Com. v. Perry, L.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
LORIN ALEXANDER PERRY :
:
Appellant : No. 1359 WDA 2021
Appeal from the Judgment of Sentence Entered August 24, 2021
In the Court of Common Pleas of Beaver County Criminal Division at
No(s): CP-04-CR-0001406-2020,
CP-04-CR-0001855-2020
BEFORE: NICHOLS, J., MURRAY, J., and KING, J.
MEMORANDUM BY NICHOLS, J.: FILED: SEPTEMBER 26, 2022
Appellant Lorin Alexander Perry appeals from the judgment of sentence
imposed after he pled nolo contendere to involuntary deviate sexual
intercourse (IDSI) and related offenses. This matter returns to this Court
after we remanded for the filing of an amended Anders/Santiago1 brief or
an advocate’s brief. Appellant’s counsel (Counsel) has filed an amended
petition to withdraw and an amended Anders/Santiago brief. We grant
Counsel’s request to withdraw and affirm.
We adopt the trial court’s summary of the factual and procedural history
of this matter. See Trial Ct. Op., 11/15/21, at 1-5. Briefly, at Docket No.
1406-2020, the Commonwealth charged Appellant with five counts of indecent
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1Anders v. California, 386 U.S. 738 (1967); Commonwealth v. Santiago,
978 A.2d 349 (Pa. 2009).
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assault of a person less than thirteen years old, three counts each of
aggravated indecent assault without consent and indecent assault without
consent, two counts of aggravated indecent assault of a person less than
thirteen years old, and one count each of statutory sexual assault, IDSI,
unlawful contact with a minor, aggravated indecent assault of a person less
than sixteen years old, corruption of minors, endangering welfare of a child
(graded as a felony of the third degree), and indecent assault of a person less
than sixteen years old.2 See Criminal Information, Docket No. 1406-2020,
10/5/20, at 1-3 (unpaginated). At Docket No. 1855-2020, the Commonwealth
charged Appellant with five counts of possession of child pornography (each
graded as a felony of the second degree) and one count of criminal use of
communication facility.3 See Criminal Information, Docket No. 1855-2020,
12/29/20, at 1-2 (unpaginated).
On April 22, 2021, Appellant entered open nolo contendere pleas to two
counts of aggravated indecent assault of a person less than thirteen years old,
and one count each of IDSI, aggravated indecent assault of a person less than
sixteen years old, and endangering welfare of a child at Docket No. 1406-2020
and to all of the charges at Docket No. 1855-2020. In exchange, the
Commonwealth withdrew the remaining charges at Docket No. 1406-2020.
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218 Pa.C.S. §§ 3126(a)(7), 3125(a)(1), 3126(a)(1), 3125(a)(7), 3122.1(b),
3123(a)(7), 6318(a)(1), 3125(a)(8), 6301(a)(1)(ii), 4304(a), and
3126(a)(8), respectively.
3 18 Pa.C.S. §§ 6312(d) and 7512(a), respectively.
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Before accepting Appellant’s plea, the trial court conducted an on-the-
record colloquy. During the oral colloquy, Appellant acknowledged that he
understood, among other things, his right to a jury trial, the presumption of
innocence, and the possible sentencing ranges for the charges. N.T. Plea Hr’g,
4/22/21, at 32-44. The Commonwealth stated the factual basis for Appellant’s
plea in both cases. Id. at 49-53, 55-58. Additionally, the trial court quoted
from In re J.R., 648 A.2d 28 (Pa. Super. 1994), explaining that Appellant’s
alleged conduct constituted IDSI. Id. at 27-28. Although Appellant appeared
for the plea hearing by video, he stated that he had reviewed the written plea
colloquy with his counsel, answered all of the questions truthfully, and
authorized his counsel to sign it on his behalf. Id. at 46-47; see also Written
Plea Colloquy, 4/21/21, at 1-5. In the written plea colloquy, Appellant
confirmed that he understood the nature of the charges. Written Plea Colloquy
at 2. At the conclusion of the hearing, the trial court accepted Appellant’s plea
in both cases. N.T. Plea Hr’g at 53-55, 58-60.
