J-S14039-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    JUSTIN J. COLLINS                          :
                                               :
                       Appellant               :   No. 1667 EDA 2017

             Appeal from the Judgment of Sentence April 21, 2017
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                       No(s): CP-51-CR-0008924-2014


BEFORE:      OTT, J., McLAUGHLIN, J., and RANSOM*, J.

MEMORANDUM BY RANSOM, J.:                                FILED APRIL 26, 2018

        Appellant, Justin J. Collins, appeals from the judgment of sentence of

eleven-and-one-half to twenty-three months of incarceration followed by

seven years of probation, imposed on April 21, 2017, following his guilty plea

for: unlawful contact with minor -- sexual offenses; and for indecent assault

-- person less than thirteen years of age.1 We affirm.

        In January 2017, Appellant entered a negotiated guilty plea to the

aforementioned charges.          See generally Appellant’s Written Guilty Plea




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1   18 Pa.C.S. §§ 6318(a)(1), 3126(a)(7), respectively.




*    Retired Senior Judge assigned to the Superior Court.
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Colloquy, 1/10/17; Notes of Testimony (N. T.), 1/10/17.2         Appellant was

immediately sentenced to seven years of probation for the unlawful contact

with minor charge, but his sentence for indecent assault was deferred pending

a sexually violent predator3 assessment4 pursuant to Megan’s Law.5           In



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2 From January 2013 to April 2014, on more than one occasion, Appellant
inserted his penis into the mouth of a four-year-old male child. N. T., 1/10/17,
at 33-34.
3 A sexually violent predator is an individual convicted of sexually violent
offenses who is determined to have engaged in the violent conduct “due to a
mental abnormality or personality disorder that makes the individual likely to
engage in predatory sexually violent offenses.” 42 Pa.C.S. § 9799.12.
Sexually violent predators are subjected to expanded notification
requirements.    42 Pa.C.S. §§ 9799.26-9799.27.        Here, Appellant was
determined not to be a sexually violent predator. N. T., 4/21/17, at 3, 19.
4 At the time of Appellant’s plea and sentencing, assessments were controlled
by 42 Pa.C.S. § 9799.24(a) (“After conviction but before sentencing, a court
shall order an individual convicted of a sexually violent offense to be assessed
by the board.”). On October 31, 2017, subsequent to Appellant’s sentencing
on both counts, Section 9799.24 was held unconstitutional by
Commonwealth v. Butler, 173 A.3d 1212 (Pa. Super. 2017), which was
made retroactive by Commonwealth v. Rivera-Figueroa, 174 A.3d 674
(Pa. Super. 2017). Nevertheless, Butler and Rivera-Figueroa ultimately do
not disturb this appeal, because, notwithstanding the assessment pursuant to
Section 9799.24, Appellant still properly received lifetime registration,
because his conviction for 18 Pa.C.S. § 3126(a)(7) would still qualify as a
Tier III crime, requiring lifetime registration. 42 Pa.C.S. §§ 9799.14(d),
9799.15(a)(3).
5  “Megan’s Law IV [is] more commonly known as the Sexual Offender
Registration and Notification Act (‘SORNA’). SORNA went into effect on
December 20, 2012, and provided for the expiration of Megan’s Law III at that
time.” Commonwealth v. Derhammer, 173 A.3d 723, 724-25 (Pa. 2017)
(footnote omitted). At the time of Appellant’s plea and sentencing, SORNA
was contained within 42 Pa.C.S. §§ 9799.10-9799.41. On February 21, 2018,



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February 2017, after retaining new counsel, Appellant filed a motion to

withdraw his guilty plea, arguing that he wanted to review discovery; the

motion was denied without a hearing. In April 2017, Appellant was sentenced

to eleven-and-one-half to twenty-three months of incarceration for indecent

assault; his previously imposed probationary sentence was to be served

consecutively to his confinement.

