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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA             :     IN THE SUPERIOR COURT OF
                                         :           PENNSYLVANIA
                    v.                   :
                                         :
DAWN SMALLEY,                            :             No. 1571 EDA 2015
                                         :
                         Appellant       :


           Appeal from the Judgment of Sentence, May 18, 2015,
            in the Court of Common Pleas of Montgomery County
             Criminal Division at Nos. CP-46-CR-0000958-2015,
                          CP-46-CR-0005775-2014


BEFORE: FORD ELLIOTT, P.J.E., OTT AND MUSMANNO, JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                     FILED APRIL 18, 2016

      Dawn Smalley appeals from the May 18, 2015 judgment of sentence

following her conviction of retail theft. We affirm.

      On May 18, 2015, appellant entered into a plea agreement with the

Commonwealth in response to a charge of retail theft. As part of the plea

agreement, appellant agreed to serve a term of incarceration at the

Montgomery County Correctional Facility for not less than six months, nor

more than twenty-three months followed by a three-year term of probation,

community service requirements, and payment of fines, court costs, and

restitution. The terms of the plea agreement were jointly recommended to

the trial court.   (Notes of testimony, 5/18/15 at 9.)      The plea agreement

contained the following clause:
J. S11008/16


            Are you aware that the Judge does not have to
            sentence you to the term of probation or jail
            sentence upon which your attorney and Assistant
            District Attorney have agreed?

Plea agreement at 4. Appellant affirmatively indicated that she understood

that particular clause of the plea agreement. Additionally, appellant initialed

at the bottom of the page on which the clause was found in the plea

agreement and signed the plea agreement. The trial court, after stating on

the record that the terms of the plea agreement were unsatisfactory,

sentenced appellant to a term of eleven and one-half to twenty-three

months’ imprisonment.1

      Appellant does not challenge any aspect of the sentence she received,

rather, she challenges the legality of the sentence, indicating that her case

should be remanded to the trial court for resentencing consistent with the

terms of her plea agreement.

      Having determined, after careful review, that the Honorable Wendy

Demchick-Alloy, in her Rule 1925(a) opinion of June 30, 2015, ably and

comprehensively disposes of appellant’s issue on appeal, with appropriate




1
  When plea agreements are accompanied by a recommended sentence, the
trial court is not bound to that recommendation and is free to not abide by
the terms of the recommended sentence. Commonwealth v. Berry, 877
A.2d 479, 484-485 (Pa.Super. 2005) (en banc), appeal denied, 917 A.2d
944 (Pa. 2007). If the sentence imposed by the trial court is unacceptable
to the defendant, it is the defendant’s responsibility to file a motion with the
trial court to withdraw the guilty plea. Id.


                                     -2-
J. S11008/16


reference to the record and without legal error, we will affirm on the basis of

that opinion.

      Judgment of sentence affirmed.



      Musmanno, J. joins the Memorandum.

      Ott, J. concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 4/18/2016




                                       -3-
                                                                                   Circulated 03/18/2016 02:21 PM
\




     IN THE COURT OF COMMON PLEAS OF MONTGOMERY COUNTY, PENNSYLVANIA


                                         CRJMINAL DIVISION


    COMMONWEALTH OF PENNSYLVANIA                                 Nos.   CP-46-CR-0000958-20 I 5
                                                                        CP-46-CR-0005775-2014
                           v.

    DAWN SMALLEY

                                                OPINION

    DEMCHICK-ALLOY, J.                                                          JUNE 30, 2015

           Appellant Dawn Smalley, defendant in the above-captioned matters, appeals from the

    judgments of sentence filed on May 18, 2015. By order dated May 29, 2015, the undersigned

judge directed appellant to file a statement of errors complained of on appeal. On June 17, 2015,

    appellant filed a "Preliminary Concise Statement of Matters Complained of Pursuant to

    Pa.R.AP. 1925" (hereinafter, "the Statement"). The Statement raises a single issue, quoted here

    verbatim:

           Whether the trial court erred in allowing Appellant to be colloquied and thereafter
           accepting Appellant's guilty pica and admissions to [her] probation violations
           based on the terms and conditions as announced in open court by the prosecutor
           and defense, but, subsequent thereto sentencing appellant to a sentence that did
           not conform to the global negotiated pica agreement as announced before
           appellant tendered [her] guilty pica and concomitant admission to probation
           violations.

                                     Facts and Procedural History

           On May 18, 2015 appellant appeared with counsel before the undersigned and, together

with an assistant district attorney for the Commonwealth, presented a negotiated guilty plea in

regard to a new charge of retail theft graded as a felony of the third degree. N. T. 5-18-20 J 5, p. 2.

The proposed sentence included a term of incarceration of six to twenty-three months, to be

served at the Montgomery County Correctional Facility, with three years' probation, thirty-six
  hours' community service, and a fine of $300.00 and costs, with restitution to be determined

  within thirty days after sentencing.   Id.

          Appellant's lawyer conducted an oral guilty plea colloquy and produced, as Exhibit 0-1,

  a written guilty plea colloquy. Id. at 3-8. The written colloquy was accepted into evidence and

 made a part of the record.    The assistant district attorney engaged appellant in a supplemental

 oral plea colloquy. Id. at 8-10.   After the oral and written colloquies were presented to the court,

 the undersigned judge engaged appellant in a dialogue in order to observe her demeanor,

 appraise her apparent willingness to reform herself, and further assess her rehabilitative needs.

