Commonwealth v. Berry

877 A.2d 479, 2005 Pa. Super. 219, 2005 Pa. Super. LEXIS 1473

• Court: Superior Court of Pennsylvania
• Decided: June 13, 2005
• Status: Published

Opinions

OPINION BY LALLY-GREEN, J.:

¶ 1 Appellant, Jeffrey L. Berry, appeals from the order dated March 20, 2003, denying his first petition under the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. We affirm.'

¶ 2 The procedural history of the case is as follows. Appellant was charged with one count of driving under the influence, and one count of driving while operating privileges are suspended or revoked. On September 12, 2002, the court held a plea colloquy. During this colloquy, Appellant expressed his desire to proceed pro se. The court allowed Appellant to do so. The court then stated that the parties had reached a plea arrangement. Specifically, in exchange for Appellant’s guilty pleas, the district attorney would recommend that Appellant’s sentences be served concurrently. The court advised Appellant that the court was not bound by the terms of the plea arrangement. The court also told Appellant that if the court did not abide by the arrangement, Appellant would be entitled to withdraw his pleas. Appellant affirmed his understanding of these statements and entered his guilty pleas.

¶ 3 On October 21, 2002, the court held a sentencing hearing. Again, Appellant proceeded pro se. The court rejected the Commonwealth’s sentencing recommendation and imposed consecutive sentences. Specifically, the court imposed a mandatory prison term of 90 days for driving under suspension, consecutive to a prison term of nine to 28 months for DUI. The court did not inform Appellant that he could withdraw his plea. Appellant stated that he wanted to challenge the sentence. The court told Appellant that he should fill out a form at the county jail to obtain a Public Defender. The record reflects that Appellant did not file any post-sentence motions, and did not file a direct appeal.

¶ 4 On January 8, 2003, Appellant filed a timely PCRA petition. The PCRA court appointed counsel for Appellant. Counsel filed an amended petition. In that petition, Appellant argued that his sentence was illegal. Specifically, Appellant argued that the trial court violated the plea agreement by imposing consecutive sentences and by not allowing Appellant to withdraw his plea. Appellant further argued that he should be able to withdraw his guilty plea and proceed to trial. The PCRA court held a hearing on March 19, 2003. The court denied the petition the next day, on March 20,2003. This appeal followed.

¶ 5 Appellant raises two issues on appeal:

1. Did the lower court err in not permitting the defendant to withdraw his guilty plea?

2. Did defendant waive his right to contest the sentence by not filing a direct appeal?

Appellant’s Brief at 4.

¶ 6 Our standard of review for an order denying PCRA relief is whether the record supports the PCRA court’s determination, and whether the PCRA court’s determination is free of legal error. Commonwealth v. Allen, 557 Pa. 135, 732 A.2d 582, 586 (1999).

¶7 We will address Appellant’s second issue first. Appellant argues that his failure to file a direct appeal did not operate as a waiver of his sentencing claim, because challenges to the legality of a sentence are never waived. To be entitled to PCRA relief, a petitioner must plead and prove, inter alia, that the allegation of error has not been previously litigated or waived. 42 Pa.C.S.A. § 9543(a)(3). An issue is waived if it could have been raised prior to the filing of the PCRA petition, but was not. 42 Pa.C.S.A. § 9544(b).

¶ 8 The record reflects that Appellant did not move to withdraw his plea, did not file post-sentence motions, and did not file a direct appeal. Instead, he filed a petition under the PCRA. Here, for the first time, Appellant requested that he be allowed to withdraw his guilty pleas. Since Appellant failed to raise this claim in the trial court or on direct appeal, this issue is waived unless an exception to the waiver rule applies.

¶9 One well-established exception is that challenges to the legality of the sentence are never waived. This means that a court may entertain a challenge to the legality of the sentence so long as the court has jurisdiction to hear the claim. In the PCRA context, jurisdiction is tied to the filing of a timely PCRA petition. See, Commonwealth v. Voss, 838 A.2d 795, 800 (Pa.Super.2003). Because Appellant filed a timely PCRA petition and no other jurisdictional hurdles exist, we must now determine whether Appellant truly challenges the legality of the sentence.

¶ 10 Our Supreme Court has stated that “an illegal sentence is one that exceeds the statutory limits.” Commonwealth v. Bradley, 575 Pa. 141, 834 A.2d 1127, 1131 (2003). In Commonwealth v. Lipinski, 841 A.2d 537 (Pa.Super.2004), this Court recognized a broader definition of an illegal sentence: “if no statutory authorization exists for a particular sentence, that sentence is illegal and subject to correction.” Id. at 5B9.

