Com. v. Netherton, J. ( 2022 )

J-S26041-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JACOB LEE DIAMOND NETHERTON :
:
Appellant : No. 107 MDA 2022
Appeal from the Judgment of Sentence Entered December 20, 2021
In the Court of Common Pleas of Bradford County Criminal Division at
No(s): CP-08-CR-0000575-2021
BEFORE: KUNSELMAN, J., McCAFFERY, J., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED: AUGUST 23, 2022
Appellant, Jacob Lee Diamond Netherton, appeals from the judgment of
sentence imposed after he pleaded guilty to one count of Indecent Assault-
complainant less than 16 years of age, 18 Pa.C.S. § 3126(a)(8). Counsel has
filed a petition to withdraw and a brief pursuant to Anders v. California, 386
U.S. 738 (1967), and Commonwealth v. Santiago, 978 A.2d 349 (Pa.
2009), on the grounds that Appellant’s appeal is wholly frivolous. We grant
counsel's petition to withdraw and affirm the judgment of sentence.
On June 4, 2021, Appellant was charged with Indecent Assault and
Corruption of Minors for alleged conduct occurring when he was 18 years of
age and his alleged victim was 13 years of age. On November 8, 2021,
Appellant entered an open plea of nolo contendere to Indecent Assault, and
____________________________________________
* Former Justice specially assigned to the Superior Court.
J-S26041-22
on December 20, 2021, he received a lower-end standard range sentence of
eight months to 23 months, 29 days’ incarceration that aligned with defense
counsel’s request for a lower-end standard guideline range sentence.1, 2
The trial court denied Appellant’s post-sentence motion on January 4,
2022, and this timely appeal followed. However, counsel has filed an Anders
brief and a petition to withdraw. Counsel’s Anders brief identifies three
issues:
1. Was the sentence imposed on Defendant excessive?
2. Did the trial judge have a conflict of interest such that Her Honor
should have recused herself from hearing the case?
3. Did the trial court error in denying the Post Sentence Motion to
Withdraw the [plea of nolo contendere] filed by the Defendant?
Anders brief, at 3.
Before we may address the issues counsel has identified, we must first
attend to counsel's request to withdraw. See Commonwealth v. Daniels,
999 A.2d 590, 593 (Pa. Super. 2010). The petition to withdraw must state
that, “after making a conscientious examination of the record, counsel has
determined that the appeal would be frivolous.” Commonwealth v.
Cartrette, 83 A.3d 1030, 1032 (Pa. Super. 2013) (en banc). Counsel must
also advise the defendant that he “has the right to retain private counsel or
____________________________________________
1 The standard range sentence applicable to Appellant was six to 12 months.
2At the sentencing hearing of December 20, 2021, Appellant also received a
sentence on one count of Disorderly Conduct from a separate docket.
-2-
J-S26041-22
raise additional arguments that [she] deems worthy of the court's
attention.” Id.Counsel also is required to file an Anders brief and provide a copy to
the client. The Anders brief must do all of the following:
(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.
Id. (quoting Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009)).
Upon review, it appears that counsel has complied with the procedural
requirements of Anders, Commonwealth v. McClendon, 434 A.2d 1185(Pa. 1981), and their progeny. His petition to withdraw states that he
conducted a conscientious examination of the record and found the appeal to
be wholly frivolous. Counsel provided Appellant with a letter advising him of
his rights pursuant to Commonwealth v. Millisock, 873 A.2d 748 (Pa.
Super. 2005) (requiring advisement of right to retain new counsel or to
proceed pro se in response to the Anders brief). Both the letter and the
withdrawal petition are attached to counsel’s Anders brief, which contains
proof of service on Appellant. The Millisock letter also references both the
petition and the brief as having been enclosed with the letter.
-3-
J-S26041-22
Counsel’s Anders brief substantially complies with the requirements set
forth in Santiago. It provides a summary of the case's procedural history
and facts—although without citations to the record; identifies the issues that
he believes arguably support the appeal; states counsel's conclusion that the
appeal is frivolous; and explains his reasons for that conclusion. See id. The
brief also contains copies of Appellant’s Pa.R.A.P. 1925(b) statement and the
trial court opinion. To date, Appellant has not responded to the petition to
withdraw as counsel.
