J-A26043-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

DAVID ANDREWS 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 3452 EDA 2019

Appeal from the PCRA Order Entered October 31, 2019

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

No(s): CP-51-CR-0003062-2015

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

MEMORANDUM BY STEVENS, P.J.E.: FILED DECEMBER 18, 2020

Appellant, David Andrews, appeals from the order entered in the Court 

of Common Pleas of Philadelphia County dismissing his petition filed pursuant 

to the Post Conviction Relief Act (“PCRA”), 42 Pa. §§ 9541-9546, as untimely. 

Herein, Appellant contends the court erred in failing to grant his petition 

seeking specific performance of his negotiated guilty plea, which called for his 

sentence on one count of robbery to run concurrently to a sentence of back 

time he was serving for violating parole in his prior cases. The Commonwealth 

agrees Appellant is entitled to receive the benefits of his negotiated sentence 

notwithstanding the fact it was one which the law did not permit. After careful 

review and consideration of controlling precedent, we vacate and remand. 

____________________________________________

* Former Justice specially assigned to the Superior Court.
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On March 6, 2015, while on parole, Appellant entered a Philadelphia 

clothing store keeping his hand in his coat pocket as if he held a gun and 

demanded all the money from the register and in the employees’ possession. 

Appellant secured $572 cash and fled from the store, only to be arrested 

moments later by police. 

Charged with robbery, receiving stolen property, terroristic threats with 

intent to terrorize another, simple assault, and recklessly endangering another 

person, Appellant entered a negotiated guilty plea whereby, in exchange for 

his plea to robbery, his remaining charges would be nolle prossed and he 

would receive a two and one-half to five-year prison sentence, followed by 

three years’ probation, to run concurrently with any back time sentence 

imposed in his upcoming parole violation hearing. On June 10, 2015, the court 

accepted the plea and imposed the agreed-upon sentence:

THE COURT: It’s 2 and a half to 5 years state time and 3 

years reporting probation is concurrent.

THE COMMONWEALTH: Yes, Your Honor. By agreement, it 

is to run concurrent with back time. That’s what we placed.

THE COURT: That’s right, I saw that. Does your client 

understand that?

APPELLANT: Yes, Your Honor, running concurrent with my 

back time.

N.T., 6/10/15, at 7. The sentencing order provides, “Sentence to Run 

Concurrent to Back Time.” Sentencing Order, 6/10/15. Appellant filed no 

post-sentence motion or direct appeal.
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On November 2, 2015, the court presided over Appellant’s revocation 

hearing, found him in violation of his parole in his prior cases, and sentenced 

him to serve back time. On November 13, 2015, the Department of 

Corrections (“DOC”) recalculated Appellant’s sentence on those cases, arriving 

at a new maximum date of October 3, 2020. After crediting Appellant’s back 

time sentence with pre-trial incarceration time served from time March 31, 

2015 to June 10, 2015, the DOC calculated Appellant’s new earliest re-parole 

date as July 18, 2017. It was on this date that Appellant was re-paroled. 

Despite the trial court’s order calling for the present robbery sentence 

to run concurrently with the back time sentence, the DOC calculated it to run 

consecutively in conformance with the 61 Pa.C.S. § 6138(a)(5)(i) (state 

parolee convicted of new crime and deemed parole violator shall serve back 

time of state parole sentence before serving new state sentence imposed). 

Therefore, the DOC commenced the running of Appellant’s present sentence 

on July 19, 2017. After giving Appellant time credits from his arrest date of 

March 7, 2015 to March 30, 2015, and June 11, 2015 to September 27, 2015, 

the DOC set Appellant’s minimum sentence date at September 7, 2019 and 

maximum sentence date of March 7, 2022.

On November 13, 2017, Appellant filed the present PCRA petition 

asserting that it was not until August of 2017 that he first learned his present 

sentence was run consecutively to his back time, in contravention of his 

negotiated guilty plea. Seeking enforcement of the negotiated plea terms, he 
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asked the court to vacate the present sentence and impose a new sentence 

reflecting the intent of all parties agreeing to and accepting his guilty plea.

The Court appointed counsel, who filed an amended petition claiming 

Appellant’s patently untimely petition for relief nevertheless qualified for 

review under both the governmental interference and newly discovered fact 

exceptions to the PCRA time-bar. In response, the Commonwealth filed a 

brief positing that Appellant was entitled to an evidentiary hearing to 

determine the cognizabilty of his claim, which appeared to be outside the aegis 

of the PCRA and, thus, not subject to its time restrictions.

On October 2, 2019, the PCRA court issued its notice of intent to dismiss 

Appellant’s petition pursuant to Pa.R.A.P. 907. Appellant filed a response 

asserting his claim should not be dismissed because it was not cognizable 

under the PCRA. On October 31, 2019, the PCRA court dismissed the petition 

as untimely. This timely appeal followed.

Appellant raises the following issue on appeal:

If the Appellant entered into a negotiated plea with the district 

attorney, which included the important provision that his sentence 

would run concurrently with his “back time,” and this was clearly 

stated at sentencing and agreed to by the sentencing judge and 

district attorney, when in fact, under Pennsylvania law, the 

sentence had to run consecutively with his “back time,” would this 

run afoul of the Appellant’s constitutional rights and deprive him 

of the sentence he had negotiated in good faith?

