Com. v. Slicker, R. ( 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
RONALD LARRY SLICKER, SR. :
:
Appellant : No. 86 WDA 2019
Appeal from the Judgment of Sentence Entered September 17, 2018
In the Court of Common Pleas of Lawrence County Criminal Division at
No(s): CP-37-CR-0000943-2015,
CP-37-CR-0000948-2015
BEFORE: DUBOW, J., McLAUGHLIN, J., and COLINS*, J.
MEMORANDUM BY COLINS, J.: FILED AUGUST 3, 2020
Appellant, Ronald Larry Slicker, Sr., appeals from the judgment of
sentence imposed after he pleaded nolo contendere to sexual assault.1 We
affirm.
On August 18, 2015, the Commonwealth charged Appellant at two
separate criminal dockets CP-37-CR-0000943-2015 (“No. 943-15”) and CP-
37-CR-0000948-2015 (“No. 948-15”) relating to allegations that he engaged
in oral, anal, and vaginal sexual intercourse on several occasions with a female
victim who was approximately five to six years old and that he gave the same
victim a vibrating sex toy on her fourteenth birthday. On March 31, 2016, the
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1 18 Pa.C.S. § 3124.1.
* Retired Senior Judge assigned to the Superior Court.
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trial court entered an order consolidating the two cases for the purposes of
trial.
On May 21, 2018, Appellant proceeded to a jury trial at No. 943-15 on
one count of involuntary deviate sexual intercourse (“IDSI”) with a child and
one count of corruption of minors2 and at No. 948-15 on three counts of rape
of a child, two counts of IDSI with a child, and one count of indecent assault
without consent of the complainant.3 On May 25, 2018, the jury returned a
verdict of guilt as to the corruption of minors charge at No. 943-15, and a
mistrial was declared as to the remaining count at No. 943-15 and all of the
charges at No. 948-15. N.T., 5/25/18, at 116-18.
On May 30, 2018, the Commonwealth filed a motion for new trial as to
the remaining charges from both cases. The trial court granted that motion
and scheduled the trial to begin on September 17, 2018. On that date,
however, Appellant entered a plea of nolo contendere to one count of sexual
assault at No. 948-15, and the Commonwealth withdrew the remaining
charges at both docket numbers.4 N.T., 9/17/18, at 5-16; No Contest Plea
Colloquy Form, 9/18/18. The trial court sentenced Appellant on September
17, 2018 to two years and six months to five years of imprisonment on the
sexual assault charge at No. 948-15 and one to two years of imprisonment on
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2 18 Pa.C.S. §§ 3123(b) and 6301(a)(1), respectively.
3 18 Pa.C.S. §§ 3121(c), 3123(b), and 3126(a)(1), respectively.
4At the plea hearing, the trial court amended one of the counts of rape of a
child at No. 948-15 to a count of sexual assault upon the consent of the
parties. N.T., 9/17/18, at 2-3, 15-16.
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the corruption of minors charge at No. 943-15, with the sentences to be
served concurrently. N.T., 9/17/18, at 18-19; Sentencing Order, No. 943-15,
9/18/18; Sentencing Order, No. 948-15, 9/18/18.
On September, 26, 2018, Appellant filed a motion seeking to withdraw
his nolo contendere plea at No. 948-15 on the grounds that he did not enter
the plea knowingly, intelligently, and voluntarily and that he received
ineffective assistance from his trial counsel with respect to his advice to accept
the plea. Motion, 9/26/18, ¶¶4, 6. Appellant additionally argued in that
motion and in a supplemental post-sentence motion that his sentence at No.
948-15 was illegal, that he received ineffective assistance of counsel at No.
943-15 with respect to his sentencing, and that his corruption of minors
conviction at No. 943-15 should be vacated for faulty jury instructions. Id.,
¶¶3, 5; Motion, 11/26/18, ¶¶5-8. The trial court entered an order appointing
new counsel for Appellant, and a hearing was held on Appellant’s motion on
November 20, 2018 at which Appellant and his trial counsel, Michael Bonner,
Esquire, testified.
