Com. v. Dail, M. ( 2023 )

J-S15029-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MARK KEVIN DAIL :
:
Appellant : No. 805 MDA 2022
Appeal from the Judgment of Sentence Entered May 12, 2022
In the Court of Common Pleas of Bradford County Criminal Division at
No(s): CP-08-CR-0000201-2021
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MARK KEVIN DAIL :
:
Appellant : No. 806 MDA 2022
Appeal from the Judgment of Sentence Entered May 12, 2022
In the Court of Common Pleas of Bradford County Criminal Division at
No(s): CP-08-CR-0000763-2020
BEFORE: BOWES, J., STABILE, J., and SULLIVAN, J.
MEMORANDUM BY STABILE, J.: FILED: AUGUST 18, 2023
Appellant, Mark Kevin Dail, appeals from the May 12, 2022 judgments
of sentence imposing an aggregate 17 to 90 months of incarceration for one
count each of driving under the influence of alcohol (75 Pa.C.S.A.
§ 3802(a)(1)) and sexual abuse of children (18 Pa.C.S.A. § 6312(d)). Counsel
has filed a brief and petition to withdraw pursuant to Anders v. California,
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386 U.S. 738 (1967), and Commonwealth v. Santiago, 978 A.2d 349 (Pa.
2009). We affirm the judgment of sentence and grant the petition to
withdraw.
On December 7, 2020, Pennsylvania State Trooper Stephen Mascaro
stopped Appellant on suspicion of drunk driving. Trooper Mascaro arrested
Appellant after Appellant failed field sobriety tests. Appellant asked Trooper
Mascaro to get his cell phone from his car so that Appellant could call a family
member. Trooper Mascaro did so, and the screen lit up showing child
pornography. After obtaining and executing a search warrant for the cell
phone, the Commonwealth charged Appellant with 335 counts of sexual abuse
of children.
Appellant appeared at a plea hearing scheduled for June 10, 2021 and
declined to enter a plea. A pre-trial conference was then scheduled for July
13, 2021, but continued three times at Appellant’s request to January 25,
2022. In the interim, the trial court denied Appellant’s omnibus pretrial
motion by order of November 15, 2021. On March 7, 2022, after the
Commonwealth picked a jury, Appellant pled nolo contendere to one count of
sexual abuse of children and one count of DUI. On May 10, 2022, two days
before a scheduled sentencing hearing, Appellant filed motion to withdraw his
pleas. At the May 12, 2022 sentencing hearing the trial court heard argument
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on and denied Appellant’s plea withdrawal motion. Appellant filed timely
notices of appeal on May 26, 2022.1
Appellate counsel has proceeded pursuant to Anders and Santiago,
contending that the appeal is frivolous.
Prior to withdrawing as counsel on a direct appeal under
Anders, counsel must file a brief that meets the requirements
established by our Supreme Court in Santiago. The brief must:
(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. Counsel also must provide a copy of
the Anders brief to his client. Attending the brief must be a letter
that advises the client of his right to: (1) retain new counsel to
pursue the appeal; (2) proceed pro se on appeal; or (3) raise any
points that the appellant deems worthy of the court[’]s attention
in addition to the points raised by counsel in the Anders brief."
Commonwealth v. Orellana, 86 A.3d 877, 879-880 (Pa. Super. 2014)
(some citation omitted).
____________________________________________
1 The complaints against Appellant for DUI and sexual abuse of children were
filed separately, but later joined for prosecution at the Commonwealth’s
request.
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The record reveals that counsel has complied with the foregoing. We
now proceed to an independent review of the record to determine whether the
issues addressed in the Anders brief are frivolous, and whether there are any
non-frivolous issues that counsel neglected. Commonwealth v. Schmidt,
165 A.3d 1002 (Pa. Super. 2017).
First, the Anders brief addresses Appellant’s claim that too much time
passed between his plea and his sentencing. Rule 704 of the Pennsylvania
Rules of Criminal Procedure provides that “sentence in a court case shall
ordinarily be imposed within 90 days of conviction or the entry of a plea of
guilty or nolo contendere.” Pa.R.Crim.P. 704(a)(1). Appellant entered his
nolo contendere plea on March 7, 2022 and was sentenced 66 days later, on
May 12, 2022. We agree with counsel that this issue is frivolous.
Next, counsel addresses Appellant’s claim that he was denied his right
to a speedy trial. Rule 600 of the Pennsylvania Rules of Criminal Procedure
requires trial to start within 365 days of the filing of the criminal complaint.
Pa.R.Crim.P . 600(A)(2)(a). Trial commences on the day the trial judge calls
the case to trial, or the date on which the defendant enters a plea of guilty or
nolo contendere. Pa.R.Crim.P. 600(A)(1). Further, “periods of delay at any
stage of the proceedings caused by the Commonwealth when the
Commonwealth has failed to exercise due diligence shall be included in the
computation of the time within which trial must commence.” Pa.R.Crim.P.
600(C)(1). Other periods of delay, such as those attributable to the
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defendant, are excluded from the 365-day computation. Id. Appellant was
charged with the offenses at issue on December 7, 2020. He entered his plea
on March 7, 2022, 455 days later, or 90 days after the expiration of the
mechanical run date under Rule 600.
In evaluating Rule [600] issues, our standard of review of a
trial court’s decision is whether the trial court abused its
discretion. Judicial discretion requires action in conformity with
law, upon facts and circumstances judicially before the court, after
hearing and due consideration. An abuse of discretion is not
merely an error of judgment, but if in reaching a conclusion the
law is overridden or misapplied or the judgment exercised is
manifestly unreasonable, or the result of partiality, prejudice,
bias, or ill will, as shown by the evidence or the record, discretion
is abused.
