J-A13015-22
2022 PA Super 115
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
GREGORY LOWMAN :
:
Appellant : No. 2333 EDA 2021
Appeal from the Order Entered October 29, 2021
In the Court of Common Pleas of Northampton County Criminal Division
at No(s): CP-48-CR-0001458-2019
BEFORE: OLSON, J., DUBOW, J., and KING, J.
OPINION BY OLSON, J.: FILED JUNE 28, 2022
Appellant, Gregory Lowman, appeals from the order entered on October
29, 2021, which granted, in part, and denied, in part, his petition filed under
the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. We
vacate the PCRA court’s order, in part, and remand.
On May 30, 2019, the Commonwealth filed its criminal information
against Appellant. The information charged Appellant with 16 crimes,
including nine counts of aggravated assault, three counts of recklessly
endangering another person, and three counts of endangering the welfare of
a child. See Commonwealth’s Information, 5/30/19, at 1-3. On May 26,
2021, Appellant entered into a plea agreement with the Commonwealth.
Under the terms of the agreement, Appellant agreed to plead nolo contendere
to three counts of aggravated assault under 18 Pa.C.S.A. § 2702(a)(8) and,
in exchange, the Commonwealth agreed that “the remaining counts will be
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dismissed.” See N.T. Guilty Plea Hearing, 5/26/21, at 12 (Appellant agreed
to the following recitation of the plea agreement: “you were initially charged
. . . with 16 different counts. You’re pleading no contest to three of them, and
the remaining counts will be dismissed”). The parties did not agree upon any
particular sentence. See id. at 5 (“there’s no agreement with respect to
sentence”).
During the guilty plea hearing, the Commonwealth recited the factual
basis for Appellant’s plea:
On March [1, 2019,] Detective Miller of the Bethlehem Police
Department was contacted by Northampton County Children
and Youth in regards to [Appellant’s] five-week old daughter,
[L.L.], who was being treated at Lehigh Valley Hospital for
multiple fractures. A skeletal survey was conducted and
revealed that [L.L.] had three healing left posterior and
lateral rib fractures of her third, fourth, and fifth rib. The
injuries were determined by Dr. Jansen to be highly specific
for child abuse.
[Appellant] was interviewed regarding [L.L.’s] injuries. He
admitted during the interview that he was sole caretaker
during the time she sustained the rib fractures. He admitted
that he caused those injuries by squeezing her when she
would not stop crying.
Id. at 20.
The trial court accepted Appellant’s plea and, on May 26, 2021, ordered
Appellant to serve 18 to 36 months in prison for each of his three aggravated
assault convictions. In addition, the court directed that Appellant’s sentences
should be served consecutively to each other, for an aggregate sentence of
54 to 108 months’ imprisonment. N.T. Sentencing, 5/26/21, at 26-27.
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On July 6, 2021, Appellant filed a timely, pro se PCRA petition. The
PCRA court appointed counsel to represent Appellant and counsel filed an
amended petition on Appellant’s behalf. Within the amended petition,
Appellant claimed that his sentence was illegal, as his “three separate . . .
sentences for the same offense [arose] from a single criminal act[, which
constitutes a violation of] Pennsylvania’s merger doctrine.” Amended PCRA
Petition, 8/26/21, at 3. Within Appellant’s second amended PCRA petition,
Appellant clarified that he “requests that his sentence on two of the three
pleas of aggravated assault be vacated,” but that Appellant “does not seek
the withdrawal or vacation of his plea.” Second Amended PCRA Petition,
9/9/21, at 3.
The Commonwealth responded to Appellant’s petition and agreed that
Appellant’s sentence is “illegal because the offenses arose from a single
criminal act and should have merged for sentencing purposes.”
Commonwealth’s Brief in Response, 10/26/21, at 2. Therefore, the
Commonwealth agreed that Appellant’s sentence must be vacated. Id. The
Commonwealth, however, also argued that the PCRA court should entirely set
aside Appellant’s plea and return the case to its pre-plea status quo.
Specifically, the Commonwealth argued, Appellant’s plea was the result of an
agreement between Appellant and the Commonwealth, where “[i]n exchange
for [Appellant’s] nolo contendere plea, [the Commonwealth agreed] that the
remaining counts pertaining to the other injuries would be dismissed.” Id. at
5. The Commonwealth argued: since the plea agreement involved a “shared
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misunderstanding[] by the Commonwealth, [Appellant], and the [trial court]
as to the possible extent of [Appellant’s] sentence that fatally poisoned the
plea negotiations[,] . . . the Commonwealth is entitled to the vacation of
[Appellant’s] plea as well as [Appellant’s] sentence so as to be fairly returned
to the pre-plea status quo.” Id. at 6.
