Com. v. Wilcox, H.

J-A07043-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
HEATH PATRICK WILCOX :
:
Appellant : No. 1974 EDA 2021
Appeal from the Judgment of Sentence Entered August 26, 2021
In the Court of Common Pleas of Wayne County
Criminal Division at No(s): CP-64-CR-0000107-2020
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
HEATH PATRICK WILCOX :
:
Appellant : No. 1975 EDA 2021
Appeal from the Judgment of Sentence Entered August 26, 2021
In the Court of Common Pleas of Wayne County
Criminal Division at No(s): CP-64-CR-0000108-2020
BEFORE: DUBOW, J., McLAUGHLIN, J., and KING, J.
MEMORANDUM BY KING, J.: FILED JULY 22, 2022
Appellant, Heath Patrick Wilcox, appeals from the judgment of sentence
entered in the Wayne County Court of Common Pleas, following his open guilty
plea to criminal trespass—entering building or occupied structure, and criminal
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trespass—defiant trespasser.1 We affirm and grant counsel’s petition to
withdraw.
The trial court set forth the relevant facts and procedural history of this
case as follows:
On May 11, 2020, [Appellant] was charged with Burglary –
No Overnight Accommodations, Person Present, and
Criminal Trespass; the crimes occurred on April 8, 2020.
These charges were listed under Information 108-2020.
Additional charges were filed by the Prosecution for Burglary
– No Overnight Accommodations, and Criminal Trespass –
Enter Structure; crimes that occurred on April 23, 2020.
These charges were listed under Information 107-2020. On
July 8, 2021, an Amended Information was filed to 107-
2020 adding a charge for Defiant Trespass – Enter
Structure.
On July 8, 2021, [Appellant] signed a written guilty plea to
the charges of Defiant Trespass Posted and Criminal
Trespass – Enter Structure; listed under case No.’s 107-
2020 and 108-2020 respectively. The [c]ourt swore in
[Appellant] at his Guilty Plea Colloquy and questioned him
about his understanding of the plea and satisfaction with his
counsel. [Appellant] responded affirmatively that he
understood the gravity of the potential punishment attached
to his plea and the facts of the case as read to him were
substantially correct. The signed Guilty Plea Colloquy is
absent any mention of an in-patient rehabilitation option for
[Appellant]. On this same day, the [c]ourt ordered a Pre-
Sentence Investigation Report on [Appellant].
… On August 18, 2021, [Appellant] filed a Motion to
Continue and Motion to Withdraw Guilty Pleas. [Appellant]
claimed he was under the belief that the Sentencing Judge
agreed that he would be allowed to attend rehabilitation
prior to sentencing, which he was not allowed to do. There
is, however, a drug and alcohol treatment program in the
State Prison that the Sentencing Judge urged [Appellant] to
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1 18 Pa.C.S.A. § 3503(a)(1) and (b)(1).
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participate in. [The court denied Appellant’s motion to
withdraw and sentenced him on August 26, 2021 to an
aggregate term of 15 to 60 months’ imprisonment].
(Trial Court Opinion, 11/9/21, at 1-2).
Appellant timely filed separate notices of appeal at each underlying
docket on September 24, 2021.2 On October 7, 2021, the court ordered
Appellant to file a concise statement of errors complained of on appeal
pursuant to Pa.R.A.P. 1925(b). Appellant complied on October 28, 2021.
Preliminarily, appellate counsel seeks to withdraw representation
pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d
493 (1967) and Commonwealth v. Santiago, 602 Pa. 159, 978 A.2d 349(2009). Anders and Santiago require counsel to: 1) petition the Court for
leave to withdraw, certifying that after a thorough review of the record,
counsel has concluded the issues to be raised are wholly frivolous; 2) file a
brief referring to anything in the record that might arguably support the
appeal; and 3) furnish a copy of the brief to the appellant and advise him of
his right to obtain new counsel or file a pro se brief to raise any additional
points the appellant deems worthy of review. Santiago, supra at 173-79,
978 A.2d at 358-61. Substantial compliance with these requirements is
sufficient. Commonwealth v. Wrecks, 934 A.2d 1287, 1290 (Pa.Super.
2007).
