J-S13020-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    LEEN SMITH PHILLIPS                        :
                                               :
                       Appellant               :   No. 1011 WDA 2018

          Appeal from the Judgment of Sentence Entered April 12, 2018
               In the Court of Common Pleas of Crawford County
              Criminal Division at No(s): CP-20-CR-0000213-2016


BEFORE:      BENDER, P.J.E., OTT, J., and STRASSBURGER, J.

MEMORANDUM BY OTT, J.:                                     FILED MAY 28, 2019

        Leen Smith Phillips appeals from the judgment of sentence imposed on

April 12, 2018, in the Court of Common Pleas of Crawford County, following

his negotiated plea of nolo contendere to a single count of Aggravated

Indecent Assault and multiple counts of Indecent Assault of a Person Less

Than 13 Years Old, Indecent Assault of a Person Less Than 16 Years Old, and

Involuntary Deviate Sexual Intercourse with a Child.1 Phillips was sentenced

to an aggregate term of 10½ to 30 years of incarceration.         In this timely

appeal, Phillips claims the trial court erred in failing to allow him to withdraw

his nolo contendere plea prior to sentencing. He also claims the trial court

abused its discretion in imposing the agreed upon sentence. After a thorough

____________________________________________


   Retired Senior Judge assigned to the Superior Court.

1   18 Pa.C.S. §§ 3125(a)(8), 3216(a)(7) and (8), and 3123(a)(7), respectively.
J-S13020-19



review of the submissions by the parties, the certified record and relevant law,

we affirm.

      For the procedural history and a brief factual background, we quote from

the trial court’s Memorandum and Order, dated 6/15/2018.

      This action, based upon incidents occurring between 2012 and
      2015, was originally scheduled for trial during the June 2016 Term
      of Criminal Court. Conflict counsel, appointed by Order of May 9,
      2016, then moved for a psychiatric evaluation of Phillips, and the
      trial was rescheduled for the September 2016 Term of Criminal
      Court. Conflict counsel was replaced by Order of August 25, 2016,
      and the trial again continued on Phillips’ oral motion to the
      November 2016 Term of Court. Phillips then moved for another
      continuance, and the case was placed on the January 2017
      Criminal Trial List. On January 10, 2017, at the commencement
      of trial[], a competency hearing was ordered, following which, by
      Order of January 23, 2017, the trial was moved to the March 2017
      Criminal Trial List.

      Phillips had been shown a plea colloquy video on December 29,
      2016, and on February 22, 2017, negotiated a no contest plea to
      charges involving three minor children, two of whom (C.L.P. and
      A.R.D.) are his daughters. Specifically he pled to the following:
      one count (No, 1) of aggravated indecent assault, and three
      counts (Nos. 18, 23 & 28) of indecent assault of C.L.P., 18
      Pa.C.S.A. §§ 3125(a)(8), 3126(a)(8), respectively; one count
      (No. 59) of involuntary deviate sexual intercourse, and three
      counts (Nos. 66, 67, & 68) of indecent assault of A.R.D., id. §§
      3123(a)(7), 3126(a)(7), respectively; and one count (No. 79) of
      involuntary deviate sexual intercourse, and two counts (Nos. 83 &
      86) of indecent assault of the third child, A.C.M., id.1 The plea
      agreement noted that “[t]he Comm[onwealth] is recommending
      and the Defendant agrees to an aggregate 10½ year to 30 year
      sentence (5½ years to 15 years at Count 59 plus a 5 year to 15
      year consecutive sentence at [C]ount 79 with all other sentences
      running concurrently).”

      Phillips’ plea was accepted on February 22, 2017, after he
      completed a written plea colloquy with the assistance of counsel,
      and his sentencing was scheduled for May 26, 2017, to allow time


                                     -2-
J-S13020-19


     for the state Sexual Offender Assessment Board (SOAB) to first
     assess whether he is a sexually violent predator (SVP). A SVP
     hearing was held on May 25, 2017, and this Court by Order of
     June 9, 2017, found Phillips to be a SVP, 2 and rescheduled
     sentencing for August 24, 2017.

     On August 2 (although dated August 4), 2017, Phillips filed a
     motion stating that the [sic] he “now wishes to withdraw his plea
     and proceed to trial,” without further explanation. Motion ¶ 6. A
     hearing on the motion was commenced on the day set for
     sentencing, and ordered continued to September 25, 2017, but
     delayed until December 18, 2017, at Phillips’ request.            An
     additional competency evaluation, ordered to address defense
     counsel’s concerns, indicated that Phillips’ mental capacity had not
     deteriorated since the 2016 evaluation that found him to be
     competent. A Memorandum and Order denying the plea
     withdrawal motion and rescheduling sentencing was filed on
     March 5, 2018.

