Com. v. Dolley, L. ( 2017 )

J-S14024-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
LEROY ELMER DOLLEY,
Appellant No. 1328 MDA 2016
Appeal from the Judgment of Sentence March 2, 2016
In the Court of Common Pleas of Lebanon County
Criminal Division at No(s): CP-38-CR-0001360-2015
BEFORE: GANTMAN, P.J., SHOGAN and STRASSBURGER,* JJ.
MEMORANDUM BY SHOGAN, J.: FILED APRIL 21, 2017
Appellant, Leroy Elmer Dolley, appeals from the judgment of sentence
entered following his convictions of one count of rape of a child, two counts
of aggravated indecent assault, one count each of indecent assault, criminal
attempt, endangering the welfare of children, false imprisonment, and
corruption of minors.1 We affirm.
The trial court summarized the factual and procedural history of this
case as follows:
I. FACTUAL HISTORY
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
1
18 Pa.C.S. §§ 3121, 3125, 3126, 4304, 901, 2903, and 6301,
respectively.
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While [Appellant] was living with the victim and her family,
the victim reported that [Appellant] sexually abused her by
having vaginal sex with her, fondling her breasts and fondling
her genitals. These instances of sexual abuse were reported to
have occurred on three separate occasions. The victim was
around seven (7) years old when the first incident of abuse
occurred, and around eight (8) years old when the last incident
of abuse occurred.
II. PROCEDURAL HISTORY
[Appellant] was charged with one count of Rape of a Child
(F1), two counts of Aggravated Indecent Assault of a Child (F1),
one count of Endangering the Welfare of Children (F3), one
count of Indecent Assault (M1), one count of False
Imprisonment, one count of Criminal Attempt/Indecent Assault
(M1) and one count of Corruption of Minors (M1). A preliminary
hearing was held for this matter on August 20, 2015. At the
preliminary hearing, the victim testified that [Appellant] sexually
abused her on three different occasions.
Although [Appellant] had the opportunity to request and
receive a continuance on the matter, [Appellant] chose to list his
case for trial. A jury was selected on December 7, 2015.
[Appellant’s] trial was scheduled to take place on December 10,
2015. On December 9, 2015, [Appellant] came before the
[c]ourt, and defense counsel indicated that [Appellant] was
considering firing his current defense counsel and seeking a
continuance. At that time, [Appellant] and his counsel met
privately to discuss how to move forward from that point, and
ultimately, [Appellant] decided to enter an Open No Contest
Plea.
[Appellant] requested to withdraw his plea at sentencing,
and the [c]ourt denied [Appellant’s] request. On March 2, 2016,
[Appellant] was sentenced to 10 to 40 years in a state
correctional institution. [Appellant] must also register as a
sexual offender. [Appellant] timely filed a Post Sentence Motion.
Trial Court Opinion, 7/29/16, at 2-3. The trial court held a hearing on
Appellant’s post-sentence motions, and ultimately entered an order denying
the motions on July 29, 2016. This timely appeal followed.
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Appellant presents the following issues for our review:
I. Did the trial court judge impose an illegal and/or unreasonable
sentence?
II. Should Appellant have been allowed to withdraw his No-
Contest Plea?
Appellant’s Brief at 3.
Appellant’s first issue challenges the sentence imposed by the trial
court. Appellant’s Brief at 6-9. Although Appellant purports to challenge the
legality of his sentence, in actuality, his argument is limited to a challenge of
the discretionary aspects of his sentence. In this regard, Appellant presents
the following argument:
On December 9, 2015, Appellant appeared for a criminal
jury trial before the Honorable Charles T. Jones, Jr., Judge, and
entered an Open No Contest Plea to one count of Rape of a Child
(F1), two counts of Aggravated Indecent Assault (F1), one count
of Endangering the Welfare of Children (F3), one count of
Indecent Assault (M1), one count of Criminal Attempt/Indecent
Assault (MI), one count of Corruption of Minors (M1), and one
count of False Imprisonment. On March 2, 2016, Appellant was
sentenced by Judge Jones to an overall term of confinement of
ten (10) years to forty (40) years in a state correctional
institution. The sentence imposed on the above captioned action
number was unduly harsh given Appellant’s lack of a prior
criminal record and the length of time that had elapsed since the
date of the alleged offenses. The sentence imposed in the
instant case is, therefore, unreasonable as defined above.
