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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.                          :
                                                 :
SEAN JOSEPH GRAHAM,                              :
                                                 :
                            Appellant            :
                                                 :      No. 1041 WDA 2015

                   Appeal from the Order Dated June 9, 2015
         in the Court of Common Pleas of Blair County Criminal Division
                      at No(s): CP-07-CR-0000871-2012
                                 CP-07-CR-0001009-2011
                                 CP-07-CR-0001228-2013
                                 CP-07-CR-0001561-2012

BEFORE: LAZARUS, STABILE, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                              FILED MARCH 30, 2016

        Appellant, Sean Joseph Graham, appeals from the order that denied

his petition to withdraw his guilty plea nunc pro tunc. Appellant claims he

did    not receive    the   benefit     of his   plea   bargain,   namely,   that his

girlfriend/codefendant would retain ownership of her bar if she pleaded

guilty to misdemeanor charges. We affirm.

        Appellant was charged in four separate cases: two involving drug

trafficking offenses and two involving assault and harassment offenses.1



*
    Former Justice specially assigned to the Superior Court.
1
  Specifically, CR-1009-2011 involved drug and gun charges related to a
search of a residence shared by Appellant and his girlfriend/codefendant,
Melissa Shaw.     CR-1561-2012 involved drug charges arising out of a
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Appellant’s girlfriend was a codefendant based on the discovery of narcotics,

paraphernalia,   and   firearms   in   Appellant’s   and   codefendant’s   shared

residence.

      On September 27, 2013, Appellant and codefendant appeared at a

guilty plea hearing.   As discussed more fully below, the Commonwealth

extended the following plea offers: (1) to Appellant, an aggregate sentence

recommendation of ten to twenty five years’ imprisonment for all cases and

(2) to codefendant, a sentence recommendation of twenty-three months’

and five years’ probation for one felony conspiracy to commit possession

with intent to deliver. However, the parties agreed that Appellant, against

the advice of his counsel, Steven P. Passarello, Esq., was willing to accept a

more severe sentence of fifteen to thirty years’ imprisonment, if codefendant

could enter a plea to misdemeanor charges.           Appellant explained he was

accepting a more severe plea bargain, “[j]ust hopefully so my girlfriend

doesn’t lose her bar and because it was all my fault.” N.T. Guilty Plea H’rg,

9/27/13, at 20.    The trial court accepted the modified plea bargain and

Appellant’s guilty plea.   Appellant waived a presentence investigation and

was sentenced that same day.2




controlled purchase of cocaine. CR-871-2012 and CR-1561-2012 involved
assaults and harassment charges.
2
 After sentencing Appellant, the trial court accepted codefendant’s plea to
misdemeanor drug charges.



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     Appellant did not file post-sentence motions or take a direct appeal.

On February 25, 2014, Attorney Passarello filed a motion to withdraw

Appellant’s plea nunc pro tunc, asserting Appellant was unduly influenced by

codefendant. On April 1, 2014, Attorney Passarello filed an amended motion

asserting Appellant would not have accepted the plea offer if he knew

Alleyne v. United States, 133 S. Ct. 2151 (2013), rendered mandatory

minimum sentencing provisions unconstitutional.

     On June 6, 2014, the trial court held a hearing on the motion and on

July 2, 2014, entered an opinion and order denying Appellant’s request to

withdraw his plea.   In denying Appellant’s claim that codefendant unduly

influenced his plea, the court observed that Appellant agreed to the more

severe plea offer “in return for the Commonwealth reducing charges to

misdemeanor charges for [codefendant] so that [codefendant] would not

lose her liquor license.” Trial Ct. Op., 7/2/14, at 3. It noted, “[Appellant]

acknowledged to date, [codefendant] has been able to retain her liquor

license and operate her bar.” Id. It concluded, “[W]e are fully satisfied that

Appellant “received the ‘benefit of the bargain’ . . . and that his plea was

entered knowingly, intelligently, and voluntarily.”   Id.   Appellant filed a

timely notice of appeal, and the court appointed present counsel for the

purposes of this appeal. On November 6, 2014, Appellant discontinued his

appeal from the July 2nd order.




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      On December 8, 2014, present counsel filed the instant petition to

withdraw Appellant’s guilty plea nunc pro tunc. Appellant asserted that on

July 21, 2014, an administrative judge adjudicated a complaint filed by the

Pennsylvania Liquor Control Board (“PLCB”), and based on her drug

conviction, ordered her to place her liquor license in safekeeping for transfer.

Appellant alleged codefendant has since relinquished her license.      He thus

argued his plea was unknowing, unintelligent, and involuntary because,

“[h]ad [he] known that [codefendant] would lose her liquor license

regardless of which offer he accepted, [he] would not have agreed to” the

more severe offer.” Pet. to Withdraw Guilty Plea Nunc Pro Tunc, 12/8/14, at

36-37.

