Com. v. Loucks, N.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
NICHOLAS JAMES LOUCKS :
:
Appellant : No. 804 MDA 2022
Appeal from the Judgment of Sentence Entered November 17, 2021
In the Court of Common Pleas of Bradford County
Criminal Division at No(s): CP-08-CR-0000741-2019
BEFORE: PANELLA, P.J., OLSON, J., and DUBOW, J.
MEMORANDUM BY PANELLA, P.J.: FILED: MAY 1, 2023
Nicholas James Loucks appeals from the judgment of sentence imposed
following his convictions of sexual assault, statutory sexual assault,
endangering the welfare of children, corruption of minors, aggravated
indecent assault – lack of consent, and aggravated indecent assault – less
than 16 years old. See 18 Pa.C.S.A. §§ 3124.1; 3122.1(a)(2); 4304(a)(1),
6301(a)(1)(ii); 3125(a)(1), (8). Additionally, Loucks’s counsel, Jason G.
Beardsley, Esquire, has filed a brief pursuant Anders v. California, 386 U.S.
738 (1967), and a petition to withdraw from representation. We grant
Attorney Beardsley’s petition to withdraw and affirm the judgment of
sentence.
In May 2019, Loucks was in bed with his girlfriend, H.C., and H.C.’s
daughter, A.M.C., born in July 2004. At one point in the night, A.M.C. awoke
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to find Loucks on top of her and his hands down her shorts. Loucks digitally
penetrated A.M.C.’s vagina. Loucks then inserted his penis into her vagina.
The assault ended when A.M.C. rolled away from Loucks, and H.C. stated that
“she’s waking up.” A.M.C. indicated that her mother and Loucks were talking
during the duration of the sexual assaults. In the months following the
assaults, A.M.C. and Loucks discussed the assaults on Facebook Messenger.
Loucks attempted to convince A.M.C. to recant statements she had made to
third parties regarding the sexual assault, and stated that H.C. and Louck had
talked about doing a “threesome” with A.M.C.
The police arrested Loucks, and the Commonwealth charged him with
numerous crimes.1 The case proceeded to a jury trial, after which the jury
found Loucks guilty of the above-mentioned crimes. On July 15, 2021, the
trial court sentenced Loucks to prison terms of 5 to 10 years for the sexual
assault conviction; 2 to 10 years for the statutory sexual assault conviction;
1 to 5 years for the corruption of minors conviction; 5 to 10 years for the
aggravated indecent assault – lack of consent conviction; and 5 to 10 years
for the aggravated indecent assault – less than 16 years old. The trial court
ran the sentences for sexual assault and corruption of minors consecutively,
and the remaining sentences concurrently with each other for an aggregate
sentence of 6 to 16 years in prison.
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1The Commonwealth also charged H.C. with various crimes. See Anders Brief
at 9 n.4.
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The Commonwealth filed a timely post-sentence motion, requesting,
inter alia, that the sentences for the sexual assault and aggravated indecent
assault – lack of consent convictions be imposed consecutively, as they
represent separate physical acts of abuse, vaginal intercourse with Loucks’s
penis and digital penetration of A.M.C.’s vagina. On November 17, 2021, the
trial court granted, in part, the Commonwealth’s motion, and imposed the
sentences for sexual assault and aggravated indecent assault – lack of consent
consecutively, and ordered the remaining sentences to run concurrently, for
an aggregate sentence of 10 to 20 years in prison.
On November 24, 2021, Loucks filed a post-sentence motion, arguing
that sexual assault and aggravated indecent assault should have merged
because (1) the digital penetration was part of the sexual assault and should
therefore merge; and (2) the aggravated indecent assault charge was a lesser
included offense of sexual assault. On May 2, 2022, the trial court entered an
order denying Loucks’s post-sentence motion.2 Loucks filed a notice of appeal
on May 27, 2022.3
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2 The trial court entered the order on April 29, 2022, but did not serve the
order on the parties until May 2, 2022. See Pa.R.A.P. 108(a)(1) (“Except as
otherwise prescribed in this rule, … any period of time under these rules
involving the date of entry of an order by a court ..., the day of entry shall be
the day the clerk of court ... mails or delivers copies of the order to
the parties ...”).