On October 28, 2021, the PCRA court entered an order granting, in part,
and denying, in part, Appellant’s PCRA petition. In particular, the PCRA court
concluded that Appellant’s sentence was illegal, as “the aggravated assault
offenses arose from a single criminal act and should have merged for
sentencing purposes.” PCRA Court Opinion, 10/28/21, at 3. Thus, the PCRA
court granted Appellant’s petition insofar as it challenged the legality of his
punishment. See PCRA Court Opinion, 10/28/21, at 1. The PCRA court,
however, then went further and vacated Appellant’s guilty plea in its entirety,
thereby returning the case to its pre-plea status. PCRA Court Order,
10/28/21, at 1; PCRA Court Opinion, 10/28/21, at 1; see also PCRA Court
Amended Order, 10/29/21, at 1.
Appellant filed a timely notice of appeal. He raises one substantive issue
to this Court:
Should Appellant’s guilty plea to three counts of aggravated
assault be reinstated?
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Appellant’s Brief at 4.1
“We review a ruling by the PCRA court to determine whether it is
supported by the record and is free of legal error. Our standard of review of
a PCRA court's legal conclusions is de novo.” Commonwealth v. Cousar,
154 A.3d 287, 296 (Pa. 2017) (citations omitted). Appellant asserts that the
PCRA court erred in concluding that the merger of his sentences undermined
the benefits each party derived from the plea agreement and, as such,
compelled the court to set aside Appellant’s guilty plea. These contentions
present mixed questions of law and fact, as we need to ascertain the terms of
the parties’ plea agreement and then determine whether the merger of
Appellant’s sentences defeated any benefits the parties anticipated from their
arrangement.
____________________________________________
1 The Commonwealth claims that we must quash this appeal, as Appellant
prevailed before the PCRA court and is not an aggrieved party. See
Commonwealth’s Brief at 5; see also Pa.R.A.P. 501 (“any party who is
aggrieved by an appealable order . . . may appeal therefrom”);
Commonwealth v. Polo,
759 A.2d 372, 373 n.1 (Pa. 2000) (“only an
aggrieved party can appeal from an order entered by a lower court”). The
Commonwealth is incorrect. Within his PCRA petition, Appellant requested
that the court uphold the validity of his plea and the PCRA court specifically
denied Appellant’s request. Appellant has thus been “adversely affected” by
the PCRA court’s decision and, to the extent the PCRA court denied his request
to uphold the validity of the plea, Appellant has standing to appeal the PCRA
court’s order. See In re J.G.,
984 A.2d 541, 546 (Pa. Super. 2009) (en banc)
(“a party is ‘aggrieved’ when the party has been adversely affected by the
decision from which the appeal is taken”) (quotation marks, citations, and
brackets omitted).
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We begin our analysis by discussing a line of cases starting with our
holding in Commonwealth v. Melendez-Negron, 123 A.3d 1087 (Pa.
Super. 2015). In Melendez-Negron, Melendez-Negron was charged with a
variety of drug-related crimes. In accordance with a negotiated plea
agreement, Melendez-Negron pleaded guilty to possession of a controlled
substance with the intent to deliver (“PWID”) and, on November 15, 2013,
the trial court sentenced him to serve a term of five to ten years in prison,
pursuant to the mandatory minimum sentencing statute found at 42 Pa.C.S.A.
§ 9712.1. Id. at 1089. However, months before Melendez-Negron pleaded
guilty, the United States Supreme Court decided Alleyne v. United States,
570 U.S. 99 (2013). There, the United States Supreme Court held that
mandatory minimum sentencing statutes such as 42 Pa.C.S.A. § 9712.1 were
unconstitutional, since “the facts that increase a mandatory minimum
sentence are not submitted to a jury and are not required to be found beyond
a reasonable doubt.” Melendez-Negron,
123 A.3d at 1091.
Melendez-Negron did not file a direct appeal from his judgment of
sentence. However, Melendez-Negron filed a timely PCRA petition, where he
claimed that his trial counsel “was ineffective for allowing [him] to plead guilty
to a sentence based on [an unconstitutional] mandatory minimum sentencing
enhancement” Id. at 1090. Melendez-Negron requested that the PCRA court
vacate his sentence and resentence him; he did not request that the PCRA
court permit him to withdraw his guilty plea.
Id. at 1091 n.7.
