Com. v. Ortiz-Cuevas, L.

J-A10002-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
LUIS ALBERTO ORTIZ-CUEVAS :
:
Appellant : No. 1010 MDA 2021
Appeal from the Judgment of Sentence Entered July 26, 2021
In the Court of Common Pleas of York County
Criminal Division at No(s): CP-67-CR-0002706-2019
BEFORE: PANELLA, P.J., KUNSELMAN, J., and KING, J.
MEMORANDUM BY PANELLA, P.J.: FILED: SEPTEMBER 20, 2022
Luis Alberto Ortiz-Cuevas appeals from the judgment of sentence
entered in the York County Court of Common Pleas on July 26, 2021, following
the denial of his motion to withdraw the Alford plea he entered to a charge
of involuntary deviate sexual intercourse with a minor. Ortiz-Cuevas contends
the trial court abused its discretion by denying his motion to withdraw the
plea. After careful review, we affirm.
The Commonwealth filed a criminal complaint against Ortiz-Cuevas
charging him with rape of a child, involuntary deviate sexual intercourse,
indecent assault, and corruption of minors. These charges stemmed from
allegations reported by the minor complainant to her mother. The
complainant’s mother was Ortiz-Cuevas’s ex-paramour. The conduct was
J-A10002-22
reported to have occurred once, sometime between April 2013 and April 2014,
when the complainant was four years old.
The parties appeared for a jury trial on March 22, 2021. As the trial court
explained:
Both parties indicated they were ready to proceed, and
prospective jurors were assembled. Prior to voir dire, [Ortiz-
Cuevas] chose to enter an Alford plea to Count 2 — Involuntary
Deviate Sexual Intercourse, a Felony of the First Degree, and the
remaining counts were nolle prossed. After a written and oral plea
colloquy, the court found [Ortiz-Cuevas]’s plea to be knowingly
and voluntarily entered, and accepted the same.[] To allow time
for the Sexual Offender Assessment Board to conduct an
evaluation of [Ortiz-Cuevas] to determine whether he met the
criteria to be found by the court as a sexually violent predator,
sentencing was scheduled for June 29, 2021.
Trial Court Opinion, 9/21/2021, at 2. Ortiz-Cuevas subsequently retained new
counsel, and approximately one and one half months after entering his plea,
which was over a month prior to sentencing, Ortiz-Cuevas’s new counsel
moved to withdraw the Alford plea. In that motion, Ortiz-Cuevas asserted his
innocence and argued the Alford plea was constitutionally invalid. On July 15,
2021, Ortiz-Cuevas renewed the motion.
The court continued the sentencing hearing to July 26, 2021, in order to
accommodate Ortiz-Cuevas’s motion to withdraw his Alford plea. At the
hearing, Ortiz-Cuevas maintained his innocence and claimed he only entered
a plea because the trial judge’s comments regarding sentencing had scared
him.
-2-
J-A10002-22
The court denied the motion, noting that Ortiz-Cuevas had not laid out
a proper foundation for his motion to withdraw a guilty plea. Instead, the court
noted, Ortiz-Cuevas simply asserted he was not guilty. The court proceeded
to sentence Ortiz-Cuevas to four to eight years’ incarceration, pursuant to the
plea agreement. This timely appeal followed.
Ortiz-Cuevas raises the following three issues on appeal:
I. Did the Trial Court abuse its discretion in denying [] Ortiz-
Cuevas'[s] presentence Motion to Withdraw Alford Plea where fair
and just reasons existed for the requested relief as demonstrated
by, inter alia, the timing of his request and the plausibility of his
assertion of innocence, which was not undermined by the
evidentiary proffer made by the Commonwealth at the Alford plea
hearing?
II. Did the Trial Court abuse its discretion in denying [] Ortiz-
Cuevas' presentence Motion to Withdraw Alford Plea where that
plea was demonstrably involuntarily tendered?
III. Did the Trial Court abuse its discretion in denying [] Ortiz-
Cuevas'[s] presentence Motion to Withdraw Alford Plea where that
plea was not knowingly or intelligently entered as [] Ortiz-Cuevas
was neither colloquied on the elements of the offense nor on [the
Sex Offender and Registration Act (“SORNA”)'s registration
requirements?
Appellant’s Brief, at 4.
Important to our analysis is the fact that Ortiz-Cuevas filed his motion
to withdraw his Alford plea prior to sentencing. “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). A pre-sentence withdrawal of a guilty plea is
governed by Pennsylvania Rule of Criminal Procedure 591(A), which provides:
-3-
J-A10002-22
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). “When a trial court comes to a conclusion through the
exercise of its discretion, there is a heavy burden on the appellant to show
that this discretion has been abused.” Commonwealth v. Norton, 201 A.3d
112, 120 (Pa. 2019) (brackets omitted) (citation omitted). “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 which overrides or
misapplies the law, or where the judgment exercised is manifestly
unreasonable, or the result of partiality, prejudice, bias or ill-will.” Norton,
201 A.3d at 120 (brackets omitted) (citation omitted). Absent an abuse of
that discretion, an appellate court should not disturb a trial court's ruling. See
id.