3 We note that the 120-day period to enter a decision on Loucks’s post-
sentence motion expired on March 24, 2022. See Pa.R.Crim.P. 720(B)(3)(a)
(Footnote Continued Next Page)
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On appeal, Attorney Beardsley has filed an Anders brief, addressing
claims that Loucks’s sentences for sexual assault and aggravated indecent
assault merged, the trial court abused its discretion in imposing consecutive
sentences, the verdict was against the weight of the evidence, and trial
counsel was ineffective for failing to call H.C. as witness at trial and failing to
ask enough questions at trial. See Anders Brief at 6-10. Attorney Beardsley
also filed a petition to withdraw as counsel with this Court on November 7,
2022. Loucks filed neither a pro se brief, nor retained alternate counsel.
We must first determine whether Attorney Beardsley has complied with
the dictates of Anders in petitioning to withdraw from representation. See
Commonwealth v. Goodwin, 928 A.2d 287, 290 (Pa. Super. 2007) (en
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(stating that a trial court has 120 days to decide a post-sentence motion, and
if it fails to decide the motion within that period, the motion is deemed denied
by operation of law). Here, the clerk of courts failed to enter an order noting
that the motion was denied on that date. See Pa.R.Crim.P. 720(B)(3)(c)
(stating that when the motion is deemed denied by operation of law, the clerk
of courts shall enter an order deeming the motion denied on behalf of the trial
court and serve copies on the parties). Ordinarily, a timely notice of appeal
would be filed within 30 days of the entry of the order denying the post-
sentence motion by operation of law. See Pa.R.Crim.P. 720(A)(2)(b).
However, in this case, the trial court ruled on the motion on May 2, 2022, well
outside the 120-day period, and Loucks appealed within 30 days of that order.
While the appeal would be untimely under these circumstances, the clerk’s
failure to enter an order deeming the post-sentence motion denied by
operation of law constituted an administrative breakdown of court system.
See Commonwealth v. Patterson, 940 A.2d 493, 499 (Pa. Super. 2007)
(finding “a breakdown where the clerk of courts did not enter an order
notifying the appellant that his post-sentence motion was denied by the
operation of law.”). Accordingly, we decline to quash the appeal and will
consider Loucks’s appeal.
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banc) (stating that “[w]hen 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.” (citation omitted)). Pursuant to
Anders, when an attorney believes that an appeal is frivolous and wishes to
withdraw as counsel, he or she must
(1) petition the court for leave to withdraw stating that after
making a conscientious examination of the record and
interviewing the defendant, counsel has determined the appeal
would be frivolous; (2) file a brief referring to any issues in the
record of arguable merit, and (3) furnish a copy of the brief to
defendant and advise him of his right to retain new counsel or to
raise any additional points that he deems worthy of the court’s
attention.
Commonwealth v. Burwell, 42 A.3d 1077, 1083 (Pa. Super. 2012)
(citations omitted).
Additionally, the Pennsylvania Supreme Court has determined that a
proper Anders brief 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.
Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009).
Here, Attorney Beardsley has complied with the requirements set forth
in Anders by indicating that he examined the record and determined that an
appeal would be frivolous. Further, Attorney Beardsley’s Anders brief meets
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the standards set forth in Santiago, by setting forth his conclusions that
Loucks’s claims are frivolous and the ineffectiveness claims must be raised in
a timely petition for post-conviction relief. Finally, Attorney Beardsley provided
a letter to Loucks, informing him of his intention to withdraw as counsel, and
advising Loucks of his rights to retain new counsel, proceed pro se, and file
additional claims. Because Attorney Beardsley has complied with the
procedural requirements for withdrawing from representation, we will
independently review the record to determine whether Loucks’s appeal is, in
fact, wholly frivolous. See Commonwealth v. Wrecks, 931 A.2d 717, 721
(Pa. Super. 2007) (stating that once an appellate court determines that
counsel’s petition and brief satisfy Anders, the court must then conduct its
own review of the appeal to determine if it is wholly frivolous).
First, Loucks argues that the aggravated indecent assault and sexual
assault sentences should have merged. See Anders Brief at 6-7.
