Com. v. Dolph, W.

J-S30041-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
WILLIAM ROBERT DOLPH :
:
Appellant : No. 551 EDA 2022
Appeal from the Judgment of Sentence Entered January 6, 2022
In the Court of Common Pleas of Wayne County Criminal Division at
No(s): CP-64-CR-0000041-2021
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
WILLIAM ROBERT DOLPH :
:
Appellant : No. 552 EDA 2022
Appeal from the Judgment of Sentence Entered January 6, 2022
In the Court of Common Pleas of Wayne County Criminal Division at
No(s): CP-64-CR-0000158-2021
BEFORE: STABILE, J., McCAFFERY, J., and PELLEGRINI, J.*
MEMORANDUM BY PELLEGRINI, J.: FILED JANUARY 31, 2023
William Robert Dolph (Dolph) appeals1 from the January 6, 2022
judgment of sentence imposed by the Court of Common Pleas of Wayne
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1 We have consolidated the appeals sua sponte. See Pa. R.A.P. 513.
J-S30041-22
County (trial court) following his guilty pleas to driving under suspension, two
counts of possession of a controlled substance and possession of drug
paraphernalia.2 Dolph’s counsel has filed a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), and Commonwealth v. Santiago, 978
A.2d 349 (Pa. 2009), and a petition for leave to withdraw. We grant the
petition and affirm.
I.
We glean the following facts from the certified record. In August 2020,
police responded to a report of a suspicious vehicle and located a car stuck on
an embankment.3 Dolph was sleeping behind the wheel and officers recovered
crystal methamphetamine and two loaded syringes from his person. Dolph’s
driver’s license was suspended at the time as a result of a conviction for
driving under the influence (DUI). In March 2021, law enforcement responded
to a call for a welfare check and spoke with Dolph.4 He admitted to possessing
methamphetamine and officers recovered 6 grams of the narcotic and several
syringes from him.
One June 24, 2021, Dolph entered negotiated guilty pleas in both cases.
At Case 41-2021, Dolph pled guilty to driving under suspension, possession
____________________________________________
2 75 Pa.C.S. § 1543(b)(1)(i); 35 P.S. §§ 780-113(a)(16), (32).
3 Case 41-2021.
4 Case 158-2021.
-2-
J-S30041-22
of a controlled substance and possession of drug paraphernalia.5 At Case 158-
2021, Dolph pled guilty to possession of a controlled substance. 6 Prior to
pleading guilty, Dolph completed a written plea colloquy that explained his
trial and appellate rights in detail. At the hearing, Dolph admitted to the facts
of each case as described supra. The Commonwealth asked him whether he
understood the rights he was waiving by pleading guilty, his right to proceed
to trial, and the Commonwealth’s burden of proving him guilty beyond a
reasonable doubt. Dolph testified that he understood those rights. The
Commonwealth then asked whether he had been threatened or forced into
entering the pleas and Dolph said he had not. The Commonwealth reviewed
the maximum penalties for each charge and asked Dolph whether he
understood that he could be sentenced to a minimum of 7.5 years of
incarceration. He responded that he did. Finally, Dolph testified that he did
not have further questions. The trial court accepted the pleas and deferred
sentencing for the preparation of a presentence investigation report (PSI).
Prior to sentencing, Dolph filed a motion to withdraw his pleas in both
cases. He asserted that he would provide evidence of his innocence through
____________________________________________
5 The Commonwealth withdrew charges of altered, forged or counterfeit
documents and plates and required financial responsibility. 75 Pa.C.S.
§§ 7122(3) & 1786(f).
6The Commonwealth withdrew one count of possession of drug paraphernalia.
35 P.S. §§ 780-113(a)(32).
-3-
J-S30041-22
his own testimony if allowed to proceed to trial. He also contended that the
recommended sentence was higher than he had anticipated and that he did
not understand that he could receive a sentence of 36 to 72 months’
incarceration when he entered his pleas.
The trial court held a hearing on the motion prior to sentencing. Dolph
testified that counsel told him prior to the plea hearing that he could be
sentenced to a minimum of between six and 16 months of incarceration.