     Phillips was sentenced on April 11, 2018, in accordance with his
     plea agreement to an aggregate minimum term of incarceration
     of 126 months, and a maximum term of 360 months, with 848
     days of presentence incarceration credit.
     _______________________
        1 A nolle prosequi was entered as to the remaining eighty

        counts of the Criminal Information.

        2 The standard of proof used in making that determination
        has since been declared unconstitutional. Commonwealth
        v. Butler, 173 A.3d 1212 (Pa. Super. 2017). [We clarify
        this footnote to add Phillips ultimately was not labeled as a
        Sexually Violent Predator. We also note that our Supreme
        Court    has accepted       Butler    for   review.      See
        Commonwealth v. Butler, 190 A.3d 581 (Pa. 2018).]

Memorandum and Order, 6/15/2018, at 1-4 (Footnote 3 omitted).

     We will address Phillips’ second argument, challenging the discretionary

aspects of his sentence first. The Commonwealth correctly notes there is no

absolute right to appeal the discretionary aspects of one’s sentence.

Commonwealth v. Nevels, 203 A.3d 229, 246 (Pa. Super. 2019) (The right


                                    -3-
J-S13020-19



to appellate review of the discretionary aspects of a sentence is not absolute,

and must be considered a petition for permission to appeal.)          Specifically

relevant to this appeal, Pa.R.A.P. 2119(f) requires an appellant include a

separate concise statement of the reasons relied on for allowance of appeal.

Essentially, the appellant must explain how the sentence allegedly violates

sentencing norms. If the appellant fails to include a Rule 2119(f) statement

in the appellant’s brief, and if the appellee objects, then this Court is required

to find the issue waived.

      [Appellant] failed to include in his brief a separate Rule 2119(f)
      statement, and the Commonwealth has objected. We are
      precluded from reaching the merits of his discretionary sentencing
      claim when the Commonwealth lodges an objection to the
      omission of the statement. Commonwealth v. Roser, 914 A.2d
      447, 457 (Pa.Super. 2006); see also Commonwealth v.
      Farmer, 758 A.2d 173, 182 (Pa. Super. 2000) (observing that we
      may not reach the merits of discretionary aspects of sentencing
      claims where the Commonwealth has objected to the omission of
      a Pa.R.A.P. 2119(f) statement and finding the issue to be waived).
      Accordingly, Appellant failed to preserve his challenge to the
      discretionary aspects of his sentence of restitution, and it is
      waived.

Commonwealth v. Weir, 201 A.3d 163, 175 (Pa. Super. 2018).

      Instantly, Phillips has failed to include a Pa.R.A.P. 2119(f) statement in

his appellant’s brief and the Commonwealth has objected. Accordingly, this

issue has been waived.

      In his second issue, Phillips claims he was denied his constitutional right

to a trial when the trial court denied his motion to withdraw his nolo plea. This

argument is unavailing.



                                      -4-
J-S13020-19



      The trial court has authored a Memorandum and Order, dated March 2,

2018, that contains a substantial analysis of Phillips’ nolo plea, the evidence

against him and the prejudice the Commonwealth would suffer if he had been

allowed to withdraw the plea. Until fairly recently, the Courts generally viewed

an assertion of innocence, prior to sentencing, as sufficient grounds to grant

the withdrawal of a guilty or nolo plea. However, our Supreme Court modified

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

2015). In Carrasquillo, the Court stated:

      [T]here is no absolute right to withdraw a guilty plea; 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.

Id. at 1291-92 (footnote and citation omitted).

      In addition, the Court held,

      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.

Id. at 1292 (citation omitted).

      As noted above, the trial court opinion provides a thorough analysis of

the underlying facts and circumstances of the plea and Phillips’ attempt to



                                      -5-
J-S13020-19



withdraw the plea.       We have reviewed the certified record and discern no

abuse of discretion in the trial court’s denial of Phillips’ motion. We rely upon

the trial court’s able analysis found in the Memorandum and Order dated

March 2, 2018. We particularly note the evidence presented at the hearing

on the motion to withdraw that detailed the psychological harm the victims

would be likely to suffer if the matter went to trial and the victims, now young

women, were required to testify. The certified counselor to two of the victims

testified how the plea gave a measure of closure to the victims.2 Even in light

of this measure of closure, the victims still suffered psychological trauma from

the years-long episodes of abuse. To be forced to relive those moments, after

the assurance that the matter had resolved legally, would likely cause great

harm. We also take note that the trial court was unimpressed with Phillips’

assertion of innocence, claiming only that he suffered blackouts and could not

remember any such incidents. Psychological testing of Phillips provided no

medical reasons why Phillips would have suffered such blackouts and why they

would only occur at those times when he sexually abused the three victims.

