J-S20019-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                      IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                        Appellant

                   v.

EDGAR L. GUIHER, JR.,

                        Appellee                        No. 961 WDA 2015


               Appeal from the PCRA Order of June 8, 2015
            In the Court of Common Pleas of Crawford County
           Criminal Division at No(s): CP-20-CR-0000489-2013


BEFORE: PANELLA, OLSON and PLATT,* JJ.

MEMORANDUM BY OLSON, J.:                           FILED FEBRUARY 26, 2016

     The Commonwealth of Pennsylvania appeals from the order entered on

June 8, 2015, which granted the petition filed by Edgar L. Guiher, Jr.

(“Guiher”) pursuant to the Post-Conviction Relief Act (PCRA), 42 Pa.C.S.A.

§§ 9541-9546.     The    case   at   bar   is   controlled   by   our   opinion   in

Commonwealth v. Melendez-Negron, 123 A.3d 1087 (Pa. Super. 2015).

In accordance with Melendez-Negron, we hold that “the PCRA court erred

in the manner in which it granted relief[; w]e therefore vacate [Guiher’s]

guilty plea and remand for further proceedings.”       Melendez-Negron, 123

A.3d at 1089.

     On July 11, 2013, the Commonwealth filed a criminal information

against Guiher and charged him with the following crimes:                Count 1:

possession of a controlled substance with the intent to deliver (hereinafter



*Retired Senior Judge assigned to the Superior Court.
J-S20019-16



“PWID”) (alleging that Guiher “possess[ed] with [the] intent to manufacture

115 marijuana plants”); Count 2: PWID (alleging that Guiher “possess[ed]

with [the] intent to deliver 115 marijuana plants”); Count 3: possessing

instruments of crime (alleging that Guiher “possess[ed] personal body armor

while in the commission of [a felony]”); Count 4: receiving stolen property;

Count 5: possession of a controlled substance; and, Count 6: possession of

drug paraphernalia.1 Commonwealth’s Information, 7/11/13, at 1-2.

       On February 24, 2014, Guiher and the Commonwealth entered into a

negotiated plea agreement.          In accordance with this agreement, if Guiher

pled guilty to Count 1 (PWID) and agreed to be sentenced under the

mandatory minimum sentencing statute at 18 Pa.C.S.A. § 7508(a)(1)(ii), the

Commonwealth would agree to the following: Count 1 would be amended to

indicate “50 marijuana plants rather than 115” and the Commonwealth

would nolle pros the remaining counts. See N.T. Guilty Plea, 2/24/14, at 2-

4.

       On February 24, 2014, in accordance with the negotiated plea

agreement, Guiher pleaded guilty to the amended Count 1 and, on April 11,

2014, the trial court sentenced Guiher to serve the mandatory minimum

term of three to ten years in prison, and pay the mandatory minimum fine of


____________________________________________


1
   35 P.S. § 780-113(a)(30), 35 P.S. § 780-113(a)(30), 18 Pa.C.S.A.
§ 907(c), 18 Pa.C.S.A. § 3925(a), 35 P.S. § 780-113(a)(16), and 35 P.S.
§ 780-113(a)(32), respectively.



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$15,000.00, pursuant to 18 Pa.C.S.A. § 7508(a)(1)(ii).            N.T. Sentencing,

4/11/14, at 9-10; see also Sentencing Order, 4/14/14, at 1; Guideline

Sentence Form, 4/15/14, at 1. Guiher did not file a notice of appeal from his

judgment of sentence.

       On March 5, 2015, Guiher (through counsel) filed a timely PCRA

petition, where he claimed that he was entitled to relief because he was

serving an illegal sentence.        Specifically, Guiher claimed that his sentence

was illegal, as he was sentenced under an unconstitutional mandatory

minimum sentencing statute. Guiher’s PCRA Petition, 3/5/15, at 1; see also

Commonwealth v. Fennell, 105 A.3d 13 (Pa. Super. 2014) (holding that

18 Pa.C.S.A. § 7508 was wholly unconstitutional in light of Alleyne v.

United States, ___ U.S. ___, 133 S.Ct. 2151 (2013)).2,        3
                                                                  Guiher requested

that the PCRA court vacate his judgment of sentence and remand the case

for resentencing. Guiher’s PCRA Petition, 3/5/15, at 1.

       During the April 29, 2015 PCRA hearing, the Commonwealth argued

the following:

____________________________________________


2
  The United States Supreme Court decided Alleyne on June 17, 2013 and
this Court decided Fennell on November 21, 2014.
3
   In Alleyne, the United States Supreme Court held that, where an
“aggravating fact” increases a mandatory minimum sentence, “the fact is an
element of a distinct and aggravated crime. [The fact] must, therefore, be
submitted to the jury and found beyond a reasonable doubt.” Alleyne, 133
S.Ct. at 2162-2163.




