J-S08042-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

ROSEMARY WALSH

                            Appellant                No. 2465 EDA 2014


                   Appeal from the PCRA Order July 23, 2014
                In the Court of Common Pleas of Chester County
              Criminal Division at No(s): CP-15-CR-0003339-2009


BEFORE: DONOHUE, J., WECHT, J., and JENKINS, J.

MEMORANDUM BY JENKINS, J.:                             FILED JUNE 15, 2015

        Rosemary Walsh appeals from an order denying her petition for relief

under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. § 9541-9546. She

claims that the trial court committed two errors in the course of her

negotiated guilty plea for fleeing or attempting to elude police officers

(“fleeing or eluding”)1: (1) it imposed an amount of restitution, $45,074.08,

that is illegal, and (2) it imposed an illegal and excessive period of court

supervision by failing to give her credit for time she previously served on

parole or probation status in good standing.         We conclude that Walsh

knowingly, voluntarily and intelligently waived her right to challenge her

negotiated guilty plea. Accordingly, we affirm.

____________________________________________


1
    75 Pa.C.S. § 3733.
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        This case has a rather unusual history. On January 22, 2009, Walsh

struck a pedestrian with her automobile on Route 352 in Chester County,

Pennsylvania.      N.T., 1/28/10, p. 2 (Walsh’s first guilty plea hearing).

Witnesses observed Walsh exit her vehicle to check on the victim but then

re-enter her vehicle and leave the scene without returning.            Id.   Police

officers arrested Walsh nearly five hours after the accident, and she

admitted that she was the driver of the vehicle. Id., pp. 3-4. At the time of

the accident, Walsh’s operating license had been suspended due to a prior

DUI conviction. Id., p. 24. The victim underwent surgery for a broken tibia,

fibula and tibial plateau.      Id., p. 2.     Surgeons inserted a plate and eight

screws into her leg, and she will need a complete knee replacement in the

future. Id., p. 2.

        In a negotiated guilty plea entered on January 28, 2010, Walsh pled

guilty to leaving the scene of an accident involving death or personal injury,2

a first degree misdemeanor, and driving while operating privilege is

suspended or revoked,3 which was graded as a summary offense.                N.T.,

1/28/10, p. 2. On the charge of leaving the scene of an accident, the trial

court sentenced Walsh to 90 days--23 months’ imprisonment followed by

one year’s probation, plus restitution. Id., p. 23. On the charge of driving

____________________________________________


2
    75 Pa.C.S. § 3742.
3
    75 Pa.C.S. § 1543 (b)(1).



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with suspended operating privileges, the court sentenced Walsh to the

mandatory minimum of 90 days’ imprisonment concurrent with the sentence

on the prior count. Id., p. 24.

      At the time of Walsh’s guilty plea, the victim required ongoing medical

care due to the severity of her injuries. Id., pp. 2-3. Thus, Walsh’s plea

agreement called for restitution of known amounts at that time ($23,296.70

to Rawlings Company LLC, the victim’s insurance company, and $3,360.00

to the victim) with additional restitution not to exceed $30,000 for future

medical costs. Walsh explicitly agreed to pay all restitution in this matter.

Id., pp. 23-24.

      Walsh did not file a direct appeal from her judgment of sentence. She

served her prison sentence from February 5, 2010 to May 5, 2010 and has

been “on the street” ever since.

      On February 28, 2011, while on parole, Walsh filed a counseled PCRA

petition seeking to invalidate her guilty plea on the basis that counsel was

ineffective for advising her to agree to an illegal restitution order. First PCRA

Petition, 2/28/11, p. 4. On July 26, 2011, following an evidentiary hearing,

the trial court dismissed this petition.    Walsh filed a timely appeal to the

Superior Court challenging the legality of her restitution.

      In an unpublished memorandum dated February 29, 2012, this Court

remanded Walsh’s case for further proceedings concerning the legality of the

trial court’s restitution order. Commonwealth v. Walsh, 2150 EDA 2011


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(Pa.Super., Feb. 29, 2012) (“Walsh I”).          We directed the trial court to

determine whether its restitution order was part of Walsh’s direct sentence

or part of her probation. Id., pp. 7-12. If the trial court imposed restitution

as a condition of Walsh’s probation, its restitution order was legal, and Walsh

was not entitled to post-conviction relief. Id. If the trial court found that

Walsh’s restitution was part of her direct sentence, her sentence was illegal,

and she would be permitted to withdraw her plea and proceed to trial on all

charges.4 Id., pp. 7-12.

