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

J-S33018-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF : IN THE SUPERIOR COURT OF
PENNSYLVANIA : PENNSYLVANIA
:
:
v. :
:
:
BRANDON WADE MORAGNE-EL :
: No. 1793 MDA 2016
Appellant
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.*
MEMORANDUM BY OTT, J.: FILED OCTOBER 27, 2017
Brandon Wade Moragne-El appeals from the judgment of sentence
entered on October 5, 2016, in the Franklin County Court of Common Pleas.
The trial court imposed a term of seven to 14 years’ imprisonment, following
Moragne-El’s negotiated guilty plea to possession with intent to deliver heroin
(“PWID”).1 On appeal, Moragne-El contends the trial court erred in denying
his pre-sentence motion to withdraw his guilty plea. For the reasons below,
we affirm.
The trial court set forth the background surrounding the matter as
follows:
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* Retired Senior Judge assigned to the Superior Court.
1 See 35 P.S. § 780-113(a)(30).
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In criminal action 2213-2014, [Moragne-El] is charged with
two counts of delivery of a controlled substance (heroin)2 and two
counts of criminal use of a communication facility3 for allegedly
selling heroin to a confidential informant on August 27, 2013, and
August 29, 2013. In criminal action 2214-2014, [Moragne-El] is
charged with one count of delivery of a controlled substance
(heroin), one count of criminal use of a communication facility,
and one count of possession with intent to deliver (heroin)4 for
allegedly selling heroin to a confidential informant on May 27,
2014, and having additional quantities of heroin on his person
during a search incident to arrest on the same date. In criminal
action 2221-2014, [Moragne-El] faces two counts of possession
with intent to deliver (heroin/cocaine) based on a search of
[Moragne-El] incident to arrest on October 9, 2014. He also faces
one count of tampering with or fabricating physical evidence5 for
allegedly attempting to destroy evidence of controlled substances
hidden on his person when he was taken into custody on October
9, 2014.
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2 35 P.S. § 780-113(a)(30)[.]
3 18 Pa.C.S.A. § 7512(a)[.]
4 35 P.S. § 780-113(a)(30)[.]
5 18 Pa.C.S.A. § 4910(1)[.]
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[Moragne-El]’s case has taken a long and arduous path from
mandatory arraignment on December 30, 2014, through many
trial terms to reach this point. This Court has written two prior
Opinions (October 30, 2015 and April 5, 2016) recounting the
procedural history of these matters thus far. These prior Opinions
will be incorporated into this Opinion by reference. Throughout
the pendency of these matters, [Moragne-El] has at various times
been represented by counsel and represented himself.
Most recently, on September 8, 2016, [Moragne-El]’s case
was scheduled for pre-trial conference. Rather than prepare
[Moragne-El]’s case for trial in the upcoming September trial
term, and after a near three hour delay, a plea agreement was
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negotiated resolving all of [Moragne-El]’s pending cases as well as
uncharged offenses.
[Moragne-El], with the assistance of counsel, knowingly and
voluntarily entered a plea of guilty in case number 2221-2014 to
count 1, possession with intent to deliver heroin, an ungraded
felony. An on-the-record colloquy was conducted by both the
assistant district attorney and this Court. [Moragne-El]’s guilty
plea was tendered in exchange for the dismissal of all remaining
counts at case number 2221-2014, and all counts in case numbers
2213-2014 and 2214-2014. In addition, [Moragne-El]’s plea
agreement with the Commonwealth provided that [Moragne-El]
receive a sentence of seven years to [14] years in a state
correctional institution to be served concurrently with a sentence
imposed by the Federal Court that [Moragne-El] is now serving.
Further, the Commonwealth agreed to forego the filing of
additional charges against [Moragne-El] for [his] alleged actions
toward the confidential informants in his cases and his threat to
cause physical harm to his prior counsel. Finally, in order to
facilitate the plea agreement’s term for concurrent sentences, this
Court, upon the request and agreement of counsel modified
[Moragne-El]’s bail in case number 2214-2014 from $200,000
secured to $200,000 unsecured, effectively making [Moragne-El]
a primarily federal inmate, rather than a state inmate. This Court
would have imposed sentence on September 8, 2016, as the plea
agreement was acceptable to the Court. However, sentencing was
set for September 15, 2016, to permit the parties to accurately
calculate [Moragne-El]’s credit for time previously served.
