J-A26004-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT
                                                            OF
                                                       PENNSYLVANIA
                          Appellee

                     v.

PHILLIP GRAYSON,

                          Appellant                  No. 1711 WDA 2017


    Appeal from the Judgment of Sentence Entered September 19, 2016
             In the Court of Common Pleas of Allegheny County
            Criminal Division at No(s): CP-02-CR-0003163-2015


BEFORE: BENDER, P.J.E., SHOGAN, J., and MURRAY, J.

MEMORANDUM BY BENDER, P.J.E.:                   FILED DECEMBER 31, 2018

   Appellant, Phillip Grayson, appeals nunc pro tunc from the judgment of

sentence of an aggregate term of 12 years’ probation, imposed after he pled

guilty to several sexual offenses committed against his step-granddaughter.

Appellant contends the trial court erred when it rejected his request to

withdraw his guilty plea, as he ostensibly did not anticipate the nature of the

conditions of his probation. Appellant also contends the trial court erred by

imposing a condition of probation that barred him from having contact with

his teenage biological children. After careful review, we affirm.

      At his guilty plea hearing, Appellant admitted to the following facts as

set forth in the affidavit of probable cause:
             Your affiant, Detective Teresa Gongaware, has been a police
      officer for approximately 13 years. I have been employed with the
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     Penn Hills Police Department for 9 years and assigned to the
     Investigative unit for 3½ years. The information within this
     affidavit was reported to or observed by your affiant. The victim
     is a juvenile female, 4 years of age, and will be referred to as JANE
     DOE. The identity of the victim is known to your affiant and will
     be made available for any and all court proceedings.

           On 9-29-14 at 0900 hours I, Det. Teresa Gongaware,
     attended the forensic interview of JANE DOE located at the Child
     Advocacy Center (Children’s Hospital of Pittsburgh).

            DOE was interviewed by manager Jamie Mesar and
     observed by myself and Josette Pickens of Allegheny County CYF.
     Prior to speaking with DOE, we spoke with [JANE DOE’s mother,
     hereinafter, “CF”]. [CF] stated that she dropped DOE off to be
     watched, on or about Sept. 14th 2014, while she went to work.
     She identified the residence as the paternal grandparents[’]
     house…. She stated approximately one week after the incident,
     DOE disclosed that “Pap pap” touched her. [CF] identified “Pap
     pap” as [Appellant, DOE’s step-grandfather]. …

            Ms. Mesar then spoke with DOE.         When asked, DOE
     identified why she was present at the interview. DOE stated that
     she was watched by two other juvenile females, but they no longer
     take care of her. When asked, DOE stated they no longer take
     care of her, because their father touched her. When asked, she
     identifies the actor as “MR. PHIL.”

           When asked, DOE stated she was playing on a tablet inside
     the home. [Appellant] told DOE to put the tablet down. DOE did
     not comply at first, … then [Appellant] said it louder. DOE asked
     why he wanted her to put it down, he replied “because I want to
     touch your Coo Coo.” When asked, DOE stated she told him no.

            When asked, DOE pointed to her genital area and identified
     it as her “Coo Coo.” When asked, DOE stated that it was used to
     go to the bathroom. When asked, DOE stated [Appellant] touched
     her under her panties with “his finger.” When asked, DOE stated
     [Appellant] moved his finger around and stuck it “in the Coo Coo
     hole.” When asked, DOE stated she told him to stop and he did.
     When asked, DOE stated [Appellant] told her not tell anyone.
     When asked, DOE stated [Appellant] would “kill her family” if she
     did.

Affidavit of Probable Cause, 10/23/14, at 2.


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       The Commonwealth charged Appellant with 1) aggravated indecent

assault of a child, 18 Pa.C.S. § 3125(b); 2) unlawful contact with minors, 18

Pa.C.S. § 6301(a)(i); 3) corruption of minors, 18 Pa.C.S. § 6301(a)(i); 4)

indecent assault of a person less than 13 years of age, 18 Pa.C.S. §

3126(a)(7); and 5) endangering the welfare of children, 18 Pa.C.S. § 4304(a).

On September 19, 2016, Appellant entered a negotiated guilty plea to counts

3, 4, and 5. Pursuant to a plea agreement, the Commonwealth agreed to

withdraw counts 1 and 2, and the trial court imposed an aggregate sentence

of 12 years’ probation.1          The court also imposed special conditions of

probation.    Inter alia, the court ordered Appellant to have no contact with

minors, including his own biological children, and no access to the internet.

