J

- S33019

- 23

NON

- PRECEDENTIAL DECISION

- SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

LARRY SHAW, JR.

Appellant :

:

:

:

:

:

:

:

: IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 260 WDA 2023

Appeal from the PCRA Order Entered February 1, 2023 In the Court of Common Pleas of Fayette County Criminal Division at

No(s): CP

- 26

- CR

- 0000591

- 2020

COMMONWEALTH OF PENNSYLVANIA

v.

LARRY SHAW, JR.

Appellant :

:

:

:

:

:

:

:

: IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 261 WDA 2023

Appeal from the PCRA Order Entered February 1, 2023 In the Court of Common Pleas of Fayette County Criminal Division at

No(s): CP

- 26

- CR

- 0000300

- 2020

COMMONWEALTH OF PENNSYLVANIA

v.

LARRY SHAW, JR. Appellant :

:

:

:

:

:

:

:

: IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 262 WDA 2023

Appeal from the PCRA Order Entered February 1, 2023

In the Court of Common Pleas of Fayette County Criminal Division at

No(s): CP

- 26

- CR

- 0000288

- 2020J

- S33019

- 23

- 2

-

COMMONWEALTH OF PENNSYLVANIA

v.

LARRY SHAW, JR.

Appellant :

:

:

:

:

:

:

:

: IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 263 WDA 2023

Appeal from the PCRA Order Entered February 1, 2023 In the Court of Common Pleas of Fayette County Criminal Division at

No(s): CP

- 26

- CR

- 0000575

- 2019

BEFORE: BENDER, P.J.E., McCAFFERY, J., and STEVENS, P.J.E. *

MEMORANDUM BY McCAFFERY, J.: FILED: October 24, 2023

Larry Shaw, Jr. (Appellant)

, 1 appeals from the order s entered on

February 1, 2023 , in the Fayette County Court of Common Pleas, dismissing

his petition s for collateral relief filed under the Post Conviction Relief Act

(PCRA) 2 in the above

- captioned cases. 3 Appellant seeks relief from an

aggregate sentence of 5 to 11 years’ incarceration , imposed on July 8 , 2020,

after he entered a global guilty plea in four separate criminal matter s.

_________________ __________ ______ ____ _______

* Former Justice specially assigned to the Superior Court.

1 In the notices of appeal and records

, various forms of Appellant’s name were used

, i.e.

, “Larry Shaw Jr.,” “Larry Shaw ,” and “Larry Franklin Jr. Shaw.” We

have amended the caption for consistenc y and will use one version of Appellant’s name.

2 42 Pa.C.S. § 9541

- 9546.

3 The Commonwealth did not file an appellee’s brief in this matter.J

- S33019

- 23

- 3

-

Appellant ’ s court

- appointed counsel, James V . Natale , Esquire ( Attorney

Natale ), has filed a petition to withdraw from representation and a brief

pursuant to Anders v. California , 386 U.S. 738 (1967), and

Commonwealth v. Santiago , 978 A.2d 349 (Pa. 2009 ). 4 At Docket No s

.

26 0 WDA 2023

, 5 262 WDA 2023, 6 and 263 WDA 2023, 7 w e grant Attorney

Natale’ s petition s to withdraw, and affirm the order s dismissing Appellant ’ s

petition s

. At Docket No. 261 WDA 2023, 8 we deny Attorney Natale’s motion

to withdraw, and direct counsel to file an advocate’s brief or a new

Turner/Finley no merit letter a nd motion to withdraw within 45 days of the

date of this memorandum.

I. Facts and Procedural History

A recitation of the underlying facts is not necessary to our disposition

.

Briefly, at a July 8, 2020 , proceeding

, Appellant pled guilty to the following

_________________ __________ ______ ____ _______

4 Preliminarily, we note that Attorney Natale erroneously seeks to withdraw

under Anders

, supra , instead of the proper procedure espoused in
Commonwealth v. Turner

, 544 A.2d 927 (Pa. 1988), and Commonwealth

v. Finley

, 550 A.2d 213 (Pa. Super. 1988) ( en banc ). Generally, we accept

an Anders brief in lieu of a Turner/Finley letter because an Anders brief provides greater protection to the defendant. See Commonwealth v. Fusselman

, 866 A.2d 1109, 1111 n.3 (Pa. Super. 2004).

5 See Trial Docket CP

- 26

- CR

- 0000591

- 2020 ( Trial Docket 591

- 2020)

.