Appellant’s Brief at 9. Accordingly, we will address this issue strictly as a
challenge to the discretionary aspects of sentencing.
We note that our standard of review is one of abuse of discretion.
Sentencing is a matter vested in the sound discretion of the sentencing
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judge, and a sentence will not be disturbed on appeal absent a manifest
abuse of discretion. Commonwealth v. Shugars, 895 A.2d 1270, 1275
(Pa. Super. 2006).
Where an appellant challenges the discretionary aspects of a sentence
there is no automatic right to appeal, and an appellant’s appeal should be
considered to be a petition for allowance of appeal. Commonwealth v.
W.H.M., 932 A.2d 155, 162 (Pa. Super. 2007). As we observed in
Commonwealth v. Moury, 992 A.2d 162 (Pa. Super. 2010):
[a]n appellant challenging the discretionary aspects of his
sentence must invoke this Court’s jurisdiction by satisfying a
four-part test:
[W]e 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, see Pa.R.Crim.P.
[720]; (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.A. § 9781(b).
Id. at 170 (citing Commonwealth v. Evans, 901 A.2d 528 (Pa. Super.
2006)). Objections to the discretionary aspects of a sentence are generally
waived if they are not raised at the sentencing hearing or in a motion to
modify the sentence imposed. Id. (citing Commonwealth v. Mann, 820
A.2d 788 (Pa. Super. 2003)). See also Commonwealth v. Parker, 847
A.2d 745 (Pa. Super. 2004) (holding challenge to discretionary aspect of
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sentence was waived because appellant did not object at sentencing hearing
or file post-sentence motion).
Moreover, where an appellant fails to comply with Pa.R.A.P. 2119(f)
and the Commonwealth objects, the issue is waived for purposes of review.
Commonwealth v. Farmer, 758 A.2d 173, 182 (Pa. Super. 2000).
However, a failure to include the Pa.R.A.P. 2119(f) statement does not
automatically waive an appellant’s argument; rather, we are precluded from
reaching the merits of the claim when the Commonwealth lodges an
objection to the omission of the statement. Commonwealth v. Roser, 914
A.2d 447, 457 (Pa. Super. 2006) (quoting Commonwealth v. Love, 896
A.2d 1276, 1287 (Pa. Super. 2006)).
Herein, the first two requirements of the four-part test are met
because Appellant brought a timely appeal and raised the challenge in his
post-sentence motion. However, Appellant failed to include in his appellate
brief the necessary separate concise statement of the reasons relied upon
for allowance of appeal pursuant to Pa.R.A.P. 2119(f). The Commonwealth
has failed to object to this error. Therefore, we will not consider the issue to
be waived due to the omission. Accordingly, we next determine whether
Appellant raises a substantial question requiring us to review the
discretionary aspects of the sentence imposed by the trial court.
Appellant argues that the trial court imposed an unduly harsh sentence
in light of the fact that Appellant did not have a prior criminal record and the
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length of time that had elapsed since the date of the offenses. Considering
this claim to be an allegation that the sentencing court failed to consider
factors set forth under 42 Pa.C.S. § 9721(b),2 we conclude that, in this
instance, Appellant has raised a substantial question. See Commonwealth
v. Fullin, 892 A.2d 843, 847 (Pa. Super. 2006) (concluding that the
appellant raised a substantial question where it was alleged that the trial
court failed to properly consider the factors set forth in 42 Pa.C.S.
§ 9721(b)). Because Appellant has stated a substantial question, we will
address this claim on appeal.