Based on his prior record score (PRS) as a repeat felon (RFEL), his sentencing
recommendation was 18 to 36 months of incarceration on each case. He
testified that he would agree with that recommendation if the sentences were
concurrent but the Commonwealth was requesting consecutive sentences.
Finally, he said that he had not received discovery in Case 158-2021 until after
he entered his plea, at which point he learned that some of the evidence
recovered during his arrest was not logged into evidence.
On cross-examination, he admitted that he had 19 prior criminal
convictions and was familiar with the criminal justice process. He
acknowledged that he had executed a guilty plea colloquy that listed the
maximum sentences prior to entering his pleas. He said he was told that he
would not receive the maximum sentences and that he wanted to withdraw
his pleas because the sentencing recommendation was so high. He agreed
that he knew when he entered the pleas that the trial court had the authority
to combine multiple sentences.
-4-
J-S30041-22
Regarding the missing evidence in Case 158-2021, the Commonwealth
asked Dolph if he was acknowledging that he had possessed the narcotics in
that instance. Dolph replied, “Oh yeah I had a lot of drugs but that’s what I’m
saying half of them came up missing, where did the other half of them go that
they caught me with?” Notes of Testimony, 1/6/22, at 9. He continued,
“[t]hey didn’t turn them all in. . . . So they either took it and sold it or smoked
it or whatever they wanted to do with it but half of it, more than half of it,
came up missing. It didn’t get all turned in.” Id. at 9-10.
The trial court denied the motion and the parties proceeded immediately
to sentencing. The Commonwealth requested the recommended sentence of
18 to 36 months’ incarceration in each case, imposed consecutively, based on
Dolph’s lengthy criminal history and addiction. Dolph argued that he was 55
years old and had struggled with drug and alcohol addiction for many years,
with many of his prior convictions being drug-related. He also contended that
he had numerous health conditions that were also detailed in the PSI. He
requested that the trial court impose the recommended sentences
concurrently rather than consecutively.
In his allocution, Dolph acknowledged that he had struggled with
addiction but contended that he had “never been given a chance for, to help
[himself] with the drugs.” Id. at 14. He stated that programs in jail had not
helped him and requested leniency because he had pled guilty in the cases.
-5-
J-S30041-22
The trial court stated that it had reviewed the PSI which detailed Dolph’s
criminal history of 19 convictions spanning 36 years. His work history was
sporadic but he was certified as a mechanic and was currently disabled. The
PSI indicated that Dolph had participated in drug treatment while incarcerated
and the trial court concluded that he had shown a willingness to seek help for
his addictions. It stated that he would be eligible for the State Drug Treatment
Program while incarcerated. However, the trial court concluded that
consecutive sentences were appropriate because Dolph had pled guilty in two
separate cases.
In Case 41-2021, the trial court sentenced him to 18 to 36 months’
incarceration for possession of a controlled substance and six to 12 months’
incarceration each for driving under suspension and possession of drug
paraphernalia. The three sentences were imposed concurrently. In Case 158-
2021, the trial court sentenced him to 18 to 36 months’ incarceration for
possession of a controlled substance, consecutive to the sentence in Case 41-
2021. The aggregate sentence was 36 to 72 months of incarceration.
Dolph filed a timely post-sentence motion requesting that his sentences
be modified to be imposed concurrently.7 He cited his age and health issues
____________________________________________
7 The tenth day after Dolph’s sentencing was Sunday, January 16, 2022. The
following Monday was Martin Luther King, Jr. Day, a legal holiday. Dolph
timely filed his motion on January 18, 2022. See 1 Pa.C.S. § 1908 (excluding
Sundays and legal holidays from computations of time).
-6-
J-S30041-22
that had been outlined in the PSI, including colon cancer, heart issues,
glaucoma, diabetes, high blood pressure and high cholesterol. He also pointed
out that he was already serving a minimum sentence of three years of
incarceration for a different case in Lackawanna County.
He also moved to withdraw his guilty pleas. He contended that his pleas
were not knowingly, voluntarily or intelligently entered because he had not
received discovery in Case 158-2021 until early July 2021 after he had already
entered his pleas. He attached a copy of counsel’s receipt for discovery
confirming that he had received the materials on July 1, 2021, but did not
make any specific argument about how the content of the discovery would
have altered his decision to plead guilty.