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        Assuming arguendo that Alleyne is applicable and that
        [the] mandatory minimum sentence is [] unconstitutional
        even when you enter a plea, I certainly don’t think [Guiher]
        is entitled to a re-sentence.    Judge, this was a plea
        agreement. In that plea agreement, I amended Count 1
        from, I think, 115 marijuana plants down to 50. We also
        nol prossed Counts 2, 3, 4, 5, and 6 and in exchange,
        [Guiher] agreed to a three-year mandatory minimum
        sentence and that’s what we recommended. So the three-
        year minimum sentence was part and parcel of the
        agreement.

        I’m sure the [trial c]ourt is aware that even though a plea
        agreement arises in a criminal context, it is contractual in
        nature and should be analyzed under standard contract
        principles. . . . Certainly, in this case [Guiher] would be
        getting more than his bargain if he were simply now going
        to be re-sentenced on 50 plants when that wasn’t part of
        the original deal. Certainly, the [] prosecution would be at
        a severe disadvantage.

        He’s not entitled to more than a benefit of his bargain. . . .
        So I think the relief, if he is entitled to relief, is that he gets
        to withdraw his guilty plea and that the original criminal
        information comes back to life and we start from scratch.

N.T. PCRA Hearing, 4/29/15, at 7-8.

     By order entered June 8, 2015, the PCRA court granted Guiher’s PCRA

petition, vacated Guiher’s judgment of sentence, and remanded the case for

re-sentencing. PCRA Court Order, 6/8/15, at 1. However, the PCRA court

did not vacate Guiher’s guilty plea. See PCRA Court Opinion, 6/8/15, at 3-5.

     The Commonwealth filed a timely notice of appeal from the PCRA

court’s order. On appeal, the Commonwealth raises one claim:

        Whether the PCRA court erred as a matter of law when it
        granted a new sentencing hearing instead of declaring the
        original plea agreement null and void when the agreed upon
        sentence between the parties became illegal pursuant to


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         subsequent appellate court decisions, thus depriving the
         Commonwealth of the benefits of its original bargain with
         [Guiher]?

Commonwealth’s Brief at 6.

       We agree with the Commonwealth; here, the PCRA court erred when it

failed to vacate Guiher’s guilty plea and restore the case to its status prior to

the entry of the guilty plea.4,     5
                                        Indeed, the case at bar is controlled by our

opinion in Melendez-Negron, 123 A.3d at 1087.
____________________________________________


4
  We note that the Commonwealth does not claim that the PCRA court erred
when it granted Guiher post-conviction relief. The Commonwealth only
contends that the PCRA court erred “in the manner in which it granted
relief.”   Melendez-Negron, 123 A.3d at 1089.              Specifically, the
Commonwealth claims that the PCRA court erred when it failed to completely
vacate the guilty plea in this case. Commonwealth’s Brief at 6 and 13.
5
  According to the PCRA court, the Commonwealth is not entitled to relief
because: 1) the court’s June 8, 2015 order (wherein it granted Guiher’s
PCRA petition) is an interlocutory order; and 2) the Commonwealth “only
recommended a [mandatory minimum] sentence and did not negotiate for a
specific sentence.” PCRA Court Opinion, 6/8/15, at 4; PCRA Court Opinion,
7/21/15, at 1. Both of these contentions are incorrect. Pa.R.Crim.P. 910
(“[a]n order granting, denying, dismissing, or otherwise finally disposing of a
petition for post-conviction collateral relief shall constitute a final order for
purposes of appeal”); 18 Pa.C.S.A. § 7508(c) (“[t]here shall be no authority
in any court to impose on an offender to which this section is applicable a
lesser sentence than provided for herein”); see also Commonwealth v.
Wallace, 870 A.2d 838, 843 n.5 (Pa. 2005) (“[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, 353 A.2d 441, 444 n.4 (Pa. 1976); see also
Commonwealth v. Wilkins, 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
(Footnote Continued Next Page)


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      In Melendez-Negron, Melendez-Negron was charged with a variety of

drug-related crimes.         In accordance with a negotiated plea agreement,

Melendez-Negron pled guilty to PWID and, on November 15, 2013, the trial

court sentenced him to serve a term of five to ten years in prison, pursuant

to the mandatory minimum sentencing statute found at 42 Pa.C.S.A.

§ 9712.1. Id. at 1089. Melendez-Negron did not file a direct appeal from

his judgment of sentence. However, Melendez-Negron filed a timely PCRA

petition, where he claimed that “his sentence was unconstitutional, and

therefore illegal, in light of [Alleyne].”        Id.   Melendez-Negron requested

that the PCRA court vacate his sentence and remand the case for

resentencing; he did not request that the PCRA court permit him to withdraw

his guilty plea. Id. at 1091 n.7.

