Com. v. Domena, P. ( 2020 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
PEDRO DOMENA :
:
Appellant : No. 1857 EDA 2019
Appeal from the Judgment of Sentence Entered October 19, 2016
In the Court of Common Pleas of Montgomery County Criminal Division
at No(s): CP-46-CR-0007559-2013
BEFORE: NICHOLS, J., McCAFFERY, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY NICHOLS, J.: FILED JULY 01, 2020
Appellant Pedro Domena appeals from the judgment of sentence
imposed after he pled guilty to rape, involuntary deviate sexual intercourse
by forcible compulsion, false imprisonment, and corruption of minors.1
Appellant’s counsel has filed a petition to withdraw and an Anders/Santiago2
brief. We affirm and grant counsel’s petition to withdraw.
By way of background,
[o]n December 18, 2013, [the Commonwealth filed a criminal
information] charging Appellant with 143 different counts ranging
from rape to indecent exposure, all of which related to Appellant’s
abuse of Mother and her two minor daughters. [Trial was
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1 18 Pa.C.S. §§ 3121(a)(2), 3123(a)(2), 2903(a), and 6301(a)(1)(ii),
respectively.
2Anders v. California, 386 U.S. 738 (1967); Commonwealth v. Santiago,
978 A.2d 349 (Pa. 2009).
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scheduled to begin o]n May 16, 2016 . . . instead, as the jury was
about to enter the courtroom [for voir dire], Appellant requested
to enter a guilty plea.[3] Appellant completed a written guilty plea
colloquy and addendum colloquy for sexual offenders, each
confirming Appellant understood his rights and was making a
knowing, intelligent, and voluntary waiver of his right to a trial
and entry into an open guilty plea.[fn1], [4] [That] same day,
Appellant entered an open guilty plea to [rape, IDSI, false
imprisonment, and corruption of minors]. All remaining counts
were nolle prossed. The [trial c]ourt ordered [a] pre-parole
investigation (PPI), pre-sentence investigation (PSI) report,
psychosexual evaluation, and sexually violent predator (SVP)
assessments and sentencing was deferred. Appellant waived the
90-day rule on the record. On September 15, 2016, Appellant’s
sentencing and SVP hearings were scheduled for October 19,
2016.
[fn1]The guilty plea was open but had negotiated terms,
including a cap on Appellant’s minimum sentence of fifteen
(15) years’ imprisonment. At sentencing, the [trial c]ourt
in its discretion imposed a sentence that ran the maximum
years consecutively on each count.
Trial Ct. Suppl. Op., 12/12/19, at 1-3 (some footnotes omitted, formatting
altered).
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3On the day Appellant was scheduled for trial, Appellant was represented by
Patrick McMenamin, Esq. (trial counsel), who was appointed to represent
Appellant on November 10, 2015.
Prior to trial counsel’s appointment, Appellant was represented by two other
attorneys: Vincent Cirillo, Esq., who entered his appearance on behalf of
Appellant on February 10, 2014, and Hindi Kranzel, Esq., who entered her
appearance on November 6, 2015.
4During the colloquy, Appellant confirmed that no one “forced, threatened, or
coerced” him to plead guilty and that he was pleading guilty on his own free
will. See Guilty Plea Hr’g at 11-12.
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On October 18, 2016, the day before sentencing, the trial court docketed
two pro se filings by Appellant.5 First, Appellant asserted that he had
“irreconcilable differences” with trial counsel and requested that the trial court
appoint new counsel on his behalf. See Pro Se Mot. for
Ineffective/Appointment of Counsel, 10/18/16, at 1. In support of his claim,
Appellant argued that trial counsel forced him to enter a guilty plea, failed to
adequately communicate with Appellant or his family, and refused to file a
suppression motion or hire a private investigator. Id. at 1-3.
Appellant also sought to withdraw his guilty plea, asserting that he was
innocent and that his plea was not knowing, voluntary, and intelligent. See
Pro Se Mot. to Withdraw Guilty Plea, 10/18/16, at 2. Appellant argued that
his plea was entered “under coercion and extreme mental and emotional
duress because he was frightened and confused in that he is not educated or
aware in the matters of applicable law, rules of criminal procedure and rules
of evidence.” Id.
At the outset of the sentencing hearing on October 19, 2016, the trial
court addressed Appellant’s pro se filings.6 In denying Appellant’s motion for
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5 The trial court indicated that although the clerk of courts docketed
Appellant’s pro se filings on October 18, 2016, the trial court did not receive
a copy of Appellant’s motions until an hour and a half before the sentencing
hearing.
