Com. v. Hines, L. ( 2021 )

J-S53033-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
LEONARD HINES :
:
Appellant : No. 2835 EDA 2019
Appeal from the Judgment of Sentence Entered September 6, 2019
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0005831-2016
BEFORE: SHOGAN, J., LAZARUS, J., and PELLEGRINI, J.*
MEMORANDUM BY PELLEGRINI, J.: FILED: APRIL 12, 2021
Leonard Hines appeals the judgment of sentence entered by the Court
of Common Pleas of Philadelphia County (trial court). Following a plea of nolo
contendere to one count of involuntary deviate intercourse1 and one count of
unlawful contact with a minor,2 Hines was sentenced to an aggregate prison
term of 7.5 to 15 years. He now contends that the trial court erred in denying
his pre-sentence motion to vacate the plea. He also argues that the trial court
abused its discretion by ignoring mitigating sentencing factors, resulting in an
excessive sentence. We affirm.
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* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S. § 3123(a)(1).
2 18 Pa.C.S. § 6318(a)(1).
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I.
At Hines’ plea hearing, the prosecution proffered the following facts. In
2016, the victim (RA) was 17 years old and living with her mother and Hines,
who is her stepfather. While RA was at home in her bedroom, Hines anally
penetrated her against her will. Later that night, RA reported the incident to
police. In her interview with them, she also revealed that two weeks earlier,
Hines had groped her and performed oral sex on her without her consent.
DNA testing of rectal swabs taken from RA corroborated her allegations
against Hines, who was 41 years old at the time.
The case proceeded and a panel of jurors was selected. The following
day, Hines agreed to forego a trial so that he could instead enter a plea to the
two aforementioned offenses. After the prosecution stated the factual basis
for the two counts, as well as the definitions of the charges, Hines entered his
plea. However, about three months later and just before sentencing, Hines
sought to withdraw the plea. He filed a motion contending that he was
innocent of the charges because he had not used force during the sexual anal
contact between him and RA, making it consensual. Hines denied that any
other sexual contact ever took place between them.
At the hearing on the motion to withdraw, the prosecution responded
that during the plea colloquy, Hines had already admitted to the
nonconsensual nature of the anal penetration as well as the other improper
contact with RA. Hines had also been advised that lack of consent to that
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contact was an element of involuntary deviate sexual intercourse. The
prosecution then introduced text messages Hines had sent RA’s mother
admitting that he had “f*cked up.”
The trial court denied Hines’ motion to withdraw his plea, stressing that
his grounds for withdrawal had conflicted with his earlier admissions at the
plea hearing. Additionally, the trial court ruled that allowing Hines to withdraw
his plea would cause substantial prejudice to the Commonwealth.
At the sentencing hearing, the trial court noted that Hines’ criminal
history included convictions for sexually abusing a different stepdaughter, who
was 14 years old at the time of those offenses. He had a prior record score
of “4.”3
Hines presented mitigating evidence to the trial court detailing his
mental state and personal history. The defense advised that Hines was a 45
year-old father of 13, that he had been married for 10 years, and that he
worked for decades as an electrical maintenance worker. As part of the
mitigation materials, the defense presented a mental health evaluation and a
pre-sentence report. These materials recounted that Hines had a history of
substance abuse, which was in part rooted in his difficult upbringing and the
drug addictions of his parents.
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3 See 204 Pa. Code §§ 303.1-303.8.
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The trial court the sentenced Hines to a prison term of 7.5 to 15 years
as to each of the two counts, to be served concurrently. This range fell within
the sentencing guidelines. Hines timely filed a post-sentence motion
challenging the voluntariness of the plea and the reasonableness of the
sentence. After his motion was denied, Hines then timely appealed the
judgment of sentence.4
In his appellate brief, Hines raises two issues:
A. Did the [trial] court abuse its discretion by fashioning a
sentence that exceeded that which is necessary to protect the
public, and seems not to have taken into consideration [Hines’]
extreme remorse, work history, potential for rehabilitation and
acceptance of responsibility by pleading no contest?
B. Did the [trial] court err in denying [Hines’] presentence motion
to withdraw his no-contest plea, after seemingly applying the
higher standard for withdrawing pleas after sentencing (manifest
injustice), and that the Commonwealth would suffer substantial
prejudice if the motion were granted?
