A blog of the Philadelphia Bar Association’s Criminal Justice Section

By Burt Rose

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The Superior Court of Pennsylvania has issued an Opinion in the case of COMMONWEALTH of Pennsylvania, Appellant v. Lamar MEBANE, Appellee, 1254 WDA 2010, 2012 WL 5292817, 2012 PA Super 238 (Oct. 29, 2012), a Commonwealth appeal from a Judgment of Sentence of the Court of Common Pleas of Allegheny County, Criminal Division, CP–02–CR–0007063–2008. The case was before Judges BENDERDONOHUE, andSTRASSBURGER. Judge Bender wrote the Opinion for the Panel.

The Commonwealth appealed from a judgment of sentence imposed on Appellee Lamar Mebane, contending that the trial court erred in finding that Mebane was entitled to enforcement of a plea bargain that had been offered and accepted but where the prosecutor attempted to renege prior to presentation of the agreement to the court. The Commonwealth also asserted that Mebane’s sentence was illegal as it did not conform to the applicable mandatory minimum sentencing provision.

Police arrested Mebane following a traffic stop and the Commonwealth ultimately charged him with possession with intent to deliver (cocaine), 35 Pa.C.S. § 780–113(a)(16) and related offenses. A pretrial suppression motion was under advisement by Judge Borkowski when the prosecutor extended a plea offer to Mebane’s attorney. The terms of the offer were that the Commonwealth would waive imposition of a mandatory sentence sur 42 Pa.C.S. § 7508 and Mebane would serve a term of 11 1/2–23 months’ incarceration. The offer was accepted by Mebane and the acceptance was communicated to the prosecutor by defense counsel.

At the time of the acceptance, neither party was aware of the court’s ruling on the suppression motion. At some point after the plea offer had been accepted, the prosecutor asked Judge Borkowski’s secretary if a ruling had been issued on the suppression motion and learned that the Judge had issued a ruling. The prosecutor took no action to inform defense counsel of either the existence or content of the ruling.

When the parties appeared together on the trial date, the prosecutor reneged on the plea agreement. The trial court determined that fundamental fairness entitled Mebane to the benefit of the bargain and accepted Mebane’s plea and sentenced him in accordance with the plea agreement.

The Commonwealth raised the following question for review: Whether the trial court erred in finding that Appellee was entitled to enforcement of an offered sentencing plea agreement, in contravention of the mandatory sentencing statute, where the prosecutor had initially made an offer to waive the mandatory in exchange for appellee’s plea, but the offer was withdrawn prior to presentation of the plea to the court?

The keystone of the Commonwealth’s argument was premised upon the proposition that a plea agreement does not exist until it is presented in open court so that Mebane had no right to enforcement of the plea offer made by the prosecutor since the plea agreement did not exist until it was presented in open court. The Commonwealth’s argument was rejected by the Panel because although Mebane does not have a right to specific enforcement of the agreement, that fact does not necessarily deprive the trial court of the discretion to enforce the plea agreement in circumstances where enforcement is in the interest of justice. The question of whether an agreement exists prior to its presentment in open court may be relevant to, but not necessarily dispositive of, the determination of whether enforcement is justified as a matter of judicial discretion rather than as a matter of right.

Here, there was a unique set of circumstances wherein the trial court determined that enforcement of the plea agreement was warranted in the interest of justice, as a matter of judicial discretion, and not as a matter of right to specific performance.The trial court acknowledged that a “defendant does not have a right to specific performance of executory agreements …” but, nonetheless, determined that the “unique circumstances of this case and fundamental fairness demanded a different result, …” leading the trial court to determine that enforcement of the terms of the plea agreement was in the interest of justice. Judge Borowski found that the prosecutor “vulpinely* used … information regarding the Trial Court’s ruling prior to its disclosure to defense counsel”, leading the defendant to proceed for a considerable period of time under the impression that he would be pleading guilty on the scheduled trial date under the agreed upon terms. These factual conclusions are adequately supported by the record and thus Judge Bender concluded that the trial court had acted in conformity with the general policy of maintaining the integrity of the plea bargain process when it determined that enforcement of the plea agreement was warranted in the unique circumstances of this case. In doing so, the trial court did not abuse its discretion nor commit an error of law.

Furthermore, part and parcel of the Commonwealth’s broad discretion to invoke a mandatory sentence is the discretion to refrain from invoking the mandatory minimum, a function of the Commonwealth’s discretion often employed in the course of plea negotiations with criminal defendants. Indeed, a sentencing court has no discretion or authority to apply a mandatory minimum sentence when the Commonwealth did not give notice of intent to proceed under the applicable mandatory sentencing provision. The prosecutor is truly the gatekeeper in determining whether a mandatory minimum sentence must be applied by a sentencing court.

In this case, however, the lower court determined that enforcement of the terms of the plea agreement included enforcement of the prosecutor’s promise not to seek invocation of a mandatory minimum sentence. Indeed, the promise not to invoke the mandatory minimum was the agreement’s condicio sine qua non.* Mebane agreed to plead guilty, obviating the risk to the Commonwealth that he would be acquitted at a trial, and in return, the Commonwealth agreed to refrain from invoking the mandatory sentence. Enforcement of the plea agreement without enforcement of the promise not to invoke the mandatory sentence would constitute a windfall for the Commonwealth at Mebane’s expense.

The Commonwealth indisputably had the authority to refuse to invoke the mandatory minimum in exchange for Mebane’s guilty plea. The lower court did not abuse its discretion when it chose to enforce that agreement despite the Commonwealth’s attempt to renege. Because the plea agreement included a waiver of the Commonwealth’s right to invoke the mandatory minimum, the Commonwealth’s claim that the sentence imposed was illegal was without merit. Therefore, the sentence was affirmed (without dissent).

Fred G. Rabner, Esq. of Allegheny County represented the Appellee.

*I am not looking up these terms; you can do it.

Comment from Isla A. Fruchter

“condition without which there is nothing”

Another exchange beginning with Burt Rose

What about “vulpinely”?Sent from my iPad

On Oct 30, 2012, at 5:08 PM, sinequanonrischard <sinequanonrischard@gmail.com> wrote:

No! It means the essential condition. I was a victim of Latin for 5 yrs…..


Andrew Cole replies

Looks to be clever like a fox …. http://dictionary.reference.com/browse/vulpine


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