Com. v. Tadlock, M.

J-A25045-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MICHAEL LAWRENCE TADLOCK :
:
Appellant : No. 1537 WDA 2021
Appeal from the Judgment of Sentence Entered January 19, 2012
In the Court of Common Pleas of Erie County Criminal Division at No(s):
CP-25-CR-0001921-2011
BEFORE: KUNSELMAN, J., NICHOLS, J., and McCAFFERY, J.
MEMORANDUM BY McCAFFERY, J.: FILED: DECEMBER 14, 2022
Michael Lawrence Tadlock appeals, nunc pro tunc, from the judgment of
sentence imposed on January 19, 2012, in the Erie County Court of Common
Pleas, following his guilty plea to one count of involuntary deviate sexual
intercourse (IDSI) with a child.1 Contemporaneous with this appeal,
Appellant’s counsel, Tina M. Fryling, Esquire, has filed a petition to withdraw
from representation and an Anders brief. See Anders v. California, 386
U.S. 738 (1967); Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009).
The Anders brief presents two claims, challenging the discretionary aspects
of Appellant’s sentence, and the voluntariness of his plea.2 For the reasons
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1 18 Pa.C.S. § 3123(b).
2 The Commonwealth filed a letter in response, noting it did not intend to file
a brief.
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below, we affirm the judgment of sentence and grant counsel’s petition to
withdraw.
The relevant facts and procedural history underlying this appeal are as
follows. On July 9, 2010, Appellant was interviewed by a Pennsylvania State
Trooper after he disclosed to hospital staff at St. Vincent Health Center that
he had sexually abused his daughter, M.J.T., when she was eight years old. 3
See Affidavit of Probable Cause, 6/7/11, at 1; Criminal Information, 8/25/11,
at 1 (unpaginated). Appellant surrendered his computer to the trooper so that
it could be searched for child pornography; “[t]hat investigation resulted in
[f]ederal charges[.]” Affidavit of Probable Cause at 1. Appellant was
subsequently charged in Erie County with IDSI with a child, indecent assault,
endangering the welfare of children, and corruption of minors.4 See Criminal
Information at 1-2 (unpaginated).
On September 9, 2011, Appellant, represented by Kevin Kallenbach,
Esquire, entered a guilty plea to one count of IDSI, in exchange for which the
Commonwealth agreed to nol pros the remaining charges. See Appellant’s
Statement of Understanding of Rights Prior to Guilty/No Contest Plea, 9/9/11.5
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3 The abuse occurred between March of 2009 and July of 2010. See Criminal
Information at 1 (unpaginated).
4 18 Pa.C.S. §§ 3126(a)(7), 4304, 6301(a)(1).
5As we will discuss infra, the notes of testimony from Appellant’s guilty plea
and sentencing hearing were never transcribed, and are now, unavailable.
See Order, 12/1/21, at 2 n.2 (“Hearings in this matter are unable to be
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There was no agreement as to sentencing. That same day, the trial court
ordered that Appellant undergo an assessment by the Sexual Offenders
Assessment Board to determine if he met the criteria for classification as a
sexually violent predator (SVP) under the then applicable Megan’s Law. 6
Appellant’s sentencing hearing was scheduled for December 19, 2011.
On December 15, 2011, Attorney Kallenbach filed a motion to continue
the sentencing hearing. See Appellant’s Motion to Continue Sentencing,
12/19/11. He averred that Appellant “has remained under a federal hold since
July of 2010[,]” and was sentenced for the federal charges and “moved from
the Erie County Prison” to a federal prison on December 9th. Id. Attorney
Kallenbach requested a new sentencing date so that “[a]rrangements” could
be made to transport Appellant from federal prison to Erie County. Id. The
trial court granted the motion, and rescheduled Appellant’s sentencing/SVP
hearing to January 19, 2012.
Following the January 19th hearing, the trial court sentenced Appellant
to serve a term of 180 to 360 months’ imprisonment, “consecutive to the
Federal Sentence [he was] currently serving.” Sentencing Order, 1/19/12.
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transcribed due to the age of the case.”); Anders Brief at 2 n. 1 (noting that
the transcripts were not available “according to the Erie County Court
Reporter’s Office”).
