J-S15013-17



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA


                    v.

BENJAMIN EASLEY

                         Appellant                   No. 1729 EDA 2016


           Appeal from the Judgment of Sentence May 10, 2016
            In the Court of Common Pleas of Delaware County
           Criminal Division at No(s): CP-23-CR-0005981-2012


BEFORE: BOWES, J., DUBOW, J., AND FORD ELLIOTT, P.J.E.

MEMORANDUM BY BOWES, J.:                               FILED JULY 24, 2017

      Benjamin Easley appeals from his judgment of sentence of two-and-

one-half to five years incarceration imposed after he entered a negotiated

guilty plea to dealing in proceeds of unlawful activity. We affirm.

      The following facts underlie this matter. While residing in Washington

D.C. in November of 2010, Appellant compelled his then-girlfriend, Makuyo

Nettey, to purchase a 2008 Range Rover. Appellant assured Ms. Nettey that

he would make payments on the car, but represented to her that he could

not purchase it himself due to a hold on his credit. The Range Rover was

titled in Ms. Nettey’s name. Appellant made a single payment on the vehicle

loan in January 2011.       That month, Ms. Nettey also gave Appellant

permission to drive the car.         Beginning in February of that year, and
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continuing for many months afterward, Appellant refused to relinquish the

car to Ms. Nettey, despite her many requests that he do so.           In June of

2011, Ms. Nettey reported the vehicle stolen with the Washington D.C.

metropolitan police.   Subsequently, after learning that Appellant had titled

the vehicle in his name in this Commonwealth, she filed an additional police

report in Pennsylvania.

      In order to title the car in Pennsylvania, Appellant first “washed” the

title of a 1999 Ford Econoline Van in New Jersey by removing the original

vehicle’s information on the title and replacing it with that of the 2008 Range

Rover in his own name. Appellant then sold the car to a Pennsylvania car

dealer.   Appellant’s deception was discovered when the vehicle was

determined to be stolen by an auto body shop in Newtown Square, Delaware

County.

      Appellant faced numerous charges in both State and Federal courts.

On June 30, 2015, Appellant entered a negotiated guilty plea in state court.

Sentencing    was   deferred   pending   resolution   of   his   federal   claims.

Ultimately, Appellant was convicted in federal court for bank fraud,

conspiracy, and identity theft, and sentenced to an aggregate sentence of

twelve years imprisonment, plus five years probation.

      On May 10, 2016, after the imposition of his federal sentence,

Appellant was permitted to withdraw his original guilty plea, and entered a

re-negotiated guilty plea to one count of dealing in the proceeds of unlawful

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activity. The trial court conducted the mandatory colloquy and accepted his

guilty plea. The court proceeded immediately to sentencing and imposed a

sentence, in accordance with the terms of the negotiated plea agreement, of

two-and-one-half to five years incarceration to run concurrently with

Appellant’s federal sentence.

       Appellant was released to federal custody. While in federal custody,

the Federal Bureau of Prisons determined that Appellant’s federal sentence

would run consecutively to his state sentence.       Thereafter, Appellant was

transferred into state custody to serve his state sentence, after which he

was to be remanded to federal prison to serve his federal sentence.1

Appellant filed a timely notice of appeal on June 9, 2016, but did not file a

post-sentence motion.        He complied with the court’s order to file a Rule

1925(b) concise statement of errors complained of on appeal.        The court

authored a Rule 1925(a) opinion. This matter is now ready for our review.

____________________________________________


1
  Although the record is not clear on this point, presumably, the Federal
Bureau of Prisons has not designated the state facility in which Appellant is
housed as his federal place of imprisonment pursuant to its power under 18
C.F.R. § 0.96(c), since it determined that his sentences were to run
consecutively, and then transferred him into state custody. As long as the
Commonwealth retains primary jurisdiction over Appellant, his federal
sentence will not begin until the state relinquishes its custody over
Appellant. Spruill v. Pennsylvania Board of Probation and Parole, 158
A.3d 727, 729 n.5 (Pa.Cmwlth. 2017) (noting, “State authorities retain
primary jurisdiction over the prisoner and federal custody does not
commence until the state authorities relinquish the prisoner on satisfaction
of the state obligation.”).



