Com. v. Netherton, J.

J-S26041-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

JACOB LEE DIAMOND NETHERTON :

:

Appellant : No. 107 MDA 2022

Appeal from the Judgment of Sentence Entered December 20, 2021

In the Court of Common Pleas of Bradford County Criminal Division at

No(s): CP-08-CR-0000575-2021

BEFORE: KUNSELMAN, J., McCAFFERY, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.: FILED: AUGUST 23, 2022

Appellant, Jacob Lee Diamond Netherton, appeals from the judgment of

sentence imposed after he pleaded guilty to one count of Indecent Assault-

complainant less than 16 years of age, 18 Pa.C.S. § 3126(a)(8). Counsel has

filed a petition to withdraw and a brief pursuant to Anders v. California, 386

U.S. 738 (1967), and Commonwealth v. Santiago, 978 A.2d 349 (Pa.

2009), on the grounds that Appellant’s appeal is wholly frivolous. We grant

counsel's petition to withdraw and affirm the judgment of sentence.

On June 4, 2021, Appellant was charged with Indecent Assault and

Corruption of Minors for alleged conduct occurring when he was 18 years of

age and his alleged victim was 13 years of age. On November 8, 2021,

Appellant entered an open plea of nolo contendere to Indecent Assault, and

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* Former Justice specially assigned to the Superior Court.

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on December 20, 2021, he received a lower-end standard range sentence of

eight months to 23 months, 29 days’ incarceration that aligned with defense

counsel’s request for a lower-end standard guideline range sentence.1, 2

The trial court denied Appellant’s post-sentence motion on January 4,

2022, and this timely appeal followed. However, counsel has filed an Anders

brief and a petition to withdraw. Counsel’s Anders brief identifies three

issues:

1. Was the sentence imposed on Defendant excessive?

2. Did the trial judge have a conflict of interest such that Her Honor

should have recused herself from hearing the case?

3. Did the trial court error in denying the Post Sentence Motion to

Withdraw the [plea of nolo contendere] filed by the Defendant?

Anders brief, at 3.

Before we may address the issues counsel has identified, we must first

attend to counsel's request to withdraw. See Commonwealth v. Daniels,

999 A.2d 590, 593 (Pa. Super. 2010). The petition to withdraw must state

that, “after making a conscientious examination of the record, counsel has

determined that the appeal would be frivolous.” Commonwealth v.

Cartrette, 83 A.3d 1030, 1032 (Pa. Super. 2013) (en banc). Counsel must

also advise the defendant that he “has the right to retain private counsel or

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1 The standard range sentence applicable to Appellant was six to 12 months.

2At the sentencing hearing of December 20, 2021, Appellant also received a

sentence on one count of Disorderly Conduct from a separate docket.

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raise additional arguments that [she] deems worthy of the court's

attention.” Id.

Counsel also is required to file an Anders brief and provide a copy to

the client. The Anders brief must do all of the following:

(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 Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009)).

Upon review, it appears that counsel has complied with the procedural

requirements of Anders, Commonwealth v. McClendon, 434 A.2d 1185

(Pa. 1981), and their progeny. His petition to withdraw states that he

conducted a conscientious examination of the record and found the appeal to

be wholly frivolous. Counsel provided Appellant with a letter advising him of

his rights pursuant to Commonwealth v. Millisock, 873 A.2d 748 (Pa.

Super. 2005) (requiring advisement of right to retain new counsel or to

proceed pro se in response to the Anders brief). Both the letter and the

withdrawal petition are attached to counsel’s Anders brief, which contains

proof of service on Appellant. The Millisock letter also references both the

petition and the brief as having been enclosed with the letter.

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Counsel’s Anders brief substantially complies with the requirements set

forth in Santiago. It provides a summary of the case's procedural history

and facts—although without citations to the record; identifies the issues that

he believes arguably support the appeal; states counsel's conclusion that the

appeal is frivolous; and explains his reasons for that conclusion. See id. The

brief also contains copies of Appellant’s Pa.R.A.P. 1925(b) statement and the

trial court opinion. To date, Appellant has not responded to the petition to

withdraw as counsel.