6 The trial court explained that it “had the opportunity to conference with
counsel” regarding Appellant’s pro se motions. N.T. Sentencing Hr’g,
10/19/16, at 3. Further, the trial court explained that “[w]hile the [c]ourt
does not generally permit hybrid representation and will only take motions
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new counsel, the trial court explained to Appellant that he was “entitled to
competent counsel, not counsel of [his] choice” and noted that trial counsel
was “an experienced, skilled criminal defense attorney who has represented
[Appellant] well in [his] case.” N.T. Sentencing Hr’g at 4.
The trial court then allowed trial counsel to supplement Appellant’s
motion to withdraw his guilty plea. Trial counsel indicated that “as [Appellant]
sets forth in the motion, he is innocent of all charges and, therefore, he would
like to withdraw the plea and proceed to trial.” Id. In response, the
Commonwealth argued that Appellant had failed to make “a plausible or
colorable claim of innocence.” Id. at 5. Specifically, the Commonwealth
referred to Appellant’s PPI evaluation, in which he admitted to threatening and
engaging in sexual intercourse with his victims. Id. Thereafter, the trial court
denied Appellant’s motion.
The trial court then proceeded with Appellant’s SVP and sentencing
hearing. Id. at 6. Ultimately, the trial court determined that Appellant was
an SVP and sentenced Appellant to an aggregate term of fifteen to fifty-seven
years’ imprisonment. Id. at 59.
On October 28, 2016, Mark Kevin Wray, Esq. (Attorney Wray) entered
his appearance on Appellant’s behalf. On November 1, 2016, Appellant filed
an untimely post-sentence motion. Appellant subsequently filed a timely
notice of appeal and a court-ordered Pa.R.A.P. 1925(b) statement. The trial
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filed by counsel, based on the nature of these motions, the [c]ourt will address
them.” Id.
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court issued a Rule 1925(a) opinion asserting that Appellant’s claims were
meritless. Appellant’s appeal was ultimately dismissed by this Court after
Appellant failed to file a brief.
On March 27, 2018, the trial court docketed Appellant’s pro se request
for appointed counsel. The trial court appointed Andrew Joseph Levin, Esq.
(Attorney Levin) to represent Appellant. Appellant filed a Post Conviction
Relief Act7 (PCRA) petition requesting that the trial court reinstate his direct
appeal rights nunc pro tunc. On June 3, 2019, the trial court reinstated
Appellant’s direct appeal rights.8
On June 13, 2019, Attorney Levin filed a motion to withdraw and
requested that the trial court appoint counsel on Appellant’s behalf. Appellant
filed a timely notice of appeal on July 1, 2019. On August 26, 2019, the trial
court granted Attorney Levin’s motion to withdraw and appointed Bonnie-Anne
Keagy, Esq. (counsel) to represent Appellant.
Appellant filed a motion with this Court requesting that we remand the
matter for the filing of a new Rule 1925(b) statement. On November 4, 2019,
we granted Appellant’s motion and ordered the trial court to file a
supplemental Rule 1925(a) opinion addressing Appellant’s claims. See Order,
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7 42 Pa.C.S. §§ 9541-9546.
8The trial court did not reinstate Appellant’s right to file post-sentence
motions.
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11/4/19. Appellant subsequently filed a Rule 1925(b) statement,9 and the
trial court issued a supplemental Rule 1925(a) opinion asserting that
Appellant’s issues were meritless.
On appeal to this Court, counsel filed an Anders/Santiago brief and a
separate petition to withdraw. Counsel’s withdrawal petition indicates that
she sent a copy of the Anders brief to Appellant, and also includes a copy of
the letter she sent to Appellant advising him of his right to proceed pro se or
with new, privately retained counsel. Appellant has not filed a pro se response
or a counseled brief with new counsel.
Counsel’s Anders/Santiago brief identifies the following issue:
Is the record devoid of any issue having arguable merit and is
Appellant’s appeal wholly frivolous?
Anders/Santiago Brief at 4 (full capitalization omitted).10
“When faced with a purported Anders brief, this Court may not review
the merits of any possible underlying issues without first examining counsel’s
request to withdraw.” Commonwealth v. Wimbush, 951 A.2d 379, 382 (Pa.
Super. 2008) (citation omitted). Counsel must comply with the technical
requirements for petitioning to withdraw by (1) filing a petition for leave to
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9 Therein, Appellant argued that (1) the trial court erred by denying
Appellant’s pro se motion to withdraw his guilty plea and by failing to conduct
an on-the-record colloquy concerning Appellant’s reasons for the withdrawal;
and (2) the trial court erred by denying Appellant’s motion for new counsel
and by allowing trial counsel to represent Appellant at sentencing in light of
Appellant’s allegations of ineffectiveness. Appellant’s Rule 1925(b)
Statement, 11/20/19, at 1-2.