6 See Trial Docket CP

- 26

- CR

- 0000288

- 2020 (Trial Docket 288

- 2020)

.

7 See Trial Docket CP

- 26

- CR

- 0000575

- 2019 (Trial Docket 575

- 2019)

.

8 See Trial Docket CP

- 26

- CR

- 0000300

- 2020 ( Trial Docket 300

- 2020).J

- S33019

- 23

- 4

-

offenses: (1) at Trial Docket 591

- 2020, simple assault and harassment; 9 (2)

at Trial Docket 300

- 2020 , aggravated assault , persons not to possess

firearms, terroristic threats, simple assault, and reckless ly endangering

another person; 10 (3) at Trial Docket 288

- 2020, perso ns not to possess

firearms, firearms not to be carried without a license, possession with intent

to deliver controlled substances, possession of controlled substances, and

possession of drug paraphernalia; 11 and (4) at Trial Docket 575

- 2019, theft

by decep tion

. 12

At the hearing, the trial court accepted the global plea agreement and

then proceeded to sentence Appellant on each of the dockets. The court

imposed a sentence of 5 to 10 years’ imprisonment for persons not to possess

firearms at Trial Docket 300

- 2020, and a concurrent term of 4 to 10 years’

imprisonment for the same crime at Trial Docket 288

- 2020. See N.T., 7/8/20,

at 11, 13. At Trial Docket 591

- 2020, the court imposed a term of 6 to 12

months’ imprisonment for simple assault, to run consecutive to the sentence

at Trial Docket 288

- 2020, and at Trial Docket 575

- 2019, the court imposed a

concurrent sentence of 21⁄2 to 5 years’ imprisonment. See id. at 12. As will

_________________ __________ ______ ____ _______

9 18 Pa.C.S. §§ 2701(a)(3), 2709(a)(1).

10 18 Pa.C.S. §§ 2 702(a)(4), 6105(a)(1), 2706(a)(1), and 2705.

11 18 Pa.C.S. § 6106(a)(1); 35 P.S. § 780

- 113(a)(16), (30), (32).

12 18 Pa.C.S. § 3922(a)(1).J

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- 23

- 5

-

be discussed below, the se sentences were to run concurrent to an unrelated

matter at trial docket CP

- 26

- CR

- 0000287

- 2020 ( Trial Docket 287

- 2020).

Appellant did not file a post

- sentence motion to withdraw his plea or a

direct appeal. Instead, on March 11, 2021

, at Trial Docket 300

- 2020

,

Appellant filed a pro se document titled “Motion to Modify and Reduce

Sentence Nunc Pro Tunc .” No action was taken. Thereafter, on May 24th, he

filed a timely pro se PCRA petition

. Attorney Natale was appointed to

represent Appellant and filed an amended PCRA petition on October 20, 20 21,

arguing trial counsel was ineffective for failing to object when the court

sentenced Appellant at Trial Docket 300

- 2020, and for failing to file a direct

appeal. See Appellant’s Amended Post Conviction Relief Act Petition,

10/20/21, at 1

- 2 (unpaginated). Appellant did not request permission to file

a post

- sentence motion nunc pro tunc

. One week later, on October 27, 2021,

the PCRA court entered an order granting Appellant’s request to file a direct

appeal nunc pro tunc

. On June 22, 2022, a panel of this Court affirmed 13

Appellant’s judgment of sentence nunc pro tunc , and the Pennsylvania

Supreme Court subsequently denied his petition for allowance of appeal

. See

Commonwealth v. Shaw , 1321 WDA 2021 (unpub . memo.) (Pa. Super. June

22, 2022)

, appeal denied

, 200 WAL 2022 (Pa. Oct. 25, 2022).

_________________ __________ ______ ____ _______

13 The unpublished memorandum was prepared by this same author

.J

- S33019

- 23

- 6

-

Relevant to this appeal, the panel sua sponte pointed out a discrepancy

in the record:

The written guilty plea form indicates that Appellant was pleading guilty to various counts in the aforementioned cases, and would receive an aggregate sentence of 4 1/2 to 11 years ’ incarceration, consecutive to another sentence he had recently

received. See Guilty Plea, 7/8/20. The Commonwealth reiterated this agreement at the commencement of the plea hearing. See N.T., 7/8/20, at 2 (Commonwealth stating the plea “ calls for a term of four and a half to eleven years consecutive to the sentence he just r eceived on all four cases ” ). The court and its staff refer to the prior offense as “ 287 of 2020, which was [a] trial. ” See id. at 11, 13. Upon our independent review of Appellant ’ s Fayette County Court Summary, we confirmed that on July 6, 2020, Appella nt was sentenced to a term of 6 to 12 years for persons not to possess firearms at [Docket 287

- 2020]

.

