Com. v. Dillard, A., II ( 2021 )

J-S34036-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ANDRE MICHAEL DILLARD II :
:
Appellant : No. 195 MDA 2021
Appeal from the Judgment of Sentence Entered January 12, 2021
In the Court of Common Pleas of Cumberland County Criminal Division at
No(s): CP-21-CR-0002177-2019
BEFORE: DUBOW, J., McLAUGHLIN, J., and McCAFFERY, J.
MEMORANDUM BY McCAFFERY, J.: FILED: DECEMBER 1, 2021
Andre Michael Dillard II (Appellant) appeals from the judgment of
sentence entered in the Cumberland County Court of Common Pleas following
his guilty plea to one count each of involuntary deviate sexual intercourse
(IDSI) and indecent assault1 for the sexual abuse of his 14-year old sister-in-
law. Contemporaneous with this appeal, Appellant’s counsel, Sean Owen,
Esquire, has filed a petition to withdraw from representation and an Anders
brief. See Anders v. California, 386 U.S. 738 (1967); Commonwealth v.
Santiago 978 A.2d 349 (Pa. 2009). The Anders brief presents a claim that
challenges the discretionary aspects of Appellant’s sentence, and questions
whether Appellant should be permitted to withdraw his guilty plea.2 For the
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1 18 Pa.C.S. §§ 3123(a)(7), 3126(a)(8).
2 The Commonwealth has not filed a responsive brief.
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reasons below, we affirm the judgment of sentence and grant counsel’s
petition to withdraw.
The facts underlying Appellant’s guilty plea were summarized at his plea
hearing as follows:
[O]n June 9, 2019, in Hampden Township, police were dispatched
to a residence and were advised by Danielle Dillard[, Appellant’s
wife,] that she found a video on [Appellant’s] phone that depicted
her 14-year-old sister performing oral sex on [Appellant].
Danielle Dillard, the person who called the police, was able
to identify both [Appellant] and the 14-year-old victim. When
there was [an] interview done, the 14-year-old did advise that
after school on several occasions between January 1 and June 9,
2019, [Appellant] would approach her, force her to look at his
penis, touch his penis, and force her to perform oral sex on him.
N.T. Guilty Plea H’rg, 7/29/20, at 2; Affidavit of Probable Cause, 7/22/19, at
6.
Appellant was charged with IDSI (victim less than 16 years old),
indecent assault (victim less than 16 years old and defendant four or more
years older), corruption of minors, sexual abuse of children, and unlawful
contact with a minor.3 On July 29, 2020, Appellant, represented by Attorney
Owen, entered a negotiated guilty plea to one count each of IDSI and indecent
assault. In exchange for the plea, the Commonwealth agreed to forgo a
mandatory minimum sentence of 25 years’ imprisonment,4 and recommend a
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3 18 Pa.C.S. §§ 6301(a)(1)(ii), 6312(b)(2), 6318(a)(1).
4 Appellant was on parole for a prior sex offense at the time he committed the
instant crime. N.T., Guilty Plea H’rg, at 3; N.T. Sentencing 1/12/21, at 2.
(Footnote Continued Next Page)
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sentence of 7 to 14 years for IDSI, followed by a consecutive term of two
years’ probation for indecent assault. Prior to sentencing, the trial court
ordered both a pre-sentence investigation report, and an assessment by the
Sexual Offenders Assessment Board (SOAB) to determine if Appellant met the
criteria for classification as a sexually violent predator under the Sexual
Offenders Registration and Notification Act (SORNA).5
On January 12, 2021, the trial court imposed the agreed-upon sentence
of 7 to 14 years’ imprisonment followed by two years’ probation. N.T.,
Sentencing H’rg, at 7. Although the SOAB determined Appellant did not meet
the criteria for classification as a sexually violent predator, Appellant was a
Tier III offender under SORNA6 and informed of his requirements to register
as a sexual offender for his lifetime. Id. at 2, 8-12. This timely appeal
followed.7 Attorney Owen also complied with the trial court’s directive to file
a concise statement of errors complained of on appeal.
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See 42 Pa.C.S. § 9718.2(a) (mandatory minimum 25 years’ imprisonment for
person convicted of second sexual offense). The Commonwealth explained
that the “agreement to not seek the mandatory [sentence] was at the request
of the victim’s family[.]” N.T., Guilty Plea H’rg, at 4.