____________________________________________
2 This Court subsequently consolidated the appeals sua sponte.
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In Santiago, supra, our Supreme Court addressed the briefing
requirements where court-appointed appellate counsel seeks to withdraw:
Neither Anders nor McClendon3 requires that counsel’s
brief provide an argument of any sort, let alone the type of
argument that counsel develops in a merits brief. To repeat,
what the brief must provide under Anders are references
to anything in the record that might arguably support the
appeal.
* * *
Under Anders, the right to counsel is vindicated by
counsel’s examination and assessment of the record and
counsel’s references to anything in the record that arguably
supports the appeal.
Santiago, supra at 176, 177, 978 A.2d at 359, 360. Thus, the Court held:
[I]n the Anders brief that accompanies court-appointed
counsel’s petition to withdraw, counsel 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.
Id. at 178-79, 978 A.2d at 361. After confirming that counsel has met the
antecedent requirements to withdraw, this Court makes an independent
review of the record to confirm that the appeal is wholly frivolous.
Commonwealth v. Palm, 903 A.2d 1244, 1246 (Pa.Super. 2006). See also
Commonwealth v. Dempster, 187 A.3d 266 (Pa.Super. 2018) (en banc).
____________________________________________
3 Commonwealth v. McClendon, 495 Pa. 467, 434 A.2d 1185 (1981).
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Instantly, appellate counsel has filed a petition to withdraw. The petition
states that counsel reviewed the trial court record and determined that the
appeal is frivolous. Counsel also served a copy of the petition to Appellant,
along with a letter advising him of his right to file a response to counsel’s
petition as either a pro se litigant, or through new counsel. Further, counsel
filed an Anders brief which explains the facts and procedural history of the
case and discusses the relevant law. Counsel’s brief also cites to the record
and explains counsel’s conclusion that the appeal is wholly frivolous.
Therefore, counsel has substantially complied with the requirements set forth
in Anders and Santiago.
Counsel raises the following issue on Appellant’s behalf:4
Is Appellant’s appeal, challenging the trial court’s denial of
his motion to withdraw his guilty pleas based on his
mistaken belief that [the] sentencing judge agreed to let
him go to inpatient rehabilitation if he pled guilty and the
trial court’s sentence in the aggravated range,…wholly
frivolous and without arguable merit within the meaning of
[Anders]?
(Anders Brief at 4).
Appellant argues the court abused its sentencing discretion by imposing
a sentence in the aggravated range. Appellant further stresses that he was
under the impression “that [the] sentencing judge agreed to let him go to
inpatient rehabilitation if he pled guilty.” (Id. at 9) (emphasis in original).
____________________________________________
4 Appellant has not responded to the Anders brief pro se or with newly-
retained counsel.
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Appellant contends that the court should have let Appellant withdraw his guilty
plea when Appellant realized that he misunderstood the nature of his plea
deal. Appellant concludes the court erred by failing to grant his motion to
withdraw his guilty plea and by imposing an aggravated-range sentence, and
this Court must grant relief. We disagree.
Initially, a challenge to the discretionary aspects of sentencing is not
automatically reviewable as a matter of right. Commonwealth v. Hunter,
768 A.2d 1136 (Pa.Super. 2001), appeal denied, 568 Pa. 695, 796 A.2d 979(2001). Prior to reaching the merits of a discretionary sentencing issue:
We conduct a four part analysis to determine: (1) whether
appellant has filed a timely notice of appeal, see Pa.R.A.P.
902 and 903; (2) whether the issue was properly preserved
at sentencing or in a motion to reconsider and modify
sentence, see [Pa.R.Crim.P. 720]; (3) whether appellant’s
brief has a fatal defect, Pa.R.A.P. 2119(f); and (4) whether
there is a substantial question that the sentence appealed
from is not appropriate under the Sentencing Code, 42
Pa.C.S.A. § 9781(b).
Commonwealth v. Evans, 901 A.2d 528, 533 (Pa.Super. 2006), appeal
denied, 589 Pa. 727, 909 A.2d 303 (2006) (internal citations omitted).
Significantly, objections to the discretionary aspects of a sentence are
waived if they are not raised at the sentencing hearing or in a timely filed
post-sentence motion. Commonwealth v. Griffin, 65 A.3d 932 (Pa.Super.
