J-S27012-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
DARION A. LEVANOWITZ,
Appellant No. 1219 MDA 2015
Appeal from the Judgment of Sentence March 2, 2015
In the Court of Common Pleas of Snyder County
Criminal Division at No(s): CP-55-CR-0000302-2013
BEFORE: SHOGAN and DUBOW, JJ., and STEVENS, P.J.E.*
MEMORANDUM BY SHOGAN, J.: FILED APRIL 22, 2016
Appellant, Darion A. Levanowitz, appeals from the judgment of
sentence of thirty-three months to seventeen years imprisonment imposed
following his negotiated plea of nolo contendere to statutory sexual assault
and corruption of a minor. We affirm.
The affidavit of probable cause in support of the criminal complaint in
this matter indicates the following factual basis to the crimes charged:
On 10/10/13 . . . [Appellant], 18, had unprotected sexual
intercourse with a juvenile female age 13. On 10/15/13 . . .
[Appellant] again had unprotected sexual intercourse with the
same 13 year old female. Both incidents took place in a barn on
the property belonging to the parents of the 13 year old.
____________________________________________
*
Former Justice specially assigned to the Superior Court.
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On 10/22/13 [Appellant] freely admitted during [an] interview . .
. to having unprotected vaginal and anal sex with the victim on
two separate occasions. He stated that he had met the victim at
a football game and the two started talking over text messages.
He related that the two agreed to meet at her place on the 10 th.
[Appellant] admitted that he knew the girl was in middle school
prior to having sex with her.
[Appellant] has a prior charge of Indecent Assault on his juvenile
record.
Affidavit of Probable Cause, 10/28/13, at 1.
Appellant was charged with two counts each of involuntary deviate
sexual intercourse, a first-degree felony, statutory sexual assault, a second-
degree felony, corruption of minors, a third-degree felony, and indecent
assault, victim less than 16, a second-degree misdemeanor. The trial court
summarized the early procedural history in its Pa.R.A.P. 1925(a) opinion, as
follows:
On July 14, 2014, [Appellant] entered a plea of nolo
contendere to [one count each of] charges of Statutory Sexual
Assault, 18 Pa.C.S. §3122.1(a)(1) and Corruption of Minors, 18
Pa.C.S. §6301(a)(1)(ii).[1] During the plea hearing, [Appellant]
acknowledged that he understood the nature of the charges to
which he entered his plea and that he was not admitting that he
committed the offense to which he was pleading, but he was
admitting that, if the Commonwealth presented its case to a
judge or a jury, [that] the evidence would be sufficient for that
judge or jury to convict him of the crimes to which he entered
his plea. He also acknowledged that he was aware of the
evidence that the Commonwealth had against him. (Plea-pg.5,
lines 1–12).
____________________________________________
1
The plea agreement provided that all other charges would be dismissed.
N.T. (Plea), 7/14/14, at 4.
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Pa.R.A.P. 1925(a) Opinion, 8/24/15, at unnumbered 1.
Thereafter, the trial court directed the Sexual Offenders Assessment
Board (“SOAB”) to conduct an assessment of Appellant to determine if he
should be classified as a sexually violent predator (“SVP”) in accordance with
42 Pa.C.S. § 9799.24 and to submit a report within ninety days. Order,
7/14/14, at 1. Between July 15, 2014, and October 15, 2014, Appellant
committed multiple violations of his bail necessitating issuance of multiple
bench warrants, followed by imposition of escalating monetary conditions of
bail. On October 7, 2014, the Commonwealth praeciped the court to
schedule a hearing to determine whether Appellant is an SVP. On October
15, 2014, the trial court scheduled both the SVP hearing and sentencing for
November 13, 2014. The trial court summarized the ensuing procedural
history as follows:
On November 10, 2014, defense counsel filed a Motion to
Withdraw Plea. [Appellant] did not sign the Motion, nor did he
sign any verification to the Motion. In the Motion counsel
claimed that [Appellant] was innocent of the charges, that he did
not commit the charges and that he did not understand the
elements of the charges.
The court held a hearing on the Motion on January 7,
2015. The defendant did not testify at the hearing, nor did he
offer any testimony from other witnesses in support of counsel’s
unverified Motion. The Commonwealth offered testimony
concerning counsel’s claim that the defendant did not commit
the offenses to which he pleaded nolo contendere. State trooper
Vicki Spencer and Barry Nelson, an investigator for the Sexual
Offenders Assessment Board, testified to incriminating
statements the defendant made that were diametrically opposed
to counsel’s claim of innocence in the Motion to Withdraw Plea.
At the conclusion of the hearing the court denied counsel’s
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motion for the reasons stated at pages 16-20 of the transcript of
the hearing on the Motion to Withdraw Plea.
