Com. v. Hannold, E. ( 2016 )


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  • J-A35017-15
    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
    COMMONWEALTH OF PENNSYLVANIA,                 IN THE SUPERIOR COURT OF
    PENNSYLVANIA
    Appellee
    v.
    ETHAN HANNOLD,
    Appellant                No. 1088 WDA 2014
    Appeal from the Judgment of Sentence June 18, 2014
    In the Court of Common Pleas of Clarion County
    Criminal Division at No(s): CP-16-CR-0000170-2013
    COMMONWEALTH OF PENNSYLVANIA,                 IN THE SUPERIOR COURT OF
    PENNSYLVANIA
    Appellee
    v.
    ETHAN HANNOLD,
    Appellant                No. 1089 WDA 2014
    Appeal from the Judgment of Sentence June 18, 2014
    In the Court of Common Pleas of Clarion County
    Criminal Division at No(s): CP-16-CR-0000041-2014
    BEFORE: BENDER, P.J.E., SHOGAN, and MUSMANNO, JJ.
    MEMORANDUM BY SHOGAN, J.:                     FILED FEBRUARY 05, 2016
    Appellant, Ethan Hannold, appeals from the judgment of sentence
    entered June 18, 2014, in the Court of Common Pleas of Clarion County.
    We affirm.
    The trial court summarized the factual history of these cases as
    follows:
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    These cases involve two brutal and senseless attacks on
    innocent women. During the one incident, at case number 170
    CR 2013, [Appellant] executed a plan of running a young woman
    off the road with his car and then coming to her aide for the
    bizarre purpose of making himself feel good about helping
    someone. When the young woman told [Appellant] her father
    was coming and she did not need his help, he felt rejected and
    became incensed and punched her many times through her open
    car window, breaking her nose and bloodying her face. He then
    sexually assaulted her by grabbing her between her legs and
    ripping her pants off. He tried to pull her out through the
    window, but he fell down and she managed to get away.
    In the second case, number 41 CR 2014, [Appellant] drove
    up behind a woman who was walking in town in a residential
    area. Without warning, he ran her down with his car and then
    fled the scene. She suffered a traumatic brain injury.
    Trial Court Opinion, 9/5/14, at 1.
    As a result of both incidents, Appellant was charged with multiple
    crimes. Appellant proceeded to negotiate plea agreements in both cases. At
    170 CR 2013, Appellant entered a guilty plea on August 28, 2013, to
    aggravated assault, robbery by threat of immediate serious injury, recklessly
    endangering another person (“REAP”), and indecent assault by forcible
    compulsion. All other charges were nol prossed by the Commonwealth. The
    indecent assault charge required an assessment by the Sexual Offenders
    Assessment Board to determine if Appellant was a sexually violent predator
    “SVP”). Appellant moved for appointment of his own expert psychiatrist and
    for in forma pauperis (“IFP”) status. The trial court granted both motions.
    Prior to the SVP hearing, the Commonwealth filed a motion to compel
    Appellant to produce his expert witness report. The trial court granted the
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    motion to compel Appellant to provide the expert report, and subsequently
    denied Appellant’s motion to reconsider that decision. The SVP hearing was
    held on May 16, 2014.               Following the hearing, the trial court deemed
    Appellant to be an SVP.
    At 41 CR 2014, Appellant entered a guilty plea on June 18, 2014, to
    aggravated     assault.       All    other     charges   were   nol   prossed   by   the
    Commonwealth.
    On June 18, 2014, Appellant was sentenced, at both dockets, to an
    aggregate sentence of twenty-five to fifty years of incarceration in
    conformity with the plea agreements.                 The sentence included lifetime
    registration as an SVP. Appellant timely appealed. Appellant and the trial
    court complied with the requirements of Pa.R.A.P. 1925.1
    Appellant presents the following issues for our review:
    I.     Whether [Appellant’s] guilty plea was not knowingly,
    intelligently, and voluntarily made because (1) [Appellant] was
    not made aware of all defenses potentially available in his case,
    including insanity or mental infirmity and (2) [Appellant] suffers
    from mental illness such that he was incapable of making a
    knowing, intelligent and voluntary plea.
