J-S39013-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee 

v.

MICHAEL J. PANNELL,

Appellant No. 975 EDA 2014

Appeal from the Judgment of Sentence November 15, 2013

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-1104631-2005

BEFORE: BOWES, OTT AND MUSMANNO, JJ.

MEMORANDUM BY BOWES, J.: FILED AUGUST 11, 2015

Michael J. Pannell appeals from the aggregate judgment of sentence of 

fifty to 100 years incarceration after the court below granted in part and 

denied in part his post-conviction relief petition filed pursuant to the PostConviction Relief Act (“PCRA”). For reasons outlined infra, and in light of the 

unusual procedural posture of this case, we vacate the order of the PCRA 

court denying resentencing before a new judge, vacate Appellant’s 

subsequent judgment of sentence, and remand for resentencing before a 

different jurist.

Appellant entered an open guilty plea to involuntary deviate sexual 

intercourse (“IDSI”), aggravated assault, robbery, burglary, and attempted 
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rape on August 3, 2006. The facts underlying these crimes involved 

Appellant’s unlawful entry into the residence of S.Z., robbing her, forcing her 

to remove her shorts and then straddling, groping and fondling her while his 

penis was exposed, before forcing her to perform oral sex. During the 

episode, Appellant was armed with a knife. The victim resisted, and in doing 

so grabbed the blade of Appellant’s knife, causing the tendons in each of her 

fingers to be severed down to the bone in both hands.1 During Appellant’s 

plea hearing, the court placed on the record that the Commonwealth 

promised not to make a sentencing recommendation. However, the court 

also advised Appellant that, as a result of a prior conviction for a crime of 

violence, Appellant was subject to a mandatory minimum sentence for each 

crime. See 42 Pa.C.S. § 9714. 

At sentencing, the prosecutor, despite the agreement not to make a 

sentencing recommendation stated, “Your Honor, the only just result, after 

today’s proceeding, is that the defendant spend the rest of his life in jail.” 

N.T., 11/10/06, at 18.2 The court sentenced Appellant consecutively at each 

____________________________________________

1 Appellant’s fingerprints were on both the inside and outside of the window 

that he had used to gain entry into the victim’s home. Further, police 

discovered at his home shorts that were soaked in blood. DNA testing 

confirmed that the blood belonged to the victim.

2 The prosecutor also later argued, “Prison is the only place he can comply 

with the rules. Prison is the only place where he can be trusted to do what 

is expected of him.” N.T., 11/10/06, at 25. The Commonwealth also 

(Footnote Continued Next Page)
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count to ten to twenty years of imprisonment for an aggregate sentence of 

fifty to 100 years. 

Appellant did not file a direct appeal, but timely filed a pro se PCRA 

petition seeking reinstatement of his appellate rights. The Commonwealth 

agreed that Appellant was entitled to relief, and the court reinstated 

Appellant’s direct appeal rights nunc pro tunc. Thereafter, Appellant 

appealed, challenging the discretionary aspects of his sentence. This Court 

affirmed. Commonwealth v. Pannell, 998 A.2d 1015 (Pa.Super. 2010). 

Appellant filed a timely PCRA petition. Therein, he alleged that he was 

entitled to withdraw his guilty plea because the Commonwealth agreed not 

to recommend a sentence during plea negotiations, but breached that 

promise during sentencing. He also argued that, if he were to be 

resentenced, it should occur before a different judge.

The PCRA court ruled that the Commonwealth had agreed not to 

recommend a sentence and violated that agreement. Nonetheless, the court 

concluded that Appellant was not entitled to withdraw his plea based on 

those facts, and instead found that he was entitled to resentencing. 

(Footnote Continued) _______________________

presented a friend of the victim who unsurprisingly requested that Appellant 

be sentenced to the maximum possible sentence. Id. at 33. The prosecutor 

concluded, “Your Honor, you have the discretion to impose anything 

between ten to 20 years and 50 to 100 years. We ask the Court to impose a 

sentence, if not the maximum sentence, then close to it, to ensure that the 

defendant never hurts another human being.” Id. at 39.
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Accordingly, on September 27, 2013, the court vacated his judgment of 

sentence, ordered a new sentencing hearing, and denied all other PCRA 

relief. The docket reflects that an order was entered on that same date 

vacating the original judgment of sentence and scheduling a new sentencing 

hearing. However, that order is not contained in the record and there is no 

indication that Appellant was advised of his appellate rights relative to the 

denial of his PCRA claims.

