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582 Pa. 234

870 A.2d 838

Commonwealth v. Wallace

Supreme Court of Pennsylvania

Decided March 29, 2005

Supreme Court of Pennsylvania · decided 2005-03-29

Key passage — most relied on by later courts

“As ... the sentencing alternatives available to a court at the time of initial sentencing are all of the alternatives statutorily available under the Sentencing Code, ... at any revocation of probation hearing, the court is similarly free to impose any sentence permitted under the Sentencing Code and is not restricted by the bounds of a negotiated plea agreement between a defendant and prosecutor. [[Image here]] The rationale for giving the trial court such discretion upon resentencing is grounded in the nature of a negotiated guilty plea, which is a two-sided agreement that imposes obligations on both the defendant and the Commonwealth. On the one hand, the Commonwealth agrees not to prosecute the defendant to the full extent of the law and to recommend a circumscribed punishment. The defendant, on the other hand, accepts this benefit with the implicit promise that he will abide by the terms of the agreement and behave in accordance with the legal punishment imposed by the court. Significantly, the court ensures that the Commonwealth upholds its end of the bargain. Further, the court demands that the defendant, in return, fulfill his own obligations under the plea agreement in order to retain the benefits granted to him in that bargain. As a result, if the defendant fails to satisfy his obligations, e.g., by violating probation, he necessarily forfeits any entitlement to a circumscribed punishment. [T]o allow the defendant who breaches the bargain to keep the benefits confer”

quoted by 1 later decision, including 2013 Pa. Super. 46 - Commonwealth v. Infante

Relies on Commonwealth v. DiNicola · 2000 Pa. Super. 151 - Commonwealth v. Sierra · 1999 Pa. Super. 257 - Commonwealth v. Brown

Good law ✅— No negative treatment on recordhow we know

Decided 2005-03-29

How this case has been cited

Cited by 45 later decisions — most recently March 2026 · most notably Commonwealth v. Dickson (2007), Commonwealth v. Fletcher (2009)

44 state decisions

250200520102020decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

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Justice SAYLOR

¶1concurring and dissenting.

¶2For the reasons set forth by Mr. Justice Baer, I agree with him that the Commonwealth’s challenge to the Superior Court’s directive to the trial court to resentence Appellant in *251accordance with the terms of his original plea is waived by virtue of its failure to file a petition for allowance of appeal relative to such ruling. I would only add that there are mixed policy arguments to be made concerning whether a requirement to file a petition for allowance of appeal should be interposed as a prerequisite to issue preservation, which have not yet been addressed by this Court.1 Nevertheless, prevailing law as established by the highest appellate court to have considered the issue embodies the waiver position, see AT & T v. WCAB (DiNapoli), 816 A.2d 355, 359 (Pa.Cmwlth.2003), and this case was neither framed nor taken to serve as a vehicle to revisit this holding. Accordingly, I conclude that the Commonwealth was bound to lodge a petition for allowance of appeal to preserve its position that Appellant was properly exposed to resentencing up to the statutory maximum term on remand.

¶3On the substantive legal issue involved, my position is in alignment with the majority’s, although my reasoning would proceed more along the lines of that of Judge Klein as set forth in Commonwealth v. Fusselman, 866 A.2d 1109 (Pa.Super.2004). Principally, I believe that the analysis should give some account for the fact that imposition of a sentence exceeding that which is contemplated in the plea agreement is not in strict conformity with the statutory requirement that “the sentencing alternatives available to the court shall be the same as were available at the time of initial sentencing,” 42 Pa.C.S. § 9771(b), since the trial court would not previously have had *252the option of sentencing outside the terms of the agreement without offering the defendant the opportunity to withdraw the plea.2 As Judge Klein notes, however, strict adherence to the statutory language would lead to absurd results, since, for example, imposition of a term of incarceration would be unavailable on resentencing where the plea agreement did not contemplate a term of incarceration. See Fusselman, 866 A.2d at 1113.

¶4On a final note, while the general rule announced by the Court could implicate proportionality concerns, especially on such occasions where the defendant has served a substantial portion of the original sentence and probation is revoked for technical violations,3 it appears that the Superior Court is taking appropriate measures in this context. See, e.g., Sierra, 752 A.2d at 913 (“On appeal from a revocation proceeding, we find a substantial question is presented when a sentence of total confinement, in excess of the original sentence, is imposed as a result of a technical violation of parole or probation.”).4

¶5. As I indicated recently in a concurring opinion,

LOJn the one hand, a remand directive bears the hallmarks of an interlocutory decision, as the matter is being returned to the adjudicatory level for production of a record (or supplemental record) predicate to any further appellate review. In light of the potential interdependence of issues, and since at least one issue material to the outcome of the case remains to be decided, concerns for fairness and efficiency militate against requiring a potentially interim and unnecessary appeal. On the other hand, there are instances ... in which the intermediate appellate court's resolution of issues and arguments may integrally affect the scope of the proceedings on remand, thus militating in favor of requiring any contest to [be asserted, at least in the first instance,] prior to the effectuation of the remand.

¶6Commonwealth v. DiNicola, 581 Pa. 550, 581 n. 9, 866 A.2d 329, 348 n. 9 (2005) (Saylor, J., concurring).

¶7. In this regard, the plea agreement expressly provided that "if the judge does not go along with the plea bargain or agreement [the defendant] can withdraw [his] guilty plea and have a trial before a judge and jury or a judge alone.” Written Guilty Plea Colloquy, 1/26/96, at 1.

¶8. Technical violations are essentially non-criminal in nature, see, e.g., Commonwealth v. Sierra, 752 A.2d 910, 912 (Pa.Super.2000) (noting that “the probation violation was technical and did not involve a new criminal offense”), and need only be proven by a preponderance of the evidence. See Commonwealth v. Gochenanr, 331 Pa.Super. 187, 480 A.2d 307 (1984). Upon violation of probation, "the court is ... free to impose any sentence permitted under the Sentencing Code", Majority op. at 7, and thus, challenges to resentencing after revocation of probation would not be appeals of right, assuming the new sentence was within the bounds of that which the court could have originally imposed. See Commonwealth v. Brown, 741 A.2d 726, 734 (Pa.Super. 1999) (en banc). As the relevant appeal would be to the discretionary aspects of the sentence, several impediments to review would arise. See 42 Pa.C.S. § 9781(b).

¶9. It also bears mention that, in the present case, there are potential due process concerns regarding notice, as Appellee may have been unaware at the time that he entered his plea that he could be resentenced to the maximum term upon violation of probation, particularly since the law surrounding revocation of probation in this context was relatively *253uncertain at the time of the plea's entry. See, e.g., Commonwealth v. Adebaike, 846 A.2d 759, 761 (Pa.Super.2004) (recognizing criticism of Anderson, but holding that it constitutes “binding authority''). While I acknowledge that the sentencing judge did state at the VOP hearing that “I think we told you that it would not be a good idea for you to come back,” N.T., 1/12/00, at 9, and “[t]he effective sentence that you have received today ... is what I told you would get if you came back,” N.T., 1/21/00, at 11, any statements to that effect are absent from the record of the plea colloquy. See N.T., 1/26/96. In any event, this case is not the proper vehicle to address the notice issue, since Appellee has not raised it.

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