____________________________________________


4
  Our reasoning on this rather intricate point was as follows. The restitution
statute, 18 Pa.C.S. § 1106, prescribes that restitution can only be part of a
direct sentence when the victim suffers personal injury as a direct result of
the crime. Walsh I, p. 7. For example, in Commonwealth v. Barger, 956
A.2d 458 (Pa.Super.2008), this Court vacated a direct sentence of restitution
for the cost of a sofa on which the victim claimed the defendant had raped
her. The trial court only convicted the defendant of harassment for slapping
the victim, but it imposed restitution for the sofa under section 1106 as part
of the defendant’s direct sentence. We held that restitution for the couch
was illegal because “there was no direct nexus between the crime for which
Appellant was convicted and the loss of the couch, as Section 1106
requires.” Walsh I, p. 7 (citing Barger).

On the other hand, when the trial court sentences the defendant to
probation, it can impose restitution as a condition of probation under a
different statute, 42 Pa.C.S. § 9754 (entitled “Order Of Probation”). Section
9754 authorizes the trial court to order restitution in an amount
commensurate with all direct and indirect damages caused by the defendant
so that she understands the egregiousness of her conduct, is deterred from
repeating this conduct, and is encouraged to live responsibly. Walsh I, p. 8
(citing Commonwealth v. Harner, 617 A.2d 702, 707 (Pa.1992). When
restitution is a condition of probation, the nexus between the criminal
conduct and the victim’s property damage or personal injury is “relaxed.”
Walsh I, p. 9. Thus, in Commonwealth v. Kelly, 836 A.2d 931
(Pa.Super.2003), we affirmed an order of restitution as a term of probation
(Footnote Continued Next Page)


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      On remand, the trial court, sitting as the PCRA court, admitted that it

had imposed restitution without contemplating whether it was a condition of

Walsh’s probation or part of her direct sentence. Notice Of Intent To Dismiss

Second PCRA Petition, p. 3. Consequently, the court granted Walsh’s first

PCRA petition and permitted her to withdraw her guilty plea.

      On February 22, 2013, while represented by private counsel, Walsh

entered into a second negotiated guilty plea to fleeing or eluding, graded as

a second degree misdemeanor, and driving while operating privilege is


                       _______________________
(Footnote Continued)

for damage to the victim’s truck during a robbery, because while the
defendant did not cause the damage, his receipt of stolen goods in
connection therewith helped provide and maintain a market for stolen
property and encouraged others to steal. Kelly, 836 A.2d at 932-34.

In Walsh I, we were unable to determine from the record whether the trial
court ordered restitution as part of Walsh’s direct sentence under section
3742 or as a condition of probation. We held that Walsh’s restitution was
legal if it was a condition of her probation due to the “relaxed” nexus
between criminal conduct and the victim’s injuries in probationary
sentences. However, if restitution was part of Walsh’s direct sentence, it
was illegal under Commonwealth v. Cooper, 466 A.2d 195
(Pa.Super.1983). In Cooper, as in this case, the defendant pled guilty
under section 3742 for striking the victim with a motor vehicle and then
fleeing the accident scene. Cooper held that the trial court may not impose
restitution as a direct sentence in a guilty plea for violation of section 3742,
because no direct nexus existed between the crime for which the defendant
pled guilty (leaving the scene of a motor vehicle accident) and the victim’s
injuries. The victim suffered harm from the accident itself, not the
defendant’s flight from the scene. Walsh I, pp. 11-12 (analyzing Cooper).
We concluded that remand was necessary for the trial court to determine
whether Walsh’s restitution was part of her direct sentence (in which case it
was illegal under Cooper) or a condition of probation (in which case it was
legal under section 9754). Walsh I, p. 12.



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suspended or revoked,5 graded as a summary offense. Unlike her first guilty

plea, Walsh did not plead guilty to leaving the scene of an accident involving

death or personal injury.