Appellant failed to appeal from the September order denying PCRA 

relief in part. Subsequently, the court resentenced Appellant to the identical 

sentence on November 15, 2013, based on the applicable mandatories. 

Appellant filed a post-sentence motion. Therein, he argued that it was 

improper for the court to resentence him and alleged that in doing so, it 

precluded him from appealing the denial of his PCRA claims. The court 

denied that motion by operation of law on March 21, 2014. Appellant now 

appeals from the judgment of sentence.3 Appellant’s issues on appeal are:

Did the PCRA court commit an abuse of discretion by denying 

Appellant the right to withdraw his guilty plea after ruling that 

the Commonwealth failed to comply with the plea agreement 

reached between the parties?

Did the PCRA court err by denying Appellant’s request that the 

matter be transferred to another judge for resentencing after 

ruling that Appellant was entitled to be resentenced?

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3 The court did not direct Appellant to file a Pa.R.A.P. 1925(b) concise 

statement of errors complained of on appeal, but did file an opinion.
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Appellant’s brief at 3. 

Preliminarily, the Commonwealth contends that Appellant is 

jurisdictionally barred from contesting the denial of PCRA relief where he is 

appealing from his new judgment of sentence. The Commonwealth 

maintains that any appeal from the denial of PCRA relief is untimely and that 

Appellant cannot challenge the PCRA rulings by appealing from his new 

judgment of sentence. 

Under Pa.R.A.P. 903(a), a notice of appeal must filed within thirty days 

of a court’s final order. Specifically, the rule reads in relevant part that, “the 

notice of appeal required by Rule 902 (manner of taking appeal) shall be 

filed within 30 days after the entry of the order from which the appeal is 

taken.” Pa.R.A.P. 903(a). Pa.R.Crim.P. 910 provides, “An order, granting, 

denying, dismissing, or otherwise finally disposing of a petition for postconviction collateral relief shall constitute a final order for purposes of 

appeal.” Concomitantly, Pa.R.A.P. 341 defines a final order as one that 

“disposes of all claims and of all parties[.]” Pa.R.A.P. 341(b)(1).

Thus, the September 27, 2013 order denying Appellant merits-based 

relief but granting resentencing was a final order that disposed of all of 

Appellant’s PCRA claims. The Commonwealth could have appealed the grant 

of resentencing as a final order, though in this matter it ultimately agreed 

with that resolution, and Appellant could have appealed the denial of merits-
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based relief. See Commonwealth v. Bryant, 780 A.2d 646 (Pa. 2001). 

No remaining issues existed to be decided. Thus, an appeal would not have 

been dismissed as premature or interlocutory since each of Appellant’s 

claims had been determined. Based on the plain language of the applicable

rules, Appellant’s appeal as to his PCRA claims is patently untimely.

We further find Commonwealth v. Anderson, 788 A.2d 1019 

(Pa.Super. 2001), Commonwealth v. Lesko, 15 A.3d 345 (Pa. 2011), and 

Bryant, supra, instructive. In Anderson, we ruled that a defendant who is 

resentenced at a revocation proceeding has one year from the date of 

finality of his new judgment of sentence to challenge, via a PCRA, any issues 

relative to the new sentence. Anderson, supra at 1021 (“where a new 

sentence is imposed at a probation revocation hearing, the revocation 

hearing date must be employed when assessing finality under § 9545(b)(3) 

to any issues directly appealable from that hearing.”). However, the 

defendant could not backdoor any challenges to his underlying conviction 

when challenging his new sentence via the PCRA. 

Similarly, in Lesko, supra, the Pennsylvania Supreme Court ruled that 

a defendant could not seek merits PCRA review of claims relating to his 

original judgment of sentence of death after a federal court awarded limited 

habeas relief relative to sentencing. The Lesko Court ruled that the 

petitioner could only challenge what occurred at his new sentencing. See 

Lesko, supra at 366-367. While Anderson and Lesko involve issues 
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pertaining to the timeliness of a PCRA petition, and not a notice of appeal, 

they illustrate that petitioners cannot seek to enlarge the time frame for 

contesting their underlying conviction by relying on a new sentencing 

proceeding. Instantly, Appellant is attempting to enlarge the period for 

challenging his PCRA denial, which ultimately relates to his original guilty 

plea proceeding. 

