J-S57010-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
 KAREEM GEORGE                            :
                                          :
                    Appellant             :   No. 316 MDA 2019

              Appeal from the Order Entered January 17, 2019
    In the Court of Common Pleas of Dauphin County Criminal Division at
                      No(s): CP-22-CR-0002215-2005


BEFORE: BOWES, J., STABILE, J., and MUSMANNO, J.

MEMORANDUM BY BOWES, J.:                             FILED APRIL 03, 2020

      Kareem George appeals from an order entered on January 17, 2019,

denying Appellant’s petition to modify his sentence. After careful review, we

affirm.

      On December 19, 2002, Appellant and his cousin were at the Dragonfly

nightclub on Second Street in Harrisburg. See N.T. Guilty Plea and Sentencing

Hearing, 8/27/07, at 11. While at the nightclub, they got into a fight with

Donnell Haith, Luis Figueroa, Steven Graves, and Brian Neal (collectively, the

“victims”). Id. The bouncers separated the two groups and escorted them

out of the club. The men continued fighting outside of the club, until both

parties entered the parking garage across the street in order to retrieve their

vehicles. Id. Once in the garage, Appellant retrieved a handgun and began

firing it at the victims. Donnell Haith was struck and killed. Id. Appellant

and his cousin fled the parking garage. Id. at 12.
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        On August 27, 2007, Appellant entered into a negotiated guilty plea to

third-degree murder, flight to avoid apprehension, person not to possess a

firearm, carrying a firearm without a license, and three counts of recklessly

endangering another person.           In exchange for his guilty plea, the parties

agreed that Appellant would receive a sentence of fifteen to thirty years of

imprisonment for third-degree murder and the sentences imposed at the

remaining charges would run concurrently. The trial court accepted the plea

agreement and sentenced Appellant in accordance with its terms. Appellant

did not file a post-sentence motion or a direct appeal.

        On August 21, 2008, Appellant filed a timely pro se petition pursuant to

the Post-Conviction Relief Act (“PCRA”).          In his petition, Appellant alleged

ineffective assistance of counsel and claimed that he had obtained after-

discovered evidence that one of the Commonwealth’s preliminary hearing

witnesses had lied about being present at the shooting.              Appointed PCRA

counsel filed a motion requesting an evidentiary hearing.            The PCRA court

issued a Pa.R.Crim.P. 907 notice, indicating its intent to dismiss the petition

without a hearing. On October 22, 2009, the court denied Appellant’s PCRA

petition. After a Grazier1 hearing, Appellant filed a pro se appeal nunc pro

tunc.       We    affirmed     the    dismissal   of   Appellant’s   PCRA   petition.

Commonwealth v. George, 15 A.3d 532 (Pa.Super. 2010) (unpublished

memorandum).

____________________________________________


1   Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).

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        On December 24, 2012, Appellant filed a second PCRA petition. After

issuing the required Rule 907 notice, the PCRA court dismissed Appellant’s

second     petition   as   untimely.   We    affirmed   the   dismissal.   See

Commonwealth v. George, 96 A.3d 1091 (Pa.Super. 2014) (unpublished).

        On February 8, 2016, Appellant filed his third PCRA petition. He alleged

after-discovered evidence that his parole violation sentence was not running

concurrently to his third-degree murder sentence, which he argued was in

violation of the terms of his plea agreement. The PCRA court issued a notice

of intent to dismiss, and subsequently denied Appellant’s PCRA petition as

untimely. On appeal, we found that the issue should have been addressed as

a contract dispute and remanded for further proceedings consistent with our

memorandum. Commonwealth v. George, 181 A.3d 1213 (Pa.Super. 2017)

(unpublished).

        On remand, the sentencing court held an evidentiary hearing. Appellant

testified and both sides submitted post-hearing briefs. On January 17, 2019,

the court found that parole “back time” was not a term of Appellant’s plea

agreement and denied his petition to modify his sentence. Appellant filed a

notice of appeal. Both Appellant and the lower court complied with Pa.R.A.P.

1925.