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      Appellant lodges a single complaint for our consideration:      “Whether

[Appellant] is entitled to relief from a negotiated plea that was not entered

knowingly and intelligently because [Appellant], his counsel, and the trial

court thought [Appellant] was entering into the plea agreement with the

belief that his state sentence would run concurrently with his federal

sentence?” Appellant’s brief at 2.

      In order to successfully withdraw a guilty plea after a sentence has

been imposed, a defendant must demonstrate “prejudice on the order of

manifest injustice[.]”    Commonwealth v. Lincoln, 72 A.3d 606, 610

(Pa.Super. 2013). We have previously held that “[a] plea rises to the level

of manifest injustice when it was entered into involuntarily, unknowingly, or

unintelligently.” Id. (citation omitted).

      Appellant wholly relies on this rubric to argue that he entered his guilty

plea unknowingly.    He claims that his plea constituted manifest injustice

since the Federal Bureau of Prisons subsequently determined that his federal

sentence would run consecutively to his state sentence despite the express

and contrary terms of his negotiated guilty plea.       He maintains that he

accepted the Commonwealth’s plea agreement based on its promise that his

sentences would run concurrently, and learned only after sentencing that the

court lacked the power to bind the federal courts in this way.       Insofar as

Appellant relies on the supposed infirmity of his plea as a basis for vacating

his judgment of sentence, we find this issue waived.

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        We have long held that “[a] defendant wishing to challenge the

[validity] of a guilty plea on direct appeal must either object during the plea

colloquy or file a motion to withdraw the plea within ten days of sentencing.”

Lincoln, supra at 609-610; Pa.R.Crim.P. 720(A)(1), (B)(1)(a)(i). Although

Appellant apparently did not receive the benefit of his bargain, he did not

lodge any objections during his plea colloquy or file a post-sentence motion

to withdraw his guilty plea.    Hence, this issue has not been preserved for

review.

        However, Appellant does not rely on his purportedly unknowing guilty

plea solely as a means to vacate his judgment of sentence. He also asserts

that, because his plea constituted manifest injustice, this Court should enter

an order requiring his state and federal sentences to be run concurrently.

While Appellant does not explicitly develop this argument, he seems to be

contending that this Court should specifically enforce the parties’ plea

agreement.        See e.g. Commonwealth v. Hainesworth, 82 A.3d 444

(Pa.Super. 2013) (holding that bargained for plea condition that defendant

did not have to register as a sex offender was specifically enforceable).

Nonetheless, unlike the negotiated plea provision in Hainesworth, this

Court     lacks   the   power   to   grant   Appellant   his   requested   relief.

Commonwealth v. Mendoza, 730 A.2d 503, 504 n.2 (Pa.Super. 1999)

citing Barden v. Keohane, 921 F.2d 476 (3d. Cir. 1990) (“neither the

federal court nor the [Federal Bureau of Prisons] are bound in any way by

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the state court’s direction that the state and federal sentences are run

concurrently.”); see U.S. Const. Article VI, cl. 2. The commencement of a

federal sentence and designation of a defendant’s place of confinement are

matters delegated to the Federal Bureau of Prisons. 28 C.F.R. § 0.96; 18

U.S.C. § 3621.         As we cannot direct the sentencing and confinement

decisions of the federal courts or the Federal Bureau of Prisons, we are

unable to grant Appellant relief.2

       Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/24/2017




____________________________________________


2
 Appellant may still pursue the withdrawal of his guilty plea premised upon
a claim of ineffectiveness of counsel on collateral review pursuant to the
PCRA.



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