J-A04036-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,               IN THE SUPERIOR COURT OF
                                                  PENNSYLVANIA
                          Appellee

                     v.

JOHN JOEL RALSTON,

                          Appellant              No. 424 WDA 2015


       Appeal from the Judgment of Sentence September 15, 2014
           In the Court of Common Pleas of Clearfield County
          Criminal Division at No(s): CP-17-CR-0000083-2014


COMMONWEALTH OF PENNSYLVANIA,               IN THE SUPERIOR COURT OF
                                                  PENNSYLVANIA
                          Appellee

                     v.

JOHN JOEL RALSTON,

                          Appellant              No. 425 WDA 2015


       Appeal from the Judgment of Sentence September 15, 2014
           In the Court of Common Pleas of Clearfield County
          Criminal Division at No(s): CP-17-CR-0000022-2014


BEFORE: FORD ELLIOTT, P.J.E., BENDER, P.J.E., and SHOGAN, J.

MEMORANDUM BY SHOGAN, J.:                           FILED MAY 3, 2016

     John Joel Ralston, Appellant, appeals from the judgments of sentence

entered on September 15, 2014, in the Court of Common Pleas of Clearfield

County. We affirm.
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      On December 18, 2013, Appellant was charged with ten counts of

statutory sexual assault, Felony 1; ten counts of involuntary deviate sexual

intercourse, Felony 1; ten counts of corruption of minors, Felony 3; ten

counts of indecent assault, Misdemeanor 2; and eleven counts of selling or

furnishing liquor or malt or brewed beverages to minor, Misdemeanor 3, at

docket CP-17-CR-022-2014.       These charges stemmed from Appellant’s

practice of having several juvenile boys visit his camp in Clearfield County,

where Appellant would provide the boys with alcoholic beverages and have

sexual contact with them. The charges involved occurred between June 1,

2010 and August 30, 2013.

      On January 7, 2014, Appellant was charged with indecent assault–

person less than thirteen years of age, Misdemeanor 1, at docket CP-17-CR-

083-2014. This charge stemmed from Appellant’s alleged sexual misconduct

with a minor between February 1, 2013, and March 31, 2013.

      After selecting a jury on April 17, 2014, Appellant filed a motion to

continue trial/leave to file a nunc pro tunc pretrial suppression motion on

April 29, 2014. On the same date, the motion was denied.

      On April 30, 2014, the day before trial was scheduled to commence,

Appellant entered an open plea to all charges at both docket numbers. On

May 30, 2014, Appellant filed a petition to withdraw his plea. The trial court

denied this petition on June 24, 2014.




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      Following an assessment hearing at which he was found to be a

sexually violent predator, Appellant was sentenced on September 15, 2014,

to an aggregate term of incarceration of forty to eighty years.              On

September 25, 2014, Appellant filed post-sentence motions at both dockets.

A hearing on those motions took place on December 22, 2014, and the trial

court denied those motions by order dated February 10, 2015, and entered

February 11, 2015. Appellant filed his notice of appeal on March 10, 2015.

Appellant complied with the trial court’s order to file a Pa.R.A.P. 1925(b)

statement, and the trial court filed a Pa.R.A.P. 1925(a) opinion. On May 4,

2015, this Court sua sponte consolidated the matters.

      Appellant presents the following issues for our review:

      I.   Whether the trial court erred by denying Appellant’s
      motion to continue/leave to file nunc pro tunc pretrial
      suppression motion.

      II.    Whether the lower court erred in denying Appellant’s
      petition to withdraw plea.

      III. Whether trial counsel provided Appellant ineffective
      assistance of counsel, where trial counsel did not thoroughly
      review evidence in the case, and did not file timely pretrial
      suppression motion.

Appellant’s Brief at 4.