       Appellant timely appealed.         Appellant filed a court-ordered Pa.R.A.P

1925(b) statement of errors complained of on appeal, and the trial court

issued a responsive opinion.

       On appeal, Appellant raises the following issues for our consideration:

       1.   Did the trial [court] err as a matter of law by accepting a
       plea on the record that was not voluntary or knowing[,] as
       [Appellant] was under pressure from his attorney to plead guilty?

       2.    Did the attorney for the defendant at trial Andre Martino[,]
       Esquire act ineffectively for failing to convey the ramifications of
       Megan’s Law to the [Appellant] thereby preventing him from
       making an informed decision on whether to plead guilty or take
       the case to trial?

       3.    Did the trial attorney for [Appellant] at trial Andre Martino
       act ineffectively for failing to advise the defendant regarding work
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an additional section was added at § 9799.42; this addition does not affect
the current action.

Throughout this memorandum, we shall refer to Appellant’s registration
requirements as arising under “Megan’s Law,” not “SORNA,” because
Appellant, the Commonwealth, and the trial court all employ the term
“Megan’s Law” and not “SORNA.” We wish to remain consistent with the
parties and the trial court in our nomenclature.




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       release option and failing to adequately prepare and meet with
       the defendant to prepare his case or put the interests of his client
       first?

Appellant’s Brief at 4.6

       We begin by setting forth our standard of review.            In
       Commonwealth v. Broaden, 980 A.3d 124 (Pa.Super. 2009),
       we summarized the principles governing post-sentence[7] motions
       to withdraw pleas:

          [P]ost-sentence motions for withdrawal are subject to
          higher scrutiny since courts strive to discourage entry of
          guilty pleas as sentence-testing devices. A defendant must
          demonstrate that manifest injustice would result if the court
          were to deny his post-sentence motion to withdraw a guilty
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6Appellant has not numbered the pages of his brief, in violation of Pa.R.A.P.
2173. Therefore, when referring to Appellant’s brief, we have numbered the
pages for ease of reference.
7 At the time Appellant had filed his motion to withdraw his guilty plea, he had
already gone through the sentencing procedure and knew what his sentence
was going to be for both counts, even though his judgment of sentence for
indecent assault was not yet entered on the record. For that reason, we
believe that the post-sentence standard of review is appropriate. To the
extent that the presentence standard of review would be applicable for the
indecent assault count, even if we were to apply this more lenient standard of
review, our conclusion would not change, and we would still affirm the
judgment of sentence. See Commonwealth v. Campbell, 455 A.2d 126,
128 (Pa. 1983) (for a motion to withdraw a guilty plea prior to sentencing, “a
court may allow the defendant to withdraw his guilty plea where he
demonstrates fair and just reason for the withdrawal” (internal quotation
marks omitted)); Commonwealth v. Elia, 83 A.3d 254, 261-62 (Pa. Super.
2013) (for a presentence motion to withdraw a guilty plea, a “trial court’s
decision regarding whether to permit a guilty plea to be withdrawn should not
be upset absent an abuse of discretion”); Commonwealth v. Pardo, 35 A.3d
1222, 1226 (Pa. Super. 2011) (“The standard for permitting a defendant to
withdraw a plea of guilty varies according to the point in the proceedings at
which the motion to withdraw is made. Our Supreme Court has established
significantly different standards of proof for defendants who move to withdraw
a guilty plea before sentencing and for those who move to withdraw a plea
after sentencing.”).


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         plea. Manifest injustice may be established if the plea was
         not tendered knowingly, intelligently, and voluntarily. In
         determining whether a plea is valid, the court must examine
         the totality of circumstances surrounding the plea. A
         deficient plea does not per se establish prejudice on the
         order of manifest injustice.

