J-S02005-21

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

KENNETH E. PERRY 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 302 EDA 2020

Appeal from the Judgment of Sentence Entered December 17, 2019

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

No(s): CP-51-CR-0008775-2017

BEFORE: BENDER, P.J.E., KUNSELMAN, J., and NICHOLS, J.

MEMORANDUM BY BENDER, P.J.E.: FILED: APRIL 16, 2021

Appellant, Kenneth E. Perry, appeals from the judgment of sentence of 

1 to 2 years’ incarceration, imposed after his term of probation was revoked

based on a technical violation that stemmed from Appellant’s refusing to admit 

his guilt of the sexual offenses to which he pled nolo contendere. Appellant 

argues that his negotiated plea included an agreement that he would not have 

to admit his guilt (hereinafter “non-admission condition”) and, thus, the trial

court erred by revoking his probation rather than granting specific 

performance of the non-admission condition. After careful review, we vacate 

Appellant’s judgment of sentence and remand for further proceedings.

The facts of Appellant’s case are not pertinent to the issues he raises on 

appeal. The complicated procedural history of his case was summarized by 

the trial court, as follows:
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On December 7, 2018[, Appellant] entered into a negotiated, 

[nolo contendere] plea ... to the charges of Endangering [the]

Welfare of Children[,] as a Felony in the Third Degree[,] and 

Corruption of Minors[,] as a Misdemeanor in the First Degree. The 

negotiated sentence was a total of ten years of reporting 

probation[,] to be supervised by the Sex Offender’s Unit. 

[Appellant’s] probationary sentence included a provision that 

“Admitting Guilt[] During Supervision is Not a Condition of 

Probation[,]” and that [Appellant] would be taking a polygraph

test[,] in lieu of that admission. Notes of Testimony [(N.T.)], 

12/7/18[,] at 23. If [Appellant] passed the polygraph test he 

would not have to enter treatment. [N.T.], 12/19/18[,] at 23.

On December 19, 2018[,] a hearing was held before this [c]ourt 

to clarify the conditions of [Appellant’s] probation should he fail 

the polygraph test. Defense counsel articulated that it was never 

[Appellant’s] understanding of the plea negotiations that he would 

need to admit guilt, despite the results of the polygraph. Id. at 

9. Defense counsel argued that treatment would have to make 

accommodations for [Appellant] to receive treatment without 

admitting guilt. Id. Probation Officer Johnson testified to clarify 

that[,] should an individual fail the polygraph test and enter 

treatment sex offender treatment, such treatment would not be 

possible without continued accountability by the participant. [Id.]

at 10. At this time, this [c]ourt offered [Appellant] the opportunity 

to withdraw the negotiated plea due to the apparent confusion

around its conditions. Id. at 13. [Appellant] declined this 

opportunity and elected to move forward with the polygraph under 

the original conditions of his sentence. Id. at 29.

On December 31, 2018, [Appellant] failed his polygraph. On 

January 7, 2019, [Appellant] appeared before this [c]ourt for a 

violation of probation hearing[,] at which time next steps for 

[Appellant’s] sentence were discussed. This [c]ourt again offered 

[Appellant] the opportunity to withdraw his plea, acknowledging 

the facial contradictions in the agreed-upon sentence. [N.T.], 

1/7/19[,] at 9. [Appellant] did not wish to withdraw his plea, and 

indicated an understanding that he had to go to treatment due to 

the failed polygraph test. Id. (“As far as going to treatment is 

concerned, that’s absolutely what was bargained. If he didn’t pass 

the polygraph, he has to go to treatment. Agreed. He’s ready to 

go.”). At this time, again, [Appellant’s] probation officer made 

clear in his testimony that treatment would be impossible if 

[Appellant] refused to disclose his offense in a rehabilitative 
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setting, resulting in a probation violation. Id. at 11. [Appellant]

indicated an understanding of this risk. Id.

Following this hearing, [Appellant] was subsequently placed into 

sex offender treatment and was given until April 15, 2019[,] to

provide a disclosure about his offense in accordance with 

treatment protocol. 

