J-S09024-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF                            :   IN THE SUPERIOR COURT OF
    PENNSYLVANIA                               :        PENNSYLVANIA
                                               :
                                               :
                v.                             :
                                               :
                                               :
    RICHARD HALL                               :
                                               :   No. 828 MDA 2017
                       Appellant               :

       Appeal from the Judgment of Sentence Entered December 15, 2015
    In the Court of Common Pleas of Lackawanna County Criminal Division at
                        No(s): CP-35-CR-0002377-2014

BEFORE:      GANTMAN, P.J., McLAUGHLIN, J., and PLATT*, J.

MEMORANDUM BY McLAUGHLIN, J.:                             FILED APRIL 05, 2018

        Appellant Richard Hall appeals from the December 15, 2015 judgment

of sentence of 81 to 192 months imprisonment followed by six years of special

probation. The sentence was imposed after Hall entered a negotiated guilty

plea to Involuntary Deviate Sexual Intercourse (“IDSI”) and Corruption of

Minors.1 On appeal, he challenges the denial of his presentence motion to

withdraw his guilty plea, as well as discretionary aspects of sentencing. We

affirm in part, vacate in part, and remand.

        On July 10, 2015, Hall pled guilty to the above-referenced charges. The

Sexual Offenders Assessment Board (“SOAB”) then notified Hall in late

September 2015 that it had determined that he was a tier III sexually violent

____________________________________________


*    Retired Senior Judge assigned to the Superior Court.

1   18 Pa.C.S.A. §§ 3123 and 6301 respectively.
J-S09024-18



predator (“SVP”). Approximately two months later, on November 25, 2015,

but before sentencing, Hall filed a motion to withdraw his plea. Hall asserted

that he was innocent and that he had only pled guilty because his attorney

had discouraged him from proceeding with a jury trial and had advised him

that entering a guilty plea was his only option. Motion to Withdraw Guilty Plea

at ¶¶ 9 and 10.

      At a hearing on Hall’s motion, Hall’s then-counsel presented a bare

assertion of Hall’s innocence, stating, “As was reflected in our motion, Mr. Hall

is asserting his innocence in this matter. His contention is that from the

inception of the case he was prepared to go to trial.” N.T., 12/14/15, at 2.

Notably, Hall did not testify and defense counsel presented no other evidence

to support Hall’s claim of innocence. The court denied the motion, finding that

it was a dilatory tactic by Hall. Id. at 7. The court then sentenced him the

following day.

      Hall subsequently filed a Motion for Reconsideration of Sentence. The

trial court denied the motion, and Hall filed a timely appeal.

      He raises two issues for our review:

      1. Did the trial court abuse its discretion in denying defendant’s
         presentence motion to withdraw his guilty plea where
         defendant proffered a plausible claim of innocence and the
         Commonwealth suffered no actual prejudice?

      2. Did the trial court abuse its discretion by failing to consider
         defendant’s limited criminal history, post-offense rehabilitation
         and other mitigating factors and by focusing solely on the
         nature of the crime and defendant’s classification as a sexually
         violent predator to justify sentencing defendant at the top of


                                      -2-
J-S09024-18


          the standard sentencing ranges for IDSI and corruption of
          minors and imposing sentences to be served consecutively, for
          a manifestly excessive and unreasonable aggregate sentence
          of 81 months to 192 months imprisonment, followed by six
          years’ probation?

Appellant’s Brief at 4.

       In his first issue, Hall argues that the trial court should have granted his

motion because he presented a plausible claim of innocence and the

Commonwealth would not be prejudiced by the withdrawal of his guilty plea.