As noted above, the court imposed a sentence of five to

ten years ’ imprisonment for the firearms offense in the present

case. Initially, the court state d the sentence would run concurrently to the sentences for the other three pleas entered that day, as well as to [Docket 287

- 2020]

. N.T., 7/8/20, at 13. Inexplicably, the court also stated: “ I[f] our calculations are

correct that should total four and a half to eleven years which was the plea bargain consecutive to 300 of 2020. ” Id. (emphasis added). However, the court then corrected itself and indicated

the sentence sub judice would run “ consecutive to 287 of 2020. ”

Id. To further complicate matters, the sentencing order in the

certified record states “ this sentence shall run concurrent with the sentencing imposed at Nos. 287 of 2020 ; 288 of 2020; 591 of

2020 and 575 of 2020. ” Order, 7/8/20 (emphasis added). Thus, despite the agreement that Appellan t would serve an aggregate

term of 4 1/2 to 11 years ’ imprisonment, it appears he was sentenced to an aggregate term of 5 to 11 years ’ imprisonment. Nevertheless, Appellant has not raised any challenge to his sentence on appeal.

Shaw , 1321 WDA 2021 ( unpub. memo. at 5 n.7 ) (emphasis in original).

On October 27, 2022, Appellant filed a pro se PCRA petition at Trial

Dockets 591

- 2020, 288

- 2020, and 575

- 2019 , raising ineffective assistance ofJ

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- 23

- 7

-

counsel and legality of sentence claims based on the discrepancy pointed out

by the prior panel. 14 Attorney Natale was ultimately appointed to these

dockets ( in addition to Trial Docket 300

- 2020 )

, and he filed an amended PCRA

petition for each docket on December 19, 2022. That same day, Attorney

Natale filed a PCRA petition at Trial Docket 300

- 2020 that was a duplicate of

the other three petitions. In the petition s , he noted the discrepancy raised by

this Court and stated:

15. The Superior Court sta ted that although the plea bargain was

for a sentence of [4.5] months to [11] years’ consecutive to the

sentence at Case No. 287 of 2020, the [trial c] ourt’s sentence at Case No. 300 of 2020 violated the terms of this plea bargain and results in an aggregate sentence of five . . . to [11] years[’]

incarceration.

16. If the Superior Court is correct, then [Appellant]’s sentence as currently structured violate s the plea bargain, and therefore constitutes an illegal sentence.

Appellant’s Amended Post

- Conviction Relief Act Petition, 12/19/22, at 3

(unpaginated).

The PCRA court scheduled a hearing which took place on January 13,

2023. The court then issued an or der and opinion on February 1, 2023, which

addressed all four dockets and denied Appellant’s PCRA petitions. Appellant

_________________ __________ ______ ____ _______

14 One month earlier, a t each docket, Appellant filed identical, pro se motions to modify his sentence. The filings were accepted by the Fayette County Clerk

of Courts but forwarded to his counsel and the Commonwealth. See Pa.R.Crim.P. 576(A)(4). In the motions, he raised the discrepancy identified by this Court in the prior decision. See Motion to Modify Sentence, 9/30/22, at 2 (unpaginated).J

- S33019

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- 8

-

filed four timely, separate notices of appeal and on May 24, 20 2 3, this Court

consolidated the appeals. 15 See Order, 5/24/23

. 16

II. Counsel’s Petition to Withdraw

Before we may conduct any substantive analysis, we must examine

whether Attorney Natale has met the procedural requirements for withdrawing

as counsel.

Counsel petitioning to withdraw from PCRA representation

. . . must review the case zealously. [PCRA] counsel must then submit

a “ no

- merit ” letter to the trial court, or brief on appeal to this Court, detailing the nature and extent of counsel ’ s diligent review of the case, listing the issues which petitioner wants to have reviewed, explaining why and how those issues lack merit, and requesti ng permission to withdraw.

Counsel must also send to the petitioner: (1) a copy of the “ no
merit ” letter/brief; (2) a copy of counsel ’ s petition to withdraw;

and (3) a statement advising petitioner of the right to proceed pro

se or by new counsel.

