayed start of his third-degree

murder sentences. However, it does not provide any other details about this

prior sentence.

      We have been unable to locate any other evidence regarding the

nature of the prior sentence in the record. Thus, we are unable to determine

what exact parole violation sentence(s) the agreement covered. Nor are we

able to determine the nature of the prior sentence that expired on December

8, 2015.

      These facts are crucial to assessing the merit of George’s claim. It may

be that George received the benefit of the bargain, and the sentence about

which he currently complains was not part of the plea agreement. For

example, the plea agreement refers only to technical parole violation

sentences. A technical violation of parole is the violation of any term of

parole other than the commission of a new crime. See 61 Pa.C.S.A. §


                                     -4-
J-S64009-17


6138(c). If the sentence George is complaining of now was imposed for a

technical violation, it would appear his claim has arguable merit.

      On the other hand, if the parole revocation sentence that forms the

basis of George’s current complaint was imposed due to his commission of a

new crime, it would appear the plea agreement did not cover it. Indeed, it

appears that even if the plea agreement had covered such a sentence, the

court had no power to enforce the agreement. See 61 Pa.C.S.A. §

6138(a)(5); Kerak v. Pennsylvania Bd. of Prob. & Parole, 153 A.3d

1134 (Pa. Cmwlth. 2016).

      Given the confusion as to the proper procedure for handling George’s

petition, and the possible merit to his claim, we vacate the order dismissing

his petition and remand for proceedings to clarify the status of the sentence

that expired on December 8, 2015. If they so desire, both parties may also

present evidence regarding the scope of the plea agreement. The court may

then determine whether George has received the benefit of his plea

agreement.

      Order vacated. Case remanded for further proceedings consistent with

this memorandum. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 10/10/2017

                                     -5-
