J-A08020-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
FRANKLIN BENNETT, III :
:
Appellant : No. 3485 EDA 2018
Appeal from the Judgment of Sentence entered October 31, 2018
in the Court of Common Pleas of Philadelphia County,
Criminal Division at No(s): CP-51-CR-0005931-2017.
BEFORE: LAZARUS, J., KUNSELMAN, J., and McCAFFERY, J.
MEMORANDUM BY KUNSELMAN, J.: FILED JULY 17, 2020
Franklin Bennett, III, appeals from the judgment of sentence imposed
following the entry of his plea of nolo contendere to indecent assault and
simple assault.1 We affirm.
The trial court summarized the relevant factual and procedural history
as follows:
On February 12, 2016, [Bennett] sexually assaulted the
complainant, [], who was eighteen years old at the time. The
incident occurred in [Bennett’s] home . . . in Philadelphia. On that
night, [the complainant] was babysitting [Bennett’s] four minor
children and two of [Bennett’s] neighbors, who were also minors.
[The complainant] and the six children fell asleep on a
loveseat in a bedroom of the residence. Around 3:00 a.m.,
[Bennett] entered the bedroom, reached his hand under [the
complainant’s] underwear, and digitally penetrated her vagina
without her consent. The incident occurred in the presence of the
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1 18 Pa.C.S.A. §§ 3126(a)(1), 2701(a).
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six sleeping minors and continued until [the complainant] woke
up.
Based on these facts, on October 31, 2018, [Bennett]
entered plea of nolo contendere on the charges of indecent assault
and simple assault. [Bennett’s] written colloquy stated that, in
exchange for the plea, the Commonwealth agreed to drop a felony
charge of aggravated indecent assault, recommend a sentence of
four years of probation (supervised by the sex offender unit), and
transfer of [Bennett’s] probation to Chester County. Per the plea
agreement, the order of probation specified that [Bennett] was to
stay away from the complainant and comply with all Tier I sex
offender requirements. [The trial] court accepted the plea and
sentenced [Bennett] in accordance with each of these terms.
However, due to the circumstances surrounding his offense (his
commission of sexual assault in the presence of six minor
children), [the trial] court imposed an additional condition of
probation, which ordered [Bennett] to stay away from all minors
except his own children. On November 5, 2018, [Bennett] filed
motions to modify his sentence and withdraw his guilty plea, which
[the trial] court denied on November 28, 2018.
[Bennett] is an attorney and is licensed to practice law
within the Commonwealth of Pennsylvania. During the hearing on
the motion to withdraw his plea, [Bennett] testified that he
practices both family and criminal law, but the majority of his
practice “circulates around Family Court.” On November 2, 2018,
the . . . Administrative Judge of the Family Court Division, issued
an order, stating: “pursuant to the conviction sentence entered by
the [trial court] . . . [Bennett] is hereby administratively removed
from all pending family court cases.”
On January 23, 2019, the Supreme Court of Pennsylvania
issued an order temporarily suspending [Bennett’s] license to
practice law, pursuant to Pa.R.D.E 214(d)(2). [Bennett] filed a
timely notice of appeal on December 3, 2018.
Trial Court Opinion, 7/16/19, at 1-3 (citations to record, footnotes and
unnecessary capitalization omitted).
On appeal, Bennett raises the following three issues in his statement of
questions presented, each containing multiple questions:
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1. Did the [trial court] err in not allowing Mr. Bennett to withdraw
his nolo contendere plea, or in the alternative, err in not removing
the condition of no contact with minors since the no contact with
minors was a condition that was not bargained for, and was added
by the court despite the [plea] bargain? Was there a manifest
injustice and great unfairness when the [trial] court added a
condition not bargained for and which severely prejudiced Mr.