       We review a ruling on a presentence motion to withdraw a guilty plea

for an abuse of discretion. Commonwealth v. Elia, 83 A.3d 254, 261

(Pa.Super. 2013). A trial court abuses its discretion in denying a presentence

motion to withdraw a guilty plea if the defendant has shown any fair and just

reason for withdrawing the plea, and granting the motion will not substantially

prejudice the Commonwealth. Id. A “bare” assertion of innocence is

insufficient; rather, the defendant must make some colorable demonstration

of innocence, under the circumstances, such that permitting withdrawal of the

plea would promote fairness and justice. Commonwealth v. Carrasquillo,

115 A.3d 1284, 1292 (Pa. 2015). A claim of innocence that is implausible

when considered in context is not, in and of itself, a sufficient reason to require

a court to allow the defendant to withdraw the plea. Id. at 1285.2

       Recent cases demonstrate that a trial court permissibly denies a

presentence motion to withdraw a guilty plea based on a claim of innocence
____________________________________________


2 See also Commonwealth v. Hvizda, 116 A.3d 1103, 1107 (Pa. 2015)
(holding that defendant’s bare assertion of innocence was insufficient reason
to require granting of defendant’s presentence request to withdraw his plea).

                                           -3-
J-S09024-18



where the record before the trial court shows the claim of innocence is not

colorable or plausible. In Carrasquillo, our Supreme Court found no abuse of

discretion by the trial court in denying a presentence request to withdraw a

guilty plea where the defendant first asserted his innocence two months after

the evidentiary record was closed, and statements made in association with

the claim of innocence undermined the claim’s plausibility. Carrasquillo 115

A.3d at 1292-93. In Commonwealth v. Baez, 169 A.3d 35, 39 (Pa.Super.

2017), we found that an innocence claim was not sufficiently plausible to

require the trial court to allow him to withdraw a guilty plea, where the

defendant first asserted his innocence three months after pleading guilty and

he offered no evidence to support the claim.

      Our recent decision in Commonwealth v. Islas, 156 A.3d 1185

(Pa.Super. 2017), provides a useful contrast. There, the defendant entered a

guilty plea to indecent assault, but then moved before sentencing to withdraw

the plea. Id. at 1187, 1191. At a hearing, he testified that he did not engage

in the charged conduct. Id. In addition, the record showed that the defendant

had maintained his innocence when interviewed by law enforcement; if the

conduct had occurred as alleged, it would have been witnessed by others; the

victim had a motive to fabricate the charges; the victim had delayed in making

a report to law enforcement; and the defendant was of good character, had

no criminal record, and had never received a similar complaint over a period

of many years. Id. Based on the evidentiary record, we concluded that the




                                    -4-
J-S09024-18



claim of innocence was plausible and reversed the denial of his motion to

withdraw his guilty plea. Id.

      Here, the record does not contain such evidence. Hall did not testify at

the hearing on his petition to withdraw his guilty plea and provided the court

with no evidence to support his claim of innocence. While he claimed that his

reason for pleading guilty was that he thought that it was his only option, the

record undermines that assertion. The trial court conducted a full guilty plea

colloquy at which it confirmed that Hall understood that he was presumed to

be innocent and had a right to a jury trial:

      Q: Sir, it’s my understanding it’s your desire to plead guilty today?

      A: Yes, sir.

      Q: Do you understand that you’re presumed to be innocent and
      you have an absolute right to have a trial by jury. And in fact, we
      have a jury pool ready for next week for this case?

      A: Yes, your Honor.

      Q: And it’s my understanding that it’s your desire to instead of
      going to trial, to plead guilty?

      A: Yes, sir.

N.T., 7/10/15, at 2.

      Additionally, Hall signed “yes” on a written guilty plea colloquy form

where it stated, “[D]o you understand that even though you are guilty or may

be guilty you are presumed to be innocent, and you have a right to go to trial

either before a judge or before a jury of 12 individuals and the Commonwealth

must prove to the satisfaction of each and every one of the 12 jurors or to the


                                      -5-
J-S09024-18



satisfaction of the judge that you [are] guilty beyond a reasonable doubt?”

Guilty Plea Colloquy at 2.

      On this record, the trial court was not required to accept Hall’s bare

assertion of innocence or his implausible claim that he thought pleading guilty

was his only option. We perceive no abuse of discretion.

      In his second issue, Hall challenges the sentence imposed by the court.