“A claim that the trial court imposed an illegal sentence by failing to
merge sentences is a question of law. Accordingly, our standard of review is
plenary.” Commonwealth v. Williams, 958 A.2d 522, 527 (Pa. Super. 2008)
(citation omitted).
Our legislature has addressed the mandatory merger of crimes for the
purpose of sentencing in section 9765 of the Sentencing Code, which provides
as follows:
§ 9765. Merger of sentences
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No crimes shall merge for sentencing purposes unless the crimes
arise from a single criminal act and all of the statutory elements
of one offense are included in the statutory elements of the other
offense. Where crimes merge for sentencing purposes, the court
may sentence the defendant only on the higher graded offense.
42 Pa.C.S.A. § 9765. Concerning the appropriate test for merger of crimes for
sentencing, “[t]he statute’s mandate is clear. It prohibits merger unless two
distinct facts are present: 1) the crimes arise from a single criminal act; and
2) all of the statutory elements of one of the offenses are included in the
statutory elements of the other.” Commonwealth v. Baldwin, 985 A.2d 830,
833 (Pa. 2009). However, “there is no merger if each offense requires proof
of an element the other does not.” Commonwealth v. Quintua, 56 A.3d
399, 401 (Pa. Super. 2012) (citations omitted).
“When considering whether there is a single criminal act or multiple
criminal acts, the question is not whether there was a break in the chain of
criminal activity[, but] … whether the actor commits multiple criminal acts
beyond that which is necessary to establish the bare elements of the additional
crime[.]” Commonwealth v. Pettersen, 49 A.3d 903, 912 (Pa. Super. 2012)
(citation and quotation marks omitted).
Here, the record reflects that Louck’s crimes did not arise from a single
criminal act, as Loucks digitally penetrated A.M.C.’s vagina prior to inserting
his penis into her vagina. See Trial Court Opinion, 11/16/21, at 3 (noting that
there was “clear and credible evidence of not only sexual intercourse, but a
separate and distinct act of digital penetration, which awoke [A.M.C.] and
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preceded the second and subsequent criminal act of sexual intercourse.”).
Loucks is not entitled to a “volume discount for these crimes simply because
he managed to accomplish all the acts within a relatively short period of time.”
Pettersen, 49 A.3d at 912 (citation omitted). Consequently, Loucks has not
met the first part of the merger test and his first claim on appeal is frivolous.
Loucks also argues that the trial court abused its discretion in imposing
consecutive, rather than concurrent sentences for the aggravated indecent
assault and sexual assault convictions. See Anders Brief at 7 n.3. Loucks’s
claim challenges the discretionary aspects of his sentence. See
Commonwealth v. Mastromarino, 2 A.3d 581, 585 (Pa. Super. 2010)
(finding that claim involving the imposition of consecutive sentences
challenged the discretionary aspects of sentencing).
“Challenges to the discretionary aspects of sentencing do not entitle an
appellant to review as of right.” Commonwealth v. Moury, 992 A.2d 162,
170 (Pa. Super. 2010). Prior to reaching the merits of a discretionary
sentencing issue, this Court conducts
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).
Moury, 992 A.2d at 170 (citation and brackets omitted).
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Here, Loucks timely filed this direct appeal. However, our review of the
record reflects Loucks did not raise this specific challenge to the discretionary
aspects of his sentence in a post-sentence motion or at the time of sentencing.
The failure to preserve a discretionary sentencing claim with the trial court in
a timely post-sentence motion results in waiver even when appellate counsel
petitions for withdrawal in the context of Anders. See Commonwealth v.
Cartrette, 83 A.3d 1030, 1042 (Pa. Super. 2013) (en banc) (“Absent [a
timely post-sentence motion or claim raised during sentencing], an objection
to a discretionary aspect of a sentence is waived.” (citation omitted)); see
also Commonwealth v. Cox, 231 A.3d 1011, 1016 (Pa. Super. 2020)
(explaining that precedent does not permit “this Court to address issues that
were not properly preserved in the trial court” and “the mere filing of an
Anders brief and petition to withdraw will not serve to resuscitate claims that
were already waived upon the filing of the notice of appeal”).4
Therefore, we are constrained to conclude that Loucks’s issue is waived,
and we are precluded from addressing its merits. Consequently, the
discretionary aspects of sentencing issue is frivolous because it is not
reviewable on direct appeal. See Commonwealth v. Kalichak, 943 A.2d
____________________________________________4 We also note that a Rule 2119(f) statement was not included in the Anders
brief, nor has a substantial question been raised. See, e.g., Commonwealth
v. Caldwell, 117 A.3d 763, 769 (Pa. Super. 2015) (“A court’s exercise of
discretion in imposing a sentence concurrently or consecutively does not
ordinarily raise a substantial question.” (citation omitted)).
