Com. v. Metheny, B. ( 2020 )

J-S73021-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
BRIAN THOMAS METHENY :
:
Appellant : No. 1274 MDA 2019
Appeal from the Judgment of Sentence Entered July 9, 2019
In the Court of Common Pleas of Columbia County Criminal Division at
No(s): CP-19-CR-0000470-2018
BEFORE: SHOGAN, J., LAZARUS, J., and MUSMANNO, J.
MEMORANDUM BY LAZARUS, J.: FILED FEBRUARY 11, 2020
Brian Thomas Metheny appeals from his judgment of sentence, imposed
in the Court of Common Pleas of Columbia County, after he pled guilty to one
count of attempted aggravated indecent assault.1 On appeal, Metheny
challenges the trial court’s denial of his pre-sentence motion to withdraw his
guilty plea. Upon careful review, we affirm.
Metheny was charged with numerous offenses related to his attempt to
sexually assault the then-seven-year-old niece of his deceased girlfriend
(“Victim”). Metheny had been living with the Victim’s family at the time of the
incident. Several years after the attempted assault, when the Victim was
approximately 12 years old, the Victim’s mother discovered text messages
between the Victim and her boyfriend in which the Victim discussed the
____________________________________________
1 18 Pa.C.S.A. §§ 3125(a)(7) and 901(a).
J-S73021-19
attempted assault. Thereafter, the Victim’s mother reported the incident to
police and Metheny was subsequently charged.
Jury selection was held on January 15, 2019, with trial scheduled to
begin on January 22, 2019. On January 18, 2019, the court held a pre-trial
conference with counsel, at which time Metheny and the Commonwealth
reached an agreement that Metheny would plead guilty to one count of
attempted aggravated indecent assault in exchange for the dismissal of the
remaining charges. That same day, Metheny entered a plea, at which time he
executed a written guilty plea colloquy as well as a colloquy regarding his
requirement to register and other obligations as a convicted sex offender.
On March 6, 2019, prior to sentencing, Metheny filed a motion to
withdraw his guilty plea, in which he averred in support of his request that he
“believe[d] it was not in his best interest to enter a plea of guilty and waive
his right to a jury trial.” Motion to Withdraw Guilty Plea, 3/6/19, at ¶ 2. The
court held a hearing on March 20, 2019, after which it denied relief based on
our Supreme Court’s decision in Commonwealth v. Carrasquillo, 115 A.3d
1284 (Pa. 2015), in which the Court held that a bare assertion of innocence
is, in and of itself, not a sufficient reason for a court to grant pre-sentence
withdrawal of a guilty plea.
On July 8, 2019, the court held a combined sentencing/sexually violent
predator (“SVP”) hearing, at which time Metheny waived his right to an SVP
hearing and conceded that he met the definition of an SVP. The court
sentenced Metheny to a term of 42 to 120 months’ incarceration. That same
-2-
J-S73021-19
day, Metheny filed a timely motion for reconsideration of his sentence, in
which he argued that his designation as an SVP was unconstitutional pursuant
to Commonwealth v. Butler, 173 A.3d 1212 (Pa. Super. 2017).2 The
Commonwealth stipulated to Metheny’s entitlement to relief and, by order
dated August 21, 2019, the court ordered Metheny’s SVP designation stricken.
On August 1, 2019, Metheny filed a notice of appeal,3 followed by a
timely court-ordered Pa.R.A.P. 1925(b) statement of errors complained of on
appeal. Metheny claims that the trial court abused its discretion in denying
his pre-sentence motion to withdraw his plea.
We begin by noting that we review a trial court’s ruling on a pre-
sentence motion to withdraw a guilty plea for an abuse of discretion.
Commonwealth v. Islas, 156 A.3d 1185, 1187 (Pa. Super. 2017).
