Commonwealth v. Berry

294, Ogrod, 576 Pa. remaining presented by appel- issues 889 A.2d 307 the Starr, law, (2003), issues, and questions 541 lant. Those as court; by this Appel- Pa. 664 A.2d have since been addressed therefore, by the trial court is bound prior appeal, lant claims that on the Al- Superior the decisions of the Court. Supreme Court addressed his constitution- ternatively, evidentiary hearing if an was arguments Megan’s al related to Law II. required, any presented This true time as new evidence though, even now, unavoidably subject provi- highlight appellant’s he would SVP Thus, I affirm Megan’s problems standing. II. with would Appellant sions of Law argues, Supreme implicitly held the trial court. Court standing appeal, that he had even with- being

out classified as an SVP.

¶ Although the Commonwealth’s blush,

argument persuasive at first we Appellant arguing

hold that is correct the law of the case establishes his words,

standing appeal. In other in the prior appeal, Supreme ad Court Pennsylvania, COMMONWEALTH of Appellant’s dressed constitutional chal Appellee lenge Megan’s though Law II even had not been classified as an That SVP. must, believe, procedure interpreted we implicit

as an Supreme Jeffrey BERRY, Appellant. conclusion L. Court that Appellant standing. had Superior Pennsylvania. Court of Therefore, we conclude that the law of the case established Supreme Court’s Sept. 2004. Argued prior reject decision requires us to argument Appellant Commonwealth’s Filed June does not have standing aggrieved as an

party.

¶ Accordingly, we vacate the order

the trial court and remand for an eviden-

tiary hearing on all of the issues identified Supreme our in footnote 27 of

Williams, including punitiveness.

¶ 28 vacated. remanded for Order Case

evidentiary hearing in accordance with this relinquished.

opinion. Jurisdiction ELLIOTT, J.: files FORD

Dissenting Statement. ELLIOTT, J., Dissenting:

FORD respectfully 1 I dissent. believe the our properly complied fully

trial court

Supreme remand and considered Court’s Haven, Miller,

Craig appel- P. Lock lant. Mcknight,

Ted Assistant District Attor- Haven, Commonwealth, ney, ap- Lock for pellee. ELLIOTT, JOYCE,

Before: FORD STEVENS, MUSMANNO, LALLY- GREEN, TODD, KLEIN, BENDER and BOWES, JJ. LALLY-GREEN, BY J.:

OPINION ¶ Appellant, Jeffrey Berry, appeals L. 20, 2003, the order March from dated de- nying petition his first under the Post Con- (PCRA), 42 viction Relief Act Pa.C.S.A. §§ 9541-9546. affirm.' We ¶ 2 procedural history The of the case is Appellant charged as follows. influence, driving one count of under of driving operating and one count while privileges suspended are or revoked. On 12, 2002, September the court held a colloquy. During colloquy, Appellant expressed proceed pro his desire to se. Appellant court allowed to do so. The The parties court then stated that had plea arrangement. Specifically, a reached guilty pleas, in exchange Appellant’s for attorney the district would recommend Appellant’s sentences be served con- currently. Appellant The court advised that the court was not bound the terms The court also plea arrangement. if the court did not Appellant told Appellant arrangement, abide pleas. to withdraw his would be entitled understanding his Appellant affirmed guilty and entered his these statements pleas. 21, 2002, the court held a 3 On October Appellant pro-

