Com. v. Contreras, E. ( 2022 )

J-S10027-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ESDRI CONTRERAS :
:
Appellant : No. 1144 MDA 2021
Appeal from the Judgment of Sentence Entered April 9, 2021
In the Court of Common Pleas of Luzerne County Criminal Division at
No(s): CP-40-CR-0001855-2019
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ESDRI CONTRERAS :
:
Appellant : No. 1145 MDA 2021
Appeal from the Judgment of Sentence Entered April 9, 2021
In the Court of Common Pleas of Luzerne County Criminal Division at
No(s): CP-40-CR-0002981-2019
BEFORE: MURRAY, J., McLAUGHLIN, J., and COLINS, J.*
MEMORANDUM BY McLAUGHLIN, J.: FILED: JULY 11, 2022
Esdri Contreras appeals from the judgment of sentence imposed
following his pleas of guilty to Possession of a Firearm Prohibited, Criminal
Trespass, and Simple Assault. Contreras argues the court abused its discretion
in denying one of his motions to withdraw his guilty pleas. We affirm.
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* Retired Senior Judge assigned to the Superior Court.
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At a hearing on February 10, 2020, Contreras pleaded guilty to offenses
arising during two distinct incidents prosecuted on two separate dockets. The
Commonwealth stated the terms of the plea agreements in open court, which
were as follows. See N.T., 2/10/20, at 2-3. On the first docket, Contreras
would plead guilty to Possession of a Firearm Prohibited1 (“the firearms
charge”). Id. In exchange, the Commonwealth would drop the remaining
charges on that docket.2 Id. In conjunction, the Commonwealth would amend
the second docket by downgrading the charges for Burglary and Aggravated
Assault3 to Criminal Trespass and Simple Assault4 (“the trespass/assault
charges”), to which Contreras would also plead guilty Id. at 3. The
Commonwealth additionally agreed to recommend concurrent sentences. Id.
The court conducted a colloquy during which Contreras agreed he “did
commit these offenses.” Id. at 5. Contreras also acknowledged that he signed
a written plea agreement for each docket. Id. at 4. Each listed the charges to
which he was pleading guilty, and the maximum penalties. On the agreement
for the trespass/assault charges, the original charges and gradings were
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1 18 Pa.C.S.A. §§ 6105(a)(1)
2The Commonwealth had also charged Contreras on that docket with Firearms
Not to be Carried Without a License, Duties at Stop Sign, and Driving While
Operating Privilege Suspended or Revoked. 18 Pa.C.S.A. §§ 6106(a)(1),
3323(b), and 1543(a).
3 18 Pa.C.S.A. §§ 3502(a)(1)(i) and 2702(a)(3).
4 18 Pa.C.S.A. §§ 3503(a)(1)(ii) and 2701(a)(1).
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crossed out, and the new charges and gradings written next to them. See Plea
Agreement, filed 2/10/20, at 1.
The Commonwealth stated the factual basis for the firearms charge as
follows:
Your Honor, on May 16, 2019, the Defendant was stopped
operating a vehicle by Officer Christopher [Conarty]. Officer
[Conarty] observed a handgun in plain view on the driver’s side
foot rest in the vehicle. These charges followed.
N.T., 2/10/20, at 7. Contreras agreed to plead guilty to those facts, and the
underlying facts supporting the trespass/assault charges, the specifics of
which are irrelevant to this appeal. Id. The court found Contreras was entering
the pleas knowingly and intelligently. Id. at 8.
The court scheduled sentencing for April 2020 but continued it to July
2020. Contreras failed to appear for his July sentencing hearing, and the court
revoked his bail. Contreras was apprehended in January 2021 and
incarcerated pending his sentencing. The court rescheduled sentencing for
March 2021 and continued it to April 2021.
A month prior to the sentencing hearing, Contreras filed motions to
withdraw his guilty pleas under each docket number. The court held a hearing
on the motions, at which Contreras told the court he wanted to withdraw his
plea to the firearms charge because he had believed he “pleaded to a deal
that would withdraw every other charge. . . . [T]he gun charge was going to
withdraw all the other charges.” N.T., 4/9/21, at 4-5. Defense counsel also
argued that Contreras had a reasonable defense to the firearms charge:
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If you look at the discovery, Your Honor, the gun has no owner.
There are no prints on it. Certainly not his. There were three other
people in the car. That was not put in the criminal complaint, but
when I interviewed him in May, I found that there were three other
people who took off.
I don’t think it’s unreasonable to say that somebody might have
just thrown it and he took one for the team. So I think he does
have a reasonable defense and if allowed to proceed, I think I can
make something of it and get a detective on there and find those
other three people.
