Com. v. Newman, J. ( 2021 )

J-S47036-20
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
JAMES FREDERICK NEWMAN, :
:
Appellant : No. 599 MDA 2020
Appeal from the Judgment of Sentence Entered February 20, 2020
in the Court of Common Pleas of Dauphin County
Criminal Division at No(s): CP-22-CR-0006214-2017
BEFORE: STABILE, J., NICHOLS, J. and STRASSBURGER, J.*
MEMORANDUM BY STRASSBURGER, J.: FILED FEBRUARY 25, 2021
James Frederick Newman (Appellant) appeals from the February 20,
2020 aggregate judgment of sentence of 8 to 20 years of incarceration
following his negotiated guilty plea to two counts of drug delivery resulting in
death. Upon review, we affirm.
The trial court provided the following background.
On or about October 18, 2017, Appellant, age 66, was
charged at the above-captioned docket [] with three counts of
drug delivery resulting in death. After pre-trial motions,
Appellant proceeded to trial by jury on two counts of drug
delivery resulting in death.2 Trial commenced on January 6,
2020. On January 9, 2020, the fourth day of trial, and after the
Commonwealth presented all of its witnesses, [] Appellant
alerted the court that he wished to plead guilty. He entered a
guilty plea pursuant to a negotiated plea agreement to two
counts of drug delivery resulting in death to an agreed period of
incarceration of 8-20 years in a state correctional institution.
Th[e trial] court accepted [] Appellant’s plea and deferred
sentencing to February 20, 2020.
*Retired Senior Judge assigned to the Superior Court.
J-S47036-20
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2 Following a hearing on Appellant’s petition for writ of
habeas corpus on November 9, 2018, the Commonwealth
withdrew count 1 – drug delivery resulting in death.
Trial Court Opinion, date, at 1 (capitalization altered; record citations and
some footnotes omitted).
On February 20, 2020, at the start of his sentencing hearing, Appellant
orally moved to withdraw his guilty plea. Specifically, his counsel stated,
without elaboration, that Appellant was “seeking to withdraw his plea, and
he’s asserting his innocence as to the two counts that he entered a plea to.”
N.T., 2/20/2020, at 2. The Commonwealth “vehemently” objected, arguing
that allowing Appellant to withdraw his plea would result in substantial
prejudice to the Commonwealth. In support, the Commonwealth noted that
it had already presented “close to 15 witnesses” over a four-day jury trial,
including three expert witnesses whose total expenditures had cost the
Commonwealth approximately $15,000, and the Commonwealth was about
to rest its case when Appellant decided to plead guilty. Id. at 2-4.
The trial court denied Appellant’s motion, which it noted had been
raised at “the 11th hour plus 59 minutes,” because (1) there was compelling
evidence of Appellant’s guilt presented over a four-day jury trial, at the near
conclusion of which Appellant decided to plead guilty; (2) a full colloquy was
conducted prior to the entry of Appellant’s guilty plea; (3) it would be a
“terrible inconvenience and expense to the government to have to retry this
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case”; and (4) it would put strain on the families of the deceased. Id. at 4-6.
Thereafter, the trial court sentenced Appellant in accordance with his
negotiated plea agreement to an aggregate term of incarceration of 8 to 20
years.
On March 2, 2020, Appellant filed a post-sentence motion to
reconsider the denial of his motion to withdraw his plea. According to
Appellant, he pleaded guilty, despite his innocence, as a result of “pressure
from several family members who sat through trial testimony[.]” Post-
Sentence Motion, 3/2/2020, at ¶ 12. Additionally, he assailed the sufficiency
of the evidence presented against him, and claimed that, had he had the
opportunity to testify at trial, he could have explained or refuted his
statements to police, which he claims comprised the only evidence that
Appellant delivered the drugs in question. Id. at ¶¶ 14-20. The
Commonwealth filed a response, and on March 23, 2020, the trial court
denied Appellant’s post-sentence motion. On April 7, 2020, the trial court
granted counsel’s request to withdraw and appointed new counsel for
Appellant.
This timely-filed notice of appeal followed.1 Appellant presents a single
issue for our review: whether the trial court erred in denying his pre-
1Both Appellant and the trial court complied with the mandates of Pa.R.A.P.
1925.
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sentence motion to withdraw his guilty plea. Appellant’s Brief at 5. We
consider this claim mindful of the following.
