J-S79045-14


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,             :    IN THE SUPERIOR COURT OF
                                          :          PENNSYLVANIA
                 Appellee                 :
                                          :
                    v.                    :
                                          :
LORRAINE M. DUTILL,                       :
                                          :
                 Appellant                :    No. 973 EDA 2014


      Appeal from the Judgment of Sentence Entered March 10, 2014
          in the Court of Common Pleas of Philadelphia County,
          Criminal Division, at No(s): CP-51-CR-0012266-2013

BEFORE:     ALLEN, OLSON, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:           FILED FEBRUARY 10, 2015

      Lorraine M. Dutill (Appellant) appeals from the judgment of sentence

of two years of probation entered following her convictions for simple assault

and recklessly endangering another person (REAP).       Specifically, Appellant

challenges the denial of her post-sentence motion to withdraw her plea of

nolo contendere. We affirm.

      On December 10, 2013, Appellant pled nolo contendere to simple

assault and REAP based upon the following factual basis:

      a person by the name of Patricia Anderson who is [Appellant’s]
      mother would state that [Appellant] was going to care for her
      feet, and put her feet in boiling water. When Ms. Anderson said
      that the water was too hot, [Appellant] added more boiling water
      and put her feet back into the boiling water. When confronted
      by Ms. Anderson’s caretaker and by Detective Tolliver,
      [Appellant] blamed the [Ms. Anderson’s] nurse, a Faith Brown.



*Retired Senior Judge assigned to the Superior Court.
J-S79045-14


            However, after [Appellant] left, [Ms. Anderson] did state
     that it was [Appellant who] injured her feet.

N.T., 12/10/2013, at 6.     In exchange for the plea, the Commonwealth

agreed to drop the remaining charges and recommend a sentence of two

years’ probation and an order that Appellant stay away from her mother.

Id. at 5; Written Nolo Contendere Plea Colloquy, 12/10/2013, at 1 (pages

unnumbered).     The trial court accepted Appellant’s no contest plea, and

immediately sentenced her as recommended by the Commonwealth.

     Three days later, Appellant, through different counsel, served a motion

to withdraw her nolo contendere plea. Therein, she sought to withdraw her

plea for the following reasons: (1) she lost her teaching certificate as a

result of the plea; (2) she was unaware and unadvised at the time of the

plea of the “dire circumstances she would incur” as a result of the plea; (3)

she thought her record would be expunged with a nolo contendere plea; (4)

she was “led to believe” that a no contest plea “was not a conviction;” and

(5) the “stay away order” entered as part of her sentence prevented her

from having contact with her mother, who was gravely ill and under hospice

care. Motion to Withdraw Nolo Contendere Plea, 12/17/2013, at ¶¶ 2-6.

     The trial court held hearings on Appellant’s motion on December 17,

2013, and again on March 10, 2014.        At the conclusion of the second




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hearing, the trial court denied the motion. Appellant timely filed a notice of

appeal, and both Appellant and the trial court complied with Pa.R.A.P. 1925.1

        Appellant presents one question for this Court’s review: whether,

under Padilla v. Kentucky, 559 U.S. 356 (2010), Appellant’s lack of

knowledge that she would lose her teaching certificate as a result of her plea

rendered her plea unknowing, involuntary, and/or unintelligent. 2 Appellant’s

Brief at 7.

        Our standard of review is as follows.

        [A]fter the court has imposed a sentence, a defendant can
        withdraw his [nolo contendere] plea only where necessary to
        correct a manifest injustice.     [P]ost-sentence motions for
        withdrawal are subject to higher scrutiny since courts strive to
        discourage the entry of [] pleas as sentencing-testing devices.
        …

1
  This Court entered an order on September 18, 2014, granting the
Commonwealth’s motion for an extension of time to file its brief. The
Commonwealth did not file its brief until more than a month after the
extended deadline.        Accordingly, with Commonwealth offering no
explanation for its failure to comply with this Court’s order, we granted
Appellant’s motion to strike the Commonwealth’s brief.
2
    Verbatim, Appellant’s “question” is as follows.

        THE TRIAL COURT ERRED IN DENYING APPELLANT’S PETITION
        TO WITHDRAW HER GUILTY PLEA. APPELLANT SATISFIED THE
        REQUIREMENTS TENDING TO PROVE THAT HER PLEA WAS NOT
        KNOWING VOLUNTARY OR INTELLIGENT ACCORDING TO AN
        OPINION BY JUSTICE ALITO IN THE PADIA CASE AND THE TRIAL
        COURT THEREFORE ERRED IN CONCLUDING THAT IT DID NOT
        HAVE TO FOLLOW UNITED STATES SUPREME COURT
        PRECEDENT.

Appellant’s Brief at 7.


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            To be valid, a [nolo contendere] plea must be knowingly,
     voluntarily and intelligently entered.      [A] manifest injustice
     occurs when a plea is not tendered knowingly, intelligently,
     voluntarily, and understandingly. The Pennsylvania Rules of
     Criminal Procedure mandate pleas be taken in open court and
     require the court to conduct an on-the-record colloquy to
     ascertain whether a defendant is aware of his rights and the
     consequences of his plea. Under Rule 590, the court should
     confirm, inter alia, that a defendant understands: (1) the nature
     of the charges to which he is pleading [nolo contendere]; (2) the
     factual basis for the plea; (3) he is giving up his right to trial by
     jury; (4) and the presumption of innocence; (5) he is aware of
     the permissible ranges of sentences and fines possible; and (6)
     the court is not bound by the terms of the agreement unless the
     court accepts the plea. The reviewing Court will evaluate the
     adequacy of the plea colloquy and the voluntariness of the
     resulting plea by examining the totality of the circumstances
     surrounding the entry of that plea. Pennsylvania law presumes a
     defendant who entered a [nolo contendere] plea was aware of
     what he was doing, and the defendant bears the burden of
     proving otherwise.

