Com. v. Jury, J. ( 2021 )

J-S20033-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JASON THOMAS JURY :
:
Appellant : No. 1445 MDA 2020
Appeal from the Judgment of Sentence Entered September 23, 2020
In the Court of Common Pleas of Columbia County Criminal Division at
No(s): CP-19-CR-0000732-2019
BEFORE: NICHOLS, J., KING, J., and MUSMANNO, J.
MEMORANDUM BY MUSMANNO, J.: FILED: AUGUST 16, 2021
Jason Thomas Jury (“Jury”) appeals from the judgment of sentence
entered following his guilty plea to strangulation, terroristic threats, and
criminal trespass.1 After careful review, we affirm.
The trial court set forth the following factual and procedural history:
On June 17, 2020, [Jury] pled guilty to Count 4,
[s]trangulation (F2); Count 6, [t]erroristic [t]hreats (M1) and
Count 3, [c]riminal [t]respass (F3). Hugh Sumner, Esq.
[(“Attorney Sumner”)] represented [Jury] at the guilty plea
hearing. A full written and oral colloquy was conducted, including
[Jury’s] confirmation that he understood that he was innocent
until proven guilty (written colloquy), that he was giving up many
rights by pleading guilty, including the right to a trial, and [Jury]
admitted to facts fulfilling the elements of each offense.
On July 15, 2020, [Jury] filed a Motion to Withdraw Guilty
Plea (the “Written Motion”). The Written Motion did not present
any reason for withdrawal of the plea except for [Jury’s]
____________________________________________
1 18 Pa.S.C.A. §§ 2718(a)(1), 2706(a)(1), 3503(a)(1).
J-S20033-21
profession of innocence (See paragraphs 4-5 of the Written
Motion). A hearing on the Written Motion was scheduled for
August 19, 2020[,] and a sentencing hearing was scheduled
directly to follow, if the Written Motion were to be adjudicated
adversely to [Jury].
***
At the hearing on the Written Motion on August 19, 2020,
[Jury] continued to be represented by [Attorney] Sumner. At that
hearing, as in the Written Motion, [Jury] professed his innocence
(N.T., 8/19/20, p. 4 [].) Most of the hearing was spent on [Jury’s]
claim that, when he plead guilty, he had been unaware of a 2001
conviction for [e]scape as reflected in the Pre[-]Sentence
Investigation (“PSI”) Report. To make it very clear: [Jury] did
not contest that he was convicted of [e]scape in 2001 or that its
inclusion in applying the Sentencing Guidelines was erroneous; he
only asserts that he did not know about it because the criminal
history produced to him in 2020 on this case did not contain that
conviction. It was apparently discovered by our probation/parole
office during its correct compilation of the Sentencing Guidelines.
***
As th[e trial] court was dictating the Order of August 19,
2020[,] denying the Written Motion, [Jury] demonstrated deft
acrobatics in leaping over the bar behind defense counsel’s table,
onto the first pew, and then into the center aisle, after which he
ran out of the courtroom and Courthouse. He was apprehended[,]
and sentencing was rescheduled to September 23, 2020. At that
sentencing hearing, [Jury] was represented by new counsel, Peter
T. Campana, Esq. [Attorney] Campana orally renewed the motion
to withdraw guilty plea, which was again denied.
Trial Court Opinion, 12/9/20, at 1-5. The trial court sentenced Jury to an
aggregate sentence of forty-eight to ninety-months in prison. Jury filed a
post-sentence Motion, which the trial court denied. Jury filed a timely Notice
of Appeal, and a court-ordered Pa.R.A.P. 1925(b) Concise Statement of
matters complained of on appeal.
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Jury presents a single question for our review: “Whether the trial court
abused its discretion in denying [Jury’s] pre-sentence Motion to withdraw his
guilty plea?” Brief for Appellant at 5 (extraneous capitalization omitted).
Jury argues that the trial court should have considered the timing and
the nature of the innocence claim along with the strength of the evidence
against him when determining whether to grant his request to withdraw his
guilty plea. Id. at 8. He further asserts that, less than thirty days after he
had entered the plea, Jury instructed Attorney Sumner to file a Motion to
Withdraw because of his claim of innocence. Id. Jury points to the following
exchange between him and Attorney Sumner at the hearing on his Motion to
Withdraw:
Q: Mr. Jury, you wish to have a trial and assert your innocence
of the charges against you? Is this correct?
A: Yes, sir.
Id. at 8 (citing N.T. (Motion to Withdraw Guilty Plea), 8/19/20, at 4). Jury
further avers that the Commonwealth did not make any argument regarding
his innocence, nor did it cross-examine Jury regarding his claim. Id. at 8. It
is also noteworthy that Jury admits that Attorney Sumner also failed to “elicit
any facts from [Jury] to support his claim of innocence.” Id. at 9. Finally,
Jury argues that the trial court erred because it did not “state any reason” for
denying the Motion, nor did it discuss whether the Commonwealth suffered
any prejudice. Id.
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Our standard of review regarding a defendant’s request to withdraw a
guilty plea prior to sentencing is well established:
“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). Pennsylvania Rule of Criminal Procedure
591(A) provides that, “[a]t 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).