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285, 291 (Pa. Super. 2008) (stating that when an issue has been waived,
“pursuing th[e] matter on direct appeal is frivolous.”).5
Next, the Anders brief alludes to a challenge to the weight of the
evidence. See Anders Brief at 7-8.
Pennsylvania Rule of Criminal Procedure 607(A) requires a challenge to
the weight of the evidence to be raised with the trial court in a motion for a
new trial that is presented “(1) orally, on the record, at any time before
sentencing; (2) by written motion at any time before sentencing; or (3) in a
post-sentence motion.” Pa.R.Crim.P. 607(A); see also id., cmt. (providing
that “[t]he purpose of this rule is to make it clear that a challenge to the
weight of the evidence must be raised with the trial judge or it will be
waived.”). A failure to present a weight claim to the trial court via one of the
prescribed methods constitutes waiver. See Commonwealth v. Lofton, 57
A.3d 1270, 1273 (Pa. Super. 2012).
Here, Attorney Beardsley concedes that the challenge to the weight of
the evidence is waived because neither trial counsel nor Loucks preserved
such an objection in the trial court. See Anders Brief at 8. Our review of the
docket confirms counsel’s representation. See Cox, 231 A.3d at 1016.
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5 We highlight that “[l]ong-standing precedent of this Court recognizes that
42 Pa.C.S.[A.] § 9721(a) affords the sentencing court discretion to impose
its sentence concurrently or consecutively to other sentences being imposed
at the same time.” Commonwealth v. Aulisio, 253 A.3d 338, 343 (Pa.
Super. 2021).
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Accordingly, any challenge to the weight of the evidence in this case would be
frivolous since such a claim was not properly preserved. See id.Finally, regarding Loucks’s arguments that his trial counsel was
ineffective, litigation of such claims is not a proper component of an
appellant’s direct appeal and is presumptively deferred for collateral attack
under the Post Conviction Relief Act (“PCRA”). See Commonwealth v.
Holmes, 79 A.3d 562, 563 (Pa. 2013). While reaffirming the general rule that
ineffectiveness claims may only be raised on collateral review, our Supreme
Court created two recognized exceptions, which are within the trial court’s
discretion: (1) “a discrete claim (or claims) of trial counsel ineffectiveness is
apparent from the record and meritorious to the extent that immediate
consideration best serves the interests of justice[,]” and (2) “where the
defendant seeks to litigate multiple or prolix claims of counsel ineffectiveness,
including non-record based claims, on post-verdict motions and direct appeal”
but only where good cause is shown and post-conviction review of the claim
has already been waived. Id. at 563-64. Further, our Supreme Court adopted
a third exception for “claims challenging trial counsel’s performance where the
defendant is statutorily precluded from obtaining subsequent PCRA review.”
Commonwealth v. Delgros, 183 A.3d 352, 361 (Pa. 2018). None of these
exceptions are applicable in the instant case. Accordingly, we dismiss Loucks’s
ineffective assistance of counsel issue without prejudice to raise this claim in
a timely PCRA petition. See Commonwealth v. Stollar, 84 A.3d 635, 652
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(Pa. 2014) (dismissing, pursuant to Holmes, the appellant’s ineffective
assistance of counsel claims raised on direct appeal without prejudice to
pursue them on collateral review).
As we cannot find any additional meritorious issues in the record, and
we agree with Attorney Beardsley that Loucks’s appeal is frivolous, we grant
his petition for leave to withdraw from representation.
Petition to withdraw as counsel granted. Judgment of sentence affirmed.
Judge Dubow joins the memorandum.
Judge Olson concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 05/01/2023
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