The proper scope of review is limited to the evidence on the
record of the Rule [600] evidentiary hearing, and the findings of
the [trial] court. An appellate court must view the facts in the
light most favorable to the prevailing party.
Additionally, when considering the trial court’s ruling, this
Court is not permitted to ignore the dual purpose behind Rule
[600]. Rule [600] serves two equally important functions: (1) the
protection of the accused’s speedy trial rights, and (2) the
protection of society. In determining whether an accused's right
to a speedy trial has been violated, consideration must be given
to society's right to effective prosecution of criminal cases, both
to restrain those guilty of crime and to deter those contemplating
it. However, the administrative mandate of Rule [600] was not
designed to insulate the criminally accused from good faith
prosecution delayed through no fault of the Commonwealth.
So long as there has been no misconduct on the part of the
Commonwealth in an effort to evade the fundamental speedy trial
rights of an accused, Rule [600] must be construed in a manner
consistent with society’s right to punish and deter crime. In
considering [these] matters ..., courts must carefully factor into
the ultimate equation not only the prerogatives of the individual
accused, but the collective right of the community to vigorous law
enforcement as well.
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Commonwealth v. Armstrong, 74 A.3d 228, 234-35 (Pa. Super. 2013),
affirmed in part, 107 A.3d 735 (Pa. 2014).
Appellant appeared at a June 10, 2021 plea hearing and declined to
enter a plea as had been expected. Thereafter, the trial court scheduled a
pretrial conference for July 13, 2021 with a possible trial date of August 2,
2021. On July 13, 2021 and two subsequent occasions, Appellant requested
a continuance of the pretrial hearing. Jury selection therefore did not
commence until March 7, 2022. Appellant entered his plea 237 days after July
13, 2021—the date on which he declined to enter a plea as expected (or 217
days after August 2, 2021—the next possible trial date). None of the interim
delay is attributable to the Commonwealth’s lack of due diligence. Thus, there
is more than sufficient excludable time to offset the 90-day difference between
the mechanical 365-day run date and Appellant’s plea. We agree with counsel
that Appellant’s speedy trial argument is frivolous.
Next, counsel addresses Appellant’s claim that he was pressured to
enter his nolo contendere pleas. Appellant apparently views this argument as
separate from his argument that the trial court erred in denying his pre-
sentence motion to withdraw his plea (see just below). We observe that
Appellant is bound by the statements he made during his plea colloquy.
Commonwealth v. Orlando, 156 A.3d 1274, 1281 (Pa. 2017). At the
colloquy, Appellant stated he was willingly pleading nolo contendere. N.T.
Plea Hearing, 3/7/22, at 10. This argument is nothing more than a factual
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assertion that contradicts what Appellant said at his plea hearing. We agree
with counsel that it is frivolous.
Prior to sentencing, Appellant sought to withdraw his guilty plea because
the Commonwealth reneged on an alleged agreement to release him on
supervised bail; because he did not want a felony conviction on his record;
because he did not wish to register as a sex offender; and because he asserted
his innocence.
The pertinent law governing a presentence plea withdrawal motion is as
follows:
(1) there is no absolute right to withdraw a guilty plea; (2)
trial courts have discretion in determining whether a withdrawal
request will be granted; (3) such discretion is to be administered
liberally in favor of the accused; and (4) any demonstration by a
defendant of a fair-and-just reason will suffice to support a grant,
unless withdrawal would work substantial prejudice to the
Commonwealth.
Commonwealth v. Norton, 201 A.3d 112, 116 (Pa. 2019). A claim of
innocence must be “at least plausible” to demonstrate a fair and just reason
for plea withdrawal. Id. (quoting Commonwealth v. Carrasquillo, 115 A.3d
1284, 1292 (Pa. 2015)). “The proper inquiry on [a presentence plea
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.” Id. “The policy of liberality
remains extant but has its limits, consistent with the affordance of a degree
of discretion to the common pleas courts.” Id.-7-
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None of Appellant’s asserted bases for plea withdrawal has merit. The
trial court advised Appellant, and Appellant conceded, that an attempt to
withdraw his plea would result in substantial prejudice to the Commonwealth,
as jury selection was already complete. N.T. Plea Hearing, 3/7/22, at 8. The
record reflects that the Commonwealth did not object to a reduction in
Appellant’s bail, as per an agreement between the prosecutor and defense
counsel. Id. at 14. There is no evidence of any agreement beyond that. The
record also reflects that Appellant was unwilling to comply with the terms of
supervised bail prior to his sentencing. N.T. Sentencing, 5/12/22, at 7.
Appellant was told at his plea hearing that he was pleading guilty to a felony
and that he would be subject to sexual offender registration. N.T. Plea
Hearing, 3/7/22, at 5-6. Appellant’s subsequent decision that he did not like
the grading and consequences of the sexual abuse offense does not create a
fair and just reason for plea withdrawal. Finally, given Appellant’s failed field
sobriety tests and the child pornography found in his cell phone, Appellant has
offered nothing more than a bald assertion of his innocence. We agree with
counsel that Appellant’s plea withdrawal arguments are frivolous.
Our own review of the record reveals no potentially meritorious issues
counsel could have raised. In particular, we observe that the facts Appellant
admitted to at the plea hearing—that he was driving erratically and crossed
the double yellow line (N.T. Plea Hearing, 3/7/22, at 9-10)—refute his basis
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for challenging the vehicle stop in his omnibus pretrial motion. We therefore
affirm the judgment of sentence and grant counsel’s petition to withdraw.
Judgment of sentence affirmed. Petition to withdraw granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/18/2023
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