On April 23, 2019, [Appellant] appeared before this [c]ourt for a 

violation of probation [h]earing. [Appellant] had been 

unsuccessfully discharged from treatment due to his failures to

disclose his offense and his continued blaming of the victim for his 

actions. It was rearticulated at this hearing that this [c]ourt had 

previously offered [Appellant] an opportunity to withdraw his plea, 

which he had declined. [N.T.], 4/23/19[,] at 6, 10. This [c]ourt 

found [Appellant] in technical violation and ordered that he enroll 

in another sex[-]offender treatment program within 30 days. Id.

at 17.

On May 23, 2019, [Appellant] appeared before this [c]ourt again 

for a violation of probation. [Appellant] had continued to be 

noncompliant with treatment, failing to disclose his offense. 

[N.T.], 5/23/19[,] at 5. It was the request of his probation officer 

at this time that [Appellant] be given a sentence of state 

incarceration due to his incompatibility with treatment. Id.

Again, it was rearticulated at this hearing that this [c]ourt had 

previously offered [Appellant] an opportunity to withdraw his plea, 

which he had declined. Id. at 6. This [c]ourt did not find 

[Appellant] in technical violation at this time, but instructed the 

probation officer to relist the matter immediately should 

[Appellant] be unsuccessfully discharged from treatment for a 

second time. Id. at 8.

On September 30, 2019, [Appellant] appeared before this [c]ourt 

again for a violation of probation. [Appellant] had been 

unsuccessfully discharged from treatment again due to his 

continued failure to consistently disclose his offenses. [N.T.], 

9/30/19[,] at 5. This [c]ourt was satisfied at that time that 

[Appellant] had made some progress in treatment in the form of 

partial disclosures, and thus elected to wait to see whether 

[Appellant] would be allowed to re-enter treatment. Id. at 20 

(“Right now let’s see if [the treatment provider] will take 

[Appellant] back.”).

On December 11, 2019, [Appellant] appeared before this [c]ourt 

yet again for a violation of probation. At this time, this [c]ourt 
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learned that [the treatment provider] had not accepted 

[Appellant] back into treatment as of his [December 6, 2019]

reassessment appointment. [N.T.], 12/11/19[,] at 5. Probation 

had requested that [Appellant’s] probation be revoked and that 

[Appellant] serve a term of incarceration due to his continued 

unwillingness to participate in treatment per the conditions of his 

probation. At this time, this [c]ourt held the issue of revocation 

under advisement to address at a [December 17, 2019] hearing. 

[Id.] at 10.

On December 17, 2019, [Appellant] appeared before this [c]ourt 

for its decision as to his probation revocation. [Appellant’s]

probation was revoked and he was sentenced to one to two years 

of state incarceration with no probation tail. [N.T., 12/17/19], at 

20. This [c]ourt further specified that [Appellant] must complete 

sex offender treatment to be eligible for parole. Id.

[Appellant] filed a motion for reconsideration of sentence on 

December 20, 2019[,] which was denied by operation of law after 

thirty days. [Appellant] filed a Notice of Appeal on January 15,

2020[,] and a [Pa.R.A.P. 1925(b)] Statement of Matter[s]

Complained of on Appeal on February 5, 2020. 

Trial Court Opinion (TCO), 5/21/20, at 1-5 (unpaginated; footnotes omitted). 

The trial court filed its Rule 1925(a) opinion on May 21, 2020. 

Herein, Appellant states two issues for our review:

A. Where Appellant entered a [nolo contendere] plea and 

bargained for a specific condition of supervision - to wit, that 

[Appellant] would not have to admit guilt of criminal sexual 

conduct as a condition of probation - and where the court accepted

the plea and its attendant negotiated provisions, did not the court 

err when it refused to grant specific performance of the nonadmission provision of the plea agreement and, instead, obliged 

Appellant to complete sex offender treatment in which admission

of criminal sexual conduct was a requirement for successful 

completion of the treatment program?

B. Did not the court err in finding Appellant in violation of the 

conditions of his supervision[,] where Appellant was terminated 

from sex offender treatment programs due to his refusal to admit 

criminal sexual conduct, contrary to the negotiated provision of 
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his plea agreement that Appellant would not have to admit guilt 

of criminal sexual conduct as a condition of probation?