10 The Commonwealth did not file a brief.
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withdraw stating that after making a conscientious examination of the record,
counsel has determined that the appeal would be frivolous; (2) providing a
copy of the brief to the appellant; and (3) advising the appellant that he has
the right to retain private counsel, proceed pro se, or raise additional
arguments that the appellant considers worthy of the court’s attention. See
Commonwealth v. Goodwin, 928 A.2d 287, 290 (Pa. Super. 2007) (en
banc).
Additionally, counsel must file a brief that meets the requirements
established by the Pennsylvania Supreme Court in Santiago, namely:
(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.
Santiago, 978 A.2d at 361.
Only after determining that counsel has satisfied these technical
requirements, may this Court “conduct an independent review of the record
to discern if there are any additional, non-frivolous issues overlooked by
counsel.” Commonwealth v. Flowers, 113 A.3d 1246, 1250 (Pa. Super.
2015) (citations and footnote omitted); accord Commonwealth v. Yorgey,
188 A.3d 1190, 1197 (Pa. Super. 2018) (en banc).
Here, counsel has complied with the procedures for seeking withdrawal
by filing a petition to withdraw, sending Appellant a letter explaining his
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appellate rights, and supplying Appellant with a copy of the Anders/Santiago
brief. See Goodwin, 928 A.2d at 290. Moreover, counsel’s
Anders/Santiago brief complies with the requirements of Santiago.
Counsel includes a summary of the relevant factual and procedural history,
refers to the portions of the record that could arguably support Appellant’s
claims, and sets forth the conclusion that the appeal is frivolous. Accordingly,
we conclude that counsel has met the technical requirements of Anders and
Santiago, and we will proceed to address the issues raised in the
Anders/Santiago brief.
Pre-Sentence Motion to Withdraw Guilty Plea
Counsel first identifies Appellant’s claim that the trial court abused its
discretion by denying Appellant’s pre-sentence motion to withdraw his guilty
plea. Anders/Santiago Brief at 19. Counsel explains that the trial court
properly rejected Appellant’s motion to withdraw his plea, as Appellant made
“no plausible demonstration of innocence.” Id. at 26. Counsel notes that
although Appellant claimed that he was innocent, he never made “any claim
as to what facts [from the plea colloquy] were not true. Rather, his pro se
motion states that he was ‘frightened and confused’ at the time of his plea.”
Id. at 25. Further, counsel states that although Appellant asserted that he
was coerced and threatened into pleading guilty, the trial court determined
that Appellant’s claims were not credible. Id. at 25-26.
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We review a trial court’s ruling on a pre-sentence motion to withdraw a
guilty plea for an abuse of discretion. Commonwealth v. Elia, 83 A.3d 254,
261 (Pa. Super. 2013). Our Supreme Court has held that “[t]he proper inquiry
on consideration of such a withdrawal motion is whether the accused has
made some colorable demonstration, under the circumstances, such that
permitting withdrawal of the plea would promote fairness and justice.”
Commonwealth v. Carrasquillo, 115 A.3d 1284, 1292 (Pa. 2015); see also
Pa.R.Crim.P. 591(A) (stating that “[a]t any time before the imposition of
sentence, the court may, in its discretion, permit . . . the withdrawal of a
plea”).
“[A] defendant’s innocence claim must be at least plausible to
demonstrate, in and of itself, a fair and just reason for presentence withdrawal
of a plea.” Carrasquillo, 115 A.3d at 1292 (citation omitted); see also
Commonwealth v. Baez, 169 A.3d 35, 39-40 (Pa. Super. 2017) (finding the
defendant’s claim of innocence implausible where he “offered a bald claim that
he was innocent that was unaccompanied by assertions that he had defenses
to the charges”).
Further, Pennsylvania courts have “issued clear holdings that the denial
of such a motion is proper where the evidence before the court belies the
reason offered.” Commonwealth v. Tennison, 969 A.2d 572, 578 (Pa.
Super. 2009) (citation omitted); see also Commonwealth v. Culsoir, 209
A.3d 433, 438-39 (Pa. Super. 2019) (finding no “fair and just reason” for the
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trial court to grant the defendant’s pre-sentence motion to withdraw his guilty
plea where the defendant “baldly recant[ed] his representations made under
oath to the court”); see also Baez, 169 A.3d at 41 (finding no abuse of
discretion by the trial court because the guilty plea colloquy refuted the
defendant’s position).