It is undisputed that sentencing is a matter vested in the sound
discretion of the sentencing judge, and a sentence will not be disturbed on
appeal absent a manifest abuse of discretion. Fullin, 892 A.2d at 847. In
this context, an abuse of discretion is not shown merely by an error in
judgment. Id. Rather, the appellant must 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. Id.Indeed, the sentencing judge has broad discretion in determining the
proper penalty, and this Court accords the sentencing court great deference,
____________________________________________
2
We note that the factors to be considered under 42 Pa.C.S. § 9721(b)
include the protection of the public, gravity of offense in relation to impact
on victim and community, and rehabilitative needs of the defendant.
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as it is the sentencing court that is in the best position to view the
defendant’s character, displays of remorse, defiance, indifference, and the
overall effect and nature of the crime. Commonwealth v. Walls, 926 A.2d
957, 961 (Pa. 2007) (quotations and citations omitted). 3 As previously
noted, when imposing a sentence, the sentencing court must consider “the
protection of the public, the gravity of the offense as it relates to the impact
on the life of the victim and on the community, and the rehabilitative needs
of the defendant.” 42 Pa.C.S. § 9721(b). As we have stated, “a court is
required to consider the particular circumstances of the offense and the
character of the defendant.” Commonwealth v. Griffin, 804 A.2d 1, 10
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3
The Walls Court instructed the following:
In making this “unreasonableness” inquiry, the General
Assembly has set forth four factors that an appellate court is to
consider:
(d) Review of the record.—In reviewing the record the appellate
court shall have regard for:
(1) The nature of the circumstances of the offense
and the history and characteristics of the defendant.
(2) The opportunity of the sentencing court to
observe the defendant, including any pre-sentence
investigation.
(3) The findings upon which the sentence was based.
(4) The guidelines promulgated by the commission.
42 Pa.C.S. § 9781(d).
Walls, 926 A.2d at 963.
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(Pa. Super. 2002). “In particular, the court should refer to the defendant’s
prior criminal record, his age, personal characteristics and his potential for
rehabilitation.” Id. In addition, “[o]ur 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. Ventura, 975 A.2d 1128,
1135 (Pa. Super. 2009) (citing Commonwealth v. Devers, 546 A.2d 12(Pa. 1988)).
Appellant asserts that, in fashioning his sentence, the sentencing court
failed to consider properly Appellant’s lack of a criminal record and the
amount of time that had elapsed since the crimes occurred. Appellant’s Brief
at 9. However, we discern no abuse of discretion on the part of the
sentencing court.
Our review of the record reflects that the sentencing court reviewed
Appellant’s presentence report, read a victim impact statement, received
testimony from the parents of the victim in relation to Appellant’s attempt to
withdraw his plea, heard Appellant’s allocution and expression that he is not
guilty of the crimes, and heard argument from Appellant’s counsel prior to
imposing Appellant’s sentence. N.T., 3/2/16, at 17-30. In addition, the trial
court offered the following discussion in addressing the sentencing issue in
Appellant’s post-sentence motions:
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This Court finds that the sentence imposed was within the
[s]entencing guidelines. Before sentencing [Appellant], the
[c]ourt reviewed the pre-sentence report and took into
consideration all relevant factors. The [c]ourt weighed all
mitigating factors and relevant information before sentencing
[Appellant]. The [c]ourt also finds that [Appellant] was advised
of all the sentencing guidelines before he entered into his plea,
and after being advised of the sentencing guidelines, [Appellant]
knowingly, willingly and intentionally pled no contest.
Trial Court Opinion, 7/29/16, at 7.
Upon review of the record, we conclude that the sentencing court,
having been informed by a presentence report, presented adequate reasons
for imposing the standard range sentences upon Appellant. There is no
indication that the court ignored any relevant factors in fashioning the
sentence. Accordingly, it is our determination that there was no abuse of
discretion on the part of the sentencing court. Thus, we conclude this claim
lacks merit.
Appellant next argues that the trial court erred in denying his request
to withdraw his plea of nolo contendere.4 Appellant’s Brief at 9-11.