On August 24, 2021, the trial court sentenced Appellant to an aggregate
term of thirteen to thirty years’ incarceration followed by a term of nine years’
probation.4 The trial court also determined that Appellant was a sexually
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4 Specifically, at Docket No. 1406-2020, for count two, IDSI, the trial court
sentenced Appellant to five-and-a-half to twenty years’ incarceration followed
by three years’ probation. For count seven, aggravated indecent assault of a
person less than sixteen years old, the trial court sentenced Appellant to a
concurrent term of three to ten years’ incarceration followed by three years’
probation. For count eight, aggravated indecent assault of a person less than
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violent predator and informed Appellant he was required to comply with sex
offender registration under SORNA. See 42 Pa.C.S. § 9799.24.
Appellant filed a timely post-sentence motion requesting to withdraw his
pleas, claiming that he did not understand the offenses to which he pled nolo
contendere. The trial court denied Appellant’s post-sentence motion.
Appellant filed a single, timely notice of appeal that included both trial court
docket numbers.5 The trial court did not order Appellant to comply with
Pa.R.A.P. 1925(b), and Appellant did not file a Rule 1925(b) statement. The
trial court issued a Rule 1925(a) opinion addressing Appellant’s request to
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thirteen years old, the trial court sentenced Appellant to a term of five to ten
years’ incarceration followed by three years’ probation, consecutive to count
seven. For count nine, aggravated indecent assault of a person less than
thirteen years old, the trial court sentenced Appellant to a term of five to ten
years’ incarceration followed by three years’ probation, consecutive to count
eight. For count thirteen, endangering the welfare of a child, the trial court
imposed a concurrent term of one to seven years’ incarceration. See
Sentencing Order, Docket No. 1406-2020, 8/24/21, at 1-2 (unpaginated).
At Docket No. 1855-2010, the trial court sentenced Appellant to concurrent
terms of two to ten years’ incarceration for each count of possession of child
pornography. For count six, criminal use of a communication facility, the trial
court imposed a concurrent term of one to seven years’ incarceration. The
aggregate sentence for Docket No. 1855-2010 ran concurrent to the
aggregate sentence at Docket No. 1406-2020. See Sentencing Order, Docket
No. 1855-2020, 8/24/21, at 1-3 (unpaginated).
5 In our prior memorandum, we concluded that “a breakdown in court
operations [occurred] such that we may overlook” any record deficiencies and
declined to quash this appeal pursuant to Commonwealth v. Walker, 185
A.3d 969 (Pa. 2018) and Pa.R.A.P. 341. See Perry, 2022 WL 2312461 at *2.
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withdraw his plea, the trial court’s jurisdiction, and the legality of Appellant’s
sentence.6 See Trial Ct. Op. at 5-14.
On appeal, Counsel submitted a petition to withdraw and an
Anders/Santiago brief. This Court denied the petition to withdraw and
directed Counsel to either file an amended Anders/Santiago brief or an
advocate’s brief. Commonwealth v. Perry, 1359 WDA 2021, 2022 WL
2312461 at *4 (Pa. Super. filed June 28, 2022) (unpublished mem.).
Counsel subsequently filed an amended Anders/Santiago brief and
another petition to withdraw as counsel. Although not included in the
statement of questions,7 Counsel’s amended Anders/Santiago brief
identifies three potential issues concerning Appellant’s nolo contendere plea:
(1) the trial court’s jurisdiction, (2) the validity of the plea, and (3) the legality
of the sentence. Am. Anders/Santiago Brief at 8-10.
“When faced with a purported Anders brief, this Court may not review
the merits of any possible underlying issues without first examining counsel’s
request to withdraw.” Commonwealth v. Wimbush, 951 A.2d 379, 382 (Pa.
Super. 2008) (citation omitted). Counsel must comply with the technical
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6 The trial court also noted that any claims of ineffective assistance of counsel
that Appellant might seek to raise should be deferred to PCRA review. Trial
Ct. Op. at 14.
7 We note that although Counsel did not include these issues in the statement
of questions, it does not preclude review, as we would have nonetheless
addressed these issues when conducting our independent review of the
record. See Commonwealth v. Flowers, 113 A.3d 1246, 1250 (Pa. Super.
2015).