       Appellant filed a timely post-sentence motion seeking to withdraw his

plea on the bases that: 1) “his guilty plea was not knowing[,] voluntary[,] and

intelligently entered”; and 2) “defense counsel failed to advise [him] that he

would not be able to live with his children, ages 17, 15[,] and 14 after the

guilty plea….” Appellant’s Post-Sentence Motion, 9/27/16, at 1 ¶3(a)-(b). The

trial court denied the motion on December 7, 2016, after a hearing.         On




____________________________________________


1 At counts 3, 4, and 5, the trial court sentenced Appellant to consecutive
terms of 5, 2, and 5 years’ probation, respectively.




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December 16, 2016, Appellant filed a motion for reconsideration.2            That

motion was denied by order dated January 6, 2017.

        Appellant filed an untimely notice of appeal on January 20, 2017. He

filed a timely, court-ordered Pa.R.A.P. 1925(b) statement on April 7, 2017,

and the court issued a Rule 1925(a) opinion on May 5, 2017. On October 20,

2017, this Court issued a memorandum opinion quashing Appellant’s appeal

as untimely filed. Appellant filed a motion to reinstate his appeal rights nunc

pro tunc on October 27, 2017, which the trial court granted on November 2,

2017.     Appellant then filed notice of the instant nunc pro tunc appeal on

November 15, 2017.          Appellant filed another, court-ordered Rule 1925(b)

statement on December 18, 2017, and the trial court issued a new Rule

1925(a) opinion on April 26, 2018.

        Appellant now presents the following questions for our review:
        1. Did the [t]rial [c]ourt err in rejecting Appellant’s request to
        withdraw his guilty plea where Appellant’s plea was entered
        without the [t]rial [c]ourt giving an adequate explanation of the
        probation conditions that could be imposed, and where prior trial


____________________________________________


2 Although titled a motion for reconsideration, implying reconsideration of the
motion to withdraw his plea, the reconsideration motion actually concerned
the court’s offer, made at the post-sentence motion hearing held on December
7, 2016, to permit Appellant to have supervised visits with his minor children
if he withdrew his motion to withdraw his guilty plea. See N.T., 12/7/16, at
2 (the court’s stating it “would have no objection to [Appellant’s] seeing his
natural children if supervised” and then asking if that would affect Appellant’s
motion to withdraw his plea); but see id. at 9 (the court’s appearing to have
retracted the supervised-visits offer, when it stated that Appellant was “not
allowed to live in the residence with your children or be in touch with any
child under the age of 18”) (emphasis added).

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      counsel provided ineffective assistance in, inter alia, failing to
      inform Appellant of the potential conditions of probation?

      2. Did the [t]rial [c]ourt err in ordering that Appellant have no
      contact with his biological children as a condition of his probation?

Appellant’s Brief at 5.

      Appellant’s first claim concerns the denial of his motion to withdraw his

guilty plea.
            The decision to grant or deny a motion to withdraw a guilty
      plea rests within the trial court’s discretion, and we will not disturb
      the 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) (citations

omitted).

      A trial court should grant pre-sentence motions to withdraw a guilty plea

for any fair and just reason, unless they cause substantial prejudice to the

Commonwealth. See Commonwealth v. Broaden, 980 A.2d 124, 128 (Pa.

Super. 2009). “Conversely, post-sentence motions for withdrawal are subject

to higher scrutiny since courts strive to discourage entry of guilty pleas as

sentence-testing devices.     Therefore, a showing of manifest injustice is

required    to   withdraw   guilty   pleas   after   imposition    of   sentence.”

Commonwealth v. Flick, 802 A.2d 620, 623 (Pa. Super. 2002). Hence, the

applicable standard here is whether Appellant can demonstrate that the trial

court’s denial of his motion to withdraw his guilty plea was an abuse of

discretion because it was manifestly unjust.


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      Appellant contends that
      [n]ot only did the [t]rial [c]ourt fail to ensure that Appellant
      knowingly entered into the plea, but his previous trial counsel
      offered wholly ineffective assistance, most notably in failing to
      apprise Appellant as to the significant probation conditions which
      were likely to accompany his sentence. These conditions—a bar
      on his use of the internet and [a] bar on contact[ing] his four
      children—constitute incredibly severe restrictions on Appellant’s
      ability to maintain employment and his family. That he was not
      informed of the possibility of such harsh conditions rendered his
      guilty plea unknowing and involuntary, thus serving as a
      legitimate basis for his request to withdraw that guilty plea, which
      was erroneously denied by the [t]rial [c]court.