Commonwealth v. Prendes, 97 A.3d 337, 352 (Pa. Super. 2014) (citations

and quotation marks omitted; footnote added).3

     Appellant argues that, because her plea agreement involved a

negotiated sentence, she was not sentence-testing,4 and thus, she should

not be required to satisfy the harsher post-sentence standard. Appellant’s

3
  Although the Court in Prendes discussed withdrawal of a guilty plea, “in
terms of its effect upon a case, a plea of nolo contendere is treated the same
as a guilty plea.” Commonwealth v. Kepner, 34 A.3d 162, 166 n.6 (Pa.
Super. 2011) (quoting Commonwealth v. Lewis, 791 A.2d 1227, 1230
(Pa. Super 2002)).
4
 “[A] criminal defendant who is sentenced to more than was agreed upon in
a negotiated plea may withdraw his guilty plea upon being deprived of the
benefit of his bargain.” Commonwealth v. Tann, 79 A.3d 1130, 1133 (Pa.
Super. 2013).


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Brief at 17. Because she cites no authority to support this proposition, we

follow the well-established law quoted above and apply the manifest

injustice standard in reviewing Appellant’s post-sentence motion to withdraw

her plea.

      In her brief on appeal, Appellant makes no argument that the plea

colloquy failed to address the issues required to be covered by Pa.R.Crim.P.

590. Her main complaint is that she would not have entered her plea had

she known that she would lose her teaching certificate as a result.

      Throughout    her   brief,   Appellant   acknowledges   that   this   claim

implicates a collateral consequence of her plea. See, e.g., Appellant’s Brief

at 14 (“[Plea counsel] never investigated or advised Appellant on the

collateral consequences of the nolo plea.”); id. at 24 (“[Plea counsel] had

admittedly failed to investigate the collateral consequences of a nolo plea on

Appellant’s teaching certificate.”).

      “[A] defendant’s lack of knowledge of [the] collateral consequences to

his or her pleading guilty or nolo contendere fails to undermine the validity

of the plea.”   Commonwealth v. Leidig, 956 A.2d 399, 406 (Pa. 2008).

Therefore, Appellant’s lack of understanding of the effect her plea had or

may have upon her teaching certificate does not invalidate her plea.

Accordingly, the trial court did not err in refusing to allow Appellant to

withdraw her plea on this basis.




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       Appellant discusses at length in her brief the alleged ineffectiveness of

plea   counsel     under    the     holdings    of    cases,      such    as     Padilla    and

Commonwealth v. Abraham, 62 A.3d 343 (Pa. 2012), which address

claims filed pursuant to a Post Conviction Relief Act (PCRA).                      Appellant’s

Brief at 17-22.        Appellant similarly claims that counsel misled her into

believing   that   a    plea   of   nolo   contendere       did    not    carry    the     same

consequences as a guilty plea. Id. at 22-23.

       The instant case is before us on direct appeal. Our Supreme Court has

made clear the general rule5 that “claims of ineffective assistance of counsel

are to be deferred to PCRA review; trial courts should not entertain claims of

ineffectiveness upon post-verdict motions; and such claims should not be

reviewed upon direct appeal.”          Commonwealth v. Holmes, 621 Pa. 595,

620, 79 A.3d 562, 576 (Pa. 2013).              Thus, the trial court should not have

entertained   ineffectiveness       testimony        or   argument       while    adjudicating

Appellant’s post-sentence motion, and this Court will not in this appeal

review Appellant’s claim of ineffective assistance of counsel.                    Appellant is

free to raise the claim in a PCRA petition after direct review is complete.

       Appellant also complains in great detail in her brief about the

weakness of the evidence offered by the Commonwealth at Appellant’s



5
  Although there are exceptions to the general rule, Appellant does not argue
that any exception is applicable. Specifically, there is no indication that
Appellant has waived her PCRA rights and is seeking unitary review.


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preliminary hearing. Appellant’s Brief at 11-14. Even if she had not waived

the issue by failing to include it in her statement of questions presented, see

Pa.R.A.P. 2116(a) (“No question will be considered unless it is stated in the

statement of questions involved or is fairly suggested thereby.”), she waived

any challenge to the sufficiency of the Commonwealth’s evidence by

pleading nolo contendere. Commonwealth v. Pantalion, 957 A.2d 1267,

1271 (Pa. Super. 2008) (“When an appellant enters a guilty plea, she waives

her right to challenge on appeal all non-jurisdictional defects except the

legality of [her] sentence and the validity of [her] plea.”) (citation and

internal quotation marks omitted).

      For the foregoing reasons, we conclude that the trial court did not err

or abuse its discretion in denying Appellant’s motion to withdraw her plea of

nolo contendere.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.

Prothonotary



Date: 2/10/2015


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