Prior to the imposition of sentence on September 15, 2016,
and unbeknownst to his counsel, [Moragne-El] made an oral
motion to withdraw his plea. [Moragne-El]’s request to withdraw
his guilty plea is based on: 1) his assertion of innocence; 2) his
belief that a conviction from the State of Maryland does not
preclude the imposition of a RRRI minimum sentence; and 3) his
conversation with his sister after the entry of his plea.
Trial Court Opinion, 10/3/2016, at 1-3.2
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2 It appears that because of the plea agreement, Moragne-El only appealed
from Criminal Docket 2221-2014, and not Criminal Dockets 2213-2014 and
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On October 3, 2016, the court denied Moragne-El’s motion to withdraw
his guilty plea. Two days later, the court sentenced him to a term of seven to
14 years’ imprisonment at Criminal Docket 2221-2014. The court also issued
orders regarding forfeiture of certain property as per the plea agreement on
October 5 and 10, 2016.3 This appeal followed.4
In his sole issue on appeal, Moragne-El contends the trial court erred in
denying his pre-sentence motion to withdraw his guilty plea based on the
reasons he offered the court: (1) his assertion of innocence; (2) his belief
that his prior burglary conviction did not make him ineligible for a Recidivism
Risk Reduction Incentive (RRRI)5 sentence; and (3) he spoke with his sister
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2214-2014. Furthermore, neither the docket nor the certified record contains
the April 5, 2016, opinion that the trial court refers to in its restatement of the
case background. It appears, that opinion discusses Moragne-El’s efforts to
secure nominal bail. See Trial Court Opinion, 10/3/2016, at 6 n.7.
3 On October 5, 2016, the court ordered that $6,164.00 in United States
currency and a 1999 Lincoln Town Car be seized from Moragne-El pursuant to
42 Pa.C.S. § 6801, et seq. On October 10, 2016, the court ordered that
Moragne-El forfeit an additional $2,392.00 in United States currency, that
same Lincoln vehicle with an updated VIN number, and three cellular phones.
4 On October 31,2016, the trial court ordered Moragne-El to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
Moragne-El filed a concise statement on November 18, 2016. The trial court
issued an opinion pursuant to Pa.R.A.P. 1925(a) on November 20, 2016,
relying on its October 3, 2016, opinion that denied Moragne-El’s motion to
withdraw his guilty plea.
5 See 61 Pa.C.S. §§ 4501-4512.
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who said that he should not have pled guilty to a crime he did not commit.
Moragne-El’s Brief at 17.
It is well-settled the decision whether to permit a defendant to withdraw
a guilty plea is within the sound discretion of the trial court. Commonwealth
v. Elia, 83 A.3d 254, 261-262 (Pa. Super. 2013), appeal denied, 94 A.3d 1007
(Pa. 2014). A a pre-sentence motion to withdraw is decided under a liberal
standard. Commonwealth v. Kpou, 153 A.3d 1020, 1022 (Pa. Super.
2016). Pursuant to Pennsylvania Rule of Criminal Procedure 591:
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).
In the seminal decision Commonwealth v. Forbes, 299 A.2d 268 (Pa.
1973), the Pennsylvania Supreme Court first defined the parameters for
granting a pre-sentence motion to withdraw:
[I]n determining whether to grant a pre-sentence motion for
withdrawal of a guilty plea, ‘the test to be applied by the trial
courts is fairness and justice.’ If the trial court finds ‘any fair and
just reason’, withdrawal of the plea before sentence should be
freely permitted, unless the prosecution has been ‘substantially
prejudiced.’
Id. at 271 (internal citations omitted).
After the Forbes decision, the Supreme Court adopted the view that a
defendant’s bald assertion of innocence was a sufficient “fair and just reason”
for withdrawal of a guilty plea. See Commonwealth v. Randolph, 718 A.2d
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1242, 1244 (Pa. 1998) (defendant’s claim that he was innocent of several of
the 13 burglary charges to which he pled guilty was sufficient to justify pre-
sentence withdrawal of plea; “[a]ppellant made a clear assertion of his
innocence before the trial court … [and] the uncontroverted evidence of record
fails to reveal that the Commonwealth would have suffered any prejudice, let
alone substantial prejudice, had [a]ppellant’s withdrawal request been
permitted.”) (footnote omitted).
However, in Commonwealth v. Carrasquillo, 115 A.3d 1284 (Pa.
2015), the Pennsylvania Supreme Court retreated from the per se approach
it advocated in Forbes. (Defendant first asserted his innocence during his
sentencing allocution, claiming he had been framed by the Central Intelligence
Agency and possessed by the “Antichrist,” and insisting a polygraph test would
prove his innocence. Carrasquillo, 115 A.3d at 1286.)