2013), appeal denied, 621 Pa. 682, 76 A.3d 538 (2013). “This failure cannot
be cured by submitting the challenge in a Rule 1925(b) statement.”
Commonwealth v. McAfee, 849 A.2d 270, 275 (Pa.Super. 2004), appeal
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denied, 580 Pa. 695, 860 A.2d 122 (2004).
Instantly, Appellant did not file a post-sentence motion or object to the
court’s sentencing discretion on the record at the sentencing hearing. Instead,
Appellant raised his sentencing challenge for the first time in his concise
statement. Thus, Appellant did not properly preserve his sentencing claim on
appeal and the issue is waived. See Griffin, supra; McAfee, supra.
Even if Appellant had preserved his sentencing claim on appeal, this
Court will not disturb the judgment of the sentencing court absent an abuse
of discretion. Commonwealth v. Fullin, 892 A.2d 843 (Pa.Super. 2006).
[A]n abuse of discretion is more than a mere error of
judgment; thus, a sentencing court will not have abused its
discretion unless the record discloses that the judgment
exercised was manifestly unreasonable, or the result of
partiality, prejudice, bias or ill-will. In more expansive
terms, …: An abuse of discretion may not be found merely
because an appellate court might have reached a different
conclusion, but requires a result of manifest
unreasonableness, or partiality, prejudice, bias, or ill-will, or
such lack of support so as to be clearly erroneous.
The rationale behind such broad discretion and the
concomitantly deferential standard of appellate review is
that the sentencing court is in the best position to determine
the proper penalty for a particular offense based upon an
evaluation of the individual circumstances before it. Simply
stated, the sentencing court sentences flesh-and-blood
defendants and the nuances of sentencing decisions are
difficult to gauge from the cold transcript used upon
appellate review. Moreover, the sentencing court enjoys an
institutional advantage to appellate review, bringing to its
decisions an expertise, experience, and judgment that
should not be lightly disturbed. Even with the advent of the
sentencing guidelines, the power of sentencing is a function
to be performed by the sentencing court. Thus, rather than
cabin the exercise of a sentencing court’s discretion, the
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guidelines merely inform the sentencing decision.
Commonwealth v. Walls, 592 Pa. 557, 564-65, 926 A.2d 957, 961-62
(2007) (internal quotation marks, footnotes, and citations omitted).
Pursuant to Section 9721(b), “the court shall follow the general principle
that the sentence imposed should call for confinement that is consistent with
the protection of the public, the gravity of the offense as it relates to the
impact on the life of the victim and on the community, and the rehabilitative
needs of the defendant.” 42 Pa.C.S.A. § 9721(b). See also Commonwealth
v. Fowler, 893 A.2d 758 (Pa.Super. 2006) (stating where court had benefit
of pre-sentence investigation report, we can presume it was aware of relevant
information regarding defendant’s character and weighed those
considerations along with mitigating statutory factors).
Instantly, the trial court explained the rationale behind sentencing
Appellant in the aggravated range as follows:
[The trial court] reviewed the Pre-Sentence Report prepared
for [it] by the Probation Office. [Appellant is] thirty-eight
years old, [he has] four prior crimes dating back
approximately ten years, clearly addiction issues whether it
be [h]eroin, [p]ot…[.] [T]he aggravated sentence
recommended to [the court] is not because [Appellant is]
an addict[,] it’s because of continued criminal activity. Had
[Appellant] gotten treatment and followed through in
recovery and not had a new criminal charge that might be a
different story[,] but [Appellant did] have a current charge
pending…similar to prior charges involving trespass.
(N.T. Sentencing Hearing, 8/26/21, at 21-22).
The sentencing judge also highlighted that Appellant’s crime impacted
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the victim and caused her to become paranoid and hypervigilant. (Id. at 22).
The record shows the trial court properly explained the factors it relied on
when imposing an aggravated range sentence. See 42 Pa.C.S.A. § 9721(b).