¶ 11 The broader definition applies to Appellant’s case. Thus, a sentence is illegal where a statute bars the court from imposing that sentence. See, e.g., Commonwealth v. Archer, 722 A.2d 203, 209 (Pa.Super.1998) (en banc); Commonwealth v. Mariani, 2005 PA Super 25, 869 A.2d 484 (failure to advise the defendant of the amount and method of restitution at the time of sentencing results in an illegal sentence); Commonwealth v. Edrington, 780 A.2d 721, 723 (Pa.Super.2001) (failure to impose a mandatory minimum sentence results in an illegal sentence).

¶ 12 The Archer Court also recognized one non-statutory example of an illegal sentence: namely, a claim that sentences should merge. Archer, 722 A.2d at 209; see also, Commonwealth v. Walker, 468 Pa. 323, 362 A.2d 227 (1976); Commonwealth v. Norris, 498 Pa. 308, 446 A.2d 246, 251 n. 9 (1982); Commonwealth v. Campbell, 351 Pa.Super. 56, 505 A.2d 262 (1986) (en banc). This particular exception is based on longstanding Supreme Court precedent regarding double jeopardy. Walker.

¶ 13 Thus, our case law draws a careful distinction between truly “illegal” sentences, and sentences which may have been the product of some type of legal error. Archer, 722 A.2d at 209. Archer and its progeny have established that the term “illegal sentence” is a term of art that our Courts apply narrowly, to a relatively small class of cases. See, Commonwealth v. Ernest Williams, 787 A.2d 1085, 1087 (Pa.Super.2001) (a claim that the sentencing court relied on an unconstitutional statute does not implicate the legality of the sentence, and is therefore waivable).

¶ 14 Appellant cites Commonwealth v. Anthony Williams, 442 Pa.Super. 590, 660 A.2d 614 (1995), for the proposition that Appellant’s sentence is illegal. We disagree because Williams does not control the instant case. Williams involved a second PCRA petition that was filed before the 1995 amendments. The defendant claimed, inter alia, that he did not receive the sentence he was promised. Id. at 619. The Williams Court held that under the law as it existed at that time, this claim would be waived unless it: (1) implicated the defendant’s innocence; (2) raised the possibility of a miscarriage of justice; or (3) implicated the legality of the sentence. Id. at 618. Ultimately, this Court held that “it would be a miscarriage of justice for a person to relinquish cherished constitutional rights based on a promise that was not kept.” Id. at 619 (emphasis added). Thus, the Williams Court’s opinion turned on the second scenario (miscarriage of justice), not the third scenario (illegal sentence). Unfortunately, our Courts do not recognize the prospect of a miscarriage of justice as a general basis for excusing waiver under the 1995 amendments. See, Commonwealth v. Judge, 568 Pa. 377, 797 A.2d 250, 260 (2002) (“there is no injustice in refusing to allow Appellant to revive on collateral review claims that he waived during his direct appeal.”). Rather, the miscarriage of justice standard now acts as an additional hurdle when the petitioner files a second, timely PCRA petition. See, Commonwealth v. Fahy, 558 Pa. 313, 737 A.2d 214, 223 (1999).

¶ 15 We do note that Commonwealth v. Anderson, 434 Pa.Super. 309, 643 A.2d 109, 111-112 (1994), and its progeny stand for the proposition that where the trial court fails to comply with the terms of a plea agreement, that sentence is illegal. Anderson announced this proposition of law in a footnote, apparently in order to address the underlying sentencing claim rather than the defendant’s assertion of ineffectiveness. Id. at 112 & n. 6. Moreover, the Anderson rule was based on Pa.R.Crim.P. 319 (now Pa.R.Crim.P. 590). At the time, the relevant part of Rule 319 read as follows:

If the judge is satisfied that the plea is understandingly and voluntarily entered, he may accept the plea. If thereafter the judge decides not to concur in the plea agreement, he shall permit the defendant to withdraw his plea.

Pa.R.Crim.P. 319(b)(3) (emphasis added).

¶ 16 In 1995, Rule 319(b)(3) was repealed. The provision above, requiring the court to permit the defendant to withdraw the plea, “was deleted to eliminate the confusion being generated when that provision was read in conjunction with Rule 591. As provided in Rule 591, it is a matter of judicial discretion and case law whether to permit or direct a guilty plea or plea of nolo contendere to be withdrawn.” Rule 590, Official Comment. Consequently, Anderson does not control Appellant’s case.¹

¶ 17 Thus, current case law does not support the proposition that Appellant’s claim is. a non-waivable challenge to the legality of the sentence. Appellant does not identify any statutory basis or double jeopardy basis for declaring that his sentence is illegal. Further, we decline to expand the definition of “illegal sentence” to encompass claims of this type, because there is simply no principled basis for doing so.