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requirements for petitioning to withdraw by (1) filing a petition for leave to
withdraw stating that after making a conscientious examination of the record,
counsel has determined that the appeal would be frivolous; (2) providing a
copy of the brief to the appellant; and (3) advising the appellant that he has
the right to retain private counsel, proceed pro se, or raise additional
arguments that the appellant considers worthy of the court’s attention. See
Commonwealth v. Goodwin, 928 A.2d 287, 290 (Pa. Super. 2007) (en
banc).
Additionally, counsel must file a brief that meets the requirements
established by the Pennsylvania Supreme Court in Santiago, namely:
(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.
Santiago, 978 A.2d at 361.
“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, wholly
frivolous.” Goodwin, 928 A.2d at 291 (citation omitted). This includes “an
independent review of the record to discern if there are any additional, non-
frivolous issues overlooked by counsel.” Flowers, 113 A.3d at 1250 (citation
and footnote omitted).
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Here, Counsel filed an amended petition to withdraw indicating that he
reviewed the record and determined that an appeal is frivolous and without
merit. Counsel also filed a copy of the letter he sent to Appellant, which
indicates that Counsel sent Appellant a copy of the amended
Anders/Santiago brief and advised Appellant that he may proceed pro se or
retain private counsel to raise any additional issues he believes should be
brought to this Court’s attention.8 Accordingly, we conclude that Counsel has
met the technical requirements of Anders and Santiago, and we will proceed
to address the issues Counsel identified in the amended Anders/Santiago
brief.
Jurisdiction
First, with respect to jurisdiction, Counsel notes that because the
offenses occurred in Beaver County, there is nothing in the record to indicate
that the Beaver County Court of Common Pleas lacked jurisdiction over
Appellant’s cases. Am. Anders/Santiago Brief at 8.
Initially, we note that “[i]n terms of its effect upon a case, a plea of nolo
contendere is treated the same as a guilty plea.” Commonwealth v. Lewis,
791 A.2d 1227, 1230 (Pa. Super. 2002) (citations omitted). “Generally, a plea
of guilty amounts to a waiver of all defects and defenses except those
concerning the jurisdiction of the court, the legality of the sentence, and the
validity of the guilty plea.” Commonwealth v. Morrison, 173 A.3d 286, 290
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8 Appellant did not file a response to Counsel’s amended petition to withdraw.
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(Pa. Super. 2017) (citation omitted). A guilty plea “constitutes a waiver of
jurisdiction over the person of the defendant.” Commonwealth v. Little,
314 A.2d 270, 272 (Pa. 1974). However, subject matter jurisdiction cannot
be waived. Id. at 272-73.
Whether a court has subject matter jurisdiction is a question of law and,
therefore, our standard of review is de novo. Commonwealth v. Jones, 929
A.2d 205, 211 (Pa. 2007). There are two requirements for subject matter
jurisdiction as it relates to criminal defendants: 1) the competency of the court
to hear the case; and 2) the provision of specific and formal notice to the
defendant of the crimes charged. Id. at 210 (citation omitted). “[A]ll courts
of common pleas have statewide subject matter jurisdiction in cases arising
under the Crimes Code[.]” Id. (citation omitted); see also Commonwealth
v. Kohler, 811 A.2d 1046, 1050 (Pa. Super. 2002) (holding that a county
court of common pleas has jurisdiction over offenses that take place within its
borders).
Here, the Beaver County Court of Common Pleas was competent to hear
Appellant’s case, which involved violations of the Pennsylvania Crimes Code
occurring in Beaver County. See Jones, 929 A.2d at 210; Kohler, 811 A.2d
at 1050. Further, the record reflects that Appellant received specific and
formal notice of the charges, including the allegation that they occurred in
Beaver County, when the Commonwealth filed the criminal informations. See
Criminal Information, Docket No. 1406-2020, 10/5/20, at 1 (unpaginated);
Criminal Information, Docket No. 1855-2020, 12/29/20, at 1 (unpaginated).
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Therefore, the trial court had jurisdiction over Appellant’s case, and Appellant
is not entitled to relief on this claim.
Validity of Plea
Counsel next discusses the validity of Appellant’s nolo contendere plea.
Am. Anders/Santiago Brief at 9-10. Counsel notes that Appellant completed
a written plea colloquy indicating that he understood the charges to which he
was pleading nolo contendere. Id. at 9. Counsel also observes that during
the oral plea colloquy, Appellant acknowledged the rights he was giving up
and stated that he was entering his pleas voluntarily. Id. at 10. Counsel
concludes that there is nothing to indicate that Appellant’s pleas were invalid.
