Com. v. Hines, L.

• Court: Superior Court of Pennsylvania
• Decided: April 12, 2021
• Docket: 2835 EDA 2019
• Status: Unpublished

Opinion

J-S53033-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : LEONARD HINES : : Appellant : No. 2835 EDA 2019

Appeal from the Judgment of Sentence Entered September 6, 2019 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0005831-2016

BEFORE: SHOGAN, J., LAZARUS, J., and PELLEGRINI, J.*

MEMORANDUM BY PELLEGRINI, J.: FILED: APRIL 12, 2021

Leonard Hines appeals the judgment of sentence entered by the Court

of Common Pleas of Philadelphia County (trial court). Following a plea of nolo

contendere to one count of involuntary deviate intercourse1 and one count of

unlawful contact with a minor,2 Hines was sentenced to an aggregate prison

term of 7.5 to 15 years. He now contends that the trial court erred in denying

his pre-sentence motion to vacate the plea. He also argues that the trial court

abused its discretion by ignoring mitigating sentencing factors, resulting in an

excessive sentence. We affirm.

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1 18 Pa.C.S. § 3123(a)(1).

2 18 Pa.C.S. § 6318(a)(1). J-S53033-20

I.

At Hines’ plea hearing, the prosecution proffered the following facts. In

2016, the victim (RA) was 17 years old and living with her mother and Hines,

who is her stepfather. While RA was at home in her bedroom, Hines anally

penetrated her against her will. Later that night, RA reported the incident to

police. In her interview with them, she also revealed that two weeks earlier,

Hines had groped her and performed oral sex on her without her consent.

DNA testing of rectal swabs taken from RA corroborated her allegations

against Hines, who was 41 years old at the time.

The case proceeded and a panel of jurors was selected. The following

day, Hines agreed to forego a trial so that he could instead enter a plea to the

two aforementioned offenses. After the prosecution stated the factual basis

for the two counts, as well as the definitions of the charges, Hines entered his

plea. However, about three months later and just before sentencing, Hines

sought to withdraw the plea. He filed a motion contending that he was

innocent of the charges because he had not used force during the sexual anal

contact between him and RA, making it consensual. Hines denied that any

other sexual contact ever took place between them.

At the hearing on the motion to withdraw, the prosecution responded

that during the plea colloquy, Hines had already admitted to the

nonconsensual nature of the anal penetration as well as the other improper

contact with RA. Hines had also been advised that lack of consent to that

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contact was an element of involuntary deviate sexual intercourse. The

prosecution then introduced text messages Hines had sent RA’s mother

admitting that he had “f*cked up.”

The trial court denied Hines’ motion to withdraw his plea, stressing that

his grounds for withdrawal had conflicted with his earlier admissions at the

plea hearing. Additionally, the trial court ruled that allowing Hines to withdraw

his plea would cause substantial prejudice to the Commonwealth.

At the sentencing hearing, the trial court noted that Hines’ criminal

history included convictions for sexually abusing a different stepdaughter, who

was 14 years old at the time of those offenses. He had a prior record score

of “4.”3

Hines presented mitigating evidence to the trial court detailing his

mental state and personal history. The defense advised that Hines was a 45

year-old father of 13, that he had been married for 10 years, and that he

worked for decades as an electrical maintenance worker. As part of the

mitigation materials, the defense presented a mental health evaluation and a

pre-sentence report. These materials recounted that Hines had a history of

substance abuse, which was in part rooted in his difficult upbringing and the

drug addictions of his parents.

3 See 204 Pa. Code §§ 303.1-303.8.

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The trial court the sentenced Hines to a prison term of 7.5 to 15 years

as to each of the two counts, to be served concurrently. This range fell within

the sentencing guidelines. Hines timely filed a post-sentence motion

challenging the voluntariness of the plea and the reasonableness of the

sentence. After his motion was denied, Hines then timely appealed the

judgment of sentence.4

In his appellate brief, Hines raises two issues:

A. Did the [trial] court abuse its discretion by fashioning a sentence that exceeded that which is necessary to protect the public, and seems not to have taken into consideration [Hines’] extreme remorse, work history, potential for rehabilitation and acceptance of responsibility by pleading no contest?