      On June 4, 2015, the trial court held a hearing on the motion, at which

codefendant and Appellant testified. On June 9, 2015, the trial court denied

Appellant’s motion. Appellant timely appealed and complied with the court’s

order to submit a Pa.R.A.P. 1925(b) statement.

      Appellant presents the following question for review: “Whether

Appellant was entitled to withdraw his guilty plea after the imposition of

sentence?” Appellant’s Brief at 4. Appellant argues that he “did not receive

the benefit of the bargain relative to the plea agreement envisioned by all

interested parties—[Appellant], the Commonwealth, and [codefendant].”

Id. at 12. He asserts he “was unaware of the most pertinent fact concerning

his decision—the viability of [codefendant’s] liquor license after her plea and



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sentencing . . . .” Id. at 14. Thus, he contends he demonstrated “manifest

injustice” warranting a withdrawal of his plea. See id. at 15.

      “[I]t is well settled that ‘where a plea bargain has been entered into

and is violated by the Commonwealth, the defendant is entitled, at the least,

to the Benefit of the bargain.’” Commonwealth v. Zuber, 353 A.2d 441,

444 (Pa. 1976) (citation omitted). To withdraw a plea following sentence, a

defendant must show manifest injustice, namely, that his plea was

unknowing, unintelligent, or involuntary. Commonwealth v. Broaden, 980

A.2d 124, 129 (Pa. Super. 2009); Commonwealth v. Hodges, 789 A.2d

764, 765 (Pa. Super. 2002). We review the denial of a motion to withdraw a

plea for an abuse of discretion.3 See Commonwealth v. Muhammad, 794

A.2d 378, 382 (Pa. Super. 2002).


3
   We note there are four generally recognized means for a defendant to
challenge a guilty plea following the imposition of sentence.      First, a
defendant may timely file a post-sentence motion seeking withdrawal of his
plea. See Pa.R.Crim.P. 702(B)(1)(a)(i). Second, once a conviction becomes
final, a defendant may file a Post Conviction Relief Act (“PCRA”) petition
asserting he is innocent and his plea was unlawfully induced. See 42
Pa.C.S. § 9543(a)(2)(iii). Third, a defendant may filed a PCRA petition
asserting his counsel was ineffective. See 42 Pa.C.S. § 9543(a)(2)(ii).
Fourth, a defendant may file a petition to enforce a plea bargain without
withdrawing his plea. See Commonwealth v. Hainesworth, 82 A.3d 444,
447, 450 (Pa. Super 2013) (en banc).

       Instantly, Appellant did not timely seek withdrawal of his plea, assert
he was innocent, or claim counsel’s ineffectiveness. Further, he did not seek
enforcement of any offer or agreement. Thus, Appellant’s specific claim did
not fall squarely within the four recognized categories for challenging the
validity of a guilty plea. However, it would appear that Appellant’s claims
should have been brought under the PCRA. Nevertheless, we will review the



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     A claim that a party has breached a plea agreement requires contract

law analysis. See Commonwealth v. Hainesworth, 82 A.3d 444, 447 (Pa.

Super 2013) (en banc)..

        Because contract interpretation is a question of law, this
        Court is not bound by the trial court’s interpretation. Our
        standard of review over questions of law is de novo and to
        the extent necessary, the scope of our review is
        plenary . . . . However, we are bound by the trial court’s
        credibility determinations.

Gillard v. Martin, 13 A.3d 482, 487 (Pa. Super. 2010) (citations omitted).

     Parties must state the terms of a plea agreement on the record and in

the presence of the defendant.    Pa.R.Crim.P. 590(B)(1).   “If a trial court

accepts a plea bargain, the defendant who has given up his constitutional

right to trial by jury must be afforded the benefit of all promises made by

the district attorney.” Hainesworth, 82 A.3d at 449 (citation omitted).

        [D]isputes over any particular term of a plea agreement
        must be resolved by objective standards. A determination
        of exactly what promises constitute the plea bargain must
        be based upon the totality of the surrounding
        circumstances and involves a case-by-case adjudication.

        Any ambiguities in the terms of the plea agreement will be
        construed against the Government.

Commonwealth v. Kroh, 654 A.2d 1168, 1172 (Pa. Super. 1995) (citations

omitted).




merits of this appeal in light of the procedural history and unique
circumstances of Appellant’s claims.



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      Instantly, the nature and terms of the plea offers were set forth in the

record as follows:

         [Commonwealth’s counsel]: [S]o if [Appellant] is taking
         the ten to twenty-five, which is what the Commonwealth
         has always said that the recommendation was the
         agreement for [codefendant] or the offer would be the
         what did I say nine to twenty-three plus five for the
         conspiracy to PWID. If [Appellant] was entertaining the
         fifteen to thirty the offer would be I would imagine it would
         be several misdemeanors you know drug misdemeanors or
         drug conspiracy mis—well one conspiracy misdemeanor.
         How we’d work that out to get to [the District Attorney’s]
         one to two less a day plus five, but that was predicate the
         whole time on the fifteen to thirty which again I think.
         [Appellant’s counsel] put on record he would not advise
         [Appellant] to do, and I would put on the record I was not
         asking or advising [Appellant] to do.           It was my
         understanding it was a request by [Appellant] and
         [codefendant] that that be entertained because I don’t—I
         want to make the record clear that the Commonwealth you
         know is not trying to pigeon hole [Appellant] in essence.