    II.   Whether [Appellant’s] trial, guilty plea, and sentencing
    counsel, John Lackatos, Esquire, was incompetent and or
    ineffective in the following ways (1) in failing to obtain a mental
    health examination of [Appellant] to determine his competency
    to participate in his defense, (2) in failing to attend [Appellant’s]
    sex offender assessment interview, (3) in failing to advise
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    1
    This Court, sua sponte, consolidated the appeals by order entered
    August 8, 2014.
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    [Appellant] on the defenses of insanity or mental infirmity, and
    (4) in failing to present evidence of [Appellant’s] mental illness
    as a mitigating factor at the time of sentencing.
    III. Whether the trial court, by order granting motion to
    compel [Appellant] to provide expert report signed on April 29,
    2014 and order denying motion to reconsider entered on May
    12, 2014, committed reversible error by ordering that the
    defense produce a report of an expert who the defense did not
    intend to call as a witness at a sexually violent predator hearing.
    Appellant’s Brief at 6 (full capitalization omitted).
    In his first claim, Appellant argues that the trial court erred in
    accepting his guilty pleas because the pleas were not knowingly, intelligently
    and voluntarily made. Appellant’s Brief at 15. Appellant asserts two bases
    for this alleged error.    Appellant first contends that the pleas were not
    knowingly, intelligently, and voluntarily made because Appellant was not
    made aware of all defenses potentially available to him.         Id. at 15-16.
    Appellant also maintains that he suffers from mental illness such that he is
    incapable of making a knowing, intelligent, and voluntary plea. Id. at 16-
    17.
    Before addressing the merits of Appellant’s claims, we first note that a
    defendant wishing to challenge the voluntariness of a guilty plea on direct
    appeal must either object during the plea colloquy or file a motion to
    withdraw the plea within ten days of sentencing.        Pa.R.Crim.P. 720(A)(1),
    (B)(1)(a)(i); Commonwealth v. Lincoln, 
    72 A.3d 606
    , 609-610 (Pa.
    Super. 2013). “Failure to employ either measure results in waiver.” 
    Id. at 610
    .
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    Here, Appellant did not object during either of his plea colloquies. As
    noted by the trial court, “[t]o the contrary, [Appellant] stated during written
    and verbal plea colloquies . . . that he had not been a patient in a hospital,
    he was not under doctor’s care or taking medication and he understood his
    rights and had no questions.”                  Trial Court Opinion, 9/5/14, at 6.
    Furthermore, Appellant did not seek to withdraw his plea through a post-
    sentence motion within ten days of sentencing. Thus, this issue is waived.
    In his second issue, Appellant contends that the trial court erred in
    accepting Appellant’s guilty pleas because trial counsel was ineffective.
    Appellant’s Brief at 18. Appellant maintains that trial counsel was ineffective
    for failing to obtain a mental health examination of Appellant; failing to
    attend Appellant’s sex offender assessment interview; failing to advise
    Appellant on the defenses of insanity or mental infirmity; and failing to
    present evidence of Appellant’s mental illness as a mitigating factor at the
    time of sentencing. Id. at 18-21.
    Due to the procedural posture of this matter, Appellant’s issue is not
    properly before our Court.         In Commonwealth v. Holmes, 
    79 A.3d 562
    (Pa. 2013), our Supreme Court reiterated the holding from Commonwealth
    v. Grant, 
    813 A.2d 726
     (Pa. 2002), and stated that generally, “claims of
    ineffective assistance of counsel are to be deferred to PCRA[2] review; trial
    ____________________________________________
    2
    Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541–9546.
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    courts should not entertain claims of ineffectiveness upon post-verdict
    motions; and such claims should not be reviewed upon direct appeal.”