sentencing hearing. Again, pro se. The court rejected the ceeded ¶7 Appellant’s will address We sentencing recommenda- Commonwealth’s argues that Appellant issue first. sentences. second imposed consecutive tion appeal a did not failure to file direct mandato- imposed court Specifically, the sentencing of his operate as waiver driving under days for ry prison term of claim, legality challenges because prison to a term of suspension, consecutive To be enti a sentence are never waived. The court did nine to 28 months DUI. relief, petitioner must tled that he could with- Appellant not inform alia, allega inter that the plead prove, that he plea. Appellant stated draw liti previously has not been tion error challenge the sentence. wanted or waived. Pa.C.S.A. gated fill out Appellant told that he should court 9543(a)(3). if it could An is waived § issue a Public county jail at the to obtain a form filing of the prior have been raised Appel- reflects that Defender. The record 42 Pa.C.S.A. motions, petition, but was not. PCRA any post-sentence lant did not file 9544(b). § appeal. and did not file a direct ¶ 8, 2003, ¶ Appellant filed a January Appellant 4 On reflects that 8 The record The court timely petition. plea, PCRA PCRA did not not to withdraw his did move motions, for Counsel appointed Appellant. counsel not file and did post-sentence file peti- Instead, In that petition. peti- filed an amended filed a appeal. a direct tion, Here, that his sentence Appellant argued for the first the PCRA. tion under Appellant argued illegal. Specifically, time, that he be al- requested Appellant plea agree- that the trial court violated Since guilty pleas. his lowed to withdraw by imposing ment consecutive this claim the failed to raise Appellant allowing Appellant to withdraw appeal, not this issue is trial court or on direct that he argued further plea. Appellant exception his to the waiver unless waived able to withdraw should be applies. rule The PCRA court to trial. proceed ¶9 exception well-established One 19, 2003. The hearing a on March held challenges legality day, next petition court denied This means are never waived. sentence 20,2003. appeal This followed. March challenge to may entertain a that a court ap- issues on Appellant 5 raises two long as the so legality of the sentence peal: the claim. jurisdiction to hear court has per- court err in not 1. Did the lower context, jurisdiction is tied to In the PCRA to withdraw mitting the defendant See, timely petition. a PCRA filing guilty plea? 795, Voss, A.2d 800 v. 838 waive his 2. Did defendant filed Appellant (Pa.Super.2003). Because filing not a di- juris the sentence contest other petition and no timely a appeal? exist, rect must now deter hurdles we dictional truly challenges Appellant mine whether Brief at 4. Appellant’s legality of the sentence. for an order standard of review 6 Our has stated Supreme Court 10 Our the record denying PCRA relief is whether that exceeds the determination, is one illegal “an sentence court’s supports the PCRA v. limits.” Commonwealth statutory determina- PCRA court’s and whether the 1127, 141, 1131 Bradley, 575 Pa. error. Commonwealth legal tion free of (2003). Lipinski, In Commonwealth Allen, Pa. 732 A.2d this Court (Pa.Super.2004), A.2d 537 recognized implicate legality broader definition of an ille- statute does waivable). sentence, gal statutory sentence: “if no authorization and is therefore sentence, particular exists that sen- ¶ 14 Appellant cites Common illegal subject tence is to correction.” Williams, 442 Anthony wealth v. Pa.Su Id. at 5B9. (1995), per. prop 660 A.2d 614 for the Appellant’s illegal. osition that sentence is ¶ 11 The broader definition applies disagree because does not We Williams Thus, Appellant’s case. a sentence is in control the instant case. Williams illegal where a statute bars the court from petition volved second PCRA See, imposing that e.g., sentence. Com filed before the 1995 amendments. The Archer, monwealth v. 722 A.2d alia, claimed, defendant inter that he did (en banc); (Pa.Super.1998) Common promised. receive the sentence he was Mariani, wealth v. Super 2005 PA Id. at 619. Court held Williams (failure A.2d 484 to advise the defendant of time, under the law as it existed at that the amount and method of restitution at (1) claim would be waived unless it: the time of sentencing illegal results in an innocence; implicated the defendant’s sentence); Commonwealth v. Edrington, possibility miscarriage raised the of a of 721, (failure 780 A.2d 723 (Pa.Super.2001) (3) justice; or implicated legality of the impose a mandatory minimum sentence Ultimately, sentence. Id. at 618. this sentence). in an illegal results miscarriage Court held that “it would be a justice person relinquish of for a cher ¶ 12 The recog Archer Court also rights ished constitutional on a based non-statutory nized one example of an ille promise that kept.” was not Id. 619 gal namely, sentence: a claim that sen added). Thus, (emphasis the Williams Archer, merge. tences should 722 A.2d at opinion Court’s turned the second sce 209; also, Walker, see Commonwealth v. (miscarriage justice), nario of not the third 323, (1976); 468 Pa. 362 A.2d 227 Com sentence). (illegal Unfortunately, scenario Norris, 308, monwealth v. 498 Pa. 446 recognize our do not prospect Courts 246, (1982); A.2d 251 n. 9 miscarriage justice general of a as a Campbell, 56, v. Pa.Super. 351 505 A.2d excusing basis for waiver under the 1995 (1986) (en banc). 262 particular This ex See, amendments. v. ception is based on longstanding Supreme 377, 250, Judge, Pa. A.2d 260 568 797 precedent regarding double jeopar (“there injustice refusing is no dy. Walker. Appellant allow to revive on collateral re during view claims that he waived his di ¶ Thus, 13 our case law draws Rather, appeal.”). miscarriage rect careful truly “illegal” distinction between justice standard now acts as an additional sentences, and may sentences which have second, petitioner hurdle when the files a product type legal been the of some See, timely petition. Common Archer, error. 722 A.2d at 209. Archer 214, 313, Fahy, wealth v. 558 Pa. 737 A.2d progeny and its have that the established (1999). 223 “illegal term sentence” is a term of art ¶ that our apply narrowly, Courts to a rela 15 do note that Commonwealth v. We See, Anderson, 309, tively small Pa.Super. class of cases. Common 434 643 A.2d Williams, 1085, (1994), 109, wealth v. progeny Ernest 787 A.2d 111-112 and its stand (a (Pa.Super.2001) 1087 claim that the trial proposition the sen for the that where tencing comply court relied on an unconstitutional court fails to with the terms of a

