J-A34030-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,            :     IN THE SUPERIOR COURT OF
                                         :          PENNSYLVANIA
                       Appellee          :
                                         :
             v.                          :
                                         :
JACK ALAN HOKE,                          :
                                         :
                        Appellant        :     No. 307 MDA 2014


     Appeal from the Judgment of Sentence Entered January 23, 2014,
          In the Court of Common Pleas of Cumberland County,
            Criminal Division, at No. CP-21-CR-0003069-2011.


BEFORE: FORD ELLIOTT, P.J.E., SHOGAN, J., and STABILE, J.

MEMORANDUM BY SHOGAN, J.:                       FILED FEBRUARY 10, 2015

     Appellant, Jack Alan Hoke, appeals from the judgment of sentence

entered after he was expelled from the state intermediate punishment

program (a/k/a “SIP”), which had been imposed on his conviction of criminal

attempt to obtain drugs by fraud in relation to Appellant altering a valid

prescription for thirty-six tablets of oxycodone to 360 tablets of oxycodone.1

We affirm.



1
   “The legislature enacted [the state intermediate punishment program] in
November 2004. [It] is a two-year program designed to benefit persons
with drug and alcohol problems.              61 Pa.C.S. §§ 4102-4109.”
Commonwealth v. Kuykendall, 2 A.3d 559, 560 (Pa. Super. 2010). The
state intermediate punishment program was created to “punish persons who
commit crimes, but also provides treatment that offers the opportunity for
those persons to address their drug or alcohol addiction or abuse and
thereby reduce the incidents of recidivism and enhance public safety.” 61
Pa.C.S. § 4102. In addition, the program was “designed to address the
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      The trial court summarized the procedural history of this case as

follows:

             On October 7, 2011, [Appellant] was charged with
      Obtaining Drugs by Fraud (Oxycodone), 35 P.S. § 780-
      113(a)(12), an ungraded felony. On January 17, 2012, an
      Information was filed by the District Attorney charging
      [Appellant] with the above charge as well as with Criminal
      Attempt to Obtaining Drugs by Fraud (Oxycodone), 18 Pa.C.S.A.
      § 901 and 35 P.S. § 780-113(a)(12), also an ungraded felony.
      On the Information, both Count 1 and Count 2 were listed as
      having a maximum term of imprisonment of 5 years.              On
      October 4, 2012, [Appellant] pled guilty to Count 2, Criminal
      Attempt to Obtaining Drugs by Fraud. At [Appellant’s] guilty
      plea colloquy, the Commonwealth advised this Court and
      [Appellant], in accord with the Information, that the maximum
      possible term of imprisonment for Count 2 was five years.
      [Appellant] then entered his plea in anticipation of entering the
      State Intermediate Punishment Program (SIP) if accepted, which
      would result in a flat 24 month sentence. [Appellant] was
      ordered to appear at the Cumberland County Prison on
      December 26, 2012, at 9:00 a.m., and the Sheriff was directed
      to transport [Appellant] to SCI Camp Hill for screening for entry
      into the SIP at that time.

           On December 26, 2012, [Appellant] filed a motion to defer
      commitment, which was granted, and [Appellant] was ordered to
      appear before this Court on January 8, 2013. On January 8,


individually assessed drug and alcohol abuse and addiction needs of a
participant and shall address other issues essential to the participant’s
successful reintegration into the community, including, but not limited to,
educational and employment issues.” 61 Pa.C.S. § 4105(a). In addition, we
have explained that “expulsion and revocation [from the program] are
separate and distinct by statute. The [Department of Corrections] may
expel a defendant from the program, but upon expulsion, must promptly
notify the court so that it can conduct a revocation hearing. If the court
revokes the defendant, it then must re-sentence him.” Kuykendall, 2 A.3d
at 562. Here, Appellant challenges only the sentence imposed after the
revocation of his state intermediate punishment sentence, not the actual
revocation of the state intermediate punishment sentence.

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     2013, pursuant to an order of this Court, [Appellant] was taken
     by the Sheriff to SCI Camp Hill for screening for entry into SIP.
     After [Appellant] had completed the screening process, and upon
     receipt by this Court of a report from SCI Camp Hill that
     [Appellant] would benefit from SIP, [Appellant] was sentenced
     on June 10, 2013, to a period of state intermediate punishment
     of 24 months.

