Com. v. Leese, D. ( 2021 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT
OF PENNSYLVANIA
Appellee
v.
DUSTIN MICHAEL LEESE
Appellant No. 1109 MDA 2020
Appeal from the Judgment of Sentence entered July 20, 2020
In the Court of Common Pleas of York County
Criminal Division at No: CP-67-CR-0002418-2018
BEFORE: STABILE, J., KUNSELMAN, J., and STEVENS, P.J.E.*
MEMORANDUM BY STABILE, J.: FILED MAY 12, 2021
Appellant, Dustin Michael Leese, appeals from the judgment of sentence
imposed in the Court of Common Pleas of York County on July 20, 2020,
following denial of his motion to withdraw the Alford1 plea he entered in
relation to a charge of strangulation. 18 Pa.C.S.A. § 2718(a)(1). Appellant
contends the trial court abused its discretion by denying his motion to
withdraw the plea, and further contends his trial counsel was ineffective.
Following review, we affirm.
As the trial court explained:
On March 8, 2018, Officer Shaun Goodman of the Northeastern
Regional Police Department received a call from Lorraine Lewis,
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1 North Carolina v. Alford, 400 U.S. 25 (1970). “[A] person entering an
Alford plea claims innocence, but consents to the imposition of a prison
sentence.” Commonwealth v. Pasture, 107 A.3d 21, 23 n. 1 (Pa. 2014).
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who reported that her daughter, Kristina Lewis, was choked and
raped by her boyfriend. After a video recorded interview with the
victim, the details of which are unsettling and not germane to the
issues on appeal, Appellant was charged with Strangulation.
Trial Court Opinion (“T.C.O”), 10/23/20, at 1-2 (footnotes omitted).2
For reasons not important to the issues before us, the case proceeded
slowly, with several continuances granted. The case was finally scheduled for
trial on January 13, 2020. Prior to that time, the Commonwealth amended
the information, adding charges of rape (forcible compulsion), involuntary
deviate sexual intercourse (“IDSI”) (forcible compulsion), criminal attempt—
IDSI, and sexual assault.3
The parties appeared for trial on January 13, 2020. As the trial court
explained:
Both parties indicated they were ready to proceed, and
prospective jurors were assembled. Prior to voir dire, Appellant
entered an Alford plea to Count 1 – Strangulation. After a written
and oral plea colloquy, the court found Appellant’s plea to be
knowingly and voluntarily entered, and accepted the same.
Sentencing was scheduled for March 23, 2020 to allow time for a
presentence investigation.
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2For context, we note that while it appears Appellant and Kristina Lewis were
neither married nor living together at the time of the incident, they had two
young children together.
3 18 Pa.C.S.A. §§ 3121(a)(1); 3123(a)(1); 901(a) and 3123(a)(1); and
3124.1, respectively. Although the docket does not reflect the filing of a
motion to amend the information, the record does memorialize the agreement
between counsel that the Commonwealth would move to amend the criminal
information to add additional charges. Motion for Continuance, 10/30/18, at
¶ 3. A subsequent motion for continuance does list the additional charges.
Motion for Continuance, 10/25/19, at ¶ 1.
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T.C.O., 10/23/20, at 2 (footnotes omitted).
Sentencing was continued to June 1, 2020, pursuant to a Judicial
Emergency stemming from the COVID-19 pandemic. On May 28, Appellant
filed a counseled motion to withdraw his Alford plea and expressed his
interest in proceeding to trial, asserting simply “that he is innocent of all
charges [and] that undersigned counsel was ineffective.” Motion to Withdraw
Plea, 5/28/20, at ¶ 4. The sentencing hearing was continued to June 30,
2020, so the Commonwealth could respond to the motion. On June 29, 2020,
Appellant’s counsel filed a motion to withdraw as counsel. The court granted
counsel’s motion and continued the hearing on Appellant’s motion to withdraw
his plea to July 20, 2020.
At the July 20 hearing, “Appellant stated the alleged events ‘didn’t
happen,’ and entering a plea instead of proceeding with the jury trial was
Appellant’s only option because trial counsel failed to ‘bring evidence’ and call
witnesses.” T.C.O., 10/23/20, at 3 (citing Notes of Testimony (“N.T.”),
7/20/20). The court denied the motion, noting that Appellant “has not laid
out a proper foundation for his motion to withdraw a guilty plea. He simply
asserts he is not guilty. Under the rules of criminal procedure, simply
asserting that he is not guilty is not sufficient to justify withdrawing [a] guilty
plea.” N.T., 7/20/20, at 8-9. The court proceeded to sentence Appellant to a
term in county prison of one year less one day to two years less two days,
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followed by a five-year period of probation, with credit for time served.4 The
court deferred sentencing so Appellant could apply for work release and
continue his efforts to obtain representation through the Public Defender’s
Office.
On August 18, 2020, Appellant timely filed a counseled notice of appeal.
