J-A35017-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
ETHAN HANNOLD,
Appellant No. 1088 WDA 2014
Appeal from the Judgment of Sentence June 18, 2014
In the Court of Common Pleas of Clarion County
Criminal Division at No(s): CP-16-CR-0000170-2013
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
ETHAN HANNOLD,
Appellant No. 1089 WDA 2014
Appeal from the Judgment of Sentence June 18, 2014
In the Court of Common Pleas of Clarion County
Criminal Division at No(s): CP-16-CR-0000041-2014
BEFORE: BENDER, P.J.E., SHOGAN, and MUSMANNO, JJ.
MEMORANDUM BY SHOGAN, J.: FILED FEBRUARY 05, 2016
Appellant, Ethan Hannold, appeals from the judgment of sentence
entered June 18, 2014, in the Court of Common Pleas of Clarion County.
We affirm.
The trial court summarized the factual history of these cases as
follows:
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These cases involve two brutal and senseless attacks on
innocent women. During the one incident, at case number 170
CR 2013, [Appellant] executed a plan of running a young woman
off the road with his car and then coming to her aide for the
bizarre purpose of making himself feel good about helping
someone. When the young woman told [Appellant] her father
was coming and she did not need his help, he felt rejected and
became incensed and punched her many times through her open
car window, breaking her nose and bloodying her face. He then
sexually assaulted her by grabbing her between her legs and
ripping her pants off. He tried to pull her out through the
window, but he fell down and she managed to get away.
In the second case, number 41 CR 2014, [Appellant] drove
up behind a woman who was walking in town in a residential
area. Without warning, he ran her down with his car and then
fled the scene. She suffered a traumatic brain injury.
Trial Court Opinion, 9/5/14, at 1.
As a result of both incidents, Appellant was charged with multiple
crimes. Appellant proceeded to negotiate plea agreements in both cases. At
170 CR 2013, Appellant entered a guilty plea on August 28, 2013, to
aggravated assault, robbery by threat of immediate serious injury, recklessly
endangering another person (“REAP”), and indecent assault by forcible
compulsion. All other charges were nol prossed by the Commonwealth. The
indecent assault charge required an assessment by the Sexual Offenders
Assessment Board to determine if Appellant was a sexually violent predator
“SVP”). Appellant moved for appointment of his own expert psychiatrist and
for in forma pauperis (“IFP”) status. The trial court granted both motions.
Prior to the SVP hearing, the Commonwealth filed a motion to compel
Appellant to produce his expert witness report. The trial court granted the
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motion to compel Appellant to provide the expert report, and subsequently
denied Appellant’s motion to reconsider that decision. The SVP hearing was
held on May 16, 2014. Following the hearing, the trial court deemed
Appellant to be an SVP.
At 41 CR 2014, Appellant entered a guilty plea on June 18, 2014, to
aggravated assault. All other charges were nol prossed by the
Commonwealth.
On June 18, 2014, Appellant was sentenced, at both dockets, to an
aggregate sentence of twenty-five to fifty years of incarceration in
conformity with the plea agreements. The sentence included lifetime
registration as an SVP. Appellant timely appealed. Appellant and the trial
court complied with the requirements of Pa.R.A.P. 1925.1
Appellant presents the following issues for our review:
I. Whether [Appellant’s] guilty plea was not knowingly,
intelligently, and voluntarily made because (1) [Appellant] was
not made aware of all defenses potentially available in his case,
including insanity or mental infirmity and (2) [Appellant] suffers
from mental illness such that he was incapable of making a
knowing, intelligent and voluntary plea.
II. Whether [Appellant’s] trial, guilty plea, and sentencing
counsel, John Lackatos, Esquire, was incompetent and or
ineffective in the following ways (1) in failing to obtain a mental
health examination of [Appellant] to determine his competency
to participate in his defense, (2) in failing to attend [Appellant’s]
sex offender assessment interview, (3) in failing to advise
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1
This Court, sua sponte, consolidated the appeals by order entered
August 8, 2014.
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[Appellant] on the defenses of insanity or mental infirmity, and
(4) in failing to present evidence of [Appellant’s] mental illness
as a mitigating factor at the time of sentencing.
III. Whether the trial court, by order granting motion to
compel [Appellant] to provide expert report signed on April 29,
2014 and order denying motion to reconsider entered on May
12, 2014, committed reversible error by ordering that the
defense produce a report of an expert who the defense did not
intend to call as a witness at a sexually violent predator hearing.
Appellant’s Brief at 6 (full capitalization omitted).
In his first claim, Appellant argues that the trial court erred in
accepting his guilty pleas because the pleas were not knowingly, intelligently
and voluntarily made. Appellant’s Brief at 15. Appellant asserts two bases
for this alleged error. Appellant first contends that the pleas were not
knowingly, intelligently, and voluntarily made because Appellant was not
made aware of all defenses potentially available to him. Id. at 15-16.
Appellant also maintains that he suffers from mental illness such that he is
incapable of making a knowing, intelligent, and voluntary plea. Id. at 16-
17.
Before addressing the merits of Appellant’s claims, we first note that a
defendant wishing to challenge the voluntariness of a guilty plea on direct
appeal must either object during the plea colloquy or file a motion to
withdraw the plea within ten days of sentencing. Pa.R.Crim.P. 720(A)(1),
(B)(1)(a)(i); Commonwealth v. Lincoln, 72 A.3d 606, 609-610 (Pa.