484 ¶ impli- claim not Appellant’s If does' illegal. that sentence is 18 plea agreement, sentence, it is legality cate the proposition this Anderson announced Rush, 576 Pa. waived. Commonwealth footnote, in order to apparently law in a (2003); Pa.C.S.A. claim underlying sentencing address 9545(b). Here, Appellant § waived rather than the defendant’s assertion failing appeal. to file a direct claim Id. at 112 & n. 6. More- ineffectiveness. Moreover, allege not he did ineffectiveness over, rule was based on the Anderson to raise claim on of counsel for failure 590). (now Pa.R.Crim.P. Pa.R.Crim.P. 319 Therefore, appeal. the issue direct time, of Rule 319 part At the the relevant waived. read as follows: waived, if the issue 19 Even were that the If the is satisfied entitled to relief. Appellant would voluntarily en- understandingly reasoning Our follows. tered, may accept plea. If there- to concur in

after the decides not language of plain 20 Based on the permit the plea agreement, he shall involved plea colloquy, the instant case plea. defendant to withdraw parties agreement. Specifically, “agreement to make favorable made added). 319(b)(3) (emphasis Pa.R.Crim.P. con recommendation” for non-binding but 319(b)(3) re- Rule sentences. Commonwealth current above, provision requiring pealed. Porreca, 553, 567 A.2d Pa.Super. permit the court to the defendant with- (1989), grounds, on other reversed to eliminate plea, draw the “was deleted In Porre Pa. 595 A.2d 23 being generated when that the confusion ca, clearly informed the defen the court conjunction provision read if plea his that he could not withdraw dant 591, it provided As in Rule is a Rule 591. by the recom chose not to abide the court judicial discretion and case law matter of Here, contrast, the court mendation. or permit to or direct whether that he could clearly Appellant informed to withdrawn.” plea of nolo contendere con if the court chose withdraw his Consequent- Rule Official Comment. cases, the In both secutive sentences. Appellant’s does not control ly, Anderson “the enforceable agreement was because case.1 limits plainly are set agreement record, understood and forth on the ¶ Thus, law does not 17 current case by agreed by parties, approved to proposition Appellant’s support Id. the trial court.” challenge claim non-waivable is. Appellant the sentence. does hon- legality sentencing, prosecutor At 21 or double recom- identify any statutory bargain basis not ored his end of However, declaring that his sen- jeopardy mending basis for concurrent sentences. Further, prior to numerous illegal. Appellant’s we decline tence is because influence, “illegal driving sentence” for under expand the definition convictions content, his re- alcohol type, high of this because his blood encompass claims the court parole, peated basis for do- failures while simply principled no there attorney’s by the district did not abide ing so. may impose consecutive later quite recently, Su- trial court our 1. We also note pro- probation after a revocation effectively preme overruled Anderson's Court Wallace, 870 A.2d ceeding. Commonwealth v. parties into a pronouncement that when enter sentences, (Pa.2005). 838 negotiated plea for concurrent

485 907(B). Instead, recommendation. the court im did this Appellant not raise issue See, posed court; thus, consecutive in the sentences. PCRA it is waived. Order, 3/20/2003, at 2. The court Second, 26 are not issues which to do entitled so under the terms raised in a Concise Statement of Matters agreement. Pa.R.A.P. Complained Appeal of on under McClendon, Pa.Super. 403 589 A.2d 1925 on appeal. are waived Common (en banc).2 710 (Pa. Lord, wealth v. 309 A.2d Similarly, under terms set out 1998). Appellant any did not issues raise court, Appellant the trial was entitled relating right in his his counsel Con petition guilty plea. withdraw his Thus, cise claim Statement. this Appellant certainly could have done so waived. filing petition with the court. Com- ¶27 Finally, are issues that Watson,

monwealth v. 835 A.2d supported by citations to the record and to Unfortunately, (Pa.Super.2003). he did pertinent legal authority are waived. not do so. v. Kopicz,

¶ Appellant argues that the tri (Pa.Super.2003); Appel Pa.R.A.P. 2119. al court “failed allow him to [withdraw lant now has counsel the instant PCRA plea].” Appellant’s his at 10. Ap appeal. Brief appeal, Appel this counseled pellant overstates the case. While the tri lant develop any meaningful has failed to al court failed remind Appellant argument relating that he Appellant to whether could plea, withdraw his this is not the knowingly voluntarily waived “failing” same as Appellant during allow to to counsel or the colloquy plea. Rather, withdraw his it Thus, sentencing hearing. remained claim is Appellant’s responsibility to move to with waived. draw if he so plea, desired. Watson. ¶ 28 Order affirmed. Appellant

Because did not move to with plea, fairly draw his cannot be said that ¶ KLEIN, Dissenting files J.: any the court erred in way. Opinion joined MUSMANNO, by Judges BENDER and BOWES. ¶ 24 concluding, Before note we the fol- lowing. of Some our colleagues esteemed KLEIN, BY DISSENTING OPINION have their expressed Appel- concern that J.: lant may voluntarily not have waived his ¶ 1 I respectfully disagree the deci- with right during to counsel plea colloquy. the case, majority sion reached the in this We decline to address this issue because it Frankly, and I therefore must dissent. grounds. is waived on several disposition it digest today’s find difficult to