6 See 42 Pa.C.S. § 9791-9799.9 (expired). Megan’s Law was subsequently
replaced by the Sexual Offender’s Registration and Notification Act (SORNA),
which will determine Appellant’s registration requirements upon his release
from prison. See 42 Pa.C.S. § 9799.54.
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The same day the court determined that Appellant met the criteria for
classification as an SVP. See SVP Order, 1/19/12. Appellant did not file a
direct appeal.
On August 27, 2021, Appellant filed a pro se petition for collateral relief
pursuant to the Post Conviction Relief Act (PCRA).7 He claimed that on August
16, 2021, he learned for the first time that Attorney Kallenbach did not file
either a post-sentence motion to withdraw his plea or a direct appeal as he
had requested. See Appellant’s Petition for Post Conviction Relief, 8/27/21,
at 2 (unpaginated). In an attached affidavit, Appellant averred the following:
(1) on or about January 21, 2012, he sent Attorney Kallenbach a letter asking
him to withdraw the “plea for lack of understanding the consequences[;]” (2)
Appellant also asked counsel to file a direct appeal; (3) although he attempted
to keep in touch with his attorney, he was transferred numerous times to
different federal and state prisons; and (4) on August 16, 2021, he received
a letter from the Chief Public Defender informing him that no appeal had been
filed, and Attorney Kallenbach was no longer practicing law. See Affidavit of
Appellant, 8/23/21, at 2-3 (unpaginated).
On September 1, 2021, the PCRA court granted Appellant’s request for
relief and reinstated his post-sentence and direct appeal rights. Order,
9/1/21. The court subsequently appointed Tina Fryling, Esquire to represent
him and directed Attorney Fryling to file a post-sentence motion within 15
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7 42 Pa.C.S. §§ 9541-9546.
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days. Amended Order, 9/7/21. Thereafter, Attorney Fryling requested an
extension of time because the transcripts had “not yet been prepared.”
Appellant’s Petition for Extension of Time Within Which to File Post Sentence
motion, 9/17/21, at 1 (unpaginated). She also filed a motion for transcription
of the proceedings. That same day, the trial court entered two orders: (1)
directing the Office of Court Stenographers to file a copy of “all transcripts of
all proceedings” for Appellant and to notify counsel when the transcript is filed;
and (2) extending the deadline for Appellant to file a post-sentence motion to
“15 days after the transcript of the proceedings is filed by the Office of Court
Stenographers” and counsel is notified in writing. Orders, 9/17/21.
Appellant filed a post-sentence motion on November 18, 2021. He
averred he did “not have the benefits of the transcripts, which were requested
but are not available due to the age of the case, according to the Erie County
Court Reporter’s Office.” Appellant’s Post Sentence Motion, 11/18/21, at 1
(unpaginated). Regardless, Appellant presented the following two claims: (1)
a challenge to the voluntariness of his plea because counsel “did not properly
advise him of the possible ramifications of his sentence, and he was unaware
[of] the impact his federal sentence would have” on his state sentence; and
(2) an assertion that his sentence was “manifestly excessive and clearly
unreasonable . . . considering the lengthy [federal] sentence” he received.
Id. at 1-2 (unpaginated).
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On December 1, 2021, the trial court denied Appellant’s post-sentence
motion. See Order 12/1/21. This timely appeal follows.8 On December 28,
2021, the trial court directed Appellant to file a Pa.R.A.P. 1925(b) concise
statement of errors complained of on appeal. Counsel timely complied but
filed a statement of intent to file an Anders brief. See Pa.R.A.P. 1925(c)(4).
The trial court’s subsequent opinion refers this Court to the reasons set forth
in its December 1st order. See Trial Ct. Op., 1/20/22.
When, as here, counsel files a petition to withdraw and accompanying
Anders brief, we must first examine the request to withdraw before
addressing any of the substantive issues raised on appeal. Commonwealth
v. Bennett, 124 A.3d 327, 330 (Pa. Super. 2015). An attorney seeking to
withdraw from representation on appeal
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8 On March 10, 2022, this Court issued Appellant a rule to show cause why
the appeal should not be quashed as untimely. See Order, 3/10/22. We
noted that, pursuant to the trial court’s September 17, 2021, order, Appellant
was required to file a post-sentence motion within 15 days of the date the
transcripts were filed. See id. However, because the docket did not indicate
that transcripts were ever filed in the trial court, we were unable to determine
if the post-sentence motion was timely filed.