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

his motion to continue/leave to file nunc pro tunc pretrial suppression

motion.   Appellant’s Brief at 14.   Appellant contends that three separate

attorneys in the Public Defender’s office handled his case prior to Attorney


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Mike Marshall being assigned. Id. After Attorney Marshall was assigned the

case, counsel filed the motion, asserting that:       counsel had received this

case assignment “late”; counsel had a reasonable belief that suppression

should have been timely sought; counsel failed to timely seek suppression;

and counsel did not have sufficient time to prepare for trial through

interview of witnesses. Id. at 14-15. Appellant asserts that the trial court

denied the motion on the basis that the case had been previously continued,

and Attorney Marshall failed to apprise the trial court of any reason to grant

leave to file a nunc pro tunc motion.         Id. at 16.     However, Appellant

maintains, the reasonable basis for suppression of the confession was stated

in the motion. Id. Thus, it is Appellant’s position that the trial court abused

its discretion in denying his motion because Appellant’s request was

reasonable    and    “should    not    have    been    disregarded       for   mere

expeditiousness.” Id. at 16-17.

      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

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            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 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).

Commonwealth v. Lincoln, 72 A.3d 606, 609 (Pa. Super. 2013).

      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.

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

denying his petition to withdraw his plea. Appellant’s Brief at 17. Appellant

entered his open plea on April 30, 2014, and filed his petition to withdraw

his guilty plea on May 30, 2014, prior to his sentencing on September 15,

2014. Id. Appellant asserts that he had a fair and just reason to withdraw

his plea; specifically, that he “wanted to assert his right to go to trial.” Id.

at 20. Appellant contends that his desire to proceed to trial was based on

his determination that there “was a credibility issue with one of the


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J-A04036-16


witnesses in this matter.” Id. at 17. Appellant maintains that the trial court

abused its discretion in denying Appellant’s petition to withdraw his plea and

as a result, this matter should be remanded to the trial court for a new trial.

Id. at 20.

      We first note that Appellant’s claim does not constitute a challenge to

the validity of his plea. Appellant does not assert that he is innocent, nor

does he allege that his plea was entered involuntarily, unknowingly or

unintelligently.   Instead, he contends that he sought to withdraw his plea

because he wished to proceed to trial. Because Appellant is not challenging

the validity of his plea, this claim is waived. See Lincoln, 72 A.3d at 609

(holding that “[s]ettled 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.”).

      Moreover, to the extent that Appellant’s argument could be construed

to challenge the validity of his guilty plea, we conclude that Appellant would

be entitled to no relief. When a motion to withdraw a plea is made prior to

sentencing, the motion should be granted where the defendant has offered a

“fair and just reason.” Commonwealth v. Tennison, 969 A.2d 572, 576

(Pa. Super. 2009) (citing Commonwealth v. Forbes, 299 A.2d 268 (Pa.

1973) and Commonwealth v. Randolph, 718 A.2d 1242 (Pa. 1998)).

      Our Supreme Court has set forth the relevant law on this matter:


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     There is a clear distinction between requests to withdraw a guilty
     plea made prior to sentencing and those that are made after
     sentencing. In our seminal decision of Commonwealth v.
     Forbes, 450 Pa. 185, 299 A.2d 268 (1973), we set forth the
     parameters for determining when, as here, a request to
     withdraw a guilty plea made prior to sentencing should be
     granted. We stated that “although there is no absolute right to
     withdraw a guilty plea, properly received by the trial court, it is
     clear that a request made before sentencing … should be
     liberally allowed.”

           In Forbes, the appellant pled guilty to various crimes
     stemming from an assault and robbery of the victim in her
     home, which resulted in her death. An on-the-record colloquy
     was conducted prior to the court’s entrance of appellant’s pleas.
     Having concluded that the pleas were made “voluntarily and
     understandingly,” the court concluded that the evidence
     presented revealed that a case of first degree murder had been
     made out. The court deferred further ruling on the matter until
     a three-judge panel could be convened.

           On the day of the scheduled hearing before the three
     judge panel, appellant stated that he wished to withdraw his
     guilty pleas because he did not “want to plead guilty to nothing
     [he] didn’t do.” Appellant later abandoned this request, but it
     became clear that his decision was based upon defense counsel’s
     threat to withdraw from the case.         The court nevertheless
     proceeded to sentence appellant to life imprisonment based
     upon a finding that appellant was guilty of first degree murder.