¶25 First, given judicial plagu- are not issues which the substantial errors ing raised in the PCRA court are waived on I am to turn a unwilling this case. 302(a); appeal. eye significant Pa.R.A.P. Pa.R.Crim.P. in this blind mistakes McClendon, the this Court held that where a This was true even in when seem- by sentencing ingly language mandatory trial court is not bound rec- of Pa.R.Crim.P. ommendation, 319(b)(3) (discussed supra) the does not in effect. defendant have was Thus, right plea plea Appellant the automatic to withdraw his sim- was entitled to have ply only right the court the as a because defendant withdrawn as a matter of effect, harshly language express more than result to this the recommendation McClendon, open in would call for. at 710. which was stated court. case, judge only Berry told he had a only impacted pro right the se trial which not him he decision-making process, appeal did tell had a litigant’s but also —he waiver, go very right guilty plea the to withdraw his and helped pave way the majority the tenu- trial. through vehicle which case ously bases its decision. This reeks Berry At hearing, the PCRA where unfairness, I conclude in of and cannot finally judge was the trial represented, Berry that afforded good conscience was noted, again reading colloquy “And the process every the him and individual due it guilty plea proceeding], ap- from [the land, guaranteed by

in our as our State it would pears reading that a visceral and Federal Constitutions. accepted plea as a that the Court the offer ¶2 (N.T. Berry charged agreement.” Hearing, DUI and was with 2). 3/19/03, However, at trial judge driving operating privileges while were he had made a mistake September or On claimed that and suspended revoked. (Id. agreement. entry plea, that there no at prior guilty to his of a 4-5). pro- Berry’s Berry counsel stated Berry judge told the he would However, at preliminary the waiv- informed both ceed without counsel. accepted hearing stage conversations with er of counsel was without valid Attorney’s Office that he had colloquy, judge- as trial failed to ascer- the District However, alia, agreement. tain, in fact made a Berry inter whether knew the he no record he faced be- the trial said had range maximum of sentences counsel, permit testimony. that and did not further fore he waived his 5). (Id. at dangers proceeding failed outline representation. without majority’s conclu- disagree se, Berry “legal” sen- pro Berry entered a sions received Proceeding and, therefore, charges. During waived his claim. guilty plea to both tence majority trial stated on sentence is—as plea proceeding, While numerically legal since falls record if he decline the would reasons — maximum, statutory it can hard- Attorney’s District recommendation within sentence, sentences, wrought by ly allow Ber- be said that the concurrent would judicial colloquies and er- proceed defective waiver ry to withdraw his (N.T. 6). 9/12/02, Plea, ror, constitutionally legal. par- I cannot Guilty to trial. denying relief that take the charade ¶ However, hearing, sentencing at the the semantic guarantees, Due Process se, Berry appeared again pro where is illegal that a sentence where basis sentences, judge imposed consecutive statutory maximum. it exceeds the noting “the after that Commonwealth has ¶ A unconstitu- that 7 sentence woven from agreed your to recommend sentences (N.T. fabric, in case viola- Sentencing, tional entered run concurrent.” 3). court, 10/21/02, judge plea agreement and rules of possible at It is tion of challenge legality of illegal. A Berry that had told he could is forgot he sentence, timely if in a go presented trial if and to withdraw his cannot Our petition, consec- be waived. chose to make the sentences PCRA event, has that issues con- Berry repeatedly ruled any In stated utive. are sentence, cerning legality of sentence non-waiva- to appeal wanted reviewed our Court sua may him to fill out the form ble advised See, Defender, v. sponte. e.g., Commonwealth Ran- county jail get to at the Public 1211, dal, (Pa.Super.2003) 1214 no filed. The 837 A.2d though appeal such ever