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The PCRA court granted Melendez-Negron’s PCRA petition, vacated his
punishment, and agreed to undertake resentencing proceedings. The
Commonwealth filed a notice of appeal and claimed, among other things, that
the PCRA court erred when it merely vacated Melendez-Negron’s sentence and
agreed to resentencing. Id. at 1090. According to the Commonwealth, if the
PCRA court were going to grant Melendez-Negron relief, it needed to vacate
Melendez-Negron’s entire guilty plea and “return[ the case] to the status quo
prior to the entry of the guilty plea.”
Id. at 1091. As the Commonwealth
argued: “in consideration of agreeing to a five-to-ten-year period of
incarceration, [the Commonwealth] gave up the opportunity to seek sentences
on the drug paraphernalia and small amount of marijuana charges. By simply
allowing resentencing pursuant to the sentencing guidelines, the
Commonwealth . . . [lost] the benefit of its bargain.”
Id. at 1092 (quotation
marks and citations omitted).
We agreed with the Commonwealth and concluded that the PCRA court
erred when it failed to vacate the entirety of Melendez-Negron’s guilty plea
and restore the case to its status prior to the entry of the guilty plea. Id. at
1091-1092.
Within our opinion, we analogized the case to our prior opinions in
Commonwealth v. Hodges, 789 A.2d 764 (Pa. Super. 2002) and
Commonwealth v. Lenhoff,
796 A.2d 338 (Pa. Super. 2002). In both
Hodges and Lenhoff, the defendants, the Commonwealth, and the trial court
judges were all under the mistaken belief that the defendants were subject to
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more severe statutory maximum sentences than those which the trial courts
were authorized to impose. See Hodges, 789 A.2d at 765 (the parties
mistakenly believed that the defendant was subject to the death penalty
when, “because of [the defendant’s] age, the death penalty was never
applicable”); Lenhoff,
796 A.2d at 342-343 (the parties mistakenly believed
that the defendant committed a second-degree felony, when the defendant
actually committed a third-degree felony). The defendants then pleaded
guilty in order “to avoid [a] sentence . . . [that] the [trial] court did not have
the legal authority to impose.” Lenhoff,
796 A.2d at 342-343. As we held in
both Hodges and Lenhoff, the defendants were entitled to withdraw their
guilty pleas, as “[t]he entire process of [the] plea negotiations . . . was
affected by [the] . . . [statutory maximum sentencing calculation] error.”
Hodges,
789 A.2d at 767.
Utilizing this precedent, the Melendez-Negron Court held:
This case is fundamentally akin to Hodges and Lenhoff;
where it differs is that it is the Commonwealth, not the
defendant, who argues that it [has been] deprived of the
benefit of its bargain. We see no reason why the rationale of
Hodges and Lenhoff should be limited to criminal
defendants. Indeed, both parties to a negotiated plea
agreement are entitled to receive the benefit of their bargain.
See Commonwealth v. Townsend, 693 A.2d 980, 983 (Pa.
Super. 1997) (“[W]here the parties have reached a specific
sentencing agreement . . . the court cannot later modify the
terms of the agreement without the consent of the
Commonwealth” because this would deny the Commonwealth
the full benefit of the agreement which it reached . . . and
the defendant, in turn, would receive a windfall.”);
Commonwealth v. Coles, 530 A.2d 453 (Pa. Super. 1987)
(holding that granting defendant’s motion to modify
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negotiated plea sentence stripped Commonwealth of the
benefit of its bargain). . . . Accordingly, we conclude that the
shared misapprehension that the mandatory minimum
sentence required by [42 Pa.C.S.A. § 9712.1] applied to
Melendez–Negron tainted the parties’ negotiations at the
outset. As in Hodges and Lenhoff, the parties’ negotiations
began from an erroneous premise and therefore were
fundamentally skewed from the beginning. Thus, while we
affirm the PCRA court’s order vacating Melendez–Negron’s
sentence, we further vacate his guilty plea and remand for
further proceedings.
Melendez-Negron, 123 A.3d at 1093-1094.
Later, in Commonwealth v. DiMatteo, our Supreme Court applied –
and limited – our holdings in Melendez-Negron, Hodges, and Lenhoff.
Commonwealth v. DiMatteo, 177 A.3d 182, 196 (Pa. 2018). In DiMatteo,
the defendant entered “an open guilty plea to 56 counts of possession with
intent to deliver (PWID) and one count each of criminal conspiracy and corrupt
organizations.”
Id. at 183 (footnotes omitted). On February 6, 2013, the
trial court sentenced DiMatteo to serve multiple, mandatory minimum
sentences, pursuant to 18 Pa.C.S.A. § 7508.2 Id. at 184. DiMatteo did not
file a direct appeal to this Court.