The first issue raised in the Anders brief addresses Appellant’s
contention that his sentence was too harsh. This claim goes to the
discretionary aspects of his sentence. See Commonwealth v. Caldwell,
117 A.3d 763, 768 (Pa. Super. 2015). We engage in a four-step inquiry before
reaching the merits of a challenge to discretionary aspects of sentencing:
(1) the filing a timely notice of appeal; (2) properly preserving the
issue at sentencing or in a motion to reconsider and modify the
sentence; (3) complying with Pa.R.A.P. 2119(f), which requires a
separate section of the brief setting forth “a concise statement of
the reasons relied upon for allowance of appeal with respect to the
discretionary aspects of a sentence[;]” and (4) presenting a
substantial question that the sentence appealed from is not
appropriate under the Sentencing Code, 42 Pa.C.S. § 9781(b).
Commonwealth v. Dempster, 187 A.3d 266, 272 (Pa. Super. 2018)(en
banc) (citation omitted).
-4-
J-S26041-22
Here, Appellant timely appealed, but neither at his sentencing hearing
nor in his post-sentence motion did he claim his sentence was excessive.
Accordingly, he has waived this issue.3
The second issue raised in the Anders brief submits that the trial judge
had a conflict of interest, requiring recusal, because she presided over
Appellant’s various juvenile proceedings. Appellant contends, therefore, that
he was denied a fair guilty plea hearing and sentencing hearing.
This issue is waived, as Appellant never raised it before the trial court.
See Commonwealth v. Rominger, 199 A.3d 964 (Pa. Super. 2018) (holding
motion to recuse trial judge waived where first raised in post-sentence
motion). Here, Appellant first raised the issue of recusal in his Pa.R.A.P.
1925(b) concise statement.
____________________________________________
3 Even if Appellant had preserved this issue, we discern no support in the
record for Appellant’s assertion that his sentence at the low end of the
guideline standard range raised a substantial question implicating either a
specific provision of the Sentencing Code or the fundamental norms which
underlie the sentencing process. See Caldwell, 117 A.3d at 768 (instructing
the manner in which an excessiveness claim may sufficiently articulate raise
a substantial question.)
In addition, we note Appellant’s brief does not contain a Rule 2119(f)
statement. However, where counsel has filed an Anders brief, the failure to
include a Rule 2119(f) statement in the brief does not preclude us from
determining whether the appeal is wholly frivolous. See Commonwealth v.
Zeigler, 112 A.3d 656, 661 (Pa. Super. 2015) (citations omitted). Thus, our
review would not be barred by the lack of a Rule 2119(f) statement.
-5-
J-S26041-22
Even assuming, arguendo, that the issue were not waived,4 we would
find it raises a claim that is without support in the record. “The party who
asserts that a trial judge must be disqualified bears the burden of producing
evidence establishing bias, prejudice, or unfairness necessitating recusal.”
Commonwealth v. Darush, 459 A.2d 727, 731 (Pa. 1983).
A review of the plea and sentencing hearings reveals no indication of
bias, prejudice, or unfairness towards Appellant. Indeed, even after
acknowledging Appellant’s juvenile record—which included a 2018
adjudication of delinquency for attempted rape and an alleged sexual assault
of a staff member at the juvenile placement facility—and noting he committed
the present indecent assault only two months after being released from
supervision, the trial court somewhat surprisingly sentenced Appellant at the
____________________________________________
4In Allied Elec. Supply Co. v. Roberts, 797 A.2d 362 (Pa. Super. 2002),
we observed there is an
exception to the waiver doctrine in cases where the “alleged error
involved the conduct of the Trial Court in overseeing the trial”. . .
. [See] Commonwealth v. Hammer, 494 A.2d 1054 (Pa.
1985); Dimonte v. Neumann Medical Ctr., 751 A.2d 205 (Pa.
Super. 2000). In those cases, the trial judge himself acted
inappropriately during the proceedings; thus an objection would
have required counsel to “directly challenge the authority of the
court by suggesting the judge is deficient in his duties.” DiMonte,
supra at 209.
Allied Elec. Supply Co., 797 A.2d at 365 n.3. Such an exception is clearly
irrelevant here, where there is no indication of improper judicial conduct
during the guilty plea colloquy or the sentencing hearing.
-6-
J-S26041-22
lower end of the guideline standard range. Under the circumstances, pointing
to such a sentence fails to satisfy Appellant’s burden described above.
The third issue raised in the Anders brief asserts that the trial court
erred in denying Appellant’s post-sentence motion to withdraw his guilty plea.
