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

v.

LEONARD HINES

Appellant : : : : : : : : : IN THE SUPERIOR COURT OF

PENNSYLVANIA

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 no lo contendere to one count of invol untary deviate intercou r se 1 and one count of unlawful contact with a minor , 2 Hines was sentenced to a n 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 arg ues 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

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- 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 h ome 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 or al 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 se lected. The following day, Hines agreed to forego a trial so that he could instead enter a plea to the two aforementioned offenses

. After t he prosecution state d the factual basis for the two counts, as well as the definitions of th e charges , Hines entere d 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, t he prosecution responded that during the plea colloquy , Hines had already admitted to the nonconsensual nature of th e anal penetration as well as the other improper contact with RA . Hines had also been advised that lack of consent to thatJ

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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 allow ing 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 marri ed for 10 years, and that he worked for decades as an electrical maintenance worker. As part of the mitigation material s , the defense presented a mental health evaluation and a
pre - sentence report. These materials recounted that Hines ha d a history of

su bstance abuse, which was in part rooted in his difficult upbringing and the drug addiction s of his parents.

_________________ __________ ______ ____ _______ 3 See 204 Pa. Code §§ 303.1

- 303.8.J

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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 mot ion challenging the voluntariness of the plea and the reasonableness of the
sentence. After his motion was denied , Hines then timely appealed the judgment of sente nce. 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 remor se, 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 w ithdrawing pleas after sentencing (manifest injustice), and that the Commonwealth would suffer substantial prejudice if the motion were granted? Appellant’s Brief, at 5.
II.
W e 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 ruling s are already evident in the record.J

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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 demon strating 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 se ntencing 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. 20 07) ; 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, w e cannot reach its merits.J

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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 m anifestly 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.
F ar 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 insis ted 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 wasJ

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detailed in the defense’s pre - sentence report. “ O ur 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 claim s 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 chi ldren 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 clai m 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 af ter it has been entered , as this is a matter of judicial discretion

. See Pa.R.Crim.P. 591(A); Commonwealth v. Carrasquillo , 11 5 A.3d 1284, 1291

- 92 (Pa. 2015). Prior to sentencing, w ithdrawals of a plea should be granted liberally, but only “if supported by a fair and just reason,J

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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 req uest 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

. T he record belies Hines’ claim s of innocence and confusion about what he was pleading to . The allegations of his stepdaughter were corroborated by a DNA test. Hines himself sent tex t 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)

.J

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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 h e wait ed three months after the plea, until just before sentencing, to declare that he was innocent and that he had misunderstood t hat 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 cou rt 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 an d 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).J

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c orrectly 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 t o 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

s entence must stand. Judgment of sentence affirmed. Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 4/12/21