I don’t think the Commonwealth is prejudice[d] in any way, shape
or form. We have discovery. We can go to trial.
Id. at 5-6.
The court denied the motions. It found Contreras “knew exactly what
[he was] doing at the time of the guilty plea” and stated, “It’s clear that he
knew what he was doing and he wants to withdraw [on] the day of his
sentencing.” Id. at 4, 6.5 The court sentenced Contreras to an aggregate
sentence of 60 to 120 months’ incarceration, with the sentence for each of the
three convictions running concurrently. Contreras filed post-sentence
motions, which the court denied.
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5 The court also stated the following.
I went through a lengthy colloquy with you where I questioned
you about both cases. I have the transcript. You knew exactly
what you were pleading to. You accepted the plea agreement you
answered all of my questions. You knew exactly what you were
pleading to on both cases. In the colloquy, I have it on record that
you answered it. You knew exactly you were pleading to the gun
charge.
N.T., 4/9/21, at 3-4.
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Contreras appealed and asks us to decide the following: “Did the trial
court err and/or abuse its discretion in refusing to grant [Contreras’s] pre-
sentence request to withdraw his plea?” Contreras’s Br. at 2.
Although Contreras filed a motion to withdraw his guilty pleas on both
dockets, and filed a notice of appeal on both dockets, he restricts his argument
to the withdrawal of his guilty plea on the firearms charge.6 He first argues
that he should be permitted to withdraw his plea because the Commonwealth
“did not proffer a record of a strong case against” him. Id. at 19. He points
out that this is a constructive possession case, and there was no fingerprint
or DNA evidence or other proof he owned the firearm, and he made no
inculpatory statements to the police. And, although he acknowledges it is not
included in the Commonwealth’s discovery, he asserts there had been three
passengers with him when he was pulled over, who could have planted the
firearm on him. Contreras posits his challenge to the strength of the
Commonwealth’s evidence amounts to a plausible claim of innocence.
Second, Contreras argues, without elaboration, that he should be
permitted to withdraw his plea on the firearms charge because he believed
the Commonwealth was going to drop the trespass/assault charges as a result.
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6 He adds in a footnote that if we grant relief on the firearms charge, we would
likely have to grant similar relief on the trespass/assault charges, as the plea
agreements and sentences are interconnected. See Contreras’s Br. at 19. We
therefore will not quash the appeal from the judgment of sentence on the
trespass/assault charges.
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Finally, Contreras argues the length of time between his guilty plea and
the filing of his withdrawal motion should not be held against him, as trial
court proceedings were not held on a regular basis “during the majority of
2020,” due to the coronavirus pandemic protocols, and he filed the motion a
full month before his sentencing hearing. Id. at 16. He also argues the
Commonwealth would not be prejudiced by a plea withdrawal, “since their
witness, a law enforcement officer, was not claimed to have disappeared or
become unavailable.” Id. at 17. Contreras asserts that the law provides that
plea withdrawals should be liberally allowed and distinguishes the facts of his
case from those of Commonwealth v. Carrasquillo, 115 A.3d 1284 (Pa.
2015) and Commonwealth v. Norton, 201 A.3d 112 (Pa. 2019), in which
the Supreme Court sanctioned the trial court’s denial of the defendant’s
motion to withdraw a pre-sentence guilty plea.7
The decision to allow a defendant to withdraw a pre-sentence guilty plea
is left to the discretion of the trial court, and the appellant bears the heavy
burden on appeal to establish an abuse of that discretion. Norton, 201 A.3d
at 116, 120.8 “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
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7 The Commonwealth has not filed a brief.
8 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, or direct, sua sponte, the withdrawal of a plea of guilty or nolo
contendere and the substitution of a plea of not guilty”) (emphasis added).
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which overrides or misapplies the law, or where the judgment exercised is
manifestly unreasonable, or the result of partiality, prejudice, bias or ill-will.”
Id. at 120 (quoting Commonwealth v. Eichinger, 915 A.2d 1122, 1140 (Pa.
2007)).
A trial court should exercise its discretion on a request for a pre-
sentence plea withdrawal “liberally in favor of the accused,” and grant the
request if the defendant demonstrates a “fair-and-just reason . . . unless
withdrawal would work substantial prejudice to the Commonwealth.” Id.(quoting Carrasquillo, 115 A.3d at 1291-92). However, when a defendant
requests to withdraw his guilty plea because he is innocent, his 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). Trial courts are charged with “assess[ing]
the credibility of claims of innocence and measur[ing], under the
circumstances, whether defendants have made sincere and colorable claims
that permitting withdrawal of their pleas would promote fairness and justice.”
Id. at 121.