 That dialogue, when considered in the context of appellant's criminal history record, established

 that: she had been convicted numerous times in Montgomery County, Bucks County and

 Philadelphia County, id. at 1 1-12, 20-21; her offenses included identity theft, id at 13; she had

 been addicted to narcotics for the past fourteen years, id at 22, before and after she became the

 mother of twins, id. at 16, 22-23; and she stole to support her addiction, id. at 15.   She began

taking narcotics when a doctor prescribed them to treat the pain from lupus, id at 14, but she

spent fourteen years indulging her addiction by stealing without seeking any steps to treat it. Id.

at 14-15. Appellant's testimony that she did not tell any of her prior sentencing judges or

probation officers that she was addicted to narcotics until January of this year (at which time she

told her probation officer in Bucks County) was incredible. Id. at 15, 23; see also id. at 16

(''Why wouldn't you totally and utterly be desperate for rehab, and do everything you could on

your own, if the PO is not responding to get help, as opposed to stealing?").

        The evidence adduced at the guilty plea hearing indicated that the negotiated sentence

would not be sufficient to enable appelJant to undergo an effective program of drug treatment

while she was off the streets, and the undersigned judge repeatedly stated her intention not to

                                                   2
 follow the sentencing recommendation because it would not have been consistent with

 appellant's rehabilitative needs or the protection of the public. Id. at 13 (considering

 incarceration at SCI Muncy and referring to drug treatment program available there); id. at 13-14

 (stating, "I'm thinking out loud so you can hear me in the way I'm thinking here."); id. at 18, 19

 (considering treatment programs available at SCI Muncy in view of appellant's rehabilitative

 needs and public safety); id. at 20, 23-24 (concluding that negotiated term of incarceration too

 short even asswning upcoming sentencing in Bucks County would address appellant's need for

 treatment).   Prior to imposing sentence, the undersigned judge gave appellant opportunities to

 speak before being sentenced, at which times she could have asked to withdraw her guilty plea,

or to have time to speak with her lawyer about whether to proceed with the guilty plea hearing.

Id. at 15-16, 23. At no time before or after sentencing did defense counsel ask for a recess to

speak with appellant about whether to withdraw her plea. Alter the hearing concluded, appellant

did not file a written post-sentence motion to withdraw the plea or ask for reconsideration of the

sentence. Appellant simply filed the instant appeal.

                                             Discussion

        Appellant does not claim on appeal that the colloquies were deficient in any way, nor

does she claim that her guilty plea was less than knowing, intelligent and voluntary.       She does

not claim that the sentences imposed in the above-captioned matters were illegal for any reason.

Likewise, appellant does not expressly state that the undersigned judge abused her discretion,

and she does not identify any theory by which the sentences could be determined to be the

product of an abuse of discretion.   Appellant merely claims that the undersigned judge erred by

accepting her guilty pleas but rejecting the negotiated sentences, notwithstanding the controlling

rule of criminal procedure, which expressly gives judges the power to "refuse to accept a plea of

                                                  3
  guilty .... " Pa.R.Crim.P.    590(/\)(1 ).1

          The Sentencing Code, 42 Pa.C.S. §§ 9701-9799.41,            obligates judges to impose a sentence

  "that is consistent with the protection of the public, the gravity of the offense as it relates to the

  impact on the life of the victim and on the community, and the rehabilitative needs of the

  defendant."   42 Pa.C.S. § 9721 (b). The statute does not give judges a discretionary        power to

  disregard those considerations      when imposing a sentence. See Commonwealth v. Walls, 926

  A2d 957, 964 (Pa. 2007) (explaining           that sentence may be vacated as "unreasonable" if "the

 sentence was imposed without express or implicit consideration by the sentencing court of the

 general standards applicable to sentencing found in Section 9721, i.e., the protection of the

 public; the gravity of the offense in relation to the impact on the victim and the community;          and

 the rehabilitative needs of the defendant.").        Based on appellant's fourteen-year   career of theft

 without any serious effort to seek help for the drug addiction that drove it, the terms of the

 negotiated sentences would not have been consistent with appellant's rehabilitative needs or the

 protection of the public.     The facts of record in the above-captioned matters show that the

undersigned judge considered the requisite statutory criteria when rejecting the negotiated

sentences and fashioning the sentences that were imposed. The sentences imposed in the above-

captioned matter were, therefore, a lawful exercise of discretion.

 I The record shows that the undersigned judge told appellant that she decided not to accept the terms of
the negotiated disposition prior to imposing sentence, thus giving her an opportunity to orally move to
 withdraw her pica before sentencing. The undersigned judge was, however, under no legal obligation to
do so. Prior to its amendment in 1995, Pa.R.Crim.P. 391 obligated a judge "to pcnnit the defendant to
withdraw his pica" if the judge decided not to accept the tcnns negotiated by the parties. Pa.R.Crim.P.
319(b)(3). Case law interpreting sub-paragraph (b)(3) imposed an additional obligation: "if the court
decides not to accept the recommended disposition of the pica agreement it must make its decision known
to the defendant and his counsel before sentencing so that the defendant has an opportunity to petition to
withdraw the plea." Commonwealth v. Fazenbaker, 375 A2d 175, 176 (Pa. Super. Ct. 1977) (italics
added). Sub-paragraph (bX3) was deleted by amendment of December 22, J 99 5, effective July I, 1996,
and Ruic 319 was renumbered as Pa.R.Crim.P. 590 by order of March I, 2000, effective April 1, 200 l.
Pa.R.Crim.P. 590, cmt.

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                                         CONCLUSION

        Upon consideration of the foregoing discussion, the undersigned respectfully submits that

the judgment of sentence should be affirmed.

                                                     BY THE COURT,




Copy of above sent on      ~ ;;.,_ ~:
Raymond D. Roberts, A~ellate Division, by inter-office mail
Robert M. Falin, Deputy District Attorney, D.A. 's Office, by inter-office mail




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