J-S11023-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                            Appellee

                       v.

MARK CAPLE

                            Appellant              No. 1569 EDA 2015


             Appeal from the Judgment of Sentence May 18, 2015
             In the Court of Common Pleas of Montgomery County
              Criminal Division at No(s): CP-46-CR-0003148-2010
                            CP-46-CR-0007731-2014
                            CP-46-CR-0007738-2014


BEFORE: FORD ELLIOTT, P.J.E., OTT, J., and MUSMANNO, J.

MEMORANDUM BY OTT, J.:                               FILED MAY 10, 2016

        Mark Caple brings this appeal from the judgment of sentence imposed

on May 18, 2015, in the Court of Common Pleas of Montgomery County.

Pursuant to a plea agreement, Caple agreed to plead guilty to charges of

terroristic threats1 at Docket No. 7731-2014, and possession of a controlled

substance2 at Docket No. 7738-2014, admit to probation violations at Docket

Nos. 3145-2010, 3146-2010, 3147-2010, and 3148-2010, and serve a six-

to-23 month term of incarceration with five years’ probation, dating from

May 18, 2015. The terms of the plea agreement were jointly recommended

____________________________________________


1
    18 Pa.C.S. § 2706(a)(1).
2
    35 P.S. § 780-113(a)(16).
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to the trial court.3 The trial court accepted Caple’s pleas and stipulations to

probation violations, and sentenced Caple to 2 to 5 years’ incarceration plus

three years’ probation.        Caple contends the trial court erred in failing to

sentence him consistent with the terms of the plea agreement.4              Based

upon the following, we affirm.

       Caple does not challenge any aspect of the sentence, nor the validity

of the guilty plea.5     Rather, Caple challenges the legality of the sentence,

and presents the following question:6

       Whether the trial court erred in allowing [Caple] to be colloquied
       with regard to pleading guilty and thereafter accepting [Caple’s]
       guilty plea and admissions to his probation violations based on
       the terms and conditions as announced in open court by the
       prosecutor and defense, but, subsequent thereto, sentencing
____________________________________________


3
  As will be more fully discussed below, the crux of this appeal is the nature
of the plea agreement.          Caple contends there was an “agreed upon
sentence” or a “negotiated sentence.”           Caple’s Brief at 10–11.    The
Commonwealth states the terms of the plea agreement included a
sentencing recommendation, not an agreed upon sentence.                   See
Commonwealth’s Brief at 8.           The trial court refers to a “negotiated
sentence.” Trial Court Opinion, 6/30/2015, at 2. This appeal demonstrates
how essential it is to clarify the nature of the plea agreement.
4
  We note, as did the trial judge, that Caple “has taken the instant appeal
only as to the two new cases [Docket Nos. 7731-2014 and 7738-2014] and
one of the cases in which he admitted to violating the terms of his sentence
of probation [Docket No. 3148].” Trial Court Opinion, 6/30/2015, at 1.
5
 The record reflects Caple did not file a motion to withdraw his plea within
10 days of sentencing, or file a motion for reconsideration of sentence.
6
 Caple timely complied with the order of the trial court to file a Pa.R.A.P.
1925(b) statement of errors complained of on appeal.



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      [Caple] to a sentence that did not conform to the global
      negotiated guilty plea agreement as announced before [Caple]
      tendered his guilty plea and concomitant admission to probation
      violations.

Caple’s Brief at 7.

      Guilty pleas are governed by Pennsylvania Rule of Criminal Procedure

590, which provides, in pertinent part:

      (B) Plea Agreements

      (1) When counsel for both sides have arrived at a plea
      agreement, they shall state on the record in open court, in the
      presence of the defendant, the terms of the agreement, unless
      the judge orders, for good cause shown and with the consent of
      the defendant, counsel for the defendant, and the attorney for
      the Commonwealth, that specific conditions in the agreement be
      placed on the record in camera and the record sealed.


      (2) The judge shall conduct a separate inquiry of the defendant
      on the record to determine whether the defendant understands
      and voluntarily accepts the terms of the plea agreement on
      which the guilty plea or plea of nolo contendere is based.

Pa.R.Crim.P.    590(B).    Furthermore,     this   Court   has    explained   that

“Pennsylvania    law   allows   a   broad   continuum      in    plea   bargains.”

Commonwealth v. Parsons, 969 A.2d 1259, 1267 (Pa. Super. 2009).

      In an open plea agreement, there is an agreement as to the
      charges to be brought, but no agreement at all to restrict the
      prosecution’s right to seek the maximum sentences applicable to
      those charges. At the other end of the negotiated plea
      agreement continuum, a plea agreement may specify not only
      the charges to be brought, but also the specific penalties to
      be imposed. In between these extremes there are various
      options, including an agreement to make no recommendation or
      … an agreement to make a favorable but non-binding
      recommendation. So long as the limits of the agreement are
      plainly set forth on the record, understood and agreed to by


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      the parties, and approved by the trial court, we find no
      impediment in [Rule 590] to the offer, acceptance, performance
      or enforcement of such plea agreements.

Id. at 1267 (citations omitted) (emphasis in original).