____________________________________________
2 As the DiMatteo Court explained:
Section 7508 prescribe[d] various mandatory minimum sentences
for certain violations of The Controlled Substance, Drug, Device
and Cosmetic Act, including PWID, predicated on the weight and
classification of the controlled substance. Notably, Section 7508
specifie[d] that its provisions “shall not be an element of the
crime[,]” the application of the sentence “shall be determined at
sentencing[,]” and the factual determinations necessary to impose
the sentence are to be found by the sentencing court by a
preponderance of the evidence. 18 Pa.C.S. § 7508(b).
(Footnote Continued Next Page)
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Again, the June 17, 2013 decision of the United States Supreme Court
in Alleyne altered the legality of mandatory minimum sentences such as
those imposed upon DiMatteo by holding “that any fact which, by law,
increases the mandatory minimum sentence for a crime must be: (1) treated
as an element of the offense, as opposed to a sentencing factor; (2) submitted
to the jury; and (3) found beyond a reasonable doubt.” DiMatteo, 177 A.3d
at 184.
After Alleyne was decided, DiMatteo filed a timely PCRA petition. On
appeal, this Court held that DiMatteo’s sentence was illegal under Alleyne;
we thus vacated DiMatteo’s judgment of sentence and remanded for
resentencing. The Commonwealth then appealed to the Pennsylvania
Supreme Court and, among other things, claimed that we erred when we
merely vacated the judgment of sentence and remanded for resentencing.
According to the Commonwealth, the case was controlled by
Melendez-Negron and, under that precedent, we should have vacated the
plea and “restore[d] the parties to their pre-plea agreement status.” Id. at
194 (quotation marks and citations omitted). Specifically, the Commonwealth
argued, it was entitled to have the entire plea vacated because:
notwithstanding the fact that there was no agreement as to
sentencing in [DiMatteo], the Commonwealth [contended
that it] nonetheless withdrew a number of counts based on
DiMatteo pleading guilty. [According to the Commonwealth,
____________________________________________
DiMatteo, 177 A.3d at 183-184 (some citations omitted).
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its decision] to forgo additional counts “was premised in part
on the mandatory sentences that applied to the counts” to
which DiMatteo pleaded guilty.
Id. at 192-193 (citations omitted).
The Commonwealth claimed that, under Melendez-Negron, it was
entitled to “the benefit of its bargain” and, since DiMatteo’s sentence was
vacated as illegal, the entire case must be returned to “pre-plea agreement
status.” Id. at 194. The Pennsylvania Supreme Court rejected the
Commonwealth’s claim. As the DiMatteo Court explained:
We agree with the Superior Court that the appropriate
remedy in this case is vacating the judgment of sentence and
remanding without consideration of the mandatory minimum
sentence. We reach this conclusion based on the particular
circumstances and timing of the entry of DiMatteo's plea.
Although both this case and Melendez–Negron arise in the
context of seeking collateral relief under the PCRA, the
remedies are specific to the unique procedural posture of the
case. First, we note that the Superior Court in
Melendez-Negron analyzed the claim under the
ineffectiveness paradigm. A finding that plea counsel was
constitutionally ineffective which resulted in prejudice
entitled Melendez–Negron to relief under the PCRA in the
form of vacating the plea. See 42 Pa.C.S. § 9543(a)(2)(ii).
In the instant circumstance, the Superior Court found the
illegality of the sentence manifest and ordered relief from the
illegal sentence, a remedy authorized by the PCRA. 42
Pa.C.S. § 9542. Moreover, Melendez–Negron's negotiated
guilty plea was accepted on November 15, 2013, which was
five months after the decision in Alleyne was announced and
one month following the intermediate court's opinion in which
it determined that Section 9712.1 was unconstitutional as
applied. Consequently, at the time of the plea, counsel was
ineffective for failing to advise Melendez–Negron to “reject a
plea that incorporated a sentence based upon § 9712.1. This
is so especially in light of the fact that the application of
§ 9712.1 resulted in a sentence that was more than double
the aggravated range sentence” he would otherwise face.
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Further, the rationale of Hodges, Lenhoff, and
Melendez-Negron stand for the proposition that “both
parties to a negotiated guilty plea” are entitled to the benefit
of their bargains, but such bargains may not be premised on
some “shared misapprehension” that wrongfully induces the
plea. Accordingly, the holdings of those cases apply only to
negotiated guilty pleas, not to open guilty pleas.
In the instant case, at the time DiMatteo entered into his
open guilty plea, there was no “shared misapprehension”
regarding the legality of the sentences that could be imposed,
and there was no agreement or bargain between the
Commonwealth and DiMatteo as to sentencing at all. The
sentencing court did not impose its sentence under a
misconception over what sentence it could impose under law.