Here, the trial court addressed Appellant’s claims as follows:
Appellant failed to make a colorable demonstration that [his] claim
of innocence was at least plausible to demonstrate a fair and just
reason to withdraw his plea before sentencing. The plea
[withdrawal] would not promote justice and fairness given that
(A) it was received by the [trial c]ourt only one day before
sentencing, (B) the Commonwealth had already prepared its case
and was ready for trial on the date he decided to enter into the
open guilty plea, and (C) Appellant had numerous months before
sentencing to withdraw his plea. Appellant filed his pro se motions
just one day before sentencing, and the trial court’s chambers only
received the filings approximately an hour and a half prior to the
commencement of the SVP and sentencing hearings. The timing
of Appellant’s pro se motions appears to this [c]ourt as a mere
effort to delay or disrupt the [c]ourt from proceeding with
sentencing.
Trial Ct. Suppl. Op. at 11-12.
Additionally, one of the issues raised in the pro se motion to
withdraw the guilty plea was that . . . the plea was made under
coercion and extreme mental and emotional distress because
[Appellant] was frightened and confused, and that he is not
educated or aware in matters of applicable law.
That claim is not credible. On the day the guilty plea was entered,
this [c]ourt was ready to proceed to a jury trial. The jury was
lined up outside the room. We were ready to start picking the
jury. We put the jury in another courtroom and went through an
extensive colloquy. And the [c]ourt has very specific recollections
not only of the extensive colloquy, but [Appellant’s] demeanor at
the time, which was one of repeated smiles and almost jolliness,
to the point that the [c]ourt found it disturbing.
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This was not a situation where he in any way looked fearful or
coerced. And there were numerous questions and the [c]ourt
made it very clear that we were ready to proceed to trial, the jury
was here, and that he had no obligation -- there was no way he
was being forced to plead guilty, and everyone was ready to
proceed to trial.
This was his own choice. It was made knowingly, voluntarily, and
intelligently. It was accepted on that day as a result of the
colloquy that was conducted, both written and oral. And the
motion to withdraw the guilty plea is denied.
N.T. Sentencing Hr’g at 6-7.
Based on our review of the record, we discern no abuse of discretion by
the trial court in denying Appellant’s pro se motion to withdraw his plea. See
Elia, 83 A.3d at 261. As noted by the trial court, granting Appellant’s motion
to withdraw the plea “would not promote justice and fairness.” See Trial Ct.
Supp. Op. at 11. Appellant’s bald assertion of innocence, without more, did
not establish a fair and just reason for him to withdraw his plea. See
Carrasquillo, 115 A.3d at 1292; see also Baez, 169 A.3d at 39. Further,
the record supports the trial court’s credibility finding that Appellant was not
forced or coerced into pleading guilty. See Tennison, 969 A.2d at 578.
Accordingly, Appellant is not entitled to relief on this issue.
Request for New Appointed Counsel
Counsel next identifies Appellant’s claim that the trial court erred by
denying his pro se motion to appoint new counsel. Anders/Santiago Brief
at 32. Counsel refers to Appellant’s argument that “the trial court should not
have permitted [trial] counsel to continue with his representation at the
SVP/sentencing hearing.” Id. at 32. Counsel clarifies that Appellant’s
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assertion is “not that [trial counsel] was actually ineffective” but that “the trial
court erred by not replacing an attorney whose [effectiveness] had been
challenged by Appellant.” Id. at 33. Counsel also notes that Appellant
believes “an error took place” when the trial court failed to conduct “on-record
proceedings regarding Appellant’s claims.” Id. at 34. Nonetheless, counsel
asserts that Appellant’s argument regarding irreconcilable differences with
trial counsel are belied by the record. Id.
“A motion for change of counsel by a defendant for whom counsel has
been appointed shall not be granted except for substantial reasons.”
Pa.R.Crim.P. 122(C). “To satisfy this standard, a defendant must demonstrate
that he has an irreconcilable difference with counsel that precludes counsel
from representing him. The decision of whether to appoint new counsel lies
within the sound discretion of the trial court.” Commonwealth v. Spotz,
756 A.2d 1139, 1150 (Pa. 2000) (citations omitted).
We have held that a strained relationship with counsel, a difference of
opinion in trial strategy, a lack of confidence in counsel’s ability, or brevity of
pretrial communications do not necessarily establish irreconcilable differences.
See Commonwealth v. Floyd, 937 A.2d 494, 497-98, 500 (Pa. Super.
