Com. v. Hanna, S.

• Court: Superior Court of Pennsylvania
• Decided: November 9, 2022
• Docket: 200 MDA 2022
• Status: Unpublished

Opinion

J-S23038-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : SEAN HANNA : : Appellant : No. 200 MDA 2022

Appeal from the Judgment of Sentence Entered January 6, 2022 In the Court of Common Pleas of Columbia County Criminal Division at No(s): CP-19-CR-0000417-2018

BEFORE: STABILE, J., McLAUGHLIN, J., and COLINS, J.*

MEMORANDUM BY COLINS, J.: FILED NOVEMBER 09, 2022

Appellant, Sean Hanna, appeals from a judgment of sentence of 36 to

84 months’ incarceration imposed after he pled guilty to receiving stolen

property.1 For the reasons set forth below, we affirm.

On April 3, 2018, Appellant was charged with theft by unlawful taking

and receiving stolen property for stealing $27,791 in cash from a home where

he and another person for whom he worked as a helper were providing house

cleaning services. Criminal Complaint. On November 12, 2019, Appellant

entered a negotiated plea of guilty to the charge of receiving stolen property

and the Commonwealth, pursuant to the plea agreement, nolle prossed the

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* Retired Senior Judge assigned to the Superior Court. 1 18 Pa.C.S. § 3925(a). J-S23038-22

theft by unlawful taking charge. N.T. Guilty Plea at 4-7; Written Guilty Plea

Colloquy at 1. The only other terms of Appellant’s plea agreement that were

presented to the trial court when Appellant pled guilty and trial court accepted

the plea were that Appellant would be released on unsecured bond pending

sentencing and that the restitution of $27,791 would be imposed as joint and

several. N.T. Guilty Plea at 5, 7; Written Guilty Plea Colloquy at 1. Appellant

at the guilty plea hearing was asked whether he had been promised anything

else in exchange for his guilty plea and answered “No, sir.” N.T. Guilty Plea

at 6.

The offense gravity score for receiving stolen property of more than

$25,000 in value was 6 and the standard range minimum sentence under the

sentencing guidelines for that offense gravity score for a defendant with

Appellant’s prior record score was 27-40 months’ imprisonment. 204 Pa. Code

§§ 303.15, 303.16(a); Guideline Sentence Form. On January 6, 2022, the

trial court sentenced Appellant to 36 months to 84 months’ imprisonment,

within the standard range, with credit for time served prior to Appellant’s

release on unsecured bail, and imposed a $500 fine and $27,791 in restitution

joint and several with any other participants. N.T. Sentencing at 6;

Sentencing Order.2

2The lengthy delay in Appellant’s sentencing was a result of continuances to defer sentencing until after a co-defendant’s trial that ultimately did not occur. N.T. Sentencing at 3-4, 6.

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At the sentencing hearing, when the trial court stated the offense gravity

score and applicable sentencing guidelines before imposing sentence,

Appellant stated he thought that there was an agreement for an offense

gravity score of 5 and a 12-to-18-month sentence. N.T. Sentencing at 2.

Appellant’s counsel asserted that the Commonwealth had agreed prior to

Appellant’s guilty plea that the offense gravity score would be reduced if

Appellant provided credible testimony in the prosecution of a co-defendant,

but that the Commonwealth did not go forward with the prosecution of the co-

defendant. Id. at 2-3. The Commonwealth agreed that there was a May 9,

2018 agreement to give Appellant some consideration at sentencing if

Appellant cooperated in that prosecution and in recovering the stolen funds

and provided the trial court with a written stipulation signed by Appellant and

the Commonwealth referencing a plea to receiving stolen property with the

other charge nolle prossed and stating “[c]onsideration at sentencing of

cooperation in attempting recovery and restitution of stolen funds.” Id. at 8-

9; Commonwealth Ex. 1. The Commonwealth advised the trial court that no

prosecution of the co-defendant went forward. N.T. Sentencing at 6.

After imposing sentence, the trial court advised Appellant of his right to

appeal and advised Appellant that if he wished to appeal on the ground that

his guilty plea was not voluntary and knowing or wished to challenge his

sentence on appeal, he must file a post-sentence motion within 10 days. N.T.

Sentencing at 6-8. Appellant then stated that he wanted to appeal

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because I wasn’t under -- I didn’t know that I was supposed to be getting sentenced on such high guidelines. Had I known, I wouldn’t have even taken the plea. I was under the assumption that it was 12 to 18 months. I understand that’s not what was said, but that's what I was under the assumption of.

Id. at 8. Appellant filed no post-sentence motion and file a timely appeal from

the judgment of sentence on February 4, 2022. Docket Entries at 14-15.

Appellant presents the following single issue for our review:

Whether the trial court erred by not enforcing the plea agreement reached between Appellant and Appellee which would have reduced Appellant’s offense gravity score and thereby reduced his standard range sentence.