Attorney Fryling filed a response, explaining that she inquired as to the
status of the transcripts on November 14, 2021, “via an email to the Erie
County Court Reporter’s Office[.]” Attorney Fryling’s Response to Show Cause
Order, 3/16/22. She explained that she received a response the next day
“that the transcripts were no longer available.” Id. She then filed Appellant’s
post-sentence motion on November 18th. This Court subsequently discharged
the show cause order. Order, 4/11/22. Under these circumstances, we
conclude Appellant’s post-sentence motion and subsequent notice of appeal
were timely filed.
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must: 1) petition the court for leave to 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.
Commonwealth v. Cartrette, 83 A.3d 1030, 1032 (Pa. Super. 2013) (en
banc). Pursuant to Santiago, counsel must also:
(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 Santiago, 978 A.2d at 361.
In the present case, the brief and petition to withdraw filed by Attorney
Fryling comply with the requirements of Anders and Santiago. See
Cartrette, 83 A.3d at 1032. Moreover, Attorney Fryling has provided this
Court with a copy of the letter she sent to Appellant, advising him of his right
to proceed with newly retained counsel or pro se, and to raise any additional
points for this Court’s attention. See Attorney Fryling’s letter to Appellant,
4/22/22. Appellant has not filed a response. Therefore, we proceed to
examine the issues identified in the Anders brief, and then conduct “a full
examination of all the proceedings, to decide whether the case is wholly
frivolous[.]” See Commonwealth v. Yorgey, 188 A.3d 1190, 1196 (Pa.
Super. 2018) (en banc) (quotation omitted). If we agree with counsel’s
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assessment, “[we] may grant counsel's request to withdraw and dismiss the
appeal[.]” Id. (citation omitted).
The Anders brief identifies two potential claims for our review:
(1) Was the sentence in this case manifestly excessive and
clearly unreasonable, and not individualized as required by
law, especially in that the sentence did not take into account
the fact that [Appellant] had a federal sentence in addition
to this sentence?
(2) Was [Appellant’s] plea entered knowingly and voluntarily
and should he have been able to withdraw his plea between
entering it and being sentenced?
Anders Brief at 1 (some capitalization omitted).
Preliminarily, we emphasize that our review of this appeal is severely
hampered due to the lack of transcripts from Appellant’s guilty plea and
sentencing hearings. Although we recognize Appellant is not to blame for this
circumstance, we note that he has not provided a statement in the absence
of the transcript pursuant to Pa.R.A.P. 1923, or an agreed statement of record
pursuant to Pa.R.A.P. 1924.9 Furthermore, our Supreme Court has explained,
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9 Pursuant to Rule 1923:
If . . . a transcript is unavailable, the appellant may prepare a
statement of the evidence or proceedings from the best available
means, including his recollection. The statement shall be served
on the appellee, who may serve objections or propose
amendments thereto within ten days after service. Thereupon the
statement and any objections or proposed amendments shall be
submitted to the lower court for settlement and approval and as
settled and approved shall be included by the clerk of the lower
court in the record on appeal.
Pa.R.A.P. 1923.
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“even when notes of testimony are properly ordered, the absence of notes
does not generate some instantaneous, meritorious claim for relief.”
Commonwealth v. Lesko, 15 A.3d 345, 410–11 (Pa. 2011). With this in
mind, we consider the issues identified in Appellant’s Anders brief.
The first issue identified challenges the discretionary aspects of
Appellant’s sentence. It is well established that such a challenge does not
entitle an appellant to “review as of right.” Commonwealth v. Caldwell,
117 A.3d 763, 768 (Pa. Super. 2015) (en banc) (citation omitted). Rather,
[b]efore this Court can address such a discretionary challenge, an
appellant must comply with the following requirements:
An appellant challenging the discretionary aspects of his
sentence must invoke this Court’s jurisdiction by satisfying
a four-part test: (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.
Id. (citation omitted).
