J-A08020-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    FRANKLIN BENNETT, III                      :
                                               :
                       Appellant               :   No. 3485 EDA 2018


        Appeal from the Judgment of Sentence entered October 31, 2018
             in the Court of Common Pleas of Philadelphia County,
             Criminal Division at No(s): CP-51-CR-0005931-2017.

BEFORE: LAZARUS, J., KUNSELMAN, J., and McCAFFERY, J.

MEMORANDUM BY KUNSELMAN, J.:                              FILED JULY 17, 2020

        Franklin Bennett, III, appeals from the judgment of sentence imposed

following the entry of his plea of nolo contendere to indecent assault and

simple assault.1 We affirm.

        The trial court summarized the relevant factual and procedural history

as follows:

              On February 12, 2016, [Bennett] sexually assaulted the
        complainant, [], who was eighteen years old at the time. The
        incident occurred in [Bennett’s] home . . . in Philadelphia. On that
        night, [the complainant] was babysitting [Bennett’s] four minor
        children and two of [Bennett’s] neighbors, who were also minors.

              [The complainant] and the six children fell asleep on a
        loveseat in a bedroom of the residence. Around 3:00 a.m.,
        [Bennett] entered the bedroom, reached his hand under [the
        complainant’s] underwear, and digitally penetrated her vagina
        without her consent. The incident occurred in the presence of the
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1   18 Pa.C.S.A. §§ 3126(a)(1), 2701(a).
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     six sleeping minors and continued until [the complainant] woke
     up.

           Based on these facts, on October 31, 2018, [Bennett]
     entered plea of nolo contendere on the charges of indecent assault
     and simple assault. [Bennett’s] written colloquy stated that, in
     exchange for the plea, the Commonwealth agreed to drop a felony
     charge of aggravated indecent assault, recommend a sentence of
     four years of probation (supervised by the sex offender unit), and
     transfer of [Bennett’s] probation to Chester County. Per the plea
     agreement, the order of probation specified that [Bennett] was to
     stay away from the complainant and comply with all Tier I sex
     offender requirements. [The trial] court accepted the plea and
     sentenced [Bennett] in accordance with each of these terms.
     However, due to the circumstances surrounding his offense (his
     commission of sexual assault in the presence of six minor
     children), [the trial] court imposed an additional condition of
     probation, which ordered [Bennett] to stay away from all minors
     except his own children. On November 5, 2018, [Bennett] filed
     motions to modify his sentence and withdraw his guilty plea, which
     [the trial] court denied on November 28, 2018.

            [Bennett] is an attorney and is licensed to practice law
     within the Commonwealth of Pennsylvania. During the hearing on
     the motion to withdraw his plea, [Bennett] testified that he
     practices both family and criminal law, but the majority of his
     practice “circulates around Family Court.” On November 2, 2018,
     the . . . Administrative Judge of the Family Court Division, issued
     an order, stating: “pursuant to the conviction sentence entered by
     the [trial court] . . . [Bennett] is hereby administratively removed
     from all pending family court cases.”

           On January 23, 2019, the Supreme Court of Pennsylvania
     issued an order temporarily suspending [Bennett’s] license to
     practice law, pursuant to Pa.R.D.E 214(d)(2). [Bennett] filed a
     timely notice of appeal on December 3, 2018.

Trial Court Opinion, 7/16/19, at 1-3 (citations to record, footnotes and

unnecessary capitalization omitted).

     On appeal, Bennett raises the following three issues in his statement of

questions presented, each containing multiple questions:

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      1. Did the [trial court] err in not allowing Mr. Bennett to withdraw
      his nolo contendere plea, or in the alternative, err in not removing
      the condition of no contact with minors since the no contact with
      minors was a condition that was not bargained for, and was added
      by the court despite the [plea] bargain? Was there a manifest
      injustice and great unfairness when the [trial] court added a
      condition not bargained for and which severely prejudiced Mr.
      Bennett?     Was there a manifest injustice by Mr. Bennett’s
      assertion of his innocence? Did the [trial] court err in adding the
      condition of no contact with minors since the victim was eighteen
      years of age and an adult? Did the Court err in adding the
      condition of no contact with minors since there was no evidence
      of record in the nolo contendere colloquy or in the plea itself that
      minors were involved? Further, should the plea be allowed to be
      withdrawn since the no restriction on travel condition that was
      bargained for has been changed, and Mr. Bennett is restricted in
      his travel, and time and costs were imposed, contrary to the plea
      agreement?