    Holmes, 79 A.3d at 576.          The Holmes Court, however, recognized two
    exceptions to the general rule whereby claims of ineffective assistance of
    counsel could be raised on direct appeal:             (1) where the trial court
    determines that a claim of ineffectiveness is both meritorious and apparent
    from the record so that immediate consideration and relief is warranted; or
    (2) where the trial court finds good cause for unitary review, and the
    defendant makes a knowing and express waiver of his entitlement to seek
    PCRA review from his conviction and sentence, including an express
    recognition that the waiver subjects further collateral review to the time and
    serial petition restrictions of the PCRA. Id. at 564, 577 (footnote omitted).
    Here,   Appellant    did   not   satisfy   either   of   the   aforementioned
    exceptions.   The trial court did not conclude that Appellant’s claim of
    ineffectiveness is meritorious and apparent from the record necessitating
    immediate consideration, and Appellant has not expressly waived his right to
    pursue PCRA review.       Trial Court Opinion, 9/5/14, at 5.         Accordingly, we
    dismiss this claim without prejudice to Appellant’s right to seek collateral
    review under the PCRA.
    In his third claim, Appellant argues that the trial court erred in
    compelling Appellant to provide to the Commonwealth the report from an
    expert whom Appellant did not intend to call as a witness at the SVP
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    hearing.     Appellant’s Brief at 21.          Appellant contends that the court’s
    mandated production of this report violated the work product privilege. Id.
    at 22.     More troubling however, Appellant contends, is the fact that the
    report was ordered to be turned over to the Commonwealth prior to
    Appellant pleading guilty at 41 CR 2014. Id. at 22-23. Appellant maintains
    that information in that report may have been incriminating to Appellant and
    may have impacted the charges brought against him at 41 CR 2014.3 Id. at
    23.   Appellant asserts that such action violates his Fifth Amendment right
    against self-incrimination. Id.
    We are unable to reach the merits of Appellant’s claim because he has
    waived this issue. As this Court has explained:
    Settled Pennsylvania law makes clear that by entering a
    guilty plea, the defendant waives his right to challenge on direct
    appeal all nonjurisdictional defects except the legality of the
    sentence and the validity of the plea. Commonwealth v.
    Pantalion, 
    957 A.2d 1267
    , 1271 (Pa. Super. 2008).
    Indeed, a defendant routinely waives a plethora of
    constitutional rights by pleading guilty, including the
    right to a jury trial by his peers, the right to have the
    Commonwealth prove his guilt beyond a reasonable
    doubt, and his right to confront any witnesses
    against him. Boykin v. Alabama, 
    395 U.S. 238
    , 
    89 S.Ct. 1709
    , 
    23 L.Ed.2d 274
     (1969) (knowing and
    voluntary guilty plea waives privilege against self-
    incrimination, right to jury trial, and right to
    confront one’s accusers). Furthermore, a defendant
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    3
    We note that the charges filed against Appellant at 41 CR 2014 were not
    of the nature that would require a determination as to whether Appellant
    was an SVP.
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    is permitted to waive fundamental constitutional
    protections in situations involving far less protection
    of the defendant than that presented herein. [See,
    e.g.], Peretz v. United States, 
    501 U.S. 923
    , 936,
    
    111 S.Ct. 2661
    , 
    115 L.Ed.2d 808
     (1991) ([stating:]
    “The most basic rights of criminal defendants are ...
    subject to waiver”); Johnson v. Zerbst, 
    304 U.S. 458
    , 465, 
    58 S.Ct. 1019
    , 
    82 L.Ed. 1461
     (1938)
    ([stating] sixth amendment right to counsel may be
    waived).
    Commonwealth          v.     Byrne,     
    833 A.2d 729
    ,      735–36
    (Pa.Super.2003).
    Lincoln, 
    72 A.3d at 609
     (emphasis added).
    Appellant’s   claim   does    not     challenge   the   court’s    jurisdiction.
    Furthermore, Appellant’s stated issue does not pertain to the legality of his
    sentence or the validity of his plea. Accordingly, Appellant has waived his
    right to raise this claim on direct appeal.
    Judgments of sentence affirmed.
    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 2/5/2016
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