The principles governing our review are well settled. “A trial court’s
decision regarding whether to permit a guilty plea to be withdrawn should not
be upset absent an abuse of discretion.” Commonwealth v. Pardo, 35 A.3d
1222, 1227 (Pa. Super. 2011) (citation omitted); see also Lewis, 791 A.2d
at 1230 (noting that for purposes of a criminal case, a plea of nolo contendere
is equivalent to a plea of guilty).
This Court has explained:
Although no absolute right to withdraw a guilty plea exists in
Pennsylvania, the standard applied differs depending on whether
the defendant seeks to withdraw the plea before or after
sentencing. When a defendant seeks to withdraw a plea after
sentencing, he must demonstrate prejudice on the order of
manifest injustice. [A] defendant may withdraw his guilty plea
after sentencing only where necessary to correct manifest
injustice. Thus, post-sentence motions for withdrawal are subject
to higher scrutiny since the courts strive to discourage the entry
of guilty pleas as sentence-testing devices.
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Manifest injustice occurs when the plea is not tendered knowingly,
intelligently, voluntarily, and understandingly. In determining
whether a plea is valid, the court must examine the totality of
circumstances surrounding the plea. 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. Hart, 174 A.3d 660, 664-65 (Pa. Super. 2017) (citations
and footnote omitted and formatting altered); see also Lewis, 791 A.2d at
1230-31 (stating that “as with a guilty plea, in order for a defendant to prevail
on a post sentence motion to withdraw a plea of nolo contendere, requires
that the defendant demonstrate manifest injustice”).
Although not constitutionally mandated, a proper plea colloquy ensures
that a defendant’s plea is truly knowing and voluntary. Commonwealth v.
Maddox, 300 A.2d 503, 504 (Pa. 1973). “A valid plea colloquy must delve
into six areas: 1) the nature of the charges, 2) the factual basis of the plea,
3) the right to a jury trial, 4) the presumption of innocence, 5) the sentencing
ranges, and 6) the plea court’s power to deviate from any recommended
sentence.” Commonwealth v. Reid, 117 A.3d 777, 782 (Pa. Super. 2015)
(citations and quotation marks omitted); see also Pa.R.Crim.P. 590, cmt.
(setting forth a non-exhaustive list of questions a trial judge should ask before
accepting a plea).
Further, nothing in Rule 590 “precludes the supplementation of the oral
colloquy by a written colloquy that is read, completed, and signed by the
defendant and made a part of the plea proceedings.” Commonwealth v.
Bedell, 954 A.2d 1209, 1212-13 (Pa. Super. 2008) (citation omitted). “In
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determining whether a guilty plea was entered knowingly and voluntarily, a
court is free to consider the totality of the circumstances surrounding the
plea.” Id. at 1212 (citation omitted and formatting altered). Further, a
“defendant is bound by statements he makes during plea colloquy, and may
not assert grounds for withdrawing plea that contradict statements made
when he pleaded guilty”. Reid, 117 A.3d at 783 (citation omitted).
Here, the trial court addressed Appellant’s claim as follows:
[Appellant’s] claim that he did not understand the nature of the
charges is belied by the record. After defense counsel advised
that [Appellant] claimed that did he did not understand the nature
of [IDSI]—specifically whether his admission that he licked the
child victim’s vagina constitutes that offense—the court cited case
law explaining that “oral contact with the genitalia of the female
victim is all that is required.” [Appellant’s] understanding of the
nature of all of the offenses to which he pled was memorialized in
a [written plea colloquy] that included the following items:
Do you understand that you are here today to enter a plea
of nolo contendere to some or all of the criminal charges
filed against you? Yes
Do you understand the nature of the charge(s) to which you
are pleading nolo contendere? Yes
Has your attorney explained to you the elements of the
criminal offense(s) to which you are pleading nolo
contendere? Yes
[Written Plea Colloquy], 4/22/21, at 2. [Appellant] cannot now
claim that the answers on the [written plea colloquy] were
untruthful.
Trial Ct. Op. at 9-10 (some citations omitted and formatting altered).