_________________ __________ ______ ____ _______

15 We note that when Appellant filed the notices of appeal, he listed all four

dockets on each notice. Separate notices of appeal are required when a single

order resolves issues arising on more than one trial court docket.

Commonwealth v. Walker

, 185 A.3d 969, 977 (Pa. 2018), overruled in part

, Commonwealth v. Young

, 265 A.3d 462, 477 (Pa. 2021) (reaffirming

Walker

, but holding Pa .R.A.P. 902 permits appellate court in its discretion, to
allow correction of the error where appropriate); see also Pa.R.A.P. 902 (amended May 1 8

, 2023). Nevertheless

, in Commonwealth v. Johnson

, 236 A.3d 1141 (Pa. Super. 2020) ( en banc ), this Court held that quashal is

not necessary when an appellant files multiple notices of appeal listing more than one docket number so long as an appropriate number of notices of appeal

were filed. Id. at 1148. Thus, u nder Johnson

, Appellant has substantially complied with the requirements of Walker

. See Johnson

, 236 A.3d at 1148.

16 Appellant timely complied with the PCRA court’s directive to file a Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal. The PCRA court issued a Pa.R.A.P. 1925(a) opinion on May 9 , 2023.J

- S33019

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- 9

-

Where counsel submits a petition and no

- merit letter that

. . . satisfy the technical demands of Turner/Finley

, the court

— trial

court or this Court

— must then conduct its own review of the

merits of the case. If the court agrees with counsel that the claims

are without merit, the court will permit counsel to withdraw and deny relief.

Commonwealth v. Walters

, 135 A.3d 589, 591 (P a. Super. 2016) (citation

omitted)

.

Instantly, we conclude that Attorney Natale has substantially complied

with the technical requirements of Turner / Finley

. Specifically, Attorney

Natale ’ s Anders brief and petition to withdraw detail the nature and extent of

his review, address the issue s raised at the PCRA hearing, and determine that

the claim is frivolous and without merit

. In his petition, counsel indicated that

he reviewed all issues for appeal, researched the law and reviewed the facts

to find any issue of merit, and concluded that Appellant is barred from relief

.

See Petition to Withdraw al [sic] as Counsel

, 6/1 5 /2 3

, at 3

- 4 (unpaginated).

In his letter to Appellant, Attorney Natale indicated he sent Appellant his

petition to withdraw, as well as his Anders brief, and notified him that he had

the right to retain private counsel or proceed pro se

. See Letter from Attorney

Natale to Appellant, 6/1 4 /2 3 , at 1 (unpaginated). Appellant has not filed a

response to counsel ’ s request to withdraw. As counsel has complied with the

technical requirements to withdraw his representation pursuant to

Turner/Finley

, we must now conduct our independent review of the issuesJ

- S33019

- 23

- 10

-

raised by counsel and determine whether the issues lack merit. See Walters

,

135 A.3d at 591.

III. Statement of Questions Presented and Standard of Review

Attorney Natale raises the following issues:

1. Whether the trial court imposed a sentence that violates [Appellant]’s plea bargain?

2. Whether [Appellant]’s plea was knowing, voluntary, and intelligent, specifically whether [Appellant] was aware that the plea would increase the length of his aggregate sentence?

Anders Brief at 2.

Based on the nature of Appellant ’ s claims, we are guided by the

following. Our standard of review regarding the denial of PCRA relief calls for

us to determine whether the ruling of the PCRA court is supported by the

record and free of legal error. See Commonwealth v. Busanet

, 54 A.3d 35,

45 (Pa. 2012). “ Our scope of review is limited to the findings of the PCRA

court and the evidence of record, viewed in the light most fa vorable to the

party who prevailed in the PCRA court proceeding. ” Id.

I V

. Timeliness of PCRA Petitions

Before we can review the merits of Appellant’s claims, we must sua

sponte determine as an initial matter whether Appellant’s PCRA petitions were

timely, as a petition’s timeliness implicates our jurisdiction

. See

Commonwealth v. James , 69 A.3d 180, 184 (Pa. 2013) (noting appellate

court “may raise the issue of jurisdiction sua sponte ”) (citation omitted).J

- S33019

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- 11

-

The timeliness of a PCRA p etition is a jurisdictional requisite. [T]he PCRA time limitations implicate our jurisdiction and may not be altered or disregarded in order to address the merits of the petition. In other words, Pennsylvania law makes clear no court has jurisdiction to h ear an untimely PCRA petition. The PCRA requires a petition, including a second or subsequent petition, to be filed within one year of the date the underlying judgment

becomes final. A judgment of sentence is final at the conclusion of direct review, inc luding discretionary review in the Supreme Court of the United States and the Supreme Court of Pennsylvania, or at the expiration of time for seeking review.

