Com. v. Cressman, C. ( 2021 )

J-S30020-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
CORY DUANE CRESSMAN :
:
Appellant : No. 409 MDA 2021
Appeal from the Judgment of Sentence Entered January 27, 2021
In the Court of Common Pleas of Lancaster County Criminal Division at
No(s): CP-36-CR-0006292-2019
BEFORE: BENDER, P.J.E., McCAFFERY, J., and COLINS, J.*
MEMORANDUM BY McCAFFERY, J.: FILED NOVEMBER 23, 2021
Cory Duane Cressman (Appellant) appeals from the judgment of
sentence entered in the Lancaster County Court of Common Pleas after
pleading guilty to one count each of rape of a child and terroristic threats, and
two counts each of indecent assault of a complainant under 13 years and
corruption of minors.1 Appellant’s attorney, Kaitlyn M. Mills, Esquire (Appeal
Counsel) has filed a petition to withdraw from representation and an Anders
brief, raising a challenge to the validity of Appellant’s guilty plea.2 See
Anders v. California, 386 U.S. 738 (1967); Commonwealth v. Santiago,
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* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S. §§ 3121(c), 2706(a)(1), 3126(a)(7), 6301(a)(1)(ii), respectively.
2 The Commonwealth filed a letter stating it would not file a brief.
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978 A.2d 349 (Pa. 2009). For the reasons below, we affirm the judgment of
sentence and grant Appeal Counsel’s petition to withdraw.
On January 27, 2021, Appellant, represented by Cory J. Miller, Esquire,
(Plea Counsel) pled guilty to one count each of rape of a child and terroristic
threats, and two counts each of indecent assault of a person under 13 years
and corruption of minors.3 We glean the following factual summary from the
combined plea and sentencing hearing transcript:
[O]n or about January 25th, 2019, both incidents [were
committed] in Penn Township, Lancaster County, Pennsylvania[.
Appellant], being 19 years of age, did engage in sexual intercourse
with a 12-year-old [B.B.] and touched her bare breasts. He also
did touch the breasts and buttocks of [L.T.], a 12-year-old, at that
time.
N.T. at 14 (paragraph break omitted). Appellant threatened to kill B.B. “if she
told anyone[.]” Affidavit of Probable Cause, 10/2/19, at 2. Plea Counsel
reviewed the written plea colloquy with Appellant and the trial court confirmed
Appellant understood the agreement and did not have any questions regarding
the document. N.T. at 11.
Appellant waived conducting an SVP assessment before sentencing. The
trial court thus sentenced Appellant, that same day, to an aggregate period of
seven to 15 years’ incarceration.4 The trial court then notified Appellant of his
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3 Both Appellant and his attorney appeared via video. N.T., Guilty Plea,
1/27/21, at 2.
4 The court imposed a sentence of seven to 15 years’ incarceration on rape of
a child. The court also imposed sentences of one to five years on each of the
remaining counts, all to run concurrently with the first count. N.T. at 2, 18.
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registration requirements as a Tier III offender under the Sexual Offenders
Registration and Notification Act (SORNA).5
Two days later, Appellant filed a pro se correspondence, alleging his plea
was invalid due to his medication making him “drowsy.” Letter From
Appellant, 1/29/21. On February 5, 2021, Plea Counsel, on behalf of
Appellant, filed a timely post-sentence motion to withdraw Appellant’s guilty
plea, wherein Appellant asserted Plea Counsel informed him he would be
permitted to withdraw the plea. Appellant’s Post-Sentence Motion, 2/5/21, at
5 (unpaginated). In that same motion, Plea Counsel requested leave to
withdraw from representation. Id. at 6.