      2. Did the [trial court] err in accepting the nolo contendere plea
      and finding Mr. Bennett guilty of the charge of simple assault, a
      misdemeanor of the second degree, when there was no factual
      evidence in the plea to support a finding of simple assault in this
      case?

      3. Did the [trial court] err in not allowing Mr. Bennett to withdraw
      his guilty plea due to the ineffectiveness of his trial counsel since
      trial counsel had barely met with Mr. Bennett, was not prepared
      and told Mr. Bennett he would not allow Mr. Bennett to present
      character witnesses? Did the ineffectiveness of trial counsel result
      in a plea that was not knowingly, intelligently and voluntarily
      entered since Mr. Bennett was afraid his trial counsel was not
      going to give him an adequate defense, and therefore, felt
      compelled to enter into the nolo contendere plea?

Bennett’s Brief at 4-6.

      Initially, we observe that in Bennett’s statement of questions presented,

as well as in the argument section of his brief, he raises several issues that

were not raised in his Pa.R.A.P. 1925(b) concise statement of errors

complained of on appeal. Importantly, when an appellant is directed to file a

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concise statement of matters to be raised on appeal pursuant to Pa.R.A.P.

1925(b), any issues not raised in that statement are waived.                 See

Commonwealth v. Lord, 719 A.2d 306, 309 (Pa. 1998); see also Pa.R.A.P.

302(a) (providing that issues not raised in the lower court are waived and

cannot be raised for the first time on appeal). Here, the trial court ordered

Bennett to file a Pa.R.A.P. 1925(b) concise statement. Accordingly, as Bennett

has identified several issues that were not included in his concise statement,

we may not address them since they were not preserved for our review.

      In his first preserved issue, Bennett challenges the trial court’s denial of

his post-sentence motion to withdraw his nolo contendere plea.2 Our standard

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2 In his discussion of his first issue, Bennett also superficially challenges the
trial court’s denial of his motion to modify and reconsider and vacate sentence
on the basis that the trial court abused its discretion in imposing the no-
contact with minors provision. This argument challenges the discretionary
aspects of Bennett’s sentence. See Commonwealth v. Koren, 646 A.2d
1205, 1208 (Pa. Super. 1994). However, Bennett has not developed this
alternative argument by providing a discussion of pertinent legal authority.
See Pa.R.A.P. 2119(a) (stating that the parties’ briefs must include a
discussion of each question raised on appeal and a “citation of authorities as
are deemed pertinent.”); see also Commonwealth v. Heggins, 809 A,2d
908, 912 n.2 (Pa. Super. 2002) (holding that an issue identified on appeal but
not developed in appellant’s brief of abandoned and therefore waived).
Instead, he only argues that the condition was not bargained for, not that the
court abused its discretion in ordering this condition. Moreover, Bennett has
not included in his brief a requisite Pa.R.A.P. 2119(f) statement regarding this
discretionary challenge. See Pa.R.A.P. 2119(f) (proving in relevant part:
“[a]n appellant who challenges the discretionary aspects of a sentence in a
criminal matter shall set forth in a separate section of the brief a concise
statement of the reasons relied upon for allowance of appeal with respect to
the discretionary aspects of a sentence.”). For these reasons, we decline to
address whether the judge abused its discretion in ordering this condition.



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of review of such a ruling is well-settled.      There is no absolute right to

withdraw a guilty plea, and the decision as to whether to allow a defendant to

do so is a matter within the sound discretion of the trial court.

Commonwealth v. Bedell, 954 A.2d 1209, 1212 (Pa. Super. 2008).