Pre-sentence withdrawal of a guilty plea is governed by Pennsylvania
Rule of Criminal Procedure 591(A), which provides as follows:
____________________________________________
2 In Butler, this Court held that SORNA’s framework for designating a
convicted felon as an SVP violates the federal and state constitutions because
it increases the criminal penalty without the fact-finder making the necessary
factual findings beyond a reasonable doubt. Our Supreme Court has granted
allowance of appeal in that case. See Commonwealth v. Butler, 190 A.3d
581 (Pa. 2018) (Table).
3 Metheny’s post-sentence motion to modify his sentence was still pending
when he filed his notice of appeal. Under Pa.R.Crim.P. 720(A)(2), no direct
appeal may be taken by a defendant while his post-sentence motion is still
pending. See Pa.R.Crim.P. 720, comment. However, pursuant to Pa.R.A.P.
905, we will treat Metheny’s premature notice of appeal as having been filed
after entry of the order disposing of his post-sentence motion. See
Commonwealth v. Ratushny, 17 A.3d 1269, 1271 (Pa. Super. 2011).
-3-
J-S73021-19
(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.
Pa.R.Crim.P. 591(A). The official comment to Rule 591 provides that “[a]fter
the attorney for the Commonwealth has had an opportunity to respond, a
request to withdraw a plea made before sentencing should be liberally
allowed.” Id., Cmt.
[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.”
Commonwealth v. Forbes, 299 A.2d 268, 271 (Pa. 1973) (internal citations
and some internal quotations omitted).
In Commonwealth v. Carrasquillo, 115 A.3d 1284 (Pa. 2015), our
Supreme Court provided additional guidance as to the proper exercise of a
court’s discretion in ruling on pre-sentence motions to withdraw a plea. While
reaffirming the “liberal allowance” standard, the Court acknowledged that its
previous application of that standard had “lent the [false] impression that
[the] Court had required acceptance of a bare assertion of innocence as a fair-
and-just-reason” for withdrawal and led to a “legitimate perception of a per
se rule” arising from the Court’s prior decisions. Id. at 1292. In an attempt
to clarify the standard, the Carrasquillo Court held that “a bare assertion of
innocence is not, in and of itself, a sufficient reason to require a court to grant”
-4-
J-S73021-19
a pre-sentence motion to withdraw. Id. at 1285. Rather, the Court concluded
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
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 1292. Thus, the Carrasquillo Court established that trial courts
possess discretion to assess the plausibility of a defendant’s claim of
innocence. In doing so, “both the timing and the nature of the innocence
claim, along with the relationship of that claim to the strength of the
government’s evidence, are relevant.” Islas, 156 A.3d at 1191.
Consistent with the well-established standards governing trial
court discretion, it is important that appellate courts honor trial
courts’ discretion in these matters, as trial courts are in the unique
position to assess the credibility of claims of innocence and
measure, under the circumstances, whether defendants have
made sincere and colorable claims that permitting withdrawal of
their pleas would promote fairness and justice.
Commonwealth v. Norton, 201 A.3d 112, 121 (Pa. 2019).
Here, while Metheny did not assert his innocence in his written motion,
he did so at the hearing. He testified that, at the time he agreed to enter a
plea, he was feeling “pressured with looking at all the years [he] would have
lost at trial. And the more [he] thought about it [he] would rather go down
-5-
J-S73021-19
with taking it in front of a [j]ury and fight instead of admitting something [he]
didn’t do.” N.T. Motion to Withdraw Hearing, 3/20/19, at 2.
The Victim’s mother also testified at the hearing. She stated that, while
her daughter was “extremely depressed,” isolated, and tearful prior to
Metheny’s plea, once he entered a plea, she began to “trust people a little
more and come out of her shell.” Id. at 7, 8. She further testified that, if her
daughter were required to testify at a trial, “it would put her into a deeper
depression” and she would “go back into isolation.” Id. at 9.
The court denied Metheny’s motion. In doing so, it specifically found
that Metheny did not offer a fair and just reason for withdrawal of his plea.