The first issue raised in the Anders brief addresses Appellant’s

contention that his sentence was too harsh. This claim goes to the

discretionary aspects of his sentence. See Commonwealth v. Caldwell,

117 A.3d 763, 768 (Pa. Super. 2015). We engage in a four-step inquiry before

reaching the merits of a challenge to discretionary aspects of sentencing:

(1) the filing a timely notice of appeal; (2) properly preserving the

issue at sentencing or in a motion to reconsider and modify the

sentence; (3) complying with Pa.R.A.P. 2119(f), which requires a

separate section of the brief setting forth “a concise statement of

the reasons relied upon for allowance of appeal with respect to the

discretionary aspects of a sentence[;]” and (4) presenting a

substantial question that the sentence appealed from is not

appropriate under the Sentencing Code, 42 Pa.C.S. § 9781(b).

Commonwealth v. Dempster, 187 A.3d 266, 272 (Pa. Super. 2018)(en

banc) (citation omitted).

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Here, Appellant timely appealed, but neither at his sentencing hearing

nor in his post-sentence motion did he claim his sentence was excessive.

Accordingly, he has waived this issue.3

The second issue raised in the Anders brief submits that the trial judge

had a conflict of interest, requiring recusal, because she presided over

Appellant’s various juvenile proceedings. Appellant contends, therefore, that

he was denied a fair guilty plea hearing and sentencing hearing.

This issue is waived, as Appellant never raised it before the trial court.

See Commonwealth v. Rominger, 199 A.3d 964 (Pa. Super. 2018) (holding

motion to recuse trial judge waived where first raised in post-sentence

motion). Here, Appellant first raised the issue of recusal in his Pa.R.A.P.

1925(b) concise statement.

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3 Even if Appellant had preserved this issue, we discern no support in the

record for Appellant’s assertion that his sentence at the low end of the

guideline standard range raised a substantial question implicating either a

specific provision of the Sentencing Code or the fundamental norms which

underlie the sentencing process. See Caldwell, 117 A.3d at 768 (instructing

the manner in which an excessiveness claim may sufficiently articulate raise

a substantial question.)

In addition, we note Appellant’s brief does not contain a Rule 2119(f)

statement. However, where counsel has filed an Anders brief, the failure to

include a Rule 2119(f) statement in the brief does not preclude us from

determining whether the appeal is wholly frivolous. See Commonwealth v.

Zeigler, 112 A.3d 656, 661 (Pa. Super. 2015) (citations omitted). Thus, our

review would not be barred by the lack of a Rule 2119(f) statement.

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Even assuming, arguendo, that the issue were not waived,4 we would

find it raises a claim that is without support in the record. “The party who

asserts that a trial judge must be disqualified bears the burden of producing

evidence establishing bias, prejudice, or unfairness necessitating recusal.”

Commonwealth v. Darush, 459 A.2d 727, 731 (Pa. 1983).

A review of the plea and sentencing hearings reveals no indication of

bias, prejudice, or unfairness towards Appellant. Indeed, even after

acknowledging Appellant’s juvenile record—which included a 2018

adjudication of delinquency for attempted rape and an alleged sexual assault

of a staff member at the juvenile placement facility—and noting he committed

the present indecent assault only two months after being released from

supervision, the trial court somewhat surprisingly sentenced Appellant at the

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4In Allied Elec. Supply Co. v. Roberts, 797 A.2d 362 (Pa. Super. 2002),

we observed there is an

exception to the waiver doctrine in cases where the “alleged error

involved the conduct of the Trial Court in overseeing the trial”. . .

. [See] Commonwealth v. Hammer, 494 A.2d 1054 (Pa.

1985); Dimonte v. Neumann Medical Ctr., 751 A.2d 205 (Pa.

Super. 2000). In those cases, the trial judge himself acted

inappropriately during the proceedings; thus an objection would

have required counsel to “directly challenge the authority of the

court by suggesting the judge is deficient in his duties.” DiMonte,

supra at 209.

Allied Elec. Supply Co., 797 A.2d at 365 n.3. Such an exception is clearly

irrelevant here, where there is no indication of improper judicial conduct

during the guilty plea colloquy or the sentencing hearing.

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lower end of the guideline standard range. Under the circumstances, pointing

to such a sentence fails to satisfy Appellant’s burden described above.

The third issue raised in the Anders brief asserts that the trial court

erred in denying Appellant’s post-sentence motion to withdraw his guilty plea.

