Com. v. Dinell, Z.

2022 Pa. Super. 17, 270 A.3d 530

• Court: Superior Court of Pennsylvania
• Decided: January 31, 2022
• Docket: 322 WDA 2021
• Status: Published

Opinion

J-S38010-21

2022 PA Super 17

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : ZACHARY LEE DINELL : : Appellant : No. 322 WDA 2021

Appeal from the Judgment of Sentence Entered June 8, 2020 In the Court of Common Pleas of Beaver County Criminal Division at No(s): CP-04-CR-0001870-2019

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : ZACHARY L. DINELL : : Appellant : No. 323 WDA 2021

Appeal from the Judgment of Sentence Entered June 8, 2020 In the Court of Common Pleas of Beaver County Criminal Division at No(s): CP-04-CR-0001677-2018

BEFORE: BENDER, P.J.E., DUBOW, J., and COLINS, J.*

OPINION BY BENDER, P.J.E.: FILED: JANUARY 31, 2022

Appellant, Zachary L. Dinell, appeals nunc pro tunc from the judgment

of sentence of an aggregate term of 127 to 372 months’ incarceration,

imposed after he entered open guilty pleas, in two consolidated cases, to 14

counts of invasion of privacy (18 Pa.C.S. § 7507.1(a)(1)); 13 counts of neglect

of care – dependent person (18 Pa.C.S. § 2713(a)(1)); one count of

endangering the welfare of children (18 Pa.C.S. § 4304(a)); and one count of ____________________________________________

* Retired Senior Judge assigned to the Superior Court. J-S38010-21

criminal use of a communication facility (18 Pa.C.S. § 7512(a)). Herein,

Appellant argues that the court erred by not granting his post-sentence motion

to withdraw his guilty pleas for the 14 counts of invasion of privacy and the

single count of criminal use of a communication facility. After careful review,

we vacate Appellant’s judgment of sentence and remand for further

proceedings.

Appellant was arrested and charged with various offenses, including

those stated supra, based on evidence that he took photographs on his cell

phone of nude or partially nude residents at a care home where he worked,

without the residents’ knowledge or consent. On February 26, 2020, Appellant

pled guilty to the above-stated offenses. He was sentenced to the term set

forth supra on June 8, 2020. Appellant filed a timely post-sentence motion,

alleging that his sentence was excessive, and also asking for permission to file

a supplemental post-sentence motion after he received the transcripts of his

plea and sentencing hearings. The court granted that request, and Appellant

thereafter filed a timely, supplemental post-sentence motion seeking to

withdraw his guilty plea for various reasons. Pertinent to the issue Appellant

raises herein, he argued in his supplemental post-sentence motion that there

was no factual basis to support his guilty plea.

The court ultimately denied Appellant’s post-sentence motion on

October 19, 2020. Appellant did not file a direct appeal. However, after his

counsel withdrew and new counsel was appointed, Appellant filed a petition

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

-2- J-S38010-21

seeking the restoration of his appeal rights. The court granted that petition,

and Appellant properly filed separate, nunc pro tunc notices of appeal in each

of his two underlying cases. See Commonwealth v. Walker, 185 A.3d 969,

977 (Pa. 2018) (“[T]he proper practice under Rule 341(a) is to file separate

appeals from an order that resolves issues arising on more than one docket.

The failure to do so requires the appellate court to quash the appeal.”).1

Appellant subsequently complied with the trial court’s order to file a Pa.R.A.P.

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

filed a Rule 1925(a) opinion.

Herein, Appellant states one issue for our review: “Whether the court

erred in denying Appellant’s post-sentence request to withdraw his guilty

plea[,] as there was no factual basis for the plea?” Appellant’s Brief at 5.

Before addressing Appellant’s specific arguments, we note our standard

of review: In Commonwealth v. Broaden, 980 A.3d 124 (Pa. Super. 2009), we summarized the principles governing post-sentence 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 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 ____________________________________________

1 This Court sua sponte consolidated Appellant’s appeals.

-3- J-S38010-21

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, … 712 A.2d 749, 751 ([Pa.] 1998) (citation omitted).

Commonwealth v. Kehr, 180 A.3d 754, 756-57 (Pa. Super. 2018).

Here, Appellant avers that the trial court abused its discretion by

denying his motion to withdraw his plea where the colloquy did not set forth

an adequate factual basis for the plea as required by Pa.R.Crim.P. 590(B)(2)

(comment). Our Supreme Court has explained that “[t]he factual basis

requisite is among six elements, which … are essential to a valid plea

colloquy.” Commonwealth v. Flanagan, 854 A.2d 489, 500 (Pa. 2004)

(citing, inter alia, Pa.R.Crim.P. 590(A)(2) (comment)). “The salutary

purposes of the requirement include protecting against the situation … [of] a

defendant’s mistaken plea to an offense that is not actually implicated by his

conduct.” Id. (citation omitted).