Appellant’s Brief at 4.

Appellant’s issues are related and, thus, we will address them together. 

Preliminarily, we observe:

In general, the imposition of sentence following the revocation of 

probation is vested within the sound discretion of the trial court, 

which, absent an abuse of that discretion, will not be disturbed on 

appeal. Commonwealth v. Sierra, 752 A.2d 910, 913 (Pa.

Super. 2000). Our standard of review is limited to determining 

the validity of the probation revocation proceedings and the 

authority of the sentencing court to consider the same sentencing 

alternatives that it had at the time of the initial sentencing. 42 

Pa.C.S.[] § 9771(b); Commonwealth v. Gheen, ... 688 A.2d 

1206, 1207–08 ([Pa. Super.] 1997) (the scope of review in an 

appeal following a sentence imposed after probation revocation is 

limited to the validity of the revocation proceedings and the 

legality of the judgment of sentence). Once probation has been 

revoked, a sentence of total confinement may be imposed if any 

of the following conditions exist: (1) the defendant has been 

convicted of another crime; or (2) the conduct of the defendant 

indicates that it is likely that he will commit another crime if he is 

not imprisoned; or, (3) such a sentence is essential to vindicate 

the authority of court. 42 Pa.C.S.[] § 9771(c); Commonwealth 

v. Coolbaugh, 770 A.2d 788, 792 (Pa. Super. 2001).

Commonwealth v. Hoover, 909 A.2d 321, 322–23 (Pa. Super. 2006).

In this case, Appellant argues that the trial court erred by revoking his 

probation based on the technical violation of his failing to complete sexoffender treatment. He argues that he failed treatment because he refused 

to admit his guilt of the offenses to which he pled nolo contendere, but his 

plea agreement included the non-admission condition. Appellant stresses 

that, “[d]uring [his] plea colloquy, the court specifically stated, ‘Admitting guilt 

during your treatment is not a requirement.’” Appellant’s Brief at 21
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(emphasis added) (quoting N.T., 12/7/18, at 6). The written plea colloquy 

forms, and the court’s original sentencing order, also contained the nonadmission condition. Id. at 21-22; see also No Contest Plea Order, 12/7/18, 

at 1 (“Admitting guilty during supervision not a condition of probation.”) 

(unnecessary capitalization omitted). Thus, Appellant insists that “it was clear 

from the start that it was agreed between the parties that [he] need not admit 

guilt during supervision.” Appellant’s Brief at 22. Moreover, he contends that 

the condition that he would complete sex offender treatment if he failed a 

polygraph test did not “nullify the non-admission provision of the plea 

agreement.” Id. at 24. Instead, Appellant reasonably believed he would not 

have to admit guilt, even if he had to attend treatment. See id. at 29-30.

Based on the non-admission condition of the plea agreement, Appellant 

claims that the court erred by finding him in violation of his probation after he 

was discharged from treatment for failing to admit his guilt. Appellant insists 

that while he was entitled to specific performance of the plea agreement’s

non-admission condition, the court “unilaterally and retroactively [rewrote] 

the plea agreement to impose a new condition” of Appellant’s having to admit 

his guilt in order to complete sex-offender treatment. Id. at 26. Appellant 

avers that the court’s finding him in violation and imposing a new sentence of 

incarceration based on his failure to do so “was directly contrary to the 

bargained-for[,] non-admission provision” of the negotiated plea agreement. 

Thus, he asks that we vacate his judgment of sentence and remand for a new 
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violation hearing, at which specific performance of non-admission condition

can be enforced. Id. at 36.

Notably, the Commonwealth agrees that Appellant is entitled to relief. 

