J-A35017-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                 IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA
                         Appellee

                    v.

ETHAN HANNOLD,

                         Appellant                No. 1088 WDA 2014


             Appeal from the Judgment of Sentence June 18, 2014
                In the Court of Common Pleas of Clarion County
              Criminal Division at No(s): CP-16-CR-0000170-2013

COMMONWEALTH OF PENNSYLVANIA,                 IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA
                         Appellee

                    v.

ETHAN HANNOLD,

                         Appellant                No. 1089 WDA 2014


             Appeal from the Judgment of Sentence June 18, 2014
                In the Court of Common Pleas of Clarion County
              Criminal Division at No(s): CP-16-CR-0000041-2014


BEFORE: BENDER, P.J.E., SHOGAN, and MUSMANNO, JJ.

MEMORANDUM BY SHOGAN, J.:                     FILED FEBRUARY 05, 2016

      Appellant, Ethan Hannold, appeals from the judgment of sentence

entered June 18, 2014, in the Court of Common Pleas of Clarion County.

We affirm.

      The trial court summarized the factual history of these cases as

follows:
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            These cases involve two brutal and senseless attacks on
      innocent women. During the one incident, at case number 170
      CR 2013, [Appellant] executed a plan of running a young woman
      off the road with his car and then coming to her aide for the
      bizarre purpose of making himself feel good about helping
      someone. When the young woman told [Appellant] her father
      was coming and she did not need his help, he felt rejected and
      became incensed and punched her many times through her open
      car window, breaking her nose and bloodying her face. He then
      sexually assaulted her by grabbing her between her legs and
      ripping her pants off. He tried to pull her out through the
      window, but he fell down and she managed to get away.

             In the second case, number 41 CR 2014, [Appellant] drove
      up behind a woman who was walking in town in a residential
      area. Without warning, he ran her down with his car and then
      fled the scene. She suffered a traumatic brain injury.

Trial Court Opinion, 9/5/14, at 1.

      As a result of both incidents, Appellant was charged with multiple

crimes. Appellant proceeded to negotiate plea agreements in both cases. At

170 CR 2013, Appellant entered a guilty plea on August 28, 2013, to

aggravated assault, robbery by threat of immediate serious injury, recklessly

endangering another person (“REAP”), and indecent assault by forcible

compulsion. All other charges were nol prossed by the Commonwealth. The

indecent assault charge required an assessment by the Sexual Offenders

Assessment Board to determine if Appellant was a sexually violent predator

“SVP”). Appellant moved for appointment of his own expert psychiatrist and

for in forma pauperis (“IFP”) status. The trial court granted both motions.

      Prior to the SVP hearing, the Commonwealth filed a motion to compel

Appellant to produce his expert witness report. The trial court granted the


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motion to compel Appellant to provide the expert report, and subsequently

denied Appellant’s motion to reconsider that decision. The SVP hearing was

held on May 16, 2014.               Following the hearing, the trial court deemed

Appellant to be an SVP.

       At 41 CR 2014, Appellant entered a guilty plea on June 18, 2014, to

aggravated     assault.       All    other     charges   were   nol   prossed   by   the

Commonwealth.

       On June 18, 2014, Appellant was sentenced, at both dockets, to an

aggregate sentence of twenty-five to fifty years of incarceration in

conformity with the plea agreements.                 The sentence included lifetime

registration as an SVP. Appellant timely appealed. Appellant and the trial

court complied with the requirements of Pa.R.A.P. 1925.1

       Appellant presents the following issues for our review:

       I.     Whether [Appellant’s] guilty plea was not knowingly,
       intelligently, and voluntarily made because (1) [Appellant] was
       not made aware of all defenses potentially available in his case,
       including insanity or mental infirmity and (2) [Appellant] suffers
       from mental illness such that he was incapable of making a
       knowing, intelligent and voluntary plea.

       II.   Whether [Appellant’s] trial, guilty plea, and sentencing
       counsel, John Lackatos, Esquire, was incompetent and or
       ineffective in the following ways (1) in failing to obtain a mental
       health examination of [Appellant] to determine his competency
       to participate in his defense, (2) in failing to attend [Appellant’s]
       sex offender assessment interview, (3) in failing to advise
____________________________________________


1
   This Court, sua sponte, consolidated the appeals by order entered
August 8, 2014.



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       [Appellant] on the defenses of insanity or mental infirmity, and
       (4) in failing to present evidence of [Appellant’s] mental illness
       as a mitigating factor at the time of sentencing.

       III. Whether the trial court, by order granting motion to
       compel [Appellant] to provide expert report signed on April 29,
       2014 and order denying motion to reconsider entered on May
       12, 2014, committed reversible error by ordering that the
       defense produce a report of an expert who the defense did not
       intend to call as a witness at a sexually violent predator hearing.

Appellant’s Brief at 6 (full capitalization omitted).

       In his first claim, Appellant argues that the trial court erred in

accepting his guilty pleas because the pleas were not knowingly, intelligently

and voluntarily made. Appellant’s Brief at 15. Appellant asserts two bases

for this alleged error.    Appellant first contends that the pleas were not

knowingly, intelligently, and voluntarily made because Appellant was not

made aware of all defenses potentially available to him.         Id. at 15-16.

Appellant also maintains that he suffers from mental illness such that he is

incapable of making a knowing, intelligent, and voluntary plea. Id. at 16-

17.

       Before addressing the merits of Appellant’s claims, we first note that a

defendant wishing to challenge the voluntariness of a guilty plea on direct

appeal must either object during the plea colloquy or file a motion to

withdraw the plea within ten days of sentencing.        Pa.R.Crim.P. 720(A)(1),

(B)(1)(a)(i); Commonwealth v. Lincoln, 72 A.3d 606, 609-610 (Pa.