-4- J-S38010-21

Here, Appellant contends that the trial court did not elicit an adequate

factual basis for his plea to invasion of privacy and, because that crime was

the predicate offense for his plea to criminal use of a communication facility,

his pleas to both offenses must be vacated. His argument hinges on the

following exchange during the oral plea colloquy:

[Defense Counsel:] Okay. All right. I’m going to start, [Appellant], with the case at 1677 of 2018, and it’s been alleged by information the various dates including Monday the 18th of June 2018 in the County of Beaver, Pennsylvania, at Counts 1 through 14, the elements are that you did, excuse me, did you knowingly photograph or film another person without that person’s knowledge or consent while that person was being viewed, photographed or filmed in a state of full or partial nudity and is in a place where a person would have a reasonable expectation of privacy, and without going into too much detail, specifically, obviously, it’s been alleged that that happened at your workplace, McGuire Home, and that the individuals that were photographed without their knowledge or consent were being filmed or their pictures were being taken in states of full or partial nudity, you do admit to your guilt with respect to that charge?

[Appellant:] Yes, but there was nothing sexual about it at all.

[Defense Counsel:] That’s not, that’s not an element.

[Appellant:] All right. Yes.

[Defense Counsel:] Simply the elements that I reviewed with you here.

[Appellant:] Yes, yeah.

N.T. Plea, 2/26/20, at 32-33 (emphasis added).

Appellant contends that the above-emphasized language shows that

there was not a sufficient basis for the crime of invasion of privacy, which is

defined as follows:

-5- J-S38010-21

(a) Offense defined.--Except as set forth in subsection (d), a person commits the offense of invasion of privacy if he, for the purpose of arousing or gratifying the sexual desire of any person, knowingly does any of the following:

(1) Views, photographs, videotapes, electronically depicts, films or otherwise records another person without that person’s knowledge and consent while that person is in a state of full or partial nudity and is in a place where that person would have a reasonable expectation of privacy.

18 Pa.C.S. § 7507.1(a)(1) (emphasis added).

Appellant argues that his exchange with defense counsel during the

colloquy makes it clear that he was “denying that his actions were for the

purpose of arousing or gratifying the sexual desire of any person[,]” and that

his counsel misinformed him that he was not required to have such a purpose

to establish the basis for the crime. Appellant’s Brief at 14. Appellant insists

that,

[i]t [was] the court[’]s responsibility, after hearing this exchange, to follow up with some kind of inquir[y] regarding whether … Appellant admit[ted] that he had the purpose of arousing or gratifying the sexual desire of any person[] when he did these acts. By failing to follow up with a proper inquiry given … Appellant’s statement that “there was nothing sexual about it at all[,]” the court … clearly failed in its responsibilities under Rule 590 to establish a factual basis for the plea.

Id. at 15 (emphasis omitted).

In the trial court’s Rule 1925(a) opinion, it stated that it “denied

[Appellant’s] post-sentence motion to withdraw his guilty plea because he

failed to show prejudice against him rising to the level of manifest injustice

when he entered the plea.” Trial Court Opinion, 6/4/21, at 2 (some

capitalization omitted). The court then explained that, during the colloquy,

-6- J-S38010-21

the terms of the plea agreement were read, and the family members of the

victims confirmed their agreement with those terms. Id. at 3 (citing N.T. Plea

at 8-17). The primary care doctor for the victims then testified that none of

the victims exhibited serious bodily injury due to Appellant’s conduct, thereby

supporting the Commonwealth’s agreement to withdraw multiple counts of

aggravated assault that it had originally charged against Appellant. Id. at 3-

4 (citing N.T. Plea at 24-25). Then, the trial court quoted the portion of the

colloquy set forth above, as well as Appellant’s colloquy on the other charges

to which he pled, and cursorily concluded that “there was a sufficient factual

basis placed on the record for [Appellant’s] entry of his guilty plea.” Id. at 4-

6.

For its part, the Commonwealth suggests that, because “Appellant

admitted to taking pictures of the patients while they were either nude or

partially nude[,]” his conduct is sufficient to demonstrate that he committed

the crime of invasion of privacy, without further proof that he acted for a

sexual purpose. Commonwealth’s Brief at 5. The Commonwealth further

claims that “a plain reading of” the invasion of privacy statute (section 7507.1)

“shows that [the] sexual desire portion of the invasion of privacy [crime]

relates to any person,” and therefore, “it [was] not necessary for … Appellant

to admit that it was for his own sexual desire.” Id. at 5 (some capitalization

omitted; bolded emphasis added).

Initially, the trial court did not specifically address how the factual

summary was sufficient to support Appellant’s plea to invasion of privacy,

-7- J-S38010-21

despite Appellant’s indication that he did not act with a sexual purpose.

Contrary to the Commonwealth’s argument, section 7507.1(a)(1) clearly

requires the Commonwealth to prove, as elements of the offense of invasion

of privacy, that the defendant: (1) knowingly viewed, photographed,

videotaped, electronically depicted, filmed or otherwise recorded, (2) an

individual who was in a state of full or partial nudity, and in a place where

he/she had a reasonable expectation of privacy, (3) without the individual’s

knowledge and consent, and (4) that the defendant did so for the purpose

of arousing or gratifying the sexual desire of any person. The

Commonwealth’s argument that Appellant’s act of taking pictures of nude or

partially nude residents was sufficient, in and of itself, to constitute the crime

of invasion of privacy completely eliminates the fourth element of the offense.