The Carrasquillo Court stated the “existing per se approach to
innocence claims is unsatisfactory.” Id. at 1292. The Court reflected:
[T]here is no absolute right to withdraw a guilty plea; trial courts
have discretion in determining whether a withdrawal request will
be granted; such discretion is to be administered liberally in favor
of the accused; and any demonstration by a defendant of a fair-
and-just reason will suffice to support a grant, unless withdrawal
would work substantial prejudice to the Commonwealth.
…
Presently, we are persuaded by the approach of other jurisdictions
which require that 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
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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.
Id. at 1291-1292 (footnote omitted; emphasis added).
The Supreme Court concluded the trial court had acted within its
discretion when it denied the defendant’s motion to withdraw his plea. The
Court emphasized the defendant’s claim of innocence was first made during
his sentencing allocution, and was accompanied by “bizarre statements” which
“wholly undermined its plausibility, particularly in light of the Commonwealth’s
strong evidentiary proffer at the plea hearing.” Id. at 1293. See also
Commonwealth v. Hvizda, 116 A.3d 1103 (Pa. 2015) (companion case to
Carrasquillo).
More recently, in Commonwealth v. Blango, 150 A.3d 45 (Pa. Super.
2016), appeal denied, __ A.3d __, 2017 WL 1374163 [513 EAL 2016] (Pa.
April 12, 2017) the defendant entered a negotiated guilty plea, agreeing to
testify against his co-defendants in matter and by providing information
regarding an unrelated shooting. Id. at 47. The defendant testified against
his co-defendants at their trial, further acknowledging his guilt, but during the
unrelated criminal trial, he recanted the information that he provided to the
Commonwealth. Id. Considering his statements as a breach of the plea
agreement, the Commonwealth offered a sentencing recommendation,
requesting the court sentence defendant to a term of 35 to 70 years’
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imprisonment. Id. The next day, after reviewing the Commonwealth’s
request, the defendant filed a motion to withdraw his guilty plea. Id. On
appeal, a panel of this Court applied Carrasquillo and held that because the
defendant had not made “a plausible claim of innocence[,] ... the trial court
did not abuse its discretion in declining to permit withdrawal of [his] guilty
plea on that ground.” Blango, 150 A.3d at 48.6
Here, the trial court found the following:
In the first instance, [Moragne-El] suggests that he seeks
withdrawal because he is innocent. However, [Moragne-El]’s own
words at [the] time of his plea belie his claims of innocence. Upon
careful examination, the record will reflect that at the time
[Moragne-El] entered his guilty plea, he refused to specifically
articulate exactly what he had done to permit this Court to find
that there was a factual basis for the plea of guilty to possession
with the intent to deliver heroin. [Moragne-El] suggested that he
did not recall the events, a claim the Court now sees was
incredible. The Court then reviewed the Commonwealth’s
charging documents with [Moragne-El], on the record, resulting in
[Moragne-El] admitting to being in possession of a quantity of
heroin with the intent to deliver said controlled substance, on the
date in question. [Moragne-El] acknowledged his participation in
the offense and even apologized to the Court and the Franklin
County community for his role in the heroin epidemic currently
plaguing the area. His apology appeared sincere and credible.
Having tendered his plea, the Court thereafter entered an Order
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6 Compare with Commonwealth v. Islas, 156 A.3d 1185, 1189 (Pa. Super.
2017) (concluding trial court had erred in denying the defendant’s pre-
sentence motion to withdraw his guilty plea because his assertion of innocence
was “not ‘mere, bare, or non-colorable,’ but instead was ‘at least plausible’”
where: (1) he had entered his plea three days before trial was set to begin
and before jury selection began; (2) he moved to withdraw plea over one
month after entry and when new counsel entered his appearance, which was
almost two months before sentencing; and (3) he maintained his innocence
from the beginning.
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altering [Moragne-El]’s bail in case number 2214-2014 to
“unsecured” to facilitate the sentence agreement.
[Moragne-El] also supported his motion to withdraw with
argument that he has an alibi defense he desires to assert. This
argument is unavailing. [Moragne-El]’s alibi defense is not
applicable to case number 2221-2014; rather, his alibi defense is
raised and filed, untimely6 in case number 2213-2014, a case
which is to be dismissed as part of the plea. [Moragne-El] has
filed no notice of alibi defense in case number 2221-2014.
