Com. v. Saleem, M.

• Court: Superior Court of Pennsylvania
• Decided: October 4, 2022
• Docket: 198 MDA 2022
• Status: Unpublished

Opinion

J-S28033-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellee : : v. : : MOHAMMAD SOHAIL SALEEM : : Appellant : No. 198 MDA 2022

Appeal from the Order Dated September 21, 2021 In the Court of Common Pleas of Lebanon County Criminal Division at No(s): CP-38-CR-0001112-2014

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellee : : v. : : MOHAMMAD SOHAIL SALEEM : : Appellant : No. 345 MDA 2022

Appeal from the Order Entered September 21, 2021 In the Court of Common Pleas of Lebanon County Criminal Division at No(s): CP-38-CR-0000565-2014

BEFORE: OLSON, J., McLAUGHLIN, J., and KING, J.

MEMORANDUM BY KING, J.: FILED: OCTOBER 4, 2022

Appellant, Mohammad Sohail Saleem, appeals pro se from the order

entered in the Lebanon County Court of Common Pleas, denying his motion to

enforce a plea agreement. We affirm.

The relevant facts and procedural history of this case are as follows. On

April 21, 2015, Appellant entered a guilty plea at docket No. CP-38-CR- J-S28033-22

0000565-2014 to two counts of indecent assault. That same day, Appellant

also pled guilty to one count each of indecent assault and harassment at

docket No. CP-38-CR-0001112-2014. Relevant to this appeal, the terms of

Appellant’s plea bargain were that the Commonwealth would dismiss the

remaining charges, the plea would be open as to sentencing, and the

Commonwealth would have no objection to Appellant’s immediate

deportation. On June 3, 2015, the court sentenced Appellant to an aggregate

21 months to 10 years’ imprisonment. There was a discussion at sentencing

that Immigration and Customs Enforcement (“ICE”) had planned to deport

Appellant to Pakistan within a week of sentencing based on 2009 convictions

not at issue here. Nevertheless, Appellant was not deported following

sentencing.

Appellant did not file a direct appeal from his judgment of sentence.

Instead, on August 31, 2015, Appellant filed a timely, counseled petition under

the Post Conviction Relief Act (“PCRA”), alleging plea counsel was ineffective

in misleading him to believe that, in exchange for pleading guilty, he would

be deported to Pakistan without serving any sentence of imprisonment in the

United States in connection with his guilty plea. After a hearing, the PCRA

court denied relief. This Court affirmed the denial of PCRA relief. See

Commonwealth v. Saleem, No. 645 MDA 2016 (Pa.Super. filed Mar. 28,

2017) (unpublished memorandum) (“Saleem I”) (affirming on basis of PCRA

court’s opinion stating there was no promise of immediate deportation in

exchange for Appellant’s plea, and counsel did not render ineffective

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assistance in this regard).

On August 17, 2020, Appellant filed a pro se petition for writ of habeas

corpus.1 In it, Appellant claimed he entered a negotiated guilty plea in which

immediate deportation was a bargained-for term of his plea agreement.

Appellant sought specific enforcement of the agreement. The court treated

the claim under the auspices of the PCRA and denied relief.

On appeal, this Court agreed with Appellant that the claim fell outside

the parameters of the PCRA. Nevertheless, this Court held:

[W]e find no merit to Appellant’s claim that his plea agreement contained a bargained-for term in which he would be immediately deported to Pakistan without serving a prison sentence in the United States in connection with the instant crimes. While the Commonwealth indicated it would not object to Appellant’s immediate deportation, the record reflects that Appellant was informed deportation was a “potential” consequence of his guilty plea. Moreover, during Appellant’s sentencing hearing, the Commonwealth acknowledged that deportation was within the purview of the federal government.

Further, the fact [that] ICE had commenced deportation proceedings against Appellant in connection with his prior [2009] convictions does not alter our conclusion. As the PCRA court indicated in denying Appellant’s first PCRA petition, while the ADA and Appellant believed Appellant would be deported due to his prior convictions, deportation was not a condition of Appellant’s instant guilty plea. In fact, as the PCRA court noted, deportation decisions are beyond the control of the District Attorney’s Office, and Appellant’s trial counsel admitted he informed Appellant of this fact prior to the entry of the guilty plea.

____________________________________________

1 Prior to this filing, Appellant filed other claims for relief which are not relevant to the current appeal.

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Commonwealth v. Saleem, Nos. 1553 MDA 2020 and 1554 MDA 2020,

unpublished memorandum at 9-10 (Pa.Super. filed Aug. 6, 2021) (“Saleem

II”) (internal citations omitted) (emphasis added). Thus, this Court affirmed

the denial of habeas corpus relief.