        On the fleeing and eluding charge, the trial court sentenced Walsh to

two years of probation, a $500 fine, and payment of $45,074.08 in

restitution within one year to Rawlings Company, LLC.6 N.T., 2/22/13, at 7-

10.     The trial court expressly made restitution a condition of Walsh’s

probation. Id. Walsh also signed a written guilty plea form indicating her

agreement to these terms of her sentence.          Guilty Plea Colloquy Form,

2/22/13, p. 3.

        Walsh agreed in the guilty plea form to waive all of her appellate

rights, direct and collateral. A clause in this preprinted form, which provides

a right of appeal under several specific circumstances,7 is crossed out.

Guilty Plea Colloquy Form, 2/22/13, p. 7. Directly beneath the crossed-out

clause are the handwritten words “see addendum to guilty plea attached”

and Walsh’s signature.         Id.   The addendum states: “The Defendant has
____________________________________________


5
    75 Pa.C.S. § 1543 (b)(1).
6
  On the driving under suspension charge, the trial court sentenced Walsh to
the mandatory minimum of 90 days’ imprisonment with credit for time
served and a $500 fine. Walsh does not challenge this sentence in this
appeal.
7
  These circumstances included lack of jurisdiction, illegality of sentence, an
involuntary or unknowing guilty plea, and “incompeten[ce]” of counsel.
Guilty Plea Colloquy Form, p. 7.



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agreed to waive all appellate rights, direct and collateral and state and

federal in exchange for the plea agreement contained in this guilty plea

colloquy. The defendant also agrees that she will not contest the sentence

imposed on this 22nd day of February 2013.” Id., p. 10 (emphasis added).

The addendum further states: “The defendant understands that the

Commonwealth would not have agreed to this plea offer if the defendant did

not agree to waive these rights.”    Id. Walsh and her attorney signed the

addendum.     Id.   Walsh also signed a clause that she understood the full

meaning of the guilty plea form, and that her signatures and initials on each

page were true and correct. Id., p. 9.

      At the beginning of the guilty plea hearing, the Commonwealth stated

that it “would not be making this agreement if [Walsh] did not waive her

appellate rights with respect to all of the issues in this case.” N.T., 2/22/13,

p. 2. The Commonwealth repeated this point later in the hearing:

            The Commonwealth, again, has agreed to resolve
            this matter with the amended count as stated … in
            exchange for the fact that [Walsh] has agreed to
            waive any further appellate issues or rights that she
            may have regarding restitution or any other issue in
            this case. And that’s based on the fact … [that
            Walsh] did appeal several issues prior to this plea
            here today.

Id., pp. 6-7.   Under oath, Walsh admitted that her signature or initials

appeared on each page of the guilty plea form, and that she reviewed the

entire form with her attorney, including the rights she was giving up. Id., p.

4.   She agreed that she was satisfied with her attorney’s representation.

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Id., p. 5. The following then occurred: (1) the court imposed a term of two

years’ probation on the record without objection; (2) Walsh agreed to pay

restitution   of   $45,074.08      in   monthly   installments   of   $3,756.17   (or

installments relatively close to this amount),8 (3) she agreed that restitution

was both part of her sentence and her probation, and (4) she agreed that

there would be a violation hearing scheduled if she failed to pay full

restitution within one year. Id., pp. 7-8, 10. Further, she agreed that she

was waiving “any ability to appeal anything that occurs in this proceeding.”

Id., p. 9. She agreed that her signature appeared beneath the addendum in

which she waived her appellate rights. Id., p. 10. The trial court stated:

“Since you have no appellate rights, I’m not going to give them to you...”

Id., p. 11.

       Once again, Walsh did not file a direct appeal. However, on March 24,

2014, Walsh filed a second pro se PCRA petition, claiming that (1) her

February 22, 2013 sentence violated her constitutional right against double

jeopardy; (2) her fleeing and eluding sentence was illegal; and (3) counsel

provided ineffective assistance in connection with this sentence.           On June

30, 2014, the trial court entered a notice of intent to dismiss this petition

without a hearing. On July 23, 2014, the trial court dismissed the petition.

____________________________________________


8
  The court stated that it would not be a violation if Walsh paid something
“reasonably close” to $3,756.17 per month, such as $5,000.00 one month
and $3,000.00 in another month. Id., pp. 8-9.



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On August 21, 2014, Walsh filed a notice of appeal to this Court.     Both

Walsh and the trial court have complied with Pa.R.A.P. 1925.