Pa.R.A.P. 1925(a) Opinion, 8/24/15, at unnumbered 1–2.
On March 2, 2015, the trial court held a Sexual Offender and
Sentencing Hearing at which Appellant was determined to be an SVP. N.T.
(Sexual Offender and Sentencing Hearing), 3/2/15, at 32. The trial court
imposed the following sentence of incarceration: for statutory sexual
assault, eighteen months to ten years; for corruption of a minor, a
consecutive term of fifteen months to seven years. Appellant filed a timely
post-sentence motion, which the trial court denied on June 19, 2015.
Appellant filed a timely notice of appeal. Both Appellant and the trial court
complied with Pa.R.A.P. 1925.
Appellant raises the following single issue on appeal:
1. Did the trial court abuse its discretion by denying the
Appellant’s Motion to Withdraw his nolo contendere plea?
Appellant’s Brief at 4.
“A decision regarding whether to accept a defendant’s presentence
motion to withdraw a guilty plea is left to the discretion of the sentencing
court.” Commonwealth v. Unangst, 71 A.3d 1017, 1019 (Pa. Super.
2013); see also Pa.R.Crim.P. 591, which states, “At any time before the
imposition of sentence, the court may, in its discretion, permit, upon motion
of the defendant . . . the withdrawal of a plea of guilty[.]” There is no
absolute right to withdraw a guilty plea, but if a motion to withdraw is filed
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before sentencing, it is to be granted liberally; “a defendant should be
permitted to withdraw his plea for ‘any fair and just reason,’ provided there
is no substantial prejudice to the Commonwealth.” Unangst, 71 A.3d at
1020.
Appellant’s two-page argument in his brief is vague and conclusory,
and his claim is undeveloped. It is nothing more than a restatement of the
Commonwealth’s opposition to Appellant’s motion to withdraw his plea, a
conclusory reference to case law allegedly in support of his position, and a
restatement of the trial court’s explanation of reasons supporting its denial
of Appellant’s motion. Appellant’s Brief at 7–8. It wholly fails to refer to
relevant and controlling case law, Commonwealth v. Carrasquillo, 115
A.3d 1284 (Pa. 2015), filed six months before Appellant filed his brief. While
asserting that he should have been permitted to withdraw his plea, Appellant
does not offer any reason why, beyond counsel’s bald assertion of
innocence, and does not espouse any explanation how or why the trial court
abused its discretion. Therefore, we find the issue waived. See
Commonwealth v. Woodard, 129 A.3d 480, 509 (Pa. 2015) (quoting
Wirth v. Commonwealth, 95 A.3d 822, 837 (Pa. 2013), which stated that
“where an appellate brief fails to . . . develop an issue in any other
meaningful fashion capable of review, that claim is waived. It is not the
obligation of an appellate court to formulate [the] appellant’s arguments for
him.”) (internal quotations omitted)).
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Even if not waived, we would reject the claim. In attempting to define
an argument by Appellant, we note that he avers that he filed his motion to
withdraw his plea because “he maintained his innocence” of the charges, and
he assails the Commonwealth’s assertion of prejudice because the
Commonwealth is “in the same posture [it was] in when [it] originally [was]
trying the case.” Appellant’s Brief at 6, 8.
As noted by the trial court, Appellant “did not file the Motion to
Withdraw Plea until sometime after the Sexual Offenders Assessment Board
[(“SOAB”)] issued its written report that the defendant was a sexually
violent predator. Until that time [Appellant] had not offered any statements
of factual innocence of the charges.” Pa.R.A.P. 1925(a) Opinion, 8/24/15, at
unnumbered 2. The SOAB evaluator’s report was dated September 19,
2014, it was mailed to the Commonwealth on September 22, 2014, and the
Commonwealth requested the SVP hearing on October 7, 2014. Appellant
filed the motion to withdraw plea on November 10, 2014. The trial court
concluded that claims of Appellant’s innocence were “belied by the record.”
Id. at unnumbered 3.
While a bare assertion of innocence, such as made instantly, formerly
was considered a fair and just reason to permit the presentence withdrawal
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of a guilty plea,2 our Supreme Court recently articulated that “a bare
assertion of innocence is not, in and of itself, a sufficient reason to require a
court to grant” a presentence request to withdraw a guilty plea.
Carrasquillo, 115 A.3d at 1285 (emphasis added). The Carrasquillo Court
continued:
[A] defendant’s innocence claim must be at least plausible to
demonstrate, in and of itself, a fair and just reason for
presentence withdrawal of a plea. . . . More broadly, the proper
inquiry on consideration of such a withdrawal motion is whether
the accused has made some colorable demonstration, under the
circumstances, such that permitting withdrawal of the plea would
promote fairness and justice. The policy of liberality remains
extant but has its limits, consistent with the affordance of a
degree of discretion to the common pleas courts.
