Com. v. Greene, K. ( 2023 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
KEVIN HANEEFAH GREENE :
:
Appellant : No. 531 WDA 2022
Appeal from the Judgment of Sentence Entered December 28, 2021
In the Court of Common Pleas of Cambria County Criminal Division at
No(s): CP-11-CR-0000846-2021
BEFORE: BOWES, J., OLSON, J., and COLINS, J.*
MEMORANDUM BY COLINS, J.: FILED: March 8, 2023
Appellant, Kevin Haneefah Greene, appeals from the judgment of
sentence of 4 to 24 months’ incarceration imposed after he pled guilty to flight
to avoid apprehension.1 For the reasons set forth below, we are compelled to
vacate and remand with instructions to permit Appellant to withdraw his guilty
plea.
Appellant was charged on August 3, 2021 with burglary, flight to avoid
apprehension and other offenses arising out of an August 1, 2021 burglary of
a home and a police chase that ensued. On December 14, 2021, Appellant
entered a negotiated plea of guilty to flight to avoid apprehension under a plea
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S. § 5126(a).
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agreement that provided that the Commonwealth would nolle pros all of the
other charges and recommend a sentence in the mitigated range with
immediate parole. N.T. Guilty Plea at 2-4. At this plea hearing, the trial court
questioned Appellant concerning his understanding of his plea and the
voluntariness of his plea, but neither the Commonwealth nor the trial court
elicited the factual basis for the plea or put on the record any evidence
supporting the charge to which Appellant pled guilty. Id. at 2-5. At the plea
hearing, the trial court scheduled Appellant’s sentencing for December 28,
2021. Id. at 4.
On December 21, 2021, before he was sentenced, Appellant filed a
motion to withdraw his guilty plea. On December 28, 2021, the trial court
heard argument and statements from Appellant and his counsel concerning
the motion to withdraw his guilty plea. N.T. Sentencing at 2-9. Appellant
stated that he wished to withdraw his guilty plea because
[O]n the day when I [pled guilty] I was going through symptoms
of COVID-19 and I was on quarantine restrictions for having
COVID. And at the time I was on medication. And then also on top
of that, when my lawyer explained it to me, for now, he’s saying
to the lowest grade of felony offense, but at the time he only said
the lowest grade offense, which would be a misdemeanor 3. So
that’s where misunderstanding, miscommunication became
involved.
So that’s why I just wanted to take the plea back and I don’t want
that plea because I feel for one, it’s an unintelligent plea for me
to take based on me not even committing this crime, when it was
explained automatic parole, I thought that meant that when I get
sentenced, that I was able to go home and automatically be back
on parole.
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Then it was confusing because, it’s like all right you got transferred
back to New Jersey [for a parole violation in that state]. And like,
it was just confusing to me. It was confusing to me and, honestly,
I would not have volunteered to take that plea if I had a better
understanding and knew exactly like what I was getting myself
into.
Id. at 6-7. Appellant further stated: “I did not commit this crime and I feel
like you’re forcing me to take this plea when I just told you that I do not want
this plea.” Id. at 9. In addition, Appellant’s counsel stated that Appellant was
contending that the GPS evidence that the Commonwealth contended placed
him at the scene was inaccurate and that this created a factual issue and
stated that Appellant had not received the Commonwealth’s video evidence at
the time that he pled guilty. Id. at 5-6. The Commonwealth did not introduce
or proffer any evidence of Appellant’s guilt in response to the motion to
withdraw the plea or argue against the motion. Id. at 2-9.
The trial court denied Appellant’s motion to withdraw his guilty plea.
N.T. Sentencing at 7-8; Trial Court Order, 12/28/21. The trial court then
sentenced Appellant in accordance with the plea agreement to 4 to 24 months
with credit for time served and immediate parole. N.T. Sentencing at 9-10.
Appellant filed a timely post-sentence motion asserting that the denial of his
pre-sentence motion to withdraw his guilty plea was error and making a post
sentence motion to withdraw his plea. The trial court denied Appellant’s post
sentence motion on April 11, 2022. Trial Court Order, 4/11/22. This timely
appeal followed.