     Walsh raises the following issues in this appeal:

           1. Did the PCRA Court err by not considering
           Appellant’s illegal sentence claims, i.e. failure to
           credit Appellant with time served prior to sentencing
           Appellant to the statutory maximum, making the
           resulting sentence for 75 Pa.C.S.A. § 3733 in excess
           of the statutory maximum?

           2. Did the PCRA Court commit an error of law when
           it found Appellant’s sentence to pay restitution as a
           Condition of Probation was legal when restitution can
           be permitted under 18 Pa.C.S. § 1106(b), Condition
           of Probation or Parole, dependent on 18 Pa.C.S. §
           1106(a), General Rule, only as losses for which the
           Appellant has been held criminally accountable? Or
           did the trial court, referring to Condition of Probation
           in sentencing, impose its sentence of restitution
           pursuant to 42 Pa.C.S. § 9754, where the required
           nexus is more relaxed but where the order, imposed
           in addition to a statutory punishment, order must be
           strictly scrutinized since its purpose is primarily
           punitive?

           3. Did the PCRA Court err in ordering the Appellant
           to pay restitution of $45,074.78 as a condition of
           probation when Appellant is only just gainfully
           employed the past 6 months of the last 5 years?

           4. Did the PCRA Court commit an error in not
           investigating, by way of evidentiary hearing, Ms.
           Walsh’s well-documented claims of apparent
           collusion, or minimally, conflict-of-interest, in
           Appellant’s lawyers who, in unlikely or unexpected
           pattern, have worked to suppress evidence with a
           seeming intended goal of ‘throwing’ the Appellant’s
           case, resulting in the unjust enrichment of the
           Complainant, a subrogator, (a debt collector), in a
           case where the Appellant has demonstrably shown
           that she was not the cause of either the accident or

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            the pedestrian’s resulting injuries -- so much so
            that the Trial Judge has not been able to extract
            restitution from the Appellant by a legal sentence?

Brief For Appellant, pp. 5-6.

      Walsh complains that her probationary term of two years is illegal

(issue 1), because the court failed to give her credit for parole and/or

probation that she served after her first guilty plea. She also complains that

the amount of her restitution is illegal and excessive (issues 2 and 3), and

that her plea bargain is tainted by her attorney’s conflict of interest (issue

4). The trial court asserts, and we agree, that Walsh has waived her right to

appeal under the terms of her negotiated guilty plea.

      Plea bargaining is a crucial component of our criminal justice system.

Commonwealth v. Anderson, 643 A.2d 109, 112 (Pa.Super.1994). Courts

have repeatedly recognized that defendants can waive valuable rights --

including the right to appeal or other constitutional rights -- in exchange for

important concessions by the Commonwealth, provided that the defendant

waives her rights knowingly, voluntarily and intelligently.          See, e.g.,

Commonwealth        v.   Bronshtein,    729    A.2d   1102,   1106    (Pa.1999)

(upholding validity of knowing, intelligent, and voluntary waiver of capital

prisoner's right to pursue post-conviction remedies); Commonwealth v.

Barnes, 687 A.2d 1163, 1167 (Pa.Super.1996) (defendant’s agreement

following murder conviction to waive rights to file motions for post-trial relief

in return for Commonwealth not seeking death penalty was made in


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knowing, voluntary, and intelligent manner; counsel and defendant agreed

that defendant faced possibility of death penalty, and defendant engaged in

extensive colloquy regarding agreement); Commonwealth v. Johnson,

466   A.2d    636,   641   (Pa.Super.1983)   (citing   Commonwealth       v.

Romberger, 378 A.2d 283 (1977)) (defendant can waive right against

double jeopardy). Enforcement of plea agreements is essential to the well-

being of the criminal justice system, because no party would enter into plea

agreements if they believed that the other side could later approach the

judge and have the sentence unilaterally altered.      Commonwealth v.

Coles, 530 A.2d 453, 458 (Pa.Super.1987). Without plea agreements, our

already overburdened criminal justice system would be in danger of collapse.