5 See 42 Pa.C.S. §§ 9799.10-9799.75. See also 42 Pa.C.S. § 9799.24
(Assessments).
6 See 42 Pa.C.S. §§ 9799.14(d) (IDSI is Tier III offense), 9799.15(a)(3) (Tier
III offender must register for life).
7 On January 22, 2021, the trial court docketed a pro se letter from Appellant,
stating he would “like to appeal [his] sentence and plea agreement.”
Appellant’s Letter, 1/22/21. The court entered an order on January 29th,
(Footnote Continued Next Page)
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When, as here, counsel files a petition to withdraw and accompanying
Anders brief, we must first examine the request to withdraw before
addressing any of the substantive issues raised on appeal. Commonwealth
v. Bennett, 124 A.3d 327, 330 (Pa. Super. 2015). An attorney seeking to
withdraw from representation on appeal
must: 1) petition the court for leave to withdraw stating that, after
making a conscientious examination of the record, counsel has
determined that the appeal would be frivolous; 2) furnish a copy
of the brief to the defendant; and 3) advise the defendant that he
or she has the right to retain private counsel or raise additional
arguments that the defendant deems worthy of the court’s
attention.
Commonwealth v. Cartrette, 83 A.3d 1030, 1032 (Pa. Super. 2013) (en
banc). Pursuant to Santiago, counsel must also:
(1) provide a summary of the procedural history and facts, with
citations to the record; (2) refer to anything in the record that
counsel believes arguably supports the appeal; (3) set forth
counsel’s conclusion that the appeal is frivolous; and (4) state
counsel’s reasons for concluding that the appeal is frivolous.
Counsel should articulate the relevant facts of record, controlling
case law, and/or statutes on point that have led to the conclusion
that the appeal is frivolous.
Id., quoting Santiago, 978 A.2d at 361.
In the present case, the brief and petition to withdraw filed by Attorney
Owen comply with the requirements of Anders and Santiago. See
Cartrette, 83 A.3d at 1032. Moreover, Attorney Owen has provided this
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directing Attorney Owen to “take any actions necessary to perfect the appeal
within statutory timeframes.” Order, 1/29/21. Attorney Owen filed a timely
notice of appeal on February 11, 2021.
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Court with a copy of the letter he sent to Appellant, advising him of his right
to proceed with newly retained counsel or pro se, and to raise any additional
points for this Court’s attention. See Attorney Owen’s letter to Appellant,
8/24/21. Appellant has not filed a response. Therefore, we proceed to
examine the issues identified in the Anders brief, and then conduct “a full
examination of all the proceedings, to decide whether the case is wholly
frivolous.” See Commonwealth v. Yorgey, 188 A.3d 1190, 1196 (Pa.
Super. 2018) (en banc) (quotation omitted). If we agree with counsel’s
assessment, “[we] may grant counsel's request to withdraw and dismiss the
appeal[.]” Id. (citation omitted).
The Anders brief identifies two potential claims for our review: (1) the
sentence imposed by the trial court was an abuse of discretion, and (2)
Appellant should be permitted to withdraw his plea. See Anders Brief at 12,
15. Upon our review, we conclude both of these claims are waived, as well as
meritless.
Preliminarily, we note:
Generally, a plea of guilty amounts to a waiver of all defects and
defenses except those concerning the jurisdiction of the court, the
legality of the sentence, and the validity of the guilty plea.
Commonwealth v. Morrison, 173 A.3d 286, 290 (Pa. Super. 2017).
Nevertheless, a defendant who enters an open plea, absent an agreed-upon
sentence, may challenge the discretionary aspects of their sentence on appeal.
Commonwealth v. Luketic, 162 A.3d 1149, 1159 (Pa. Super. 2017).
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Because a defendant is not entitled to appeal the discretionary aspects of their
sentence as of right, in order to do so, they must comply with certain
requirements, including, inter alia, preserving the claim during the sentencing
hearing or in a post-sentence motion. Commonwealth v. Caldwell, 117
A.3d 763, 768 (Pa. Super. 2015) (en banc).
Similarly:
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). Failure to employ either
measure results in waiver.
Commonwealth v. Lincoln, 72 A.3d 606, 609–10 (Pa. Super. 2013).
Here, Appellant failed to challenge either the voluntariness of his guilty
plea or the excessiveness of his sentence during his guilty plea or sentencing
hearings, or in a post-sentence motion. Thus, on that basis alone, Appellant’s
claims are waived.8
Furthermore, as the trial court explains in its opinion, Appellant’s
sentence was an agreed-upon component of the plea bargain. See Trial Ct.