On December 17, 2018, the trial court issued an opinion and order
denying Appellant’s post-sentence motions. An identical copy of the order and
opinion, listing the docket number for each case, was filed on each docket.
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On January 15, 2019, Appellant filed a single notice of appeal listing the docket
numbers for both cases.5
Before we reach the merits of the appeal, we must address the issue of
whether this appeal must be quashed pursuant to Rule of Appellate Procedure
341(a) and Commonwealth v. Walker, 185 A.3d 969 (Pa. 2018), because
Appellant filed a single notice of appeal listing both the No. 943-15 and No.
948-15 docket numbers. On February 4, 2019, this Court issued a rule
directing Appellant to show cause why his appeal should not be quashed in
light of Walker. Appellant filed a response, and, on February 13, 2019, this
Court entered an order discharging the rule, but stating that the merits panel
may revisit the issue of whether Appellant’s notice of appeal ran afoul of
Walker.
Rule 341(a) provides in relevant part in that “an appeal may be taken
as of right from any final order of a government unit or trial court.” Pa.R.A.P.
341(a). In 2013, the Official Note of Rule 341 was amended to provide the
following clarification regarding compliance with Rule 341(a):
Where . . . one or more orders resolves issues arising on more
than one docket or relating to more than one judgment, separate
notices of appeal must be filed. Commonwealth v. C.M.K., 932
A.2d 111, 113 & n.3 (Pa. Super. 2007) (quashing appeal taken by
single notice of appeal from order on remand for consideration
under Pa.R.Crim.P. 607 of two persons’ judgments of sentence).
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5Appellant filed his court-ordered concise statement of errors complained of
on appeal on February 4, 2019, and the trial court entered an order on March
11, 2019 pursuant to Pa.R.A.P. 1925(a), in which it stated that it was relying
on the rationale set forth in its December 17, 2018 opinion.
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Pa.R.A.P. 341, Official Note.
In Walker, the Commonwealth filed a single notice of appeal from an
order that granted four motions to suppress filed by four separate defendants
at four docket numbers. 185 A.3d at 971-72. The Court noted that the
Pennsylvania appellate courts had historically declined to quash a single notice
of appeal filed to challenge multiple appealable orders, but concluded that the
2013 amendment to the Official Note of Rule 341 establishes “a bright-line
mandatory instruction to practitioners to file separate notices of appeal.” Id.
at 974-77. Thus, the Court held that “when a single order resolves issues
arising on more than one lower court docket, separate notices of appeal must
be filed.” Id. at 977. The Court stated that the failure to comply with this
rule requires the quashal of an appeal, but that this rule would only apply
prospectively from the date that decision was issued. Id. at 977.
In the present matter, the trial court’s December 17, 2018 order
denying Appellant’s post-sentence motions listed both No. 943-15 and No.
948-15 docket numbers, and Appellant filed a single notice of appeal listing
the two numbers. The notice of appeal was filed on January 15, 2019, after
the date that the Walker decision was issued, and therefore the rule set forth
in that case is applicable here. In his response to the rule to show cause,
Appellant conceded that he inadvertently listed the docket numbers of both
cases, but he argued that Walker does not require the invalidation of his
appeal because his sole appellate claim relates to his guilty plea at No. 948-
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15 and he is not raising any issues related to case No. 943-15 in this appeal.
Response to Rule to Show Cause, 2/11/19, ¶¶4, 6.
We agree with Appellant that Walker is not implicated in this case.
Walker held that in an appeal from an order resolving issues on “more than
one lower court docket,” the appellant must file “separate notices of appeal.”