“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) (citation omitted). “Preliminarily, we
recognize that 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 [] and the substitution of a plea of
not guilty.’” Commonwealth v. Blango, 150 A.3d 45, 47 (Pa. Super. 2016)
(quoting Pa.R.Crim.P 591(A)). Our Supreme Court clarified the standard of
review for considering a trial court’s decision regarding a defendant’s pre-
sentence motion to withdraw a guilty plea.
To be clear, when a trial court is faced with a pre[-]sentence
motion to withdraw a guilty plea, the court’s discretion is not
unfettered. As this Court has often explained, “[t]he term
‘discretion’ imports the exercise of judgment, wisdom and skill
so as to reach a dispassionate conclusion, within the framework
of the law, and is not exercised for the purpose of giving effect
to the will of the judge.” Commonwealth v. Widmer, 744 A.2d
745, 753 (Pa. 2000) (citation omitted). Thus, a court’s discretion
in ruling on a presentence motion to withdraw a guilty plea must
be informed by the law, which, for example, requires courts to
grant these motions liberally, Commonwealth v. Carrasquillo,
115 A.3d 1284 (Pa. 2015) , and to make credibility
determinations that are supported by the record, see
Commonwealth v. Myers, 722 A.2d 649, 652 (Pa. 1998)
(explaining that, “when appellate review involves the trial court’s
findings of fact and credibility determinations, those findings are
binding on the reviewing court if they find support in the
record”). Moreover, while an appellate court should not
substitute its judgment for that of a trial court that ruled on a
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presentence motion to withdraw a guilty plea, the appellate
court is tasked with the important role of assessing the propriety
of the trial court’s exercise of its discretion. See Widmer, 744
A.2d at 753 (“The propriety of the exercise of discretion in such
an instance may be assessed by the appellate process when it is
apparent that there was an abuse of that discretion.”).
Commonwealth v. Norton, 201 A.3d 112, 121 (Pa. 2019) (citation format
altered).
[W]hen a defendant files a presentence motion to withdraw a
guilty plea based upon a claim of innocence, the “innocence
claim must be at least plausible to demonstrate, in and of itself,
a fair and just reason for presentence withdrawal of a
plea.” Carrasquillo, 115 A.3d at 1292. Stated 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.” Id. While the
Carrasquillo Court acknowledged that the “policy of liberality
remains extant,” the Court explained that this policy “has its
limits, consistent with the affordance of a degree of discretion to
the common pleas courts.” Id.
Thus, the Carrasquillo Court clearly established that trial courts
have the discretion to assess the plausibility of claims of
innocence. 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.
Id. at 120-21 (some citations omitted).
[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
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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),
quoting Carrasquillo, 115 A.3d at 1286, 1292-93 (emphasis added).
Here, in considering Appellant’s pre-sentence motion to withdraw his
plea and his post-sentence motion to reconsider, the trial court found
little merit in [Appellant’s] claim of innocence when the
Commonwealth was about to rest its case-in-chief and []
Appellant had the opportunity to present witnesses and testify
on his own behalf. If all that [] Appellant claims is true in his
post-sentence motion, surely [] Appellant could have proceeded
at trial and offered his evidence and let the jury decide. There
was no new evidence discovered from the time Appellant entered
his guilty plea to sentencing that would afford [] Appellant a new
trial or provide a sufficient reason for [] Appellant to withdraw
his guilty plea. He did not raise any other facts or cite specific
circumstances that could have provided a basis for th[e trial]
court to find a sincere or plausible claim of innocence. Simply
put, Appellant’s application to withdraw his guilty plea is an
attempt to manipulate the justice system.
Trial Court Opinion, 5/14/2020, at 5-6.
Upon review, we discern no abuse of discretion in the trial court’s
conclusion that Appellant’s bald assertion of innocence on the day of his
negotiated sentencing hearing was not in any way “plausible to demonstrate,
in and of itself, a fair and just reason for presentence withdrawal of a
plea.” Carrasquillo, 115 A.3d at 1292. Appellant’s assertion of new
reasons, after sentencing, for the trial court to reconsider his pre-sentence
motion to withdraw his plea did not remedy his failure to do so at the time of
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the initial request. See Johnson-Daniels, 167 A.3d at 24. Accordingly, we
conclude that the trial court did not abuse its discretion in denying
Appellant’s pre-sentence motion to withdraw his plea.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 02/25/2021
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