There is no colorable demonstration that, under the circumstances, allowing

Phillips to withdraw his nolo plea would promote fairness and justice.




____________________________________________


2The counselor provided treatment to one of the daughters and the friend.
The other daughter has been out of contact with the authorities and may not
be able to be located. See N.T. Motion to Withdraw, 12/18/2017 at 13-14.

                                           -6-
J-S13020-19



      In light of the foregoing, Phillips is not entitled to relief on this issue.

The parties are directed to attach a copy of the Memorandum and Order dated

March 2, 2018, specifically pages 3-8, in the event of further proceedings.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/28/2019




                                      -7-
                                                                Circulated 05/08/2019 04:13 PM




                               CRIMINAL DIVISION

COMMONWEALTH OF PENNSYLVANIA

                  v.                            No. CR 213 - 2016

LEEN SMITH PHILLIPS,
                           Defendant


                       Paula C. DiGiacomo; esa., First A,D,A.
                               Robert E. Draudt, Esq.

                            MEMORANDUM and ORDER

John F. Spataro, J.

      The Defendant, Leen Smith Phillips ("Phillips"), has moved to withdraw

his no contest plea. We will deny his motion for the reasons set forth in this

Memorandum, and schedule him again for sentencing.

                             PROCEDURAL POSTURE

      This case, based upon incidents allegedly occurring between 2012 and

2015, was originally scheduled for trial during the June 2016 Term of

Criminal Court.   Conflict counsel, appointed by Order of May 9, 2016, then

moved for a psychiatric evaluation of Phillips, and the trial was rescheduled

for the September 2016 Term of Criminal Court.            Conflict counsel was

replaced by Order of August 25, 2016, and the trial again continued on
                                                                                    ;' � I   ' ' ; '   •••, ( •




    moved for another continuance, and the case was placed on the January

    2017 Criminal Trial List.       On January 10, 2017, at the commencement of

    trials, a competency hearing was ordered, following which, by Order of

January 23, 2017, the trial was moved to the March 2017 Criminal Trial List.

          Phillips had been shown a plea colloquy video on December 29, 2016,

and on February 22, 2017, negotiated a no contest plea to his ninety-one

count information for offenses involving three minor children, two of whom

(C.L.P. and A.R.D.) are his daughters and the third (A.C.M.) a friend of

A.R.D.        Specifically, he pied to the following:               one count (No. 13) of

aggravated indecent assault and three counts (Nos.                       18, 23, & 28) of

indecent          assault   of C.L.P.,   18       Pa.C.S.A.   §§   3125(a)(8),   3126(a)(8),

respectively; one count (No. 59) of involuntary deviate sexual intercourse

and three counts (Nos. 66, 67, & 68) of indecent assault of A.R.D., id. §§
              '
3123(a){7), 3126(a)(7), respectively; and one count (No. 79) of involuntary

deviate sexual intercourse and two counts (Nos. 83 & 86) of indecent assault

of A.C.M., id.1         The plea agreement noted that "[tjhe Comm[onwealth] is

recommending and the Defendant agrees to an aggregate 10112 year to 30

year sentence (5112 years to 15 years at Count 59 plus a 5 year to 15 year

consecutive sentence at [C]ount 79 with all other sentences running

concurrently)."

                                                                                                                  :i
                                                                                                                  :,   ;
1
    A no/le prosequiwas entered as to the remaining eighty counts of the Information.



                                              2
                                      CR 213- 2016
                                                               •
       Phillips' plea was accepted on February 22, 2017, after he completed a

written plea colloquy with the assistance of counsel, and his sentencing was

scheduled for May ?6, 2017, to allow time for the state Sexual Offender

Assessment Board (SOAB) to first assess whether he is a sexually violent

predator (SVP). A SVP hearing was held on May 25, 2017, and this Court by

Order of June 9, 2017, found Phillips to be a SVP,2 and rescheduled

sentencing for August 24, 2017. The instant motion was filed on August 2

(although dated August 4), 2017, and gave no grounds for withdrawal,

stating simply that the "Defendant now wishes to withdraw his plea and

proceed to trial." Motion ,i 6.