B. Did the [trial] court err in denying [Hines’] presentence motion to withdraw his no-contest plea, after seemingly applying the higher standard for withdrawing pleas after sentencing (manifest injustice), and that the Commonwealth would suffer substantial prejudice if the motion were granted?

Appellant’s Brief, at 5.

II.

We first evaluate Hines’ claim that the trial court failed to take into

account his mitigation evidence, resulting in an excessive prison term. Since

4 Hines complied with Pa.R.A.P. 1925. The trial court did not prepare an opinion in accordance with Pa.R.A.P. 1925(a) because by the time an appeal was filed, the assigned judge was no longer presiding on the Philadelphia County Court of Common Pleas. The lack of an opinion poses no impediment to appellate review because the reasons for the trial court’s rulings are already evident in the record.

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this claim concerns a discretionary aspect of the sentence, Hines had to invoke

this Court’s jurisdiction to consider it by first taking the necessary procedural

steps and then by demonstrating that the claim involves a “substantial

question.” See generally Commonwealth v. Griffin, 65 A.3d 932, 935-36

(Pa. Super. 2013). A “substantial question” exists if the appellant has made

a colorable argument that the sentence violated a specific provision of the

Sentencing Code or was contrary to the “fundamental norms underlying the

sentencing process.” Commonwealth v. Johnson, 873 A.2d 704, 708 (Pa.

Super. 2005).

There is no dispute that Hines complied with the procedures needed to

raise his sentencing claim. See e.g., Pa.R.A.P. 2219(f); 42 Pa.C.S. § 9781(b);

Pa.R.Crim.P. 720. However, his claim is generally one that is found not to

constitute a substantial question that can be addressed on direct appeal.

“[T]his Court has held on numerous occasions that a claim of inadequate

consideration of mitigating factors does not raise a substantial question for

our review.” Commonwealth v. Downing, 990 A.2d 788, 794 (Pa. Super.

2010) (quoting Commonwealth v. Matroni, 923 A.2d 444, 455 (Pa. Super.

2007); Commonwealth v. Kraft, 737 A.2d 755, 757 (Pa. Super. 1999) (no

substantial question raised where appellant argued that court had not

adequately considered certain mitigating factors). As Hines’ issue is not one

that involves a substantial question, we cannot reach its merits.

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Even if we were to find that a substantial question has been posed, we

would conclude that no reversible error occurred. A claim of an excessive

sentence is reviewed under an abuse of discretion standard. See

Commonwealth v. Perry, 883 A.2d 599, 603 (Pa. Super. 2005). In order

to prevail, Hines would have to “establish, by reference to the record, that the

sentencing court ignored or misapplied the law, exercised its judgment for

reasons of partiality, prejudice, bias or ill will, or arrived at a manifestly

unreasonable decision.” Commonwealth v. Disalvo, 70 A.3d 900, 903 (Pa.

Super. 2013) (quoting Commonwealth v. Glass, 50 A.3d 720, 727 (Pa.

Super. 2012)); see also Commonwealth v. Raven, 97 A.3d 1244, 1253

(Pa. Super. 2014) (same).

The record in this case does not support Hines’ contention that the trial

court failed to adequately take into account his remorse, acceptance of

responsibility, rehabilitative needs, unstable upbringing and long work history.

Far from showing remorse or accepting responsibility, Hines has, in fact,

denied the nonconsensual nature of his offenses. While Hines initially entered

a plea to involuntary deviate sexual intercourse and unlawful contact with a

minor, he thereafter insisted that his stepdaughter had consented to the

intercourse. He altogether denied the remaining allegations of improper

sexual conduct toward his stepdaughter.

As for Hines’ personal history and mental health struggles, the trial court

is legally presumed to have considered that information because it was

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detailed in the defense’s pre-sentence report. “Our Supreme Court has

determined that where the trial court is informed by a pre-sentence report, it

is presumed that the court is aware of all appropriate sentencing factors and

considerations, and that where the court has been so informed, its discretion

should not be disturbed.” Commonwealth v. Bullock, 170 A.3d 1109, 1126

(Pa. Super. 2017) (quoting Commonwealth v. Ventura, 975 A.2d 1128,

1135 (Pa. Super. 2009)) (citation omitted).