The trial court denied the motion without a hearing and found that the
presentence motion to withdraw the pleas had addressed the same issue.
Dolph timely appealed and counsel ultimately filed a statement of intent to file
an Anders brief pursuant to Pa. R.A.P. 1925(c)(4). After our prior remand,
counsel has completed the certified record and filed an amended Anders brief
and petition to withdraw.
II.
“When presented with an Anders brief, this Court may not review the
merits of the underlying issues without first passing on the request to
withdraw.” Commonwealth v. Martuscelli, 54 A.3d 940, 947 (Pa. Super.
2013). Procedurally, counsel must: (1) petition the court for leave to
-7-
J-S30041-22
withdraw stating that, after making a conscientious examination of the record,
counsel has determined that the appeal would be frivolous; (2) furnish a copy
of the brief to the defendant; and (3) advise the defendant that he or she has
the right to retain private counsel or raise additional arguments that the
defendant deems worthy of the court’s attention. See Commonwealth v.
Cartrette, 83 A.3d 1030, 1032 (Pa. Super. 2013). Substantial compliance
with these requirements is sufficient to permit withdrawal. Commonwealth
v. Reid, 117 A.3d 777, 781 (Pa. Super. 2015).
Counsel has substantially complied with these procedural mandates.
Counsel’s brief avers that he reviewed the entire record and concluded that
the instant appeal is frivolous. He served a copy of the brief and petition to
withdraw on Dolph and attached a copy of the letter he sent to Dolph to his
petition to withdraw. See Commonwealth v. Woods, 939 A.2d 896, 900
(Pa. Super. 2007) (noting that counsel must attach to their withdrawal petition
a copy of the letter sent to the client). The letter informed Dolph that he has
the right to hire private counsel or file a pro se brief. Dolph has filed a pro se
response to counsel’s brief, which we address infra.
We now examine the substantive elements of the Anders brief. The
brief accompanying the petition to withdraw 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
-8-
J-S30041-22
counsel’s reasons for concluding that the appeal is frivolous. See Santiago,
supra, at 361. Counsel’s Anders brief summarizes the factual and procedural
history, identifies two potential issues, and outlines the legal and factual
analysis that led counsel to conclude that any appeal would be frivolous.
Because counsel has complied with the procedural and substantive
requirements of Anders, we now “make a full examination of the proceedings
and make an independent judgment to decide whether the appeal is in fact
wholly frivolous.” Santiago, supra, at 355 n.5.
III.
A.
First, counsel addresses the trial court’s denial of Dolph’s pre- and post-
sentence motions to withdraw his guilty pleas.8 Dolph presented substantially
the same arguments in his pre- and post-sentence motions: he contended
that the evidence in Case 158-2021 was not properly logged into evidence
and provided to him in discovery prior to his plea and that he did not
understand the length of the sentence he could receive.
A presentence motion to withdraw a guilty plea must be granted if the
defendant offers a fair and just reason to do so and permitting the withdrawal
will not cause substantial prejudice to the Commonwealth. Commonwealth
____________________________________________
8 We review the denial of a motion to withdraw a guilty plea for an abuse of
discretion. Commonwealth v. Hart, 174 A.3d 660, 664 (Pa. Super. 2017).
-9-
J-S30041-22
v. Carrasquillo, 115 A.3d 1284, 1292 (Pa. 2015). Requests to withdraw a
plea prior to sentencing should be liberally allowed. See Commonwealth v.
Norton, 201 A.3d 112, 116 (Pa. 2019). When considering such a request,
the trial court must determine whether the defendant has made “some
colorable demonstration, under the circumstances, such that permitting
withdrawal of the plea would promote fairness and justice.” Id. (quoting
Carasquillo, supra, at 1292).
