The opinion
J-S30043-24
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
KEVIN RAY BRADLEY :
:
Appellant : No. 123 MDA 2024
Appeal from the Judgment of Sentence Entered December 29, 2023
In the Court of Common Pleas of Lycoming County Criminal Division at
No(s): CP-41-CR-0000076-2022
BEFORE: PANELLA, P.J.E., SULLIVAN, J., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED: MARCH 7, 2025
Appellant Kevin Ray Bradley appeals from the judgment of sentence
entered by the Court of Common Pleas of Lycoming County after Appellant
entered a nolo contendere plea (“nolo plea”)1 to Obstructing Administration of
Law or Other Governmental Function and Harassment. Appellant’s attorney,
Nicole J. Spring, Esq. (“appellate counsel”), previously filed an application to
withdraw and a brief pursuant to Anders v. California, 386 U.S. 738 (1967).
We denied appellate counsel’s motion to withdraw and remanded for her to
file an advocate’s brief given there was a non-frivolous issue to appeal.
Appellate counsel has filed an advocate’s brief, arguing that Appellant should
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* Former Justice specially assigned to the Superior Court.
1 “[A] plea of nolo contendere is ‘a plea by which a defendant does not
expressly admit his guilt, but nonetheless waives his right to a trial and
authorizes the court for purposes of sentencing to treat him as if he were
guilty.’” Commonwealth v. V.G., 9 A.3d 222, 226 (Pa.Super. 2010) (quoting
North Carolina v. Alford, 400 U.S. 25, 36 (1970)) (other citation omitted).
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be allowed to withdraw his nolo plea, which was based on trial counsel’s
erroneous advice. After careful review, we are constrained to affirm.
We previously summarized the factual background and procedural
history of this case as follows:
In June 2021, Appellant was initially charged with two
counts each of Intercepting Communications (18 Pa.C.S.A. §
5703(1)) and Disclosure of Intercepted Communications (18
Pa.C.S.A. § 5703(2)), offenses defined in the Wiretapping and
Electronic Surveillance Control Act (“Wiretap Act”).2 The
prosecution alleged that Appellant had secretly recorded separate
conversations with the Mayor of Williamsport, Pennsylvania and
the Pennsylvania Supreme Court Deputy Prothonotary without
their consent and uploaded those conversations to his YouTube
channel. On December 29, 2023, the trial court granted the
Commonwealth’s uncontested motion to amend the information
to add Counts 5 and 6 (Obstructing Administration of Law or Other
Governmental Function and Harassment), both of which were
graded as misdemeanors.
On the same date, Appellant entered a negotiated nolo
contendere plea to Obstructing Administration of Law or Other
Governmental Function and Harassment. Appellant submitted a
written plea colloquy in which he acknowledged that in entering
this plea, he was “waiving [his] right to object to anything that
[he thought] was improper or illegal in the apprehension and
arrest, or in the investigation, and the prosecution of the charges
against [him].” Written plea colloquy, 12/29/23, at 5. Appellant
also acknowledged in the plea colloquy that an appeal of his plea
agreement was limited to four grounds: (1) that his plea was not
a knowing, understanding, and voluntary act, (2) that the trial
court did not have jurisdiction to accept his plea, (3) that the
sentence was improper, illegal, or in excess of the plea
agreement, and (4) that his attorney was ineffective in improperly
inducing the plea.
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2 All of the charges pursuant to Section 5703 were graded as felonies of the
third degree. 18 Pa.C.S.A. § 5703.
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At the plea hearing, the trial court specifically asked defense
attorney Richard Coble, Esq. (“trial counsel”) to confirm that
Appellant was not contesting that the Commonwealth could
present evidence to convict Appellant of the obstruction and
harassment charges. Trial counsel agreed and noted that “[a]s
currently construed, [Appellant] believes with the evidence that
he would be convicted under the statute.” Notes of Testimony
(N.T.), 12/29/23, at 6 (emphasis added).