Commonwealth v. Ballance , 203 A.3d 1027, 1031 (Pa. Super. 2019)

(citations, quotation marks, & e mphasis omitted); see also 42 Pa.C.S. §

9545(b)(1), (3).

Here, Appellant was sentenced on July 8, 2020. Therefore, his

judgment s of sentence became final on August 7, 2020

— 30 days after the

trial court imposed the sentence and Appellant declined to fil e a direct appeal.

See 42 Pa.C.S. § 9545(b)(3). Generally, Appellant then had one year from

that date

— August 10 , 20 21 17

— to file a PCRA petition. See 42 Pa.C.S. §

9545(b)(1).

A. Docket Nos. 260 WDA 2023, 262 WDA 2023, and 263 WDA 2023

At Docket Nos. 260 WDA 2023 ( Trial Docket 591

- 2020 ) , 262 WDA 2023

( Trial Docket 288

- 2020 ) , and 263 WDA 2023 ( Trial Docket 575

- 2019 )

,

Appellant did not file the petition s at issue until October 27, 2022

— more

_________________ __________ ______ ____ _______

17 The one

- year time period following August 7, 202 0 , fell on a Saturday

. Appellant therefore had until that Monday, August 10 th, to file a PCRA petition

. See 1 Pa.C.S. § 1908.J

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- 12

-

than a year later

— and as such, they were facially untimely. We recognize

t his Court has jurisdiction to review a petition filed beyond the one

- year time

limit if the petitioner alleges and proves any one of the three statutory

exceptions to the time

- bar

. See 42 Pa. C.S. § 9545(b)(1)(i)

- (iii).

A review of Appellant’s amended PCRA petition s reveal he did not invoke

any of the three timeliness exceptions. Rather, Appellant alleged that his

sentence “as currently stru ctured violates the plea bargain, and therefore[,]

constitutes an illegal sentence.” Appellant’s Amended Post Conviction Relief

Act Petition, 12/19/2 2 , at 3 (unpaginated)

. I t is well

- established that “a

legality of sentencing issue must be raised in a tim ely filed PCRA [p]etition

over which we have jurisdiction.” Commonwealth v. Olson , 179 A.3d 1134,

1137 (Pa. Super. 2018) (citation omitted). See also Commonwealth v.

Fahy , 737 A.2d 214, 223 (Pa. 1999) (stating that “[a]lthough legality of

sentence is alw ays subject to review within the PCRA, claims must still first

satisfy the PCRA’s time limits or one of the exceptions thereto”)

. Because

Appellant failed to plead and prove any of the three timeliness exceptions, we

lack jurisdiction to address the merit s of his claims on appeal at Docket Nos.

260 WDA 2023, 262 WDA 2023, and 263 WDA 2023

. See Ballance , 203 A.3d

at 1031. Therefore, we affirm the PCRA court’s orders at these dockets

,J

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- 13

-

dismissing Appellant’s petition

. 18 We also grant Attorney Natale’s petition to

withdraw as counsel at these dockets.

B. Docket No. 26 1 WDA 2023 ( Trial Docket 300

- 2020 )

As noted above, at Trial Docket 300

- 2020

, t he PCRA court granted

Appellant’s request to file a direct appeal nunc pro tunc

. See Order of Court

,

10/2 7 /21. It is “ well[

- ]established that a PCRA petition brought after an

appeal nunc pro tunc is considered [a defendant’s] first PCRA petition, and the

one

- year time clock will not begin to run until this appeal nunc pro tunc

renders his judg ment of sentence final.” Commonwealth v. O’Bidos , 849

A.2d 243, 252 n.3 (Pa. Super. 2004) (citations omitted).

Therefore, because Appellant received nunc pro tunc relief

, his judgment

of sentence did not become final until January 23, 202 3

— 9 0 days after the

Pennsylvania Supreme Court denied his petition for allowance of appeal and

the time for filing a writ of certiorari with the United States Supreme Court

expired. See U.S. Sup. Ct. R. 13. He generally had one year from that date

to file a PCRA petition. See 42 Pa.C.S. § 9545(b)(1). Thus, Appellant satisfied

the one

- year time bar when he filed the instant petition on October 27, 2022

.

