Com. v. Wright, M. ( 2022 )

J-S35028-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MICHAEL R. WRIGHT :
:
Appellant : No. 721 MDA 2022
Appeal from the Judgment of Sentence Entered April 12, 2022
In the Court of Common Pleas of Dauphin County Criminal Division at
No(s): CP-22-CR-0004282-2018,
CP-22-CR-0004739-2018
BEFORE: BENDER, P.J.E., McLAUGHLIN, J., and STEVENS, P.J.E.*
MEMORANDUM BY McLAUGHLIN, J.: FILED: DECEMBER 16, 2022
Michael R. Wright appeals from the judgment of sentence imposed after
he pled guilty to two counts each of rape, involuntary deviate sexual
intercourse (IDSI), and sexual assault, and one count each of terroristic
threats, aggravated assault, and false imprisonment.1 Wright’s counsel has
filed an Anders2 brief and petition to withdraw as counsel. We affirm Wright’s
judgment of sentence and grant counsel’s request to withdraw.
Wright pleaded guilty on May 5, 2021, pursuant to a plea agreement.
The prosecutor gave the following factual basis for the plea agreement:
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* Former Justice specially assigned to the Superior Court.
118 Pa.C.S.A. §§ 3121(a)(2), 3123(a)(1), 3124.1, 2706(a)(1), 2702(a)(1),
and 2903(a), respectively.
2 Anders v. California, 386 U.S. 738 (1967).
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Factually, Your Honor, at Docket Number 4739 CR 2018, it's
alleged by the Commonwealth that the defendant did meet
the named victim . . . outside of an establishment in
downtown, specifically the Harrisburg Midtown Arts Center,
about 2:00 in the morning.
The defendant did invite her to go over to a residence in the
city at 625 Oxford Street. Once they went into the home,
the defendant demanded that she perform oral sex on him.
She said no. And he then forcibly put his penis inside of her
mouth. He then also vaginally raped her.
During the course of both the involuntary deviate sexual
intercourse as well as the vaginal intercourse, the defendant
punched the victim multiple times in the head. It’s the
Commonwealth’s allegation that he did cause serious bodily
injury to the victim.
She was ultimately able to crawl outside of the apartment
and was able to run for help. She was actually helped by an
individual that was driving through the area.
She was transferred to the Hershey Medical Center and she
did have a brain hemorrhage as a result of the beating by
the defendant. She also had a fracture to the right eye.
***
Your Honor, the second docket is Docket 4282 CR 2018. And
actually what happened, Your Honor, was this predated the
one that I just went through. When the defendant was
arrested for this rape, another woman came forward -- . . .
-- she had indicated that she had also been sexually
assaulted by the defendant and she had seen his picture on
the news. She didn’t know his name. She hadn’t reported it
to the police at the time.
Ultimately, the police investigation determined that on May
25th of 2018 the defendant had been in contact with [the
victim]. They had met at a bar. They had gone back to a
residence within the city. And then the defendant forced her
to engage in both vaginal intercourse as well as oral
intercourse.
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N.T., Guilty Plea Hearing, 5/5/21, at 5-6, 6-7. Wright waived his right to have
a Sexually Violent Predator (“SVP”) determination before sentencing and the
court imposed an aggregate term of 15 to 39 years’ incarceration. The court
held an SVP hearing on April 12, 2022.
The Commonwealth presented the testimony of Dr. Robert Stein. Dr.
Stein testified that he determined Wright to be an SVP. N.T., SVP Hearing,
4/12/22, at 11. He testified that Wright did not participate in the evaluation
and that he based his determination on Wright’s Sexual Offender Assessment
Board (“SOAB”) file. Id. at 6. Dr. Stein reviewed 15 statutory factors and
testified to the factors that were relevant to his determination of Wright’s SVP
status.
The factors that were relevant were Factor Number 1,
because the offense involved multiple victims indicating
greater practice and risk taking than a single victim. Factor
Number 2 was relevant. And he did exceed the means
necessary with significant physical violence against both
victims, with the second victim incurring severe injuries. The
third was relevant as well. Act[s] with both victims included
forced oral and penis-vagina sex consistent with an
antisocial pattern, as opposed to offenses that might involve
brief sexual touching.
Next, the relationship of the individual victim, this was also
relevant as both victims were strangers. This is consistent
with predatory behavior. Next, the issue of unusual cruelty
was relevant with the second victim suffering severe
physical injuries, a brain hemorrhage and facial fracture
indicating some level of cruelty.
The prior criminal record was relevant because there was a
lengthy criminal history that’s consistent with an antisocial
orientation.
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The next, having completed any prior sentences, that was
relevant because there was a history of multiple probation
violations also consistent with an antisocial orientation.