In contrast, a post-sentence motion to withdraw a guilty plea must
demonstrate a “manifest injustice.” Commonwealth v. Kerr, 180 A.3d 754,
756-57 (Pa. Super. 2018) (quoting Commonwealth v. Broaden, 980 A.3d
124, 129 (Pa. Super. 2009)). The trial court must examine the totality of the
circumstances in assessing such a claim. Id. at 757. “Manifest injustice may
be established if the plea was not tendered knowingly, intelligently, and
voluntarily.” Id. In addition, we have repeatedly stated that these motions
are “subject to higher scrutiny since courts strive to discourage entry of guilty
pleas as sentencing-testing devices.” Id. at 756 (quoting Broaden, supra).
The trial court did not abuse its discretion in denying either of Dolph’s
motions. Regarding the discovery in Case 158-2021, he did not articulate a
fair and just reason for withdrawal of his plea prior to sentencing or a manifest
injustice to support post-sentence withdrawal. Dolph merely alleged that he
received discovery late and that there was a discrepancy in the amount of
methamphetamine seized and logged into evidence. As the Commonwealth
- 10 -
J-S30041-22
pointed out, Dolph’s arguments only corroborated his admission to his
possession of the substance, which was the sole charge to which he pled guilty
in that case.
Moreover, our review of the written colloquy form and the guilty plea
hearing reveals that it complied in all respects with our Rules of Criminal
Procedure, and Dolph was fully informed of his rights and the maximum
possible sentences before entering his plea. See Pa.R.Crim.P. 590, cmt.
Under these circumstances, his surprise at the length of the recommended
guideline sentences is insufficient to support withdrawal of the pleas. See
Kerr, supra. There is simply no support in the record for an argument that
Dolph entered his plea unknowingly, unintelligently or involuntarily.
Dolph did not articulate any fair and just reason to allow withdrawal of
his pleas prior to sentencing, nor did he establish a manifest injustice to
support withdrawal after sentencing. Carrasquillo, supra; Kerr, supra.
Accordingly, we agree with counsel that these issues are frivolous.
B.
Next, we consider whether the trial court abused its discretion in
denying Dolph’s post-sentence motion for reconsideration of his sentences.9
____________________________________________
9
Our standard of review is well-settled:
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. In this context, an abuse
(Footnote Continued Next Page)
- 11 -
J-S30041-22
“The right to appellate review of the discretionary aspects of a sentence is not
absolute, and must be considered a petition for permission to appeal.”
Commonwealth v. Conte, 198 A.3d 1169, 1173 (Pa. Super. 2018) (citation
omitted). An appellant must preserve his claims at the time of sentencing or
in a post-sentence motion, file a timely notice of appeal, include a statement
of reasons for allowance of appeal pursuant to Pa. R.A.P. 2119(f) in his brief,
and raise a substantial question for review. Id. Here, Dolph filed a timely
post-sentence motion and notice of appeal. Counsel has included a statement
pursuant to Pa. R.A.P. 2119(f) in his brief in which he concluded that Dolph
could not raise a substantial question regarding the appropriateness of the
sentences. We agree.
“A substantial question exists only when the appellant advances a
colorable argument that the sentencing judge’s actions were either: (1)
inconsistent with a specific provision of the Sentencing Code; or (2) contrary
to the fundamental norms which underlie the sentencing process.”
Commonwealth v. Clarke, 70 A.3d 1281, 1286–87 (Pa. Super. 2013)
____________________________________________
of discretion is not shown merely by an error in judgment. 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.
Commonwealth v. Wallace, 244 A.3d 1261, 1278–79 (Pa. Super. 2021)
(citation omitted).
- 12 -
J-S30041-22
(citation omitted). Here, Dolph’s post-sentence motion requested that the
trial court modify the sentences in his two cases to run concurrently because
he was in ill health and 55 years old at the time of sentencing.
A challenge to the consecutive imposition of sentences does not raise a
substantial question except in “the most extreme circumstances, such as
where the aggregate sentence is unduly harsh, considering the nature of the
crimes and the length of imprisonment.” Commonwealth v. Swope, 123
A.3d 333, 338 (Pa. Super. 2015) (citation omitted). Here, the sentences
imposed on each count fell within the standard range of the sentencing
guidelines. Additionally, the trial court imposed the sentences for the three
counts in Case 41-2021 concurrently to each other, while the sentences in
Case 158-2021 was consecutive to those sentences. Under these
circumstances, we cannot conclude that this case presents one of the “most
extreme circumstances” in which “the aggregate sentence is unduly harsh.”