                                 *    *     *

         [Appellant’s counsel]: Just so I’m clear cause I am very
         confused. If he does the fifteen which I’m going to tell the
         Court clearly is against my legal advice and I’m going to
         put that on the record.

         BY THE COURT: Right.

         [Appellant’s counsel]: She will be receiving a misdemeanor
         for a county sentence with work release.

         [Commonwealth’s     counsel]:    They   would   have   to   be
         several.

         [Appellant’s counsel]: Several misdemeanors for a county
         sentence.

         [Commonwealth’s counsel]: One to two plus five.



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        [Appellant’s counsel]: With work release.

        [Commonwealth’s counsel]: Correct.

        [Appellant’s counsel]: If he takes the ten, she receives a
        felony.

        [Commonwealth’s counsel]: One felony nine to twenty-
        three plus five so less time.

        [Appellant’s counsel]: Less time but a felony.

                                 *       *     *

        [Commonwealth’s counsel]: Judge I want to be just
        clear on the record, and I understand I think a lot of
        this is about her ownership of Shaw’s bar. It’s always
        been the Commonwealth’s position that the cocaine came
        from the residence and the bar was not involved, and I’ve
        indicated from you know to [codefendant’s counsel] that if
        there’s a plea to felony conspiracy the Commonwealth
        would be happy to put that on the record. With the
        Commonwealth’s theory of the case and all the physical
        evidence we had pointed to the cocaine coming from the
        house and there was no evidence we have trafficking from
        the bar. Aside from what I believe to be the self-serving
        statement of [codefendant] you know which I still don’t
        believe it was accurate that she got [drugs] from the bar
        so I’m happy to put that on the record.

N.T., 9/27/13, at 4, 6-7 (emphasis added).

     Appellant’s   counsel,   Attorney       Passarello,   then   summarized   the

charging and sentencing terms of Appellant’s revised plea bargain for the

four cases. Attorney Passarello reiterated:

        [H]e is taking five extra years and the reason he is doing
        that is that chivalry is not dead. He is taking this hit for
        the plea negotiation and plea that is coming before this
        Court . . . for [codefendant]. I’ve informed my client it is
        against my legal advice.



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Id. at 15. The Commonwealth agreed to the terms of the plea bargain as

stated by Appellant’s counsel, emphasizing (1) “[t]he Commonwealth did not

propose this arrangement[;]” (2) it was codefendant’s counsel who “has

incessantly been asking for a misdemeanor for [codefendant;]” and (3) the

District Attorney “did agree that if [Appellant] did fifteen to thirty years[,

codefendant] could do a misdemeanor but for more jail time.” Id. at 16.

      The trial court, during its colloquy, specifically questioned Appellant

regarding his decision to plead guilty under a more severe agreement:

         BY THE COURT: And could you explain to the Court why
         you’re choosing to do an extra five to ten years in a state
         prison as opposed to accepting the original offer extended
         by the Commonwealth?

         [Appellant]: Just hopefully so my girlfriend doesn’t
         lose her bar and because it was all my fault.

         BY THE COURT: Okay and you're willing to accept that
         responsibility?

         [Appellant]: Yes.

         BY THE COURT: And you accept that responsibility freely?

         [Appellant]: Absolutely yes.

         BY THE COURT: Okay and there’s no guarantees that
         you're going to have any sort of future relationship with
         [codefendant] do you understand that?

         [Appellant]: Yes.

Id. at 20 (emphasis added). Appellant confirmed that no one forced him to

take the more severe plea agreement. Id. at 21.




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       Thus, as stated by the parties, the terms were for Appellant to serve a

longer   sentence   for   a concession    by the     Commonwealth         to   accept

codefendant’s pleas to lower graded offenses. Undoubtedly, Appellant made

clear his subjective intent to help codefendant retain her ownership of the

bar.     However,   he    has   not   established   that    the   trial   court,   the

Commonwealth, or his attorney induced him to believe that the reduced

grading of codefendant’s offenses would immunize her from further action

from the PLCB. Further, the record does not evince a meeting of minds that

codefendant’s continued licensure was a condition of the plea bargain.

Accordingly, we find no basis to disturb the trial court’s determination that

Appellant’s plea bargain did not contain an enforceable promise or guarantee

that codefendant would not lose her liquor license.        See Broaden, 980 A.2d

at 129; cf. Hodges, 789 A.2d at 765.                Because Appellant has not

demonstrated the Commonwealth violated a term of the plea bargain, we

are constrained to reject his argument that codefendant’s loss of her liquor

license was a “manifest injustice” that entitled him to withdraw his plea.

       Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 3/30/2016




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