Even more apt, is our Supreme Court’s decision in Bryant, supra. In 

Bryant, the PCRA court denied guilt phase relief in a capital matter, but 

awarded a new sentencing. The defendant initially appealed the denial of 

the guilt phase claims to the Superior Court, and the Commonwealth elected 

not to file a cross-appeal. However, the Commonwealth requested, and the 

PCRA court agreed, to stay the new sentencing proceeding pending 

resolution of the appeal. 

Recognizing that an appeal from a PCRA matter where a death 

sentence has been imposed properly belongs with the Pennsylvania Supreme 

Court, Bryant moved to transfer the case. This Court erroneously denied 

that motion, and quashed the appeal as interlocutory. A unanimous 

Supreme Court reversed. In doing so, the High Court relied on Pa.R.A.P. 

341(b), Pa.R.A.P. 903, and Pa.R.Crim.P. 1510, the latter of which is now 

Pa.R.Crim.P. 910. The Court declared that the order denying relief in part 

and granting sentencing relief was a final order as to both Bryant and the 

Commonwealth. It held that had Bryant not appealed from the denial of his 
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guilt phase claims within thirty days that “he would have waived future 

review of the decision of the PCRA court.” Bryant, supra at 648.

Although Bryant involved a capital case, its discussion of the 

predecessor to Rule 910, Rule 1510, and Pa.R.A.P. 903, relative to a final 

order applies with equal force in the present setting. It is beyond cavil that 

the September order herein was final for purposes of appeal—the court 

disposed of all of his claims. See also Commonwealth v. Scarborough, 

64 A.3d 602 (Pa. 2013) (discussing what constitutes a final order with 

respect to 42 Pa.C.S. § 9543.1 of the PCRA). Appellant is seeking to 

lengthen the notice of appeal period and challenge his underlying conviction 

via the denial of his merits based PCRA claims by appealing from the order 

entered after his new sentencing hearing. We have regularly precluded 

defendants from contesting their underlying conviction after a new 

sentencing via a new PCRA petition. Similarly, we agree with the 

Commonwealth that a defendant cannot ordinarily challenge the denial of 

PCRA relief from a new judgment of sentence order, but must timely appeal 

from the denial of PCRA relief.4 Here, Appellant failed to file an appeal 

within thirty days of that order. 

____________________________________________

4

 We are cognizant that this issue is currently being considered by an en 

banc panel of this Court. See Commonwealth v. Gaines, 1497 MDA 2013 

(argued June 30, 2015).
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Nonetheless, the record does not contain the PCRA final order in 

question. While the court entered its order orally on the record relative to 

denying Appellant’s request to withdraw his guilty plea and directing 

resentencing, it did not advise Appellant of his appellate rights. Moreover, 

the order that is docketed does not appear in the record and there is no 

indication in the record that counsel was ever advised that he had to appeal 

within thirty days of the denial.5 

We add that, although there was no evidentiary hearing, the PCRA 

court entered its order after a hearing in which oral argument was 

presented. This implicates both Pa.R.Crim.P. 907 and Pa.R.Crim.P. 908. 

Under Rule 907, when a petition is dismissed without a hearing, a judge 

“shall advise the defendant by certified mail, return receipt requested, of the 

right to appeal from the final order disposing of the petition and of the time 

limits within which the appeal must be filed.” Similarly, pursuant to Rule 

908, if, after a hearing, a judge disposes of a case “when the defendant is 

not present in open court, the judge, by certified mail, return receipt 

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5

In his post-sentence motion after resentencing, counsel averred, “By 

denying defendant relief on his claim that he should be permitted to 

withdraw his guilty plea and proceeding to sentencing over defendant’s 

objection, the court has precluded defendant from raising on appeal an issue

alleging that the court erred by denying his PCRA claim that he was entitled 

to withdraw his guilty plea or, at a minimum, proceed to sentencing before 

another judge.” Appellant’s Post-Sentence Motion, 11/20/13, at 3 ¶ 9. Of 

course, this is technically inaccurate since Appellant should have appealed 

from the order denying that relief. 
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requested, shall advise the defendant of the right to appeal from the final 

order disposing of the petition and of the time limits within which the appeal 

must be filed.” 

