Com. v. Moragne-El, B. ( 2017 )

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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. :
:
BRANDON WADE MORAGNE-EL :
:
Appellant : No. 1793 MDA 2016
Appeal from the Judgment of Sentence October 5, 2016
In the Court of Common Pleas of Franklin County
Criminal Division at No(s): CP-28-CR-0002221-2014
BEFORE: BENDER, P.J.E., OTT, J., and STRASSBURGER, J.*
DISSENTING MEMORANDUM BY STRASSBURGER, J.:
FILED OCTOBER 27, 2017
Because the trial court erred in denying Moragne-El’s pre-sentence
motion to withdraw his guilty plea, I respectfully dissent.
When examining whether Moragne-El’s claim of innocence constituted a
fair and just reason to withdraw his plea, both the Majority and the trial court
err in focusing upon Moragne-El’s admissions of guilt at the plea hearing. See
Majority Memorandum, at 10-11 (“Moragne-El offered no support for his claim
of innocence, particularly in light of his comments at the guilty plea hearing.”);
Trial Court Opinion, 10/3/2016, at 4 (determining Moragne-El’s “own words
at time of his plea belie his claims of innocence”).
This Court recently reaffirmed that “a defendant’s participation in a
guilty plea may not be used to negate his later assertion of innocence when
*Retired Senior Judge assigned to the Superior Court.
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seeking to withdraw.” Commonwealth v. Islas, 156 A.3d 1185, 1191 (Pa.
Super. 2017) (citing Commonwealth v. Katonka, 33 A.3d 44, 49 (Pa. Court.
2011) (en banc), abrogated on other grounds, Commonwealth v.
Carrasquillo, 115 A.3d 1284 (Pa. 2015)). “[B]ecause ‘it is necessary for a
criminal defendant to acknowledge his guilt during a guilty plea colloquy prior
to the court's acceptance of a plea, such an incongruity will necessarily be
present in all cases where an assertion of innocence is the basis for
withdrawing a guilty plea.’” Id. (quoting Katonka, 33 A.3d at 49). Using a
defendant’s admissions of guilt against him when he seeks to withdraw his
plea prior to sentencing based on a claim of innocence “would convert the
liberal-allowance standard into a rule of automatic denial.” Id. Thus, when
determining that Moragne-El’s claim of innocence was not plausible, the
Majority and the trial court should not have relied upon the contradiction
between Moragne-El’s acknowledgement of guilt at the plea colloquy and his
later assertion of innocence when seeking to withdraw his plea.
Furthermore, I believe Moragne-El presented a fair and just reason to
withdraw his plea apart from his claim of innocence. When seeking to
withdraw his plea, Moragne-El presented the following alternative grounds for
withdrawal.
Another reason that I’m withdrawing my plea is because to my
knowledge me and my attorney – we didn’t talk about this, but to
my knowledge I was under the assumption that because I’m not
a violent person that I was RRRI eligible. As of last week [the
assistant district attorney], he said something to the extent that
I’m not RRRI eligible because I have a burglary conviction on my
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record. This information is false. I don’t have any burglaries. I
have a fourth degree attempted burglary in Maryland[,] which is
equivalent to F-2 burglary in Pennsylvania[,] which doesn’t
disqualify me from being RRRI eligible. I just wanted to note that
for the record.
N.T., 9/15/2016, at 2-3.
The Majority summarily dismisses this reason without explanation.
Majority Memorandum at 11 (stating Moragne-El’s “concerns regarding his
eligibility for RRRI does not constitute a fair and just reason to withdraw his
plea.”). However, this Court has recognized previously that “the failure to
discuss or raise the issue of RRRI may also be a fair and just reason” to permit
a plea withdrawal. Commonwealth v. Pardo, 435 A.3d 1222, 1224 n.4 (Pa.
Super. 2011).
The only mention of RRRI at the plea hearing was the assistant district
attorney’s statement that Moragne-El was not RRRI eligible based upon his
burglary conviction. N.T., 9/8/2016, at 4-5. Moragne-El was not questioned
during his oral or written colloquy regarding RRRI eligibility; so there is no
indication in the record whether Moragne-El understood the meaning of RRRI
eligibility prior to pleading guilty.1 RRRI eligibility can significantly impact a
sentence. Pardo, 435 A.3d at 1230 n. 12 (noting that participants “could
1 Moragne-El’s counsel asserted at the sentencing hearing that “there was no
anticipation that [Moragne-El] would be RRRI eligible” during plea
negotiations. N.T., 10/5/2016, at 6. However, this statement does not
indicate whether Moragne-El personally understood his RRRI eligibility before
pleading guilty. Moreover, Moragne-El was not present during the sentencing
hearing when counsel made this statement.
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potentially receive 16.6%–25% less of his ordered sentence”). Our Supreme
Court has instructed the lower courts to allow liberally requests to withdraw a
guilty plea prior to sentencing when there is no prejudice to the
Commonwealth and the defendant has a fair and just reason to withdraw.
Islas, 156 A.3d at 1187–88 (noting that the Court expressly reaffirmed the
liberal-allowance standard for pre-sentence motions to withdraw in
Carrasquillo). Therefore, in my view, Moragne-El presented a fair and just
reason to withdraw his plea. Accordingly, I dissent.
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