Id. Because Dolph has not presented or preserved a substantial question
regarding the appropriateness of his sentence, any challenge to the
discretionary aspects of his sentences is wholly frivolous.10
____________________________________________
10 Additionally, the trial court imposed a sentence within the standard range
of the sentencing guidelines after hearing Dolph’s allocution and considering
a PSI. It explained its consideration of his history of addiction and prior
convictions before imposing the sentence. It further ensured that Dolph would
be eligible for the state drug treatment program during his incarceration.
Under these circumstances, we discern no abuse of discretion. See
Commonwealth v. Hill, 210 A.3d 1104, 1117 (Pa. Super. 2019) (noting that
(Footnote Continued Next Page)
- 13 -
J-S30041-22
C.
Next, we address Dolph’s pro se response to counsel’s brief, where he
identifies six issues that should entitle him to relief. Many of the issues Dolph
raises relate to his counsel’s performance in the trial court and on appeal. He
contends that his attorney lied to him about the sentences he would receive
after pleading guilty, that he should not have been represented by the Public
Defender’s Office after he had filed grievances with the Disciplinary Board
years ago in a prior case, and that evidence was missing in Case 158-2021
and counsel should have raised a challenge to the missing evidence based on
misconduct by the Pennsylvania State Police. Because these claims are all
based on ineffective assistance of counsel, they must be brought in a petition
pursuant to the PCRA and are not cognizable on direct appeal. See
Commonwealth v. Holmes, 79 A.3d 562, 576 (Pa. 2013) (holding that
ineffective assistance of counsel claims should generally be deferred to
collateral review).
Next, Dolph claims that the trial court was biased against him and could
not sentence him impartially because the jurist uses illegal narcotics. There
is no basis for this claim in the record and, nevertheless, Dolph did not
____________________________________________
a standard-range sentence imposed after consideration of a PSI, without
more, cannot be considered excessive or unreasonable).
- 14 -
J-S30041-22
preserve this issue by filing a motion for recusal in the trial court. As a result,
it is waived. See Pa. R.A.P. 302(a).
Finally, Dolph claims that he received an illegal sentence because he
was not granted credit for the ten months he spent in pretrial incarceration
related to these cases.11 The trial court granted Dolph time credit for May 8,
2021 through May 10, 2021, in Case 41-2021 after he was arrested on a bench
warrant for failure to appear. After his arrest, he remained incarcerated
throughout the pendency of the proceedings.
However, our review of his criminal case docket for Case 1389-2020 in
Lackawanna County reveals that Dolph was sentenced to 3 to 6 years’
incarceration, to be followed by 3 years of probation, on May 11, 2021, and
he began serving his sentence that day. It is well-established that defendants
are not entitled to duplicative time credit under multiple sentences. See
Commonwealth v. Davis, 852 A.2d 392, 400 (Pa. Super. 2004). Because
Dolph received credit for the time spent incarcerated from May 11, 2011
onward on his case in Lackawanna County, he is not entitled to credit in the
instant cases. No relief is due.
____________________________________________
11“A claim asserting that the trial court failed to award credit for time served
implicates the legality of the sentence. Issues relating to the legality of a
sentence are questions of law. Our standard of review over such questions is
de novo and the scope of review is plenary.” Commonwealth v. Gibbs, 181
A.3d 1165, 1166 (Pa. Super. 2018) (citations omitted).
- 15 -
J-S30041-22
Finally, after independently reviewing the record, we conclude that there
are no additional non-frivolous issues that may support the appeal. See
Commonwealth v. Yorgey, 188 A.3d 1190, 1197 (Pa. Super. 2018) (en
banc) (holding that the Anders procedure requires this Court to first review
the issues raised by counsel and then review the entire record “to ascertain if
on its face, there are non-frivolous issues that counsel, intentionally or not,
missed or misstated”).
Petition to withdraw granted. Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/31/2023
- 16 -