Appellant presents the following two issues for our review:
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1. Whether the Court abused its discretion in denying the
Appellant’s Motion to Withdraw Guilty Plea prior to sentencing
by Order dated December 28, 2021?
2. Whether the Court abused its discretion in denying the
Appellant’s Post-Sentence Motion to Withdraw Guilty Plea by
Order dated April 11, 2022?
Appellant’s Brief at 4. We review the denial of both pre-sentence and post-
sentence motions to withdraw a guilty plea for abuse of discretion.
Commonwealth v. Hart, 174 A.3d 660, 664 (Pa. Super. 2017);
Commonwealth v. Baez, 169 A.3d 35, 39 (Pa. Super. 2017). We conclude
that the trial court abused its discretion in denying Appellant’s pre-sentence
motion to withdraw his guilty plea and therefore do not address Appellant’s
second issue.
Where a defendant requests to withdraw his guilty plea before he is
sentenced, the trial court has discretion to grant the withdrawal and that
discretion is to be liberally exercised to permit withdrawal of the plea if two
conditions are present: 1) the defendant demonstrates a fair and just reason
for withdrawing the plea and 2) it is not shown that withdrawal of the plea
would cause substantial prejudice to the Commonwealth. Commonwealth
v. Carrasquillo, 115 A.3d 1284, 1291-92 (Pa. 2015); Baez, 169 A.3d at 39;
Commonwealth v. Islas, 156 A.3d 1185, 1188 (Pa. Super. 2017); see also
Pa.R.Crim.P. 591(A) (“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 or nolo contendere and the substitution of a plea of not
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guilty”). Because there was no showing in this case that withdrawal of
Appellant’s guilty plea would have prejudiced the Commonwealth, the sole
issue with respect to Appellant’s pre-sentence motion to withdraw his guilty
plea is whether Appellant satisfied the requirement that he demonstrate a fair
and just reason for withdrawing the plea.
Appellant argues that his assertions of innocence, duress, and
misunderstanding concerning his plea demonstrated a fair and just reason for
withdrawing his guilty plea. Appellant’s claims of duress and
misunderstanding of his plea cannot provide a fair and just reason to allow
withdrawal of the plea because they are contradicted by the record.
At the plea hearing and in the written colloquy that Appellant signed
before pleading guilty, Appellant represented that he was pleading guilty
voluntarily and of his own free will, that he had no physical or mental illness
that affected his ability to understand or affected the voluntariness of his plea,
and that he was not taking any medication that affected his thinking or his
free will. N.T. Guilty Plea at 4; Written Guilty Plea Colloquy at 3, 9. In
addition, the trial court found from its observations of Appellant at the plea
hearing that Appellant did not appear distressed. Trial Court Opinion at 3, 5.
It was made clear to Appellant, at both the plea hearing and in his
written colloquy, that he was pleading guilty to a third-degree felony, not a
misdemeanor, and Appellant acknowledged that he understood that he was
pleading guilty to a third-degree felony. N.T. Guilty Plea at 2; Written Guilty
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Plea Colloquy at 1. The record is also clear that Appellant was advised and
acknowledged that he understood that he was subject to possible
incarceration in New Jersey as a result of his guilty plea and that immediate
parole from the offense to which he was pleading would not mean immediate
freedom. N.T. Guilty Plea at 3-4. A defendant is bound by the statements
that he made during his plea colloquy and cannot assert challenges to his plea
that contradict his statements when he entered the plea. Commonwealth
v. Jamison, 284 A.3d 501, 506 (Pa. Super. 2022); Commonwealth v.
Jabbie, 200 A.3d 500, 506-07 (Pa. Super. 2018); Commonwealth v.
Muhammad, 794 A.2d 378, 384 (Pa. Super. 2002). The trial court therefore
did not abuse its discretion in rejecting these grounds for withdrawal of
Appellant’s plea.
In contrast, Appellant’s claim of innocence was not contradicted by the
record and was a sufficient ground for withdrawal of his plea. A plausible
claim of innocence, supported by some facts or explanation, constitutes a fair
and just reason for pre-sentence withdrawal of a guilty plea.