Bennett? Was there a manifest injustice by Mr. Bennett’s
assertion of his innocence? Did the [trial] court err in adding the
condition of no contact with minors since the victim was eighteen
years of age and an adult? Did the Court err in adding the
condition of no contact with minors since there was no evidence
of record in the nolo contendere colloquy or in the plea itself that
minors were involved? Further, should the plea be allowed to be
withdrawn since the no restriction on travel condition that was
bargained for has been changed, and Mr. Bennett is restricted in
his travel, and time and costs were imposed, contrary to the plea
agreement?
2. Did the [trial court] err in accepting the nolo contendere plea
and finding Mr. Bennett guilty of the charge of simple assault, a
misdemeanor of the second degree, when there was no factual
evidence in the plea to support a finding of simple assault in this
case?
3. Did the [trial court] err in not allowing Mr. Bennett to withdraw
his guilty plea due to the ineffectiveness of his trial counsel since
trial counsel had barely met with Mr. Bennett, was not prepared
and told Mr. Bennett he would not allow Mr. Bennett to present
character witnesses? Did the ineffectiveness of trial counsel result
in a plea that was not knowingly, intelligently and voluntarily
entered since Mr. Bennett was afraid his trial counsel was not
going to give him an adequate defense, and therefore, felt
compelled to enter into the nolo contendere plea?
Bennett’s Brief at 4-6.
Initially, we observe that in Bennett’s statement of questions presented,
as well as in the argument section of his brief, he raises several issues that
were not raised in his Pa.R.A.P. 1925(b) concise statement of errors
complained of on appeal. Importantly, when an appellant is directed to file a
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concise statement of matters to be raised on appeal pursuant to Pa.R.A.P.
1925(b), any issues not raised in that statement are waived. See
Commonwealth v. Lord, 719 A.2d 306, 309 (Pa. 1998); see also Pa.R.A.P.
302(a) (providing that issues not raised in the lower court are waived and
cannot be raised for the first time on appeal). Here, the trial court ordered
Bennett to file a Pa.R.A.P. 1925(b) concise statement. Accordingly, as Bennett
has identified several issues that were not included in his concise statement,
we may not address them since they were not preserved for our review.
In his first preserved issue, Bennett challenges the trial court’s denial of
his post-sentence motion to withdraw his nolo contendere plea.2 Our standard
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2 In his discussion of his first issue, Bennett also superficially challenges the
trial court’s denial of his motion to modify and reconsider and vacate sentence
on the basis that the trial court abused its discretion in imposing the no-
contact with minors provision. This argument challenges the discretionary
aspects of Bennett’s sentence. See Commonwealth v. Koren, 646 A.2d
1205, 1208 (Pa. Super. 1994). However, Bennett has not developed this
alternative argument by providing a discussion of pertinent legal authority.
See Pa.R.A.P. 2119(a) (stating that the parties’ briefs must include a
discussion of each question raised on appeal and a “citation of authorities as
are deemed pertinent.”); see also Commonwealth v. Heggins, 809 A,2d
908, 912 n.2 (Pa. Super. 2002) (holding that an issue identified on appeal but
not developed in appellant’s brief of abandoned and therefore waived).
Instead, he only argues that the condition was not bargained for, not that the
court abused its discretion in ordering this condition. Moreover, Bennett has
not included in his brief a requisite Pa.R.A.P. 2119(f) statement regarding this
discretionary challenge. See Pa.R.A.P. 2119(f) (proving in relevant part:
“[a]n appellant who challenges the discretionary aspects of a sentence in a
criminal matter shall set forth in a separate section of the brief a concise
statement of the reasons relied upon for allowance of appeal with respect to
the discretionary aspects of a sentence.”). For these reasons, we decline to
address whether the judge abused its discretion in ordering this condition.
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of review of such a ruling is well-settled. There is no absolute right to
withdraw a guilty plea, and the decision as to whether to allow a defendant to
do so is a matter within the sound discretion of the trial court.
Commonwealth v. Bedell, 954 A.2d 1209, 1212 (Pa. Super. 2008).