“Rather, the only profession that he has made is that he is innocent and at
the time of his guilty plea he felt ‘pressured.’” Id. at 11. Citing Metheny’s
guilty plea colloquy statements that no one had used force, threats, or
promises to induce his plea, the court concluded that Metheny’s claim that he
felt pressure was not credible. See id. Thus, the court found Metheny’s bare
assertion of innocence insufficient under Carrasquillo. The court further held
that “resurrection of the case and the consequential re-opening of old wounds
of a healing child is prejudicial to the prosecution.” Id.
Upon careful review of the record, we agree with the trial court’s
determination that Metheny offered nothing more than a bare assertion of
innocence in support of his request to withdraw his guilty plea and, further,
that his bare assertion of innocence did not constitute a fair and just reason
-6-
J-S73021-19
for withdrawal under the totality of the circumstances. We find support for
this conclusion in our Supreme Court’s decision in Norton, supra.
In Norton, the appellant sought to withdraw his plea of nolo contendere
to charges of indecent assault and corruption of minors, which he had entered
on the date scheduled for jury selection. Four and one-half months later,
Norton filed a motion to withdraw his plea, asserting his innocence and
averring that he “could not live with himself for taking a plea under the
circumstances.” Norton, 201 A.3d at 115. Consistent with then-prevailing
case law, the court granted Norton’s motion. In its order, however, the court
noted that our Supreme Court had granted allowance of appeal in
Carrasquillo in order to clarify the standard for withdrawal a pre-sentence
guilty plea. Six days later, the Court decided Carrasquillo and the
Commonwealth filed a timely motion for reconsideration, asserting that, under
the holding in Carrasquillo, Norton’s bare assertion of innocence was
insufficient to justify withdrawal. Rather, the Commonwealth argued, Norton’s
assertion of innocence was “implausible” and that “fairness and justice did not
require the court to allow” withdrawal. Id. at 117. Norton responded that he
had always maintained his innocence and, if permitted to withdraw his plea,
he intended to contest the charges by attacking the victim’s credibility at trial.
The trial court granted the Commonwealth’s motion for reconsideration
and denied Norton’s motion to withdraw, finding that Norton had plenty of
time to consider and assert his innocence prior to entering his plea and had
ample time to “discover and inspect the Commonwealth’s evidence well prior
-7-
J-S73021-19
to his plea.” Id. at 118. On appeal, this Court affirmed Norton’s judgment of
sentence, finding that the record supported the trial court’s determination
under Carrasquillo.
The Supreme Court granted allowance of appeal to consider whether
Norton’s “assertion of innocence based on the sufficiency of the evidence and
his inability to reconcile entering a plea when he maintained his innocence
well before the time of his sentencing and when the Commonwealth made no
argument of prejudice” was a fair and just reason for withdrawal. Id. at 120.
After reviewing the holding in Carrasquillo, the Court concluded:
Appellant asserted in the trial court that: (1) he is innocent; (2)
he cannot live with himself for taking a plea; and (3) he wants to
test the Commonwealth’s evidence at trial. Simply put, the last
two assertions add nothing to the first. Appellant’s contention that
he could not live with himself for entering his plea is self-serving
makeweight and does not add any substantive support to the
plausibility of his claim of innocence. Appellant’s desire to test the
Commonwealth’s evidence at trial is equally non-substantive.
Generally speaking, trials are always proceedings in which the
parties test each other’s evidence, and Appellant’s belated wish
for a trial fails to bolster his claim of innocence, particularly in light
of the fact that any vulnerability in the Commonwealth’s evidence,
specifically Victim’s testimony, was well known to Appellant prior
to him entering his plea. In other words, for all intents and
purposes, the reality is that Appellant solely asserted his
innocence in an attempt to withdraw his plea presentence.
Id. at 121–22.