487 (en banc); v. duration Edrington, simply Commonwealth limited to the of the maxi- 721, See, A.2d (Pa.Super.2001); imposed. e.g., 780 723 mum term Com Common- (Pa.Su- Archer, 203, Mariani, monwealth v. 722 A.2d 209 wealth v. 869 A.2d 484 (en banc); (failure (Pa.Super.1998) per.2005) Common determine restitution Quinlan, 111, v. Pa.Super. wealth 433 639 amount at sentencing produced time of (1994). 1235, A.2d Beck, 1238 This is so sentence); even illegal v. Commonwealth PCRA, (failure the context of provided (Pa.Super.2004) 848 A.2d 987 jurisdictional Act’s require Davis, timeliness served); grant credit for time su- ments are met. See Commonwealth v. offenses); pra (merger Edrington, of su- 313, (1999) Fahy, 558 Pa. (failure 737 A.2d 214 pra mandatory impose minimum issue, (legality of though sentence non- (minimum sentence); Hockenberry, supra waivable, must nonetheless be filed within maximum); sentence exceeded one-half the one-year filing period the PCRA’s in order Quinlan, (validity supra probationary of jurisdiction).3 confer order). in sentencing sentence not included fact, specifically repeatedly we have Instantly, above, 118 Berry as noted filed ruled that a failure to impose court’s sen- fashion, ie., petition timely his PCRA in a tence in accordance with the terms of a year one within of the date his judgment of plea bargain illegal constitutes sen- such, sentence became As Berry’s final. Williams, tence. Commonwealth v. 442 legality of sentence claim retains its non- 590, 614, Pa.Super. 660 618-619 waivable cognizable status and is under (1995); Daniels, v. the Act. 440 615, Pa.Super. 539, (1995); 656 A.2d ¶ 9 Recognizing a claim of illegal Anderson, Commonwealth v. 434 Pa.Su- waived, sentence cannot be the majority 309, 109, per. 643 A.2d that, reasons although the trial judge re- neged on promise majority attempts he made to endear its during colloquy, by properly including defendant decision the sen- within “illegal” tence is not its concept illegality because the those sentence within maximum term which provided by statutorily imposi- are barred from contrary, however, statute. To the Majority tion. Opinion citing well settled that legality Lipinski, sentence issues Commonwealth v. 841 A.2d 537 variety arise in a of contexts and (Pa.Super.2004). are not This Court’s definition recognize issue”) (citations omitted) protec- raising (empha- the "non-waivable” added). Davis, assigned tion legality of sentence claims sis See also Commonwealth (Pa.Super.2000) has been scaled strict (legality back via observance 760 A.2d jurisdictional timely the PCRA's presented pe- time sentence limitations. claims Voss, cognizable though appellant Commonwealth v. 838 A.2d tition were even (Pa.Super.2003), Fahy, citing supra. appeal) (empha- did not direct Howev- raise them on er, coat, added); Hockenberry, firmly "non-waivable” otherwise sis claims, legality signifi- Pa.Super. fastened sheds its 689 A.2d (issues jurisdictional relating legality cance where the Act’s re- sentence were quirements cognizable appellant have not been met. See Voss at and not waived where (although legality post-sentence sentence failed to of claims must file motions or direct give way jurisdictional appeal, timely post-conviction peti- to Act’s time but limita- filed tions, sentence) "challenges legality imposition a to the of sentence tion nine months after of Thus, added). year (emphasis be raised of the date our case law dem- [can] within one legality a of sentence that defendant's conviction becomes final” onstrates that a claim year 'sufficiently generous’ long "a retains its non-waivable status so as the because is jurisdictional allow a defendant if his or Act’s time limitations are satis- to determine her illegal petition file a sentence is and to PCRA fied. that, advising than counsel without the defendant of illegality of is broader sentence Then, however, by permitted. our decision in the maximum sentence as reflected Newton, pro trial the judge 875 A.2d 1088 the induces se defen- Commonwealth (2005). Newton, plead guilty promise a that expressly In the Court dant with his may two counts will be concurrent sentence be deemed sentences on “[a] noted reasons,” including illegal plea. or he can withdraw his The trial for various basis, judge him to statutory without or “statuto then sentences consecutive those barred,” the rily present advising still-unrepre- as the time without observed However, can majority. Id. at 1091. the sented defendant withdraw his short, begotten a interpret plea.5 the “stat In sentence Newton Court did not evi tactics cannot fair- utorily exclusively, barred” nuance as such bait and switch ie., legal. Accordingly, I am holding, ly its that a claim of considered denced majority’s is unable to to the con- grounded to allocution—which subscribe statute, imposed in clusion that the sentence was le- but in rule court—nonethe challenge and illegal gal, legality less a claim of sentence. the waived constitutes Id. at 1091-92.4 therefore.

¶ Here, similarly, the sentence claim, to the of the Turning merits 121, 590, Rules entered in violation of and judge a trial is bound to follow believe that just the And like a denial plea agreement. the plea agreement a stated on record allocution, the case illegality our does during colloquy the defendant.6 benign seemingly not manifest itself in the Daniels, supra, In this imposed, its terms of the sentence but trial principle reiterated that a Court indispensable process. Pursuant extant with the terms of comply court bound law, therefore, chal- Berry’s case claim is a agreement, plea a and a recommendation sentence, lenge and legality of sentence is one such term. This Court cannot be waived. stated: Indeed, general proposition, sentencing a is a imagine a As it is difficult to discretion of manifestly more unfair than this. matter vested the sound

scenario remain undis- First, judge accepts a trial court will waiver justice person miscarriage to relin- Consequently, 4. Newton held that Court rights was not sub- quish rule-based allocution claim constitutional based on cherished ject to waiver. Id. at 1092. promise kept.” at that was not Id. 619. This here, given principle applies a fortiori Williams, supra, 5. this determined In Court Berry petition, litigating first sentencing comply that the court’s failure heightened petitions of serial standard illegal plea bargain constituted an with sentence, apply. does not statutory though even it was within Notably, presented Williams this limits. outset 6.I note at the time in his second PCRA claim for first does not the fact that the should contest strong requiring prima show- petition, facie Berry withdraw his if have allowed justice miscarriage of occurred ing that a argu- timely Relying on its waiver asked. Lawson, 519 pursuant to Commonwealth v. ment, that it "has the Commonwealth submits 549 A.2d 107 Williams Pa. appeal position of this no on merits Notwithstanding heightened stan- this argument issue this offers no on the before dard, opinion granted relief. the Court Court,” Hester, despite the fact that the trial stated, "Certainly, by Judge this proper in his indicated that the sentence prosecutor if to adhere to the terms failed (Commonwealth 1925(a) opinion. Brief agreement, provide Rule would 6). Reargument, at grounds as would be a for PCRA relief objection” appeal, turbed on absent an abuse of or “no to Commonwealth that by discretion. concurrent time the Commonwealth. Upon agreement, acceptance plea a unjust an ap- 16 To make situation however, the trial court is bound to worse, Berry’s pallingly waiver counsel comply that agree- with terms of colloquy grossly inadequate. Conse- ment. A sentence recommendation is quently, subsequent all proceedings —in- among bargain. the “terms” of a plea guilty cluding Berry’s plea invalid. —were Therefore, a negotiated sentence is Indeed, in of counsel this absence binding on court where the sen- particular heavily Berry’s impacted case plainly tence is set on the forth rec- ignorance of the fact that could he have ord, agreed understood and guilty withdrawn plea. parties approved the trial ¶ 17 colloquy, The waiver of in counsel court. its entirety, following: consisted of the Anderson, quoting A.2d at THE Berry, COURT: Mr. before we (internal omitted). at 113 citations proceed further, any inquire need ¶ 14 in This accord the proce- you that you understand that have an plea agreements dures for set forth in right represented by absolute be an Pa.R.Crim.P. which reads: attorney? THE DEFENDANT: Yes. (B) Plea Agreements THE you And do understand COURT: (1) When counsel for both sides have that if you attorney can’t afford an that plea agreement, they arrived at a shall appointed represent you one would be court, state on the record in open charge? free of presence defendant, the terms of the agreement .... THE DEFENDANT: Yes.