Rather, following sentencing, Alleyne was decided,
rendering the mandatory minimum schemes with the
defective judicial fact-finding procedure illegal. This is not an
occasion where a defendant and the Commonwealth
bargained for a term of imprisonment, and the defendant
reneged. DiMatteo pleaded guilty to a number of counts, with
no agreement or contract with the Commonwealth and then
challenged the legality of his sentence. The remedy is a
correction of the illegal sentence.
Id. at 195-196 (some citations omitted).
In the case at bar, Appellant and the Commonwealth entered into a plea
agreement, where Appellant agreed to plead nolo contendere to three counts
of aggravated assault and the Commonwealth agreed to “dismiss the
remaining counts pertaining to the other injuries indicated in the” criminal
information. PCRA Court Opinion, 10/28/21, at 3; see also N.T. Guilty Plea
Hearing, 5/26/21, at 12 (Appellant agreed to the following recitation of the
plea agreement: “you were initially charged . . . with 16 different counts.
You’re pleading no contest to three of them, and the remaining counts will be
dismissed”). As in DiMatteo, “there was no agreement or bargain between
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the Commonwealth and [Appellant] as to sentencing at all.” See DiMatteo,
177 A.3d at 196.
Appellant then filed a PCRA petition and claimed that his sentence was
illegal, as “the aggravated assault offenses arose from a single criminal act
and should have merged for sentencing purposes.” See PCRA Court Opinion,
10/28/21, at 3. The PCRA court granted Appellant relief on this claim and,
thus, vacated Appellant’s judgment of sentence. However, the PCRA court
went further and vacated Appellant’s plea as well, reasoning that Appellant’s
“plea agreement involved a shared misunderstanding that fatally affected the
entire process of the plea negotiations from the outset.” See id. at 5.
Respectfully, we conclude that the PCRA court misperceived the terms of the
parties’ agreement when it vacated Appellant’s plea for this reason.
Here, Appellant and the Commonwealth simply agreed that, if Appellant
pleaded nolo contendere to three counts of aggravated assault, the
Commonwealth would dismiss the remaining counts in the information.
Although the PCRA court later held that “the aggravated assault offenses arose
from a single criminal act and should have merged for sentencing purposes,”
this conclusion does not alter the bargain that was struck between Appellant
and the Commonwealth, which did not touch upon the issues of consecutive
versus concurrent sentencing or duration of punishment. Certainly, the PCRA
court did not vacate Appellant’s convictions – and Appellant’s agreement to
plead nolo contendere to three counts of aggravated assault remains intact.
Rather, the PCRA court merely held that Appellant’s three aggravated assault
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convictions should have merged for sentencing purposes. PCRA Court
Opinion, 10/28/21, at 3; see also 42 Pa.C.S.A. § 9765 (“No crimes shall
merge for sentencing purposes unless the crimes arise from a single
criminal act and all of the statutory elements of one offense are included in
the statutory elements of the other offense. Where crimes merge for
sentencing purposes, the court may sentence the defendant only on the
higher graded offense.”) (emphasis added). Yet, Appellant and the
Commonwealth did not have any agreement regarding sentencing.
Therefore, we echo our Supreme Court’s opinion in DiMatteo and hold, in the
case at bar, as follows:
In the instant case, at the time [Appellant] entered into his
[] guilty plea, there was no “shared misapprehension”
regarding the legality of the sentences that could be imposed,
and there was no agreement or bargain between the
Commonwealth and [Appellant] as to sentencing at all. . . .
This is not an occasion where a defendant and the
Commonwealth bargained for a term of imprisonment, and
the defendant reneged [or the term of imprisonment was
legally impossible to fulfill at the outset]. [Appellant] pleaded
[nolo contendere to three aggravated assault counts], with
no agreement or contract with the Commonwealth [regarding
sentencing] and then challenged the legality of his sentence.
The remedy is a correction of the illegal sentence.
DiMatteo, 177 A.3d at 196 (citations omitted).
In conclusion, since the parties did not agree upon any particular
sentence, the PCRA court’s vacation – on merger principles – of Appellant’s
judgment of sentence did not alter the terms of the plea agreement between
Appellant and the Commonwealth. Appellant’s plea of nolo contendere to
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three counts of aggravated assault remains intact. As such, the PCRA court
erred when it vacated the plea and returned the parties to their pre-plea
agreement status. The appropriate remedy was simply to correct Appellant’s
sentence and leave Appellant’s guilty plea undisturbed.
Order vacated in part. Case remanded. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/28/2022
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