Com. v. Pankotai, A. ( 2018 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
ANDREW WILLIAM PANKOTAI :
:
Appellant : Nos. 903 MDA 2017
Appeal from the Judgment of Sentence May 19, 2017
In the Court of Common Pleas of Montour County Criminal Division at
No(s): CP-47-CR-0000063-2014
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ANDREW W. PANKOTAI :
:
Appellant : No. 904 MDA 2017
Appeal from the Judgment of Sentence May 19, 2017
In the Court of Common Pleas of Montour County Criminal Division at
No(s): CP-47-CR-0000062-2014
BEFORE: SHOGAN, J., LAZARUS, J., and OTT, J.
MEMORANDUM BY SHOGAN, J.: FILED MARCH 21, 2018
Appellant, Andrew William Pankotai, appeals1 from the judgments of
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1 Because these two appeals present the same issue and argument, this Court
hereby consolidates them sua sponte. See Pa.R.A.P. 513 (stating, “[w]here
there is more than one appeal from the same order, or where the same
question is involved in two or more appeals in different cases, the appellate
court may, in its discretion, order them to be argued together in all particulars
as if but a single appeal.”).
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sentence entered on May 19, 2017, in the Court of Common Pleas of Montour
County. We affirm.
The trial court summarized the procedural history of these cases as
follows:
On October 13, 2015, [Appellant] pleaded nolo contendere
to Theft of Services (M-1) (18 Pa.C.S.A. §3926(a)(1)[)], Theft by
Unlawful Taking (M-3) (18 Pa.C.S.A. §3921(a)[)] [at docket CR
62 of 2014], and Criminal Trespass (F-3) (18 Pa.C.S.A.
§3503(a)(1)(i)[)] [at docket CR 63 of 2014]. [Appellant’s] prior
record score was [repeat felony offender (“RFEL”)]. The standard
range for the Theft of Services and Criminal Trespass was 12-18
months and for Theft by Unlawful Taking 3-6 months. On May 19,
2017, [Appellant] was sentenced for Criminal Trespass [at CR 63
of 2014] to not less than 12 months nor more than 36 months in
a State Correctional Institution. [At CR 62 of 2014 h]e was
sentenced to 6-24 months for the Theft of Services and 3-12
months for the Theft by Unlawful Taking, each running concurrent
to the Criminal Trespass sentence [at CR 63-2014]. [Appellant’s]
request for reconsideration was denied without hearing.
[Appellant] had been scheduled to appear for sentencing on
February 3, 2016. However, he failed to appear and a bench
warrant was issued that date. Nevertheless, [Appellant] filed via
mail, numerous pro se (even though he had counsel), sovereign
citizen motions which were denied by this court. He was
eventually detained in New Mexico on the bench warrant. He was
also being held on a state parole board detainer for a sentence on
an earlier case. He was brought before this court on May 19,
2017, on the bench warrant for his sentencing that had been
scheduled February 3, 2016. [Appellant] said he wanted to
withdraw his plea. This court denied his request and sentenced
[Appellant] as set for[th] above. [Appellant] appealed.
Trial Court Opinion, 7/5/17, at 1-2.2 Appellant and the trial court complied
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2 On September 21, 2017, the trial court issued a second opinion pursuant to
Pa.R.A.P. 1925(a), indicating that the July 5, 2017 opinion was inadvertently
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with Pa.R.A.P. 1925. In both cases, Appellant presents the following issue for
our review: “Whether the trial court erred in not granting Appellant’s pre-
sentence motion to withdraw his nolo contendere plea.” Appellant’s Briefs at
2.
As noted, Appellant was directed to file a Pa.R.A.P. 1925(b) statement
in both cases, and in response filed statements raising the following three
issues:
1. [Appellant] filed a pro se Motion seeking to withdraw his plea
nolo contendere and going to trial in the above-referenced
matter, but was not afforded a hearing on the same.
2. When [Appellant] was brought to Court on May 19, 2017, he
believed that the sole issue to be addressed would be a Bench
Warrant. However, [Appellant] was sentenced on that date
and still not afforded a hearing on his pending pro se Motions
challenging jurisdiction and to withdraw his plea.