It is well settled that a criminal defendant “has no absolute right to withdraw

a guilty plea; rather, the decision to grant such a motion lies within the sound

discretion of the trial court.” Commonwealth v. Muhammad, 794 A.2d 378,

382 (Pa. Super. 2002) (citation omitted).

We review the denial of a motion to withdraw a guilty plea for an abuse

of discretion. Commonwealth v. Gordy, 73 A.3d 620, 624 (Pa. Super.

2013). “An abuse of discretion is not a mere error in judgment but, rather,

involves bias, ill will, partiality, prejudice, manifest unreasonableness, and/or

misapplication of law.” Id. (citation omitted).

A defendant's burden of proof for withdrawing a guilty plea “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). While pre-sentence requests to withdraw guilty pleas are liberally

allowed, “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.” Commonwealth v. Culsoir, 209 A.3d 433, 437

(Pa. Super. 2019).

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There is no dispute that Appellant’s counseled request to withdraw his

plea occurred after sentencing, but there was also an understanding among

the trial court and both counsel at the outset of the sentencing hearing that

Appellant had asserted his innocence to the probation office during a post-

guilty plea, pre-sentencing interview. N.T., 12/20/21, at 6. Because the

Anders brief addresses this pre-sentence assertion without completely

developing the issue for appellate review, we shall address it presently as part

of our independent review of the record.

Appellant had reported the minor admitted in text messages to him that

their encounter was consensual and that she made her accusation against him

only after her parents pressured her to do so. When the trial court

acknowledged at sentencing that Appellant was thus asserting his innocence,

Appellant nodded in agreement. N.T. at 6. Therefore, the trial court was

aware of Appellant’s assertion of innocence and that it relied entirely on the

minor’s claim of consent.

Consent, however, is not a defense to the indecent assault charge

against Appellant. Section 3126(a)(8) requires only proof that a defendant

had indecent contact with the complainant, that the complainant was less than

16 years old, and that the defendant was four or more years older than the

complainant and not married to the complainant. 18 Pa.C.S. § 3126(a)(8) 5;

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5 Subsection (a)(8) of Section 3126, Indecent Assault, provides:

(Footnote Continued Next Page)

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Commonwealth v. Castelhun, 889 A.2d 1228, 1233-34 & n.8 (Pa. Super.

2005) (recognizing consent is not a defense to Section 3126(a)(8);

Commonwealth v. Bricker, No. 586 WDA 2021, 2022 unpublished

memorandum, at *4 (Pa. Super. filed Apr. 19, 2022).6

Therefore, Appellant’s assertion was merely that of a mistaken belief

that he possessed a legal defense to the charge; it was not an assertion of

innocence in fact. The facts, as Appellant continually acknowledged without

exception, were that he secreted the girl to the basement of the high school,

where he kissed her, put his hand down her pants, and touched her genitalia.7

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(a) Offense defined.--A person is guilty of indecent assault if

the person has indecent contact with the complainant,

causes the complainant to have indecent contact with the

person or intentionally causes the complainant to come into

contact with seminal fluid, urine or feces for the purpose of

arousing sexual desire in the person or the complainant and:

...

(8) the complainant is less than 16 years of age and the person is

four or more years older than the complainant and the

complainant and the person are not married to each other.

18 Pa.C.S. § 3126(a)(8).

6 See Pa.R.A.P. 126(b) (providing that unpublished non-precedential

memorandum decisions of the Superior Court filed after May 1, 2019 may be

cited for their persuasive value).

7 When asked at the plea hearing if he contested those facts, Appellant

answered, “No.” N.T., 11/08/21, at 4. He then began to repeat the same

facts when he misunderstood the court’s request to offer his own words on

what happened with respect to the disorderly conduct plea, stating, “Yes, Your

(Footnote Continued Next Page)

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Appellant never denied committing these acts. As such, Appellant has put

forward no support for his claim of innocence.

Controlling jurisprudence on pre-sentence assertions of innocence

requires an appellant to demonstrate a fair and just reason for withdrawing

his plea. Commonwealth v. Carrasquillo, 115 A.3d 1284, 1292 (Pa. 2015).

