Com. v. Schoffler, T. ( 2016 )

J-S49022-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
TROY LOWELL SCHOFFLER
Appellant No. 2611 EDA 2015
Appeal from the Judgment of Sentence July 7, 2015
In the Court of Common Pleas of Lehigh County
Criminal Division at No(s): CP-39-CR-0003521-2013
BEFORE: PANELLA, OLSON, JJ. and STEVENS, P.J.E.*
MEMORANDUM BY OLSON, J.: FILED AUGUST 29, 2016
Appellant, Troy Lowell Schoffler, appeals from the judgment of
sentence entered on July 7, 2015, following his guilty pleas to acquisition of
a controlled substance by misrepresentation, fraud or forgery and criminal
conspiracy.1 Upon review, we affirm.
The trial court summarized the facts and procedural history of this
case as follows:
The charges stemmed from [A]ppellant’s creati[on] of
fraudulent prescriptions between January 1, 2008[] and
December 17, 2009. He gave these [prescriptions] to
several co-defendants who used them to illegally obtain
Oxycontin, Xanax, Methadone and Adderall from pharmacies
in various Pennsylvania counties. Some of the controlled
substances obtained with the fraudulent prescriptions were
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1
35 P.S. § 780-113(a)(12) and 18 Pa.C.S.A. § 903, respectively.
*Former Justice specially assigned to the Superior Court.
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given by the co-defendants to [A]ppellant for his own use
and the rest were kept or sold by the co-defendants.
At [a hearing on] February 6, 2015,[] [A]ppellant and the
Commonwealth entered a plea bargain which was accepted
by the [trial] court. Under the plea bargain, [A]ppellant
agreed to enter guilty pleas to [the aforementioned crimes].
The sentences could not exceed the low end of the standard
range of the sentencing guidelines and they had to be run
concurrently. The Commonwealth agreed to withdraw all of
the remaining counts in the [criminal] information. A major
consideration in the Commonwealth’s [agreement of]
entering this plea bargain[,] and the [trial] court’s
acceptance of it[,] was [A]ppellant’s cooperation as a trial
witness in the prosecution of Doctor David Daley in Lehigh
County[.]
On July 2, 2015, the [trial] court received a letter from
[A]ppellant stating that he wished to withdraw his guilty
pleas. [The trial court] treated this letter as a formal
motion. On July 7, 2015, [the trial court] conducted a
hearing. In support of the motion, [A]ppellant claimed he
was innocent of the charges. In light of [A]ppellant’s
testimony in the Daley case and his admissions with his
guilty pleas, [the trial court] found his claim of innocence to
be false. [The trial court] denied [A]ppellant’s motion to
withdraw his guilty pleas and proceeded to sentencing.
[The trial court sentenced Appellant to three to eight years
of imprisonment on each charge.] The sentences were
within the mitigated range of the [sentencing] guidelines.
[The trial court] ordered that the two sentences run
concurrently so that [A]ppellant’s aggregate sentence was
state confinement for not less than three years to not more
than eight years [of incarceration]. The sentences
conformed to the plea bargain.
On July 15, 2015, [A]ppellant filed a post-sentence motion
to modify his sentences which [the trial court] denied by
order filed on July 22, 2015. In the July 22 order, [the trial
court] also granted a motion filed by [A]ppellant’s trial
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counsel [] to withdraw from his representation of
[A]ppellant.
Trial Court Opinion, 11/30/15, at 2-3. This timely appeal resulted.2
Appellant raises one claim for appellate review:
1. Whether the [trial] court erred when it denied
[Appellant’s] pre-sentence motion to withdraw his guilty
plea?
Appellant’s Brief at 6.