185 A.3d at 977. However, we find no support in Walker for a rule that would
require an appellant to file separate notices of appeal for multiple matters
resolved in a single trial court order when the appellant only seeks to appeal
the court’s determination in one of the matters. Rather, this Court has
consistently found Walker applicable when an appellant files a single notice
of appeal raising issues as to multiple lower court matters resolved in one
lower court order. See Commonwealth v. Johnson, ___ A.3d ___, 2020
Pa. Super. 164, *8 (filed July 9, 2020) (en banc) (“[W]here a single defendant
challenges his sentence relating to ‘more than one docket,’ Walker requires
that defendant to file separate notices of appeal.” (citation omitted));
Commonwealth v. Larkin, ___ A.3d ___, 2020 Pa. Super. 163, *4 (filed July
9, 2020) (en banc) (same); Commonwealth v. Nichols, 208 A.3d 1087,
1089 (Pa. Super. 2019) (undertaking a Walker analysis where the appellant
“filed a single notice of appeal with issues that relate to three different lower
court docket numbers”). In this case, because Appellant has only raised an
issue in this appeal as to No. 948-15, Walker did not require him to also file
a “separate notice[] of appeal” as to his conviction at No. 943-15, a case he
had no interest in appealing. 185 A.3d at 977.
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Furthermore, we need not quash this appeal based on the fact that
Appellant listed the docket numbers for both No. 948-15 and No. 948-13 on
his notice of appeal when he only intended to appeal No. 948-15. This Court
has recently clarified that Walker does not require the quashal of an appeal
simply by virtue of an appellant’s inclusion of two or more docket numbers on
a notice of appeal. Johnson, 2020 Pa. Super. 164, *12. Accordingly, as the
instant notice of appeal does not run afoul of Rule 341 and Walker, we will
turn to the merits of this appeal.
Appellant presents the following issue on appeal: “Did the trial court
abuse its discretion when it failed to allow Appellant to withdraw his no contest
plea due to ineffective assistance of counsel?” Appellant’s Brief at 3.
“At the outset, we note that in terms of its effect upon a case, a plea of
nolo contendere is treated the same as a guilty plea.” Commonwealth v.
Jabbie, 200 A.3d 500, 505 (Pa. Super. 2018) (citation and quotation marks
omitted); see also Commonwealth v. Norton, 201 A.3d 112, 114 n.1 (Pa.
2019). “It is well-settled that the decision whether to permit a defendant to
withdraw a guilty plea is within the sound discretion of the trial court.”
Jabbie, 200 A.3d at 505 (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.” Commonwealth v. Hart, 174 A.3d 660, 664 (Pa. Super.
2017). After the sentence has been imposed, the standard for withdrawal “is
a stringent one, requiring the defendant to establish manifest injustice.”
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Norton, 201 A.3d at 119 n.6 (citation omitted). “[P]ost-sentence motions for
withdrawal are subject to higher scrutiny since the courts strive to discourage
the entry of guilty pleas as sentence-testing devices.” Hart, 174 A.3d at 664
(citation omitted).
A defendant will meet the manifest injustice standard necessary for the
post-sentence withdrawal of a plea if he demonstrates that his plea was not
entered into knowingly, voluntarily and intelligently. Jabbie, 200 A.3d at 505.
“Pennsylvania law presumes a defendant who entered a guilty [or nolo
contendere] plea was aware of what he was doing, and the defendant bears
the burden of proving otherwise.” Id. (citation omitted). A defendant is
bound by his statements at a plea hearing and may not later recant those
statements or assert grounds for withdrawing the plea that contradict
statements made during the hearing. Id. at 506.
During the plea colloquy, the trial court must address six topics with the
defendant to ascertain that he is aware of the consequences of the plea: (1)
the factual basis of the plea, (2) the nature of the charges to which he is
pleading guilty, (3) the right to a jury trial, (4) the presumption of innocence,
(5) the sentencing ranges for the charges, and (6) that the court is not bound
by the terms of the plea agreement unless it accepts the agreement.
Pa.R.Crim.P. 590, Comment; Commonwealth v. Kpou, 153 A.3d 1020, 1023
(Pa. Super. 2016). A written plea colloquy that is signed by the defendant
and made part of the record may substitute for oral colloquy so long as it is
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supplemented by some on-the-record colloquy. Commonwealth v.
Morrison, 878 A.2d 102, 108-09 (Pa. Super. 2005) (en banc).
Appellant contends that the trial court abused its discretion in denying
his motion to withdraw his plea for two reasons. First, Appellant avers that
the written plea colloquy form was “fatally defective resulting in a plea that
was not voluntarily and knowingly entered.” Appellant’s Brief at 11. Appellant
identifies four defective questions in the plea:
19. Do you understand that if the Court does not accept the plea
recommendation made you do not have the right to withdraw your
plea?