On March 11, 2021, the trial court denied Appellant’s motion to withdraw
his plea. Plea Counsel timely filed a notice of appeal. Shortly thereafter, the
trial court granted counsel’s request to withdraw from representation and
appointed Benjamin Vanasse, Esquire, of the Lancaster County Public
Defender’s Office. The trial court ordered Appellant to file a concise statement
of matters complained of on appeal pursuant to Pa.R.A.P. 1925(b). In
response, Attorney Vanasse timely filed a Pa.R.A.P. 1925(c)(4) statement that
Appellant raised no issues of merit on appeal. Appellant’s case was then
reassigned to Appeal Counsel, who filed in this Court an Anders brief and
application for leave to withdraw as counsel on August 13, 2021. Appeal
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5 42 Pa.C.S. §§ 9799.10-9799.75; see 42 Pa.C.S. §§ 9799.14(d) (rape and
indecent assault are Tier III offenses), 9799.15(a)(3) (Tier III offender must
register for life.
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Counsel attached a copy of a letter, which explained to Appellant his right to
retain new counsel or proceed pro se.
Preliminarily, we address Appeal Counsel’s Anders brief alleging the
issues on appeal are frivolous. This Court has stated:
[We] must first pass upon counsel’s petition to withdraw before
reviewing the merits of the underlying issues presented[.]
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.
Counsel also must provide a copy of the Anders brief to [her]
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, 879-80 (Pa. Super 2014)
(citations omitted). “Once counsel has satisfied the above requirements, it is
then this Court’s duty to conduct its own review of the trial court’s proceedings
and render an independent judgment as to whether the appeal is, in fact,
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wholly frivolous.” Commonwealth v. Goodwin, 928 A.2d 287, 291 (Pa.
Super. 2007) (en banc) (citation omitted).
Instantly, Appeal Counsel satisfied the technical requirements of
Anders and Santiago. In her Anders brief, she aptly summarizes the
pertinent factual and procedural history with citations to the record. Anders
Brief at 5-7. After a conscientious review of the record and applicable law,
Appeal Counsel concludes the appeal is frivolous. Id. at 8. Appeal Counsel
has attached to her application to withdraw a letter to Appellant that meets
the notice requirements. See Orellana, 86 A.3d at 880.
Appeal Counsel states Appellant “has not communicated any issues he
wished to raise on direct appeal” to her, nor has he filed a response to
Counsel’s application to withdraw. Anders Brief at 8. Nevertheless, Appeal
Counsel addresses whether this Court should allow Appellant to withdraw his
guilty plea. Appellant cites his pro se post-sentence correspondence, which
argued his plea was involuntary because he was under the influence of
“medication that affected his ability to enter an intelligent, willing, and
voluntary plea.” Id. at 10. Appellant insists the medication he was taking
made him “drowsy” and as such, made his plea “invalid[.]” Id. Appeal
Counsel presents the following question on appeal:
1. Should [A]ppellate [C]ounsel be granted leave to withdraw as
counsel because any appellate issues in the instant case are
frivolous?
Anders Brief at 4.
This Court has stated:
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[P]ost-sentence motions for withdrawal are subject to
higher scrutiny since courts strive to discourage entry of
guilty pleas as sentence-testing devices. A defendant must
demonstrate that manifest injustice would result if the court
were to deny his post-sentence motion to withdraw a guilty
plea. 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. A
deficient plea does not per se establish prejudice on the
order of manifest injustice.
“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.”
Commonwealth v. Kehr, 180 A.3d 754, 756-57 (Pa. Super. 2018) (citations
omitted).
Pennsylvania Rule of Criminal Procedure 590 provides that before
accepting a guilty plea, the trial court must ensure the defendant understands:
(1) the nature of the charges to which he is pleading guilty; (2)
the factual basis for the plea; (3) he is giving up his right to trial
by jury; (4) and the presumption of innocence; (5) he is aware of
the permissible ranges of sentences and fines possible; and (6)
the court is not bound by the terms of the agreement unless the
court accepts the plea.