Commonwealth v. Garcia, 280 A.3d 1019, 1023, 1025-27 (Pa. Super.
2022); Islas, 156 A.3d at 1191-92. A bare assertion by the defendant that
he is innocent without any indication of any supporting basis for that claim,
however, does not automatically satisfy the requirement that the defendant
show a fair and just reason for withdrawal of the plea. Commonwealth v.
Norton, 201 A.3d 112, 120-23 (Pa. 2019); Commonwealth v. Hvizda, 116
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A.3d 1103, 1107 (Pa. 2015); Carrasquillo, 115 A.3d at 1292-93; Baez, 169
A.3d at 39-41.
In determining whether the defendant’s claim of innocence is sufficiently
plausible to constitute a fair and just reason for withdrawal of his plea, the
strength of the Commonwealth’s case in relation to the nature of the
defendant’s claim of innocence should be considered. Garcia, 280 A.3d at
1027; Islas, 156 A.3d at 1190. Whether the plea was entered well in advance
of trial or on the eve of trial, whether the defendant knew the evidence against
him when he entered the plea, and whether the defendant promptly sought
to withdraw the plea are also factors that bear on whether the denial of a pre-
sentence motion to withdraw a plea is an abuse of discretion. Norton, 201
A.3d at 121-22; Garcia, 280 A.3d at 1027; Islas, 156 A.3d at 1190-91.
[T]he determination of whether there is a “fair and just reason” to
permit the pre-sentence withdrawal request should be based on
the totality of the circumstances attendant at the time of the
request, including the timing of the assertion of innocence, the
statements made by the defendant in association with his
declaration of innocence, and the plausibility of the defendant’s
statements in light of the evidentiary proffer made by the
Commonwealth at the plea hearing.
Commonwealth v. Johnson-Daniels, 167 A.3d 17, 24 (Pa. Super. 2017).
The trial court’s discretion in ruling on a pre-sentence motion to withdraw a
guilty plea is not unfettered and must be consistent with the requirement that
such motions be granted liberally. Norton, 201 A.3d at 121. In addition, the
court’s credibility determinations on which it bases its decision must be
supported by the record. Id.
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Here, the claims of innocence that Appellant made at the December 28,
2021 hearing were statements that “it’s an unintelligent plea for me to take
based on me not even committing this crime” and that “I did not commit this
crime.” N.T. Sentencing at 6, 9. Appellant did not refer to facts or evidence
in the case that explained a basis for a claim that he did not commit the crime
of flight to avoid apprehension, although he and his counsel did state that he
was contesting what certain evidence showed. Id. at 5-9. There was,
however, no evidence or proffer of evidence of guilt whatsoever weighing
against Appellant’s assertion of innocence. At the plea hearing, neither the
trial court nor the Commonwealth set forth any factual basis for Appellant’s
plea and the Commonwealth did not introduce or proffer any evidence that
Appellant committed the offense of flight to avoid apprehension or any other
crime. N.T. Guilty Plea at 2-5. In addition, the Commonwealth neither
introduced nor proffered any evidence of Appellant’s guilt in response to the
motion to withdraw the plea. N.T. Sentencing at 2-9.
Moreover, there was nothing in the timing of the plea or motion to
withdraw the plea that could weigh against allowing withdrawal of the plea.
Appellant entered his plea on the date of a pretrial conference less than five
months after his arrest, not at or on the eve of trial, and he had not received
all of the Commonwealth’s discovery at the time of his plea. Trial Court Order,
11/17/21 (scheduling motion for omnibus pre-trial relief and pre-trial
conference for December 14, 2021); N.T. Sentencing at 5-6. Appellant filed
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his motion to withdraw his plea only one week after entering the plea and a
week before sentencing.