Op., 4/9/21, at 3-6. The court opined that, although “the sentencing
agreement was variably referred to during the guilty plea proceeding as a
sentencing recommendation, a ‘set sentence,’ and an agreed-upon sentence,
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8 We note, too, that Appellant did not challenge his guilty plea in his court-
ordered Rule 1925(b) statement. See Appellant’s Concise Statement of the
Errors Complained of on Appeal, 3/10/21. Thus, on that basis too, his claim
is now waived. See Pa.R.A.P. 1925(b)(4)(iv) (issues not included in court-
ordered statement are waived).
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. . . [the court’s] imposition of the very sentence Appellant requested makes
the distinction [one] without a difference.” Id. at 4 (footnote omitted).
Indeed, as part of the plea agreement, the Commonwealth agreed not to seek
a mandatory minimum sentence of 25 years’ imprisonment. Thus, any
challenge to the sentence imposed as part of the plea agreement is both
waived and meritless.
We also note that Appellant provides no basis to withdraw his guilty
plea. A defendant who seeks to withdraw a guilty plea after sentencing “must
make a showing of prejudice which resulted in a ‘manifest
injustice.’” Commonwealth v. Culsoir, 209 A.3d 433, 437 (Pa. Super.
2019) (citation omitted). Furthermore:
Once a defendant enters a guilty plea, it is presumed that he was
aware of what he was doing. Consequently, defendants are bound
by statements they make during their guilty plea colloquies and
may not successfully assert any claims that contradict those
statements.
Id.It is well-settled that:
“A valid plea colloquy must delve into six areas: 1) the nature of
the charges, 2) the factual basis of the plea, 3) the right to a jury
trial, 4) the presumption of innocence, 5) the sentencing ranges,
and 6) the plea court's power to deviate from any recommended
sentence.” Additionally, a written plea colloquy that is read,
completed and signed by the defendant and made part of the
record may serve as the defendant’s plea colloquy when
supplemented by an oral, on-the-record examination.
Commonwealth v. Reid, 117 A.3d 777, 782 (Pa. Super. 2015) (citations
omitted); see Pa.R.Crim.P. 590, Comment.
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Here, the record reveals the trial court conducted an oral colloquy with
Appellant at the guilty plea hearing. The trial court reviewed — and Appellant
affirmed he understood — the nature of the charges, the factual basis for his
plea, the fact that the Commonwealth had the burden of proof, the maximum
sentence he could receive, and the fact that the Commonwealth agreed to a
sentence of 7 to 14 years’ imprisonment, followed by two years’ probation in
lieu of an applicable 25-year mandatory minimum sentence. See N.T., Guilty
Plea H’rg, at 4-5. Further, both Appellant and Attorney Owen confirmed that
Attorney Owen reviewed a written guilty plea colloquy with Appellant prior to
the hearing. See id. at 6. The written colloquy informed Appellant that by
pleading guilty, he was giving up his right to a jury trial, as well as his right
to present any possible defenses.9 See Appellant’s Guilty Plea Colloquy,
7/29/20, at 2. Thus, our review of both the written and oral plea colloquies
provides no basis for invalidating Appellant’s plea.
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9 As the trial court notes in its opinion, Appellant did not sign the written plea
colloquy. See Trial Ct. Op. at 6 n.16. Rather, on the line where Appellant’s
signature was required is the word “(video).” Appellant’s Guilty Plea Colloquy
at 3. However, the court determined the lack of a signature did not invalidate
the colloquy under the circumstances presented herein:
Given Appellant’s assertion at the oral colloquy . . . that he went
over his legal rights with counsel and had no further questions
about his rights, and [Attorney Owen’s] assertion in Appellant’s
presence that he reviewed the colloquy with Appellant, and given
the current time limits imposed on coordinating with prisons to
obtain signatures from inmates due to COVID-19, we found the
written colloquy valid.
Trial Ct. Op. at 6 n.16. See N.T., Guilty Plea H’rg, at 6. We agree.
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Therefore, the claims presented in the Anders brief are both waived
and meritless. Moreover, our independent review of the record reveals no
non-frivolous issues to be raised on appeal. Accordingly, we grant Attorney
Owen’s petition to withdraw.
Judgment of sentence affirmed. Petition to withdraw as counsel
granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/1/2021
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