The trial court accepted Appellant’s plea and sentenced him
to three years’ reporting probation.3 Immediately following the
sentencing, trial counsel advised the trial court that Appellant
wished to appeal the constitutionality of the Wiretap Act. Trial
counsel then requested that Appellant’s sentence be deferred for
thirty days to allow Appellant to appeal that issue. N.T.,
12/29/23, at 6. The trial court’s sentencing order indicates that
Appellant’s sentencing was deferred until January 30, 2024 to give
Appellant the opportunity to appeal his sentence.
On January 22, 2024, Appellant filed a pro se notice of
appeal. On January 24, 2024, the trial court directed Appellant to
file a concise statement of errors complained of on appeal
pursuant to Pa.R.A.P. 1925(b). On January 30, 2024, Appellant
filed a pro se concise statement, claiming trial counsel “gave bad
advice and was incompetent” in advising Appellant to enter a nolo
contendere plea when trial counsel knew that Appellant planned
to appeal to challenge the constitutionality of Pennsylvania’s
Wiretap Act. Appellant also indicated that trial counsel had
informed him after sentencing that he was not qualified to serve
as an appellate attorney and had advised Appellant to retain other
counsel to file an appeal or to seek the appointment of a public
defender.
On February 7, 2024, Appellant filed a pro se motion to
remove trial counsel from his representation and asserted that he
would proceed pro se on appeal.4 Appellant provided the trial
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3 The docket entries show that the four felony charges under Section 5703
were dismissed on the day Appellant entered his plea to Obstructing
Administration of Law or Other Governmental Function and Harassment (both
graded as misdemeanors).
4 Although “pro se filings submitted by counseled defendants are generally
treated as legal nullities,” Appellant’s pro se notice of appeal was properly
(Footnote Continued Next Page)
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court with a copy of an email from trial counsel indicating that he
would not represent Appellant on appeal. On March 1, 2024, trial
counsel filed a petition to withdraw his representation, citing “a
fundamental breakdown of the attorney-client relationship.”
Motion to Withdraw, 3/1/24, at 2.
On March 11, 2024, the trial court held a hearing to evaluate
Appellant’s request to proceed pro se pursuant to
Commonwealth v. Grazier, 552 Pa. 9, 713 A.2d (1998).
Thereafter, the trial court granted Appellant’s motion to remove
trial counsel and appointed the Public Defender’s Office to
represent Appellant on appeal. Appellate counsel filed a petition
to withdraw her representation along with an Anders brief.
Commonwealth v. Bradley, ___A.3d___, 2024 WL 4631683 (Pa.Super.
2024).
On appeal, we determined that appellate counsel’s brief complied with
the procedural requirements attendant to Anders. However, in our
independent review of the record, this Court determined that there was a non-
frivolous issue not adequately addressed by counsel; Appellant had raised a
pro se claim that trial counsel was ineffective in directing him to enter a nolo
plea while informing him he could still appeal the constitutionality of the
Wiretap Act. In its opinion pursuant to Pa.R.A.P. 1925(a), the trial court noted
that it appeared that Appellant entered his nolo plea “under the mistaken
belief that, while admitting he understood the law as currently instructed, his
no contest plea would be a vehicle to challenge the constitutionality of the law
on appeal.” Trial Court Opinion, 4/3/24, at 4.
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docketed in this case to protect his right to appeal as Appellant was effectively
unrepresented after the judgment of sentence was entered. Commonwealth
v. Williams, 241 A.3d 353, 355 (Pa.Super. 2020) (citation omitted).
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This Court acknowledged that as a general rule, “claims of ineffective
assistance of counsel are to be deferred to PCRA review, … such claims should
not be reviewed upon direct appeal.” Commonwealth v. Holmes, 621 Pa.