      [W]e will not disturb the [trial] court’s decision on such motion
      unless the court abused that discretion. An abuse of discretion is
      not a mere error in judgment but, rather, involves bias, ill will,
      partiality,  prejudice,  manifest     unreasonableness,     and/or
      misapplication of law. By contrast, a proper exercise of discretion
      conforms to the law and is based on the facts of record.

Commonwealth v. Gordy, 73 A.3d 620, 624 (Pa. Super. 2013) (internal

citations omitted). Further, a criminal defendant who was sentenced to more

than what was agreed upon may only withdraw his guilty plea if he is “deprived

of the benefit of his bargain.” Commonwealth v. Tann, 79 A.3d 1130, 1131

(Pa. Super. 2013).3

       Bennett claims that the trial court erred in denying his motion to

withdraw his plea of nolo contendere because the court imposed an additional

condition of probation that was not part of his plea bargain, i.e., that he not

have contact with any minors except his own children. Bennett maintains that

the condition of no contact with minors was not part of the plea negotiations

or the plea agreement. He claims that he has suffered manifest injustice due


____________________________________________


3 For sentencing purposes, the effect of a plea of nolo contendere is equivalent
to a plea of guilty. See Commonwealth v. Gunter, 771 A.2d 767, 773 (Pa.
2001).



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to the adverse consequences the condition, including being banned from

Family Court where he conducts most of his legal practice,4 and restricted

from certain activities involving his children.

       Importantly, a person placed on probation does not enjoy the full

panoply of constitutional rights otherwise enjoyed by those who have not run

afoul of the law. See Koren, 646 A.2d at 1209. Pursuant to 42 Pa.C.S.A. §

9754, “[t]he court shall attach reasonable conditions authorized by section

9763 (relating to conditions of probation) as it deems necessary to ensure or

assist the defendant in leading a law-abiding life.” The trial court may impose

a condition of probation requiring the defendant “[t]o do other things

reasonably related to rehabilitation.” 42 Pa.C.S.A. § 9763(b)(15). The court

may also impose restrictive conditions which “significantly restrict the person’s

movement.”       Id. § 9763(d)(2).       This court has consistently held that no-

contact conditions are neither unreasonable nor unduly restrictive of a

person’s liberty. Koren, 646 at A.2d 1209. Thus, a sentencing court may

order a no-contact condition on probation if it is reasonably calculated to aid

in the defendant’s rehabilitation. Id.


____________________________________________


4 Bennett concedes that, after the Administrative Judge of the Philadelphia
Family Court issued an order prohibiting Bennett from entering Family Court
due to the no contact with minors condition of his probation, the Pennsylvania
Supreme Court temporarily suspended Bennett from practicing law due to his
nolo contendere pleas. Thus, even if he had not been prohibited from
practicing in Family Court by order of the Administrative Judge, he would have
been prohibited from practicing in any court in the Commonwealth due to the
Supreme Court’s order.

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      The trial court considered Bennett’s first issue and determined that it

lacked merit because he received the benefit of his bargained-for plea

agreement. The court observed:

            In exchange for [Bennett’s] nolo contendere plea, the
      Commonwealth agreed to drop the charge of aggravated indecent
      assault, a second-degree felony, and recommend a sentence of
      four years of probation (supervised by the sex offender unit). This
      court    followed    the    Commonwealth’s       recommendation.
      Accordingly, Bennett was sentenced to four years of reporting
      probation, he was ordered to stay away from the complainant,
      supervision of his probation was transferred to Chester County,
      and he was ordered to comply with all Tier I sex offender
      requirements.

            The sentence imposed by this court did not extend the
      recommended term of probation or inflict any term of
      incarceration.    The maximum sentence Bennett could have
      received was “four years’ incarceration and a fine of $10,000,” but
      he was not subjected to either penalty. Additionally, . . .
      [Bennett’s] sentence did not include a condition that was
      specifically excluded by the terms of the plea agreement. Further,
      [Bennett] received the promised benefit of not being charged with
      aggravated indecent assault, a crime that is subject to lifetime
      registration under SORNA II and a maximum of ten years of
      incarceration. Finally, [Bennett] retained the benefit of the
      Commonwealth’s amendment of the initial charges against him
      [which reduced the charges and limited his reporting period].