Appellant’s brief, at 5 (emphasis omitted).

Though Appellant delineated his petition for specific enforcement of the 

negotiated plea agreement as a PCRA petition, precedent holds that such a 
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claim is contractual in nature and, thus, lies beyond the ambit of the PCRA. 

As this Court recently explained: 

A petition for collateral relief will generally be considered a PCRA 

petition if it raises issues cognizable under the PCRA. See

Commonwealth v. Peterkin, 554 Pa. 547, 553, 722 A.2d 638, 

640 (1998); 42 Pa.C.S.A. § 9542 (stating PCRA shall be sole 

means of obtaining collateral relief and encompasses all other 

common law and statutory remedies for same purpose). The plain 

language of the PCRA mandates that claims which could be 

brought under the PCRA, must be brought under the PCRA. 

Commonwealth v. Hall, 565 Pa. 92, 96-97, 771 A.2d 1232, 

1235 (2001). The timeliness of a PCRA petition is a jurisdictional 

requisite. Commonwealth v. Zeigler, 148 A.3d 849, 853 

(Pa.Super. 2016). A PCRA petition must be filed within one year 

of the date the underlying judgment becomes final. 42 Pa.C.S.A. 

§ 9545(b)(1). A judgment is “final” at the conclusion of direct 

review or at the expiration of time for seeking review. 42 

Pa.C.S.A. § 9545(b)(3). The exceptions to the PCRA time-bar 

allow for very limited circumstances under which the late filing of 

a petition will be excused; a petitioner asserting an exception 

must file a petition within 60 days of the date the claim could have 

been presented. See 42 Pa.C.S.A. § 9545(b)(1-2).

On the other hand, 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. See, e.g., Commonwealth v. Martinez, 637 Pa. 

208, 147 A.3d 517 (2016); Commonwealth v. Fernandez, 195 

A.3d 299 (Pa.Super. 2018) (en banc); Commonwealth v. 

Hainesworth, 82 A.3d 444 (Pa.Super. 2013) (en banc), appeal 

denied, 626 Pa. 683, 95 A.3d 276 (2014); Commonwealth v. 

Farabaugh, 136 A.3d 995 (Pa.Super. 2016), appeal denied, 643 

Pa. 140, 172 A.3d 1115 (2017); Commonwealth v. Nase, 104 

A.3d 528 (Pa.Super. 2014), appeal denied, 640 Pa. 389, 163 A.3d 

405 (2016). Compare Commonwealth v. James Johnson, 

200 A.3d 964 (Pa.Super. 2018) (stating generally that plea 

enforcement theory is unavailable as ground for collateral relief if 

there is no plea bargain to enforce). The designation of the 

petition “does not preclude a court from deducing the proper 

nature of a pleading.” See Commonwealth v. Porter, 613 Pa. 

510, 524, 35 A.3d 4, 12 (2012) (citing Commonwealth v. 
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Abdul–Salaam, 606 Pa. 214, 996 A.2d 482 (2010) (involving 

deceptive labeling of PCRA pleading)).

Commonwealth v. Kerns, 220 A.3d 607, 611–12 (Pa.Super. 2019). 

Thus, we must find the lower court erred in reviewing and dismissing 

Appellant’s petition as one governed by the PCRA, and we are constrained to 

address the merits of Appellant’s claim for specific enforcement of his 

negotiated plea terms. In this regard, we observe the following:

Contract interpretation is a question of law, so “[o]ur standard of 

review over questions of law is de novo and to the extent 

necessary, the scope of our review is plenary.” Gillard v. Martin, 

13 A.3d 482, 487 (Pa.Super. 2010). Plea bargains play a critical 

role in the criminal justice system of this Commonwealth:

With respect to plea bargains, [t]he reality of the 

criminal justice system is that nearly all criminal cases 

are disposed of by plea bargains: [n]inety-seven 

percent of federal convictions and ninety-four percent 

of state convictions are the result of guilty pleas. Plea 

bargaining is not some adjunct to the criminal justice 

system; it is the criminal justice system. Accordingly, 

it is critical that plea agreements are enforced, to 

avoid any possible perversion of the plea bargaining 

system. The disposition of criminal charges by 

agreement between the prosecutor and the accused . 

. . is an essential component of the administration of 

justice. Properly administered, it is to be encouraged. 

In this Commonwealth, the practice of plea bargaining 

is generally regarded favorably, and is legitimized and 

governed by court rule.... A “mutuality of advantage” 

to defendants and prosecutors flows from the 

ratification of the bargain.

Kerns, 220 A.3d at 611-12.