2007).
Further, our Supreme Court has stated that “[n]either the Rules of
Criminal Procedure nor our case law requires a defendant be afforded a
hearing every time he requests a change of counsel.” Commonwealth v.
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Keaton, 45 A.3d 1050, 1071 (Pa. 2012) (concluding that the trial court did
not abuse its discretion in denying the defendant’s motion to change appointed
counsel without a hearing because the trial court found that there was no
reason that the defendant’s counsel was incapable of zealous representation).
Here, in his pro se motion, Appellant alleged that he had irreconcilable
differences with trial counsel based on the following claims: (1) trial counsel
only visited Appellant three times in six months and failed to communicate
with Appellant’s family; (2) trial counsel did not “go over [the] case with
[Appellant] in full detail”; (3) trial counsel failed to file a suppression motion
or hire a private investigator as requested by Appellant; (4) trial counsel failed
to subpoena the previous Assistant District Attorney handling Appellant’s case,
who allegedly refused to prosecute the case due to insufficient evidence; (5)
trial counsel “failed to negotiate a plea” and instead coerced Appellant into
entering an open plea; (6) trial counsel moved for an independent psychiatric
evaluation that was not beneficial to Appellant; and (7) trial counsel failed to
inform Appellant that he was pleading guilty to false imprisonment. See Pro
Se Mot. for Ineffective/Appointment of Counsel at 1-3.
In its Rule 1925(a) opinion, the trial court explained:
It is the opinion of the [trial c]ourt that Appellant’s request for trial
counsel’s withdrawal was merely an attempt to delay and interfere
with sentencing. The tardiness of the request indicates to the
[trial c]ourt that it was not made in good faith. Further, it was
unduly burdensome for the [trial c]ourt to appoint new counsel on
the eve of sentencing. This would have been highly prejudicial to
the Commonwealth, which was ready to present facts in support
of its recommended sentence against Appellant. Further, it would
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have been a waste of judicial resources to postpone sentencing,
appoint new counsel, and reschedule the imposition of sentence.
Trial Ct. Suppl. Op. at 13-14. Further, the trial court concluded that
Appellant’s claim that trial counsel forced him to plead guilty was not credible.
See N.T. Sentencing Hr’g at 6.
Based on our review of the record, we discern no abuse of discretion by
the trial court. See Spotz, 756 A.2d at 1150. In his pro se motion, Appellant
made several claims to support his request for new counsel. However, as
noted by the trial court, Appellant’s claims relating to trial counsel’s
representation in connection with his guilty plea were not credible. See N.T.
Sentencing Hr’g at 6. Further, Appellant’s remaining issues, even if true, did
not rise to the level of irreconcilable differences warranting new counsel. See
Floyd, 937 A.2d at 500; see also Commonwealth v. Brown, 18 A.3d 1147,
1158 (Pa. Super. 2011) (noting that a defendant need not consent to every
tactical decision of counsel, but has authority over whether to plead guilty,
waive a jury, testify, or appeal). As such, the trial court did not err by denying
Appellant’s request without conducting a hearing. See Keaton, 45 A.3d at
1071. Therefore, Appellant is not entitled to relief on this claim.
Next, counsel addresses the “four grounds for appeal that remain
following the entry of a guilty plea.” Anders/Santiago Brief at 39.
Specifically, counsel refers to claims that “(1) the plea was not entered
knowing, intelligently, or voluntarily, (2) the offense did not occur in
Montgomery County and thus the court has no jurisdiction to hear the case,
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(3) the sentence is illegal as it exceeds the maximum sentence allowable by
law, [and] (4) that counsel was ineffective during his trial/plea stewardship.”
Id. at 39-40. We address each issue separately.
Validity of Guilty Plea
First, counsel identifies Appellant’s earlier claim that his plea was not
knowing, voluntary, and intelligent. Id. at 41. However, counsel explains
that Appellant’s claim is belied by his own statements during the guilty plea
colloquy. Id. Specifically, during the colloquy, Appellant “indicated that he
was pleading guilty to the charges recited by the prosecutor on the record.”
Id. Further, Appellant “indicated that he [had] not been forced, threatened,
or coerced to plead guilty” and that “he was pleading guilty [on] his own free
will.” Id. Appellant also stated that he “understood that [it] was an open
plea with no agreement on the sentence except as to the cap on the minimum
sentence of fifteen years.” Id. Finally, Appellant signed a written colloquy
and an addendum relating to his requirements as a sex offender. Id. Counsel
explains that “[t]he entire record indicates that Appellant was aware of what
he was doing, and that the plea was knowing, intelligent and voluntary.” Id.