        Appellant presents the following issue for our review:    “Whether the

lower court erred in its findings of facts which resulted in an erroneous

conclusion of law denying Appellant [procedural] due process to the relief

sought?” Appellant’s brief at 5. More specifically, Appellant alleges that he

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entered into a negotiated plea with the understanding that he would receive

an aggregate sentence of fifteen to thirty years that would run concurrently

with his parole violation sentence. Id. at 6. Since his sentence has been

applied consecutively to the parole “back time,” he argues that the terms of

his plea agreement have been violated. The lower court held that the parole

violation sentence was not a term of the plea agreement. We agree.

      “In determining whether a particular plea agreement has been

breached, we look to what the parties to this plea agreement reasonably

understood to be the terms of the agreement.” Commonwealth v. Fruehan,

557 A.2d 1093, 1095 (Pa.Super. 1989) (internal citations omitted). Such a

determination   is   made    “based   on    the   totality   of   the   surrounding

circumstances,” and “[a]ny ambiguities in the terms of the plea agreement

will be construed against the [Commonwealth].” Commonwealth v. Kroh,

654 A.2d 1168, 1172 (Pa.Super. 1995).

      The Commonwealth began the guilty plea hearing by laying out the

terms of the negotiated plea agreement, which offered a term of fifteen to

thirty years of imprisonment in exchange for Appellant’s plea to third-degree

murder and the other aforementioned charges.           See N.T. Guilty Plea and

Sentencing Hearing, 8/27/07, at 2. The prosecutor went on to acknowledge

that “there were some discussions about parole revocations and those sorts

of things” and that he hoped that the court could “clear up any questions”

Appellant had in this area. Id. at 3. Later, the prosecutor repeated the terms

of Appellant’s plea, as follows:

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     [Commonwealth]: There is a plea agreement. I’ve explained it
     to the [c]ourt. The Commonwealth agrees that you would receive
     a sentence for the charge of third degree murder of [fifteen] to
     [thirty] years in prison.   The remaining charges would run
     concurrent to that. Do you understand that?

     [Appellant]: Yes.

     [Commonwealth]: Then there has been some discussion, I guess
     now is the point to discuss it, that has been raised by your
     attorney concerning whether your sentences would run
     concurrent, consecutive or what would be the status to any
     potential parole hit that you have; is that correct?

     [Appellant]: Yes.

     [Commonwealth]: I don’t know if --

     [Plea counsel]: Your Honor, if I may, I think what we’ve decided,
     [Appellant] will correct me if I’m wrong here, is we would ask for
     the effective date of the sentence to be today, understanding that
     if something happens with state parole and he does not receive
     the proper credit for the time of his arrest until today’s date, we
     would be able to petition this [c]ourt to have the sentence
     corrected to reflect that.

     The Court: Okay.

     [Plea counsel]: We would ask as discussed at sidebar that you
     make this sentence run concurrently with the technical parole
     violation he’s already received from his green sheet of a one year
     sentence.

     The Court: To the extent that I can.

     [Plea counsel]: As you can by law. And then we would – I think
     that’s how we covered the parole issue. Am I right, [Appellant]?

     [Appellant]: Yes.

     The Court: The sentence will be effective today. That was no
     question. [Appellant], I just want to be crystal clear, to the extent
     that I can make it concurrent with your technical violations I would

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     do that. But I’m not even so sure I can do that. I just want to be
     clear with you that that may not happen. Do you understand that?

     [Appellant]: (Nods head).

     The Court: I’m recommending it. I’m stating that for the record.
     But that can be ignored by the Parole Board. Do you understand
     that?

     [Appellant]: Yes.

     The Court: I just don’t want you -- I want to be crystal clear about
     that. You understand it?

     [Appellant]: (Nods head).

     [Commonwealth]: Okay. Do you have any questions at this point
     in time about the plea agreement?

     [Appellant]: No.

N.T. Guilty Plea and Sentencing Hearing, 8/27/07, at 8-10.