Appellant claims that he entered his plea under duress and that the
Commonwealth will not be substantially prejudiced in bringing his case to
trial. Id. at 11.
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4
This Court has explained that in “terms of its effect upon a case, a plea of
nolo contendere is treated the same as a guilty plea.” Commonwealth v.
Laszczynski, 715 A.2d 1185, 1187 n. 3 (Pa. Super. 1998) (quoting
Commonwealth v. Nelson, 666 A.2d 714, 717 (Pa. Super. 1995)).
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A trial court may, in its discretion, allow a defendant to withdraw a
guilty plea at any time before his sentence is imposed. See Pa.R.Crim.P.
591(A) (“At any time before the imposition of sentence, the court may, in its
discretion, permit, upon motion of the defendant, or direct, sua sponte, the
withdrawal of a plea of guilty or nolo contendere and the substitution of a
plea of not guilty”). The standard of review that we employ in challenges to
a trial court’s decision regarding a pre-sentence motion to withdraw a guilty
plea is well settled:
A trial court’s decision regarding whether to permit a guilty plea
to be withdrawn should not be upset absent an abuse of
discretion. An abuse of discretion exists when a defendant
shows any fair and just reasons for withdrawing his plea absent
substantial prejudice to the Commonwealth. In its discretion, a
trial court may grant a motion for the withdrawal of a guilty plea
at any time before the imposition of sentence. Although there is
no absolute right to withdraw a guilty plea, properly received by
the trial court, it is clear that a request made before sentencing
should be liberally allowed. The policy underlying this liberal
exercise of discretion is well-established: The trial courts in
exercising their discretion must recognize that before judgment,
the courts should show solicitude for a defendant who wishes to
undo a waiver of all constitutional rights that surround the right
to trial—perhaps the most devastating waiver possible under our
constitution. In [Commonwealth v.]Forbes, [299 A.2d 268(Pa. 1973)] our Supreme Court instructed that, in determining
whether to grant a pre[-]sentence motion for withdrawal of a
guilty plea, the test to be applied by the trial courts is fairness
and justice.
Commonwealth v. Elia, 83 A.3d 254, 261–262 (Pa. Super. 2013) (internal
quotation marks and citations omitted).
In Forbes and Commonwealth v. Randolph, 718 A.2d 1242 (Pa.
1998), our Supreme Court articulated that a defendant’s bare assertion of
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innocence, standing alone, required that a defendant be permitted to
withdraw his guilty plea if sentence has not been imposed. The strictures of
Forbes and Randolph, mandating the grant of a pre-sentence motion to
withdraw a guilty plea upon a bald assertion of innocence, were abrogated
by the companion cases of Commonwealth v. Carrasquillo, 115 A.3d
1284 (Pa. 2015), and Commonwealth v. Hvizda, 116 A.3d 1103 (Pa.
2015).
In Carrasquillo, the Court stated that a “bare assertion of innocence
is not, in and of itself, a sufficient reason to require a court to grant” a pre-
sentence request to withdraw a guilty plea. Carrasquillo, 115 A.3d at
1285. Our Supreme Court then clarified the ruling in Forbes, stating the
following:
there is no absolute right to withdraw a guilty plea; trial courts
have discretion in determining whether a withdrawal request will
be granted; such discretion is to be administered liberally in
favor of the accused; and 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.
Carrasquillo, 115 A.3d at 1291–1292 (footnote omitted). More specifically,
the Court was “persuaded by the approach of other jurisdictions which
require that 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.” Id. at 1292. However, the Supreme Court concluded
that “a per se approach” to allowing pre-sentence withdrawal of a guilty plea
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on a mere assertion of innocence “is unsatisfactory.” Id. The Carrasquillo
Court noted that in evaluating a pre-sentence request to withdraw a guilty
plea, courts could consider the timing of the innocence claim. See id.