(2) shall a separate conduct THE COURT: And with knowl- inquiry of the defendant on the record to edge, you proceed do still want to determine whether the defendant under- your own behalf? voluntarily stands and accepts the terms THE DEFENDANT: Yes. plea agreement on which the (N.T. 2-3). 9/12/02,at guilty plea or of nob contendere is Berry The Court advised based. the maximum Ber- possible sentences after case, 15 In clearly ry right had waived counsel.7 during colloquy stated if he would ¶ 19 Supreme The United States unwilling accept the recommendation California, stated Faretta U.S. sentences, of concurrent he would allow 95 S.Ct. 45 L.Ed.2d

Berry to guilty plea. withdraw his Re- (citations omitted): time, gardless of what was said ahead of on the manages record it was clear that this was a When accused his own de- negotiated fense, plea, nego- relinquishes, where the he factu- purely as matter, many “no al tiation was for of the traditional bene- recommendation” problem compounded impose 7. The because the to these two concurrent sentence 9/12/02, Therefore, (N.T. 2). first the fact at discussed counts.” counsel, mandatory 90-day Berry two counts carried the time waived his thought likely facing sentences and the averred well could he was have object days jail. if the Court wants "w[ould] 490 the understanding to broad of whole mat- right

fits with the counsel. associated reason, A make that an For to ter. can certain represent in order professed himself, accused’s waiver of counsel “knowingly the must accused wisely only understandingly and made intelligently” forgo and those relin- penetrating comprehensive from a and quished Although a defendant benefits. examination of all the un- circumstances expe- the skill need not himself have and such a der which is tendered. lawyer a in order competently rience of to intelligently self-represen- and choose 724, 332 68 S.Ct. 316. In accor- U.S. tation, the he should be made aware of principles, the comment dance with these dangers self-repre- of disadvantages and 121, Counsel, to Pa.R.Crim.P. Waiver of sentation, so that the record will estab- requirements of a delineates the minimum knows he is and doing lish that he what colloquy involving the waiver of counsel.8 eyes open. his choice is made with case, Berry 21 In the present 835, 422 95 U.S. at S.Ct. right of and to informed counsel Hence, appointed indigent. if counsel Pennsylvania Supreme 20 The Court in unquestionably waiver of counsel was stated, “The waiver of the similarly has son, Pay A.2d valid. Commonwealth v. 723 right appear counsel from the must (Pa.Super.1999); 695 see also Common a and knowing intelligent record to be (Pa.Su Houtz, v. A.2d 119 wealth 856 understanding of decision made full (where per.2004) waiver of counsel collo v. consequences.” the areas, quy not all did delve into mandated Szuchon, 250, 1365, 228, Pa. 484 506 A.2d unsound). it was Gillies, In Von Moltke (1948), U.S. 68 S.Ct. 92 L.Ed. of Since the waiver counsel provided the Supreme United States defective, Berry’s ques- failure to raise the the guidance as to minimum information validity tion the of his before be disseminated the defendant: the court cannot constitute waiver. Strachan, Pa. right To ... the [of be valid waiver (1975), the appre- must be made with an counsel] observed, rule, general a failure charges, the Court “As hension of nature them, proceeding to raise an issue in a criminal statutory offenses included within punishments not constitute a waiver where range of allowable does thereunder, represented by is not counsel possible defenses to defendant exception charges mitigation proceeding.” and circumstances and thereof, knowingly and all facts essential to rule is where defendant other fines, (4) 121(c) and that if he waives provides, "When the 8. Pa.R.Crim.P. right right counsel will be bound all the to counsel defendant seeks waive procedure counsel hearing, rules of and that preliminary after shall normal record, rules, (5) defendant, these on the would be familiar with ascertain from charges possible knowing, voluntary, are defenses these is a and there whether this aware, these might counsel be and if intelligent The comment which waiver counsel.” raised, minimum, they may lost are the court should defenses states that at that, and, (6) permanently, to de- knowing, in addition a waiver counsel is ensure that that, fenses, rights other if has voluntary, intelligent, that the defendant defendant asserted, (1) right timely may permanently be lost has a to be understands: that he objected and are not represented that if errors occur and the to free counsel (2) timely raised the defen- indigent, otherwise the nature of the to or counsel if dant, may be lost objection to these errors charges each against him the elements of permanently. range charges, permissible of those intelligently representation by asking attorney waived counsel and was for an case, Berry counsel. in represent Id. Since this did him.9 knowingly intelligently rep- not and waive ¶26 sum in up To what occurred