Trial Court Opinion, 7/16/19, at 7.

      We agree with the trial court’s determination that Bennett has not shown

that the no-contact with minors provision somehow deprived him of his plea

bargain where he received substantially reduced charges and a probation

sentence in lieu of a possible four to ten year sentence of incarceration and

lifetime sexual offender registration. As explained above, the trial court had

the discretion to impose reasonable conditions to the probation sentence. On

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its face, the condition is reasonable, and we cannot say that Bennett was

deprived of the benefit of his bargain, such that he should be able to withdraw

his plea. Accordingly, Bennett’s first issue fails.

      In his second issue, Bennett claims the trial court erred in accepting

Bennett’s plea to simple assault when the factual summary provided by the

district attorney at the plea hearing did not support any of the elements of

that crime. Specifically, he claims that the facts underlying his plea did not

indicate any bodily injury or attempt cause bodily injury, nor any fear of

serious bodily injury.

      Notably, the trial court did not address this issue. Upon review of the

record, we conclude that Bennett did not challenge the trial court’s

acceptance of his nolo contendere plea in his Pa.R.A.P. 1925(b) concise

statement of errors complained of on appeal.          Instead, he challenged the

court’s denial of his request to withdraw the plea.       See Pa.R.A.P. 1925(b)

Concise Statement, 12/13/18, at ¶ 6 (wherein Bennett claimed “the trial court

erred in not allowing the withdrawal of the plea since there was no factual

basis for simple assault”). These are two different concepts. Because Bennett

changed the nature of his claim on appeal, we find he waived this issue. See

Lord, 719 A.2d at 309 (holding that if an appellant is directed to file a concise

statement of matters to be raised on appeal pursuant to Pa.R.A.P. 1925(b),

any issues not raised in that statement are waived); see also Pa.R.A.P.




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302(a) (providing that issues not raised in the lower court are waived and

cannot be raised for the first time on appeal).5

       In his final issue, Bennett challenges the ineffectiveness of his plea

counsel. However, litigation of ineffectiveness claims is not generally a proper

component of a defendant’s direct appeal, and is presumptively deferred for

collateral attack under the Post Conviction Relief Act. See Commonwealth

v. Holmes, 79 A.3d 562, 578 (Pa. 2013) (establishing a deferral rule for

ineffectiveness claims litigated after its decision in Commonwealth v. Grant,

813 A.2d 726 (Pa. 2002)). While the Pennsylvania Supreme Court has

recognized limited exceptions to the rule that ineffectiveness claims should be

deferred    until   collateral   review,       Bennett   has   not   argued   that   his

ineffectiveness claim falls within any of these exceptions to the rule that such

a claim should be deferred until collateral review. See Commonwealth v.

Arrington, 86 A.3d 831, 856-57 (Pa. 2014); see also Commonwealth v.

Delgros, 183 A.3d 352, 361 (Pa. 2018).               For this reason, we decline to

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5  Even if we did not find waiver, we would have concluded that Bennett’s
second issue lacks merit. The record demonstrates that Bennett was facing
two separate indecent assault charges, including a charge of aggravated
indecent assault of an unconscious victim, which is a second-degree felony
subject to a twenty-five year registration period and classification as a Tier 2
sex offender. Bennett specifically negotiated a deal to plead to the lesser
offense of simple assault so that he would not have to register for twenty-five
years or be classified as a Tier 2 sex offender. See N.T., 11/28/18, at 52-53.
To now argue there was no factual basis for the lesser charge of simple assault
is a flagrant attempt to play “fast and loose” with the guilty plea process. See
Commonwealth v. Cole, 564 A.2d 203, 206 (Pa. Super. 1989).



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address the merits of Bennett’s ineffectiveness claim, without prejudice for

him to raise the claim on collateral review.6

       Application for Continuance denied.         Judgment of sentence

affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/17/20




____________________________________________


6 Given our disposition, Bennett’s application for a continuance and/or oral
argument is denied as moot.


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