      Id. at 129 (citations omitted). “It is well-settled that the decision
      whether to permit a defendant to withdraw a guilty plea is within
      the sound discretion of the trial court.” Commonwealth v. Hart,
      174 A.3d 660, 664 (Pa.Super. 2017) (applying abuse of discretion
      in post-sentencing context). The term discretion

         imports the exercise of judgment, wisdom and skill so as to
         reach a dispassionate conclusion, and discretionary power
         can only exist within the framework of the law, and is not
         exercised for the purpose of giving effect to the will of the
         judges. Discretion must be exercised on the foundation of
         reason, as opposed to prejudice, personal motivations,
         caprice or arbitrary action. Discretion is abused when the
         course pursued represents not merely an error of judgment,
         but where the judgment is manifestly unreasonable or
         where the law is not applied or where the record shows that
         the action is a result of partiality, prejudice, bias or ill will.

      Commonwealth v. Shaffer, 551 Pa. 622, 712 A.2d 749, 751
      (1998) (citation omitted).

Commonwealth v. Kehr, ___ A.3d ___, 2018 Pa. Super. 44, 2018 WL

1077109, at *1-*2 (filed Feb. 28, 2018).

      Here, Appellant claims that he did not knowingly and voluntarily enter

his negotiated guilty plea for four specific reasons:        (1) his plea counsel

pressured him into pleading guilty; (2) he had been “told” that he “could plead

no contest”; (3) he had also been “told” that he “could get a work release”;

and (4) was “not knowledgeable about Megan’s Law.” Appellant’s Brief at 7-

8. However, Appellant’s contentions are belied by the record.




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      First, the record indicates that no one pressured or forced Appellant to

plead guilty. Appellant executed his written guilty plea colloquy, affirming:

“Nobody promised me anything or threatened me or forced me to plead

guilty.”   Appellant’s Written Guilty Plea Colloquy, 1/10/17, at 1.       During

Appellant’s oral guilty plea colloquy, the following dialogue occurred:

      [THE COURT:] You could challenge your sentence and file an
      appeal if someone forced you to take this resolution of pleading
      guilty.

      Has anyone forced you to do this?

      [APPELLANT]:      No, Your Honor.

      THE COURT:        I know you spoke to your mother, but she
      doesn’t have such control over you that she forced you to make
      this decision, nor has your attorney forced you to make the
      decision. Is that correct?

      [APPELLANT]:      That’s correct.

N. T., 1/10/17, at 38-39. “A defendant is bound by the statements which he

makes during his plea colloquy.”     Commonwealth v. Orlando, 156 A.3d

1274, 1281 (Pa. Super. 2017) (internal brackets and citation omitted).

Appellant thus cannot now assert claims that contradict the statements he

made during his guilty plea colloquy that he was not forced or pressured into

pleading guilty by anyone, including his plea counsel. Appellant’s Brief at 7;

Orlando, 156 A.3d at 1281; N. T., 1/10/17, at 38-39.

      Similarly, during Appellant’s oral guilty plea colloquy, both the

Commonwealth and the trial court explained to Appellant that he could not

receive a negotiated sentence and plead no contest; if he pleaded no contest,

his sentence would be open, not negotiated. N. T., 1/10/17, at 22-24. When


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asked by the trial court if he understood the distinction, Appellant answered

affirmatively. Id. at 25. Appellant was then given time to confer with his plea

counsel, after which counsel informed the court that Appellant agreed to plead

guilty in order to receive the negotiated sentence. Id. at 26. Furthermore,

Appellant signed a “Written Guilty Plea Colloquy”; nothing on the form states

or implies that Appellant was pleading no contest instead of guilty. Again,

Appellant is bound by the statements he made during his guilty plea colloquy.

Orlando, 156 A.3d at 1281. Hence, his current statement that he “was told

. . . that he could plead no contest” is untenable. Appellant’s Brief at 8; see

also N. T., 1/10/17, at 22-26.

       Additionally, the trial court repeatedly informed Appellant during his oral

plea colloquy that he could not receive work release. N. T., 1/10/17, at 7-8,

14.8 Therefore, Appellant’s current assertion that he believed work release

was an option when he pleaded guilty is not supported by the record.