this counsel, by resentation his failure to raise right case: a defendant to coun- waives his question plea the the in propriety of his through colloquy; unrepre- sel defective trial court in the first not instance does thereafter, by sented he is told the Com- constitute waiver. v. Mo- that they monwealth would recommend nica, 528 Pa. A.2d 600 judge concurrent sentences and told ¶ 23 Berry unrepresented was his that judge thought when if the the sentences plea consecutive, in- was entered and the trial court would have be the defen- formed him that he could if plea; withdraw it dant guilty could withdraw his and imposed concurrently. were then judge sentences him consecu- Having validly right time, waived pro his tive and the is not se defendant counsel, Berry must permitted plea. to with- told guilty he can withdraw his I guilty plea. supra. draw his See Payson, egregious that the believe circumstances of this relief. case warrant error, topOn this spe- the court ¶27 cifically Berry Finally, told that he I could withdraw believe that there is an judge if the point determined that that emphasis, par- additional merits he could not go along with a concurrent ticularly light of the circumstances and, imposing sentence. After generally, contempo- consecutive sen- this case more tences that violated what Berry rary judicial practice. judge told If was makes during colloquy, it was clear Ber- colloquy, mistake in the not be it should ry However, perhaps dissatisfied. be- being the defendant who suffers after mis- judge forgot judicial cause the what told he had led The trial mistake. Berry plea taken, when gave judge he at hearing stated the PCRA and 1925(a) e., the standard advice on i. appeal, opinion there was no Rule that he post-sentence However, had to file plea agreement. motions the trial when denial, appeal could from their and judge hearing, declared this at the PCRA that he had the Berry’s Berry counsel if he would counsel stated would fill out an for application testify a Public Defend- he was informed both at the (N.T. 7). er at prison. 10/21/02, preliminary hearing at later conversa- Attorney’s the District office tions with ¶ 25 necessary Because was to file a a plea agreement. Despite that there was motion guilty to withdraw the within proffer, this the trial refused to take days, ten Berry we have no idea whether therefore, minimum, At a testimony. in fact proper could obtain the forms if case should be remanded to determine that time. He had received a state sen- Berry specific plea was told he had a tence, years. since total was one to two agreement. We do not when he to the know was sent prison. state we variety options All know from the record There are a Berry recog- is that filed has petition plea agreements, when his PCRA as this Court 8, 2003, January he still did not have nized: if, sentencing, Berry Presumably at time allowed would have so advised him and trial, had in- remembered that he had go would not this situation Berry formed that he could withdraw the have occurred. concurrent, if the sentences were not certainly recognize pressure spects. is an open plea agreement, In an there judges through cases charges on trial move to be agreement as At quickly to alleviate crowded dockets. to re brought, agreement but no all time, only it minutes the same takes a few right the prosecution’s the to seek strict complete the and colloquy to ensure that is those applicable maximum to Particularly a state sen- effective. when negoti end of charges. At the other the might where a defendant continuum, tence is involved plea plea agreement ated custody, of the spend years speak not to not the may specify agreement to cost of thousands of dollars of tens charges brought, spe to but also the to taxpayers, asking it is not too imposed. much penalties cific to be be colloquies properly. require that be done there tween extremes are various these make options, including agreement an to ¶ can refer example, judges 31 trial For or, here, as an no recommendation Pennsylvania the for Crimi- to Benchbook non agreement make a but favorable Proceedings, prepared nal which under is as binding long So recommendation. Pennsylvania the Confer- auspices agreement plainly the limits of the are Judges. generally of Trial ence State See record, and set forth on the understood Benchbook Criminal Pennsylvania for agreed by parties, approved the and ed.2001). (3d The Benchbook Proceedings court, by impedi the we find no guilty on comprehensive has a section Bennett, 512 [Commonwealth ment written pleas, sample colloquies, with 525, 1248 or Pa. Pa. 517 A.2d ] id., forms, guilty and other aids. See plea 319(b) 590(B) Rule to] R.Crim.P. [now 1, colloquy §§ oral 62.01-62.09. Its Vol. offer, acceptance, performance or the clearly between distinguishes checklist plea agreements. of such enforcement the defen- “open” pleas and where pleas Porreca, if the Pa.Super. plea 389 his or dant can withdraw her (1989), Id. judge accept bargain. the 567 A.2d 1047 rev’d refuses § Pa. A.2d 23 grounds, other 62.02.