            The appellant in Forbes asserted that the court erred in
     failing to permit him to withdraw his guilty pleas made pursuant
     to his original request and prior to sentencing, once it became
     clear that he abandoned this request based on his counsel’s
     coercion. We agreed and found the appellant’s withdrawal of his
     original request to be invalid. In reversing the judgment of
     sentence and granting a new trial, we again stated that “a
     request [to withdraw] made before sentencing has been
     generally construed liberally in favor of the accused.” We then
     set forth the following test regarding when such a request should
     be permitted:

                [I]n   determining   whether   to   grant    a
           presentence motion for withdrawal of a guilty plea,

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J-A04036-16


           “the test to be applied by the trial courts is fairness
           and justice.” If the trial court finds “any fair and just
           reason”, withdrawal of the plea before sentence
           should be freely permitted, unless the prosecution
           had been “substantially prejudiced.”

            Applying this test to the facts of Forbes, we held that the
     trial court should have allowed withdrawal of appellant’s guilty
     pleas. We noted that the basis for the appellant’s requested
     withdrawal was that he did not “want to plead guilty to nothing
     [he] didn’t do.” Accordingly, we found that

           appellant, by this assertion of innocence-so early in
           the proceedings-offered a “fair and just” reason for
           withdrawal of his plea. Moreover, on this record
           there is not even the slightest suggestion that the
           prosecution was in any sense “substantially
           prejudiced by reliance upon the defendant’s plea.”

Randolph, 718 A.2d at 1244 (Pa. 1998) (some citations omitted).

     Recently, in Commonwealth v. Carrasquillo, 115 A.3d 1284 (Pa.

2015), our Supreme Court re-examined the test set forth in Forbes.

     [T]his Court’s Forbes decision reflects that: there is no absolute
     right to withdraw a guilty plea;8 trial courts have discretion in
     determining whether a withdrawal request will be granted; such
     discretion is to be administered liberally in favor of the accused;
     and any demonstration by a defendant of a fair-and-just reason
     will suffice to support a grant, unless withdrawal would work
     substantial prejudice to the Commonwealth. See Forbes, 450
     Pa. at 190–91, 299 A.2d at 271. The perfunctory fashion in
     which these principles were applied to the circumstances
     presented in Forbes, … lent the impression that this Court had
     required acceptance of a bare assertion of innocence as a fair
     and-just reason. See, e.g., Forbes, 450 Pa. at 192, 299 A.2d
     at 272 (“Obviously, [the] appellant, by [his] assertion of
     innocence—so early in the proceedings[, i.e., one month after
     the initial tender of a plea,]—offered a ‘fair and just’ reason for
     withdrawal of the plea.”).
           8
             A guilty plea implicates the waiver of important
           constitutional rights attending a defendant’s trial

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J-A04036-16


           rights. See, e.g., Brady v. United States, 397
           U.S. 742, 748, 90 S.Ct. 1463, 1468–69, 25 L.Ed.2d
           747 (1970) (explaining that a “plea is more than an
           admission of past conduct; it is the defendant’s
           consent that judgment of conviction may be entered
           without a trial—a waiver of his right to trial before a
           jury or a judge”); Commonwealth v. Culbreath,
           439 Pa. 21, 26, 264 A.2d 643, 645 (1970)
           (observing that, by pleading guilty, a defendant
           waives non-jurisdictional defects and defenses).

                                    ***

           As with other such bright-line rules, however, the principle
     is subject to the axiom that the holding of a decision is to be
     determined according to the facts under consideration … and
     continuing evaluation as experience with new fact patterns offers
     further insight into the wisdom of a per se approach. Indeed, we
     recently observed, that, “for better or for worse, the experience
     with broadly stated prophylactic rules often has been that they
     cannot be sustained on their original terms.” Commonwealth
     v. Henderson, 616 Pa. 277, 287, 47 A.3d 797, 803 (2012).

