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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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.                    :
                                            :
JERAM GEORGE RAMSAY,                        :            No. 753 EDA 2018
                                            :
                           Appellant        :


              Appeal from the Judgment of Sentence, January 11, 2018,
                 in the Court of Common Pleas of Delaware County
                  Criminal Division at No. CP-23-CR-0007581-2017



COMMONWEALTH OF PENNSYLVANIA                :     IN THE SUPERIOR COURT OF
                                            :           PENNSYLVANIA
                      v.                    :
                                            :
JERAM GEORGE RAMSAY,                        :            No. 928 EDA 2018
                                            :
                           Appellant        :


              Appeal from the Judgment of Sentence, January 11, 2018,
                 in the Court of Common Pleas of Delaware County
                  Criminal Division at No. CP-23-CR-0007944-2014


BEFORE: BENDER, P.J.E., OTT, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                      FILED MARCH 22, 2019

        In this consolidated appeal, Jeram George Ramsay appeals from the

January 11, 2018 judgments of sentence entered in the Court of Common

Pleas    of    Delaware    County   at   Docket   Nos.   CP-23-CR-0007581-2017

(“No. 7581 of 2017”) and CP-23-CR-0007944-2014 (“No. 7944 of 2014”).
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Appellant entered a negotiated guilty plea at No. 7851 of 2017 to 1 count

each of simple assault and terroristic threats1 and received 3 to 23 months

of incarceration followed by 1 year of probation. At the time of his arrest in

connection with the charges giving rise to his negotiated guilty plea at

No. 7851 of 2017, appellant was serving a term of probation at No. 7944 of

2014 for his conviction of possession with intent to deliver a controlled

substance (“PWID”).2 As a result of the pleas entered at No. 7851 of 2017,

the trial court determined that appellant directly violated the terms of his

probation at No. 7944 of 2014 and sentenced him to a term of incarceration

of 18 to 36 months. After careful review, we vacate appellant’s judgments

of sentence and remand for further proceedings.

        The trial court set forth the following:

              On October 9, 2014, [appellant] was arrested and
              charged with possession with intent to distribute
              various controlled substances, including heroin. On
              April 23, 2015, he entered into a negotiated plea
              agreement and was sentenced to serve three to
              23 months of incarceration followed by two years of
              probation.

              On September 2, 2017, while on probation, the
              Eddystone Police Department was summoned to the
              home of Kenneth Rafferty, who accused [appellant]
              of striking him in the face and throwing his clothing
              outside into the rain. [Appellant] was charged with
              simple assault, harassment and disorderly conduct.



1   18 Pa.C.S.A. §§ 2701(a)(1) and 2706(a)(1), respectively.

2   35 P.S. § 780-113(a)(30).


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           The District Attorney subsequently filed           an
           Information adding Count 2, terroristic threats.

           On September 7, 2017, [appellant] was again
           arrested for intentional possession of heroin. On
           November 27, 2017, he was convicted and
           sentenced to three years [of] probation.

           On January 10, 2018, the Adult Probation and Parole
           Services Department issued a Gagnon II[3] hearing
           report in which it charged [appellant] with violating
           the rules of his probation and recommended that he
           receive a new sentence of 9 to 23 months effective
           January 11, 2018.

           On January 11, 2018, [appellant] appeared before
           this Court. His counsel announced her intent “to
           waive his arraignment, proceed with a Fast-Track
           Plea as well as a Gagnon II Violation . . .” The
           Assistant District Attorney noted that the case would
           proceed as “a Negotiated Guilty Plea to Count 1,
           Simple Assault, a Misdemeanor of the Second
           Degree” and that the “recommended sentence”
           would be “3 months to 23 months.” The “Negotiated
           Guilty Plea” to Count 2, terroristic threats would
           result in a sentence of one[ ]year of probation, which
           would run consecutive to Count 1. The remaining
           counts would be dismissed.

           Defense counsel questioned her client, who
           confirmed his assent to the negotiated plea
           agreement and his understanding of the terms of the
           four-page Guilty Plea Statement. Said Statement
           contained the following provision, next to which
           [appellant] placed his initials:


3Gagnon v. Scarpelli, 411 U.S. 778 (1973); see also Commonwealth v.
Ferguson, 761 A.2d 613 (Pa.Super. 2000) (explaining that when parolee or
probationer is detained pending revocation hearing, due process requires
determination at pre-revocation hearing (Gagnon I hearing) of probable
cause to believe violation was committed, and upon finding of probable
cause, a second, more comprehensive hearing (Gagnon II hearing) follows
before the trial court makes final revocation decision).