(1991).10 ¶ "withwrit- dealing 32 Another section

¶ variety options, the of as distinguishes 29 Because of situa- colloquies ten between case, lawyers and are judges bargain, in the instant plea tions there no where to the exact intentions make no agreement often confused as where there is negotiations. recommendation, Because the defen- a rec- plea the and there is where up or her layperson giving drop charges. dant is certain ommendation trial, it is imperative right provides constitutional This the defendant section judge make sure that the not plea judge the trial the if the does can withdraw crystal negotiations agree- terms the are or go plea bargain exact the along with § and on the record. The defen- clear stated ment. Id. 62.05. guess. have to

dant should not where “normal” situation is one on the stated a recommended sentence is Unfortunately, guilty plea colloquies record, comprises that exact sentence in this and other re- are often deficient validity affect the did not Supreme in Porreca reversed reversal 10. Our range describing colloquy language a new because above-quoted and remanded for inquiry into Porreca’s there was no whether v. Dal options. See Commonwealth promises or induced berto, Pa.Super. 20 & n. 648 A.2d part plea agree- threats were Therefore, the basis ment. 595 A.2d at 28. negotiated plea. Judge The defendant has a will be bound I assume that stated on the terms recommendation understand receive, permitted my are what and if will not be to withdraw record he will guilty/no plea if oc- go does not contest this should along bar- cur. gain, the defendant to with- will be able go

draw trial. Unless Id. at 711. record, stated on clearly Attorney11 37 The Assistant District go beyond cannot the sentence recom- followed-up McClendon with this on-the- mended without colloquy: record the defendant giving opportunity an to you regardless And understand that guilty withdraw his or her plea. any or that recommendation comment ¶ noted, 34 As it is in that placing plea bargain, oner- we make the legally any- judges guarantee you ous burden trial utilize the doesn’t to maximum; checklists, form than the the colloquies, thing standard less that oral reject still Judge ... can our colloquies follow-up written oral recommen- impose questions. any up It is dations and sentence to not difficult to that ensure the maximum allowed law? things such as the maximum allowable sen- tences, crime, the elements of the and the pres- facts that the Commonwealth would mean, What that would at the time clearly ent at trial are stated on the rec- we would sentencing come before this only ord. It takes a few additional minutes indicate to our Judge the covered,

to be sure that everything a is, position objection we have no the period considering minute time it all the sentences, running that the two counts bring a takes defendant the bar of said, at time. the same But as I court, the let alone the time defendant the guarantee you Judge, does not that the may in spend prison. later fact, going accept position. our ¶ impose He can Likewise, still consecutive sen- it is not to clearly difficult tences, you understand that? state the nature of the plea negotiations if they not going are binding. Several Id. show succinctly.

cases how can be done ¶ case, 38 In the instant the did judge trial fail to make it clear The colloquy quoted written form sentence preclude recommended did not McClendon, Commonwealth v. 403 Pa.Su- him (en sentencing Berry from time more per. banc), 589 A.2d 706 him the giving option without to withdraw part: read in relevant plea, judge actually but stated 6. Judge understand that the is not Therefore, opposite. permissi- it was not by the any bargain bound terms of Berry ble for the trial to sentence it. accept unless chooses to term him affording consecutive without Judge will at announce his decision opportunity guilty withdraw his conclusion of plea colloquy which plea. my If signing paper. follows agrees again, to make sen- 39 But this Court has no busi- tencing my behalf, discussing recommendation on ness merits this unfortu- Although Attorney or con- Comment to Rule advises District defense counsel from conduct part ducting colloquy. all or colloquy, prohibit it does not the Assistant validly Berry never nate case because any under stan- right to counsel

waived his result, subsequent Berry’s

dard. As nullity, were a plea proceedings

guilty view,

therefore, Berry should be my ie., relatively minimal

afforded relief— one—so that starting square

relief of

justice may fairly be had. reasons, I re- foregoing 40 For the dissent.

spectfully

George LOWE, M. Petitioner COMPENSATION UNEMPLOYMENT Cole, Erie, petitioner. for Jeffrey J. REVIEW, BOARD OF Wilt-Seibert, Asst. Counsel Maribeth Respondent. Mackarevich, Deputy Chief and Gerard M. Counsel, Harrisburg, respondent. for Pennsylvania. Court of COLINS, Judge, President BEFORE: Dec. on Briefs Submitted JIULIANTE, SMITH-RIBNER, J., and 10, 2005. Decided March Judge. Senior 14, 2005. June Publication Ordered Judge BY OPINION SMITH-

RIBNER. (Claimant) petitions

George M. Lowe 25, 2004 the June the-Court review Compensation Unemployment order (Board) holding Review Board of for Trade Read- ineligible Claimant (TRA) cash benefits justment Assistance Trade Act of 1974 233 of the under Section (Trade Act), § because 19 U.S.C. job train- approved in an not enrolled request a timely and did ing program to be en- requirement from waiver The issue training.1 rolled such under the agencies but conducted ployment by state em- program administered 1. The

Case Details

Case Name: Commonwealth v. Berry

Court Name: Superior Court of Pennsylvania

Date Published: Jun 13, 2005

Citation: 877 A.2d 479

Court Abbreviation: Pa. Super. Ct.