      Here, we conclude Caple is not entitled to the relief he requests,

namely, the sentence placed on the record by the prosecutor at the guilty

plea hearing. Based upon the plain language of the plea colloquy, we find

the plea agreement involved an “agreement to make a favorable but non-

binding recommendation.” Id. at 1267 (citations omitted).

      Specifically, the written plea agreement contained the following

question:

      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?

Caple’s Guilty Plea Agreements, filed 5/18/2015, signed 5/12/2105, at 4,

¶24 (Docket Nos. 7731-2014, 7738-2014).        Caple checked the “Yes” line,

indicating he understood that particular provision of the plea agreement.

Additionally, Caple initialed at the bottom of the page on which the question

was found in the plea agreement and signed the plea agreement.

      On May 18, 2015, Caple appeared with counsel at the guilty plea

hearing, which began, as follows:

      [COMMONWEALTH ATTORNEY]: … In addition to the Gagnon
      files, which are indexed at 3145 of 2010, 3146 of 2010, 3147 of
      2010 and 3148 of 2010, I believe the defendant is pleading
      guilty to two new files today.

      THE COURT: Okay.

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     [COMMONWEALTH ATTORNEY]: And those are indexed at 7731
     of 2014 and 7738 of 2014.

     [DEFENSE COUNSEL]: That is my understanding, Your Honor.

     [COMMONWEALTH ATTORNEY]: On his new files, on 7738 of
     2014, the defendant is pleading guilty to possession.

     THE COURT: What’s the count?

     [COMMONWEALTH ATTORNEY]: Count is just Count 1, and the
     recommendation is one year probation and $300.00 fine and
     costs.

     THE COURT: What’s the drug?

     [COMMONWEALTH ATTORNEY]: Marijuana, synthetic marijuana.

     THE COURT: Okay.

     [COMMONWEALTH ATTORNEY]: And on the other file, 7731 of
     2014, defendant is pleading guilty to Count 1, terroristic threats,
     graded as a misdemeanor of the first degree.                   The
     recommendation is six to 23 months, plus three years
     consecutive probation. Defendant has to pay $1,000 in fines
     and costs, not to have any contact with the victim, and to go for
     a PPI evaluation and comply with the recommendation.

           On his Gagnon files, on 3147 of 2010, defendant’s five-
     year probation is to be revoked and reinstated. That’s on Count
     2.

          3146 of 2010, Count 2, defendant is remanded to serve his
     back time, which is 18 months and six days, to date from
     October 27 of 2014.

     …

     [COMMONWEALTH ATTORNEY]:          Eligible for re-parole after
     serving 12 months, and that is to be followed by a three-year
     consecutive probation.

     THE COURT: Okay.

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     [COMMONWEALTH ATTORNEY]: That same sentence should be
     imposed on Count 2 of 3147 of 2010. That’s on Count 2 of that
     file.

     THE COURT: That’s concurrent.

     [COMMONWEALTH         ATTORNEY]:     Concurrent,     correct,   Your
     Honor.

           And lastly, on 3148 of 2010, … the defendant is to undergo
     a five-year probation to date from today, and that is also to be
     concurrent with all the other sentences.

     [DEFENSE COUNSEL]: That is my understanding, Your Honor.

     THE COURT: That’s pretty generous. I don’t know if I’m going
     to accept it.

           Let’s have him come up here. We’ll swear him in up here
     please.

N.T., 5/18/2015, at 2–4.

     Caple was then sworn, was examined, and testified during the plea

colloquy. The colloquy included the following exchange:

     [DEFENSE COUNSEL]:      And you understand that you’re
     pleading guilty to the terms that the district attorney
     placed on the record a few moments ago?

     [CAPLE]: Yes.

     [DEFENSE COUNSEL]: Correct?

                  (Guilty plea colloquy marked Defendant’s Exhibit D-
     1, for identification.)

               [DEFENSE COUNSEL]:        Your Honor, I’ve marked a
     document as D-1.

                 THE COURT: Okay.


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J-S11023-16


                [DEFENSE COUNSEL]: May I approach?

                THE COURT: Yes.

     BY [DEFENSE COUNSEL]:

     Q. Mr. Caple, do you recognize this document?

     A. Yes.

     Q. Did you and I go over this document last week?

     A. Yes.

     Q. And did we go through each and every question of this
     document?

     A. Yes.

     Q. And were your answers truthful?

     A. Yes.

     Q. And now that you’re under oath, would they change?

     A. No.

     Q. Did you initial the bottom of each page?

     A. Yes.

     Q. And did you sign and date the last page?

     A. Yes.

               [DEFENSE COUNSEL]:         With that, Your Honor, I
     would move for the admission of D-1.

                THE COURT: Any objections?

                [COMMONWEALTH COUNSEL]:            No objection, Your
     Honor.

                THE COURT: D-1 is admitted.

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                 (Defendant’s Exhibit D-1, received in evidence.)

Id. at 6 (emphasis added).