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          ___ 20. If I was on probation or parole at the
                  time the crimes to which I am
                  pleading guilty or nolo contendere
                  were committed, my plea(s) in this
                  case mean that I have violated my
                  probation or parole and I can be
                  sentenced to jail for that violation in
                  addition to any sentences which I
                  may receive as a result of these
                  pleas.

          This Court then questioned [appellant], asking him
          whether he understood that if he were to “plead
          guilty in these cases, it’s going to be a violation of
          parole or probation.” [Appellant] expressed both his
          understanding and his assent.        This Court then
          accepted the plea and sentenced [appellant]
          according to its terms.

          At the ensuing Violation of Probation hearing, the
          Assistant District Attorney represented, and defense
          counsel agreed, that [appellant] stipulated “to Time,
          Date, Notice and the Violation and agree[d] to let
          [this Judge] hear this case instead of Judge Capuzzi,
          his original sentencing judge.”      Deputy Hibberd
          repeated the Gagnon II report’s recommendation
          that [appellant] receive a new sentence of 9 to 23
          months, but with an effective date of September 7,
          2017. [Appellant] advised the Court that in 2017, he
          was charged and convicted for the second time with
          possession of heroin.

          Upon     learning    that    [appellant]   had    two
          heroin-related convictions, this Court rejected the
          Probation       Department’s        recommendations.
          [Appellant] insisted that since being incarcerated, he
          has not used heroin.         He denied ever having
          undergone any drug treatment. Defense counsel
          asked that this Court abide by the Probation
          Department’s      recommendations      but    add    a
          requirement that [appellant] complete PREP 1 and 2
          programs. This Court rejected that proposal and,



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            instead, sentenced [appellant] on Count 4 of the
            2014 charges to a term of incarceration of 18 to
            36 months, no RRRI, with credit for time served from
            September 7, 2017.

            Defense counsel then filed a Motion to Withdraw the
            Negotiated Guilty Plea, in which she alleged that
            [appellant’s]    assent    was    based   upon   the
            recommendations of the Office of Adult Probation
            and Parole that he be sentenced to nine to
            23 months [of] incarceration.       She charged this
            Court with imposing an 18-36-month sentence
            without first giving her the opportunity to call
            witnesses, whom she failed to identify. She asserted
            that [appellant] did not knowingly, voluntarily and
            intelligently enter into the plea agreement. Defense
            counsel also filed a Motion to Vacate Sentence, in
            which she argued that if the Motion to Withdraw the
            Negotiated Plea were granted, then [appellant]
            would not be in violation of the terms of his
            probation on the 2014 charges. This Court denied
            both motions.

Trial court opinion, 4/19/18 at 1-44 (some brackets in original; record

citations omitted).

      The record reflects that appellant filed timely notices of appeal in both

dockets and that the trial court ordered appellant to file statements of errors

complained of on appeal pursuant to Pa.R.A.P. 1925(b).        Appellant timely

complied, and the trial court then filed its Rule 1925(a) opinions.

      On November 9, 2018, the Commonwealth filed an application to

consolidate the appeals docketed in this court at No. 753 EDA 2018 and




4 The trial court opinion does not contain pagination; for the ease of our
discussion, we have assigned each page a corresponding number.


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No. 928 EDA 2018 pursuant to Rule Pa.R.A.P. 513 because both appeals

involve the same parties and issue.           (Commonwealth’s application to

consolidate appeals, 11/9/18.) On January 7, 2019, this court entered an

order granting the Commonwealth’s motion to the extent that both appeals

will be disposed of in a single decision.        (Per curiam order of court,

1/7/19.)

        On appeal, appellant claims that the trial court erred in failing to grant

his motion to withdraw his negotiated guilty plea at No. 7581 of 2017

because the sentence imposed was not in accordance with the terms of the

negotiated plea, and consequently, appellant did not enter the plea

knowingly and intelligently.5 Appellant further complains that the trial court

erred in failing to grant his motion to vacate sentence at No. 7944 of 2014

because the sentence imposed for the direct probation violation was




5   Appellant frames this issue as follows:

              Whether the [trial] court erred in failing to grant
              appellant’s motion to withdraw negotiated guilty plea
              where his plea was not knowing and intelligently
              entered into due to the [trial] court imposing a
              sentence not in accordance with the negotiated
              terms of the plea[?]