Appellant’s Brief at 10. Appellant later asserts that he “entered into his guilty

plea unknowingly and unintelligently as he had not been adequately informed

by trial counsel or the [t]rial [c]ourt about the scope and severity of probation

conditions which could accompany his sentence.” Id. at 13 (emphasis added).

      Thus, we assume it is Appellant’s intent to assert two claims, despite

having failed to raise them as separate issues in his brief.     Regarding the

ineffective assistance of counsel aspect of Appellant’s argument, this claim

must be deferred until Appellant seeks collateral review. In Commonwealth

v. Holmes, 79 A.3d 562 (Pa. 2013), our Supreme Court reaffirmed its prior

holding in Commonwealth v. Grant, 813 A.2d 726 (Pa. 2002), that, absent

certain circumstances, claims of ineffective assistance of counsel should be

deferred until collateral review under the Post Conviction Relief Act (PCRA),

42 Pa.C.S. §§ 9541-9546.         Holmes, 79 A.3d at 576.           The specific

circumstances under which ineffectiveness claims may be addressed on direct

appeal are not present in the instant case. See id. at 577-78 (holding that



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the trial court may address claim(s) of ineffectiveness where they are “both

meritorious and apparent from the record so that immediate consideration

and relief is warranted,” or where the appellant’s request for review of “prolix”

ineffectiveness claims is “accompanied by a knowing, voluntary, and express

waiver of PCRA review”).

      Thus, we only review Appellant’s claim insofar as he asserts that the

trial court failed to sufficiently inform him of the consequences of his plea.

             In order for a guilty plea to be constitutionally valid, the
      guilty plea colloquy must affirmatively show that the defendant
      understood what the plea connoted and its consequences. This
      determination is to be made by examining the totality of the
      circumstances surrounding the entry of the plea. Thus, even
      though there is an omission or defect in the guilty plea colloquy,
      a plea of guilty will not be deemed invalid if the circumstances
      surrounding the entry of the plea disclose that the defendant had
      a full understanding of the nature and consequences of his plea
      and that he knowingly and voluntarily decided to enter the plea.

Commonwealth v. Fluharty, 632 A.2d 312, 314–15 (Pa. Super. 1993)

(citations and quotation marks omitted). However, the “desire of an accused

to benefit from a plea bargain is a strong indicator of the voluntariness of his

plea. Our law does not require that a defendant be totally pleased with the

outcome of his decision to plead guilty, only that his decision be voluntary,

knowing and intelligent.” Commonwealth v. Pollard, 832 A.2d 517, 524

(Pa. Super. 2003) (citation omitted).

      When conducting a plea colloquy, the trial court must determine:
      (1) Does the defendant understand the nature of the charges to
      which he or she is pleading guilty or nolo contendere?

      (2) Is there a factual basis for the plea?


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      (3) Does the defendant understand that he or she has the right to
      trial by jury?

      (4) Does the defendant understand that he or she is presumed
      innocent until found guilty?

      (5) Is the defendant aware of the permissible range of sentences
      and/or fines for the offenses charged?

      (6) Is the defendant aware that the judge is not bound by the
      terms of any plea agreement tendered unless the judge accepts
      such agreement?

Pa.R.Crim.P. 590 (comment).

      Notably, none of the at-issue conditions of probation concern these

formal plea colloquy requirements.       Appellant does not claim to have

misunderstood at the time of his guilty plea: the nature of the charges, his

right to a jury trial, the presumption of innocence, the permissible range of

sentences and/or fines, or the court’s ability to reject a plea agreement.

Rather, Appellant’s claim concerns whether he understood the nature of the

conditions of probation that were to be imposed, specifically, the restriction

on his internet usage and his ability to have contact with his own minor

children. See Appellant’s Brief at 13 (“Appellant entered into his guilty plea

unknowingly and unintelligently as he had not been adequately informed by

… the [t]rial [c]ourt about the scope and severity of probation conditions which

could accompany his sentence.”).

      The trial court states, and the Commonwealth agrees, that Appellant

was aware of these conditions of probation at the time he entered his guilty

plea. However, as a threshold matter, we note that Appellant fails to cite any

relevant case law indicating that a defendant must be specifically made aware


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of the conditions of probation by the court in order to consider the guilty plea

valid in terms of whether it was knowingly, voluntarily, and intelligently

entered.   Appellant does cite to Commonwealth v. Persinger, 615 A.2d

1305 (Pa. 1992), which was a case concerning the ineffectiveness of trial

counsel, not a direct challenge to the validity of a guilty plea. Nonetheless, in

that case, our Supreme Court determined that the trial court had failed to

inform the defendant of the maximum term he was facing if his sentences

were imposed consecutively, even though the defendant had been informed

of the possible maximum term for each sentence individually. As a result, the

Court determined that Persinger’s trial counsel was ineffective for failing to

file a motion to withdraw his guilty plea “based on the fact that the defendant’s

guilty plea colloquy was defective because he was not informed that the

consequences of his guilty plea included the possibility of consecutive

sentences.” Id. at 1309.