_________________ __________ ______ ____ _______

18 As will be discus sed below, the PCRA court denied the petitions based on

the merits

. Nevertheless

, this Court may affirm on any basis

. See

Commonwealth v. Rowe , 293 A.3d 733, 739 (Pa. Super. 2023) ( “ We can
affirm the court ’ s decision if there is any basis to support it, even if we rely on different grounds to affirm. ” ) (citation omitted)

.J

- S33019

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- 14

-

Accordingly , we have jurisdiction to review the substantive claims raised on

appeal at this docket

.

V. Plea and Legality of Sentence

Attorney Natale first argues t hat Appellant’s sentence is illegal because

the trial court imposed a sentence that violated his plea bargain agreement.

See Anders Brief at 9. Counsel states:

In the present case, in [footnote] 7 of [this] Court [’s Memorandum] at [Docket ] 1312 WDA [2021]

, [ we] stated that although the plea bargain was for a sentence of [4.5] to [11]

years ’ consecutive to the sentence at Case No. 287 of 2020, the [trial c] ourt ’ s sentence at Case No. 300 of 2020 violated the terms

of th [e] plea bargain and result [ed] in an aggregate sentence of

five

. . . to [11] years [’] incarceration.

Upon subsequent review, although the [trial c] ourt ’ s various statements during the [p] lea and [ s] entenc [ing p] roceedings on July 8, 2020 were confusing, the text of the [July 8, 2020 sentencing o] rders for the cases at issue, when taken together, result in correct aggregate sentence of [4.5] to [11] years ’

consecutive to the sentence at [Docket 287

- 2020]

. Since the text of the sentencing order, and not the statements a trial court

makes about a defenda nt ’ s sentence, is determinative of the

court ’ s sentencing intentions and the sentence imposed, the [trial c] ourt made no reversible error, and therefore Appellant ’ s claim

is without merit.

Id. at 11

- 12.

In his second argument, Attorney Natale asserts tha t Appellant’s “plea

was not knowing, voluntary, and intelligent . . . . In particular, he claims that

he was not aware that the plea would increase the length of his aggregate

sentence

. ” Anders Brief at 13. Moreover, he alleges:

Appellant ’ s claim that he was not aware that the plea would increase the length of his aggregate sentence, is directlyJ

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- 23

- 15

-

contradicted by the testimony of [Plea Counsel] when he stated that he did explain to the Appellant that “ this sentence was going

to be served afte r the first one. ” In addition, during the Plea and Sentence Proceedings, Appellant specifically stated: “ I

understand. They ’ re running consecutive though. I know. ” Based

on [Plea Counsel]’s testimony and Appellant ’ s own statements at
the Plea and Sente nce Proceedings, Appellant clearly understood that the plea would increase the length of his aggregate sentence prior to entering his plea of guilty on the record. Therefore, Appellant’s claim is without merit.

Id. at 14

- 15 (record citations omitted).

T o be eligible for post

- conviction relief, a petitioner must plead and

prove by a preponderance of the evidence that his conviction or sentence

resulted from an enumerated error or defect , and that the issues he raises

have not been previously litigated or waived. See 42 Pa.C.S. § 9543(a)(2),

(3). “ One of those circumstances is that the conviction or sentence resulted

from ‘ [ a ] plea of guilty unlawfully induced where the circumstances make it

likely that the inducement caused an individual to plead guilty.’”

Commonwealth v. Stark

, 658 A.2d 816, 819 (Pa. Super. 1995), citing 42

Pa.C.S. § 9543(a)(2)(iii). See Commonwealth ex rel

. Dadario v.

Goldberg

, 773 A.2d 126, 129

- 30 (Pa. 2001) (holding all constitutionally

cognizable claims may be reviewed under the PCRA, including those related

to the plea bargaining process ). Another enumerate d situation is when the

court imposes a sentence “ greater than the lawful maximum.” 42 Pa.C.S. §

9543(a)(2)( v ii).

Here, the PCRA court found the following:J

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- 23

- 16

- After receiving [this] Court’s opinion [regarding Docket 300

- 2020], the [PCRA c]ourt reviewed the signed orders and

determined that the s entence was in accord with the plea bargain between the Commonwealth and [Appellant]. Th[is] Court’s review of [our] statements when imposing the sentence appear to be the basis for their belief that there was a discrepancy. However, the text of the sent encing order, not the statements a trial court makes about a defendant’s sentence, is determinative of the court’s sentencing intentions and the sentence impose[d]. As the sentencing orders are in compliance with the plea agreement, [Appellant]’s issue is denied.

