J-A14038-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :         PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    ZANE RICHARD CLEVER,                       :
                                               :
                       Appellant               :      No. 1469 WDA 2018

         Appeal from the Judgment of Sentence Entered July 24, 2018
             in the Court of Common Pleas of Armstrong County
            Criminal Division at No(s): CP-03-CR-0000340-2017

BEFORE: OTT, J., KUNSELMAN, J., and MUSMANNO, J.

MEMORANDUM BY MUSMANNO, J.:                            FILED AUGUST 23, 2019

        Zane Richard Clever (“Clever”) appeals from the judgment of sentence

imposed following his guilty plea to involuntary manslaughter and conspiracy

to commit delivery of a controlled substance.1 We affirm.

        On October 23, 2016, Angela Wright, the victim in this case, was found

deceased after overdosing on a mixture of heroin and fentanyl purchased from

a third-party. In investigating her death, it was learned that Clever drove the

third-party to the victim’s residence in order to facilitate the sale.

        Clever stipulated to these facts and pled guilty, in exchange for reduced

charges and a recommended sentence of 16 to 36 months in prison, to be

followed by two years’ probation. The plea agreement stated, in relevant part:

        [A]ny sentence recommended by the attorney for the
        Commonwealth is a recommendation only, and [] the judge
____________________________________________


1   18 Pa.C.S.A. §§ 2504, 903; 35 P.S. § 780-113(a)(30).
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      imposing sentence may or may not follow any such
      recommendation…. [F]inal sentencing authority is with the judge
      imposing sentence….      [T]he [c]ourt’s failure to sentence in
      accordance with the Commonwealth’s recommendations shall not
      be a basis for withdrawing any plea.

Plea Agreement, 6/1/18, at 1 (unpaginated) (emphasis in original).

      In his written guilty plea colloquy, Clever indicated that he “completely

[understood] the terms of the plea agreement” and knew “that the judge [did]

not have to go along with any sentencing recommendation or plea agreement

made by the [Commonwealth].” Guilty Plea Questionnaire, 6/8/18, at 3.

      Prior to accepting the plea agreement, the trial court questioned Clever

as   to   his   understanding   that   the   reduced   sentence   was   merely   a

recommendation.        See N.T., 6/7/18, at 12.        Clever responded in the

affirmative. See id.

      After reviewing a Pre-Sentence Investigation (“PSI”) report, the trial

court noted Clever’s nearly continuous 20-year criminal history, rejected the

Commonwealth’s recommendation, and sentenced Clever to 24 to 48 months

in prison. The trial court also ordered Clever to pay $555 in restitution, and

serve 2 years of probation consecutive to his prison term. Clever then filed a

Post-Sentence Motion seeking to withdraw his guilty plea, which the trial court

denied. Clever filed a timely Notice of Appeal and a court-ordered Pa.R.A.P.

1925(b) Concise Statement.

      On appeal, Clever raises the following claims for our review:




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      I.     Did the [trial] court err by imposing a sentence in excess of
             the terms of the negotiated plea agreement[,] which had
             been accepted by the court?

      II.    Did the [trial] court err by imposing restitution as a part of
             the sentence, when the payment of restitution was not a
             part of the negotiated plea agreement[,] which had been
             accepted by the court?

      III.   Did the [trial] court err by not providing [Clever] an
             opportunity to withdraw his guilty plea prior to imposing a
             sentence in excess of the terms of the negotiated plea
             agreement[,] which had been accepted by the court?

Brief for Appellant at 2 (claims re-numbered).

      For ease of disposition, we address Clever’s first and second claims

simultaneously, as they involve different aspects of the same issue, i.e., the

imposition of a sentence that deviates from the recommended sentence

outlined in the plea agreement. Specifically, Clever argues that the trial court

erred by sentencing him to 24 to 48 months in prison, instead of the

recommended 16 to 36 months, and by ordering him to pay restitution.

See Brief for Appellant at 10-15.

      Clever claims that the trial court was bound by the Commonwealth’s

recommendation because the trial court indicated its acceptance of the plea

agreement in chambers, prior to accepting the plea agreement in open court.

Id. at 10. This, he contends, converted the plea agreement from a tentative

proposal to a binding agreement. Id.     Moreover, Clever argues that the trial

court’s formal acceptance of the plea, in open court, “created reasonable

expectations … that its negotiated terms would be followed.” Id. Accordingly,


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Clever asserts, the guilty plea was a stipulated plea that required the trial

court to impose the exact sentence contemplated in the plea agreement. Id.