      We do not find Persinger to be analogous to the instant case. While it

is clear that a trial court must inform a defendant of the permissible range of

sentences, see Pa.R.Crim.P. 590 (comment) (“Is the defendant aware of the

permissible range of sentences and/or fines for the offenses charged?”), no

such inquiry is required into whether a defendant understand the full scope

and severity of the conditions of probation that could be imposed.        In this

sense, at least, probation is not the equivalent of a sentence, as there is no

analogous ‘range’ of probation conditions. Most importantly, our research fails

to uncover any case law remotely supporting such a claim; we see no evidence

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that a trial court must advise a defendant during a guilty plea of the specific

terms of probation it intends to impose at a subsequent sentencing hearing,

in order to deem the plea to have been intelligently, knowingly, and voluntarily

entered by that defendant.3 Instead, we find persuasive the Supreme Court

of Arizona’s decision to the contrary in State v. Muldoon, 767 P.2d 16 (Ariz.

1988). In that case, the Arizona Supreme Court held that:

        Although the acts required to be performed as conditions of
        probation may be onerous, they are not criminal sanctions or
        sentences. They are opportunities to avoid criminal sentencing.
        Therefore, the terms of probation and the potential results of
        violations of any terms of the probation need not be included
        within the warnings required to be given [at a guilty plea hearing].

    Id. at 19.

        We agree with this reasoning.              Appellant’s probation conditions,

however onerous, do not amount to criminal penalties.              Rather, they are

____________________________________________


3  We caution that this does not preclude a claim that trial counsel was
ineffective for failing to inform Appellant of relevant conditions of probation
that may have affected his decision to enter a guilty plea. The requirements
imposed on attorneys and judges in this regard are not coextensive. To
illustrate this point, in Padilla v. Kentucky, 559 U.S. 356 (2010), the
Supreme Court of the United States held that defense counsel’s failure to
advise a defendant of the immigration consequences of his decision to enter
a guilty plea fell below an objective standard of reasonableness, where
reasonableness “is necessarily linked to the practice and expectations of the
legal community.” Id. at 366. Yet, no appellate court, to our knowledge, has
imposed a requirement on trial courts to inform defendants of the immigration
consequences of their guilty pleas. This is not surprising, since the obligations
imposed on judges and attorneys involve different constitutional rights and
issues.




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conditions that, if satisfied, permit Appellant to avoid the more onerous

sanction of incarceration.         The range of potential probation conditions,

therefore, is not analogous to the range of permissible sentences for a given

crime. Accordingly, we ascertain no requirement that a trial court inform a

defendant of conditions of probation at a guilty plea hearing and,

simultaneously, that no manifest injustice resulted from Appellant’s plea.4 As

such, we conclude that the trial court did not abuse its discretion when it

denied Appellant’s post-sentence motion to withdraw his guilty plea.

       Next, Appellant argues that the trial court erred by ordering him to have

no contact with his children. Before we address the merit of this claim, we

must consider the Commonwealth’s assertion that this claim has been waived.

       The Commonwealth’s argument is premised on its characterization of

Appellant’s claim as a challenge to the discretionary aspects of his sentence.

In this regard, Appellant’s claim is ostensibly waived for two reasons: 1)

Appellant entered a negotiated plea agreement, therefore he cannot challenge

any non-jurisdictional defects beyond the legality of his sentence and the

validity of his plea, and 2) Appellant failed to include a Pa.R.A.P. 2119(f)

statement in his brief. Appellant argues in his reply brief that the probation

condition constitutes an illegal sentence. After careful review, we agree with

the Commonwealth.

____________________________________________


4 By this statement, we do not imply that the trial court should refrain from
inquiring whether a defendant is aware of probation conditions, as explicitly
as possible, at a guilty plea hearing.

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       While it is true that “a challenge to the legality of the sentence can never

be waived[,]” Commonwealth v. Wolfe, 106 A.3d 800, 801 (Pa. Super.