3. [Appellant] sought Reconsideration of the plea withdrawal
issue, but the same was denied two days later without a
hearing or argument.
Statements of Matters Complained of on Appeal Pursuant to Pa.R.A.P. 1925,
6/21/17, at 1.3
We are mindful of the principle first stated in Commonwealth v. Lord,
719 A.2d 306 (Pa. 1998): “in order to preserve their claims for appellate
review, [a]ppellants must comply whenever the trial court orders them to file
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captioned to only case CR 62 of 2014, but should have been captioned and
docketed to CR 62 and 63 of 2014, since it addressed both cases.
3 The Pa.R.A.P. 1925(b) statement filed in both cases were identical.
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a Statement of Matters Complained of on Appeal pursuant to Pa.R.A.P. 1925.
Any issues not raised in a Pa.R.A.P. 1925(b) statement will be deemed
waived.” Lord, 719 A.2d at 309. Appellant’s issues in his Pa.R.A.P. 1925(b)
statements challenge the trial court’s alleged failure to provide him a hearing
regarding his request to withdraw his plea.4 As noted above, however,
Appellant’s claim on appeal is that the trial court erred in failing to permit him
to withdraw his guilty plea. Appellant’s Brief at 2. This issue, therefore, was
not raised in Appellant’s Pa.R.A.P. 1925(b) statements. Accordingly, we find
it waived.
Even if this issue was not waived, however, we would conclude that
Appellant’s claim lacks merit. With regard to the withdrawal of a plea of nolo
contendere, this Court has stated the following:
[W]e recognize that 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.” Pa.R.Crim.P 591(A). The Supreme Court of Pennsylvania
recently clarified the standard of review for considering a trial
court’s decision regarding a defendant’s pre-sentence motion 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
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4 As will be discussed, the trial court conducted a hearing at which Appellant
was afforded the opportunity to present his request to withdraw his plea and
the reasons supporting such request.
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withdrawal would work substantial prejudice to the
Commonwealth.
Commonwealth v. Carrasquillo, 631 Pa. 692, 115 A.3d 1284,
1285, 1291–92 (2015) (holding there is no per se rule regarding
pre-sentence request to withdraw a plea, and bare assertion of
innocence is not a sufficient reason to require a court to grant
such request). We will disturb a trial court’s decision on a request
to withdraw a guilty plea only if we conclude that the trial court
abused its discretion. Commonwealth v. Gordy, 73 A.3d 620,
624 (Pa. Super. 2013).
Commonwealth v. Blango, 150 A.3d 45, 47 (Pa. Super. 2016).
The record reflects that during the May 19, 2017 hearing, prior to
sentencing, Appellant asserted his desire to withdraw his plea of nolo
contendere. When asked why he wished to withdraw his plea, Appellant
provided the following explanation:
‘Cause I’m not guilty of the case, I’m not guilty of the crime.
If I was in a Court of record or Court of law, I would go
ahead and lawfully take the charges and plead guilty to
them, but we’re not in a Court of law or Court of record, we
are in a business for profit. Montour County Courthouse has a
Duns and Bradstreet number, two of them, actually, two suit
numbers. We are an admiralty maritime Court, as you can tell the
gold fringe black. We haven’t had a Judge since 1776, we have
Court Administrators.
I’m just saying right now there’s not full disclosure of my
case and I’d like to have full disclosure. I wasn’t given a full
discovery of the whole case. There’s three bonds I was never
presented, the bid bond, the performance bond and the payment
bond that you get from the GSA that starts the case out. I was
never given the right to inspect the bonds, make sure my
signature’s on there ‘cause my signature’s not on there, the bonds
are voided and the case is invalid.
Also, I have no surety. I also said the Court’s surety, the
birth certificate has collateral. I’m a secured party creditor. I
have filing in New York UCC offices and notices in Pennsylvania
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and New Mexico. I have a hold harmless agreement indemnity
bond of three hundred million dollars. I have a security -- if you’d
like to look online, it’s all public record -- I’m actually noticed to
the DC, the FBI, CIA, the DOJ and Homeland. They all know my
standing as well as the Whitehouse.
