J-S67018-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

EMERY GIBSON

                            Appellant                  No. 379 WDA 2014


           Appeal from the Judgment of Sentence December 6, 2011
               In the Court of Common Pleas of Fayette County
             Criminal Division at No(s): CP-26-CR-0000966-2010


BEFORE: DONOHUE, J., MUNDY, J., and FITZGERALD, J.*

CONCURRING AND DISSENTING STATEMENT BY MUNDY, J.:
                                FILED: NOVEMBER 25, 2015

        I agree with the Majority that our previous conclusion that the trial

court improperly sentenced Appellant is correct and join fully in that portion

of the Majority Memorandum. I do not agree that Appellant’s reformulated

third issue for which the Majority granted panel reconsideration is properly

before us, and I conclude the Majority’s discussion of that issue is dicta.

Appellant asks us to “defin[e] the proper administration of [his] Alford

plea.”1 Appellant’s Brief on Reconsideration at 5.       Alford was decided in

the context of determining the voluntariness of a defendant’s plea, not



____________________________________________
*
    Former Justice specially assigned to the Superior Court.
1
    North Carolina v. Alford, 400 U.S. 25 (1970).
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delineating the discretion of a trial court in whether to accept such a plea.

Id. at 36-37.

            Our holding does not mean that a trial judge must
            accept every constitutionally valid guilty plea merely
            because a defendant wishes so to plead. A criminal
            defendant does not have an absolute right under the
            Constitution to have his guilty plea accepted by the
            court, … although the States may by statute or
            otherwise confer such a right. Likewise, the States
            may bar their courts from accepting guilty pleas from
            any defendants who assert their innocence.

Id. at 38 n.11 (citations omitted).

      The Majority Memorandum, in my view, improperly addresses the

parameters of the trial court’s discretion under Pennsylvania Rule of Criminal

Procedure 591, upon remand. See Pa.R.Crim.P. 591 (providing in part, “any

time before the imposition of sentence, the court may, in its discretion, …

direct, sua sponte, the withdrawal of a plea of guilty … and the substitution

of a plea of not guilty”) (emphasis added); Commonwealth v. Herbert, 85

A.3d 558, 565 (Pa. Super. 2014) (noting our appellate courts “have granted

trial courts broad discretion in deciding whether to withdraw a guilty plea

sua sponte”); Commonwealth v. Rosario, 652 A.2d 354, 363 (Pa. Super.

1994) (en banc) (upholding the trial court’s sua sponte withdrawal of

defendant’s guilty plea where a factual basis for the plea was lacking),

appeal denied, 685 A.2d 547 (Pa. 1996).

      By addressing this issue, which has not been addressed by the trial

court, the Majority ignores the limited scope of our appellate review.


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            Our Supreme Court has admonished that an
            appellate court does not sit to review questions that
            were neither raised, tried, nor considered by the trial
            court. … The Superior Court, as an error-correcting
            court, may not purport to reverse a trial court’s
            order where the only basis for a finding of error is a
            claim that the responsible party never gave the trial
            court an opportunity to consider.

Lineberger v. Wyeth, 894 A.2d 141, 147 (Pa. Super. 2006). In this case,

the Majority is providing a prohibited advisory opinion.

            We do not (indeed, we cannot) decide the future
            repercussions of this decision, as it would violate the
            prohibition against the issuance of an advisory
            opinion. See Sedat, Inc. v. Fisher, 420 Pa.Super.
            469, 617 A.2d 1, 4 (1992) (“An advisory opinion is
            one which is unnecessary to decide the issue before
            the court, and … the courts of this Commonwealth
            are precluded from issuing such advisory opinions.”).

U.S. Bank, N.A. v. Pautenis, 118 A.3d 386, 403 (Pa. Super. 2015).

      For these reasons, I concur in the Majority’s decision to vacate the

judgment of sentence, but I dissent from its directives relative to the trial

court’s discretion on remand under Rule 591.




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