In sum, all of the mitigation evidence Hines claims the trial court ignored

is either presumed to be considered or contradicted by Hines in an attempt to

withdraw his plea. Taking in mind Hines’ past criminal history, particularly his

previous sex offenses against children in his custody, we cannot find that the

trial court imposed an excessive sentence or otherwise abused its discretion

with respect to the length of the term.

III.

Next, we consider Hines’ two-part claim that the trial court (a) abused

its discretion in denying his motion to withdraw his plea, and (b) applied the

wrong legal standard when ruling on that motion.

As Hines acknowledges, criminal defendants do not have an absolute

right to withdraw a plea after it has been entered, as this is a matter of judicial

discretion. See Pa.R.Crim.P. 591(A); Commonwealth v. Carrasquillo, 115

A.3d 1284, 1291-92 (Pa. 2015). Prior to sentencing, withdrawals of a plea

should be granted liberally, but only “if supported by a fair and just reason,

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and substantial prejudice will not inure to the Commonwealth.” Id. at 1291-

92; Commonwealth v. Perry, 32 A.3d 232, 236–37 (Pa. 2011).5 The denial

of a request to withdraw a plea is proper “where the reasons offered by a

defendant are belied by the record.” Carrasquillo, 115 A.3d at 1287. A

declaration of innocence may qualify as a fair and just reason, but it must “be

at least plausible to demonstrate, in and of itself” that withdrawal of the plea

would promote fairness and justice. Id. at 1292.

In this case, we do not find that the trial court applied the wrong legal

standard or that it abused its discretion in denying Hines’ motion to withdraw

his plea. Hines did not offer a plausible reason why his plea was involuntary

or that he was actually innocent of the charges. His sole grounds for

withdrawing his plea were that this sexual contact was consensual, and that

when entering his plea, he did not know that lack of consent is an element of

involuntary deviate intercourse.

The record belies Hines’ claims of innocence and confusion about what

he was pleading to. The allegations of his stepdaughter were corroborated by

a DNA test. Hines himself sent text messages to his stepdaughter’s mother

that were tantamount to admissions of his wrongdoing. At his plea colloquy,

5 “In the context of a pre-sentence request for plea withdrawal, the term “prejudice” means that, due to events occurring after the entry of the plea, the Commonwealth’s prosecution of its case is in a worse position that it would have been had the trial taken place as originally scheduled.” Commonwealth v. Gordy, 73 A.3d 620, 624 (Pa. Super. 2013).

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the prosecution proffered the facts supporting conviction, including the

nonconsensual nature of the subject sexual contact, and Hines did not refute

those facts.

Indeed, Hines heard not only the proffer, but also a recitation of the

elements of the crimes. Yet he waited three months after the plea, until just

before sentencing, to declare that he was innocent and that he had

misunderstood that one of the offenses involved a lack of consent. On these

facts, Hines’ reasons for withdrawal of his plea were not plausible and the trial

court did not abuse its discretion in denying the pre-sentence motion.

As to Hines’ sub-claim that the trial court erroneously applied the more

stringent “manifest injustice” standard for a post-sentence withdrawal of a

plea, we again find that no relief is due. While the trial court did at times use

incorrect terminology when articulating the standard for granting a pre-

sentence motion to withdraw a plea,6 the record in no way suggests that the

wrong standard was actually applied.

Despite occasionally mislabeling the applicable standard, the trial court

recited Carrasquillo almost verbatim just before ruling. The trial court

6 At the post-sentence stage, it is more difficult to withdraw a plea and defendants must show that a manifest injustice would result from the denial of withdrawal. “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 the totality of circumstances surrounding the plea.” Commonwealth v. Broaden, 980 A.3d 124, 129 (Pa. Super. 2009) (citations omitted).

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correctly explained that it had “full discretion to determine whether the

withdraw request will be granted. Such discretion is to be administered

li[b]erally in favor of the accused in demonstration by the defendant in a fair

and just reason to grant it, unless the withdraw brings substantial prejudice

on the Commonwealth.” Hearing Transcript, 9/6/2019, at p. 23. The trial

court also assured the parties that it appreciated the difference between the

standards for the pre-sentence and post-sentence withdrawal of a plea.

This leaves no doubt that the trial court both understood and applied

the legal standard applicable at the pre-sentence stage of a criminal case.

Thus, for all of these reasons, we conclude that Hines’ convictions and

sentence must stand.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 4/12/21

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