In the matter sub judice, Metheny had ample time to consider and
evaluate the Commowealth’s evidence prior to agreeing to a plea three days
after a jury had been selected for his trial. In addition, the trial court found
that Metheny’s claim of having felt “pressure” to enter a plea lacked credibility
-8-
J-S73021-19
in light of the statements he made during his guilty plea colloquy. The court’s
findings are supported in the record. As such, Metheny’s claim of pressure
lends no “substantive support to the plausibility of his claim of innocence.”
Id. at 121. Thus, as in Norton, Metheny is left with only a bare assertion of
innocence, which our Supreme Court has repeatedly stated is insufficient to
justify pre-trial withdrawal of a plea. See Carrasquillo, supra; Norton,
supra.
Moreover, Metheny did not raise any other facts or cite specific
circumstances that could have provided a basis for the court to find a sincere
or colorable claim of innocence. Metheny did not challenge sufficiency of the
Commonwealth’s evidence, cite his own good character, or suggest that the
Victim had any motive to fabricate her claims. See, e.g., Islas, 156 A.3d at
1191 (finding plausible assertion of innocence where defendant—who pled
guilty to indecently assaulting camper at camp where he worked as
counselor—testified that: “he did not engage in the charged conduct; he had
maintained his innocence when interviewed by law enforcement; had the
conduct occurred as alleged, it would have been witnessed by other[s] . . . ;
the victim had a motive to fabricate the charges; the victim had delayed
reporting . . . ; and [the defendant] was of good character, had no criminal
record, and had never received a similar complaint in the many years he had
been working in the field”).
In sum, Carrasquillo established that a trial court acts within its
discretion in denying a pre-sentence motion to withdraw where an appellant
-9-
J-S73021-19
presents nothing more than a bare assertion of innocence in support of his
request. Because Metheny’s motion was premised on just such an assertion,
the trial court did not abuse its discretion in denying him relief.
Finally, we note that, as an “independent reason” for denying Metheny’s
motion, the trial court concluded that the Commonwealth would have been
substantially prejudiced by allowing Metheny to withdraw his plea. See Trial
Court Opinion, 9/6/19, at 6. Specifically, the court found that the Victim would
have been “further psychologically traumatized by the resurrection of the . . .
case after she was assured that the case had ended[.]” Id.
[T]here exists little case law explaining what constitutes prejudice
in the withdrawal of a guilty plea context[. However,] it would
seem that prejudice would require a showing that due to events
occurring after the plea was entered, the Commonwealth is placed
in a worse position than it would have been had trial taken place
as scheduled. This follows from the fact that the consequence of
granting the motion is to put the parties back in the pre-trial stage
of proceedings. This further follows from the logical proposition
that prejudice cannot be equated with the Commonwealth being
made to do something it was already obligated to do prior to the
entry of the plea.
Islas, 156 A.3d at 1192.
This Court has previously held that the Commonwealth’s “humane
desire” to shield a Victim from further trauma potentially brought on by being
required to testify at trial “does not suffice as a matter of law to substantiate
a claim of substantial prejudice.” Commonwealth v. Carrasquillo, 78 A.3d
1120, 1129 (Pa. Super. 2013), rev'd on other grounds, 115 A.3d 1284 (2015).
Rather, “prejudice is about the Commonwealth’s ability to try its case, not
- 10 -
J-S73021-19
about the personal inconvenience to complainants[,] unless that
inconvenience somehow impairs the Commonwealth’s prosecution.”
Commonwealth v. Gordy, 73 A.3d 620, 624 (Pa. Super. 2013). Here, the
Commonwealth presented no evidence that the Victim would have been
unwilling or unable to testify at trial, or that emotional trauma to the Victim
would otherwise have had an adverse impact on the ability of the
Commonwealth to prosecute its case. Accordingly, the trial court erred in
finding substantial prejudice on that basis. Nonetheless, because we agree
with the trial court that Metheny’s bare assertion of innocence did not, under
the circumstances, constitute a fair and just reason to withdraw his plea, we
affirm the court’s decision.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 02/11/2020
- 11 -