When considering the plausibility of the defendant’s claim of innocence,
the court may consider the timing of the defendant’s request and his previous
knowledge of his available defenses. Id. at 121-22; see also
Commonwealth v. Davis, 191 A.3d 883, 890-91 (Pa.Super. 2018) (finding
defendant’s assertion of innocence not plausible where defendant did not
assert innocence until two years after he had entered his guilty plea). While
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the strength of the government’s evidence is another relevant consideration,
see Commonwealth v. Islas, 156 A.3d 1185, 1190 (Pa.Super. 2017), a
defendant’s desire to test the Commonwealth’s evidence does not bolster a
claim of innocence, particularly where the defendant was aware of the
evidence prior to entering his plea. Norton, 201 A.3d at 121-22; see also id.
at 122 n.7 (stating trial court should not grant pre-sentence plea withdraw
motion based on defendant’s “desire to pursue a standard defense strategy
seeking to discredit the Commonwealth’s evidence”).
Erroneous advice from counsel which renders a guilty plea unknowing,
involuntary, or unintelligent may also constitute a fair and just reason for
withdrawing the plea. See Commonwealth v. Elia, 83 A.3d 254, 264
(Pa.Super. 2013); Commonwealth v. Pardo, 35 A.3d 1222, 1230 (Pa.Super.
2011). However, a defendant’s claim that he did not understand the terms of
the plea agreement or the consequences of the plea can be belied by the
defendant’s statements under oath or in a written guilty plea colloquy. See
Commonwealth v. Culsoir, 209 A.3d 433, 438-39 (Pa.Super. 2019);
Commonwealth v. Davis, 191 A.3d 883, 889 (Pa.Super. 2018).
Here, the court observed that Contreras had been colloquied and had
entered his guilty pleas in accordance with Rule of Criminal Procedure 590.
The court also stated that the Commonwealth had proffered a sufficient factual
basis to establish Contreras’s guilt, Contreras was advised of the maximum
possible sentences, and he had signed written plea agreements. Trial Court
Opinion, filed October 13, 2021, at 3 (unpaginated). The court found that
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Contreras “was aware of and understood the terms and conditions of both plea
agreements” and that his pleas “were knowingly, voluntarily and intelligently
entered.” Id. The court further observed that Contreras filed his motions to
withdraw his guilty pleas more than a year after he entered them. Id. The
court also found that while Contreras’s written motion on the firearms charge
challenged the Commonwealth’s evidence, it did not make overt allegations of
his innocence. Id. The court concluded Contreras “made no colorable
demonstration, under the circumstances, that permitting withdrawal of his
guilty pleas would promote fairness and justice,” and his motions “were
nothing more than an attempt to delay the imposition of justice.” Id. at 4.
The court did not abuse its discretion in denying the motion. Although
the Commonwealth made no proffer of evidence against Contreras aside from
the testimony of the arresting officer, Contreras’s proposed defense against
the Commonwealth’s constructive possession case was tenuous. The officer
found the firearm in the driver’s side footrest of the vehicle that Contreras was
driving, and Contreras presented no testimony or other evidence at the
hearing on the motion to support his assertion that there had been passengers
in the car at the time of his arrest. His mere desire to challenge the
Commonwealth’s evidence is insufficient to support a plausible claim of
innocence. Norton, 201 A.3d at 121-22.
While the strength of the Commonwealth’s case goes to the plausibility
of Contreras’s claim of innocence, so does the timing of his withdrawal
request. Id. Although Contreras claims he delayed in moving to withdraw his
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guilty plea because the court was backlogged in 2020 due to pandemic
restrictions, he does not explain how infrequent court hearings during that
time prevented him from filing the motion. Moreover, he did not make this
argument to the court below. See Pa.R.A.P. 302(a) (matters not raised before
the trial court are waived). Furthermore, this excuse ignores the fact that
Contreras absconded during the latter half of 2020 and did not file his motion
until he was incarcerated and awaiting his rescheduled sentencing hearing.
The timing of the motion supports the court’s conclusion that it was “an
attempt to delay the imposition of justice.” Trial Ct. Op. at 4.
Finally, the court did not find credible Contreras’s allegation that he
believed pleading guilty on the firearms charge would result in a dismissal of
the trespass/assault charges. The court’s conclusion is supported by the
record, including by Contreras’s on-the-record agreement to the factual basis
for the trespass/assault charges, his entry of a plea of guilty to those charges,
and his signing of the written colloquy listing those charges. Culsoir, 209 A.3d
at 438-39; Davis, 191 A.3d at 889. Contreras did not carry his heavy burden
to show the court abused its discretion in finding that he “made no colorable
demonstration, under the circumstances, that permitting withdrawal of his
guilty pleas would promote fairness and justice.” Trial Ct. Op. at 4.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 07/11/2022
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