¶ 18 If Appellant’s claim does' not implicate the legality of the sentence, it is waived. Commonwealth v. Rush, 576 Pa. 3, 838 A.2d 651, 656 (2003); 42 Pa.C.S.A. § 9545(b). Here, Appellant waived his claim by failing to file a direct appeal. Moreover, he did not allege ineffectiveness of counsel for failure to raise this claim on direct appeal. Therefore, the issue is waived.

¶ 19 Even if the issue were not waived, Appellant would not be entitled to relief. Our reasoning follows.

¶ 20 Based on the plain language of the plea colloquy, the instant case involved a plea agreement. Specifically, the parties made an “agreement to make a favorable but non-binding recommendation” for concurrent sentences. Commonwealth v. Porreca, 389 Pa.Super. 553, 567 A.2d 1044, 1047 (1989), reversed on other grounds, 528 Pa. 46, 595 A.2d 23 (1991). In Porreca, the court clearly informed the defendant that he could not withdraw his plea if the court chose not to abide by the recommendation. Here, in contrast, the court clearly informed Appellant that he could withdraw his plea if the court chose consecutive sentences. In both cases, the agreement was enforceable because “the limits of the agreement are plainly set forth on the record, understood and agreed to by the parties, and approved by the trial court.” Id.

¶ 21 At sentencing, the prosecutor honored his end of the bargain by recommending concurrent sentences. However, because of Appellant’s numerous prior convictions for driving under the influence, his high blood alcohol content, and his repeated failures while on parole, the court did not abide by the district attorney’s recommendation. Instead, the court imposed consecutive sentences. See, PCRA Court Order, 3/20/2003, at 2. The court was entitled to do so under the terms of the agreement. Commonwealth v. McClendon, 403 Pa.Super. 467, 589 A.2d 706, 710 (1991) (en banc).2

¶ 22 Similarly, under the terms set out by the trial court, Appellant was entitled to petition to withdraw his guilty plea. Appellant certainly could have done so by filing a petition with the trial court. Commonwealth v. Watson, 835 A.2d 786, 791 (Pa.Super.2003). Unfortunately, he did not do so.

¶ 23 Appellant argues that the trial court “failed to allow him to [withdraw his plea].” Appellant’s Brief at 10. Appellant overstates the case. While the trial court failed to remind Appellant that he could withdraw his plea, this is not the same as “failing” to allow Appellant to withdraw his plea. Rather, it remained Appellant’s responsibility to move to withdraw his plea, if he so desired. Watson. Because Appellant did not move to withdraw his plea, it cannot be fairly said that the court erred in any way.

¶ 24 Before concluding, we note the following. Some of our esteemed colleagues have expressed their concern that Appellant may not have voluntarily waived his right to counsel during the plea colloquy. We decline to address this issue because it is waived on several grounds.

¶25 First, issues which are not raised in the PCRA court are waived on appeal. Pa.R.A.P. 302(a); Pa.R.Crim.P. 907(B). Appellant did not raise this issue in the PCRA court; thus, it is waived.

¶ 26 Second, issues which are not raised in a Concise Statement of Matters Complained of on Appeal under Pa.R.A.P. 1925 are waived on appeal. Commonwealth v. Lord, 719 A.2d 306, 309 (Pa.1998). Appellant did not raise any issues relating to his right to counsel in his Concise Statement. Thus, this claim is waived.

¶27 Finally, issues that are not supported by citations to the record and to pertinent legal authority are waived. Commonwealth v. Kopicz, 840 A.2d 342 (Pa.Super.2003); Pa.R.A.P. 2119. Appellant now has counsel for the instant PCRA appeal. In this counseled appeal, Appellant has failed to develop any meaningful argument relating to whether Appellant knowingly and voluntarily waived his right to counsel during the plea colloquy or the sentencing hearing. Thus, this claim is waived.

¶ 28 Order affirmed.

¶ 29 KLEIN, J.: files Dissenting Opinion joined by Judges MUSMANNO, BENDER and BOWES.

1 . We also note that quite recently, our Supreme Court effectively overruled Anderson's pronouncement that when parties enter into a negotiated plea for concurrent sentences, the trial court may not later impose consecutive sentences after a probation revocation proceeding. Commonwealth v. Wallace, 870 A.2d 838 (Pa.2005).

2 . In McClendon, this Court held that where a trial court is not bound by a sentencing recommendation, the defendant does not have the automatic right to withdraw his plea simply because the court sentences the defendant more harshly than the recommendation would call for. McClendon, 589 A.2d at 710. This was true even in 1991, when the seemingly mandatory language of Pa.R.Crim.P. 319(b)(3) (discussed supra) was in effect. Thus, Appellant was entitled to have his plea withdrawn as a matter of right only as a result of the express language to this effect, which was stated in open court.