      Walsh waived her right to appeal her February 22, 2013 guilty plea

agreement by stipulating in her signed addendum to her guilty plea

agreement that she “waive[d] all appellate rights, direct and collateral and

state and federal in exchange for the plea agreement.” Guilty Plea Colloquy

Form, 2/22/13, p. 10. She further stipulated that she “w[ould] not contest

the sentence imposed on this 22nd day of February 2013.” Id. During the

guilty plea hearing on the same day, the Commonwealth emphasized that

Walsh’s waiver of appellate rights was an essential component of the guilty

plea agreement. Id., pp. 2, 7. Walsh agreed during the guilty plea hearing

that she was waiving “any ability to appeal anything that occurs in this




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proceeding.”     Id., p. 9.      Because Walsh entered into this agreement

knowingly, voluntarily, and intelligently, it is ironclad.

        We recognize that Walsh’s claims of illegality relating to the length of

her probation and amount of her restitution normally are appealable.

Criminal defendants generally cannot agree to an illegal sentence, even

sentences in connection with plea bargains. Commonwealth v. Gentry,

101 A.3d 813, 819 (Pa.Super.2014). This rule, however, has one exception:

a defendant can expressly agree to an illegal sentence as part of a

bargained-for exchange.         In Commonwealth v. Byrne, 833 A.2d 729

(Pa.Super.2003), the defendant was found guilty of first degree murder in

two separate trials but was awarded a new trial following each verdict. Prior

to his third trial, the Commonwealth agreed to allow him to plead guilty to

third   degree   murder    in   exchange   for   a   sentence   of   10-20   years’

imprisonment with only one year of credit for time served, even though the

defendant had been incarcerated for 8½ years. Almost one year after his

guilty plea, the defendant filed a PCRA petition alleging that he was entitled

to credit for time served under the mandatory credit provision, 42 Pa.C.S. §

9760. The PCRA court denied relief. This Court affirmed, reasoning that in

both his written guilty plea agreement and guilty plea hearing, the defendant

expressly (and thus knowingly, voluntarily and intelligently) accepted just

one year as credit for time served and agreed not to seek any additional

credit. Id. at 731-32, 735-36. We stated: “We are aware of no authority


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that provides an impediment to a defendant's express, knowing, and

voluntary waiver of a statutory right if that waiver is key in obtaining a

bargained-for exchange from the Commonwealth.” Id. at 736.

        The present case is analogous to Byrne. Assuming arguendo that the

amount of Walsh’s restitution is illegal, she expressly agreed to this amount

of restitution in her written plea agreement and during her guilty plea

hearing. Further, assuming arguendo that the length of probation is illegal,

she expressly agreed to this probationary term in her written agreement and

remained silent when the trial court stated this term during her guilty plea

hearing, even though she knew that she had already served three years of

parole and probation since her release from prison in May 2010.9 Finally, in

both her written agreement and her guilty plea hearing, she expressly

agreed not to appeal the amount of restitution or any other issue in this

case.    The Commonwealth made clear that her waiver of appellate rights



____________________________________________


9
  Walsh also knew the benefits that she received in her 2013 guilty plea.
She knew that she had pled guilty in 2010 to the first degree misdemeanor
of leaving the scene of an accident involving personal injury, but that her
2013 guilty plea was only to a second degree misdemeanor of fleeing and
eluding. She knew that her 2010 guilty plea to a first degree misdemeanor
carried a 90 day—23 month sentence of imprisonment, a one year
consecutive term of probation, and a potential sentence of five years’
imprisonment for any violation of probation or parole. Her 2013 guilty plea
to a second degree misdemeanor, however, only carried a two year term of
probation and a potential sentence of two years’ imprisonment for any
violation of probation.



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was an essential term of the agreement because of her history of

challenging guilty pleas.

      In view of Byrne, we conclude that Walsh expressly, knowingly and

voluntarily waived her right to challenge her restitution or the length of her

probation   as   part   of   obtaining    a   bargained-for   exchange   with   the

Commonwealth. Her dissatisfaction with the terms of this agreement does

not entitle her to seek PCRA relief. The Commonwealth agreed to her guilty

plea on condition that she would not file further appeals. It is essential for

the Commonwealth to receive this benefit, for its absence would discourage

the Commonwealth from entering into plea agreements with future

defendants – a price that our justice system is not prepared to pay.            We

decline to review the merits of any of Walsh’s claims on appeal; to do so

would reward Walsh for disregarding her promise in her guilty plea

agreement to refrain from seeking further collateral relief or from taking

additional appeals.     Instead, we simply affirm the order denying Walsh’s

second PCRA petition.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/15/2015

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