Here, Appellant properly preserved his claim in a timely filed, nunc pro
tunc, post-sentence motion before the trial court, and a timely appeal before
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Rule 1924 further provides that “the parties may prepare and sign a
statement of the case showing how the issues presented by the appeal arose
and were decided in the lower court and setting forth only so many of the
facts averred and proved or sought to be proved as are essential to a decision
of the issues presented[,]” which is then submitted to the trial court for
approval. Pa.R.A.P. 1924.
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this Court. Moreover, the Anders brief includes the requisite Pa.R.A.P.
2119(f) statement of reasons for allowance of appeal in his brief. See Anders
Brief at 3-4. Accordingly, we must now consider whether Appellant’s claim
presents a substantial question justifying our review.
An appellant “presents a substantial question when he sets forth a
plausible argument that the sentence violates a provision of the sentencing
code or is contrary to the fundamental norms of the sentencing process.”
Commonwealth v. Conte, 198 A.3d 1169, 1174 (Pa. Super. 2018) (citation
omitted). In the present case, Appellant argues that the trial court “could
have served the goals of protection of the public, incapacitation, and
rehabilitation without such a lengthy sentence” and could have run his state
sentence concurrently, rather than consecutively, to his federal sentence.
Anders Brief at 4. We conclude Appellant has not presented a substantial
question.
Appellant’s minimum sentence of 180 months’ imprisonment fell within
the standard range of the sentencing guidelines. See Guideline Sentence
Form, 1/19/12 (standard range was 120 to 240 months’ imprisonment).
Pursuant to Section 9781 of the Sentencing Code, an appellate court should
vacate a standard range sentence only if “the case involves circumstances
where the application of the guidelines would be clearly unreasonable[.]” 42
Pa.C.S. § 9781(c)(2). Here, while Appellant invokes the language of 42
Pa.C.S. § 9721(b) — which requires a court to consider “the protection of the
public, the gravity of the offense as it relates to the impact on the life of the
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victim and on the community, and the rehabilitative needs of the defendant”
when imposing a term of imprisonment10 — he presents no reason why the
court did not comply with Section 9721 when imposing his standard range
sentence, except for the fact that he was already serving a term of
imprisonment for federal charges. See Anders Brief at 4; Appellant’s Post
Sentence Motion at 2 (unpaginated). However, the trial court clearly
considered the federal sentence because it ordered the sentence in the present
case to run consecutively to Appellant’s federal sentence. We conclude this
claim does not present a substantial question that Appellant’s “sentence
violates a provision of the sentencing code or is contrary to the fundamental
norms of the sentencing process.” Conte, 198 A.3d at 1174.
Furthermore, to the extent Appellant argues the trial court abused its
discretion when it directed that the present sentence run consecutively to his
federal sentence, that claim was not raised in his post-sentence motion.
Indeed, Appellant’s post-sentence motion presented the following sentencing
claim:
[Appellant] asserts that his sentence was manifestly excessive
and clearly unreasonable and that a lower period of incarceration
would have served the purposes of punishment, rehabilitation,
and protection of the community, especially considering the
lengthy sentence he was serving at his federal docket.
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10 42 Pa.C.S. § 9721(b).
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Appellant’s Post Sentence Motion at 2 (unpaginated). Therefore, Appellant
did not preserve his challenge to the imposition of consecutive, rather than
concurrent, sentences. See Caldwell, 117 A.3d at 768.
Nevertheless, even if Appellant had preserved the claim, we would,
again, conclude he failed to present a substantial question for our review. It
is well-settled that “[a] court’s exercise of discretion in imposing a sentence
concurrently or consecutively does not ordinarily raise a substantial question.”
Caldwell, 117 A.3d at 769. Rather,
[A] defendant may raise a substantial question where he receives
consecutive sentences within the guideline ranges if the case
involves circumstances where the application of the guidelines
would be clearly unreasonable, resulting in an excessive sentence;
however, a bald claim of excessiveness due to the consecutive
nature of a sentence will not raise a substantial question.
Id. (citation omitted). As explained above, Appellant’s bald claim that the
sentence was “manifestly excessive and clearly unreasonable” is simply
insufficient to raise a substantial question for our review. See Appellant’s Post
Sentence Motion at 2 (unpaginated). Accordingly, Appellant is entitled to no
relief on the sentencing claim presented in his Anders brief.