Appellant’s Brief, at 5.
II.
We first evaluate Hines’ claim that the trial court failed to take into
account his mitigation evidence, resulting in an excessive prison term. Since
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4 Hines complied with Pa.R.A.P. 1925. The trial court did not prepare an
opinion in accordance with Pa.R.A.P. 1925(a) because by the time an appeal
was filed, the assigned judge was no longer presiding on the Philadelphia
County Court of Common Pleas. The lack of an opinion poses no impediment
to appellate review because the reasons for the trial court’s rulings are already
evident in the record.
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this claim concerns a discretionary aspect of the sentence, Hines had to invoke
this Court’s jurisdiction to consider it by first taking the necessary procedural
steps and then by demonstrating that the claim involves a “substantial
question.” See generally Commonwealth v. Griffin, 65 A.3d 932, 935-36
(Pa. Super. 2013). A “substantial question” exists if the appellant has made
a colorable argument that the sentence violated a specific provision of the
Sentencing Code or was contrary to the “fundamental norms underlying the
sentencing process.” Commonwealth v. Johnson, 873 A.2d 704, 708 (Pa.
Super. 2005).
There is no dispute that Hines complied with the procedures needed to
raise his sentencing claim. See e.g., Pa.R.A.P. 2219(f); 42 Pa.C.S. § 9781(b);
Pa.R.Crim.P. 720. However, his claim is generally one that is found not to
constitute a substantial question that can be addressed on direct appeal.
“[T]his Court has held on numerous occasions that a claim of inadequate
consideration of mitigating factors does not raise a substantial question for
our review.” Commonwealth v. Downing, 990 A.2d 788, 794 (Pa. Super.
2010) (quoting Commonwealth v. Matroni, 923 A.2d 444, 455 (Pa. Super.
2007); Commonwealth v. Kraft, 737 A.2d 755, 757 (Pa. Super. 1999) (no
substantial question raised where appellant argued that court had not
adequately considered certain mitigating factors). As Hines’ issue is not one
that involves a substantial question, we cannot reach its merits.
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Even if we were to find that a substantial question has been posed, we
would conclude that no reversible error occurred. A claim of an excessive
sentence is reviewed under an abuse of discretion standard. See
Commonwealth v. Perry, 883 A.2d 599, 603 (Pa. Super. 2005). In order
to prevail, Hines would have to “establish, by reference to the record, that the
sentencing court ignored or misapplied the law, exercised its judgment for
reasons of partiality, prejudice, bias or ill will, or arrived at a manifestly
unreasonable decision.” Commonwealth v. Disalvo, 70 A.3d 900, 903 (Pa.
Super. 2013) (quoting Commonwealth v. Glass, 50 A.3d 720, 727 (Pa.
Super. 2012)); see also Commonwealth v. Raven, 97 A.3d 1244, 1253
(Pa. Super. 2014) (same).
The record in this case does not support Hines’ contention that the trial
court failed to adequately take into account his remorse, acceptance of
responsibility, rehabilitative needs, unstable upbringing and long work history.
Far from showing remorse or accepting responsibility, Hines has, in fact,
denied the nonconsensual nature of his offenses. While Hines initially entered
a plea to involuntary deviate sexual intercourse and unlawful contact with a
minor, he thereafter insisted that his stepdaughter had consented to the
intercourse. He altogether denied the remaining allegations of improper
sexual conduct toward his stepdaughter.
As for Hines’ personal history and mental health struggles, the trial court
is legally presumed to have considered that information because it was
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detailed in the defense’s pre-sentence report. “Our Supreme Court has
determined that where the trial court is informed by a pre-sentence report, it
is presumed that the court is aware of all appropriate sentencing factors and
considerations, and that where the court has been so informed, its discretion
should not be disturbed.” Commonwealth v. Bullock, 170 A.3d 1109, 1126
(Pa. Super. 2017) (quoting Commonwealth v. Ventura, 975 A.2d 1128,
1135 (Pa. Super. 2009)) (citation omitted).
In sum, all of the mitigation evidence Hines claims the trial court ignored
is either presumed to be considered or contradicted by Hines in an attempt to
withdraw his plea. Taking in mind Hines’ past criminal history, particularly his
previous sex offenses against children in his custody, we cannot find that the
trial court imposed an excessive sentence or otherwise abused its discretion
with respect to the length of the term.