Moreover, the court had the benefit of a pre-sentence investigation report, so
the court was aware of all relevant and mitigating factors. See Fowler,
supra. Thus, even if Appellant had preserved his sentencing challenge, it
would not merit relief. See Fullin, supra. See also Walls, supra.With respect to Appellant’s challenge to the court’s denial of his motion
to withdraw his guilty plea, this Court reviews the denial of a pre-sentence
motion to withdraw a guilty plea for an abuse of discretion. Commonwealth
v. Gordy, 73 A.3d 620 (Pa.Super. 2013). See also Pa.R.Crim.P. 591(A)
(stating: “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”). “[T]he proper 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.” Commonwealth v. Carrasquillo, 631 Pa. 692, 706,
115 A.3d 1284, 1292 (2015). Moreover, while Pennsylvania law embraces a
liberal policy with respect to granting motions to withdraw a guilty plea,
[T]rial courts have the discretion to assess the plausibility
of claims of innocence. Consistent with the well-established
standards governing trial court discretion, it is important
that appellate courts honor trial courts’ discretion in these
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matters, as trial courts are in the unique position to assess
the credibility of claims of innocence and measure, under
the circumstances, whether defendants have made sincere
and colorable claims that permitting withdrawal of their
pleas would promote fairness and justice.
Commonwealth v. Norton, 650 Pa. 569, 584-85, 201 A.3d 112, 121 (2019).
Further, a guilty plea will be deemed valid if an examination of the
totality of the circumstances surrounding the plea shows that the defendant
had a full understanding of the nature and consequences of his plea such that
he knowingly and intelligently entered the plea of his own accord.
Commonwealth v. Rush, 909 A.2d 805, 808 (Pa.Super. 2006).
Pennsylvania law presumes a defendant who entered a guilty plea was aware
of what he was doing and the defendant bears the burden of proving
otherwise. Commonwealth v. Pollard, 832 A.2d 517, 522-23 (Pa.Super.
2003).
Instantly, on July 8, 2021, Appellant executed a written guilty plea
colloquy. In the written colloquy, Appellant acknowledged that he knew a
judge would determine his sentence, and that he had not made an agreement
with the Commonwealth regarding a specific sentence. (See Written Plea
Colloquy, 7/8/21). Additionally, Appellant engaged in an oral colloquy with
the court. During the oral colloquy,
[Appellant] was read the nature of the charges against him
including the facts as presented by the prosecution, which
[Appellant] affirmatively responded were accurate. Later
during the colloquy, [Appellant] was informed of his right to
a trial by jury where he would be tried with a presumption
of innocence and was notified of the potential range of
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sentences. Additionally, [Appellant] openly stated at the
colloquy and agreed that the only promise that was made
to him was that the Prosecution would offer [Appellant] a
plea offer to a paraphernalia charge in a pending case.
(Trial Court Opinion at 4) (internal citations omitted). Importantly, nothing in
the written guilty plea colloquy or on the record during the oral colloquy
reflected that Appellant attending in-patient rehabilitation was part of the plea
deal.
Prior to sentencing, the court considered Appellant’s motion to withdraw
his guilty plea. Appellant’s chief complaint was that he thought the court was
going to let him attend in-patient rehabilitation as part of the plea deal, but
the record belied that claim. Appellant then tried to assert his innocence, but
the court decided Appellant was making a bald assertion of innocence without
offering a credible defense to the charges. (See N.T. Sentencing Hearing,
8/26/21, at 18). Thus, the court concluded that it would not promote fairness
or justice to allow Appellant to withdraw the guilty plea and denied the motion.
(See id.).
The record supports the trial court’s decision to deny Appellant’s motion
to withdraw his plea. Under the totality of these circumstances, Appellant
entered a knowing, voluntary, and intelligent guilty plea. See Rush, supra;Pollard, supra. Further, Appellant offered only a bare assertion of innocence,
which failed to prove that “permitting withdrawal of the plea would promote
fairness and justice.” See Norton, supra; Carrasquillo, supra. We see no
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abuse of discretion concerning the court’s decision to deny Appellant’s motion.
See Gordy, supra.Following our independent review of the record, we agree the appeal is
frivolous. See Dempster, supra; Palm, supra. Accordingly, we affirm and
grant counsel’s petition to withdraw.
Judgment of sentence affirmed; counsel’s petition to withdraw is
granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/22/2022
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