Id. at 1292; accord, Commonwealth v. Hvizda, 116 A.3d 1103, 1107
(Pa. 2015) (“[A] bare assertion of innocence—such as [the a]ppellee
provided as the basis for withdrawing his guilty plea—is not, in and of itself a
sufficient reason to require a court to grant such a request.”).
The trial court herein clarified that Appellant never testified at the
January 7, 2015 hearing related to his motion to withdraw his plea. The
court stated that Appellant “did not testify at the hearing, nor did he offer
any testimony from other witnesses in support of counsel’s unverified
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2
“In terms of its effect upon a case, a plea of nolo contendere is treated the
same as a guilty plea.” Commonwealth v. Kepner, 34 A.3d 162, 166 n.2
(Pa. Super. 2011).
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Motion” to withdraw his plea. Pa.R.A.P. 1925(a) Opinion, 8/24/15, at
unnumbered 2. The trial court explained:
This court notes that counsel did not file the Motion to
Withdraw Plea until sometime after the Sexual Offenders
Assessment Board issued its written report that [Appellant] was
a sexually violent predator. Until that time [Appellant] had not
offered any statements of factual innocence of the charges. At
the plea hearing [Appellant] stated that he understood that he
was not admitting that he committed the two offenses to which
he pleaded nolo contendere. He did not state, however, that he
was innocent of the charges. He admitted that he was aware of
the Commonwealth’s evidence. This included the actual age of
the victim and supposedly her statement to him that she was
sixteen years old. He certainly was aware of the statements he
made to the police prior to his arrest on the charges.
Unfortunately, other than counsel’s naked assertion of a fair and
just reason, the court had no testimony concerning [Appellant’s]
entry of his nolo contendere plea and the fair and just reason to
withdraw the plea. The court notes that counsel’s claim of his
client’s innocence is belied by the record, particularly
[Appellant’s] statements at the plea hearing and the testimony
at the hearing to withdraw the plea. Counsel’s claim that
[Appellant] did not understand the elements of the charges is
disingenuous in light of [Appellant’s] statement under oath at his
plea hearing that he understood the nature of the charges.
Moreover, [Appellant] entered a plea of nolo contendere, unlike
the defendants in Commonwealth v. Forbes, 450 Pa. 185, 299
A.2d 268 (1973) and Commonwealth v. Carrasquillo, 2015 Pa.
Lexis 1276, 115 A.3d 1284, who entered guilty pleas.
Pa.R.A.P. 1925(a) Opinion, 8/24/15, at unnumbered 2–3.
Applying the standards set forth in Carrasquillo, we would conclude
that the trial court did not abuse its discretion in denying Appellant’s motion
to withdraw his nolo contendere plea. The trial court determined under the
circumstances of this case, that Appellant truly did not put forth a claim of
innocence and did not present a fair and just reason for withdrawing his
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plea. Rather, the trial court found that Appellant repeatedly admitted the
Commonwealth’s possession of sufficient evidence to support his crimes
beyond a reasonable doubt, both to the court in his plea colloquy and to the
SOAB evaluator during the SVP assessment, and that Appellant attempted to
withdraw his plea only after learning of the SOAB’s recommendation
concerning Appellant’s SVP status. See N.T. (Plea), 7/14/14, at 8; N.T.
(Plea Withdrawal Hearing), 1/7/15, at 9. Thus, the trial court found
Appellant’s bald assertion of innocence to be disingenuous. Moreover, at the
hearing on the motion to withdraw the plea, when Appellant had the
opportunity to present an explanation for withdrawal of his plea, he did not
testify or present any other evidence. N.T. (Plea Withdrawal Hearing),
1/7/15, at 3. Because Appellant failed to make a colorable demonstration,
under the circumstances, that withdrawal of the plea would promote fairness
and justice, Unangst, 71 A.3d at 1020, Carrasquillo, 115 A.3d at 1292, we
would conclude the trial court did not abuse its discretion in finding that
Appellant did not present a fair and just reason for withdrawing his plea.
Appellant’s companion claim is that the Commonwealth would not
suffer prejudice if Appellant was permitted to withdraw his plea because it
would be “in the same posture [it was] in when [it] originally [was] trying
the case.” Appellant’s Brief at 8. In light of our disposition of the first claim,
we need not address the companion issue. See Carrasquillo, 115 A.3d at
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1293 n.9 (“In light of our disposition above, we do not reach the second
issue on appeal, which concerns prejudice to the Commonwealth.”).
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/22/2016
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