HomeMy WebLinkAboutCP-21-CR-0000672-2009
COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
:
V. :
: CP-21-CR-0672-2009
RUSSELL FLICK : CP-21-CR-3156-2009
IN RE: MEMORANDUM OPINION AND ORDER OF COURT
Masland, J., November 3, 2010:--
Before the court is petitioner’s petition for post-conviction relief claiming, in
essence, that the Commonwealth violated its agreement to stand mute at
sentence regarding whether or not petitioner’s sentences should run
consecutively or concurrently with sentences imposed by other counties. The
Commonwealth’s answer to petitioner’s amended petition for post-conviction
relief does not dispute this position; however, it contends that the Assistant
District Attorney merely responded to the court’s question as opposed to
volunteering a position. That is a distinction without a difference – the obligation
to remain silent allows for no divergence, even when done inadvertently and
without ill will.
The Commonwealth’s answer also suggests that “the court must state
whether it was influenced by the prosecutor’s statements” because the court
could have determined that consecutive sentences were appropriate regardless
of the comments of the Assistant District Attorney. Although the court may not
have been influenced, that question need not be answered. In short, “where the
Commonwealth has agreed to make no recommendation as to sentencing but,
nevertheless, recommends ‘a period of incarceration,’ a breach of the plea
agreement has occurred.” Commonwealth v. Martinez, 539 A.2d 399, 404 (Pa.
CP-21-CR-0672-2009
CP-21-CR-3156-2009
Super. 1988). Moreover, “it is immaterial whether the trial court would have been
influenced by the Assistant District Attorney’s recommendation. The Assistant
District Attorney violated the plea agreement and appellant is entitled to relief.”
Commonwealth v. Williams, 481 A.2d 1230, 1234 (Pa. Super. 1984).
Although the Assistant District Attorney who appeared at sentencing may
have been unaware of the agreement made by his office at the time of the guilty
plea, that a breach occurred is not in question. Accordingly, the following order
shall be entered.
ORDER OF COURT
AND NOW, this day of November, 2010, upon consideration of
petitioner’s amended petition for relief pursuant to the Post-Conviction Relief Act, the
IS VACATED
sentence of the court dated March 30, 2010, and the Court Administrator
is directed to assign this matter to another judge for resentencing.
By the Court,
Albert H. Masland, J.
Matthew P. Smith, Esquire
Assistant District Attorney
Nathan Wolf, Esquire
For Petitioner
Court Administrator
:saa
-2-
COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
:
V. :
: CP-21-CR-0672-2009
RUSSELL FLICK : CP-21-CR-3156-2009
ORDER OF COURT
AND NOW, this day of November, 2010, upon consideration of
petitioner’s amended petition for relief pursuant to the Post-Conviction Relief Act, the
IS VACATED
sentence of the court dated March 30, 2010, and the Court Administrator
is directed to assign this matter to another judge for resentencing.
By the Court,
Albert H. Masland, J.
Matthew P. Smith, Esquire
Assistant District Attorney
Nathan Wolf, Esquire
For Petitioner
Court Administrator
:saa