On September 13, 2021, Appellant filed the current motion to enforce

the plea agreement, arguing that the Commonwealth’s agreement not to

object to Appellant’s immediate deportation was a bargained-for term of his

plea agreement. Appellant alleged the Commonwealth violated the terms of

this agreement by filing a writ of habeas corpus ad prosequendum (a writ to

appear for prosecution) on June 16, 2015, to transport Appellant for purposes

of a hearing, which ultimately halted all deportation proceedings. Appellant

insisted the Commonwealth filed the writ in “bad faith” because no hearing

ever occurred in connection with the writ. Essentially, Appellant contended

that by filing the writ, the Commonwealth “objected” to Appellant’s immediate

deportation, in derogation of the plea agreement.

On September 20, 2021, the court denied relief. Appellant timely filed

notices of appeal at each underlying docket on October 4, 2021.2 The court

subsequently ordered Appellant to file a Pa.R.A.P. 1925(b) statement;

Appellant complied.

Appellant raises two issues for our review:

2 This Court consolidated the appeals sua sponte on March 15, 2022.

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Did the [trial] court err in [its] September 20, 2021 order by not addressing [Appellant’s] motion to enforce plea agreement. The claim of enforcement of plea agreement was never understood and addressed. [The trial] court always has misconstrued this very issue, either by treating the motion as “PCRA” or simply not addressing it.

Did the [judge] err in denying [Appellant’s] motion to enforce plea agreement, when such abuse of discretion caused prejudice, since matter of Commonwealth’s interference by filing writ of habeas corpus ad prosequendum, with fake/faulty information, and matter of primary custody not addressed.

(Appellant’s Brief at 4).

In his issues combined, Appellant argues that a negotiated term of his

plea agreement was that the Commonwealth would not object to his

immediate deportation. Appellant asserts that the Commonwealth reneged

on its end of the bargain by actively taking steps to prevent Appellant’s

deportation by filing a writ of habeas corpus ad prosequendum shortly after

sentencing. Appellant claims this writ prevented his immediate deportation

to Pakistan. Had the writ not been filed, Appellant maintains he would have

been deported in June 2015. Appellant emphasizes that he was already in the

primary custody of ICE when the Commonwealth filed the writ.

Appellant insists the current claim has not been previously litigated

because his prior filings involved whether immediate deportation was a term

of his plea bargain. By contrast, Appellant now acknowledges that “immediate

deportation” was not part of the plea deal, but he stresses that the

Commonwealth not objecting to his immediate deportation was a bargained-

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for term of the agreement. Appellant avers the courts have never addressed

whether the Commonwealth’s filing of the writ after sentencing constituted a

violation of the plea agreement. Appellant submits the Commonwealth filed

the writ in bad faith, as evidenced by the fact that no hearing ever took place

in June 2015 as contemplated by the writ.

Further, Appellant argues the Commonwealth lacked authority to

imprison Appellant where ICE retained “primary jurisdiction” over him in June

2015. Appellant claims the Commonwealth “borrowed” Appellant for purposes

of the sentencing hearing but was required to return Appellant to ICE’s

primary custody thereafter. Likewise, Appellant suggests the Commonwealth

“borrowed” Appellant for purposes of the post-sentencing writ and was

required to return Appellant to ICE’s primary custody when no hearing took

place as contemplated by the writ. Appellant concludes the Commonwealth

breached the plea agreement, and this Court must reverse the order denying

his motion to enforce and expunge his conviction. We disagree.

Our review of this appeal implicates the following principles:

[A] collateral petition to enforce a plea agreement is regularly treated as outside the ambit of the PCRA and under the contractual enforcement theory of specific performance. See, e.g., Commonwealth v. Martinez, 637 Pa. 208, 147 A.3d 517 (2016); Commonwealth v. Fernandez, 195 A.3d 299 (Pa.Super. 2018) (en banc); Commonwealth v. Hainesworth, 82 A.3d 444 (Pa.Super. 2013) (en banc), appeal denied, 626 Pa. 683, 95 A.3d 276 (2014); Commonwealth v. Farabaugh, 136 A.3d 995 (Pa.Super. 2016), appeal denied, 643 Pa. 140, 172 A.3d 1115 (2017); Commonwealth v. Nase, 104 A.3d 528 (Pa.Super. 2014), appeal denied, 640 Pa. 389, 163 A.3d 405 (2016).

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Compare Commonwealth v. James Johnson, 200 A.3d 964 (Pa.Super. 2018) (stating generally that plea enforcement theory is unavailable as ground for collateral relief if there is no plea bargain to enforce). The designation of the petition “does not preclude a court from deducing the proper nature of a pleading.” See Commonwealth v. Porter, 613 Pa. 510, 524, 35 A.3d 4, 12 (2012) (citing Commonwealth v. Abdul–Salaam, 606 Pa. 214, 996 A.2d 482 (2010) (involving deceptive labeling of PCRA pleading)).

