Loading...
HomeMy WebLinkAboutCP-21-CR-0001254-2009 COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA V.: : DAVID GUY EBERSOLE, JR. : NO. CP-21-CRIMINAL 1011 – 2009 : : NO. CP-21-CRIMINAL 1254 – 2009 : : IN RE: OPINION PURSUANT TO Pa. R.A.P. 1925 Guido, J., July , 2010 The defendant has filed a timely pro se appeal from our sentencing order of February 5, 2010. In his concise statement he rants about the “vindictiveness” of this court, the prosecution, and the clerk of courts, as well as “collusion” and “willful misconduct” on the part of the court reporters who he claims prepared “Dummy 1 Transcripts.” The defendant’s complaints all stem from our alleged refusal to honor the plea agreement he and his attorney negotiated with the Commonwealth. As will be made clear below, the defendant received the full benefit of the plea agreement. On August 9, 2009 the defendant entered a guilty plea to one count of theft at one of the above dockets and one count of forgery at the other in full satisfaction of all charges at both. According to the plea agreement the defendant was to pay restitution of 2 $451.00 to one set of victims and $3516.64 to the other. In addition the Commonwealth 3 agreed to recommend concurrent sentences of “time served to 23 months.” As we always do when a sentencing recommendation is part of the plea agreement, we made sure that the defendant was aware that the ultimate sentence was up to the court. The following portion of the guilty plea colloquy is relevant to this issue: 1 See “Concise Statement of Matters Complained of on Appeal as Amended 1925 (B).” 2 Transcript of Proceedings, Post Sentence Motion, February 5, 2010, pp. 5, 6, 9, 28. 3 Transcript of Proceedings, Guilty Plea, August 11, 2009, p. 2. See also p. 4. CP-21-CRIMINAL 1011 – 2009 – CP-21-CRIMINAL 1254 – 2009 THE COURT: Do you understand that I don’t have to go along with the District Attorney’s recommendation? THE DEFENDANT: Yes, sir. THE COURT: That you could get up to seven years on the forgery charge and up to two years on the theft charge? THE DEFENDANT: Yes, sir. THE COURT: And that they could run consecutive to each other, do you understand that? THE DEFENDANT: Yes, sir. THE COURT: Knowing those things, do you still wish your plea to stand? THE DEFENDANT: Yes. 4 THE COURT: Then we will accept the plea. We then directed the defendant to appear for sentence on October 6, 2009. Our probation department prepared a sentencing report which we relied upon in fashioning an appropriate sentence. The defendant’s criminal history dates back to 1992. He has been convicted of numerous theft and forgery charges. He was on state parole for a burglary conviction at the time the instant offenses were committed. The sentencing report did not make any mention of a plea agreement. It did however indicate that restitution was due in the amount of $2151 on one docket and $9525 on the other. At the time of sentence there was much confusion over what, if any, plea agreement had been reached between the defendant and the Commonwealth. The defendant recalled that the agreement was to be for a “time served” sentence with 5 “restitution to be worked out.” Defense counsel remembered an agreement as to the 6 restitution due, but did not “have notes that reflect” a time served recommendation. The assistant district attorney who appeared at the sentence was not the same one who 7 negotiated the guilty plea. She was not aware of any plea agreement. 4 Transcript of Proceedings, Guilty Plea, August 11, 2009, pp. 5, 6. 5 Transcript of Proceedings, sentencing October 6, 2009, p. 4. 6 Transcript of Proceedings, sentencing October 6, 2009, p. 5. 7 Transcript of Proceedings, sentencing October 6, 2009, p. 8. 2 CP-21-CRIMINAL 1011 – 2009 – CP-21-CRIMINAL 1254 – 2009 We sentenced the defendant to pay the restitution as set forth in the sentencing report. We also sentenced him to incarceration of not less than one nor more than seven years on the forgery charge and not less than three months nor more than two years on the theft charge. The sentences were to run consecutive to each other. We also indicated 8 that each sentence was RRRI eligible. In explaining the reason for our sentence we noted: These are both standard range sentences. While we do not see the need for an extended period of incarceration in addition to his parole hit at this time, we do see the need for an extended period of supervision since the 9 Defendant appears to be a career criminal. Post sentence motions were filed asking us, inter alia, to modify the sentence by enforcing the plea agreement. We conducted an evidentiary hearing on February 5, 2010. A transcript of the guilty plea proceedings of August 11, 2009 was admitted as an exhibit. It showed that the parties had in fact reached a plea agreement as to the restitution and a sentencing recommendation. Therefore, we granted his post sentence motion to modify 10 sentence and vacated our prior sentencing order. As we stated: Now, I have before me the sentencing report and the guilty plea colloquy, as well as the original sentencing colloquy. It was clear that Ms. Sibert made no recommendation, because she wasn’t aware of it, and I cut her short and said that the recommendation would not have done any good in any event. Then I proceeded to impose sentences that were in the standard range, but in the middle of the standard range. I am convinced, as I sit here today, one, that the restitution figures were wrong in the sentence I imposed. I’m also convinced, as I sit here today, that the maximum sentences that I imposed were correct maximum sentences, but in light of the recommendation that the Commonwealth should have made that a consideration should have been given to the 11 Defendant with regard to the minimum sentences.” 8 Transcript of Proceedings, sentencing October 6, 2009, pp. 10, 11. 9 Transcript of Proceedings, sentencing October 6, 2009, p. 11. 10 Transcript of Proceedings, Post Sentence Motions, February 5, 2010, p. 29. 11 Transcript of Proceedings, Post Sentence Motions, February 5, 2010, p. 29. 3 CP-21-CRIMINAL 1011 – 2009 – CP-21-CRIMINAL 1254 – 2009 We then proceeded to impose a mitigated range sentence of three months to seven years on the forgery charge. The period of incarceration on the theft charge was the same as the original sentence. Both sentences were made consecutive to each other. We changed the restitution amount to be in accord with the plea agreement. We are satisfied that we complied with the terms of the plea agreement negotiated between the defendant and the Commonwealth. We imposed the agreed upon restitution. We gave consideration to the Commonwealth’s recommendation, but chose not to follow it. The defendant was well aware that we could make such a choice at the time he entered the plea. The remaining issues raised by the defendant involve allegations of intentional misconduct by this court and its officers. We consider those claims to be frivolous. We can state unequivocally that no such intentional misconduct occurred. ___________________ __________________________ DATE Edward E. Guido, J. Daniel J. Sodus, Esquire For the Commonwealth David G. Ebersole, Jr. EL-5187 – B-14 SCI at Dallas 1000 Follies Road Dallas, Pa. 18612 :sld 4