PCRA Ct. Opinion and Order, 2/1/23, at 3 ( unpaginated; citation omitted).

To the extent Appellant’s argument touches upon the legality of his

sentence, we conclude Attorney Natale was correc t that his claim has no merit.

There is no indication that the length of his sentence at Trial Docket 300

- 2020

was illegal

. However, we di sagree with counsel’s assessment that there was

no violation regarding the plea bargain agreement

.

Our review of the matter has led us to consider that “ 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. ”

Commonwealth v. Kerns

, 220 A.3d 607, 611

- 12 (Pa. Super. 2019)

(citations omitted)

. Even though a plea agreement concerns a criminal

matter, they “clearly are contractual in nature. ” Commonwealth v.

Martinez

, 147 A.3d 517, 531 (Pa. 2016). “[U]nlike a typical contract,

[however,] a plea agreement does not become binding on the parties upon

their consent to terms; rather, a plea agreement is not valid and binding until

it is evaluated and accepted by a third party, i.e. , a trial court.” Id. (citationJ

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- 23

- 17

-

omitted); see also Pa.R.Crim.P. 590(A)(3) (stating, the trial court “may

refuse to accept a plea of guilty or nolo contendere , and shall not accept it

unless the [trial court] determines after inquiry of the defendant that the plea

is voluntarily and unde rstandingly tendered”).

Where the plea bargain calls for a specific sentence that is beyond the prosecutor’s narrowly limited authority in sentencing matters, the plea bargain implicates the court’s substantive sentencing power, as well as its guardianship role, and must have court approval. Thus, the trial court has broad discretion in approving or rejecting plea agreements. The court may reject the plea bargain if the court thinks it does not serve the interests of justice. If the court is dissatisfied with any of the terms of the plea bargain, it should not accept the plea ; instead, it should give

the parties the option of proceeding to trial before a jury. Assuming the plea agreement is legally possible to fulfill, when the parties enter the plea agr eement on the record, and the court accepts and approves the plea, then the parties and the court

must abide by the terms of the agreement

.

Commonwealth v. Root

, 179 A.3d 511, 517 (Pa. Super. 2018) ( citation &

emphases omitted). Lastly, “ [i]n Pennsylvania, the text of the sentencing

order, and not the statements a trial court makes about a defendant ’ s

sentence, is determinative of the court’s sentencing intentions and the

sentence imposed.” Commonwealth v. Borrin

, 80 A.3d 1219, 1226 (Pa.

2013)

.

Both Attorney Natale and the PCRA court misconstrue the error that we

pointed out in the prior decision. See Shaw , 1321 WDA 2021 (unpub. memo.

at 5 n.7)

. A s mentioned above, t he written plea bargain agreement

provide d that Appell ant was to receiving a total sentence of “ 4 1/2

- 11 years

consecutive to sentence plus restitution [.] ” Guilty Plea

, 7/8/20 at 1J

- S33019

- 23

- 18

-

(unpaginated ; emphas i s added ). At the July 8, 2020, plea and sentencing

proceedings, the Common wealth stated: “This is the time and plac e scheduled

for [Appellant]’s plea . . . . It calls for a term of four and a half to [11]

years con secutive t o the sentence he just received [at Docket 287

- 2020 .]”

N.T., 7/8/20, at 2 (emphas e s added)

.

After accepting the plea, t he court then imposed the following

sentence s: (1) at Trial Docket 288

- 2020, a term of 4 to 10 years’

imprisonment ; (2) at Docket 591

- 2020, a term of 6 to 12 months’

incarceration to run consecutive to the sentence at Docket 288

- 2020 ; (3) at

Trial Docket 575

- 2019, a sentence of 2 1/2 to 5 years’ imprisonment , to be

served concurrently to Trial Docket s 288

- 2020 and 591

- 2020 ; and (4) at Trial

Docket 300

- 2020, a term of 5 to 10 years’ incarceration , to be served

concurrently to other three dockets and consecutive to Trial Docket 287

- 2020

.

See N.T., 7/8/20, at 11

- 13

. Notably, after mentioning that the sentence at

Docket 300

- 2020 was “[n]ot less than five nor more than ten years[,]” the

court then stated: “I[f] our calculations are correct that should total four and

a half to eleven years which was the plea bargain consecutive to” Trial Docket

287

- 2020. Id. at 13 (emphasis added)

.