Based on our review of the record, we discern no abuse of discretion by
the trial court in denying Appellant’s post-sentence motion to withdraw his
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pleas. See Hart, 174 A.3d at 664-65. Appellant is bound by his statements
during the colloquy, which demonstrate that he knowingly, voluntarily, and
intelligently entered his pleas. See N.T. Plea Hr’g at 32-44; Written Plea
Colloquy at 1-5; see also Reid, 117 A.3d at 783. Further, the totality of the
circumstances surrounding the pleas supports the trial court’s conclusion that
Appellant’s pleas were valid and that there was no manifest injustice. See
Hart, 174 A.3d at 664. Therefore, Appellant is not entitled to relief on this
claim.
Legality of Sentence
Lastly, Counsel discusses the legality of Appellant’s sentence.
Anders/Santiago Brief at 9. Counsel concludes that there is nothing in the
record to indicate that Appellant’s sentence is illegal. Id.
“If no statutory authorization exists for a particular sentence, that
sentence is illegal and . . . . must be vacated. Likewise, a sentence that
exceeds the statutory maximum is illegal.” Commonwealth v. Infante, 63
A.3d 358, 363 (Pa. Super. 2013) (citations omitted). Issues relating to the
legality of a sentence are questions of law, therefore, our standard of review
is de novo and our scope of review is plenary. Id. (citations omitted).
Section 1103 of the Pennsylvania Crimes Code provides the following
maximum penalties: twenty years’ imprisonment for a felony of the first
degree; ten years’ imprisonment for a felony of the second degree; and seven
years’ imprisonment for a felony of the third degree. 18 Pa.C.S. § 1103(1)-
(3). Further, a person convicted of any offense enumerated in 42 Pa.C.S. §
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9799.14(d) “shall be sentenced to a mandatory period of probation of three
years consecutive to and in addition to any other lawful sentence issued by
the court.” 9 42 Pa.C.S. § 9718.5(a). The sentencing court may impose that
mandatory term of probation “in addition to the maximum sentence permitted
for [any eligible] offense for which the defendant was convicted.” 42 Pa.C.S.
§ 9718.5(b).
Additionally, aggravated indecent assault of a person less than thirteen
years old carries a mandatory minimum sentence of five years’ incarceration.
42 Pa.C.S. § 9718(a)(3). Our Supreme Court has held that a mandatory
minimum sentence under Section 9718(a)(3) is constitutional.
Commonwealth v. Resto, 179 A.3d 18, 20 (Pa. 2018) (plurality) (concluding
that Section 9718(a)(3) does not implicate Alleyne v. United States, 570
U.S. 99 (2013)).
Here, at Docket No. 1406-2020, Appellant pled guilty to IDSI, a felony
of the first degree, three counts of aggravated indecent assault, felonies of
the second degree, and endangering welfare of a child, which was graded as
a felony of the third degree in the instant case. See 18 Pa.C.S. §§ 3123(a),
3125(c)(1), and 4304(b)(1)(ii), respectively. At Docket No. 1855-2020,
Appellant pled guilty to five counts of possession of child pornography, graded
as felonies of the second degree in the instant case, and one count criminal
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9 IDSI and aggravated indecent assault are enumerated in Section
9799.14(d). See 42 Pa.C.S. § 9799.14(d)(4)-(5).
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use of communications facility, a felony of the third degree. See 18 Pa.C.S.
§§ 6312(d.1)(3) and 7512(a), respectively.
Appellant’s individual sentences do not exceed the statutory maximum
for any offense. See 18 Pa.C.S. § 1103(1)-(3); see also 42 Pa.C.S. §
9718.5(b) (providing that the mandatory probation term required by Section
9718.5(a) may be imposed in addition to the otherwise maximum permissible
sentence). Additionally, the mandatory minimum sentences of five years’
incarceration for counts eight and nine are constitutional. See Resto, 179
A.3d at 20. Therefore, Appellant is not entitled to relief on this claim. See
Infante, 63 A.3d at 363.
For these reasons, we agree that the appellate issues presented in the
Anders/Santiago brief are frivolous. Further, our independent review of the
record does not reveal any additional, non-frivolous issues. See Goodwin,
928 A.2d at 291; Flowers, 113 A.3d at 1250. For these reasons, we grant
Counsel’s petition to withdraw and affirm the judgment of sentence.
Judgment of sentence affirmed. Counsel’s petition to withdraw granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 09/26/2022
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