Appellant’s Brief at 1 (unnecessary capitalization omitted). Appellant is not

entitled to relief on this issue.

A defendant is entitled to enforcement of a plea agreement only where

that agreement has been presented to and accepted by the trial court.

Commonwealth v. Martinez, 147 A.3d 517, 531-32 (Pa. 2016);

Commonwealth v. Spence, 627 A.2d 1176, 1184 (Pa. 1993), limited on

other issue, Commonwealth v. Walker, 92 A.3d 766 (Pa. 2014). Where

the record of the defendant’s plea shows that the term that the defendant

seeks to enforce was not a term of the plea agreement that was accepted by

the court, the defendant is not entitled to enforcement of that term.

Commonwealth v. Travaglia, 28 A.3d 868, 893 (Pa. 2011). The record

here is clear that no reduction in offense gravity score or recommendation or

limitation on Appellant’s sentence was part of the plea agreement that was

accepted by the trial court. The only terms of Appellant’s plea agreement that

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were presented to the trial court were that the theft charge against Appellant

would be nolle prossed, that Appellant’s bail until sentencing would be

unsecured, and that restitution would be joint and several. N.T. Guilty Plea

at 5, 7; Written Guilty Plea Colloquy at 1. The Commonwealth and the trial

court complied with all of those terms. N.T. Guilty Plea at 5, 7-8; Court

Commitment; N.T. Sentencing at 6; Sentencing Order.

In addition, Appellant stated in both his oral plea colloquy in court and

in his written plea colloquy that he had not been promised anything else in

exchange for his guilty plea. N.T. Guilty Plea at 6; Written Guilty Plea Colloquy

at 2, 4. Indeed, Appellant in his written plea colloquy stated that he had

received no promises or indications concerning the sentence that he would

receive. Written Guilty Plea Colloquy at 2. A defendant is bound by the

statements that he makes during his plea colloquy and cannot assert

challenges to his plea that contradict his statements when he entered the plea.

Commonwealth v. Jabbie, 200 A.3d 500, 506 (Pa. Super. 2018);

Commonwealth v. Orlando, 156 A.3d 1274, 1281 (Pa. Super. 2017);

Commonwealth v. Muhammad, 794 A.2d 378, 384 (Pa. Super. 2002).

Because the plea agreement accepted by the trial court did not include any

reduction in offense gravity score or any provision concerning Appellant’s

sentence other than making restitution joint and several, Appellant was not

entitled to enforcement of any agreement by the Commonwealth concerning

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reduction in the offense gravity score or concerning sentencing consideration

in exchange for Appellant’s cooperation.

Moreover, any claim that the Commonwealth’s agreement made

Appellant’s plea involuntary or unknowing is barred by waiver and would not

provide the relief that Appellant seeks in this appeal. A request to withdraw

a guilty plea on the grounds that it was involuntary or unknowing must be

raised by motion in the trial court in order to be reviewed on direct appeal.

Jabbie, 200 A.3d at 506; Commonwealth v. Rush, 959 A.2d 945, 949 (Pa.

Super. 2008). Although Appellant asserted at the sentencing hearing that his

plea was based on his belief that there was an agreement for a lower sentence

and expressed a desire to appeal his sentence, N.T. Sentencing at 2, 8,3 he

did not request to withdraw his guilty plea or make any motion to withdraw

the plea. Despite the trial court’s specific instruction that he was required to

file a motion challenging the validity of the plea within 10 days if he wished to

assert on appeal that the plea was not knowing and voluntary, id. at 7,

Appellant filed no post-sentence motion and instead filed this appeal without

first seeking to withdraw his plea or seeking any other relief in the trial court.

3 We note that Appellant’s claim that he expected a sentence of 12 to 18 months is not consistent with his claim that the offense gravity score would be reduced to 5, as an offense gravity score of 5 has a standard range minimum sentence of 24 to 36 months for defendants with Appellant’s prior record score. 204 Pa. Code § 303.16(a).

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Even if the issue were not waived, the relief to which Appellant would

be entitled if he showed that his plea was involuntary or unknowing would be

withdrawal of the plea, not resentencing. Commonwealth v. Hickman, 799

A.2d 136, 143 (Pa. Super. 2002); Commonwealth v. Harris, 620 A.2d 1175,

1181 (Pa. Super. 1993). In this appeal, Appellant notably does not seek

remand to permit withdrawal of his plea, but seeks only resentencing in

accordance with an alleged term that was not part of the plea agreement

accepted by the trial court.

Because the record shows that the alleged agreement concerning

reduction of the offense gravity score was not part of the plea agreement

accepted by the trial court, Appellant is not entitled to specific performance of

that alleged agreement and the trial court did not err in sentencing Appellant

in accordance with the offense gravity score and sentencing guidelines

applicable to Appellant’s offense. We therefore affirm Appellant’s judgment

of sentence.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 11/9/2022

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