Although the notice purports to appeal the order denying Appellant’s motion
to withdraw his guilty plea, the appeal is properly taken from his judgment of
sentence. See Commonwealth v. Dreves, 839 A.2d 1122, 1125 n.1 (Pa.
Super. 2003) (en banc). We have corrected the caption accordingly.
Appellant asks us to consider two issues on appeal:
A. Whether the trial court abused its discretion when it denied []
Appellant’s Motion to Withdraw his plea?
B. Whether [] Appellant’s trial counsel was ineffective for, among
other things, failing to timely file and properly present his
Motion to Withdraw his plea and whether this ineffectiveness
provides fair and just reasons supporting the Motion to
Withdraw the Plea?
Appellant’s Brief at 6.
Appellant filed his motion to withdraw his guilty plea prior to sentencing.
“We review a trial court’s ruling on a pre-sentence motion to withdraw
a guilty plea for an abuse of discretion.” Commonwealth v. Islas, 156 A.3d
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4 Appellant was free on bond after his arrest. However, his bond was revoked
after he was charged with simple assault and harassment stemming from an
incident with one of his children. He subsequently served approximately four
months in prison for which he was given credit at sentencing.
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1185, 1187 (Pa. Super. 2017) (citing Commonwealth v. Elia, 83 A.3d 254,
261 (Pa. Super. 2013)). A pre-sentence withdrawal of a guilty plea is
governed by Pennsylvania Rule of Criminal Procedure 591(A), which provides:
At any time before the imposition of sentence, the court may, in
its discretion, permit, upon motion of the defendant, or direct, sua
sponte, the withdrawal of a plea of guilty or nolo contendere and
the substitution of a plea of not guilty.
Pa.R.Crim.P. 591(A). “When a trial court comes to a conclusion through the
exercise of its discretion, there is a heavy burden on the appellant to show
that this discretion has been abused.” Commonwealth v. Norton, 201 A.3d
112, 120 (Pa. 2019) (brackets omitted) (quoting Commonwealth v.
Eichinger, 915 A.2d 1122, 1140 (Pa. 2007)). “An abuse of discretion will not
be found based on a mere error of judgment, but rather exists where the trial
court has reached a conclusion which overrides or misapplies the law, or where
the judgment exercised is manifestly unreasonable, or the result of partiality,
prejudice, bias or ill-will.” Norton, 201 A.3d at 120 (brackets omitted)
(quoting Eichinger, 915 A.2d at 1140). Absent an abuse of that discretion,
an appellate court should not disturb a trial court’s ruling. Id.
The official comment to Rule 591 provides that, “after the attorney for
the Commonwealth has had an opportunity to respond, a request to withdraw
a plea made before sentencing should be liberally allowed.” Id. at 126
(quoting Pa.R.Crim.P. 591(A), cmt.). However, a defendant does not have an
absolute right to withdraw a plea. As our Supreme Court clarified in
Commonwealth v. Carrasquillo, 115 A.3d 1284 (Pa. 2015), “a bare
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assertion of innocence is not, in and of itself, a sufficient reason to require a
court to grant” a pre-sentence motion to withdraw. Id. at 1285.
In Norton, the Court recognized that the “Carrasquillo Court
overruled a relatively long line of precedent which, understandably but
mistakenly, required trial courts to grant presentence motions to withdraw
guilty pleas based upon defendants’ bare assertions of innocence,” holding
instead that “when a defendant files a presentence motion to withdraw a guilty
plea based upon a claim of innocence, the ‘innocence claim must be at least
plausible to demonstrate, in and of itself, a fair and just reason for presentence
withdrawal of a plea.’” Norton, 201 A.3d at 120 (quoting Carrasquillo, 115
A.3d at 1292). “[T]he 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.” Id. at 120-21 (quoting Carrasquillo, 115 A.3d at
1292). While the Carrasquillo Court recognized that the “policy of liberality
remains extant,” that policy “has its limits, consistent with the affordance of
a degree of discretion to the common pleas courts.” Id. at 121 (quoting
Carrasquillo, 115 A.3d at 1292). “Thus, the Carrasquillo Court clearly
established that trial courts have the discretion to assess the plausibility of
claims of innocence.” Id.
When considering the motion to withdraw a guilty plea, “both the timing
and the nature of the innocence claim, along with the relationship of that claim
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to the strength of the government’s evidence, are relevant.” Id. As the
Supreme Court noted in Carrasquillo, if the defendant provides a fair and
just reason for wishing to withdraw his or her plea, the trial court should grant
it unless it would substantially prejudice the Commonwealth. Carrasquillo,
115 A.3d at 1287. “‘[P]rejudice,’ in the withdrawal of a guilty plea context,
requires a showing that due to events occurring after the plea was entered,
the Commonwealth is placed in a worse position than it would have been had
trial taken place as scheduled.” Commonwealth v. Blango, 150 A.3d 45,
51 (Pa. Super. 2016) (citation omitted). Importantly, the defendant may not
directly contradict statements made under oath at the time of the plea, such
as that he was entering into the plea voluntarily. See, e.g., Commonwealth
v. Pier, 182 A.3d 476, 480 (Pa. Super. 2018).