29. Have any promises been made to you to enter a plea of no
contest?
30. Do you understand that this plea of no contest is based upon
a non-binding recommendation and is not a promise nor binding
agreement, and if it is not accepted by the Court you cannot
withdraw your plea as indicated above?
39. Are you satisfied with the representation of your attorney?
No Contest Plea Colloquy Form, 9/17/18, at unnumbered pages 3-4.
Questions 19 and 30 were crossed out, and Appellant wrote his initials next to
the questions rather than filling in a response. Id. Appellant answered yes
to question 29 and no to question 39. Id. at unnumbered page 4. Appellant
contends that the trial court did not resolve these alleged defects as to these
four questions at the oral colloquy.
We disagree with Appellant’s assessment of the written plea colloquy
form. This Court has explained there exists a “continuum” of negotiated plea
agreements from open pleas on one end of the continuum in which the
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prosecution makes no promise regarding the sentence it will recommend to
negotiated plea agreements on the other end of the continuum in which the
prosecution agrees to a specific sentence. Commonwealth v. Root, 179
A.3d 511, 516 (Pa. Super. 2018). In these latter types of plea agreements,
the parties and sentencing court are bound by the imposed sentence so long
as the agreed-upon sentence may be legally imposed. Id. at 517. While the
court retains the authority to impose a more severe sentence, in such an
instance the defendant is afforded the right to withdraw from the plea after
the imposition of the harsher sentence and elect to go to trial. Id. at 518.
By crossing out of questions 19 and 30 from the written colloquy form,
it is clear that the plea was viewed as this type of binding negotiated plea.
The removal of these questions from the form thus signifies that Appellant
would not have been bound by the terms of the plea agreement if the trial
court imposed a harsher sentence than specified in the agreement, and he
then would have been able to withdraw his plea after sentencing. Thus, rather
than having entered into a “defective” plea, Appellant negotiated a plea
agreement that afforded him more rights than defendants who enter into open
pleas and other types of plea agreements where the prosecution only agrees
to recommend a sentence.6
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6 As the trial court imposed the agreed upon sentence, Appellant received the
benefit of his bargain and he was not permitted to withdraw his plea as of
right after sentencing. Cf. Root, 179 A.3d at 518-19 (holding that, where the
trial court imposed a more severe sentence than the plea agreement dictated,
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Regarding Appellant’s negative response to question 39 asking whether
he was satisfied with Attorney Bonner’s representation, the trial court
addressed this issue during oral colloquy. The trial court asked Appellant
whether he had an opportunity to discuss the plea with Attorney Bonner,
whether he asked Attorney Bonner all the questions he felt necessary for the
entry of the plea, and whether he was “satisfied with [Attorney Bonner’s]
services as it relates to the entry of a plea.” N.T., 9/17/18, at 9-10. Appellant
answered in the affirmative to each question. Similarly, although Appellant
answered “yes” to question 29 asking whether he had been promised anything
in exchange for his plea, he gave a negative response when asked this same
question during the oral colloquy. Id. at 7. The trial court thus resolved the
ambiguity regarding Appellant’s answers to questions 29 and 39. Accordingly,
we find no deficiencies in the written plea colloquy form that rendered
Appellant’s nolo contendere plea involuntary, unknowing, or unintelligent.
Appellant also argues that his nolo contendere plea was not voluntarily
and knowingly entered because Attorney Bonner provided ineffective
assistance of counsel. Generally, claims of ineffective assistance of counsel
are not cognizable on direct appeal and must be deferred until collateral
review. Commonwealth v. Hopkins, 228 A.3d 577, 584 (Pa. Super. 2020).
Three exceptions have been recognized to the general rule that ineffective
assistance claims may not be brought in a direct appeal: (1) “where a discrete
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trial counsel was ineffective for not filing a post-sentence motion to enforce
the plea agreement or withdraw the plea).