            Presently, we are persuaded by the approach of other
     jurisdictions which require that 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. More
     broadly, the proper 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. The
     policy of liberality remains extant but has its limits, consistent
     with the affordance of a degree of discretion to the common
     pleas courts.

Carrasquillo, 115 A.3d at 1291-1292 (some citations omitted).




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       Here, Appellant does not assert his innocence.1        Nor does Appellant

posit that his plea was involuntarily, unknowingly, or unintelligently entered.

Instead, Appellant asserts that he wished to withdraw his guilty plea in order

to proceed with trial.       However, by the very nature of a plea, Appellant

decided to waive his right to a trial at the time he entered his plea.

Moreover, Appellant was explicitly advised of his waiver of this right during

the oral and written colloquies.           N.T., 4/30/14, at 10; Negotiated plea

agreement and guilty plea colloquy, 4/30/14, at 3.

       Additionally, we note that Appellant’s stated reason for changing his

mind about proceeding to trial was based upon his bald assertion that there

was a credibility issue with one of the witnesses. In addressing Appellant’s

claim, the trial court stated the following:

              [Appellant] contends that he should have been granted the
       opportunity to withdraw his guilty plea because the credibility of
       one of the witnesses against him was called into question. Of
       course, the issue of credibility goes to the weight the fact finder
       will give that witness’s testimony. It does not impact the nature
       of [Appellant’s] plea. At its essence, [Appellant’s] argument is
       that he would have been in a better bargaining position with
       respect to the plea bargaining process if he had known about the
       potential credibility issue of one of the witness’s against him.
       The [c]ourt does not find this to be a valid reason to permit
       [Appellant] to withdraw his guilty plea.

Trial Court Opinion, 5/8/15, at 7-8.
____________________________________________


1
  Indeed, in addressing the distinction between this case and another in
which the appellant had asserted his actual innocence in his brief, Appellant
states: “Presumably, we do not have that case here.” Appellant’s Brief at
20.



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J-A04036-16



        We agree with the trial court’s conclusion that the reasons offered by

Appellant did not amount to a fair and just reason to withdraw his guilty

plea.    The reasons offered appear to amount to no more than buyer’s

remorse and an attempt to delay the inevitable. See Commonwealth v.

Dorian, 460 A.2d 1121, 1123 (Pa. Super. 1983) (holding that a request to

withdraw a pre-sentence plea not on the grounds of actual innocence, but

instead based upon Appellant’s thought after discussion with fellow inmates

that he had a “possible defense,” did not constitute a fair and just reason for

withdrawal of his guilty plea). Thus, we affirm the order of the trial court

denying Appellant’s pre-sentence motion to withdraw his guilty plea.

        In his third issue, Appellant argues that trial counsel was ineffective for

failing to properly review evidence in preparation for trial, for failing to

timely file a pretrial suppression motion and for failing to timely continue

Appellant’s trial. Appellant’s Brief at 21. Appellant further contends that the

underlying claims are of arguable merit, there is no reasonable explanation

for counsel’s actions or inactions, and Appellant clearly suffered prejudice

due to these actions or inactions.       Id. at 24-25.     Accordingly, Appellant

asserts the case should be remanded to the trial court for a new trial. Id. at

25.

        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

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J-A04036-16


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

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.

       In this case, Appellant raised the issues of ineffective assistance of

counsel in his post-sentence motion. A hearing on the post-sentence motion

was held on December 22, 2014. As noted by the trial court: “A hearing

was held regarding [Appellant’s] ineffective assistance of counsel claim; and

the [c]ourt found the claim to be without merit. Simply put, [Appellant] did

not meet his burden of proof regarding his claim of ineffective assistance of

____________________________________________


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



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counsel.” Trial Court Opinion, 5/8/15, at 9-10. Furthermore, our review of

the record has failed to reveal an express waiver of Appellant’s right to

pursue PCRA review, and Appellant has not identified any on-the-record

express waiver.

      Thus,   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. Accordingly, we dismiss this claim without prejudice to

Appellant’s right to seek collateral review under the PCRA.

      Judgments of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/3/2016




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