     The trial court, following the colloquy, admonished Caple for his

probations violations and underlying charges, after the previous sentencing

judge gave him the opportunity to avoid state prison. The trial judge told

Caple:

     I read everything in here. This is just not about my stamping
     the paperwork of the probation officer and getting you on your
     way. I think county prison is just biding your time, until you hit
     the streets of Pottstown again, where you’ve been nothing less
     than a thug out there.

     Nothing is reaching you. You’re getting high. I don’t know what
     else to do with you. I don’t think a county prison is going to
     help you at all.

     So I’m not asking you to say anything. You got to hear it from
     my point of view. I’m a fresh pair of eyes on this picture, which
     is not a bad thing, but at the end of the day, I’ve got to stop
     you, because you’re just going to come back as far as I’m
     concerned. …

Id. at 16–17. The court reflected on the plea agreement:

     THE COURT: So I don’t know what you thought today. You
     have a wonderful lawyer. She’s trying to do damage control. Of
     course, she’s going to grab this recommendation.          I don’t
     understand it, why the PO [Probation Officer] would do this, I
     really don’t, and why the DA [District Attorney] is jumping on
     board with it, with a record like this, third violation, two new
     arrests. ….

Id. at 18–19. The Court later asked:

     THE COURT: … My question is, so the PO’s recommendation is what’s
     been stated by the DA?

     [DEFENSE COUNSEL]: Yes, Your Honor.

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J-S11023-16



Id. at 21.

         Thereafter, the judge stated on the record, “I’m going to have to take

a few minutes to go over the numbers to get this right,” and asked the court

clerk “to come in with her” to “fashion a sentence.” Id. at 22.

         When the court reconvened, the court accepted Caple’s guilty pleas for

the new cases, Docket Nos.        7731-2014 and 7738-2014.      In addition, the

court accepted Caple’s stipulations that he was in violation of probation and

parole at Docket Nos. 3145-2010, 3146-2010, 3147-2010, and 3148-2010,

and revoked his probation and parole on these dockets.          Id. at 25.    The

court gave Caple the opportunity for allocution, and Caple addressed the

court.    The court then spoke to Caple, concluding:

         I’m hopeful this is going to be an opportunity for you to get your
         act together, because I don’t think with this recommendation
         you were going to be able to do it. I don’t. I just don’t have
         that level of confidence in you to give you the opportunity for
         another county sentence.

Id. at 26. The trial judge then sentenced Caple to an aggregate term of two

to five years’ imprisonment. Id. at 26–28.

         On this record, there is no basis upon which to disturb the sentence

imposed by the trial court.      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. Wallace, 870 A.2d 838, 843 n.5 (Pa. 2005) (“In the

process of negotiating a guilty plea, the prosecutor may make promises to

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the defendant, for instance recommending a maximum sentence for the

crimes committed. Although the prosecutor is bound to act in accordance

with those promises, this in no way binds the presiding judge to the terms of

the agreement.”) (quotations and citation omitted).       Here, in light of

Question #24 of the written plea agreement, it is clear the judge had the

right to not impose the sentence that was jointly presented by Caple’s

counsel and the prosecutor. We also note that the judge fully explained her

reasons for not doing so.

       We are compelled to add, however, that Caple’s argument that he is

entitled to receive the sentence placed on the record at the outset of the

guilty plea hearing is understandable. Following the presentation of the plea

agreement, Caple was asked if he understood “that you’re pleading guilty to

the terms that the district attorney placed on the record a few moments

ago,” and Caple replied, “Yes.” N.T., 5/18/2015, at 6. This question could

be understood to imply that Caple was pleading guilty and admitting

probation violations in exchange for a specific agreed-upon sentence that

bound the court. Moreover, at the plea hearing, there was only a general

reference to the written plea agreement, confirming that Caple had reviewed

that agreement with his counsel, initialed each page, and signed it at the

end.

       In addition, the trial judge’s language at sentencing was confusing.

The trial judge stated with regard to the sentence for the case at Docket No.


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7731-14, “I am not going to accept the agreement between the lawyers.”

Id. at 26.     Then, with regard to the sentence for the case at Docket No.

7738-14,      the    judge    stated     that   she   “will   accept   the   lawyer’s

recommendation, agreement ….” Id. at 27. With regard to the sentence for

the probation violation at Docket No. 3148-10, the judge indicated she

would “keep that sentence, per the agreement, of five years’ probation to

date from today.” Id. at 28. Even in the trial court’s opinion, the trial judge

refers to the plea agreement as a “negotiated sentence,”7 and does not

indicate that the sentence presented at the guilty plea hearing was a

recommendation not binding upon the court.

        Where, as here, the judge had decided not to follow the recommended

sentence, this appeal may have been avoided if the trial judge had reiterated

to Caple that she was not bound by the sentence “upon which your attorney

and Assistant District Attorney have agreed.” Caple’s Plea Agreements, filed

5/18/2015, signed 5/12/2015, at 4, ¶24 (Docket Nos. 7731-2014, 7738-

2014).

        Judgment of sentence affirmed.

        Judge Musmanno joins the memorandum.

        President Judge Emeritus Ford Elliott concurs in the result.



____________________________________________


7
    Trial Court Opinion, 6/30/2015, at 2.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/10/2016




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