            By letter dated November 4, 2013, this Court was
     informed that [Appellant] had been expelled from SIP. That
     letter stated that [Appellant] had been “expelled from the
     Program as a result of his lack of meaningful participation,
     demonstrated by ongoing behavioral problems and program
     violations.” We therefore scheduled a hearing for December 6,
     2013. At [Appellant’s] request, that hearing was continued. In
     requesting a continuance, defense counsel stated that he was
     “hopeful that we can . . . resolve something as to what the
     sentence will be. . . .” In response, we informed defense
     counsel that “when someone gets kicked out of something and
     there is a revocation, the sentence is entirely up to this Court.”
     Defense counsel responded, “Yes ma’am.”

            On December 9, 2013, this Court received a pre-sentence
     investigation memo which listed the sentencing guidelines for
     Count 2 as follows: a mitigated range of 36 months, a standard
     range of between 48 and 60 months, and an aggravated range
     of also between 48 and 60 months. That memo also advised
     this Court that [Appellant] had been “expelled from the Program
     [SIP] as a result of his lack of meaningful participation,
     demonstrated by ongoing behavioral problems and program
     violations.” On January 23, 2014, [Appellant] was brought
     before us via teleconference to be resentenced. We informed
     [Appellant] that the standard range pursuant to sentencing
     guidelines was between 48 and 60 months. Defense counsel
     acknowledged this range as correct.         We then sentenced
     [Appellant] at Count 2, Criminal Attempt to Obtain Drugs by
     Fraud, an ungraded felony, to undergo imprisonment in a state
     correctional facility for not less than 36 months nor more than
     72 months, a mitigated range sentence. As our sentencing order
     states, we sentenced [Appellant] in the mitigated range out of
     “consideration that [Appellant] has indicated that he has been
     clean since he has been in prison, and in consideration that his


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      addictions stem out of multiple medical surgeries that he has
      had for injuries.”

Trial Court Opinion, 5/28/14, at 2-4 (footnotes omitted).

      Appellant then filed this timely appeal.      Both Appellant and the trial

court have complied with Pa.R.A.P. 1925.

      Appellant presents the following single issue for our review:

      Whether the Commonwealth breached a material term of the
      parties[’] plea agreement, by permitting Appellant to be re-
      sentenced in excess of the maximum agreed upon term of
      incarceration?

Appellant’s Brief at 4 (full capitalization omitted).

      Appellant argues that his plea agreement had been breached when, at

the time of resentencing, the trial court imposed a maximum sentence of six

years of incarceration. Appellant asserts that he entered a guilty plea to one

criminal charge in exchange for the Commonwealth’s promise to withdraw

one charge and to set a maximum punishment of five years of incarceration

for the remaining charge. Appellant claims that, after he was expelled from

the state intermediate punishment program, he was resentenced to a term

of incarceration in excess of the maximum punishment of five years, as

agreed upon by the parties and approved by the trial court.           Appellant

contends that fundamental fairness requires that the bargained-for sentence

be enforced, Appellant’s judgment of sentence be reversed, and the case

remanded to permit specific enforcement of the Commonwealth’s promise to




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cap the maximum sentence to be imposed at five years of incarceration.

Upon thorough review, we conclude that Appellant is not entitled to specific

enforcement of the five-year maximum punishment, as mentioned at the

time of his negotiated plea.         Appellant’s subsequent revocation and

expulsion from the state intermediate punishment program abrogated the

plea agreement.

     “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.

Hainesworth, 82 A.3d 444, 447 (Pa. Super. 2013) (en banc) (quoting

Commonwealth v. Fruehan, 557 A.2d 1093, 1095 (Pa. Super. 1989).

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].” Hainesworth, 82 A.3d at

447 (quoting Commonwealth v. Kroh, 654 A.2d 1168, 1172 (Pa. Super.

1995)).

     In   addressing   Appellant’s     claim,   we   find    our     decision   in

Commonwealth v. Partee, 86 A.3d 245 (Pa. Super. 2014), appeal denied,

97 A.3d 744 (Pa. 2014), to be instructive and controlling.         In Partee, the

appellant entered a negotiated nolo contendere plea to several sexual

offenses, including indecent assault of a minor less than thirteen years of




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age. Id. at 246. The trial court sentenced the appellant to six months of

intermediate punishment, followed by four years of probation. Id. At the

time of the plea, a conviction of indecent assault of a minor less than

thirteen years of age carried a ten-year sexual offender registration period.

Id. at 248-249.

       Subsequently,    the   appellant    violated   his   probation   and   was

resentenced. Id. at 246. Following the enactment of SORNA,2 the appellant

received notification that pursuant to the statute, he was required to register

as a sexual offender for life, instead of the ten-year period imposed in

connection with his plea agreement. Id. The appellant filed a “petition for

habeas corpus and/or seeking enforcement of a plea agreement,” attempting

to avoid the retroactive application of the SORNA registration requirements.