      The PCRA court granted Melendez-Negron’s PCRA petition, vacated his

sentence, and remanded the case for resentencing.                The Commonwealth

filed a notice of appeal and claimed, amongst other things, that the PCRA

court erred when it merely vacated Melendez-Negron’s sentence and

remanded the case for resentencing.               Id. at 1090.    According to the

Commonwealth, if the PCRA court were going to grant Melendez-Negron

relief, the PCRA court was required to vacate Melendez-Negron’s entire guilty
                       _______________________
(Footnote Continued)

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)”).




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plea and “return[ the case] to the status quo prior to the entry of the guilty

plea.”    Id. at 1091.   As the Commonwealth argued:     “in consideration of

agreeing to a five-to-ten-year period of incarceration, [the Commonwealth]

gave up the opportunity to seek sentences on the drug paraphernalia and

small amount of marijuana charges.         By simply allowing resentencing

pursuant to the sentencing guidelines, the Commonwealth . . . [lost] the

benefit of its bargain.”     Id. at 1092 (internal quotations and citations

omitted).

         We agreed with the Commonwealth and concluded that – even though

Melendez-Negron did not request that his guilty plea be vacated – the PCRA

court erred when it failed to vacate the entirety of Melendez-Negron’s guilty

plea and restore the case to its status prior to the entry of the guilty plea.

Id. at 1091-1092.

         Within our opinion, we analogized the case to our prior opinions in

Commonwealth v. Hodges, 789 A.2d 764 (Pa. Super. 2002) and

Commonwealth v. Lenhoff, 796 A.2d 338 (Pa. Super. 2002).              In both

Hodges and Lenhoff, the defendants, the Commonwealth, and the trial

court judges were all under the mistaken belief that the defendants were

subject to more severe statutory maximum sentences than that which the

trial court had the authority to impose. See Hodges, 789 A.2d at 765 (the

parties mistakenly believed that the defendant was subject to the death

penalty when, “because of [the defendant’s] age, the death penalty was

never applicable”); Lenhoff, 796 A.2d at 342-343 (the parties mistakenly

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believed that the defendant committed a second-degree felony, when the

defendant actually committed a third-degree felony). The defendants then

pleaded guilty in order “to avoid [a] sentence . . . [that] the [trial] court did

not have the legal authority to impose.” Lenhoff, 796 A.2d at 342-343. As

we held in both Hodges and Lenhoff, the defendants were entitled to

withdraw their guilty pleas, as “[t]he entire process of [the] plea

negotiations . . . was affected by [the] . . . [statutory maximum sentencing

calculation] error.”   Hodges, 789 A.2d at 767.

      Utilizing this precedent, the Melendez-Negron Court held:

        This case is fundamentally akin to Hodges and Lenhoff;
        where it differs is that it is the Commonwealth, not the
        defendant, who argues that it is being deprived of the
        benefit of its bargain. We see no reason why the rationale
        of Hodges and Lenhoff should be limited to criminal
        defendants.     Indeed, both parties to a negotiated plea
        agreement are entitled to receive the benefit of their
        bargain. See Commonwealth v. Townsend, 693 A.2d
        980, 983 (Pa. Super. 1997) (“[W]here the parties have
        reached a specific sentencing agreement . . . the court
        cannot later modify the terms of the agreement without the
        consent of the Commonwealth” because “this would deny
        the Commonwealth the full benefit of the agreement which
        it reached . . . and the defendant, in turn, would receive a
        windfall.”); Commonwealth v. Coles, 530 A.2d 453 (Pa.
        Super. 1987) (holding that granting defendant’s motion to
        modify negotiated plea sentence stripped Commonwealth of
        the benefit of its bargain). . . . Accordingly, we conclude
        that the shared misapprehension that the mandatory
        minimum sentence required by [42 Pa.C.S.A. § 9712.1]
        applied    to    Melendez–Negron     tainted   the   parties’
        negotiations at the outset. As in Hodges and Lenhoff, the
        parties’ negotiations began from an erroneous premise and
        therefore were fundamentally skewed from the beginning.
        Thus, while we affirm the PCRA court’s order vacating


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        Melendez–Negron’s sentence, we further vacate his guilty
        plea and remand for further proceedings.

Melendez-Negron, 123 A.3d at 1093-1094.

      The same is true in the case at bar.        In this case, Guiher and the

Commonwealth      entered    into   plea    negotiations   under   “the   shared

misapprehension that the mandatory minimum sentence required by [18

Pa.C.S.A. § 7508] applied to” Guiher’s case.        Id.    This misapprehension

“tainted the parties’ negotiations at the outset.” Id. Therefore, consistent

with Melendez-Negron, we conclude that – since “the parties’ negotiations

began from [the] erroneous premise” that Guiher was subject to the

mandatory minimum sentencing statute found at 18 Pa.C.S.A. § 7508 – the

PCRA court erred when it failed to vacate Guiher’s guilty plea and restore the

case to its status prior to the entry of the plea. Id.

      Order vacated in part.        Guilty plea vacated.       Case remanded.

Jurisdiction relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/26/2016




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