595, 79 A.3d 562 (2013) (citing Commonwealth v. Grant, 572 Pa. 48, 813
A.2d 726 (2002)). However, this Court also emphasized that our Supreme
Court has made several exceptions to the general rule that ineffectiveness
claims are only cognizable in a PCRA petition, including where the claim of
ineffective assistance of counsel “is apparent from the record and meritorious
to the extent that immediate consideration [of the claim] best serves the
interests of justice.” See Holmes, 79 A.3d at 563-64.5
Appellate counsel had asserted in her Anders brief that this appeal was
frivolous as the entry of Appellant’s nolo plea waived his ability to raise his
constitutional claims on appeal. See Commonwealth v. Eisenberg, 626 Pa.
512, 98 A.3d 1268, 1275 (2014) (citation omitted) (“upon entry of a guilty
plea, a defendant waives all claims and defenses other those “sounding in the
jurisdiction of the court, the validity of the plea, and what has been termed
the ‘legality’ of the sentence imposed”).
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5 The Holmes court recognized a second exception to allow review of
ineffectiveness claims on direct appeal “where there is good cause shown and
the defendant has expressly and knowingly waived his right to seek PCRA
review.” See id. at 563-64. Our Supreme Court has adopted a third
exception, which “requir[es] trial courts to address claims challenging trial
counsel's performance where the defendant is statutorily precluded from
obtaining subsequent PCRA review.” Commonwealth v. Delgros, 646 Pa.
27, 42, 183 A.3d 352, 361 (2018). Neither of these exceptions is applicable.
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Although appellate counsel noted that trial counsel may have been
ineffective in giving Appellant erroneous advice that he could enter a nolo plea
and subsequently raise a constitutional challenge on direct appeal, appellate
counsel made no attempt to identify this as an issue of arguable merit or
discuss whether this Court could review the ineffectiveness claim on direct
appeal under Holmes. Further, appellate counsel failed to include any
discussion of the fact that trial counsel had not assisted Appellant with filing a
post-sentence motion or an appeal despite knowing that Appellant wished to
pursue constitutional challenges to the statutes at issue.
Based on our review of the certified record, we could not conclude that
Appellant’s pro se attempt to challenge trial counsel’s ineffectiveness on direct
appeal was so clearly devoid of merit as to warrant classifying this appeal as
frivolous. As such, we denied appellant counsel’s application to withdraw and
remanded for her to file an advocate’s brief.6 The Commonwealth was
subsequently given an opportunity to file a responsive brief.
Appellate counsel frames the issue on appeal as follows:
Was plea counsel ineffective for advising Appellant to enter
a no contest plea to offenses when he was aware that Appellant
wanted to appeal the constitutionality of the statutes with which
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6 The Anders procedure requires this Court to “conduct a review of the record
to ascertain if[,] on its face, there are non-frivolous issues that counsel,
intentionally or not, missed or misstated.” Commonwealth v. Yorgey, 188
A.3d 1190, 1195 (Pa.Super. 2018) (en banc). However, as this Court does
not “act as counsel or otherwise advocate on behalf a party,” this Court “need
not analyze those issues of arguable merit; just identify them, deny the
motion to withdraw, and order counsel to analyze them.” Id.
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he was originally charged; and therefore, should the Court review
ineffectiveness claim on direct appeal and permit Appellant to
withdraw his plea?
Appellant’s Brief, at 7.
To reiterate, to allow for the review of an ineffectiveness claim on direct
appeal under Holmes, the defendant must show that the ineffectiveness “is
apparent from the record and meritorious to the extent that immediate
consideration [of the claim] best serves the interests of justice.” Holmes, 79
A.3d at 563-64. This Court has held that “a claim is not ‘apparent from the
record’ where the trial court is required to schedule an evidentiary hearing to
reach the merits of a defendant's ineffective assistance of counsel claims.”
Commonwealth v. Watson, 310 A.3d 307, 311 (Pa.Super. 2024).
The following principles are applicable to the review of claims of
ineffectiveness of counsel:
Counsel is presumed effective. Commonwealth v. Fears, 624
Pa. 446, 86 A.3d 795, 804 (2014). To succeed on a claim asserting
the ineffective assistance of counsel, as is raised here, a petitioner
must rebut that presumption by pleading and proving, by a
preponderance of the evidence, three elements: (1) the
underlying claim has arguable merit; (2) counsel had no
reasonable basis for his or her action or inaction; and (3) the
petitioner suffered prejudice as a result of counsel's action or
inaction. Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973,
975-76 (1987). If a petitioner fails to satisfy any one of the three
elements, [his] claim fails. Commonwealth v. Brown, 649 Pa.