“Although there is no absolute right to withdraw a guilty plea,
properly received by the trial court, it is clear that a request made
before sentencing should be liberally allowed.” Commonwealth
v. Kpou, 153 A.3d 1020, 1022 (Pa. Super. 2016)[ ]. Therefore,
if the defendant provides a fair and just reason for wishing to
withdraw his or her plea, the trial court should grant it unless it
would substantially prejudice the Commonwealth.
Commonwealth v. Carrasquillo, [ ] 115 A.3d 1284, 1287 ([Pa.]
2015) (citation omitted).
Commonwealth v. Williams, 198 A.3d 1181, 1184 (Pa. Super. 2018).
The determination of whether there is a “fair and just reason” to
withdraw a guilty plea is based on the totality of the circumstances present at
the time the withdrawal request is made. Commonwealth v. Tennison, 969
A.2d 572, 573 (Pa. Super. 2009). “[T]he 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.” Carrasquillo, 115 A.3d at
1292; see also Commonwealth v. Hvizda, 116 A.3d 1103, 1107 (Pa.
2015) (reaffirming the Carrasquillo Court’s holding that bald assertions of
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innocence are no longer sufficient grounds to permit withdrawal of a guilty
plea). In determining whether a defendant has made a plausible assertion of
innocence, trial courts should consider the timing and nature of the innocence
claim, the relationship of that claim to the strength of the Commonwealth’s
evidence, and any ulterior or illicit motive for the motion to withdraw. Islas,
156 A.3d at 1190-91. Further,
[c]onsistent 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, the trial court addressed Jury’s claim as follows:
[Jury’s] allegation that he was not aware of the 2001 escape
conviction was not in the Written Motion, but [Jury] was given a
full opportunity to elaborate upon this professed reason to
withdraw his guilty plea. The incredibility of [Jury’s] claim that he
was unaware of the 2001 [e]scape conviction was pointed out by
(1) the fact that [Jury] lived through it, i.e., it was he who was
convicted of [e]scape in 2001; and (2) the 2001 [e]scape
conviction was disclosed in a PSI Report (Ex, C-1 of 8/19/20)
which was compiled for a July [] 2016 [f]irearm conviction and
sentencing. [Jury’s] counsel in 2016 was the same counsel who
represented him in the guilty plea in the present case, [Attorney]
Sumner. This court found that [Jury] was not credible in making
his claim that he was not aware of the 2001 [e]scape conviction.
Beyond the incredibility of [Jury’s] claim that he was not
aware of his 2001 [e]scape conviction, one must note that, even
if true, the same does not constitute a “fair and just reason.” At
his guilty plea and throughout the oral and written colloquy, this
court did not mention that our acceptance of the plea was
conditioned on a certain prior record score. Likewise, [Jury] did
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not condition his guilty plea on a certain prior record or sentence.
In fact, the written colloquy confirms that the plea was not entered
into on the condition of any particular sentence. Further, whether
[Jury] was convicted of [e]scape in 2001 does not have anything
to do with demonstrating a plausible reason for [Jury’s] profession
of innocence in this case. It was pointed out on the record (NT
8/19/20 p. 5 []) and in our Order dated August 19, 2020 that,
even if [Jury] had not been convicted of the 2001 [e]scape, his
Standard Range on the [s]trangulation count would have been 18-
30 months, a significant sentence in itself. Although not
articulated as such by [Jury], it is as if he is saying that, if his
Standard Range would have been 18-30 months, he would
continue to admit his guilt and serve that sentence, but now that
he knows that the Standard Range is 36-48 months (which
includes the 2001 [e]scape conviction in his Prior Record Score),
that is too much[,] and he does not want to serve that particular
sentence. That assertion is patently ludicrous. It certainly has
nothing to do with rendering plausible [Jury’s] profession of
innocence.
Trial Court Opinion, 12/9/20, at 3-4.
The trial court’s findings are supported by the record. At the guilty plea
hearing, Jury confirmed that he was pleading guilty of his own free will and
that he understood the elements of each of the crimes to which he was
pleading. N.T. (Guilty Plea), 6/17/20, at 2-4. He further admitted to the facts
underlying each charge. Id. at 5-6. Finally, Jury reiterated that he was
pleading guilty of his own free will, that no threats or promises were made
regarding the guilty plea, and that he was satisfied with his representation.
Id. at 6.
Moreover, at the hearing on Jury’s Motion to Withdraw his guilty plea,
the vast majority of the hearing was spent discussing the 2001 escape charge.
Jury made only a single reference to his innocence, in response to a single
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question posed by Attorney Sumner. Such a bare assertion of innocence is
insufficient to constitute a fair and a just reason for withdrawal. See Norton,
201 A.3d at 121. Indeed, other than asserting his innocence in his Motion to
Withdraw and the brief dialogue with counsel discussed supra, Jury did not
provide any discussion, analysis or reasoning regarding his claim of innocence.
As our Supreme Court stated in Carrasquillo,
[p]resently, 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 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.
Carrasquillo, 115 A.3d at 1292. Jury failed to provide more than a bald
assertion of innocence and has failed to show that withdrawal of his plea would
promote fairness and justice; thus, the trial court did not abuse its discretion
in denying Jury’s Motion to Withdraw his guilty plea.
Judgment of Sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 08/16/2021
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