The issue of mental disability could be relevant. I’m not
going to say necessarily is. He does have an intellectual
disability. That could create difficulties in treatment, though
not necessarily. I’m not going to hold that against him.
Next, overall behavioral characteristics contributing to
conduct, the antisocial history is consistent with an
antisocial personality disorder. It appears that frequency of
criminal convictions has increased over the past eight years,
starting in 2013.
And finally, statistical factors related to risk of sexual re-
offense. Having a nonsexual violent offense as part of the
sexual offense pattern, having unrelated victims, stranger
victims, and a history of four or more sentencing dates, all
of these are statistically associated with greater risk of
sexual re-offense.
Id. at 9-10.
Dr. Stein also testified that Wright suffered from antisocial personality
disorder. He stated that Wright’s behavior towards the victim was predatory.
Id. at 11. Dr. Stein conceded that there was a possibility Wright’s behavior
could change “if he successfully completes treatment in prison and successful
completes outpatient treatment while under supervision, that would lower his
risk of recidivism.” Id. at 13. He testified that some factors in Wright’s favor
were that the victims were close to his age and were of normal intellectual
capacity. Id. at 16. He maintained, however, that these factors did not change
his opinion regarding Wright being classified as an SVP. Id. at 18. After Dr.
Stein’s testimony, the court determined Wright to be an SVP. Id. at 19. This
timely appeal followed.
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Wright improperly filed one notice of appeal listing two docket numbers,
in violation of Commonwealth v. Walker, 185 A.3d 969 (Pa. 2018).
Normally this would result in quashal or in this Court directing counsel to file
separate notices of appeal. However, we decline to do so here, as we find that
a “breakdown in court operations” occurred. See Commonwealth v.
Stansbury, 219 A.3d 157, 160 (Pa.Super. 2019) (declining to quash appeal
for Walker violation due to breakdown in court operations where appellant
filed one notice of appeal listing multiple trial court docket numbers, after
court advised appellant that he had a right to file “a notice of appeal”).
The written plea colloquy form here contained a provision stating that
Wright understood that he had 30 days “to file an appeal[.]” See Guilty Plea
Colloquy, dated 5/5/21, at 4 (unpaginated) (emphasis added). As in
Stansbury, Wright’s colloquy misled him to believe that filing “an appeal”
would be proper. We therefore we decline to quash. See Stansbury, 219 A.2d
at 160; see also Commonwealth v. Larkin, 235 A.3d 350, 354 (Pa.Super.
2020) (en banc) (declining to quash appeal where order informing appellant
of appellate rights stated he had 30 days to file “an appeal”).
We now turn to our evaluation of counsel’s Anders brief and petition to
withdraw.3 Before we assess the merits of Wright’s claim, we must first
address counsel’s request to withdraw from representation. See
Commonwealth v. Goodwin, 928 A.2d 287, 290 (Pa.Super. 2007) (en
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3 Wright has not filed a response to the Anders brief.
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banc). An Anders brief is filed “when counsel believes an appeal is frivolous
and wishes to withdraw from representation[.]” Commonwealth v. Watts,
283 A.3d 1252, 1254 (Pa.Super. 2022). In such a case, counsel must:
(1) petition the court for leave to withdraw stating that after
making a conscientious examination of the record, counsel
has determined the appeal would be frivolous; (2) file a brief
referring to any issues that might arguably support the
appeal, but which does not resemble a no-merit letter; and
(3) furnish a copy of the brief to the defendant and advise
him of his right to retain new counsel, proceed pro se, or
raise any additional points he deems worthy of this Court’s
attention.
Commonwealth v. Edwards, 906 A.2d 1225, 1227 (Pa.Super. 2006)
(citation omitted).
Additionally, an Anders 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.
Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009). If this Court
determines that counsel has satisfied the requirements, we then conduct “a
full examination” of the record “to decide whether the case is wholly frivolous.”
Commonwealth v. Dempster, 187 A.3d 266, 271-72 (Pa.Super. 2018) (en
banc) (quoting Anders, 386 U.S. at 744).
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Here, counsel has satisfied the preliminary requirements. In the Anders
brief, counsel provides a summary of the procedural and factual history with
citations to the record, refers to three issues “that might arguably support the
appeal,” and states that these issues are frivolous. The issues are the
voluntariness of Wright’s guilty plea and the sufficiency and weight of the
evidence supporting the SVP determination. Counsel’s petition to withdraw
states that counsel served a copy of the Anders brief on Wright and advised
him that he may raise any additional issues before this Court pro se or through
private counsel. The letter to Wright is an exhibit to counsel’s petition to
withdraw. The Anders brief meets the procedural requirements. We now
review the appeal for frivolousness.