      A hearing on the motion was commenced on the day set for

sentencing, and ordered continued to September 25, 2017, but delayed until

December 18, 2017, at Phillips' request.3                An additional competency

evaluation was then ordered to address defense counsel's concerns.                   The

results, recently obtained, indicate that Phillips' mental capacity has not

deteriorated since the 2016 evaluation that found him to be competent.

                                     DISCUSSION

       Presentence motions to withdraw pleas are to be liberally allowed.

Eg., Commonwealth v, Baez, 169 A.2d 35, 39 (Pa. Super. 2017).                           A

defendant, however, has no absolute right to withdraw his plea.                     E.g.,

2 The standard of proof used in making that determination has since been declared
unconstitutional. Commonwealth v. Butler, 173 A.3d 1212 (Pa. Super. 2017).
3 Plea counsel was meanwhile permitted to withdraw his appearance due to a complete
breakdown in the attorney-client relationship; current defense counsel was then appointed.



                                         3
                       (-          CR 213 - 2016



Commonwealth v. Carrasquillo, 631 Pa. 692, 704, 115 A.3d 1284, 1291

(2015); see Pa.R.Crim.P. 591(A) ("At any time before the imposition of

sentence, the court, may, in its discretion, permit, upon motion of the

defendant ... the withdrawal of a plea of guilty or nolo contendere and the

substitution of a plea of not guilty"). The Pennsylvania Supreme Court has

broadly instructed trial courts that "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." Carrasquillo, 631 Pa. at 706,

115 A.3d at 1292; accord Commonwealth v. Baez, 169 A.3d 35 (Pa. Super.

2017).

      Phillips asserts that he had felt pressured into entering a plea even

though "I didn't do any of these actions, and that's why I'm going to stand

on my firm ground about." Transcript, Motion to Withdraw Plea, 12/18/17

("Tr."), at 9 lines 19-20.   This Court initially accepted Phillip's assertion of

innocence as a "fair and just reason" for permitting withdrawal because, in

pleading no contest, he previously had not admitted guilt.       Thus to defeat

the motion, the Commonwealth would have to show substantial prejudice in

now going to trial. See Carrasquillo, 631 Pa. at 704, 115 A.3d at 1291 ("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 Common-

wealth"); Order of August 24, 2017.



                                     4
                                      CR 213 - 2016



       Upon further reflection. the Court believes that under Cerresqottto, the

credibility of Phillips' claim of innocence should be considered, along with the

circumstances of his. request to withdraw his plea.            See Commonwealth v.

Johnson-Daniels, 167 A.3d 17, 23-25 (Pa. Super.), appeal denied, 174 A.3d

1029 (Pa. 2017); Commonwealth v. Islas, 156 A.3d.1185, 1191 (Pa. Super.

2017) (noting that a guilty plea should not be considered in assessing

innocence because of the necessity of acknowledging guilt prior to the

court's acceptance of a guilty plea).         Phillips' motion was made over five

months after his plea had been accepted, and followed his adjudication as a

SVP.    His reason, aside from the pressure any defendant would feel in

negotiating a plea," is that he has always maintained his innocence.

       Overwhelming evidence, however, has been proffered of his guilt.

First, there are the police interviews in which all three girls graphically

reported how Phillips had repeatedly sexually molested them, forced two of

them to view pornographic videos. and threatened retaliation if they told

anyone. SOAB Report (Cmwlth. Exhibit 2, SVP hearing), at 1-2; Tr. at 5-7.

Second, following Phillips' arrest, he reportedly told police "that he would

pretend to be or act out as if he were a lion, basically in charge of or the

head of a pride of other lions so he could ba_sically - it was nature; he would

have sexual relation with his daughters or pri�e." Tr. at 10:22-11: 1; see

also id. at 11: 20-23 ("he stated ... that he was half man and half lion; he

4 Trial was set to begin shortly, and Phillips (then aged thirty-eight) was negotiating a
reduction in over a millennium of possible jail time.



                                        5
                                       CR 213 - 2016



    ke about the way a male lion has a group of lionesses that are his"); cf.

Carrasquillo, 115 A.3d at 1293 (Carrasquillo's bizarre statements "wholly

undermined" the plausibility of his innocence).            He claimed at times not to

remember these incidents,           and       that "when   he blacked out that his

personality would change to that of a Leo, an evil person." Tr. at 11: 5-7.

He also gave police inculpatory accounts regarding C.LP. and A.C.M.,

admitting ''I did it." Tr. at 12: 3-16. Third, his assertion of selective amnesia

due to blackouts was considered implausible by the examining psychiatrist,

though Phillips has received mental health treatment and been diagnosed

with Unspecified Depressive Disorder, for which he is now being medicated.