It candidly concedes that it “never should have entertained the terms of the 

plea agreement that were reached because it contained contradictory material 

terms.” Commonwealth’s Brief at 14. The Commonwealth then avers that, 

when it notified the court of the contradictory components of the plea in its 

motion for reconsideration of Appellant’s sentence, the court should have 

“exercise[d] its discretionary powers that would have permitted it to 

unilaterally resolve the contract dispute between the parties.” Id. at 15. More 

specifically, “[t]he court should have sua sponte rescinded its sentencing order 

when the Commonwealth first pointed out the problem with the plea 

agreement within thirty days of its entry.” Id. (citing 42 Pa.C.S. § 5505 

(“Except as otherwise proscribed by law, a court upon notice to the parties 

may modify or rescind any order within 30 days after its entry, 

notwithstanding the prior termination of any term of court, if no appeal from 

such order has been taken or allowed.”)). The Commonwealth concludes that, 

by allowing the plea agreement to remain in place, the court “lost jurisdiction 

to remedy the contractual problem[] by the time of the revocation 

proceedings, [and] it was required to enforce the conditions for which 

[Appellant] had bargained.” Id. at 16. Therefore, the Commonwealth 

recommends that we “vacate [Appellant’s] probation revocation sentence and 

order the [trial] court to reinstate his prior[,] ten-year probation term (with 
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credit for the time served on the revocation sentence) and rescind the 

treatment component of the probation term to achieve specific performance 

of the bargain that [Appellant] originally struck.” Id. at 17-18.

We appreciate the Commonwealth’s candor with this Court, and we 

agree with both parties that Appellant is entitled to relief. It is clear that the 

parties contemplated that the non-admission condition of Appellant’s guilty 

plea would mean that he would never be required to admit his guilt, even if 

he failed the polygraph test and had to undergo treatment. Indeed, the court 

explicitly informed Appellant at the plea proceeding that, “[a]dmitting guilt 

during your treatment is not a requirement.” See N.T., 12/7/18, at 6 

(emphasis added). Nothing indicates that the parties were confused about 

the nature of the agreement they were entering, or the terms thereof. In any 

event, we observe that “[a]ny ambiguities in the terms of the plea agreement 

will be construed against the [Commonwealth].” Commonwealth v. 

Hainesworth, 82 A.3d 444, 447 (Pa. Super. 2013) (citation omitted). 

In Hainesworth, we made clear that plea agreements are “contractual 

in nature and [are] to be analyzed under contract law standards.” Id. at 449 

(citation omitted). We also stressed that “it is critical that plea agreements 

are enforced, ‘to avoid any possible perversion of the plea bargaining 

system.’” Id. (quoting Commonwealth v. Fruehan, 557 A.2d 1093, 1094 

(Pa. Super. 1989) (internal citations omitted)). Thus, 

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.” 
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[Santobello v. New York, 404 U.S. 257, 262 (1971)]. This 

doctrine is also reflected in the law of this Commonwealth: “Plea 

bargains which are entered knowingly and voluntarily are viewed 

with favor in this Commonwealth. If 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.” Fruehan, 557 A.2d at 1094. Specific

enforcement of valid plea bargains is a matter of fundamental 

fairness. Commonwealth v. Mebane, 58 A.3d 1243, 1249 (Pa.

Super. 2012).

Id. at 449.

Following these legal principles, we conclude that the trial court abused 

its discretion by refusing to specifically enforce the non-admission condition

of Appellant’s plea. The court reasoned that its revocation of Appellant’s 

probation was appropriate because it repeatedly offered to allow him to 

withdraw his plea, and he “was fully cognizant of [the] treatment condition at 

the outset of his plea....” TCO at 7 (unnumbered). However, as discussed 

supra, the record supports Appellant’s position — and the Commonwealth’s 

concession — that the parties contemplated that Appellant would not have to 

admit his guilt, even if treatment were required. Moreover, Appellant had no 

obligation to move to withdraw a plea that is favorable to him. The 

Commonwealth entered into the plea agreement fully understanding the terms 

thereof, and the court not only accepted the plea, but failed to vacate it when 

the Commonwealth notified the court that the plea contained contradictory 

conditions. Thus, the court abused its discretion by revoking Appellant’s 

probation based on his failure to admit guilt. 
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Accordingly, we vacate Appellant’s judgment of sentence and remand 

for the court to reinstate his prior sentence of probation, with credit given for 

the time Appellant served on his revocation sentence. The court shall also 

rescind the treatment condition of Appellant’s probationary sentence.

Judgment of sentence vacated. Case remanded for further proceedings 

consistent with this decision. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/16/21