Contract interpretation is a question of law, so “[o]ur standard of review over questions of law is de novo and to the extent necessary, the scope of our review is plenary.” Gillard v. Martin, 13 A.3d 482, 487 (Pa.Super. 2010). Plea bargains play a critical role in the criminal justice system of this Commonwealth:

With respect to plea bargains, [t]he reality of the criminal justice system is that nearly all criminal cases are disposed of by plea bargains: [n]inety-seven percent of federal convictions and ninety-four percent of state convictions are the result of guilty pleas. Plea bargaining is not some adjunct to the criminal justice system; it is the criminal justice system. Accordingly, it is critical that plea agreements are enforced, to avoid any possible perversion of the plea bargaining system. The disposition of criminal charges by agreement between the prosecutor and the accused, …is an essential component of the administration of justice. Properly administered, it is to be encouraged. In this Commonwealth, the practice of plea bargaining is generally regarded favorably, and is legitimized and governed by court rule…. A “mutuality of advantage” to defendants and prosecutors flows from the ratification of the bargain.

Assuming the plea agreement is legally possible to fulfill, when the parties enter the plea agreement and the court accepts and approves the plea, then the parties and the court must abide by the terms of the agreement. Specific enforcement of valid plea bargains is a matter of fundamental fairness. The terms of plea agreements are not limited to the

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withdrawal of charges, or the length of a sentence. Parties may agree to—and seek enforcement of— terms that fall outside these areas.

Although a plea agreement occurs in a criminal context, it remains contractual in nature and is to be analyzed under contract-law standards. Furthermore, disputes 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. Nevertheless, the agreement itself controls where its language sets out the terms of the bargain with specificity. Regarding the Commonwealth’s duty to honor plea agreements, well-settled Pennsylvania law states:

Our courts have demanded strict compliance with that duty in order to avoid any possible perversion of the plea bargaining system, evidencing the concern that a defendant might be coerced into a bargain or fraudulently induced to give up the very valued constitutional guarantees attendant the right to trial by jury.

Whether a particular plea agreement has been breached depends on what the parties to the agreement reasonably understood to be the terms of the agreement.

Farabaugh, supra at 1001-02 (internal citations and quotation marks omitted).

We acknowledge that the analogy of a plea agreement as a contract is not a perfect one. For instance, unlike a typical contract, a plea agreement does not become binding on the parties upon their consent to terms; rather, a plea agreement is not valid and binding until it is evaluated and accepted by a third party, i.e., a

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trial court….

Nonetheless, as the Hainesworth [C]ourt recognized, plea agreements clearly are contractual in nature. See Puckett v. United States, 556 U.S. 129, 137, 129 S.Ct. 1423, 173 L.Ed.2d 266 (2009) (stating[:] “Although the analogy may not hold in all respects, plea bargains are essentially contracts”).

Martinez, supra at 231, 147 A.3d at 531 (one internal citation omitted). “[T]he convicted criminal is entitled to the benefit of his bargain through specific performance of the terms of the plea agreement. Thus, a court must determine whether an alleged term is part of the parties’ plea agreement. If the answer to that inquiry is affirmative, then the convicted criminal is entitled to specific performance of the term.” Id. at 233, 147 A.3d at 532-33.

Commonwealth v. Kerns, 220 A.3d 607, 611-13 (Pa.Super. 2019).

Instantly, in prior filings and appeals, Appellant argued that his

immediate deportation was a bargained-for term of his plea agreement. This

Court has already considered and rejected that argument twice. See Saleem

I, supra; Saleem II, supra. Thus, the law of the case doctrine precludes

Appellant from raising that claim again. See Commonwealth v.

McCandless, 880 A.2d 1262, 1267 (Pa.Super. 2005) (en banc), appeal

dismissed as improvidently granted, 593 Pa. 657, 933 A.2d 650 (2007)

(explaining that “law of the case doctrine” refers to family of rules which

embody concept that court involved in later phases of litigated matter should

not reopen questions decided by another judge of that same court or by higher

court in earlier phases of matter).

Nevertheless, the record indicates that as part of Appellant’s plea deal,

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the Commonwealth would not object to Appellant’s immediate deportation.