It is well settled that a criminal defendant “has no absolute right to withdraw
a guilty plea; rather, the decision to grant such a motion lies within the sound
discretion of the trial court.” Commonwealth v. Muhammad, 794 A.2d 378,
382 (Pa. Super. 2002) (citation omitted).
We review the denial of a motion to withdraw a guilty plea for an abuse
of discretion. Commonwealth v. Gordy, 73 A.3d 620, 624 (Pa. Super.
2013). “An abuse of discretion is not a mere error in judgment but, rather,
involves bias, ill will, partiality, prejudice, manifest unreasonableness, and/or
misapplication of law.” Id. (citation omitted).
A defendant's burden of proof for withdrawing a guilty plea “differs
depending on whether the defendant seeks to withdraw the plea before or
after sentencing.” Commonwealth v. Hart, 174 A.3d 660, 664 (Pa. Super.
2017). While pre-sentence requests to withdraw guilty pleas are liberally
allowed, “a request to withdraw a guilty plea after sentencing is subject to
higher scrutiny since courts strive to discourage the entry of guilty pleas as
sentence-testing devices.” Commonwealth v. Culsoir, 209 A.3d 433, 437
(Pa. Super. 2019).
-7-
J-S26041-22
There is no dispute that Appellant’s counseled request to withdraw his
plea occurred after sentencing, but there was also an understanding among
the trial court and both counsel at the outset of the sentencing hearing that
Appellant had asserted his innocence to the probation office during a post-
guilty plea, pre-sentencing interview. N.T., 12/20/21, at 6. Because the
Anders brief addresses this pre-sentence assertion without completely
developing the issue for appellate review, we shall address it presently as part
of our independent review of the record.
Appellant had reported the minor admitted in text messages to him that
their encounter was consensual and that she made her accusation against him
only after her parents pressured her to do so. When the trial court
acknowledged at sentencing that Appellant was thus asserting his innocence,
Appellant nodded in agreement. N.T. at 6. Therefore, the trial court was
aware of Appellant’s assertion of innocence and that it relied entirely on the
minor’s claim of consent.
Consent, however, is not a defense to the indecent assault charge
against Appellant. Section 3126(a)(8) requires only proof that a defendant
had indecent contact with the complainant, that the complainant was less than
16 years old, and that the defendant was four or more years older than the
complainant and not married to the complainant. 18 Pa.C.S. § 3126(a)(8) 5;
____________________________________________
5 Subsection (a)(8) of Section 3126, Indecent Assault, provides:
(Footnote Continued Next Page)
-8-
J-S26041-22
Commonwealth v. Castelhun, 889 A.2d 1228, 1233-34 & n.8 (Pa. Super.
2005) (recognizing consent is not a defense to Section 3126(a)(8);
Commonwealth v. Bricker, No. 586 WDA 2021, 2022 unpublished
memorandum, at *4 (Pa. Super. filed Apr. 19, 2022).6
Therefore, Appellant’s assertion was merely that of a mistaken belief
that he possessed a legal defense to the charge; it was not an assertion of
innocence in fact. The facts, as Appellant continually acknowledged without
exception, were that he secreted the girl to the basement of the high school,
where he kissed her, put his hand down her pants, and touched her genitalia.7
____________________________________________
(a) Offense defined.--A person is guilty of indecent assault if
the person has indecent contact with the complainant,
causes the complainant to have indecent contact with the
person or intentionally causes the complainant to come into
contact with seminal fluid, urine or feces for the purpose of
arousing sexual desire in the person or the complainant and:
...
(8) the complainant is less than 16 years of age and the person is
four or more years older than the complainant and the
complainant and the person are not married to each other.
18 Pa.C.S. § 3126(a)(8).
6 See Pa.R.A.P. 126(b) (providing that unpublished non-precedential
memorandum decisions of the Superior Court filed after May 1, 2019 may be
cited for their persuasive value).
7 When asked at the plea hearing if he contested those facts, Appellant
answered, “No.” N.T., 11/08/21, at 4. He then began to repeat the same
facts when he misunderstood the court’s request to offer his own words on
what happened with respect to the disorderly conduct plea, stating, “Yes, Your
(Footnote Continued Next Page)
-9-
J-S26041-22
Appellant never denied committing these acts. As such, Appellant has put
forward no support for his claim of innocence.