“When a plea rests in any significant degree on a promise or agreement 

of the prosecutor, so that it can be said to be part of the inducement or 

consideration, such promise must be fulfilled.” Santobello v. New York, 404 
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U.S. 257, 262, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971). Similarly, “[i]f a trial 

court accepts a plea bargain, the defendant who has given up his 

constitutional right to trial by jury must be afforded the benefit of all promises 

made by the district attorney.” Commonwealth v. Hainesworth, 82 A.3d 

444, 449 (Pa.Super. 2013) (en banc) (quoting Commonwealth v. Fruehan,

557 A.2d 1093, 1094 (Pa.Super. 1989)). Fundamental fairness thus dictates 

specific enforcement of valid plea bargains. Hainesworth, 82 A.3d at 449 

(citing Commonwealth v. Mebane, 58 A.3d 1243, 1249 (Pa.Super.2012)).

Precedent imposes the obligation to honor such plea agreements even 

where the stipulated sentence is prohibited under law. In Commonwealth 

v. Zuber, 353 A.2d 441 (Pa. 1971), the Pennsylvania Supreme Court 

addressed an issue analogous to the one presently at bar. Defendant Zuber 

was on parole for a previous conviction when he was arrested and charged 

with murder. Zuber and the Commonwealth entered into a plea agreement 

whereby Zuber would plead to murder and the Commonwealth would request 

that the State Board of Parole run Zuber’s sentence concurrently with his back 

time/parole revocation sentence. The trial court accepted the plea agreement. 

Id. at 443. 

The sentence contemplated by the parties and the court, however, could 

not be fulfilled under statutory law, which required a parole violator to serve 

his back time before he can begin serving a new sentence. Id. Yet, the 

Pennsylvania Supreme Court held that Zuber was entitled to receive the 

benefit of his bargain—“a prison sentence commensurate with the term 
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contemplated by all of the parties to the plea proceedings,” Id., at 446—

despite the unenforceable nature of the sentence. Accordingly, the Court 

remanded to the court below with instructions to modify appellant's murder 

sentence to effect a total prison time contemplated by the parties and the trial 

court at the time of the plea agreement. Id. 

Recent decisions of both this Court, sitting en banc, and the 

Pennsylvania Supreme Court recognize Zuber’s continued precedential value 

on the issue of specific enforcement of a plea agreement in conflict with 

sentencing law. Both Hainesworth and Martinez addressed whether newlyenacted SORNA,1 which expanded registration requirements beyond those 

imposed by its predecessor, Megan’s Law,2 superseded plea agreements 

entered into by Megan’s Law offenders/parolees who specifically agreed to 

plead guilty to lesser charges in order to avoid registration requirements 

applicable to only the more serious charges they faced. 

In Hainesworth, the Court analogized the predicament facing the 

defendants to that of Defendant Zuber and his unwitting entry of a plea that 

failed to comply with the law and found guidance in the Zuber rationale calling 

for specific enforcement. In Martinez, our Supreme Court specifically denied

the Commonwealth’s request that it reject Hainesworth/Zuber rationale. 

____________________________________________

1 Sex Offender Registration and Notification Act, 42 Pa.C.S. §§ 9799.10–

9799.41.

2 42 Pa.C.S. §§ 9791-9799.9 (expired).
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Instead, the Court relied substantially on both decisions to reinforce the 

necessity that courts honor bargained-for terms in plea agreements:

“Our courts have demanded strict compliance with that duty in 

order to avoid any possible perversion of the plea bargaining 

system, evidencing the concern that a defendant might be coerced 

into a bargain or fraudulently induced to give up the very valued 

constitutional guarantees attendant the right to trial by jury.” 

Zuber, 353 A.2d at 444. Consequently, in this Commonwealth, 

when trial courts accept plea agreements, the convicted criminals, 

like Appellees in this case, are entitled to the benefit of their 

bargains. Id.

. . .

When a question arises as to whether a convicted criminal is 

entitled to specific performance of a term of his plea agreement, 

the focus is not on the nature of the term, e.g., whether the term 

addressed is a collateral consequence of the defendant's 

conviction.[] Rather, quite simply, the convicted criminal is 

entitled to the benefit of his bargain through specific performance 

of the terms of the plea agreement. Santobello, 404 U.S. at 262; 

Spence, 627 A.2d at 1184. Thus, a court must determine 

whether an alleged term is part of the parties' plea agreement. If 

the answer to that inquiry is affirmative, then the convicted 

criminal is entitled to specific performance of the term.

Commonwealth v. Martinez, 147 A.3d 517, 532–33 (Pa. 2016).

Required to follow this precedent, we find the agreement to run 

Appellant’s new sentence concurrently to his parole revocation/“back time” 

sentence was a term of the parties’ plea bargain that must now be enforced. 

As was done in Zuber, a remand for sentence modification effecting a prison 

sentence contemplated by all parties to the plea agreement is necessary in 

the case sub judice. 
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To that end, however, we note Appellant has both completed his “back 

time” sentence and also served more than five years’ prison time from the 

June 10, 2015, date of the court’s sentencing order imposing two and onehalf years to five years’ incarceration. Under such circumstances, Appellant 

is currently within his three-year probationary period. 

Accordingly, on remand, a new sentencing order shall be entered having 

the effect of releasing Appellant from prison and commencing the remainder

of his probationary term, which the trial court shall calculate at the time of its 

order.

Order vacated. Case remanded for proceedings consistent with this 

decision. Jurisdiction relinquished. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/18/20