[W]e will not disturb the [trial] court’s decision on such motion
unless the court abused that discretion. An abuse of discretion is
not a mere error in judgment but, rather, involves bias, ill will,
partiality, prejudice, manifest unreasonableness, and/or
misapplication of law. By contrast, a proper exercise of discretion
conforms to the law and is based on the facts of record.
Commonwealth v. Gordy, 73 A.3d 620, 624 (Pa. Super. 2013) (internal
citations omitted). Further, a criminal defendant who was sentenced to more
than what was agreed upon may only withdraw his guilty plea if he is “deprived
of the benefit of his bargain.” Commonwealth v. Tann, 79 A.3d 1130, 1131
(Pa. Super. 2013).3
Bennett claims that the trial court erred in denying his motion to
withdraw his plea of nolo contendere because the court imposed an additional
condition of probation that was not part of his plea bargain, i.e., that he not
have contact with any minors except his own children. Bennett maintains that
the condition of no contact with minors was not part of the plea negotiations
or the plea agreement. He claims that he has suffered manifest injustice due
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3 For sentencing purposes, the effect of a plea of nolo contendere is equivalent
to a plea of guilty. See Commonwealth v. Gunter, 771 A.2d 767, 773 (Pa.
2001).
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to the adverse consequences the condition, including being banned from
Family Court where he conducts most of his legal practice,4 and restricted
from certain activities involving his children.
Importantly, a person placed on probation does not enjoy the full
panoply of constitutional rights otherwise enjoyed by those who have not run
afoul of the law. See Koren, 646 A.2d at 1209. Pursuant to 42 Pa.C.S.A. §
9754, “[t]he court shall attach reasonable conditions authorized by section
9763 (relating to conditions of probation) as it deems necessary to ensure or
assist the defendant in leading a law-abiding life.” The trial court may impose
a condition of probation requiring the defendant “[t]o do other things
reasonably related to rehabilitation.” 42 Pa.C.S.A. § 9763(b)(15). The court
may also impose restrictive conditions which “significantly restrict the person’s
movement.” Id. § 9763(d)(2). This court has consistently held that no-
contact conditions are neither unreasonable nor unduly restrictive of a
person’s liberty. Koren, 646 at A.2d 1209. Thus, a sentencing court may
order a no-contact condition on probation if it is reasonably calculated to aid
in the defendant’s rehabilitation. Id.
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4 Bennett concedes that, after the Administrative Judge of the Philadelphia
Family Court issued an order prohibiting Bennett from entering Family Court
due to the no contact with minors condition of his probation, the Pennsylvania
Supreme Court temporarily suspended Bennett from practicing law due to his
nolo contendere pleas. Thus, even if he had not been prohibited from
practicing in Family Court by order of the Administrative Judge, he would have
been prohibited from practicing in any court in the Commonwealth due to the
Supreme Court’s order.
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The trial court considered Bennett’s first issue and determined that it
lacked merit because he received the benefit of his bargained-for plea
agreement. The court observed:
In exchange for [Bennett’s] nolo contendere plea, the
Commonwealth agreed to drop the charge of aggravated indecent
assault, a second-degree felony, and recommend a sentence of
four years of probation (supervised by the sex offender unit). This
court followed the Commonwealth’s recommendation.
Accordingly, Bennett was sentenced to four years of reporting
probation, he was ordered to stay away from the complainant,
supervision of his probation was transferred to Chester County,
and he was ordered to comply with all Tier I sex offender
requirements.
The sentence imposed by this court did not extend the
recommended term of probation or inflict any term of
incarceration. The maximum sentence Bennett could have
received was “four years’ incarceration and a fine of $10,000,” but
he was not subjected to either penalty. Additionally, . . .
[Bennett’s] sentence did not include a condition that was
specifically excluded by the terms of the plea agreement. Further,
[Bennett] received the promised benefit of not being charged with
aggravated indecent assault, a crime that is subject to lifetime
registration under SORNA II and a maximum of ten years of
incarceration. Finally, [Bennett] retained the benefit of the
Commonwealth’s amendment of the initial charges against him
[which reduced the charges and limited his reporting period].