Super. 2013). “Failure to employ either measure results in waiver.” Id. at

610.

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       Here, Appellant did not object during either of his plea colloquies. As

noted by the trial court, “[t]o the contrary, [Appellant] stated during written

and verbal plea colloquies . . . that he had not been a patient in a hospital,

he was not under doctor’s care or taking medication and he understood his

rights and had no questions.”                  Trial Court Opinion, 9/5/14, at 6.

Furthermore, Appellant did not seek to withdraw his plea through a post-

sentence motion within ten days of sentencing. Thus, this issue is waived.

       In his second issue, Appellant contends that the trial court erred in

accepting Appellant’s guilty pleas because trial counsel was ineffective.

Appellant’s Brief at 18. Appellant maintains that trial counsel was ineffective

for failing to obtain a mental health examination of Appellant; failing to

attend Appellant’s sex offender assessment interview; failing to advise

Appellant on the defenses of insanity or mental infirmity; and failing to

present evidence of Appellant’s mental illness as a mitigating factor at the

time of sentencing. Id. at 18-21.

       Due to the procedural posture of this matter, Appellant’s issue is not

properly before our Court.         In Commonwealth v. Holmes, 79 A.3d 562

(Pa. 2013), our Supreme Court reiterated the holding from Commonwealth

v. Grant, 813 A.2d 726 (Pa. 2002), and stated that generally, “claims of

ineffective assistance of counsel are to be deferred to PCRA[2] review; trial

____________________________________________


2
    Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541–9546.



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courts should not entertain claims of ineffectiveness upon post-verdict

motions; and such claims should not be reviewed upon direct appeal.”

Holmes, 79 A.3d at 576.          The Holmes Court, however, recognized two

exceptions to the general rule whereby claims of ineffective assistance of

counsel could be raised on direct appeal:             (1) where the trial court

determines that a claim of ineffectiveness is both meritorious and apparent

from the record so that immediate consideration and relief is warranted; or

(2) where the trial court finds good cause for unitary review, and the

defendant makes a knowing and express waiver of his entitlement to seek

PCRA review from his conviction and sentence, including an express

recognition that the waiver subjects further collateral review to the time and

serial petition restrictions of the PCRA. Id. at 564, 577 (footnote omitted).

      Here,   Appellant    did   not   satisfy   either   of   the   aforementioned

exceptions.   The trial court did not conclude that Appellant’s claim of

ineffectiveness is meritorious and apparent from the record necessitating

immediate consideration, and Appellant has not expressly waived his right to

pursue PCRA review.       Trial Court Opinion, 9/5/14, at 5.         Accordingly, we

dismiss this claim without prejudice to Appellant’s right to seek collateral

review under the PCRA.

      In his third claim, Appellant argues that the trial court erred in

compelling Appellant to provide to the Commonwealth the report from an

expert whom Appellant did not intend to call as a witness at the SVP


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hearing.     Appellant’s Brief at 21.          Appellant contends that the court’s

mandated production of this report violated the work product privilege. Id.

at 22.     More troubling however, Appellant contends, is the fact that the

report was ordered to be turned over to the Commonwealth prior to

Appellant pleading guilty at 41 CR 2014. Id. at 22-23. Appellant maintains

that information in that report may have been incriminating to Appellant and

may have impacted the charges brought against him at 41 CR 2014.3 Id. at

23.   Appellant asserts that such action violates his Fifth Amendment right

against self-incrimination. Id.

       We are unable to reach the merits of Appellant’s claim because he has

waived this issue. As this Court has explained:

              Settled Pennsylvania law makes clear that by entering a
       guilty plea, the defendant waives his right to challenge on direct
       appeal all nonjurisdictional defects except the legality of the
       sentence and the validity of the plea. Commonwealth v.
       Pantalion, 957 A.2d 1267, 1271 (Pa. Super. 2008).

              Indeed, a defendant routinely waives a plethora of
              constitutional rights by pleading guilty, including the
              right to a jury trial by his peers, the right to have the
              Commonwealth prove his guilt beyond a reasonable
              doubt, and his right to confront any witnesses
              against him. Boykin v. Alabama, 395 U.S. 238, 89
              S.Ct. 1709, 23 L.Ed.2d 274 (1969) (knowing and
              voluntary guilty plea waives privilege against self-
              incrimination, right to jury trial, and right to
              confront one’s accusers). Furthermore, a defendant
____________________________________________


3
   We note that the charges filed against Appellant at 41 CR 2014 were not
of the nature that would require a determination as to whether Appellant
was an SVP.



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J-A35017-15


            is permitted to waive fundamental constitutional
            protections in situations involving far less protection
            of the defendant than that presented herein. [See,
            e.g.], Peretz v. United States, 501 U.S. 923, 936,
            111 S.Ct. 2661, 115 L.Ed.2d 808 (1991) ([stating:]
            “The most basic rights of criminal defendants are ...
            subject to waiver”); Johnson v. Zerbst, 304 U.S.
            458, 465, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938)
            ([stating] sixth amendment right to counsel may be
            waived).

      Commonwealth          v.     Byrne,     833   A.2d      729,      735–36
      (Pa.Super.2003).

Lincoln, 72 A.3d at 609 (emphasis added).

      Appellant’s   claim   does    not     challenge   the   court’s    jurisdiction.

Furthermore, Appellant’s stated issue does not pertain to the legality of his

sentence or the validity of his plea. Accordingly, Appellant has waived his

right to raise this claim on direct appeal.

      Judgments of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/5/2016




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