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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA
IN THE SUPERIOR COURT OF
PENNSYLVANIA
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v.
RAVIS JOHN BERRY
Appellant
No. 280 WDA 2022
Appeal from the Order Entered February 18, 2022
In the Court of Common Pleas of Venango County Criminal Division at
No(s): CP-61-CR-0000545-2018
EFORE: BENDER, P.J.E., OLSON, J., and KUNSELMAN, J.
MEMORANDUM BY BENDER, P.J.E.:
FILED: March 23, 2023
Appellant, Travis John Berry, appeals pro se from the trial court’s
February 18, 2022 order denying his “Motion to Enforce Plea Agreement”
(hereinafter, “Motion”). Appellant alleges that his plea agreement was for
concurrent sentences on all counts, which the court allegedly violated when it
imposed a sentence on one of his counts to run consecutively. After careful
review, we affirm.
The facts underlying Appellant’s convictions are not pertinent to our
disposition of his present appeal. We need only note that on December 17,
2018, Appellant pled guilty to one count of terroristic threats, 18 Pa.C.S. §
2706(a)(1), and two counts of recklessly endangering another person (REAP),
18 Pa.C.S. § 2701(a)(1). On January 4, 2019, the court imposed a sentence
of 9 to 60 months’ incarceration for his terroristic threats conviction, and a
term of 9 to 24 months’ incarceration for each of his two REAP offenses. The
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court directed that Appellant’s REAP sentences run concurrently to one
another, and consecutively to his sentence for terroristic threats. Thus,
Appellant’s aggregate term of incarceration is 18 to 84 months.
On January 11, 2019, Appellant filed a pro se motion to withdraw his
guilty plea, arguing that he “did not knowingly, voluntarily, and intelligently
enter into a plea agreement in which … he was sentenced to consecutive
sentences.” Motion to Withdraw Guilty Plea, 1/11/19, at 1 (single page).
However, on February 6, 2019, Appellant moved to withdraw that motion,
stating that “he no longer wishe[d] to withdraw his plea of guilty….” Motion
to Withdraw Withdrawal, 2/6/19, at 1 (single page).
On February 6, 2019, Appellant also filed a pro se motion for
reconsideration of his sentence, asking for a “concurrent sentence on all
counts … instead of consecutive.” Motion for Reconsideration, 2/6/19, at 1
(single page). On March 8, 2019, the court issued an order denying that
motion on the basis that it was untimely filed. Appellant did not file a direct
appeal.
Instead, on December 23, 2019, Appellant filed a pro se petition under
the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546, alleging that
his trial counsel was ineffective for “allow[ing] the plea agreement to be
changed from a concurrent sentence to a consecutive sentence,” and for
failing to “advise [Appellant] to withdraw the same….” PCRA Petition,
12/23/19, at 10 (unnumbered). Counsel was appointed and an evidentiary
hearing was held. On March 2, 2021, the court issued an order denying
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Appellant’s petition, apparently finding no arguable merit to his claim that
counsel was ineffective for not objecting to his consecutive sentence or
advising Appellant to withdraw his plea. Specifically, the court stated:
[T]he plea agreement is clear on its face.[1] [Appellant] was aware
of the recommendation of the Commonwealth at sentencing prior
to being sentenced. [Appellant] never raised the issue at
sentencing that the Commonwealth was arguing against the plea
agreement. The [c]ourt did follow the plea agreement and
sentencing … [with the REAP] [c]ounts … being concurrent, and
this [c]ourt made the sentence on [terroristic threats] and [the
two REAP c]ounts consecutive.
PCRA Court Order, 3/2/21, at 1 (single page). Appellant filed a timely notice
of appeal from this order, but then later filed a motion to withdraw that appeal,
which this Court granted. See Per Curiam Order, 5/7/21, at 1 (single page).
On February 16, 2022, Appellant filed the Motion at issue in the present
appeal. Therein, he again contended that his plea agreement called for
concurrent sentences on all counts. He insisted that the “written[,]
contractual plea agreement” was explicitly accepted by the court and then
violated when the court imposed a consecutive sentence for his terroristic-
threats offense. See Motion, 2/16/22, at 2 (unnumbered). On February 18,
2022, the trial court issued an order denying Appellant’s Motion.
On March 3, 2022, Appellant filed a timely, pro se notice of appeal. The
court thereafter ordered him to file a Pa.R.A.P. 1925(b) concise statement of
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1 The written plea agreement stated the sentencing recommendation as
follows: “Standard [r]ange with counts [five] and [six] concurrent.” Written
Plea, 1/9/19, at 1. The plea lists counts five and six as Appellant’s REAP
charges.
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errors complained of on appeal, and Appellant timely complied. The court
filed a Rule 1925(a) opinion on June 30, 2022.
Herein, Appellant states two issues for our review:
[I.] Did the [trial c]ourt err when it denied Appellant’s Motion…?
[II.] Does Appellant’s plea agreement need [to be] enforced so he
can get the full benefit of his plea bargain?
Appellant’s Brief at 4.
Preliminarily, we observe that,
a PCRA petition, including a second or subsequent petition, shall
be filed within one year of the date the underlying judgment of
sentence becomes final. 42 Pa.C.S.[] § 9545(b)(1). A judgment
of sentence is final “at the conclusion of direct review, including
discretionary review in the Supreme Court of the United States
and the Supreme Court of Pennsylvania, or at the expiration of
time for seeking the review.” 42 Pa.C.S.[] § 9545(b)(3).