Trial Court Opinion, 7/16/19, at 7.
We agree with the trial court’s determination that Bennett has not shown
that the no-contact with minors provision somehow deprived him of his plea
bargain where he received substantially reduced charges and a probation
sentence in lieu of a possible four to ten year sentence of incarceration and
lifetime sexual offender registration. As explained above, the trial court had
the discretion to impose reasonable conditions to the probation sentence. On
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its face, the condition is reasonable, and we cannot say that Bennett was
deprived of the benefit of his bargain, such that he should be able to withdraw
his plea. Accordingly, Bennett’s first issue fails.
In his second issue, Bennett claims the trial court erred in accepting
Bennett’s plea to simple assault when the factual summary provided by the
district attorney at the plea hearing did not support any of the elements of
that crime. Specifically, he claims that the facts underlying his plea did not
indicate any bodily injury or attempt cause bodily injury, nor any fear of
serious bodily injury.
Notably, the trial court did not address this issue. Upon review of the
record, we conclude that Bennett did not challenge the trial court’s
acceptance of his nolo contendere plea in his Pa.R.A.P. 1925(b) concise
statement of errors complained of on appeal. Instead, he challenged the
court’s denial of his request to withdraw the plea. See Pa.R.A.P. 1925(b)
Concise Statement, 12/13/18, at ¶ 6 (wherein Bennett claimed “the trial court
erred in not allowing the withdrawal of the plea since there was no factual
basis for simple assault”). These are two different concepts. Because Bennett
changed the nature of his claim on appeal, we find he waived this issue. See
Lord, 719 A.2d at 309 (holding that if an appellant is directed to file a concise
statement of matters to be raised on appeal pursuant to Pa.R.A.P. 1925(b),
any issues not raised in that statement are waived); see also Pa.R.A.P.
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302(a) (providing that issues not raised in the lower court are waived and
cannot be raised for the first time on appeal).5
In his final issue, Bennett challenges the ineffectiveness of his plea
counsel. However, litigation of ineffectiveness claims is not generally a proper
component of a defendant’s direct appeal, and is presumptively deferred for
collateral attack under the Post Conviction Relief Act. See Commonwealth
v. Holmes, 79 A.3d 562, 578 (Pa. 2013) (establishing a deferral rule for
ineffectiveness claims litigated after its decision in Commonwealth v. Grant,
813 A.2d 726 (Pa. 2002)). While the Pennsylvania Supreme Court has
recognized limited exceptions to the rule that ineffectiveness claims should be
deferred until collateral review, Bennett has not argued that his
ineffectiveness claim falls within any of these exceptions to the rule that such
a claim should be deferred until collateral review. See Commonwealth v.
Arrington, 86 A.3d 831, 856-57 (Pa. 2014); see also Commonwealth v.
Delgros, 183 A.3d 352, 361 (Pa. 2018). For this reason, we decline to
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5 Even if we did not find waiver, we would have concluded that Bennett’s
second issue lacks merit. The record demonstrates that Bennett was facing
two separate indecent assault charges, including a charge of aggravated
indecent assault of an unconscious victim, which is a second-degree felony
subject to a twenty-five year registration period and classification as a Tier 2
sex offender. Bennett specifically negotiated a deal to plead to the lesser
offense of simple assault so that he would not have to register for twenty-five
years or be classified as a Tier 2 sex offender. See N.T., 11/28/18, at 52-53.
To now argue there was no factual basis for the lesser charge of simple assault
is a flagrant attempt to play “fast and loose” with the guilty plea process. See
Commonwealth v. Cole, 564 A.2d 203, 206 (Pa. Super. 1989).
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address the merits of Bennett’s ineffectiveness claim, without prejudice for
him to raise the claim on collateral review.6
Application for Continuance denied. Judgment of sentence
affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/17/20
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6 Given our disposition, Bennett’s application for a continuance and/or oral
argument is denied as moot.
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