Super. 2013). “Failure to employ either measure results in waiver.” Id. at
610.
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Here, Appellant did not object during either of his plea colloquies. As
noted by the trial court, “[t]o the contrary, [Appellant] stated during written
and verbal plea colloquies . . . that he had not been a patient in a hospital,
he was not under doctor’s care or taking medication and he understood his
rights and had no questions.” Trial Court Opinion, 9/5/14, at 6.
Furthermore, Appellant did not seek to withdraw his plea through a post-
sentence motion within ten days of sentencing. Thus, this issue is waived.
In his second issue, Appellant contends that the trial court erred in
accepting Appellant’s guilty pleas because trial counsel was ineffective.
Appellant’s Brief at 18. Appellant maintains that trial counsel was ineffective
for failing to obtain a mental health examination of Appellant; failing to
attend Appellant’s sex offender assessment interview; failing to advise
Appellant on the defenses of insanity or mental infirmity; and failing to
present evidence of Appellant’s mental illness as a mitigating factor at the
time of sentencing. Id. at 18-21.
Due to the procedural posture of this matter, Appellant’s issue is not
properly before our Court. In Commonwealth v. Holmes, 79 A.3d 562
(Pa. 2013), our Supreme Court reiterated the holding from Commonwealth
v. Grant, 813 A.2d 726 (Pa. 2002), and stated that generally, “claims of
ineffective assistance of counsel are to be deferred to PCRA[2] review; trial
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2
Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541–9546.
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courts should not entertain claims of ineffectiveness upon post-verdict
motions; and such claims should not be reviewed upon direct appeal.”
Holmes, 79 A.3d at 576. The Holmes Court, however, recognized two
exceptions to the general rule whereby claims of ineffective assistance of
counsel could be raised on direct appeal: (1) where the trial court
determines that a claim of ineffectiveness is both meritorious and apparent
from the record so that immediate consideration and relief is warranted; or
(2) where the trial court finds good cause for unitary review, and the
defendant makes a knowing and express waiver of his entitlement to seek
PCRA review from his conviction and sentence, including an express
recognition that the waiver subjects further collateral review to the time and
serial petition restrictions of the PCRA. Id. at 564, 577 (footnote omitted).
Here, Appellant did not satisfy either of the aforementioned
exceptions. The trial court did not conclude that Appellant’s claim of
ineffectiveness is meritorious and apparent from the record necessitating
immediate consideration, and Appellant has not expressly waived his right to
pursue PCRA review. Trial Court Opinion, 9/5/14, at 5. Accordingly, we
dismiss this claim without prejudice to Appellant’s right to seek collateral
review under the PCRA.
In his third claim, Appellant argues that the trial court erred in
compelling Appellant to provide to the Commonwealth the report from an
expert whom Appellant did not intend to call as a witness at the SVP
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hearing. Appellant’s Brief at 21. Appellant contends that the court’s
mandated production of this report violated the work product privilege. Id.
at 22. More troubling however, Appellant contends, is the fact that the
report was ordered to be turned over to the Commonwealth prior to
Appellant pleading guilty at 41 CR 2014. Id. at 22-23. Appellant maintains
that information in that report may have been incriminating to Appellant and
may have impacted the charges brought against him at 41 CR 2014.3 Id. at
23. Appellant asserts that such action violates his Fifth Amendment right
against self-incrimination. Id.
We are unable to reach the merits of Appellant’s claim because he has
waived this issue. As this Court has explained:
Settled Pennsylvania law makes clear that by entering a
guilty plea, the defendant waives his right to challenge on direct
appeal all nonjurisdictional defects except the legality of the
sentence and the validity of the plea. Commonwealth v.
Pantalion, 957 A.2d 1267, 1271 (Pa. Super. 2008).
Indeed, a defendant routinely waives a plethora of
constitutional rights by pleading guilty, including the
right to a jury trial by his peers, the right to have the
Commonwealth prove his guilt beyond a reasonable
doubt, and his right to confront any witnesses
against him. Boykin v. Alabama, 395 U.S. 238, 89
S.Ct. 1709, 23 L.Ed.2d 274 (1969) (knowing and
voluntary guilty plea waives privilege against self-
incrimination, right to jury trial, and right to
confront one’s accusers). Furthermore, a defendant
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3
We note that the charges filed against Appellant at 41 CR 2014 were not
of the nature that would require a determination as to whether Appellant
was an SVP.
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is permitted to waive fundamental constitutional
protections in situations involving far less protection
of the defendant than that presented herein. [See,
e.g.], Peretz v. United States, 501 U.S. 923, 936,
111 S.Ct. 2661, 115 L.Ed.2d 808 (1991) ([stating:]
“The most basic rights of criminal defendants are ...
subject to waiver”); Johnson v. Zerbst, 304 U.S.
458, 465, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938)
([stating] sixth amendment right to counsel may be
waived).
Commonwealth v. Byrne, 833 A.2d 729, 735–36
(Pa.Super.2003).
Lincoln, 72 A.3d at 609 (emphasis added).
Appellant’s claim does not challenge the court’s jurisdiction.
Furthermore, Appellant’s stated issue does not pertain to the legality of his
sentence or the validity of his plea. Accordingly, Appellant has waived his
right to raise this claim on direct appeal.
Judgments of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/5/2016
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