Finally, while the Commonwealth is correct that Appellant did not have to

admit that he took the pictures for his own sexual gratification or desire, his

statement that there was nothing sexual at all about his taking the pictures

called into question whether he photographed the residents for the purpose of

arousing or gratifying a sexual desire in any person, as the statute requires.

In sum, our review of the record supports Appellant’s claim that there

was no factual basis established for his guilty plea to invasion of privacy.

Rather, defense counsel merely stated, generally, that Appellant took

photographs of nude or partially nude residents at his workplace. When

Appellant responded that he did not commit these acts with a sexual purpose,

he was misinformed that there was no sexual-purpose element of the crime.

-8- J-S38010-21

The court failed to further colloquy Appellant to ensure that he was admitting

that he acted for the purpose of arousing or gratifying a sexual desire in

himself or someone else. We also note that Appellant was not informed of the

sexual-purpose element of the invasion of privacy crime in the criminal

information, the written plea colloquy, or the Sexual Offender

Registration/Notification Act (SORNA) Colloquy that he completed prior to his

guilty plea. We recognize that Appellant did indicate, in the written colloquy,

that his attorney explained the elements of the offense to him, and that he

was admitting to having committed those elements. See Written Colloquy,

2/26/20, at 3 ¶¶ 31, 32. However, these statements do not demonstrate that

Appellant was knowingly admitting to acting with a sexual purpose, where

defense counsel exhibited his own misunderstanding of the elements of the

offense of invasion of privacy by misinforming Appellant during the oral

colloquy.

The inadequacies of the present plea colloquy are similar to those our

Supreme Court examined in Flanagan. There, Flanagan pled guilty to murder

and robbery. He claimed, on collateral review, that his plea counsel had been

ineffective by failing to object to the defective plea colloquy on the basis that

the court had provided a “materially erroneous statement of the controlling

law” in advising Flanagan that his status as an accomplice made him

-9- J-S38010-21

vicariously liable for any crimes committed by the principal.2 Flanagan, 854

A.2d at 501. The colloquy also failed to provide an adequate factual basis for

the plea. Id. at 500. Based on the totality of these circumstances, our

Supreme Court agreed with Flanagan that “the colloquy supporting [his] pleas

was defective, by reason of both an absence of a contemporaneous record of

the factual basis for the plea and the erroneous accomplice liability

instruction.” Id.

Notably, the Flanagan Court observed that “the entry of a plea that is

unknowing, in the sense that the defendant lacks a basic understanding of the

legal principles giving rise to the criminal responsibility that he is accepting,

is a manifest injustice….” Id. at 502. It continued:

Indeed, it is difficult to hypothesize a more concrete example of a facially defective colloquy, and correspondingly legally unknowing plea, than a circumstance in which the plea court causes the defendant to affirm a materially erroneous understanding of the substantive law establishing criminal liability on the offenses charged. By supplying the wrong legal framework against which to assess the facts, the plea court exacerbated the effect of the substantial deficiency arising out of its failure to adduce the factual basis and rendered the plea unknowing on the face of the record presented.

Id. (internal citation omitted). Accordingly, the Flanagan Court

concluded that “a review of the totality of the circumstances establishe[d] that

Flanagan’s plea was of an unknowing character…,” and his plea must be

withdrawn. As a “closing note,” the Court “reinforce[d its] expectation of ____________________________________________

2 This was erroneous because a person must act with the requisite mens rea

to be convicted as an accomplice. See Flannagan, 854 A.2d at 501; see also 18 Pa.C.S. § 306(d).

- 10 - J-S38010-21

compliance with the six, straightforward and relatively modest requirements

that set the baseline for a valid guilty plea colloquy.” Id. at 504 (citation

omitted).

Based on the errors in Appellant’s colloquy, and the Court’s decision in

Flanagan, we conclude that Appellant’s guilty plea must also be withdrawn.

Clearly, Appellant was not advised, prior to or during the plea, that the offense

of invasion of privacy requires that his conduct be committed for the purpose

of arousing or gratifying the sexual desire of any person. At the oral colloquy,

Appellant explicitly denied that his conduct had any sexual purpose. Rather

than being further questioned to ensure that he understood and was admitting

to that element of the offense, he was misinformed that there was no such

element of the crime. In light of this facially defective colloquy, we cannot

conclude that Appellant’s plea to invasion of privacy was entered knowingly

and intelligently. Moreover, because Appellant’s offense of invasion of privacy

was the predicate for his plea to criminal use of a communication facility, his

plea to that offense is likewise deficient. See N.T. Plea at 37-38.

Accordingly, we conclude that the trial court abused its discretion by

denying Appellant’s motion to withdraw his guilty plea. Therefore, we vacate

Appellant’s judgment of sentence and remand this case for the trial court to

order Appellant’s guilty plea withdrawn, and proceed with the resolution of his

case.

Judgment of sentence vacated. Case remanded with instructions.

Jurisdiction relinquished.

- 11 - J-S38010-21

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 1/31/2022

- 12 -