He contends that the trial court “relied on erroneous considerations,

overlooked mitigating factors, and imposed a manifestly excessive and

unreasonable sentence.” Appellant’s Brief at 26. There is no absolute right to

an   appeal    challenging   the   discretionary   aspects    of   sentencing.

Commonwealth v. Trippett, 932 A.2d 188, 202 (Pa.Super. 2007).

Sentencing is within the discretion of the trial court and thus will not be

disturbed absent an abuse of discretion. Commonwealth v. Bullock, 170

A.3d 1109, 1123 (Pa.Super. 2017).

      Before we may entertain the merits of a challenge to the discretionary

aspects of sentencing, we must decide whether the defendant has cleared four

preliminary hurdles. We must determine: (1) whether the appeal is timely;

(2) whether appellant preserved his issue; (3) whether appellant’s brief

includes a concise statement of the reasons relied upon for allowance of appeal

with respect to the discretionary aspects of sentence; and (4) whether there




                                     -6-
J-S09024-18



is a substantial question raised under the Sentencing Code.3 Commonwealth

v. Heaster, 171 A.3d 268, 271-72. (Pa.Super. 2017).

        Hall’s challenges to the discretionary aspects of sentencing do not meet

the second and fourth criteria. He failed to raise those challenges in the Court

of Common Pleas either during the course of the sentencing hearing or in a

post-sentence motion. We therefore we will not address them.

        We must, however, vacate the portion of Hall’s judgment of sentence

finding him to be an SVP, as that portion of the sentence is illegal. Hall did not

challenge the trial court’s order finding him to be an SVP and requiring him to

register for life in accordance with section 9799.15(a)(6) Sexual Offender

Registration and Notification Act (“SORNA”). 42 Pa.C.S.A. § 9799.15(a)(6).

However, challenges to an illegal sentence can never be waived and this Court

may raise the issue sua sponte. Commonwealth v. Wolfe, 106 A.3d 800,

801 (Pa.Super. 2014).

        After the trial court sentenced Hall, our Supreme Court held in

Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017), that the registration

requirements under SORNA constitute criminal punishment. In light of Muniz,

this Court held the following:

        [S]ince our Supreme Court has held [in Muniz] that SORNA
        registration requirements are punitive or a criminal penalty to
        which individuals are exposed, then under Apprendi [v. New
        Jersey, 530 U.S. 466 (2000),] and Alleyne [v. United States,
        133 S.Ct. 2151, 2163 (2013)], a factual finding, such as whether
        a defendant has a “mental abnormality or personality disorder that
____________________________________________


3   42 Pa.C.S.A. §§ 9701-9799.75.

                                           -7-
J-S09024-18


      makes [him or her] likely to engage in a predatory sexual violent
      offense [,]” 42 Pa.C.S.A. § 9799.12, that increases the length of
      registration must be found beyond a reasonable doubt by the
      chosen fact-finder. Section 9799.24(e)(3) identifies the trial court
      as the finder of fact in all instances and specifies clear and
      convincing evidence as the burden of proof required to designate
      a convicted defendant as an SVP. Such a statutory scheme in the
      criminal context cannot withstand constitutional scrutiny.
                                     ***

      [Thus], we are constrained to hold trial courts cannot designate
      convicted defendants SVPs (nor may they hold SVP hearings) until
      our General Assembly enacts a constitutional designation
      mechanism. Instead, trial courts must notify a defendant that he
      or she is required to register for 15 years if he or she is convicted
      of a Tier I sexual offense, 25 years if he or she is convicted of a
      Tier II sexual offense, or life if he or she is convicted of a Tier III
      sexual offense.

Commonwealth v. Butler, 173 A.3d 1212, 1217 (Pa.Super. 2017).

      In light of Muniz and Butler, Hall’s SVP status constitutes an illegal

sentence. Therefore, we vacate Hall’s SVP status, pursuant to Butler, and

remand to the trial court to issue a revised notice to Hall pursuant to 42

Pa.C.S.A. § 9799.23 (governing reporting requirements of sex offenders).

      SVP order vacated and case remanded for proceedings consistent with

this decision. Judgment of sentence affirmed in all other respects.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/5/2018



                                       -8-