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claim (or claims) of trial counsel ineffectiveness is apparent from the record
and meritorious to the extent that immediate consideration best serves the
interests of justice”; (2) where the defendant shows good cause and expressly
waives his entitlement to review under the Post Conviction Relief Act (“PCRA”)7
review; and (3) where the defendant is statutorily ineligible for PCRA review.
Commonwealth v. Delgros, 183 A.3d 352, 360-61 (Pa. 2018). Here, none
of these exceptions apply as Appellant has not shown that his ineffective
assistance claim is apparent from the face of the record and the interests of
justice require its immediate consideration, he did not show good cause or
waive his entitlement to PCRA review, and he has not demonstrated that he
is ineligible for PCRA relief. Nevertheless, as the Commonwealth did not object
to Appellant raising the ineffective assistance claim and has not argued that
the trial court’s consideration of this claim was improper, we conclude that the
ineffective assistance claim is properly before us on appeal.
“The right to the constitutionally effective assistance of counsel extends
to counsel’s role in guiding his client with regard to the consequences of
entering into a guilty plea.” Commonwealth v. Barndt, 74 A.3d 185, 192
(Pa. Super. 2013). We begin our analysis with the presumption that counsel
has rendered effective assistance. Commonwealth v. VanDivner, 178 A.3d
108, 114 (Pa. 2018). To overcome that presumption, the convicted defendant
must establish each of the following three elements:
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7 42 Pa.C.S. §§ 9541-9546.
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(1) the underlying claim has arguable merit; (2) no reasonable
basis existed for counsel’s action or failure to act; and (3) the
[defendant] suffered prejudice as a result of counsel’s error, with
prejudice measured by whether there is a reasonable probability
that the result of the proceeding would have been different.
Id.
With respect to claims of ineffective counsel in connection with a guilty
plea, we have explained that
[a]llegations of ineffectiveness in connection with the entry of a
guilty plea will serve as a basis for relief only if the ineffectiveness
caused the defendant to enter an involuntary or unknowing plea.
Where the defendant enters his plea on the advice of counsel, the
voluntariness of the plea depends on whether counsel’s advice
was within the range of competence demanded of attorneys in
criminal cases.
Thus, to establish prejudice, the defendant must show that there
is a reasonable probability that, but for counsel’s errors, he would
not have pleaded guilty and would have insisted on going to trial.
The reasonable probability test is not a stringent one; it merely
refers to a probability sufficient to undermine confidence in the
outcome.
Barndt, 74 A.3d at 192 (citations and quotation marks omitted).
Appellant cites to various instances of Attorney Bonner’s alleged
deficient performance at his May 2018 trial, including that Attorney Bonner
did not call certain of Appellant’s family members as witnesses, that he did
not present DNA evidence, and that he did not sufficiently investigate
Appellant’s claims of innocence. Appellant also contends that Attorney Bonner
urged him during his first trial to accept a plea offer, stating “I have two
daughters. So just plead f--king guilty.” N.T., 11/20/18, at 17. On the date
of his September 17, 2018 retrial, Appellant told Attorney Bonner that he was
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unhappy with his performance and wanted a new trial; according to Appellant,
Attorney Bonner then informed him that “the only way you’re going to get
another attorney is to take the plea and you [will then] have ten days to
withdraw the plea, and then you can have another attorney and another
judge.” Id. at 19. Appellant asserts that he accepted the nolo contendere
plea pursuant to this advice.
The sole issue before this Court is whether Attorney Bonner’s
“ineffectiveness caused [Appellant] to enter an involuntary or unknowing
plea.” Barndt, 74 A.3d at 192 (citation omitted). Therefore, Appellant’s
complaints regarding Attorney Bonner’s strategic decisions at his first trial are
irrelevant to this appeal. Moreover, Appellant has not shown that Attorney
Bonner’s strategy lacked a reasonable basis and he can hardly claim prejudice
relating to his earlier trial as the jury deadlocked and refused to convict him
of any of the charges in case No. 948-15.