“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.” Commonwealth v.
Reid, 117 A.3d 777, 782 (Pa. Super. 2015) (citations and quotation marks
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omitted). “To determine a defendant’s actual knowledge of the implications
and rights associated with a guilty plea, a court is free to consider the totality
of the circumstances surrounding the plea.” Commonwealth v. Allen, 732
A.2d 582, 588-89 (Pa. 1999).
Initially, we note that by entering a guilty plea, a defendant “waives the
right to challenge on [direct] appeal all non-jurisdictional defects except the
legality of the sentence and the validity of the plea.” Commonwealth v.
Luketic, 162 A.3d 1149, 1159 (Pa. Super. 2017) (citation omitted and some
formatting altered). Further, when the defendant enters an open plea, he
retains the right to challenge the discretionary aspects of his sentence. Id.Although not constitutionally mandated, a proper plea colloquy ensures
that a defendant’s guilty plea is truly knowing and voluntary.
Commonwealth v. Maddox, 300 A.2d 503, 504 (Pa. 1973). “Furthermore,
nothing in [Pa.R.Crim.P. 590] precludes the supplementation of the oral
colloquy by a written colloquy that is read, completed, and signed by the
defendant and made a part of the plea proceedings.” Commonwealth v.
Bedell, 954 A.2d 1209, 1212-13 (Pa. Super. 2008) (citation omitted); see
also Pa.R.Crim.P. 590 cmt. “A person who elects to plead guilty is bound by
the statements he makes in open court while under oath and he may not later
assert grounds for withdrawing the plea which contradict the statements he
made at his plea colloquy.” Commonwealth v. Pollard, 832 A.2d 517, 523
(Pa. Super. 2003) (citation omitted).
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“[T]he law does not require that a defendant be pleased with the
outcome of his decision to plead guilty. The law requires only that a
defendant’s decision to plead guilty be made knowingly, voluntarily, and
intelligently.” Commonwealth v. Jabbie, 200 A.3d 500, 506 (Pa. Super.
2018) (citation omitted).
Although no absolute right to withdraw a guilty plea exists in
Pennsylvania, the standard applied differs depending on whether
the defendant seeks to withdraw the plea before or after
sentencing. When a defendant seeks to withdraw a plea after
sentencing, he must demonstrate prejudice on the order of
manifest injustice. [A] defendant may withdraw his guilty plea
after sentencing only where necessary to correct manifest
injustice. Thus, post-sentence motions for withdrawal are subject
to higher scrutiny since the courts strive to discourage the entry
of guilty pleas as sentence-testing devices.
Manifest injustice occurs when the plea is not tendered knowingly,
intelligently, voluntarily, and understandingly. In determining
whether a plea is valid, the court must examine the totality of
circumstances surrounding the plea. Pennsylvania law presumes
a defendant who entered a guilty plea was aware of what he was
doing, and the defendant bears the burden of proving otherwise.
Commonwealth v. Hart, 174 A.3d 660, 664-65 (Pa. Super. 2017) (citations
and quotation marks omitted).
“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. Failure to employ either
measure results in waiver.” Commonwealth v. Lincoln, 72 A.3d 606, 609-
10 (Pa. Super. 2013) (citations omitted). Likewise, “a request to withdraw a
guilty plea on the grounds that it was involuntary is one of the claims that
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must be raised by motion in the trial court in order to be reviewed on direct
appeal.” Id. at 610 (citation omitted). Further, “any issues not raised in a
Rule 1925(b) statement will be deemed waived.” Commonwealth v. Hill, 16
A.3d 484, 494 (Pa. 2011) (citation omitted).
Here, although Appellant filed a pro se motion to withdraw his plea prior
to sentencing, he did not file a timely post-sentence motion to withdraw his
plea. Further, Appellant did not raise this specific issue in his Rule 1925(b)
statement. Therefore, it is waived. See id. Nonetheless, even if not waived,
we agree with the trial court’s thorough analysis and conclusion that
Appellant’s plea was knowing, voluntary, and intelligent. See Trial Ct. Op.,
9/13/19, at 8-15. Therefore, we affirm on that basis.
Jurisdictional Issue
Next, counsel notes that although Appellant is eligible to raise an issue
relating to jurisdiction, he “agreed that the criminal incidents occurred in
Montgomery County.” Anders/Santiago Brief at 41. Therefore, counsel
suggests that a jurisdictional claim would be meritless. Id.A guilty plea “constitutes a waiver of jurisdiction over the person of the
defendant.” Commonwealth. v. Little, 314 A.2d 270, 272 (Pa. 1974).