I’m not coming here to argue or disrespect the Court, I come
here respectfully and honestly. I’m not a U.S. Citizen, I’m a non-
citizen national. The IRS has a W-8BEN on file as a non-resident
alien. I’m not part of the corporation of DC jurisdictional acts in
the case here as well as the DEC. It doesn’t mean I run around
and do what I want, I’m under God’s law, I’m under the common
law. Not that sovereigns isn’t a people thing, I’m not a citizen to
a government but we have a right to declare nationality as part of
the universal declaration of human rights signed on by Obama
through United Nations.
I’m coming here ‘cause I wasn’t given full disclosure of the
case and I’d like to review all the facts of the case and I’d like that
option and that right to go ahead and do so, sir. That’s a lot to
take in.
N.T., 5/19/17, at 3-5 (emphasis added).
Here, Appellant appears to be alleging that he is not subject to the
jurisdiction in the Montour Court of Common Pleas, or of any other court, due
to his status as a sovereign citizen.5 This Court has concluded these claims
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5 A tenet of the sovereign citizen theory is that
when a person is born, that person’s birth certificate (or Social
Security card application) creates a corresponding legal fiction, or
“strawman,” in that person’s name. This means that every person
has a kind of dual personality; there is the “flesh-and-blood”
person on one hand and the fictional strawman on the other. . . .
[T]hey believe that only the strawman really operates in the
modern commercial world (engaging in transactions, collecting
debts, and contracting with others); accordingly, they believe the
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lack merit. In Commonwealth v. McGarry, 172 A.3d 60 (Pa. Super. 2017),
the appellant argued that he was a “sovereign citizen” and, therefore, was not
subject to the laws of the Commonwealth of Pennsylvania. Id. at 66. In
addressing this claim, this Court explained:
Courts in this Commonwealth and various Federal Courts of
Appeals have rejected sovereign citizen claims, identical to those
raised here in a handful of unpublished decisions, as frivolous.
See, e.g., United States v. Himmelreich, 481 Fed.Appx. 39, 40
n.2 (3d Cir. 2012) (per curiam) (citing with approval United
States v. Benabe, 654 F.3d 753, 767 (7th Cir. 2011)); Charlotte
v. Hansen, 433 Fed.Appx. 660, 661 (10th Cir. 2011) (“an
individual’s belief that her status as a sovereign citizen puts her
beyond the jurisdiction of the courts has no conceivable validity in
American law.”). We agree that such sovereign citizen claims are
frivolous.
Id.Thus, we would conclude that Appellant’s claim of being a sovereign
citizen, and therefore not subject to the laws of this country or commonwealth,
is frivolous. McGarry, 172 A.3d at 66. Accordingly, Appellant has failed to
demonstrate a fair and just reason to support the grant of his plea-withdrawal
request. Blango, 150 A.3d 47.
Moreover, as our Supreme Court has stated, the bare assertion of
innocence by Appellant, as made at the onset of his explanation, was
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government has power over the strawman only, and completely
lacks authority over the flesh-and blood person.
Joshua P. Weir, Sovereign Citizens: A Reasoned Response to the Madness,
19 Lewis & Clark L. Rev. 829 (2015).
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insufficient to require the court to grant his request to withdraw his plea.
Blango, 150 A.3d at 47; N.T., 5/19/17, at 3. Indeed, Appellant immediately
thereafter acknowledged his guilt and asserted that if the common pleas court
had jurisdiction over him, he would accept the charges and plead guilty. N.T.,
5/19/17, at 3. Thus, if we were to address the merits of Appellant’s claim, we
would conclude that it lacks merit. Because Appellant failed to demonstrate
a fair and just reason to support a grant of his withdrawal request, we would
conclude that the trial court did not abuse its discretion in denying Appellant’s
request.
Judgments of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 03/21/2018
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