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2
On August 4, 2015, Appellant filed a pro se notice of appeal. Appellant
requested representation and, after a showing of indigence, the trial court
appointed the Lehigh Public Defender to represent Appellant on appeal. In
October 2015, the Lehigh Public Defender filed a petition to withdraw
because it had a conflict of interest arising from its representation of one of
Appellant’s co-defendants. On October 15, 2015, the trial court allowed the
Lehigh Public Defender to withdraw and appointed Robert E. Sletvold,
Esquire to represent Appellant. On October 19, 2015, the trial court ordered
Attorney Sletvold to file a concise statement of errors complained of on
appeal pursuant to Pa.R.A.P. 1925(b). Counsel did not file a timely Rule
1925(b) statement. Thereafter, the trial court issued an opinion pursuant to
Pa.R.A.P. 1925(a) on November 30, 2015. Initially, the trial court found
Appellant waived all issues for failing to comply with Rule 1925. The trial
court then recognized that a defense attorney's failure to comply with Rule
1925 may constitute per se ineffectiveness warranting a remand for further
proceedings. Accordingly, the trial court’s opinion went on “to state [its]
reason for denying [A]ppellant’s motion to withdraw his guilty pleas.” Trial
Court Opinion, 11/30/15, at 4. On December 9, 2015, Attorney Sletvold
filed an application for an extension of time and a corresponding Rule
1925(b) statement contending “[t]he trial court erred when it denied
[Appellant’s] pre-sentence motion to withdraw his guilty plea.” Rule 1925(b)
Statement, 12/9/15, at 1 (unpaginated). “[I]f there has been an untimely
filing [of a Rule 1925(b) statement], this Court may decide the appeal on the
merits if the trial court had adequate opportunity to prepare an opinion
addressing the issues being raised on appeal.” See Commonwealth v.
Burton, 973 A.2d 428, 433 (Pa. Super. 2009) (en banc), citing Pa.R.A.P.
1925(c)(3). Here, there is a Rule 1925(a) opinion addressing the merits of
the untimely Rule 1925(b) statement, thus we will decide this appeal on its
merits.
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Appellant argues that the trial court abused its discretion in denying
his request to withdraw his guilty pleas prior to sentencing. Id. at 10-12.
He claims that although there is no absolute right to withdraw a guilty plea,
a request to do so before sentencing should be liberally allowed for any fair
and just reason. Id. at 10. Appellant maintains that “[h]e asserted his
innocence, he described being pressured by a previous prosecutor into
taking responsibility for charges for someone else and asking his attorney
many times to withdraw [the plea].” Id. at 11. Furthermore, Appellant
asserts that the Commonwealth would suffer no prejudice if the trial court
granted his request. Id.
The standard of review that we employ in challenges to a trial court's
decision regarding a presentence motion to withdraw a guilty plea is
well-settled:
A trial court's decision regarding whether to permit a guilty
plea to be withdrawn should not be upset absent an abuse
of discretion. An abuse of discretion exists when a
defendant shows any fair and just reasons for withdrawing
his plea absent substantial prejudice to the Commonwealth.
In its discretion, a trial court may grant a motion for the
withdrawal of a guilty plea at any time before the imposition
of sentence. Although there is no absolute right to withdraw
a guilty plea, properly received by the trial court, it is clear
that a request made before sentencing should be liberally
allowed. […] The trial courts in exercising their discretion
must recognize that before judgment, the courts should
show solicitude for a defendant who wishes to undo a
waiver of all constitutional rights that surround the right to
trial—perhaps the most devastating waiver possible under
our constitution. […O]ur Supreme Court [has] instructed
that in determining whether to grant a presentence motion
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for withdrawal of a guilty plea, the test to be applied by the
trial courts is fairness and justice.
Commonwealth v. Elia, 83 A.3d 254, 261–262 (Pa. Super. 2013) (internal
quotations and citations omitted).
Our Supreme Court has determined, however, that a mere assertion of
innocence, by itself, will not suffice to withdraw a guilty plea concluding,
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.
Commonwealth v. Carrasquillo, 115 A.3d 1284, 1292 (Pa. 2015).
In this case, the trial court determined that Appellant “merely asserted
his innocence without offering any facts or arguments to support this claim.”
Trial Court Opinion, 11/30/15, at 4. In addition, the trial court found
“Appellant’s claim of innocence was undercut when he testified during Doctor
Daley’s trial[.]” Id. More specifically, the trial court noted that at Dr.
Daley’s trial, over which the trial court also preceded, Appellant “under
oath[,] told the jury, [] told everybody in the courtroom, [] told [the trial
court] how [Appellant was] involved up to [his] ears in forging these
prescriptions and in this whole scheme.” N.T., 7/7/15, at 10. Thus, the trial
court ultimately determined Appellant offered no plausible reason to support
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his assertion of innocence and denied Appellant’s motion to withdraw his
guilty plea. Id. at 5.
Upon review of the record, we agree and discern no abuse of
discretion in denying Appellant’s motion to withdraw his guilty pleas.
Appellant’s assertion of innocence was simply not plausible in light of his
culpable admissions when testifying against a co-defendant. Under those
circumstances, Appellant failed to make a colorable demonstration that
permitting withdrawal of his plea would promote fairness and justice.
Hence, Appellant was not entitled to relief and his sole appellate issue is
without merit.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/29/2016
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