J-S10011-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
TROY DILLARD,
Appellant No. 202 EDA 2014
Appeal from the Judgment of Sentence October 18, 2010
in the Court of Common Pleas of Bucks County
Criminal Division at No.: CP-09-CR-0003340-2010
BEFORE: GANTMAN, P.J., STABILE, J., and PLATT, J.*
MEMORANDUM BY PLATT, J.: FILED MARCH 31, 2015
Appellant, Troy Dillard, appeals nunc pro tunc from the judgment of
sentence imposed following his entry of a guilty plea to two counts of
robbery and one count each of robbery of a motor vehicle, theft by unlawful
taking of movable property, receiving stolen property, false imprisonment,
simple assault, burglary, and conspiracy.1 He also entered a plea of nolo
contendere to two counts of attempted kidnapping.2 On appeal, Appellant
challenges the effectiveness of plea counsel. We affirm the judgment of
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
1
18 Pa.C.S.A. §§ 3701(a)(1)(ii) and (iv), 3702(a), 3921(a), 3925(a),
2903(a), 2701(a)(1), 3502(a), and 903(a)(1), respectively.
2
18 Pa.C.S.A. § 901(a).
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sentence and dismiss his ineffective assistance of counsel claims without
prejudice.
The relevant facts and procedural history of this case are as follows.
On October 18, 2010, Appellant entered a guilty plea and nolo contendere
plea to the above-listed offenses. The charges stem from his March 2010
theft of a vehicle from the victim, Claire Forte, during which he and two
other men attacked her and attempted to shove her into the trunk of her
vehicle. On the same date Appellant entered his pleas, October 18, 2010,
the court sentenced him to an aggregate term of not less than sixteen nor
more than thirty-two years’ imprisonment. Appellant did not file post-
sentence motions or a direct appeal.
On September 6, 2011, Appellant filed a pro se petition pursuant to
the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. The
PCRA court appointed counsel, who filed an amended petition on September
12, 2012, claiming, inter alia, that plea counsel was ineffective for failing to
file post-sentence motions and/or a direct appeal. The PCRA court held an
evidentiary hearing on the petition on February 15, 2013. On July 17, 2013,
the court granted the petition in part and ordered reinstatement of
Appellant’s post-sentence and direct appeal rights nunc pro tunc. On July
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29, 2013,3 Appellant filed a motion for reconsideration of sentence, and on
August 2, 2013, he filed a supplemental post-sentence motion. On
December 18, 2013, the court denied the motions following a hearing. This
timely appeal followed.4
Appellant raises the following issues for our review:
1. Whether the lower court erred in holding that plea counsel
was not ineffective when he advised Appellant to enter a guilty
plea without completing a thorough review of the discovery
material, including the forensic evidence therein, he had not
conducted a pre-trial investigation, and he failed to fully inform
Appellant of the evidence contained within discovery?
2. Whether the lower court erred in holding that Appellant
was not permitted to withdraw his guilty plea, which was
unknowingly and involuntarily entered, and was induced by plea
counsel’s misrepresentation about his review of discovery
materials and his failure to convey information about evidence
he either had in his possession or could have obtained with
reasonable diligence[?][5]
____________________________________________
3
The last day of the 10-day period in which to file post-sentence motions,
July 27, 2013, fell on a Saturday. Therefore, Appellant had until that
Monday to file timely post-sentence motions. See 1 Pa.C.S.A. § 1908.
4
Pursuant to the PCRA court’s order, Appellant timely filed a concise
statement of errors complained of on appeal on February 19, 2014. See
Pa.R.A.P. 1925(b). The PCRA court entered an opinion on June 9, 2014.
See Pa.R.A.P. 1925(a).
5
In the summary of the argument and argument sections of his brief,
Appellant discusses this issue only in the context of ineffective assistance of
plea counsel, arguing: “A manifest injustice occurred due to plea counsel’s
stewardship of [Appellant’s] case, which was not within the range of
competency demanded of criminal attorneys. [Appellant] was prejudiced by
plea counsel’s incompetent representation, which resulted in an unknowing,
(Footnote Continued Next Page)
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(Appellant’s Brief, at 4).
Appellant’s issues on appeal challenge the effectiveness of plea
counsel. The Commonwealth argues that Appellant’s issues are not ripe for
review in this direct appeal because “he has only raised and preserved his
claims challenging the voluntariness of his plea in the context of ineffective
assistance of counsel.” (Commonwealth’s Brief, at 10; see also id. at 11-
15). Upon review, we agree with the Commonwealth.
In Commonwealth v. Holmes, 79 A.3d 562 (Pa. 2013), our Supreme
Court reaffirmed the general rule of Commonwealth v. Grant, 813 A.2d
726 (Pa. 2002), that ineffective assistance of counsel claims must await
collateral review. See Holmes, supra at 563. The Holmes Court also
recognized two limited exceptions to the deferral rule, both falling within the
discretion of the trial court. See id. at 563-64. First, the Court held that
trial courts retain discretion, in extraordinary circumstances, to entertain a
discrete claim of trial counsel ineffectiveness if the claim is both apparent
from the record and meritorious. See id. at 563. Second, the Court held
that trial courts also have discretion to entertain prolix claims of
ineffectiveness if there is good cause shown and the unitary review
permitted is preceded by a knowing and express waiver by the defendant of
the right to seek review under the PCRA. See id. at 564.
_______________________
(Footnote Continued)
involuntary and unintelligent guilty plea.” (Appellant’s Brief, at 39; see also
id. at 15-16, 37-39).
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Here, the facts of this case do not fall within the limited exceptions to
the general deferral rule carved out by the Holmes Court. Therefore,
Appellant cannot seek review of his ineffectiveness claims on direct appeal.
Accordingly, we dismiss Appellant’s ineffective assistance of counsel claims
without prejudice, should he decide to include these claims in a timely-filed
PCRA petition. See id. at 563-64; see also Commonwealth v. Stollar, 84
A.3d 635, 652 (Pa. 2014), cert. denied, 134 S.Ct. 1798 (2014) (dismissing,
pursuant to Holmes, appellant’s ineffective assistance of counsel claims
raised on direct appeal without prejudice to pursue them on collateral
review).
Judgment of sentence affirmed. Ineffective assistance of counsel
claims dismissed without prejudice.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/31/2015
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Com. v. Dillard, T.
Combined Opinion