On what constitutes such a qualifying reason, we observed:

The Carrasquillo Court, breaking with prior precedent, held that

a bare assertion of innocence is no longer a fair and just reason

permitting a pre-sentence withdrawal of a guilty plea. Instead, “a

defendant's innocence claim must be at least plausible to

demonstrate, in and of itself, a fair and just reason for

presentence withdrawal of a plea.” Carrasquillo, 115 A.3d at

1292. Our High Court outlined that the correct 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.” Id. In that decision, our Supreme

Court ruled that the defendant had not offered a plausible

innocence claim given that it was rather bizarre—a “devil made

me to it” claim of innocence—and since the innocence claim was

offered just prior to sentencing. Id. See also Commonwealth

v. Hvizda, [116 A.3d 1103 (Pa. 2015)] (companion case

to Carrasquillo).

Commonwealth v. Baez, 169 A.3d 35, 39 (Pa. Super. 2017)

From this record, we discern no abuse of discretion by the trial court in

rejecting Appellant's pre-sentence assertion and commencing with sentencing

on the basis of his plea. Under the terms of Section 3126(a)(8), Appellant’s

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Honor. I – I kissed her. I kissed her and I had my ha…”, until defense counsel

stopped him and redirected him to describe the disorderly conduct. N.T. at 4.

When asked if he entered his plea knowingly, voluntarily, and of his own free

will, he replied, “yes.” N.T. at 6.

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proffer of consent evidence would not demonstrate his innocence, and his

statements made during not only the written and oral plea colloquies but also

the sentencing hearing admitted to the accusations against him. Therefore,

without a plausible claim of innocence, a fair and just reason for withdrawing

Appellant’s plea was lacking. See Carrasquillo, 115 A.3d at 1292.

To the extent the Anders brief argues that the trial court erroneously

rejected the identical issue raised in his counseled post-sentence motion, it

affords Appellant no relief. To prevail on a post-sentence request to withdraw

a plea, “[a] defendant must demonstrate that manifest injustice would result

if the court were to deny his post-sentence motion to withdraw a guilty plea.

Manifest injustice may be established if the plea was not tendered knowingly,

intelligently, and voluntarily.” Commonwealth v. Kehr, 180 A.3d 754, 756-

57 (Pa. Super. 2018) (internal quotation marks omitted). The determination

as to whether a guilty plea was involuntary is made by examining the totality

of the circumstances surrounding the plea, including whether the trial court

elicited the following information:

(1) Does the Appellant understand the nature of the charges to

which he or she is pleading guilty or nolo contendere?

(2) Is there a factual basis for the plea?

(3) Does the Appellant understand that he or she has the right to

trial by jury?

(4) Does the appellant understand that he or she is presumed

innocent until found guilty?

(5) Is the Appellant aware of the permissible range of sentences

and/or fines for the offenses charged?

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(6) Is the Appellant aware that the judge is not bound by the

terms of any plea agreement tendered unless the judge accepts

such agreement?

See Commonwealth v. Yeomans, 24 A.3d 1044, 1047 (Pa. Super.

2011); see also Pa.R.Crim.P. 590 (setting forth criteria necessary for a party

to enter a plea or plea agreement).

A review of the transcript from the guilty-plea hearing makes clear that

the trial court followed its mandate, made all relevant inquiries, and Appellant

responded in the affirmative appropriately. N.T., 11/8/21, at 2-8. Further,

“[a] person who elects to plead guilty is bound by the statements he makes

in open court while under oath and he may not later assert grounds for

withdrawing the plea which contradict the statements he made at his plea

colloquy.” Commonwealth v. Pollard, 832 A.2d 517, 523 (Pa. Super.

2003). Moreover, we note that an assertion of innocence is not sufficient to

demonstrate the manifest injustice required for the post-sentence withdrawal

of a guilty plea. Commonwealth v. Kpou, 153 A.3d 1020, 1024 (Pa. Super.

2016).

In the instant case, therefore, the totality of the circumstances supports

the conclusion that Appellant knowingly, voluntarily, and intelligently entered

into the guilty plea. Thus, Appellant cannot show he suffered prejudice on the

order of manifest injustice required for the withdrawal of a plea after he was

sentenced.

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Finally, we have conducted an independent review of the record in order

to determine if there are any additional, non-frivolous issues overlooked by

counsel. Commonwealth v. Yorgey, 188 A.3d1190, at 1198-1199 (Pa.

Super. 2018) (en banc). Following our review, we conclude that there are no

additional issues of merit and an appeal in this matter is frivolous.

Petition to withdraw as counsel granted. Judgment of sentence

affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 8/23/2022

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