___________________________
6 See Pa.R.Crim.P. 567(A) which requires the filing of a notice of
alibi defense “not later than the time required for filing the
omnibus pretrial motion …” Defendant’s Notice by Defendant of
Alibi Defense was filed on September 6, 2016, long after his
December 31, 2014 Mandatory Arraignment.
___________________________
[Moragne-El] suggests that after entering his plea he spoke
with his sister, who he says is an attorney, who encouraged him
to go to trial. [Moragne-El] also takes offense to the
determination that he is ineligible for a recidivism risk reduction
incentive sentence (“RRRI”) because the Commonwealth and the
probation department mischaracterized a prior burglary conviction
from Maryland. These arguments are nothing more than “buyer’s
remorse” and not grounds for the withdrawal of a plea. Further,
if [Moragne-El] believes that the burglary prior is not a
disqualifying offense, the Court would consider more carefully
examining the issue in a post-sentence motion.
[Moragne-El]’s actions in attempting to withdraw his plea
are nothing more than his continued efforts to manipulate the
Franklin County Court and to delay trial and frustrate the criminal
justice system as a whole. [Moragne-El] got what he wanted on
September 8, 2016 – an Order modifying his bail in case number
2214-2014 to $200,000 unsecured. Now he wants to have the
benefit of an unsecured bail and further delay trial. This Court
cannot permit [Moragne-El] to continue to manipulate and
frustrate the criminal justice process.
Trial Court Opinion, 10/3/2016, at 4-5.
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We agree with the court’s conclusion. We note that, of the various
reasons he provided for wanting to withdraw his guilty plea, the only fair and
just reason Moragne-El proffered is a mere assertion of his general innocence,7
which is no longer sufficient as pursuant to Carrasquillo,8 and does not
constitute a “plausible claim” of innocence under Blango.
Furthermore, the trial court’s ruling is supported by the unique
circumstances in this case. A review of the record reveals that Moragne-El
entered the plea, which involved three separate criminal actions, after three
hours of negotiations.9 During the oral colloquy, he acknowledged that on
October 9, 2014, he possessed 10.07 grams of heroin with the intent to
deliver. N.T., 9/8/2016, at 10. Moreover, he admitted the following:
I just want to say I’m sorry for the hassle I put you all through
and, you know, I never meant to be a menace or a cancer to the
society, like I understand like the more I set back in jail I sit up
and think of the bad things I did out here and I apologize, you
know, for any pain I caused. I know the heroin epidemic is --
pardon my language, it’s fuck’n up, you know, Franklin County
and I don’t mean -- I don’t know. I regret doing what I did. That’s
it, Your Honor.
Id. at 11.
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7 For example, he does not allege he had no knowledge that he possessed
over ten grams of heroin or that a friend set him up.
8We note his discussion with his sister that he did not commit the crime also
goes to a general assertion of innocence.
9 See N.T., 9/15/2016, at 12.
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Significantly, the court was prepared to sentence Moragne-El that same
day but waited until the following week in order to double check the credit for
time served. Id. at 10. Seven days later, on the day he was supposed to be
sentenced, Moragne-El orally requested to withdraw his guilty plea. N.T.,
9/15/2016, at 2-4. Moragne-El asserted the following as reasons for
withdrawing: (1) he was innocent and did not commit the crime; and (2) he
did not believe his prior conviction disqualified him from being RRRI eligible.
Id. He also said that he spoke with his sister after the guilty plea hearing and
she asked him why he agreed to something he did not do, to which he replied
that he was “just trying to get out of Franklin County Jail and they scared
[him.]” Id. at 5. Moragne-El offered no support for his claim of innocence,
particularly in light of his comments at the guilty plea hearing. 10 Moreover,
his concerns regarding his eligibility for RRRI does not constitute a fair and
just reason to withdraw his plea.
Based on the totality of the circumstances, we concur with the trial court
that Moragne-El’s offer of innocence is not plausible, and that his actions were
more of an attempt to manipulate the court system in order to delay
imprisonment. See Carrasquillo, supra; Blango, supra. Accordingly, we
affirm the judgment of sentence.
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10 It appears Moragne-El was far concerned more with the nature and length
of his sentence than his actual innocence. See N.T., 9/15/2016, at 3-4, 7-13
(discussions regarding forfeiture of vehicle and cash and bail being reinstated
as secured rather than unsecured).
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Judgment of sentence affirmed.
President Judge Emeritus Bender joins this decision.
Judge Strassburger files a dissenting memorandum.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/27/2017
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