Com. v. Burger, J.
2040 EDA 2016
| Pa. Super. Ct. | Dec 18, 2017Background
- Joel Burger pleaded guilty to 22 counts of burglary and 22 counts of criminal conspiracy; the Commonwealth consolidated counts into four groups and agreed each count within a group would receive a standard-range sentence, with no agreement on concurrency between groups or with a separate New Jersey sentence.
- At the guilty-plea colloquy the Commonwealth and court misstated Burger’s prior record score as 2, and the court suggested a possible minimum of 9 years; no contemporaneous objection was made.
- A presentence investigation corrected Burger’s prior record score to 5; at sentencing the court reviewed the corrected guideline ranges and imposed standard-range terms for each group (5–10 years for two groups; 2–4 years for two groups), ran the four groups consecutively, and ordered the Pennsylvania sentence consecutive to his New Jersey sentence for a cumulative 14–60 years (RRRI made effective minimum ~11.5 years).
- Burger later sought relief arguing the sentence breached the plea agreement and his plea was involuntary because he was not advised the corrected prior record score would increase his minimum; he also alleged counsel misconduct and sought nunc pro tunc direct appeal via PCRA proceedings.
- The trial court and Superior Court held Burger’s sentence complied with the literal terms of the plea (standard-range group sentences) and that his plea was knowing and voluntary; Burger failed to preserve a voluntariness objection at plea/sentencing or within ten days post-sentence, so his claims were waived on direct appeal.
Issues
| Issue | Plaintiff's Argument (Burger) | Defendant's Argument (Commonwealth/Trial Ct.) | Held |
|---|---|---|---|
| 1. Whether court breached plea by imposing a higher minimum than agreed | Plea colloquy misrepresented prior record score (2) and induced expectation of a lower minimum (2–9 years); court later imposed a higher minimum after correcting score | Plea required only standard-range sentences per grouped counts; sentencing conformed to that agreement using correct prior record score | No breach; sentence complied with plea terms |
| 2. Whether plea was involuntary/unknowing because of misstatement of sentence range | Burger would not have pleaded if he knew prior record score was 5 and minimum would be higher; court never advised he could withdraw plea | Colloquy and sentencing transcript show Burger was informed of charges, rights, and that judge need not accept agreement; corrected range was explained at sentencing and Burger raised no timely objection | Waived on direct appeal; plea found knowing, voluntary, intelligent |
| 3. Whether court erred by failing to advise right to withdraw plea after range changed | Court allegedly failed to inform Burger of right to withdraw when range increased | Record shows proper colloquy and sentencing explanation; no contemporaneous motion to withdraw filed within ten days post-sentence | Claim belied by record and waived |
| 4. Whether counsel was ineffective for not objecting at sentencing/post-sentence | Trial counsel failed to object to corrected guideline calculation and failed to protect Burger’s right to withdraw | Ineffective-assistance claims are properly raised in a PCRA petition, not on direct appeal; claim premature here | Not considered on direct appeal; may be raised in PCRA |
Key Cases Cited
- Commonwealth v. Lincoln, 72 A.3d 606 (Pa. Super. 2013) (guilty plea waives nonjurisdictional defects except plea validity and sentence legality)
- Commonwealth v. Hainesworth, 82 A.3d 444 (Pa. Super. 2013) (plea-agreement breach analyzed by parties’ reasonable understanding; ambiguities construed against Commonwealth)
- Commonwealth v. Berry, 877 A.2d 479 (Pa. Super. 2005) (distinguishing enforcement claims from legality-of-sentence challenges)
- Commonwealth v. Clair, 326 A.2d 272 (Pa. 1974) (abolition of plain-error doctrine in Pennsylvania context)
- Commonwealth v. Mctlauley, 797 A.2d 920 (Pa. Super. 2001) (six-area plea colloquy test for voluntariness of guilty plea)
- Commonwealth v. Mouzon, 812 A.2d 617 (Pa. 2002) (sentencing discretion and review standards)
- Commonwealth v. Ward, 568 A.2d 1242 (Pa. 1990) (deference to trial court at sentencing)