Thus, unless the defendant is present at the time of the entry of the 

order, the court must inform the petitioner of his appellate rights. Here, 

Appellant was not present at the argument hearing held on September 27, 

2013, although counsel appeared. The failure of the court to advise 

Appellant of his appellate rights can constitute a breakdown in the judicial 

system. Commonwealth v. Liebensperger, 904 A.2d 40, 44 (Pa.Super. 

2006) (declining to quash appeal as untimely where court failed to advise 

defendant of appellate rights in a PCRA matter in either its Rule 907 notice 

or final order). Therefore, we decline to quash the instant appeal and will 

treat this appeal as arising from the denial of PCRA relief, and reach the 

merits of Appellant’s claims.

Appellant initially argues that the PCRA court erred in ruling that he 

was not permitted to withdraw his guilty plea based on the Commonwealth’s 

breach of its agreement not to recommend a sentence. He maintains that 

he only agreed to enter an open guilty plea “because the prosecutor 

promised him that he would not recommend any sentence to the trial 

court[.]” Appellant’s brief at 9. Appellant points out that throughout the 

original sentencing, the prosecutor urged the court to impose a sentence 

that would result in Appellant spending the rest of his life in jail. 
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In addition, Appellant highlights that the PCRA court did find that the 

prosecutor breached the plea agreement. He submits that the PCRA court’s 

resentencing remedy, however, was improper. In support, Appellant relies 

extensively on Commonwealth v. Melvin Williams, 481 A.2d 1230 

(Pa.Super. 1984). In Melvin Williams, a defendant entered a negotiated 

guilty plea to aggravated assault and conspiracy. The Commonwealth 

agreed to nolle prosse charges of attempted murder, carrying an unlicensed 

firearm, possession of an instrument of crime, recklessly endangering 

another person, terroristic threats, and simple assault. The prosecutor 

therein also agreed not to recommend a sentence. At sentencing, however, 

the prosecutor asked the court to impose a sentence of incarceration. This 

Court ruled that the prosecutor violated the terms of the plea bargain. The 

panel then turned to the appropriate remedy. 

The Melvin Williams Court acknowledged that “it could be argued 

that [Williams] is entitled to receive no more than the benefit of his bargain 

and that was to receive a sentence with no recommendation from the 

Commonwealth.” Id. at 1234. Nonetheless, we rejected that remedy and 

ordered that he be permitted to withdraw his plea and granted a trial. 

The Commonwealth does not present any merits-based argument 

relative to Appellant’s position, relying solely on its jurisdictional position. 

Nevertheless, during the proceedings below it argued that Melvin Williams
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did not control and posited that Commonwealth v. Martinez, 539 A.2d 

399 (Pa.Super. 1988), justified resentencing. 

Martinez involved a Post-Conviction Hearing Act (“PCHA”) appeal. 

The PCHA was the predecessor statute to the PCRA. The defendant was 

charged with aggravated assault and attempted rape. He agreed to plead 

guilty to the aggravated assault charge. In exchange, the Commonwealth 

agreed to nolle prosse the attempted rape count and provided that it would 

not make any recommendation at sentencing. The prosecutor indicated at 

sentencing that the victim did not wish to make a statement but requested 

the maximum sentence allowable by law to be imposed. The court 

sentenced the defendant to the maximum sentence. 

Martinez did not seek to withdraw his plea, but filed a motion 

contesting his sentence. Within that motion, Martinez averred that the 

Commonwealth had breached its plea agreement. The motion was denied 

and Martinez’s direct appeal was dismissed after counsel failed to file a brief. 

Thereafter, Martinez filed a PCHA petition. The court appointed counsel, 

conducted an evidentiary hearing, and denied the petition. 

On appeal, this Court reversed in part. Specifically, we ruled that 

Martinez was entitled to be resentenced. In directing Martinez to be 

resentenced rather than ordering the withdrawal of his guilty plea, the panel 

found it significant that Martinez, unlike Appellant herein, did not allege that 

counsel was ineffective in failing to file a post-sentence motion arguing that 
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his plea was invalid. Instead, Martinez argued that his sentence was 

excessive and was unduly influenced by the prosecutor’s statement. 