(quoting the statement in Forbes that “[o]bviously, the appellant, by his
assertion of innocence—so early in the proceedings, i.e., one month after the
initial tender of a plea—offered a ‘fair and just’ reason for withdrawal of the
plea.” (brackets omitted)). The Court in Carrasquillo announced that “the
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.” Id.
The trial court offered the following analysis in analyzing Appellant’s
request to withdraw his plea:
The Court finds that [Appellant] fully understood that if he
entered the no contest plea, he would not be able to withdraw it
minus extreme circumstances. On December 9, 2015, before
the Court accepted [Appellant’s] signed plea, the following
transaction between the Court and [Appellant] occurred:
The Court: And because we have picked a jury and
everybody was ready to go to trial and we, in fact
have that jury ready to try this case tomorrow, we
are now at 5:11 p.m....once this plea goes through
there is not going to be a trial, and barring some
unforeseen circumstance that I believe merits
withdrawing this plea, you are going to get
sentenced on this charge. Do you understand
that?[]
[Appellant]: I do understand that, Your Honor.
(Notes of Testimony: December 9, 2015, page 42-
43).
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The Court also finds that [Appellant’s] argument that he
was under duress and forced to sign the plea agreement due to
the ineffectiveness of his counsel is without merit. In Lebanon
County, both [Appellant] and the Commonwealth are entitled to
two continuances each that will be granted without challenge by
the opposing side or by the Court. On November 24, 2015, at
Call of the List, [Appellant] made the decision not to use his
remaining continuance. [Appellant] signed a Certificate of Trial
Readiness at that time. The day before the trial was scheduled
to take place, [Appellant] claimed that counsel was ineffective,
and sought a continuance.
When [Appellant] came before the Court on December 9,
2015 to address these issues, [Appellant] claimed that his
counsel was not ready for trial, was confused and was unable to
represent him due to counsel’s conversation with two people
who had been struck from the array during jury selection and
counsel’s assessment of the case. The Court questioned
[Appellant] and counsel regarding these issues.
[Defense Counsel]: ...The piece that [Appellant] doesn’t
like is my assessment of the evidence against him, and this is
the crux of all issues here. I think if we boiled it down and
distilled it, at the end of the day, he doesn’t like my assessment
of the evidence and my assessment of where we stand with the
case, and that’s the part that displease[s] him most.
The Court: Did that Change since the Call of the List
when he indicated he was ready to go to trial?
[Defense Counsel]: My assessment of the evidence?
The Court: Yes.
[Defense Counsel]: No, it’s- - frankly, on a number
of levels it’s remained quite possibly as negative as
could be. (Notes of Testimony: December 9, 2015,
page 19).
After speaking with the Court and his counsel, [Appellant]
decided to enter a no contest guilty plea. At that time, the
following exchange between the Court and [Appellant] took
place:
The Court: Are you satisfied with your attorney and
the way you have been represented?
[Appellant]: I am, Your Honor.
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The Court: Knowing all things that we have
discussed, do you still wish to enter a plea of no
contest to the charges as the[y] have been
presented?
[Appellant]: I do, Your Honor. (Notes of Testimony:
December 9, 2015, page 46-47).
[Appellant] was asked specifically by the Court whether
[Appellant] was satisfied with his representation. At that time,
directly after entering the no contest plea, [Appellant] said he
was satisfied. It was not until [Appellant] came for sentencing
that [Appellant] claimed he was forced to enter the plea.
On December 9, 2[01]5, [Appellant] and counsel came into
court for the purpose of determining whether counsel would be
excused and whether a continuance was needed. At that time,
the Court went over all of the options with [Appellant], and
[Appellant] stated that he understood everything and ultimately
was satisfied with his representation and his decision to sign the
no contest plea. (Notes of Testimony: December 9, 2015).
This [c]ourt finds that [Appellant] was not forced into
entering a no contest plea, and [Appellant] entered into the no
contest plea knowing that absent unforeseen circumstances,
[Appellant] would not be allowed to withdraw that plea because
a jury had been selected, witnesses subpoenaed and both
attorneys were ready for trial. [Appellant] was satisfied with his
representation on the day that he entered the plea.