A petition for collateral relief will generally be considered
a PCRA petition if it raises issues cognizable under the PCRA. See
Commonwealth v. Peterkin, … 722 A.2d 638, 640 ([Pa.] 1998);
42 Pa.C.S.[] § 9542 (stating [the] PCRA shall be [the] sole means
of obtaining collateral relief and encompasses all other common
law and statutory remedies for same purpose). The plain
language of the PCRA mandates that claims which could be
brought under the PCRA, must be brought under the PCRA.
Commonwealth v. Hall, 771 A.2d 1232, 1235 ([Pa.] 2001).
“On the other hand, 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. The designation of the petition does not preclude a
court
from deducing the proper nature of a pleading.”
Commonwealth v. Kerns, 220 A.3d 607, 611-12 (Pa. Super.
2019) (internal citations and quotation marks omitted).
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Further: “[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.” Commonwealth v. Martinez,
147 A.3d 517, 532-33 ([Pa.] 2016) (some internal citations
omitted).
Commonwealth v. Snook, 230 A.3d 438, 443–45 (Pa. Super. 2020).
Here, Appellant alleged in his Motion that his negotiated plea agreement
mandated concurrent sentences for each of the counts to which he pled guilty
and, because the court accepted that plea, it was bound to impose concurrent
sentences. Nevertheless, the trial court imposed a consecutive sentence for
his terroristic-threats offense, thereby violating the terms of the negotiated
plea agreement. Appellant averred in his Motion that he is entitled to specific
performance of the plea agreement for concurrent sentences. Because
Appellant’s Motion sought specific performance of his negotiated plea
agreement, we conclude that his claim is not cognizable under the PCRA or
subject to the timeliness requirements thereof. See id.
Nevertheless, no relief is due. Appellant’s argument that his plea
agreement called for concurrent sentences on all counts is waived. In
Commonwealth v. Parsons, 969 A.2d 1259, 1268 (Pa. Super. 2009) (en
banc), this Court held that, “[a]ssuming the plea agreement is legally possible
to fulfill, when the parties enter the plea agreement on the record, and the
court accepts and approves the plea, then the parties and the court must abide
by the terms of the plea.” However,
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[t]o be clear, a trial court legally may impose a harsher sentence
than the one agreed upon, even after accepting a plea with a
negotiated sentence. Commonwealth v. Tann, 79 A.3d 1130,
1133 (Pa. Super. 2013) (“Following the acceptance of a negotiated
plea, the trial court is not required to sentence a defendant in
accordance with the plea agreement. Such a sentence is legal, so
long as it does not exceed the statutory maximum.”). However,
when it does so, the trial court must give the defendant the option
to withdraw his plea and proceed to trial. Id. (“[A] criminal
defendant who is sentenced to more than was agreed upon in a
negotiated plea may withdraw his guilty plea upon being deprived
of the benefit of his bargain.”) (citing Commonwealth v.
Wallace, … 870 A.2d 838, 843 n.5 ([Pa.] 2005)).
Commonwealth v. Root, 179 A.3d 511, 518 (Pa. Super. 2018).
Here, even if Appellant is correct that his negotiated plea called for
concurrent sentences, the court’s acceptance of that plea still did not legally
preclude it from imposing a harsher, consecutive sentence for terroristic
threats. To challenge the imposition of that sentence as violative of the plea
agreement, or seek to withdraw his plea because of the court’s sentencing
decision, Appellant was required to file a post-sentence motion to withdraw
his plea or modify his sentence.
Indeed, Appellant did file a post-sentence motion to withdraw his plea,
asserting that the trial court’s sentence violated the terms of his negotiated
plea agreement with the Commonwealth. However, he then withdrew that
motion before the trial court could rule on it. Appellant also filed a post-
sentence motion for reconsideration of his sentence, arguing for concurrent
terms of incarceration, but that motion was untimely. Thus, Appellant
forfeited the opportunity to withdraw his plea or seek sentencing
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reconsideration on the basis that the court’s imposition of a consecutive
sentence violated the terms of his negotiated plea agreement.
Appellant seemingly recognized this fact when he filed a PCRA petition
asserting that his trial counsel was ineffective for failing to object to the court’s
sentence as violative of Appellant’s plea agreement, or advise Appellant to
move to withdraw his plea. In rejecting this claim, the PCRA court found that
Appellant’s sentence conformed to his negotiated plea agreement. Appellant
chose not to challenge that ruling on direct appeal.
Based on this record, we conclude that the trial court did not err in
denying Appellant’s Motion. Appellant did not pursue his post-sentence
motion to withdraw his plea, or timely challenge the court’s imposition of a
consecutive term of incarceration in a motion for reconsideration of his
sentence. He also failed to appeal when the PCRA court denied his request to
withdraw his guilty plea after concluding that his sentence comports with his
negotiated plea agreement. Accordingly, the trial court’s purportedly
sentencing Appellant more harshly than the negotiated plea agreement
contemplated was legal, and there is no contrary plea agreement to enforce.
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Order affirmed.
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Judgment Entered.
oseph D. Seletyn, Esq.
Prothonotary
ate: 3/23/2023
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