Appellant’s brief at No. 753 EDA 2018 at 7 (full capitalization omitted).


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premised on appellant’s entry of an unknowing and unintelligent guilty plea

at No. 7581 of 2017.6

        Significantly, the Commonwealth agrees with appellant that “a

manifest injustice occurred and that [appellant] should have been permitted

to withdraw his plea because his plea was not knowing and intelligent.”

(Commonwealth’s briefs at 9.)        In its brief, the Commonwealth explains

that:

              [t]his case presents a unique situation in which a
              person is induced to plead guilty in an expedited
              proceeding that combines his sentencing for both his
              new arrest and his Gagnon II resentencing for a
              probation violation.

              Generally speaking, a Gagnon court can certainly
              sentence a defendant to a sentence greater than that
              which is recommended by Probation and Parole and
              the Commonwealth.       However, in a Fast Track
              proceeding where the negotiated Gagnon II
              sentence is part and parcel of a defendant’s
              negotiated guilty plea, then a defendant must be
              given the opportunity to withdraw his guilty plea in
              accordance with our Supreme Court’s holding in
              [Commonwealth v.] Wallace, [870 A.2d 838 (Pa.
              2004)], should the plea court refuse to accept both
              negotiated sentences.


6   Appellant frames this issue as follows:

              Whether the [trial] court erred in failing to grant
              appellant’s motion to vacate sentence where the
              sentence was imposed at a probation revocation
              hearing based on a direct violation which resulted
              from a legally deficient guilty plea that was under
              challenge in a motion to withdraw[?]

Appellant’s brief at No. 928 EDA 2018 at 7 (full capitalization omitted).


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           [Appellant] in this matter was told by both the Office
           of Probation and Parole and the Commonwealth that
           he would be sentenced to nine to 23 months of
           incarceration at his Gagnon II hearing (for his 2014
           PWID conviction) if he participated in the Fast Track
           program and entered a guilty plea to Simple Assault
           and Terroristic Threats for his 2017 arrest.
           [Appellant] was only present at the Fast Track
           proceeding because of agreements between all the
           parties as to what his sentence would be for both his
           guilty plea for the 2017 arrest and his Gagnon II
           sentence for the 2014 probation violation. Thus,
           when the plea court deviated from the negotiated
           sentence, it erred by refusing to allow [appellant] to
           withdraw his negotiated plea.

Commonwealth’s briefs at 8-9.

     In Wallace, our supreme court recognized that:

           [i]n the process of negotiating a guilty plea, the
           prosecutor may make promises to 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.” Commonwealth v. Zuber, 466 Pa.
           453, 353 A.2d 441, 444, n.4 (Pa. 1976); see also
           Commonwealth v. Wilkins, 442 Pa. 524, 277 A.2d
           341, 343 (Pa. 1971) (noting that under a negotiated
           plea agreement, the defendant “knew that he could
           not count on the court being bound by the
           recommendation [of sentence]”).          In fact, the
           presiding judge can still sentence the defendant to
           any term allowed under the Sentencing Code,
           provided that the defendant has the chance to
           withdraw his guilty plea if the judge’s sentence is not
           in accordance with his negotiated agreement.
           Pa.R.Crim.P. 591(A).

Wallace, 870 A.2d 838, 843 n.5.




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     Here, although the trial court imposed sentences permitted under the

Sentencing Code, the parties agreed that appellant’s sentence for the guilty

pleas that he entered at Nos. 7581 of 2017 and 7944 of 2014 would be 9 to

23 months. Because the trial court’s sentences were not in accordance with

the negotiated plea agreement, the trial court erred by not permitting

appellant to withdraw his guilty pleas.   We are, therefore, constrained to

vacate appellant’s judgments of sentence at Nos. 7581 of 2017 and 7944 of

2014 and remand for proceedings consistent with this memorandum.

     Judgment of sentence imposed at Docket No. CP-23-CR-0007581-

2017 vacated. Case remanded. Jurisdiction relinquished.

     Judgment of sentence imposed at Docket No. CP-23-CR-0007944-

2014 vacated. Case remanded. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary




Date: 3/22/19




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