To the extent Appellant contends that Attorney Bonner’s statement
during the first trial that he should “just plead f--king guilty,” N.T., 11/20/18,
at 17, improperly coerced him into accepting a plea on the eve of his retrial,
Attorney Bonner disputed this account during his testimony at the hearing on
the post-sentence motion. Attorney Bonner stated that when the
Commonwealth played a recording of a telephone conversation between
Appellant and the minor victim during the first trial, Attorney Bonner sensed
from the jurors’ faces that they did not react well to the call and his defense
of Appellant was “crumbl[ing] away.” Id. at 67-68. During a recess just after
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the recording was played, Attorney Bonner told Appellant “I am the father of
two daughters, I understand what they’re listening to and what they’re
hearing is not going over well, take the f--king plea because you risk spending
the rest of your life in jail.” Id. at 68. Attorney Bonner explained that, when
he was giving this advice, he was not expressing any disgust towards
Appellant but that the jurors had reacted with disgust after hearing the call
and he believed it was very unlikely that the jury would acquit Appellant of all
the charges. Id.
In its opinion, the trial court found Attorney Bonner’s testimony credible
that he did not threaten Appellant to enter into a plea, but rather he was only
explaining the impact that the recording of the call had on the jury. Trial Court
Opinion, 12/17/18, at 12-13. The trial court further found relevant that
Appellant did not state during his oral colloquy that he felt threatened by
Attorney Bonner nor did he express any dissatisfaction with Attorney Bonner
during oral colloquy. Id. at 13; see also N.T., 9/17/18, at 7, 9-10. The
record supports the trial court’s credibility determination, and we discern no
abuse of discretion in the trial court’s conclusion that Appellant was not
improperly coerced into entering the plea by Attorney Bonner’s comment
during the first trial.
Finally, with respect to Appellant’s claim that Attorney Bonner told him
that he could get new counsel for his retrial only by first accepting a plea and
then filing a motion to withdraw the plea within ten days, Attorney Bonner
denied in his testimony ever giving this advice to Appellant. N.T., 9/17/18, at
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49, 66-67. While Appellant had previously communicated his desire for
different counsel,8 Attorney Bonner stated that Appellant did not express that
he wanted new counsel on the date he accepted the nolo contendere plea.
Id. at 46-48. Attorney Bonner testified that, on the date that jury selection
was set to begin on the second trial, he was able to negotiate down the term
of imprisonment and Megan’s Law reporting period from the initial offer and
strongly encouraged Appellant to accept the revised plea deal. Id. at 42-43,
48, 63-65. Attorney Bonner explained that part of his reason for encouraging
Appellant to enter the plea related to the decision of one of Appellant’s children
to testify for the prosecution at the upcoming trial, testimony which Appellant
understood to be detrimental to his defense. Id. at 63. Attorney Bonner
further testified that Appellant was “astute,” “well read,” and “speaks
intelligently,” and Appellant would not have been shy to let him know if he did
not understand the terms of the proposed plea agreement. Id. at 66.
Ultimately, it was Appellant’s decision to accept the plea. Id. at 69.
The trial court reviewed this testimony, and found that Appellant had
not met the manifest injustice standard by showing that his plea was not
entered into knowingly, voluntarily and intelligently. Trial Court Opinion,
12/17/18, at 11. As the trial court observed, Appellant affirmatively
represented during his oral colloquy that he discussed the plea with Attorney
Bonner to his satisfaction, understood the consequences of the plea, and
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8 Attorney Bonner was Appellant’s fourth attorney in these matters.
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stated that he had not been promised anything in exchange for the plea. Id.
at 11-12; see also N.T., 9/17/18, at 6-10. Appellant is bound by his
statements during the plea colloquy, and he may not recant these statements
in an effort to withdraw his plea. Jabbie, 200 A.3d at 506. Furthermore, our
review of the colloquy form and the oral colloquy form reveals that the trial
court addressed each of the six prescribed topics to ascertain that Appellant
was aware of the consequences of his plea, including the rights that he was
waiving by entering the plea. N.T., 9/17/18, at 6-10; No Contest Plea
Colloquy Form, 9/17/18, at unnumbered pages 1-4; see also Pa.R.Crim.P.
590, Comment; Kpou, 153 A.3d at 1023. Therefore, Appellant’s appeal
merits no relief.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/3/2020
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