Compare Appellant’s Brief at 8, with N. T., 1/10/17, at 7-8, 14.

       Finally, Appellant avers that he was ignorant of the consequences of

Megan’s Law when he pleaded guilty, including “the different tiers[9] that

would have been applicable.” Appellant’s Brief at 8. Once again, such an

assertion is undermined by the record. At the beginning of Appellant’s oral
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8 The Commonwealth also confirmed that Appellant was ineligible for work
release. N. T., 1/10/17, at 5.
9 “Sexual offenses shall be classified in a three-tiered system composed of
Tier I sexual offenses, Tier II sexual offenses and Tier III sexual offenses.” 42
Pa.C.S. § 9799.14(a).

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colloquy, the Commonwealth stated that Appellant would be subject to

“Megan’s Law registration,” which the trial court corroborated. N. T., 1/10/17,

at 3, 10. When the trial court asked the Commonwealth, “How long would the

Megan’s Law requirement be for the indecent [assault,]” the Commonwealth

answered: “On the indecent assault graded as an F3[ -- i.e., a felony of the

third degree], tier three, lifetime.” Id. at 10 (emphasis added). At the

conclusion of sentencing, at the trial court’s prompting, the Commonwealth

reiterated:    “You are subject to lifetime registration, tier three, with the

Pennsylvania State Police.        You must register with the Pennsylvania State

Police immediately . . .” Id. at 55 (emphasis added). Thus, Appellant cannot

now propose that he was ignorant of the sexual offender registration

requirements, including the multi-tier system for calculating the duration of

the registration obligation.       Compare Appellant’s Brief at 8, with N. T.,

1/10/17, at 3, 10, 55.10

       Accordingly, none of the reasons that Appellant suggests render his plea

involuntary and unknowing are supported by the record. See Appellant’s Brief
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10 We note that, had the trial court failed to inform Appellant of his Megan’s
Law/SORNA registration requirements or had Appellant otherwise established
his ignorance of said registration requirements, such a failure to understand
“what the plea connoted and its consequences” would have constituted a fair
and just reason for withdrawal of his guilty plea. Commonwealth v. Hart,
174 A.3d 660, 668 (Pa. Super. 2017) (“because the trial court failed to inform
Appellant of SORNA’s registration requirements at the time of his plea and
sentencing, it abused its discretion in denying his post-sentence motion to
withdraw his plea”; “Appellant was never appraised of the SORNA
consequences of his plea until after sentencing”).



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at 7-8; Kehr, 2018 WL 1077109, at *1-*2. Consequently, the trial court did

not abuse its discretion in declining to permit a post-sentence withdrawal of

Appellant’s guilty plea. See id.

        Appellant’s remaining challenges concern ineffective assistance of plea

counsel. Appellant’s Brief at 8-9.

        [I]n Commonwealth v. Holmes, 621 Pa. 595, 79 A.3d 562
        (2013), our Supreme Court reiterated its preference that claims
        pertaining to ineffectiveness be deferred to PCRA[11] review. “By
        way of summary, we hold that [the] general rule of deferral to
        PCRA review remains the pertinent law on the appropriate timing
        for review of claims of ineffective assistance of counsel; we
        disapprove of expansions of the exception to that rule[.]” Id. at
        563.

        This stated preference poses an impediment to the trial court's
        ability to entertain the instant motions to withdraw the pleas, and,
        concomitantly, our ability to review those decisions on direct
        review.

Kehr, 2018 WL 1077109, at *4-*5. As Appellant’s remaining claims pertain

to ineffectiveness, they are not ripe for our review and must be deferred to

PCRA review. Appellant’s Brief at 8-9; Kehr, 2018 WL 1077109, at *4-*5.

        Judgment of sentence affirmed.




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11   Post Conviction Relief Act, 42 Pa.C.S. §§ 9541-9546.

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/26/18




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