However, subject matter jurisdiction cannot be waived. Id. Challenges to a
court’s subject matter jurisdiction is a question of law and, therefore, our
standard of review is de novo. Commonwealth v. Jones, 929 A.2d 205, 211
(Pa. 2007). There are two requirements for subject matter jurisdiction as it
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relates to criminal defendants: 1) the competency of the court to hear the
case; and 2) the provision of specific and formal notice to the defendant of
the crimes charged. Id. at 211-12 (citation omitted).
Here, the Montgomery County Court of Common Pleas, Criminal
Division, was competent to hear Appellant’s case, which involved violations of
the Pennsylvania Crimes Code occurring in Montgomery County. See
Commonwealth v. Kohler, 811 A.2d 1046, 1050 (Pa. Super. 2002) (holding
that a county court of common pleas has jurisdiction over offenses that take
place within its borders). Further, the record reflects that Appellant received
specific and formal notice of the charges when the Commonwealth filed the
criminal complaint and criminal information and again when Appellant
participated in the guilty plea colloquy. See Criminal Compl., 9/9/13; Criminal
Information, 12/18/13; N.T. Guilty Plea Hr’g at 7-23. Finally, as noted by
counsel, Appellant specifically acknowledged that he committed the crimes in
Pottstown, Montgomery County. See N.T. Guilty Plea Hr’g at 12-17.
Therefore, the trial court had jurisdiction over Appellant’s case, and he is not
entitled to relief on this claim.
Sentencing Claims
Next, counsel identifies Appellant’s claim that his sentence was
“excessive” because “the standard guideline range called for a sentence of
seven to eight and one-half years and the imposed sentence greatly exceed[s]
that number.” Anders/Santiago Brief at 43. Counsel notes that this issue
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relates to the discretionary aspects of Appellant’s sentence. Id. However,
counsel explains that Appellant waived this issue by failing to raise it in a post-
sentence motion. Id.Initially, we note that an allegation that a sentence is excessive is a
challenge to the discretionary aspects of sentencing. See Commonwealth
v. Ahmad, 961 A.2d 884, 886 (Pa. Super. 2008).
Challenges to the discretionary aspects of sentencing do not
entitle an appellant to review as of right. An appellant challenging
the discretionary aspects of his sentence must invoke this Court’s
jurisdiction by satisfying a four-part test:
We conduct a four-part analysis to determine: (1) whether
appellant has filed a timely notice of appeal, see Pa.R.A.P.
902 and 903; (2) whether the issue was properly preserved
at sentencing or in a motion to reconsider and modify
sentence . . . ; (3) whether appellant’s brief has a fatal
defect, Pa.R.A.P. 2119(f); and (4) whether there is a
substantial question that the sentence appealed from is not
appropriate under the Sentencing Code, 42 Pa.C.S.[ ] §
9781(b).
Commonwealth v. Tukhi, 149 A.3d 881, 888 (Pa. Super. 2016) (citation
omitted). “Issues not presented to the sentencing court are waived and
cannot be raised for the first time on appeal.” Commonwealth v. Malovich,
903 A.2d 1247, 1251 (Pa. Super. 2006) (citation omitted).
In Tukhi, counsel filed an Anders/Santiago brief, which raised an issue
relating to the discretionary aspects of the defendant’s sentence. Tukhi, 149
A.3d at 888. The Tukhi Court held that the defendant waived the issue
because he failed to preserve it at the sentencing hearing or in a post-sentence
motion. Id.
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Here, like the defendant in Tukhi, Appellant failed to preserve any
sentencing claims before the trial court. Therefore, as noted by counsel, any
such claims are waived. Id.
Counsel also identifies a claim relating to the legality of Appellant’s
sentence. Anders/Santiago Brief at 42. However, counsel states that “the
sentences imposed on the various counts to which Appellant pled guilty were
all within the statutory maximums permitted by law.” Id. Further, counsel
explains that the trial court’s “minimum sentence imposed did not exceed the
fifteen year minimum that had been negotiated.” Id. Therefore, counsel
suggests that Appellant’s claim is meritless.
“If no statutory authorization exists for a particular sentence, that
sentence is illegal and subject to correction.” Commonwealth v. Infante,
63 A.3d 358, 363 (Pa. Super. 2013) (citation omitted). Issues relating to the
legality of a sentence are questions of law. Commonwealth v. Diamond,
945 A.2d 252, 256 (Pa. Super. 2008). Therefore, our “standard of review is
de novo and our scope of review is plenary.” Id. (citation omitted).