Accordingly, the panel did not afford relief in the nature of granting the 

withdrawal of the plea.

It is evident that Martinez does not control. In the present case, 

Appellant did allege that counsel was ineffective in neglecting to move to 

withdraw his plea after the prosecution recommended that he be sentenced 

to a term of imprisonment for the remainder of his life. The PCRA court, 

nonetheless, found Melvin Williams, supra distinguishable because in that 

matter the prosecutor’s promise induced the defendant to enter the plea. In 

the instant case, although the court afforded sentencing relief, it found that 

Appellant’s decision to enter his plea did not occur as a result of the 

prosecution’s promise not to recommend a sentence. Thus, it ruled that 

Appellant’s plea itself was valid, despite the prosecutor’s breach of the 

agreement.

We begin by noting that Appellant did not raise a claim regarding the 

withdrawal of his plea during his sentencing or in a post-sentence motion. 

Accordingly, his underlying claim is waived and can only be preserved 

through the vehicle of an ineffectiveness claim. Commonwealth v. 

Rachak, 62 A.3d 389 (Pa.Super. 2012); Commonwealth v. Anthony 
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Williams, 660 A.2d 614, 617 (Pa.Super. 1995); Commonwealth v. 

Shekerko, 639 A.2d 810 , 814 (Pa.Super. 1994).6 Although Appellant 

leveled such an issue below, his brief on appeal does not set forth the threepronged ineffectiveness test relative to prior counsel. Nevertheless, despite 

Appellant’s failure to expressly outline the ineffectiveness test, his brief 

contains a discussion of numerous post-conviction cases that are specific to 

ineffective assistance of counsel and guilty plea withdrawal issues. See

Appellant’s brief at 18-19 (citing Commonwealth v. Zuber, 353 A.2d 441 

(Pa. 1976); Commonwealth v. Kroh, 654 A.2d 1168 (Pa.Super. 1995); 

Shekerko, supra; Anthony Williams, supra); Id. at 16 (citing 

Commonwealth v. Anderson, 995 A.2d 1184 (Pa.Super. 2010), and 

Martinez, supra). Thus, this is not a case where the appellant has failed to 

adequately present argument. 

Our Supreme Court has opined that, 

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6

 The PCRA statute contains a section specifically governing guilty plea 

withdrawals. That provision reads that a person is entitled to relief if the 

conviction or sentence resulted from, “A plea of guilty unlawfully induced 

where the circumstances make it likely that the inducement caused the 

petitioner to plead guilty and the petitioner is innocent.” 42 Pa.C.S. § 

9543(a)(2)(iii); see also Commonwealth v. Lynch, 820 A.2d 728 

(Pa.Super. 2003) (distinguishing between guilty plea withdrawal subsection 

and ineffectiveness claim relative to withdrawing a guilty plea). The original 

guilty plea withdrawal subsection passed in 1988 did not have an innocence 

averment requirement. The guilty plea subsection was amended in 1995 to 

include an innocence standard. Appellant at no point has maintained his 

innocence. 
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The standard for post-sentence withdrawal of guilty pleas 

dovetails with the arguable merit/prejudice requirements for 

relief based on a claim of ineffective assistance of plea counsel, 

see generally Commonwealth v. Kimball, 555 Pa. 299, 312, 

724 A.2d 326, 333 (1999), under which the defendant must 

show that counsel's deficient stewardship resulted in a manifest 

injustice, for example, by facilitating entry of an unknowing, 

involuntary, or unintelligent plea.

Commonwealth v. Flanagan, 854 A.2d 489, 502 (Pa. 2004). Hence, 

generally, prejudice in the guilty plea context requires a showing that the 

defendant would not have pled guilty. However, in circumstances where the 

allegation relates to the prosecution’s failure to abide by an agreement not 

to recommend a sentence, the resulting prejudice has not always focused on 

whether the petitioner would not have pled guilty. See Zuber, supra

(concluding that plea was not voluntarily and knowingly entered but 

affording relief in the nature of modifying the sentence and not withdrawing 

the plea). 

