J-S10011-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

TROY DILLARD,

                            Appellant                 No. 202 EDA 2014


            Appeal from the Judgment of Sentence October 18, 2010
                 in the Court of Common Pleas of Bucks County
               Criminal Division at No.: CP-09-CR-0003340-2010


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

MEMORANDUM BY PLATT, J.:                             FILED MARCH 31, 2015

        Appellant, Troy Dillard, appeals nunc pro tunc from the judgment of

sentence imposed following his entry of a guilty plea to two counts of

robbery and one count each of robbery of a motor vehicle, theft by unlawful

taking of movable property, receiving stolen property, false imprisonment,

simple assault, burglary, and conspiracy.1     He also entered a plea of nolo

contendere to two counts of attempted kidnapping.2         On appeal, Appellant

challenges the effectiveness of plea counsel.     We affirm the judgment of


____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
  18 Pa.C.S.A. §§ 3701(a)(1)(ii) and (iv), 3702(a), 3921(a), 3925(a),
2903(a), 2701(a)(1), 3502(a), and 903(a)(1), respectively.
2
    18 Pa.C.S.A. § 901(a).
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sentence and dismiss his ineffective assistance of counsel claims without

prejudice.

      The relevant facts and procedural history of this case are as follows.

On October 18, 2010, Appellant entered a guilty plea and nolo contendere

plea to the above-listed offenses. The charges stem from his March 2010

theft of a vehicle from the victim, Claire Forte, during which he and two

other men attacked her and attempted to shove her into the trunk of her

vehicle. On the same date Appellant entered his pleas, October 18, 2010,

the court sentenced him to an aggregate term of not less than sixteen nor

more than thirty-two years’ imprisonment.        Appellant did not file post-

sentence motions or a direct appeal.

      On September 6, 2011, Appellant filed a pro se petition pursuant to

the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546.           The

PCRA court appointed counsel, who filed an amended petition on September

12, 2012, claiming, inter alia, that plea counsel was ineffective for failing to

file post-sentence motions and/or a direct appeal. The PCRA court held an

evidentiary hearing on the petition on February 15, 2013. On July 17, 2013,

the court granted the petition in part and ordered reinstatement of

Appellant’s post-sentence and direct appeal rights nunc pro tunc.       On July




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29, 2013,3 Appellant filed a motion for reconsideration of sentence, and on

August 2, 2013, he filed a supplemental post-sentence motion.               On

December 18, 2013, the court denied the motions following a hearing. This

timely appeal followed.4

       Appellant raises the following issues for our review:

       1.    Whether the lower court erred in holding that plea counsel
       was not ineffective when he advised Appellant to enter a guilty
       plea without completing a thorough review of the discovery
       material, including the forensic evidence therein, he had not
       conducted a pre-trial investigation, and he failed to fully inform
       Appellant of the evidence contained within discovery?

       2.    Whether the lower court erred in holding that Appellant
       was not permitted to withdraw his guilty plea, which was
       unknowingly and involuntarily entered, and was induced by plea
       counsel’s misrepresentation about his review of discovery
       materials and his failure to convey information about evidence
       he either had in his possession or could have obtained with
       reasonable diligence[?][5]

____________________________________________


3
  The last day of the 10-day period in which to file post-sentence motions,
July 27, 2013, fell on a Saturday. Therefore, Appellant had until that
Monday to file timely post-sentence motions. See 1 Pa.C.S.A. § 1908.
4
  Pursuant to the PCRA court’s order, Appellant timely filed a concise
statement of errors complained of on appeal on February 19, 2014. See
Pa.R.A.P. 1925(b). The PCRA court entered an opinion on June 9, 2014.
See Pa.R.A.P. 1925(a).
5
  In the summary of the argument and argument sections of his brief,
Appellant discusses this issue only in the context of ineffective assistance of
plea counsel, arguing: “A manifest injustice occurred due to plea counsel’s
stewardship of [Appellant’s] case, which was not within the range of
competency demanded of criminal attorneys. [Appellant] was prejudiced by
plea counsel’s incompetent representation, which resulted in an unknowing,
(Footnote Continued Next Page)


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(Appellant’s Brief, at 4).

       Appellant’s issues on appeal challenge the effectiveness of plea

counsel. The Commonwealth argues that Appellant’s issues are not ripe for

review in this direct appeal because “he has only raised and preserved his

claims challenging the voluntariness of his plea in the context of ineffective

assistance of counsel.” (Commonwealth’s Brief, at 10; see also id. at 11-

15). Upon review, we agree with the Commonwealth.

       In Commonwealth v. Holmes, 79 A.3d 562 (Pa. 2013), our Supreme

Court reaffirmed the general rule of Commonwealth v. Grant, 813 A.2d

726 (Pa. 2002), that ineffective assistance of counsel claims must await

collateral review.       See Holmes, supra at 563.            The Holmes Court also

recognized two limited exceptions to the deferral rule, both falling within the

discretion of the trial court. See id. at 563-64. First, the Court held that

trial courts retain discretion, in extraordinary circumstances, to entertain a

discrete claim of trial counsel ineffectiveness if the claim is both apparent

from the record and meritorious. See id. at 563. Second, the Court held

that   trial   courts    also    have    discretion   to   entertain   prolix   claims   of

ineffectiveness if there is good cause shown and the unitary review

permitted is preceded by a knowing and express waiver by the defendant of

the right to seek review under the PCRA. See id. at 564.

                        _______________________
(Footnote Continued)

involuntary and unintelligent guilty plea.” (Appellant’s Brief, at 39; see also
id. at 15-16, 37-39).



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     Here, the facts of this case do not fall within the limited exceptions to

the general deferral rule carved out by the Holmes Court.          Therefore,

Appellant cannot seek review of his ineffectiveness claims on direct appeal.

Accordingly, we dismiss Appellant’s ineffective assistance of counsel claims

without prejudice, should he decide to include these claims in a timely-filed

PCRA petition. See id. at 563-64; see also Commonwealth v. Stollar, 84

A.3d 635, 652 (Pa. 2014), cert. denied, 134 S.Ct. 1798 (2014) (dismissing,

pursuant to Holmes, appellant’s ineffective assistance of counsel claims

raised on direct appeal without prejudice to pursue them on collateral

review).

     Judgment of sentence affirmed.         Ineffective assistance of counsel

claims dismissed without prejudice.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/31/2015




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