III.
Next, we consider Hines’ two-part claim that the trial court (a) abused
its discretion in denying his motion to withdraw his plea, and (b) applied the
wrong legal standard when ruling on that motion.
As Hines acknowledges, criminal defendants do not have an absolute
right to withdraw a plea after it has been entered, as this is a matter of judicial
discretion. See Pa.R.Crim.P. 591(A); Commonwealth v. Carrasquillo, 115
A.3d 1284, 1291-92 (Pa. 2015). Prior to sentencing, withdrawals of a plea
should be granted liberally, but only “if supported by a fair and just reason,
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and substantial prejudice will not inure to the Commonwealth.” Id. at 1291-
92; Commonwealth v. Perry, 32 A.3d 232, 236–37 (Pa. 2011).5 The denial
of a request to withdraw a plea is proper “where the reasons offered by a
defendant are belied by the record.” Carrasquillo, 115 A.3d at 1287. A
declaration of innocence may qualify as a fair and just reason, but it must “be
at least plausible to demonstrate, in and of itself” that withdrawal of the plea
would promote fairness and justice. Id. at 1292.
In this case, we do not find that the trial court applied the wrong legal
standard or that it abused its discretion in denying Hines’ motion to withdraw
his plea. Hines did not offer a plausible reason why his plea was involuntary
or that he was actually innocent of the charges. His sole grounds for
withdrawing his plea were that this sexual contact was consensual, and that
when entering his plea, he did not know that lack of consent is an element of
involuntary deviate intercourse.
The record belies Hines’ claims of innocence and confusion about what
he was pleading to. The allegations of his stepdaughter were corroborated by
a DNA test. Hines himself sent text messages to his stepdaughter’s mother
that were tantamount to admissions of his wrongdoing. At his plea colloquy,
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5 “In the context of a pre-sentence request for plea withdrawal, the term
“prejudice” means that, due to events occurring after the entry of the plea,
the Commonwealth’s prosecution of its case is in a worse position that it would
have been had the trial taken place as originally scheduled.” Commonwealth
v. Gordy, 73 A.3d 620, 624 (Pa. Super. 2013).
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the prosecution proffered the facts supporting conviction, including the
nonconsensual nature of the subject sexual contact, and Hines did not refute
those facts.
Indeed, Hines heard not only the proffer, but also a recitation of the
elements of the crimes. Yet he waited three months after the plea, until just
before sentencing, to declare that he was innocent and that he had
misunderstood that one of the offenses involved a lack of consent. On these
facts, Hines’ reasons for withdrawal of his plea were not plausible and the trial
court did not abuse its discretion in denying the pre-sentence motion.
As to Hines’ sub-claim that the trial court erroneously applied the more
stringent “manifest injustice” standard for a post-sentence withdrawal of a
plea, we again find that no relief is due. While the trial court did at times use
incorrect terminology when articulating the standard for granting a pre-
sentence motion to withdraw a plea,6 the record in no way suggests that the
wrong standard was actually applied.
Despite occasionally mislabeling the applicable standard, the trial court
recited Carrasquillo almost verbatim just before ruling. The trial court
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6 At the post-sentence stage, it is more difficult to withdraw a plea and
defendants must show that a manifest injustice would result from the denial
of withdrawal. “Manifest injustice may be established if the plea was not
tendered knowingly, intelligently, and voluntarily. In determining whether a
plea is valid, the court must examine the totality of circumstances surrounding
the plea.” Commonwealth v. Broaden, 980 A.3d 124, 129 (Pa. Super.
2009) (citations omitted).
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correctly explained that it had “full discretion to determine whether the
withdraw request will be granted. Such discretion is to be administered
li[b]erally in favor of the accused in demonstration by the defendant in a fair
and just reason to grant it, unless the withdraw brings substantial prejudice
on the Commonwealth.” Hearing Transcript, 9/6/2019, at p. 23. The trial
court also assured the parties that it appreciated the difference between the
standards for the pre-sentence and post-sentence withdrawal of a plea.
This leaves no doubt that the trial court both understood and applied
the legal standard applicable at the pre-sentence stage of a criminal case.
Thus, for all of these reasons, we conclude that Hines’ convictions and
sentence must stand.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/12/21
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