These facts stand in sharp contrast to the cases where this Court and
our Supreme Court have held that a bare claim of innocence was insufficient
to require the trial court to permit pre-sentence withdrawal of a plea. In those
cases, the record showed that there was substantial evidence of the
defendant’s guilt, that there were factors concerning the timing of the plea or
the motion to withdraw that negated a fair and just reason for allowing the
withdrawal, or both. Norton, 201 A.3d at 123 (defendant’s bare assertion of
innocence was not sufficient to require the trial court to permit withdrawal of
the plea because the plea was entered on the day of trial, defendant delayed
in seeking to withdraw the plea, and there was strong prosecution evidence
of guilt, including an admission of sexual abuse by the defendant) (Saylor,
C.J. and Todd and Dougherty, JJ., concurring); Hvizda, 116 A.3d at 1104-05,
1107 (bare assertion of innocence was insufficient to require trial court to
grant withdrawal of plea where Commonwealth introduced in evidence
defendant’s prison phone call statements admitting that he committed the
crime in response to motion to withdraw plea); Carrasquillo, 115 A.3d at
1285-86, 1292-93 (bare assertion of innocence was insufficient to require trial
court to grant withdrawal of plea given evidence of guilt proffered at plea
hearing, which included statements of defendant, identification by the victims,
and DNA evidence, and the fact that defendant did not seek to withdraw the
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plea until his sentencing over three months later); Jamison, 284 A.3d at 504-
05 (plea was entered at trial after Commonwealth rested and
Commonwealth’s evidence negated defendant’s bare claim of innocence);
Commonwealth v. Williams, 198 A.3d 1181, 1186 (Pa. Super. 2018)
(record showed that defendant’s DNA was found in rape kit samples taken
from victim); Commonwealth v. Davis, 191 A.3d 883, 885, 890-91 (Pa.
Super. 2018) (plea was entered on the day of trial, motion to withdraw plea
was made over two years later, and Commonwealth had made extensive
evidentiary proffer showing defendant’s guilt); Baez, 169 A.3d at 37-38, 40-
41 (plea was entered at trial after multiple Commonwealth witnesses had
testified and Commonwealth’s evidence negated defendant’s claim of
innocence); Johnson-Daniels, 167 A.3d at 24-25 (plea was entered on the
day of trial, motion to withdraw plea was made during sentencing seven weeks
later after hearing Commonwealth’s sentencing recommendation, and
Commonwealth had made extensive evidentiary proffer showing defendant’s
guilt at plea hearing); Commonwealth v. Blango, 150 A.3d 45, 48 (Pa.
Super. 2016) (defendant had admitted committing the crime in his testimony
at co-defendants’ trial).
The trial court acknowledged that it was required to consider the totality
of the circumstances, including whether there was evidence or a proffer of
evidence of guilt, in determining whether Appellant’s claim of innocence
constituted a fair and just reason for allowing withdrawal of his guilty plea.
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Trial Court Opinion at 8. The trial court concluded that the Appellant’s bare
assertions of innocence were insufficient because “the record reveals that the
Commonwealth is in possession of video and GPS tracking data from an ankle
monitor [Appellant] was wearing as a condition of his supervised release that
placed him in the area of the burglary on August 1, 2021.” Id. at 9. That
cannot support a conclusion that Appellant’s claim of innocence is not plausible
for two reasons. First, evidence that the defendant was in an area where a
burglary was committed does not show that he was guilty of the offense to
which Appellant pled guilty, flight to avoid apprehension, and therefore does
not negate Appellant’s claim of innocence of that charge. Second, and most
importantly, the evidence on which the trial court relied was not in the record
or before the trial court. To the contrary, the trial court’s statements at the
sentencing hearing demonstrate that it had not viewed the Commonwealth’s
video evidence and Appellant in response denied that the video evidence
implicated him in the crime. N.T. Sentencing at 7-8.
Because the trial court’s conclusion that Appellant’s assertion of
innocence was not plausible was based on assumptions not supported by the
record and there was no evidence or proffer of evidence of guilt in the record
or facts concerning the timing of the plea or plea withdrawal that could make
withdrawal of the plea unfair or unjust, the trial court abused its discretion in
denying Appellant’s pre-sentence motion to withdraw his guilty plea.
Accordingly, we vacate Appellant’s judgment of sentence and remand this
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case to the trial court with instructions to grant Appellant’s motion to withdraw
his guilty plea.
Judgment of sentence vacated. Case remanded. Jurisdiction
relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/8/2023
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