      In addition, Clever contends that, even if the sentence were a

recommendation,      “Pennsylvania    courts   have    held   that   a   sentence

recommendation is among the terms of a plea bargain.” Id. at 11. Therefore,

the trial court was mandated to abide by the terms of the agreement. Id.

            Our standard of review following a plea of guilty is well-
      settled. A plea of guilty constitutes a waiver of all nonjurisdictional
      defects and defenses and waives the right to challenge anything
      but the legality of the sentence and the validity of the plea. As
      [Clever’s first two] issues present challenges to the legality of his
      sentence, our scope and standard of review is … plenary and is
      limited to determining whether the trial court committed an error
      of law.

Commonwealth v. Luciani, 201 A.3d 802, 806-07 (Pa. Super. 2018)

(citations, brackets, and quotation marks omitted).

      We initially note that the trial court’s alleged acceptance of the

proposed terms of the plea agreement, in chambers, off the record, is not only

disputed by the trial court, but also immaterial to our determination. See

Trial Court Opinion, 11/9/18, at 7. We agree with the trial court insofar as

“those proceedings are not of record and their contents are not part of the

plea agreement.”     Id.; see also Pa.R.A.P. 1921, Note (stating that an

“appellate court may consider only the facts which have been duly certified in

the record on appeal,” citing Commonwealth v. Young, 317 A.2d 258, 264

(Pa. 1974)). We further note that even if the trial court had accepted the




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tentative plea agreement, for the reasons set forth below, the agreement was

merely that the Commonwealth would recommend a particular sentence.

      Similarly, the trial court’s acceptance of the plea agreement in open

court did not embrace a particular sentence. The express terms of Clever’s

plea agreement demonstrate that the 16 to 36-month sentence was intended

to be a recommendation. See Plea Agreement, supra. At his colloquy, and

in his guilty plea questionnaire, Clever specifically acknowledged that the trial

court was not bound by the Commonwealth’s recommendation and had the

authority to impose a sentence greater than, or different from, the

recommended sentence contained in the plea agreement. See N.T., 6/7/18,

supra; see also Guilty Plea Questionnaire, supra. The record indicates that

the trial court never accepted a specific sentence as a term of the plea

agreement. Rather, the trial court accepted the reduction of certain charges,

alongside a sentence recommendation, as a term of the plea agreement. As

such, we discern no error and cannot afford Clever relief on his first two claims.

       In his third claim, Clever argues that the trial court erred by failing to

afford him the opportunity to withdraw his guilty plea prior to sentencing.

Brief for Appellant at 16-18.

      “There is no absolute right to withdraw a guilty plea, and the decision

as to whether to allow a defendant to do so is a matter within the sound

discretion of the trial court.” Commonwealth v. Pollard, 832 A.2d 517, 522

(Pa. Super. 2003) (citations and quotation marks omitted).


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     A defendant’s request to withdraw a guilty plea should be “liberally

granted” when sought prior to sentencing, however, when a defendant seeks

to withdraw a guilty plea after sentencing, the request must be reviewed from

a stricter standard. Commonwealth v. Pardo, 35 A.3d 1222, 1227-28 (Pa.

Super. 2011). Once a sentence has been imposed, a defendant should be

permitted to withdraw his guilty plea only to correct a manifest injustice.

Commonwealth v. Muhammad, 794 A.2d 378, 383 (Pa. Super. 2002).

     “The terms of a plea agreement may also determine a defendant’s right

to withdraw a guilty plea.”   Pardo, 35 A.3d at 1227.     Where a defendant

understands that a recommended sentence is merely a recommendation, i.e.,

not binding, a plea agreement may preclude a defendant from using an

unsatisfactory sentence as a basis for withdrawal of the guilty plea. See id.

at 1228 (wherein the Court enforced a plea agreement’s specific waiver

language when the defendant attempted to withdraw a guilty plea post-

sentence).

     In the instant case, Clever did not seek to withdraw his guilty plea until

after sentencing.     Clever’s plea agreement specifically stated that “the

[c]ourt’s failure to sentence in accordance with the Commonwealth’s

recommendations shall not be a basis for withdrawing any plea.” See Plea

Agreement, supra (emphasis in original).      The record demonstrates that

Clever   understood    that   the   recommended    sentence    was   a   mere

recommendation, from which the trial court could depart.      See Guilty Plea


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Questionnaire, supra; see also N.T., 6/7/18, at 12. Accordingly, the express

language of Clever’s guilty plea, as understood by Clever, precluded him from

withdrawing   his   plea   based   on    the   trial   court’s   rejection   of   the

Commonwealth’s recommendation.            We therefore discern no abuse of

discretion on behalf of the trial court in denying Clever’s Post-Sentence Motion

to withdraw his plea.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/23/2019




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