Tr. at 3: 18, 10:21-22, 11 :4-5; SOAB Report 3.              He reported that he had

himself growing up been the victim of physical and sexual abuse.                    SOAB

Report 3.    Considering all of the foregoing, his claim of innocence is, in our

view, implausible, and thus, without more, not a "fair and just reason" for

granting his request.5      See Carrasquillo, 631 Pa. at 704, 115 A.3d at 1291

("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"),

quoted in, e.q., Baez, 169 A.3d at 39; cf. Islas, 156 A.3d at 1191 ("The

defendant need only proffer a "colorable" or "plausible" claim of innocence,

which Islas has surely done.").


5 This seems especially so because his motion followed his adjudication as a SVP, enhancing
(at that time) whatever other punishment he would receive. Notably, a post-sentence
motion to withdraw a plea requires a showing that denial would be manifestly unjust. Islas,
156 A.3d at 1188 (citing Commonwealth v. Broaden, 980 A.2d 124, 129 (Pa. Super. 2009)).


                                          6
                                        CR 213- 2016


         The Commonwealth, moreover, has demonstrated that plea withdrawal

at this juncture could substantially prejudice its case. 6             Another year has

passed since the trial would have been held, after three postponements at

Phillips' request.      One of the Commonwealth's witnesses, Heath Sutton - a

former cellmate in whom Phillips had confided - has lost his motivation to

cooperate now that he has pied and been sentenced.7 Tr. at 13:3-13; see

Baez, 193 A.3d at 41-42 (summarizing cases where witness unavailability

supported the denial of a motion to withdraw a plea).                  Daughter A. R. D.,

nearly thirteen years old, has moved and not responded to attempts to

contact her. Tr. at 12: 25-13: 4.         Daughter C. L. P., now nearly eighteen, has

been undergoing counseling with Erin Sheraton, who testified as an expert in

trauma counseling to C.L.P.'s overwhelming fear of having to testify in court,

and opined that her recovery has been negatively affected since learning of

Phillips' desire to rescind his plea. Tr. at 23: 10-25: 24; see Carrasquillo, 631

Pa. at 707, 115 A.3d at 1293 ("evidence of the harmful effect of Appellee's

withdrawal of his plea upon [the young victim]'s psychological and emotional

well-being was relevant to the trial court's inquiry") (Stevens, J., concurring).

Ms. Sheraton also had assessed A.C.M., now aged thirteen, who was having

trouble coping with Ph ii lips' desire to withdraw his plea, and told the trauma

6
  Prejudice in this context requires a showing that, due, to events occurring alter the plea
was entered, the Commonwealth would be placed in a worse position than had the trial
occurred as scheduled. Commonwealth v. 8/ango, 150 A.3d 45, 51 (Pa. Super. 2016); cf.
Baez, 169 A.3d at 41-42 (affirming the denial of a motion to withdraw a plea made after
three witnesses had already testified).
7   Mr. Sutton is serving a state sentence imposed at Case Nos. 234, 235, and 286-2016.



                                           7
                       (:
                                  CR 213 - 2016



counselor that she would be unable to testify for fear that he would harm

her or her family.   Tr. at 27:4-29:2, 35:17-22; cf. Islas, 156 A.3d at 1193

(the finding of substantial prejudice was unsupported          because "(t]he

Commonwealth affirmatively chose not to present evidence of witness

availability at the hearing, resting instead on the .argument that Islas had

not offered a fair and just reason to withdraw his plea.").

                                CONCLUSIONS

      Phillips has not presented a plausible claim of innocence.      The only

possible "fair and just" reason he has for seeking leave to rescind his plea is

that he never, on the record, admitted his guilt.         Case law does not,

however, seem to support a distinction between a guilty and a no contest

plea where the defendant's declaration of innocence is implausible.        The

additional circumstances here of prejudice to the Commonwealth in now

proceeding to trial, and the timing of Phillips' request, leads us to conclude

that fairness and justice would not be promoted by permitting him to

withdraw his plea. See Carrasquillo, 631 Pa. at 796, 115 A.3d at 1292.

     Accordingly, we enter the following Order:




                                   8
                                    ORDER


     AND NOW, this     2nd   day of March, 2018, the Defendant's Motion to

Withdraw Plea is DENIED.      The Court schedules sentencing for April 19,

2018, at 8:45 a.m., in Courtroom #2, Crawford County Judicial Center,

Meadville, PA 16335.

                                       BY THE COURT,




                                                                                   Judge




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