Id.    The trial court treated the appellant’s filing as a PCRA petition and

dismissed it, after which the appellant filed an appeal to this Court. Id.

       Initially, the Partee Court held that the trial court improperly treated

the appellant’s petition to enforce the plea agreement as a PCRA petition.

Id. at 247.    In addressing whether the appellant was entitled to specific

enforcement of the ten-year registration period, this Court stated that

“[w]hile [the ten-year registration period] was not an explicit term of the

negotiated plea, it is apparent that [the a]ppellant’s negotiated plea



2
    Sex Offender Registration and Notification Act, 42 Pa.C.S. § 9799 et seq.

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agreement was structured so that he would only be subject to a ten-year

rather than a lifetime reporting requirement ….”      Id. at 249.   The Court

further commented that “[u]nder our reasoning in Hainesworth, [the

a]ppellant arguably would be entitled to the benefit of that bargain.”     Id.

However, the Court held that the appellant was not entitled to specific

performance because he had abrogated his plea agreement by violating his

probation.   Id. at 249-50.    Specifically, the Court in Partee stated the

following:

      Appellant cannot seek specific performance of the underlying
      plea agreement[,] as there is no longer a plea bargain to
      enforce.    [The Commonwealth] cites Commonwealth v.
      Parsons, 2009 PA Super 66, 969 A.2d 1259 (Pa. Super. 2009)
      [(en banc)], for the proposition that “where the original sentence
      evolved from a plea bargain, and a defendant later violates his
      parole or probation, the defendant has effectively abrogated the
      underlying plea bargain.” Id. at 1270 n.6. “[U]pon revocation
      [of probation,] the sentencing alternatives available to the court
      shall be the same as were available at the time of initial
      sentencing[.]” 42 Pa.C.S. § 9771[(b)].

             As our Supreme Court held in Commonwealth v.
      Wallace, 582 Pa. 234, 870 A.2d 838, 842-43 (Pa. 2005), where
      probation is violated, the trial court is free to impose any
      sentence permitted under the Sentencing Code and is not
      restricted by the bounds of a negotiated plea agreement
      between a defendant and prosecutor.

Partee, 86 A.3d at 249-250.      The Partee Court concluded that, “having

failed to abide by the terms of the plea bargain, [the appellant’s plea]

agreement is no longer in effect, and hence, [the a]ppellant is not entitled to

specific performance.”   Id. at 250.   As a result, the Court ruled that the


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appellant was required to register as a sexual offender for life under SORNA.

Id.

      We see no difference between the imposition of a sentence of a term

of probation, as in Partee, and a sentence of participation in the state

intermediate   punishment       program,    as     in   the   instant    matter.      See

Kuykendall, 2 A.3d at 563 (finding to be analogous sentences of probation

and sentences of state intermediate punishment).                 As we explained in

Kuykendall, a sentence to participate in the state intermediate punishment

program is conditional and “requires offenders to comply with specific

statutory requirements in order to provide rehabilitative treatment.                 Thus,

[state intermediate punishment], more so than probation, serves the dual

purpose   of   punishing   a    defendant        and    rehabilitating    him   or   her.”

Kuykendall, 2 A.3d at 565.

      Similar to the appellant in Partee, after the trial court sentenced

Appellant pursuant to the guilty plea agreement, Appellant violated the

terms of his state intermediate punishment program resulting in his ultimate

expulsion and revocation from the program. N.T., 10/4/12, at 2-7; 1/8/13,

at 2; 6/10/13, at 2-3.         Hence, Appellant effectively abrogated his plea

agreement by violating the terms of, and suffering expulsion from, the state

intermediate punishment program.           Therefore, Appellant is not entitled to

the benefits contemplated within the plea agreement.                     Thus, upon the




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revocation of Appellant’s sentence to the state intermediate punishment

program, the sentencing court had before it the same alternative as

available at the time of initial sentencing. Partee, 86 A.3d at 249-250. See

also 42 Pa.C.S. § 9774(c) (stating that “[u]pon revocation of a State

intermediate punishment sentence, the sentencing alternatives available to

the court shall be the same as the alternatives available at the time of initial

sentencing.”).    Accordingly, Appellant’s claim that the terms of his plea

agreement were breached lacks merit.

      Moreover, we are unpersuaded by Appellant’s attempt to avoid the

application of Partee by alleging that his application for the state

intermediate     punishment   program   was   not   a   condition   of   his   plea

agreement. Appellant’s Brief at 14. Indeed, the record belies such claim.

N.T., 10/4/12, at 2-7. Therefore, we are constrained to affirm the judgment

of sentence.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 2/10/2015




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