2014), this Court has previously treated claims regarding no-contact

provisions of probation orders as challenges to the discretionary aspects of

sentencing, see Commonwealth v. Koren, 646 A.2d 1205 (Pa. Super. 1994)

(applying discretionary aspects of sentencing analysis to the defendant’s claim

that the condition of probation ordering him to have no contact with the victim

was unreasonable).5 Moreover,
       The phrase ‘illegal sentence’ is a term of art in Pennsylvania Courts
       that is applied to three narrow categories of cases. Those
       categories are: (1) claims that the sentence fell outside of the
       legal parameters prescribed by the applicable statute; (2) claims
       involving merger/double jeopardy; and (3) claims implicating the
       rule in Apprendi v. New Jersey, 530 U.S. 466… (2000).




____________________________________________


5 See also Commonwealth v. Yockey, 158 A.3d 1246 (Pa. Super. 2017)
(rejecting defendant’s assertion that the trial court imposed an illegal sentence
where, as a condition of probation, he was prohibited from accessing the
internet). This Court held that Yockey’s claim was “a challenge to the
discretionary aspects of [his] sentence—not to the legality.” Id. at 1259;
accord Commonwealth v. Houtz, 982 A.2d 537, 539–540 (Pa. Super.
2009); Commonwealth v. Hartman, 908 A.2d 316, 319 (Pa. Super. 2006).
Nevertheless, there are some probation conditions—not at issue here—that
may constitute an illegal sentence. See generally Commonwealth v.
Wilson, 67 A.3d 736 (Pa. 2013) (vacating a probation condition authorizing
the warrantless, suspicionless searches of the probationer’s home, thereby
reversing the Superior Court’s decision construing the claim as a discretionary
aspects of sentencing issue that had been waived).




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Commonwealth v. Munday, 78 A.3d 661, 664 (Pa. Super. 2013) (citations

and quotation marks omitted).6

       Here, the probation condition at issue does not involve any of the three

categories of illegal sentencing claims, nor does it implicate our Supreme

Court’s decision in Wilson.         Thus, we are constrained to agree with the

Commonwealth that Appellant asserts a challenge to the discretionary aspects

of his sentence, not its legality.

       Having reached that conclusion, we are bound by the following

standards:
              Challenges to the discretionary aspects of sentencing do not
       entitle an appellant to review as of right. Commonwealth v.
       Sierra, 752 A.2d 910, 912 (Pa. Super. 2000). An appellant
       challenging the discretionary aspects of his sentence must invoke
       this Court’s jurisdiction by satisfying a four-part test:

          [W]e conduct a four-part analysis to determine: (1) whether
          [the] appellant has filed a timely notice of appeal, see
          Pa.R.A.P. 902 and 903; (2) whether the issue was properly
          preserved at sentencing or in a motion to reconsider and
          modify sentence, see Pa.R.Crim.P. [720]; (3) whether [the]
          appellant’s brief has a fatal defect, Pa.R.A.P. 2119(f); and
          (4) whether there is a substantial question that the sentence
          appealed from is not appropriate under the Sentencing
          Code, 42 Pa.C.S.[] § 9781(b).

       Commonwealth v. Evans, 901 A.2d 528, 533 (Pa. Super. 2006),
       appeal denied, 589 Pa. 727, 909 A.2d 303 (2006) (internal
       citations omitted). Objections to the discretionary aspects of a
       sentence are generally waived if they are not raised at the
       sentencing hearing or in a motion to modify the sentence imposed.

____________________________________________


6 The third category includes claims made pursuant to Alleyne v. United
States, 570 U.S. 99 (2013). See Munday, 78 A.3d at 664.



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      Commonwealth v. Mann, 820 A.2d 788, 794 (Pa. Super. 2003),
      appeal denied, 574 Pa. 759, 831 A.2d 599 (2003).

Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010).

      Here, Appellant did not raise this claim in his initial post-sentence

motion. Instead, he claimed that counsel was ineffective for failing to advise

him that “he would not be able to live with his children, ages 17, 15 and 14

after the guilty plea because the SOC conditions.” Appellant’s Post-Sentence

Motion, 9/27/16, at 1 ¶ 3(b). Appellant also did not raise any claim that this

probation condition was unreasonable or overbroad in his motion for

reconsideration. See Appellant’s Motion for Reconsideration, 12/16/16, at 2-

3.   Moreover, our review of the record demonstrates that Appellant did not

raise any such claim at his plea/sentencing hearing, nor during his post-

sentence motion hearing.    Accordingly, we are compelled to conclude that

Appellant has waived this issue. Mann, supra.

      Judgment of sentence affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/31/2018




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