293, 196 A.3d 130, 150-51 (2018).
Commonwealth v. Rizor, 304 A.3d 1034, 1051 (Pa. 2023).
Our courts have recognized that “[a] criminal defendant has the right to
effective counsel during a plea process as well as during trial.”
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Commonwealth v. Felix, 303 A.3d 816, 820 (Pa.Super. 2023). We note
that “in terms of its effect upon a case, a plea of nolo contendere is treated
the same as a guilty plea.” Commonwealth v. Prieto, 206 A.3d 529, 533–
34 (Pa.Super. 2019) (citation omitted). Allegations of ineffectiveness in
connection with the entry of a … plea will serve as a basis for relief only if the
ineffectiveness caused the defendant to enter an involuntary or unknowing
plea.” Commonwealth v. Kehr, 180 A.3d 754, 760 (Pa.Super. 2018)
(quoting Commonwealth v. Allen, 557 Pa. 135, 732 A.2d 582 (1999)).
In this context, prejudice may be established by demonstrating a
reasonable probability that [the defendant] would have opted to go to trial
rather than plead guilty had he been given legally sound advice.”
Commonwealth v. Barndt, 74 A.3d 185, 199–200 (Pa.Super. 2013) (citing
Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366 (1985); Commonwealth
v. Rathfon, 899 A.2d 365, 369-70 (Pa.Super. 2006)). “The reasonable
probability test is not a stringent one”; it merely refers to “a probability
sufficient to undermine confidence in the outcome.” Rathfon, 899 A.2d at 370
(quoting Commonwealth v. Hickman, 799 A.2d 136, 141 (Pa.Super.
2002)).
In the advocate’s brief filed after remand, appellate counsel argues that
trial counsel’s ineffectiveness is apparent from the record as the transcript of
the plea/sentencing hearing demonstrates that trial counsel gave Appellant
incorrect advice that rendered his plea unknowing.
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However, even assuming arguendo that trial counsel’s ineffectiveness is
apparent in the certified record, appellate counsel did not include any
discussion in her appellate brief to support a claim of prejudice.7 While
Appellant repeatedly claimed in his pro se filings that trial counsel was
ineffective in advising him to enter a plea based on erroneous advice, it is not
clear from the record whether Appellant would have chosen to go to trial had
he known the entry of his nolo plea would preclude him from raising his
constitutional challenges to the Wiretap Act on appeal. Appellant has never
claimed in his pro se filings or counseled briefs that he would have rejected
the plea offer and gone to trial had he possessed accurate information.8
As it is not apparent from the record whether Appellant can meet the
prejudice prong of the ineffectiveness test, we may not review this
ineffectiveness claim on direct appeal, but are constrained to defer this claim
to collateral review. See Holmes, supra.
Judgment of sentence affirmed.
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7 Appellate counsel does assert that prejudice in this case should be presumed
as Appellant may have been actively or constructively denied counsel.
However, she does not develop any analysis of this bald claim with respect to
the facts in the case or seek any applicable remedy before this Court.
8 Moreover, while appellate counsel asks this Court to allow Appellant to
withdraw his plea, it is also unclear whether Appellant has been properly
advised about the consequences of withdrawing his plea. As noted above, it
appears that Appellant’s four felony charges under the Wiretap Act were
dismissed in exchange for Appellant’s negotiated nolo plea to the two
misdemeanor charges of Obstruction of the Administration of Justice and
Harassment. Appellant may not be aware of the sentencing exposure he could
face if he were permitted to withdraw his plea and the felony charges were
reinstated.
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Judgment Entered.
Benjamin D. Kohler, Esq.
Prothonotary
Date: 3/07/2025
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