Section 1103 of the Pennsylvania Crimes Code provides, in relevant
part, as follows:
Except as provided in 42 Pa.C.S. § 9714 (relating to sentences for
second and subsequent offenses), a person who has been
convicted of a felony may be sentenced to imprisonment as
follows:
(1) In the case of a felony of the first degree, for a term
which shall be fixed by the court at not more than 20 years.
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(2) In the case of a felony of the second degree, for a term
which shall be fixed by the court at not more than ten years.
(3) In the case of a felony of the third degree, for a term
which shall be fixed by the court at not more than seven
years.
18 Pa.C.S. § 1103.
Instantly, the trial court sentenced Appellant to ten to twenty years’
imprisonment for rape and two to twenty years’ imprisonment for IDSI, both
of which are first-degree felonies. See N.T. Sentencing Hr’g at 59. The trial
court also sentenced Appellant to two to ten years’ imprisonment for false
imprisonment, a second-degree felony. Id. Finally, the trial court sentenced
Appellant to one to seven years’ imprisonment for corruption of minors, a
third-degree felony. Id. These sentences do not exceed the respective
statutory maximums for felonies of the first, second, or third degree. See 18
Pa.C.S. § 1103(1)-(3). Therefore, the sentencing court had statutory
authority to impose Appellant’s sentence, and Appellant is not entitled to relief
on this claim.
Appellant’s SVP Status
Counsel also raises an issue relating to Appellant’s SVP status.
Anders/Santiago Brief at 45. Relying on this Court’s decision in
Commonwealth v. Butler, 173 A.3d 1212, 1213 (Pa. Super. 2017), counsel
notes that Appellant may have a claim that his SVP hearing was
unconstitutional. Id. However, while Appellant’s appeal was pending, our
Supreme Court issued its decision in Commonwealth v. Butler, ___ A.3d
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___, 2020 WL 1466299, at *1 (Pa. filed Mar. 26, 2020), holding that the
“registration, notification, and counseling” requirements applicable to SVPs
does “not constitute criminal punishment” and, as such, the “procedure for
designating individuals as SVPs . . . remains constitutionally permissible”).
Therefore, because it is clear that Appellant is not entitled to relief based on
the constitutionality of his SVP status hearing, we decline to address this issue
on appeal.
Ineffectiveness Claims
Lastly, counsel notes that Appellant “may be able to make a claim under
the PCRA as to the ineffectiveness of first appellate counsel [(Attorney Wray)]
for failing to preserve [Appellant’s] sentencing claims.” Anders/Santiago
Brief at 44. However, counsel notes that any claims relating to ineffective
assistance of trial counsel or prior appellate counsel should be raised
“following the conclusion of the instant appeal in a properly filed [PCRA
petition].” Id. at 40.
Generally, a criminal defendant may not assert claims of ineffective
assistance of counsel on direct appeal. See Commonwealth v. Holmes, 79
A.3d 562, 577-80 (Pa. 2013). Instead, such claims are to be deferred to PCRA
review. Id. However, our Supreme Court has recognized three exceptions to
the general rule. In Holmes, the Supreme Court held that a trial court has
discretion to address ineffectiveness claims on direct review in cases where
(1) there are extraordinary circumstances in which trial counsel’s
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ineffectiveness is apparent from the record and “meritorious to the extent that
immediate consideration best serves the interests of justice[;]” or (2) “there
is good cause shown” and the defendant knowingly and expressly waives his
entitlement to seek subsequent PCRA review of his conviction and sentence.
Holmes, 79 A.3d at 599. More recently, our Supreme Court adopted a third
exception, which requires “trial courts to address claims challenging trial
counsel’s performance where the defendant is statutorily precluded from
obtaining subsequent PCRA review.” Commonwealth v. Delgros, 183 A.3d
352, 361 (Pa. 2018).
Here, the record does not indicate that extraordinary circumstances
exist, or that Appellant waived his right to PCRA review. See Holmes, 79
A.3d at 599. Further, Appellant is not statutorily barred from seeking PCRA
relief. See Delgros, 183 A.3d at 361. Because none of the exceptions apply,
Appellant’s ineffectiveness claims cannot be considered on direct appeal.
Moreover, our independent review of the record does not reveal any
additional, non-frivolous issues preserved in this appeal. See Flowers, 113
A.3d at 1250. Accordingly, we affirm the judgment of sentence and grant
counsel’s petition to withdraw.
Judgment of sentence affirmed. Petition to withdraw granted.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/1/20
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