(See N.T. Guilty Plea Hearing, 4/21/15, at 2); (Written Guilty Plea, 4/21/15,

at 6). In an effort to distinguish the current filing from his prior claims for

relief, Appellant insists that he is advancing for the first time his averment

that the Commonwealth acted in bad faith to intentionally delay his

deportation and violate the plea agreement by filing a writ of habeas corpus

ad prosequendum. In other words, Appellant complains that the

Commonwealth’s filing of the writ constituted an “objection” to his immediate

deportation in contravention of the plea deal.

At sentencing, the parties were under the impression that ICE had

planned to deport Appellant to Pakistan within the week based on prior 2009

convictions. (See N.T. Sentencing, 6/3/15, at 4-7). Nevertheless, the

prosecutor noted that deportation determinations were solely within the

purview of the federal government. (See id. at 7-8).

Appellant, however, was not deported. Appellant insists deportation did

not occur based on the filing of the writ at issue. The writ, signed by the trial

court on June 10, 2015, states:

WRIT OF HABEAS CORPUS AD PROSEQUENDUM

TO: York County Prison—ICE

AND NOW, THIS 10th day of June 2015, upon motion of the District Attorney, WE COMMAND YOU that the body of [Appellant] in your prison under custody be brought before the Court of Common Pleas of Lebanon County, by delivering the said body to the Sheriff of Lebanon County Pennsylvania, on June 16, 2015 at 8:30 A.M. for [a]

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Scheduled Court appearance on … IDSI and related charges in certain proceedings which are now pending in said County of Lebanon and at the conclusion of the said hearing, the said [Appellant] is to be returned to the custody of the Sheriff of Lebanon County, or his designated representative, to be returned to your custody.

(Writ of Habeas Corpus Ad Prosequendum, filed 6/11/15, at 1). The parties

agree that no hearing was held in connection with this writ.3 The record also

indicates that Appellant did not have IDSI or related pending charges at this

time, as he had already been sentenced on those charges.

Significantly, however, Appellant cannot demonstrate that this writ

constitutes an “objection” by the Commonwealth to Appellant’s immediate

deportation such that the Commonwealth violated the plea deal.

Notwithstanding the language in the writ, there is no motion by the

Commonwealth preceding the writ. (See Response to Appellant’s Right to

Know Inquiry, 7/30/20) (indicating there is no separate motion that preceded

the writ or document filed “motion”). The record suggests the writ may have

been signed and filed by the court mistakenly, without any request from the

3 On July 18, 2022, Appellant filed an application for relief in this Court seeking to introduce “new evidence” to support his claim of bad faith by the Commonwealth in the form of a letter from the Court Administrator dated July 5, 2022. The letter responds to an inquiry from Appellant and states, in relevant part, that no court hearing was scheduled in Appellant’s case on June 16, 2015, following the filing of the writ of habeas corpus. While we grant Appellant’s request to consider this “new evidence,” we deny Appellant’s request to grant his motion to enforce the plea agreement based on this “new evidence.”

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Commonwealth.4

Even if the writ had been filed at the request of the Commonwealth,

such action is a far cry from “objecting” to Appellant’s deportation. As the

record demonstrated following the hearing on Appellant’s first PCRA petition,

the plea deal was that the Commonwealth would not take steps to actively

prevent Appellant’s deportation. (See PCRA Court Order, 3/24/16, at Finding

of Fact B; N.T. PCRA Hearing, 3/24/16, at 35). Rather, the PCRA court noted

that had the Commonwealth gone to the federal government and said not to

deport Appellant, that action would have been a breach. (See id. at 39).

Notably, no action by the Commonwealth prevented ICE from deporting

Appellant after the referenced June 16, 2015 hearing did not take place.

Appellant certainly cannot show that the filing of the writ in June 2015

prevented the federal government from deporting Appellant for the following

seven years. The Commonwealth simply had no control over whether the

federal government chose to deport Appellant. (See Commonwealth’s Brief

at 15) (stating: “[T]he Commonwealth cannot speak as to why [deportation]

did not occur because, as stated, deportation is well beyond the control of the

Commonwealth”). On this record, we cannot say that the Commonwealth

4The Commonwealth also suggests that the writ might have been filed mistakenly. (See Commonwealth’s Brief at 13).

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breached the plea agreement.5 See Kerns, supra. Accordingly, we affirm

the order denying Appellant’s motion to enforce the plea agreement.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 10/4/2022

5 Further, Appellant’s argument that the Commonwealth lacked authority to imprison Appellant where he was in the “primary custody” of ICE merits no relief. The case on which Appellant primarily relies, Taccetta v. Federal Bureau of Prisons, 606 Fed.Appx. 661, 663 (3d Cir. 2015), discusses the “primary custody doctrine,” which applies where a defendant faces prosecution by both state and federal authorities, and determines where and how the defendant will serve any resulting sentence. Those circumstances are simply not present here.

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