Commonwealth v. Kpou, 153 A.3d 1020, 1023 (Pa. Super. 2016) (citation
omitted). Further,
[a] person who elects to plead guilty is bound by the statement
he makes in open court while under oath and he may not later
assert grounds for withdrawing the plea which contradict the
statements he made at his plea colloquy.
Commonwealth v. Pollard, 832 A.2d 517, 523 (Pa. Super. 2003).
The trial court provided the following rationale for denying Appellant’s
post-sentence motion:
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[D]uring the negotiation and execution of the plea agreement,
[Appellant] met with [Plea Counsel] via videoconference or
telephone on at least three occasions: December 4, 2020,
January 6, 2021, and January 21, 2021. During the phone
conference of January 6, [Appellant] and [Plea Counsel] reviewed
all documents relevant to the plea agreement and guilty plea,
including the Guilty Plea Colloquy, which consists of some 74
paragraphs designed to inform [Appellant] of his rights and
particularly those rights he would forego upon entering the guilty
plea. Counsel read aloud each document in its entirety over the
phone. At the conclusion of the phone conference, [Appellant]
agreed that [Plea Counsel] should sign the necessary plea
documents on [his] behalf. [Appellant’s mother later contacted
Plea Counsel and] informed him [that Appellant] had additional
questions regarding his plea.
[Plea Counsel] therefore scheduled the videoconference
with [Appellant] for January 21, 2021[, wherein] counsel reviewed
for a second time the guilty plea documents, including the Guilty
Plea Colloquy. [Appellant] also independently reviewed the
documents for himself[. Appellant] had ample opportunity to
review the documents and to ask questions of [Plea Counsel],
which he did. [Plea Counsel] answered [Appellant’s] questions
regarding the plea and [Appellant] agreed to move forward with
it.
Trial Ct. Op., 3/11/21, at 5-6 (paragraph break added).
Further, at the plea hearing, the trial court extensively explained to
Appellant his rights and the charges to which he was pleading, and confirmed
Appellant understood and had no further questions. Trial Ct. Op. at 6-7. After
the colloquy, the trial court allowed Appellant another opportunity to make a
statement or ask for clarification on his plea. Id. at 7. Appellant asked if
“skipping the wait time for the [SVP] assessment” would delay his transfer
from the Lancaster County facility. Id; N.T. at 17. The trial court responded,
“to the best of [its] understanding,” Lancaster County would transfer Appellant
to the Department of Corrections without delay. N.T. at 17. In Appellant’s
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written colloquy, he stated he was not under the influence of alcohol, drugs,
or medication, and any treatment he was receiving for illnesses did not affect
his “ability to understand these questions or why” he was there. Appellant’s
Written Guilty Plea Colloquy, 1/6/21, at 1 (unpaginated). Appellant responded
“N/A” when asked if any medications he was taking would affect his ability to
“understand these questions or why” he was there. Id. During his plea
hearing, the trial court confirmed Appellant reviewed the colloquy with Plea
Counsel and had no questions about the agreement. N.T. at 11.
After our review of the record, we agree with the trial court’s conclusion
that Appellant was “thoroughly informed regarding all aspects of the guilty
plea process.” Trial Ct. Op. at 6; see Kpou, 153 A.2d at 1023. Appellant
stated in his colloquy he was not under the influence of drugs, and any
medication he was on did not impact his ability to plead guilty. He cannot
now claim he was “drowsy” and thus entered an unknowing plea. See
Pollard, 832 A.2d at 523. Appellant does not meet the standard to withdraw
his plea after sentencing because he has not demonstrated any manifest
injustice. See Kehr, 180 A.3d at 756-57.
Following an independent review of the record, we likewise determine
Appellant’s appeal is frivolous. See Goodwin, 928 A.2d at 291. Accordingly,
we affirm the judgment of sentence and grant Appeal Counsel’s petition to
withdraw from representation.
Judgment of sentence affirmed. Appeal Counsel’s petition to withdraw
from representation granted.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/23/2021
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