As we review the trial court’s exercise of discretion in the instant case,
we are cognizant that the trial court’s findings of fact and credibility
determinations are binding on this Court, if they find support in the record.
See Commonwealth v. Myers, 722 A.2d 649, 652 (Pa. 1998). And, again,
when a trial court exercises its discretion in denying a presentence motion to
withdraw a guilty plea, an appellant bears “a heavy burden . . . to show that
this discretion has been abused.” Norton, 201 A.3d at 120 (citation omitted).
It is important to keep in mind that Appellant is not seeking to withdraw
a “typical” guilty plea. Rather he seeks to withdraw an Alford plea. As our
Supreme Court noted in Pasture:
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In Alford, the U.S. Supreme Court explained that most guilty
pleas consist of an express admission of guilt and the plea of nolo
contendere is regarded as a tacit admission of guilt. When a
criminal defendant is unable or unwilling to admit to participating
in acts constituting a crime, but the record contains strong
evidence of guilt, the defendant may conclude that a guilty plea is
in his or her best interests. Alford, 400 U.S. at 37, 91 S.Ct. at
167. Thus, a person entering an Alford plea claims innocence,
but consents to the imposition of a prison sentence.
Pasture, 107 A.3d at 23 n. 1. As this Court observed in Commonwealth v.
Snavely, 982 A.2d 1244 (Pa. Super. 2009):
An Alford plea is a nolo contendere plea in which the defendant
does not admit guilt but waives trial and voluntarily, knowingly
and understandingly consents to the imposition of punishment by
the trial court. [Alford, 400 U.S.] at 37. Provided the record
reflects a factual basis for guilt, the trial court may accept the plea
notwithstanding the defendant's protestation of innocence. Id.Typically, as in the present case, a defendant is exchanging his
plea for a reduced sentence or reduced charges.
Id. at 1244 n. 1 (citation omitted).
In his motion to withdraw, Appellant simply asserts “that he is innocent
of all charges.” Motion to Withdraw Plea, 5/28/20, at ¶ 4. That is no different
from the stance he took on January 13, 2020, when he accepted an Alford
plea rather than proceed with his trial. Facing possible consecutive sentences
totaling “more than 10 to 20 years,” in the trial court’s estimation, see N.T.,
1/13/20, at 2, he entered his Alford plea, agreeing with the trial court’s
assessment that “while you’re not admitting guilt[], you’re agreeing that you
got a good offer and that offer is enough to allow you to enter this plea[.]”
Id. at 4-5. Appellant has failed to make—as required under Norton—any
“colorable demonstration, under the circumstances, such that permitting
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withdrawal of the plea would promote fairness and justice.” Norton, 201 A.3d
at 120-21.
The trial court also properly considered the potential prejudice to the
Commonwealth that would result if Appellant were permitted to withdraw his
plea. The trial court determined:
Per the Commonwealth’s Response to Defendant’s Motion to
Withdraw Guilty Plea, the victim was ready and willing to proceed,
and available and on call to testify in Appellant’s jury trial. After
Appellant’s request to withdraw his plea, the victim became
unwilling to cooperate further and informed the Commonwealth
she felt the process was taking too long and family members were
pressuring her to not move forward any further. For those
reasons, the Commonwealth stated that a withdrawal of
Appellant’s plea would cause a substantial hardship to the
Commonwealth.
T.C.O., 10/23/20, at 10.
Based on our review of the record, we discern no abuse of discretion on
the part of the trial court in denying Appellant’s motion to withdraw his Alford
plea. Therefore, Appellant’s first issue fails.
Appellant next argues trial counsel ineffectiveness. As the trial court
recognized, in Commonwealth v. Grant, 813 A.2d 726, 738 (Pa. 2002), our
Supreme Court “adopted a general rule that claims of ineffectiveness should
not be considered on direct appeal, but rather should be deferred to collateral
proceedings.” T.C.O., 10/23/20, at 13 (citing Grant, 813 A.2d at 738). While
the Supreme Court has since recognized certain exceptions to the general
rule, no exception applies in the instant case. To his credit, Appellant does
not attempt to assert any exception and “does not necessarily disagree” with
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the trial court’s conclusion that any ineffectiveness argument is premature.
Appellant’s Brief at 37. Instead, Appellant has presented an ineffectiveness
argument and asks this Court “to view these claims as support for his
contention that he offered fair and just reasons to withdraw his plea.” Id.
Recognizing that Appellant sought to withdraw his plea on the bare assertion
he was innocent of all charges, we decline to view his premature
ineffectiveness claims in that light.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 05/12/2021
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