“When an appellant enters a guilty plea, []he waives h[is] right to
‘challenge on appeal all non-jurisdictional defects except the legality of h[is]
sentence and the validity of h[is] plea.’” Commonwealth v. Pantalion, 957
A.2d 1267, 1271 (Pa.Super. 2008) (quoting Commonwealth v. Rush, 909
A.2d 805, 807 (Pa.Super. 2006)) (brackets omitted). Issues challenging the
validity of a guilty plea must be raised before the trial court, either in a post-
sentence motion or at the sentencing hearing. Commonwealth v. Tareila,
895 A.2d 1266, 1270 n.3 (Pa.Super. 2006). Failure to raise the issue properly
in the trial court waives the issue on appeal. Id.Here, Wright did not object or otherwise raise any issue related to the
voluntariness of his guilty plea at the time of his plea and sentencing. Nor did
Wright file a post-sentence motion challenging his plea or seeking to withdraw
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it. Therefore, he did not preserve any issue related to the validity of his guilty
plea. See id. We find no reasonable basis on which to argue in this appeal
that the plea was not voluntary.
“In order to affirm an SVP designation, we, as a reviewing court, must
be able to conclude that the fact-finder found clear and convincing evidence
that the individual is an SVP.” Commonwealth v. Hollingshead, 111 A.3d
186, 189 (Pa.Super. 2015) (citation and brackets omitted). “[W]e view all
evidence and reasonable inferences therefrom in the light most favorable to
the Commonwealth.” Id. (citation omitted).
“An SVP is defined as a person who has been convicted of a sexually
violent offense . . . and who has a mental abnormality or personality disorder
that makes the person likely to engage in predatory sexually violent offenses.”
Id. (citation and brackets omitted). An SVP designation also requires “a
showing that the defendant’s conduct was predatory[.]” Id. at 190 (citation
omitted). Furthermore, when conducting an SVP assessment, the mental
health professional reviews 15 factors:
[w]hether the offense involved multiple victims[; w]hether
the defendant exceeded the means necessary to achieve the
offense[; t]he nature of the sexual contact with the victim[s;
r]elationship of the individual to the victim[s; a]ge of the
victim[s; w]hether the offense included a display of unusual
cruelty by the [defendant] during the commission of the
crime[; t]he mental capacity of the victim[s; t]he
[defendant’s] prior criminal record[; w]hether the
[defendant] completed any prior sentences[; w]hether the
[defendant] participated in available programs for sexual
offenders[; the defendant’s a]ge[; the defendant’s u]se of
illegal drugs[; a]ny mental illness, mental disability, or
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mental abnormality [of the defendant; b]ehavioral
characteristics that contribute to the [defendant's]
conduct[; and f]actors that are supported in a sexual
offender assessment field as criteria reasonably related to
the risk of reoffense.
42 Pa.C.S.A. § 9799.24(b)(1)-(4). The law does not require that all the above-
referenced factors go against the defendant, or any particular number of
them, in order to support an SVP designation. See Commonwealth v.
Brooks, 7 A.3d 852, 863 (Pa.Super. 2010).
To the extent Wright challenges the weight of the evidence supporting
his SVP designation, this claim is waived, as Wright made no such challenge
below. See Pa.R.Crim.P. 607, comment (“The purpose of this rule is to make
it clear that a challenge to the weight of the evidence must be raised with the
trial judge or it will be waived”); see also Commonwealth v. Ratushny, 17
A.3d 1269, 1272 (Pa.Super. 2011) (“We discern no basis on which to
distinguish our standard of review on weight claims, whether challenging the
weight of the evidence to support a guilty verdict or a trial court’s SVP
determination”).
Regarding Wright’s challenge to the sufficiency of the evidence for his
SVP designation, “we view all evidence and reasonable inferences therefrom
in the light most favorable to the Commonwealth.” Hollingshead, 111 A.3d
at 189. When we review the evidence under this standard, we perceive no
reasonable basis on which to challenge the trial court’s designation of Wright
as an SVP. The evidence included not only the evidence of Wright’s anti-social
personality disorder, but also Dr. Stein’s testimony regarding Wright’s
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likelihood to reoffend, the violent nature of one of the sexual crimes, the attack
of multiple victims in a short span of time, and Wright’s predatory behavior
exhibited by his sexual assault of strangers.
Finally, our review of the record has uncovered no non-frivolous issues
Wright could raise on appeal. Dempster, 187 A.3d at 272. We grant counsel’s
petition to withdraw and affirm Wright’s judgment of sentence.
Petition to withdraw as counsel granted. Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/16/2022
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