The PCRA court focus e d on the incorrect discrepancy

— that at the

sentencing proceeding, it mistakenly stated the sentences were to be imposed

consecutively to Trial Docket 287

- 2020 rather than concurrently as reflectedJ

- S33019

- 23

- 19

-

in the written sentencing orders

. 19 The court poin ted out those sentencing

orders control as to the imposition of concurrent and consecutive sentences

.

See Borrin

, 80 A.3d at 1226

. Attorney Natale’s argument reflects this notion.

See Anders Brief at 11

- 12.

W hile we did point out that error, 20 our primary concern is with the

incongruity regarding the terms of the “ bargained for ” sentence . The written

plea agreement

, and as explicitly mentioned by the Commonwealth at the July

8, 2020, proceeding , called for a minimum aggregate sentence of 4 1/2 years

but Appellant received a minimum of 5 years due to the inclusion of Trial

Docket 300

- 2020 in the plea agreement , which increased the minimum of his

aggregate sentence to 5 years

. See Guilty Plea, 7/8/20 at 1; N.T., 7/8/20,

at 2, 13. B ased on the re cord before us, it appears the terms of the agreement

were altered and Appellant did not receive the benefit of the bargain.

We recognize that “the trial court is not required to sentence a defendant

in accordance with the plea agreement. ” Commonwealth v. Tann

, 79 A.3d

1130, 1133 (Pa. Super. 2013). “ Such a sentence is legal, so long as it does

not exceed the statutory maximum. However, a criminal defendant who is

_________________ __________ ______ ____ _______

19 See i.e.

, Sentence ( Trial Docket 300

- 2020), 7/ 8 /2020, at 1 (unpaginated) (“[T]his sentence shall run concurrent with the sentences imposed at Nos. 287 of 2020; 288 of 2020; 591 of 2020 and 575 of 2019[.]”) (emphasis added)

.

20 See Shaw , 1321 WDA 2021 (unpub. memo. at 5 n.7).J

- S33019

- 23

- 20

-

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. ” Id. (citation

omitted). Here, the trial court accepted a plea that included a 5

- year

minimum term that was not agreed upon, and did not provide Appellant with

a n opportunity to withdraw his plea. Under the applicable law, it appears that

Appellant “ was entitled either to receive the benefit of the bargain , including

the agreed

- upon sentence, or the option to withdraw his plea.” Root

, 179

A.3d at 518

.

We find t he question of whether there was a violation of the terms of

Appellant’s plea bargain agreement

, which would fall outside the jurisdiction

of the PCRA, is entitled to a more exhaustive examination and perhaps further

advocacy

. Nevertheless, we recognize that b ecause Attorney Natale ( and the

PCRA court ) misinterpreted our prior statements regarding the plea bargain

agreement, the record may need to be developed further to assess this

misconception

, and upon further review, an advocate’s brief may not be

necessary.

Thus, w e deny A ttorney Natale’ s petition to withdraw at Docket 261

WDA 202 3 , and direct Attorney Natale either to file with this Court an

advocate ’ s brief analyzing the issue that we have identified during our

independent review or a proper Turner / Finley brief addressing thoroughly

why the claim identified herein ha s no merit. Attorney Natale has 45 days

from the date of the filing of this memorandum to file the app ropriate brief.J

- S33019

- 23

- 21

-

The Commonwealth has 45 days after the date of filing of counsel ’ s brief to

file an appellee ’ s brief, if it so chooses.

VI. Conclusion

At Docket Nos. 260 WDA 2023, 262 WDA 2023, and 263 WDA 2023, we

grant Attorney Natale’s petitions to withdraw, and affirm the orders dismissing

Appellant’s petitions. At Docket No. 261 WDA 2023, we deny Attorney

Natale’s motion to withdraw, and direct counsel to file an advocate’s brief or

new a Turner/Finley lette r a nd motion to withdraw within 45 days of the

date of this memorandum.

At Docket Nos. 260 WDA 2023, 262 WDA 2023, and 263 WDA 2023,

February 1, 2023, orders affirmed and Attorney Natale ’s petitions to withdraw

granted. Panel jurisdiction relinquished.

At Docket No. 261 WDA 2023, Attorney Natale ’s petition to withdraw

de nied. Panel jurisdiction retained.

President Judge Emeritus Bender joins the memorandum.

President Judge Emeritus Stevens concurs in result.