     Further into the hearing, after the Commonwealth asked the Court if it

would accept the plea, the following discussion occurred:

     The Court: Sure. The plea agreement is the 15 to 30 years on
     the third degree murder, all the rest are concurrent. The issue
     with whether he gets credit or not on the underlying parole
     technical or the ultimate parole hit on the back time, that’s not
     part of the plea agreement, that if the Parole Board does not give
     you credit that’s not a condition of the plea agreement?

     [Plea counsel]: Right. We would note that you’re going to.

     The Court: I’m asking for it but I just want to make sure that
     portion –

     [Plea counsel]: Correct.

     Court: That’s what I don’t know and I don’t want that to be part
     of this, even though I’m going to do what you ask. That’s not a
     condition of his plea agreement.

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      [Plea counsel]: Right. We understand that.

Id. at 14-15.

      The sentencing hearing transcript, as summarized above, supports the

trial court’s denial of Appellant’s petition to modify sentence. Appellant was

informed multiple times during that hearing that the parole board could ignore

the sentencing court’s request to run the parole back time concurrently with

the sentence it was imposing on Appellant’s guilty plea. Id. at 14-15, 27.

The sentencing court also unambiguously stated that the only term of the plea

agreement was that Appellant would receive a sentence of fifteen to thirty

years of imprisonment at the third-degree murder charge and that the other

sentences imposed at this case would run concurrent to the murder charge.

Finally, the court explicitly reminded Appellant that the parole back time issue

was not a part of the plea agreement and that, while the trial court could

request that his sentence be run concurrent with the parole back time, it could

not guarantee that result. Throughout, Appellant repeatedly indicated that he

understood the terms of his plea agreement and agreed to be bound by them.

      Appellant counters that a later section of the hearing transcript belies

the lower court’s holding that the plea agreement did not include the parole

back time. See Appellant’s brief at 8. He contends that his due process rights

were violated when the sentencing court failed to consider the following

exchange in its analysis:

      The Court: I’ll give him credit from –

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      [Plea counsel]: We don’t want credit.

      The Court: Ultimately I want to be sure – you can file the petition
      to confirm those dates.

      [Plea counsel]: I will if we need to get into that.

      The Court: The sentence I just imposed is effective today’s date.
      To the extent that the Court can, this sentence can run
      concurrently with the sentence that the – parole sentence on the
      technical violations. That’s pursuant to the plea agreement.
      Anything else you want in that regard?

      [Plea counsel]: No, sir.

      The Court: That seems to me to comply not with the plea
      agreement but with what our discussion was.                 The full
      understanding that there’s – the Court may not have the authority
      to do that. And if we don’t, we’ll give [Appellant] the appropriate
      time credit. You’ll file your petition within [thirty] days to make
      that clear on the record. You both should agree to what that is.
      All right.

N.T. Guilty Plea and Sentencing Hearing, 8/27/07, at 27.

      Importantly, the above exchange followed a lengthy discussion wherein

the parties and the court attempted to discern what date Appellant was

arrested in connection with this case.       Ultimately, the sentencing court

encouraged the defense to petition for time credit with the proper dates if the

parole board refused to structure the sentence concurrently. Viewed in its

proper context, this exchange is consistent with the trial court’s earlier

pronouncement that the parole back time issue was not a part of the plea

agreement.    Accordingly, Appellant’s argument fails.      Since Appellant has

failed to persuade us that he did not receive the full benefit of the bargain to


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which he was entitled, we affirm the lower court’s denial of his motion to

modify sentence.2

       Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 04/03/2020




____________________________________________


2 Appellant also levels a contention that a previous memorandum by our court
determined that running the third-degree murder sentence concurrently with
the parole back time was a term of the plea agreement. Appellant’s brief at
12. This is a mischaracterization of our previous decision, which did not reach
the merits of Appellant’s argument. Instead, we remanded for proceedings to
clarify the scope of the plea agreement and so that the sentencing court could
“determine whether [Appellant] has received the benefit of his plea
agreement.” See Commonwealth v. George, 181 A.3d 1213 (Pa.Super.
2017) (unpublished). Therefore, this argument also has no merit.

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