The second issue identified in the Anders brief challenges the
voluntariness of Appellant’s guilty plea. Appellant asserts that he “did not
know all of the ramifications of his plea when he entered it” — particularly,
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the impact of his federal sentence11 — and “he requested that his attorney
allow him to withdraw his plea after it was entered and before sentencing.”
Anders Brief at 7.
The decision whether to permit a defendant to withdraw a guilty plea
lies with the trial court. See Commonwealth v. Culsoir, 209 A.3d 433, 437
(Pa. Super. 2019). While a defendant has “no absolute right to withdraw a
guilty plea[,] the standard applied 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). A pre-sentence request to
withdraw is granted liberally when the defendant “has made some colorable
demonstration, under the circumstances, such that permitting withdrawal of
the plea would promote fairness and justice.” Culsoir, 209 A.3d at 537
(citation omitted). However:
[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. Therefore, in order to
withdraw a guilty plea after the imposition of sentence, a
defendant must make a showing of prejudice which resulted in a
manifest injustice. A defendant meets this burden only if he can
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11 We note that in the Anders brief, Attorney Fryling claims that Appellant
“provided no specifics as to . . . what facts he might have been unaware of at
the time of this plea that would have resulted in him not having entered his
plea knowingly or voluntarily.” Anders Brief at 8. However, in the post-
sentence motion she filed on his behalf, Attorney Fryling asserted that
Appellant claimed “he was unaware at the time of his plea as to the impact
his federal sentence would have on his [state] sentence[.]” Appellant’s Post
Sentence Motion at 1-2 (unpaginated).
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demonstrate that his guilty plea was entered involuntarily,
unknowingly, or unintelligently.
Id. (citations & quotation marks omitted). Moreover, we presume “a
defendant who entered a guilty plea was aware of what he was doing, and the
defendant bears the burden of proving otherwise.” Hart, 174 A.3d at 665
(citation omitted).
First, the record does not support Appellant’s claim that he requested
counsel to withdraw his plea before sentencing. There was no pre-sentence
motion to withdraw filed, and any claim that he had requested plea counsel to
do so should be raised in a PCRA petition.12 See Commonwealth v. Holmes,
79 A.3d 562, 576 (Pa. 2013) (absent limited circumstances not applicable
here, “claims of ineffective assistance of counsel are to be deferred to PCRA
review”).
With respect to his post-sentence request to withdraw his plea, the
record does not support his claim that he was unaware of the ramification of
his federal sentence at the time he entered his plea. As noted supra, there
is no transcript from the guilty plea colloquy. Moreover, both Appellant and
plea counsel were aware of the federal sentence before his sentencing
hearing in the present case. Indeed, counsel requested a continuance of the
sentencing hearing because Appellant had been transported to a federal
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12We note that in the affidavit attached to his PCRA petition, Appellant averred
that he requested Attorney Kallenbach “to withdraw [his] plea for lack of
understanding the consequences” on January 21, 2012, after his sentencing
hearing. Affidavit of Appellant at 2 (unpaginated).
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prison. See Appellant’s Motion to Continue Sentencing. Moreover, in the
affidavit attached to his August 2021 PCRA petition, Appellant averred that on
January 15, 2012 — four days before his sentencing hearing — “via video
conference, [he] inquired about how [his] State sentence would affect [his]
Federal sentence and vice-versa.” Affidavit of Appellant at 2 (unpaginated).
Notably, he did not aver that plea counsel failed to inform him that the court
could direct the sentences to run consecutively. Thus, to the extent Appellant
now argues plea counsel failed to properly inform him of the ramifications of
his federal sentence, we conclude such a claim must be raised in a timely
PCRA petition. See Holmes, 79 A.3d at 576. The testimony of both Appellant
and plea counsel is essential to determine the legitimacy of this claim. Thus,
no relief is warranted at this time.
Moreover, our independent review of the record reveals no non-frivolous
issues to be raised on appeal. Accordingly, we grant Attorney Fryling’s petition
to withdraw.
Judgment of sentence affirmed. Petition to withdraw as counsel
granted.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/14/2022
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