In Kroh, supra, this Court, quoting Zuber, opined that, “there is an 

affirmative duty on the part of the prosecutor to honor any and all promises 

made in exchange for a defendant’s plea.” Kroh, supra at 1172 (quoting 

Zuber, supra at 444)). The Commonwealth in Kroh was requesting that 

the defendant testify after sentencing in a forfeiture proceeding against 

another person. Kroh alleged that this violated the terms of his plea 

bargain, which required cooperation as to criminal prosecutions for three 

individuals, including the person involved in the forfeiture case. Kroh filed a 
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petition entitled as a petition for specific performance of his plea agreement. 

Treating the matter as a PCRA petition, this Court noted that, whenever a 

plea bargain is violated, a defendant is entitled to the benefit of his bargain. 

The Kroh Court determined that the Commonwealth did violate its plea 

bargain. It then opined, “We must decide which remedy is best suited for 

appellant: either to permit him to withdraw his guilty plea or to order 

specific performance of the plea agreement by the Commonwealth.” Id. at 

1174. Since Kroh specifically sought specific enforcement and was not 

attempting to withdraw his plea, this Court held that he was entitled to the 

benefit of his bargain and directed the Commonwealth to refrain from 

requiring his testimony in the civil proceeding. 

The Kroh decision relied extensively on Zuber, supra. In Zuber, the 

Pennsylvania Supreme Court addressed a petition filed under the PCHA. 

There, the petitioner claimed that he was induced to plead guilty based on a 

promise by the Commonwealth that it would not request that he serve a 

parole violation sentence consecutive to his new sentence in the underlying 

case. However, by law, the petitioner was required to serve the time 

consecutively. Thus, the promise was meaningless. The Zuber Court held 

that the plea was not validly entered. Nonetheless, it concluded that, since 

Zuber only asked for a modification of his sentence, withdrawal of the plea 

was unnecessary. Accordingly, it modified his judgment of sentence. The 
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dissenting justices actually reasoned that Zuber was entitled only to 

withdraw his plea.

The Zuber Court relied on Commonwealth v. Alvarado, 276 A.2d 

526 (Pa. 1971). Alvarado involved a capital direct appeal and an allegation 

of ineffective assistance of counsel. Specifically, the defendant asserted that 

the Commonwealth induced a guilty plea to first-degree murder with a 

promise that it would not seek the death penalty. The Alvarado Court 

determined that the prosecutor violated his promise. It then turned to the 

appropriate remedy. 

The Court first acknowledged, “The majority of jurisdictions that have 

faced this issue permit the withdrawal of a guilty plea when the prosecutor 

violates a plea bargain.” Alvarado, supra at 529. Continuing, the High 

Court recognized “a minority rule which does not permit the withdrawal of 

the plea but instead gives the defendant the benefit of the bargain by 

modifying his sentence in accordance with the prosecutor's promise.” Id. at 

529-530. Lastly, it set forth that courts had “given a defendant the option of 

either withdrawing his plea or accepting a modification of his sentence in 

accordance with the plea bargain.” Id. at 530. Ultimately, the Alvarado

Court declined to adopt a bright-line rule and held, “that in the particular 

circumstances of this case the appropriate disposition is to modify Alvarado's 

sentence to life imprisonment rather than to allow withdrawal of his guilty 

plea.” Id.
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The Court reasoned that because “the Commonwealth did not breach 

any promise until [a]fter Alvarado had been found guilty of murder in the 

first degree, a life sentence rather than death was the [m]ost benefit he 

could have derived from fulfillment of the prosecutor's promise.” Id. It 

concluded that “[n]o consideration of fairness or sound judicial 

administration dictates that he now be given an opportunity to withdraw his 

plea, stand trial, and possibly escape criminal liability altogether.” Id. 

 More recently, in Anthony Williams, supra, this Court declined to 

authorize a guilty plea withdrawal based on a claim that the prosecutor did 

not abide by the terms of the plea agreement because the record did not 

support the factual claim. However, the panel set forth, “Certainly, if the 

prosecutor failed to adhere to the terms of the plea agreement, this would 

provide grounds for PCRA relief as it would be a miscarriage of justice for a 

person to relinquish cherished constitutional rights based on a promise that 

was not kept.” Id. at 619. The Court then, in a parenthetical, posited, “If a 

prosecutor fails to abide by the terms of a plea agreement, defendant must 

be allowed to withdraw his plea.” Id. Hence, Pennsylvania courts have 

differed in the remedy that attaches to a guilty plea withdrawal claim based 

on the prosecution’s failure to abide by an agreement not to recommend a 

sentence. 