Controlling jurisprudence on pre-sentence assertions of innocence
requires an appellant to demonstrate a fair and just reason for withdrawing
his plea. Commonwealth v. Carrasquillo, 115 A.3d 1284, 1292 (Pa. 2015).
On what constitutes such a qualifying reason, we observed:
The Carrasquillo Court, breaking with prior precedent, held that
a bare assertion of innocence is no longer a fair and just reason
permitting a pre-sentence withdrawal of a guilty plea. Instead, “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.” Carrasquillo, 115 A.3d at
1292. Our High Court outlined that the correct 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. In that decision, our Supreme
Court ruled that the defendant had not offered a plausible
innocence claim given that it was rather bizarre—a “devil made
me to it” claim of innocence—and since the innocence claim was
offered just prior to sentencing. Id. See also Commonwealth
v. Hvizda, [116 A.3d 1103 (Pa. 2015)] (companion case
to Carrasquillo).
Commonwealth v. Baez, 169 A.3d 35, 39 (Pa. Super. 2017)
From this record, we discern no abuse of discretion by the trial court in
rejecting Appellant's pre-sentence assertion and commencing with sentencing
on the basis of his plea. Under the terms of Section 3126(a)(8), Appellant’s
____________________________________________
Honor. I – I kissed her. I kissed her and I had my ha…”, until defense counsel
stopped him and redirected him to describe the disorderly conduct. N.T. at 4.
When asked if he entered his plea knowingly, voluntarily, and of his own free
will, he replied, “yes.” N.T. at 6.
- 10 -
J-S26041-22
proffer of consent evidence would not demonstrate his innocence, and his
statements made during not only the written and oral plea colloquies but also
the sentencing hearing admitted to the accusations against him. Therefore,
without a plausible claim of innocence, a fair and just reason for withdrawing
Appellant’s plea was lacking. See Carrasquillo, 115 A.3d at 1292.
To the extent the Anders brief argues that the trial court erroneously
rejected the identical issue raised in his counseled post-sentence motion, it
affords Appellant no relief. To prevail on a post-sentence request to withdraw
a plea, “[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.” Commonwealth v. Kehr, 180 A.3d 754, 756-
57 (Pa. Super. 2018) (internal quotation marks omitted). The determination
as to whether a guilty plea was involuntary is made by examining the totality
of the circumstances surrounding the plea, including whether the trial court
elicited the following information:
(1) Does the Appellant understand the nature of the charges to
which he or she is pleading guilty or nolo contendere?
(2) Is there a factual basis for the plea?
(3) Does the Appellant understand that he or she has the right to
trial by jury?
(4) Does the appellant understand that he or she is presumed
innocent until found guilty?
(5) Is the Appellant aware of the permissible range of sentences
and/or fines for the offenses charged?
- 11 -
J-S26041-22
(6) Is the Appellant aware that the judge is not bound by the
terms of any plea agreement tendered unless the judge accepts
such agreement?
See Commonwealth v. Yeomans, 24 A.3d 1044, 1047 (Pa. Super.
2011); see also Pa.R.Crim.P. 590 (setting forth criteria necessary for a party
to enter a plea or plea agreement).
A review of the transcript from the guilty-plea hearing makes clear that
the trial court followed its mandate, made all relevant inquiries, and Appellant
responded in the affirmative appropriately. N.T., 11/8/21, at 2-8. Further,
“[a] person who elects to plead guilty is bound by the statements 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). Moreover, we note that an assertion of innocence is not sufficient to
demonstrate the manifest injustice required for the post-sentence withdrawal
of a guilty plea. Commonwealth v. Kpou, 153 A.3d 1020, 1024 (Pa. Super.
2016).
In the instant case, therefore, the totality of the circumstances supports
the conclusion that Appellant knowingly, voluntarily, and intelligently entered
into the guilty plea. Thus, Appellant cannot show he suffered prejudice on the
order of manifest injustice required for the withdrawal of a plea after he was
sentenced.
- 12 -
J-S26041-22
Finally, we have conducted an independent review of the record in order
to determine if there are any additional, non-frivolous issues overlooked by
counsel. Commonwealth v. Yorgey, 188 A.3d1190, at 1198-1199 (Pa.
Super. 2018) (en banc). Following our review, we conclude that there are no
additional issues of merit and an appeal in this matter is frivolous.
Petition to withdraw as counsel granted. Judgment of sentence
affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/23/2022
- 13 -