Further, this Court finds that [Appellant] fails to meet the
two prong test set out in Commonwealth v. Forbes. The two
prong test regarding withdrawal of a guilty plea is: (1) the
defendant has provided a “fair and just reason” for withdrawal of
his plea; and (2) the Commonwealth will not be “substantially
prejudiced in bringing the case to trial.” Commonwealth v.
Forbes, 299 A.2d 268 (1973). In this case, [Appellant] has not
provided a “fair and just reason” for withdrawal because every
reason [Appellant] is claiming entitles him to [withdraw] his plea
[was a reason] that he had [given] on December 9, 2015, before
he ultimately decided that he was satisfied with his counsel and
wanted to [enter] a no contest plea. [Appellant] knew of and
addressed these issues before he entered into the no contest
plea, therefore, these issues are not new to [Appellant] and
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cannot suddenly be used by [Appellant] as a reason to
[withdraw] his plea.
The second prong of this test is also not satisfied because
the Commonwealth would be substantially prejudiced in bringing
the case to trial after [Appellant] entered a no contest plea
because the victim has already started to move on. Bringing this
case to trial at this time would cause significant emotional harm
to the young victim. For these reasons, [Appellant’s] Motion to
withdraw his plea is denied.
Trial Court Opinion, 7/29/16, at 11-13.
Our review of the certified record reflects that Appellant did not meet
either of the two prongs of the pertinent test. As the trial court concluded,
“[Appellant] has not provided a ‘fair and just reason’ for withdrawal.” Trial
Court Opinion, 7/29/16, at 13. Indeed, Appellant merely asserted his
innocence immediately before sentencing and alleged that he entered his
plea because he was not satisfied with defense counsel. N.T., 3/2/16, at 8-
9. Appellant entered his guilty plea in the late afternoon of December 9,
2015, after a jury was chosen and the witnesses assembled. N.T., 12/9/15,
at 37-53. However, Appellant did not seek to withdraw his plea until the
morning of sentencing, three months later. N.T., 3/2/16, at 3. In so doing,
Appellant simply averred that he was innocent and that he entered his plea
under duress. Id. at 8-9. Such assertions in a last-minute motion to
withdraw a plea do not amount to a colorable claim of innocence or suggest
that Appellant should have been permitted to withdraw the plea in the
interest of justice.
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Moreover, as the trial court aptly notes, “[Appellant] knew of and
addressed these issues before he entered into the no contest plea, therefore,
these issues are not new to [Appellant] and cannot suddenly be used by
[Appellant] as a reason to [withdraw] his plea.” Trial Court Opinion,
7/29/16, at 13. As the record reflects, the trial court conducted an
extensive plea colloquy prior to accepting the plea at which time Appellant
stated that he was satisfied with counsel’s representation. N.T., 12/9/15, at
46-47. In addition, Appellant completed a written colloquy in which he
affirmed that he was satisfied with the representation he received from
defense counsel and that he had ample opportunity to consult with his
attorney. Plea Colloquy, 12/9/15, at 4. Hence we discern no abuse of
discretion by the trial court in concluding that Appellant failed to assert a
plausible claim of innocence or to show that permitting withdrawal of the
plea would promote fairness and justice.5
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5
Because Appellant did not demonstrate the first prerequisite, we need not
consider whether the withdrawal of the plea would substantially prejudice
the Commonwealth. However, as previously indicated, Appellant entered his
plea after a jury was chosen and witnesses assembled to proceed with his
trial. As a result of the plea, the jury was released and the witnesses were
dismissed. Our Supreme Court has found substantial prejudice and affirmed
the denial of a defendant’s pre-sentence motion to withdraw a guilty plea
where the Commonwealth dismissed numerous key witnesses in reliance on
the plea. Commonwealth v. Ross, 447 A.2d 942 (Pa. 1982).
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Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/21/2017
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