In the present case, the Commonwealth did not appeal from the 

decision to resentence nor, in light of its argument here and the unusual 
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procedural posture of this matter, has it sought a cross-appeal challenging 

the award of sentencing relief. Indeed, the Commonwealth requested and 

acquiesced in the resentencing. Therefore, we are not faced with examining 

whether plea counsel had no reasonable basis for not raising the 

Commonwealth’s breach of its agreement. Instead, we are asked to decide 

if the remedy the PCRA court fashioned was appropriate. As noted, the 

remedy has varied.

In cases where the defendant does not seek to withdraw his plea and 

proceed to trial, but asks for the benefit of his bargain, both this Court and 

our Supreme Court have determined resentencing or a modification of the 

defendant’s sentence is appropriate. See Zuber, supra; Kroh, supra; 

Martinez, supra. Additionally, in a capital case, our Supreme Court has 

denied a defendant the opportunity to withdraw his plea but directed that he 

be resentenced to life imprisonment where the prosecutor reneged on his 

promise not to recommend a sentence. Alvarado, supra. In contrast, this 

Court, in a direct appeal matter, held that a defendant was entitled to 

withdraw his plea where the prosecutor recommended a sentence in 

violation of the negotiated guilty plea. Melvin Williams, supra. Similarly, 

in Anthony Williams, supra, we opined that the failure of a prosecutor to 

adhere to his promise is grounds to allow such a withdrawal. 

In Melvin Williams, this Court opined that the benefit of the bargain 

principle could apply to “those situations where the Commonwealth promises 
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to ask for a specific sentence and then in violation of that promise asks for a 

more severe sentence which is in fact given.” Melvin Williams, supra at 

1234. While the Commonwealth in this case did not promise to seek a 

specific sentence and then asked for a more severe sentence, the sentencing 

court was required to sentence the defendant to a mandatory minimum 

sentence. The only discretion the sentencing court enjoyed was whether to 

impose the mandatory sentence concurrently or consecutively. Hence, 

unlike Melvin Williams, the “implementation of the ‘benefit of the bargain’ 

principle can be done with certainty and fairness.” Id. This case is more 

akin to Alvarado where the only sentencing options were life imprisonment 

or the death penalty. Hence, we do not find that the PCRA court erred in 

choosing to order resentencing rather than permit Appellant to withdraw his 

plea. 

Nonetheless, we are aware that in Melvin Williams, supra, this Court 

noted in dicta that if the defendant therein was entitled to “no more than the 

benefit of his bargain” that “[w]e could do that by remanding for sentencing 

before a different judge[.]” Id. at 1234. Further, in Martinez, supra, this 

Court directed that the resentencing therein take place before a different 

jurist. Appellant in his second issue argues that the PCRA court erred in 

denying his request to be resentenced by another judge. In light of 

Martinez and Melvin Williams, we agree. Compare also United States 

v. Hayes, 946 F.2d 230 (3d. Cir. 1991); Santobello v. New York, 404 
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U.S. 257, 263 (1971).7 Accordingly, we vacate the PCRA court’s denial of 

resentencing before a different judge and vacate Appellant’s judgment of 

sentence. We direct that Appellant be resentenced before a different judge 

without any recommendation from the Commonwealth. 

PCRA order vacated in part. Judgment of sentence vacated. Case 

remanded with instructions. Jurisdiction relinquished. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 8/11/2015

____________________________________________

7

In Santobello v. New York, 404 U.S. 257 (1971), the United States 

Supreme Court remanded a matter where it determined that the prosecutor 

violated the terms of the plea agreement by recommending a sentence. In 

doing so, it directed that if the lower court determined the defendant should 

be resentenced rather than allowed to withdraw his plea, such resentencing 

must occur before a different judge. Hence, this is not akin to those cases 

involving sentencing challenges where the Pennsylvania Supreme Court has 

directed this Court to refrain from directing proceedings to occur in front of a 

new judge. Compare Commonwealth v. Whitmore, 912 A.2d 827 (Pa. 

2006).