It is also important to keep in mind that Ortiz-Cuevas is not seeking to
withdraw a “typical” guilty plea. Rather he seeks to withdraw an Alford plea.
As our Supreme Court stated:
In Alford, the U.S. Supreme Court explained that most guilty
pleas consist of an express admission of guilt and the plea of nolo
contendere is regarded as a tacit admission of guilt. When a
criminal defendant is unable or unwilling to admit to participating
in acts constituting a crime, but the record contains strong
evidence of guilt, the defendant may conclude that a guilty plea is
in his or her best interests. Thus, a person entering an Alford plea
claims innocence, but consents to the imposition of a prison
sentence.
-4-
J-A10002-22
Pasture, 107 A.3d at 23 n. 1 (citations omitted). This Court further explained
an Alford plea in Commonwealth v. Snavely, 982 A.2d 1244 (Pa. Super.
2009):
An Alford plea is a nolo contendere plea in which the defendant
does not admit guilt but waives trial and voluntarily, knowingly
and understandingly consents to the imposition of punishment by
the trial court. Provided the record reflects a factual basis for guilt,
the trial court may accept the plea notwithstanding the
defendant's protestation of innocence. Typically … a defendant is
exchanging his plea for a reduced sentence or reduced charges.
Id. at 1244 n. 1 (citations omitted). The legal effect of a plea of nolo
contendere is the same as a guilty plea. See Commonwealth v. Lewis, 791
A.2d 1227, 1230 (Pa. Super. 2002).
While Ortiz-Cuevas presents three distinct questions for our review, all
of the questions focus on the trial court’s refusal to allow Ortiz-Cuevas to
withdraw his Alford plea. In addressing the propriety of the trial court’s
decision, we note at the outset that Ortiz-Cuevas does not have an absolute
right to withdraw his Alford plea. See Commonwealth v. Muhammad, 794
A.2d 378, 382 (Pa. Super. 2002). Instead, the decision whether to allow Ortiz-
Cuevas to withdraw his Alford plea was committed to the discretion of the
trial court. Id. We review the trial court’s denial of Ortiz-Cuevas’s request for
an abuse of discretion. See Commonwealth v. Gordy, 73 A.3d 620, 624
(Pa. Super. 2013). To resolve Ortiz-Cuevas’s pre-sentence motion to withdraw
his Alford plea, the trial court was required to determine whether “permitting
-5-
J-A10002-22
withdrawal of the plea would promote fairness and justice.” Commonwealth
v. Johnson-Daniels, 167 A.3d 17, 24 (Pa. Super. 2017) (citation omitted).
When faced with a pre-sentence request to withdraw a plea, the court
must exercise its discretion “liberally in favor of the accused[.]”
Commonwealth v. Carrasquillo, 115 A.3d 1284, 1292 (Pa. 2015). “[A]ny
demonstration … of a fair-and-just reason will suffice to support a grant,
unless withdrawal would work substantial prejudice to the Commonwealth.”
Id. (citation omitted). A mere claim of innocence will not be enough in all
cases; the focus is on whether withdrawal will promote fairness and justice.
See id.We presume that Ortiz-Cuevas was aware of what he was doing when
he entered his Alford plea. See Commonwealth v. Stork, 737 A.2d 789,
790 (Pa. Super. 1999). Consequently, he is bound by statements he made
during his guilty plea colloquy and may not successfully assert any claims that
contradict those statements. See Muhammad, 794 A.2d at 384.
Ortiz-Cuevas’s arguments on appeal center on three distinct factual
claims. First, he observes that he has consistently maintained his innocence
in this matter as demonstrated by his action in choosing an Alford plea over
a traditional guilty plea. See Appellant’s Brief, at 9. Second, he claims his free
will was “overborne” by the trial judge’s warning of a possible sentence of “in
excess of twenty to forty years if it comes back to me with a conviction and I
get to impose sentence.” Id., at 10. Finally, Ortiz-Cuevas asserts he was
-6-
J-A10002-22
unaware of the lifetime registration and reporting requirements that would be
imposed pursuant to his plea. See id.
We begin by acknowledging that Ortiz-Cuevas has consistently
maintained his innocence of the charges in this matter. However, this does
not necessarily inure to his benefit under the circumstances of this case. He
did not plead guilty, but rather explicitly acknowledged that he was accepting
a lesser sentence in consideration of the risk of a lengthier sentence should
the Commonwealth prevail after a trial:
You know, I would love to go to trial and go for it, but I am afraid
of the twenty to forty year sentence that you could impose if I
don’t, you know, win the case. Honestly, Your Honor, I am afraid
for my life. I have a family at home.
N.T., Guilty Plea Hearing, 3/22/21, at 7.
Since Ortiz-Cuevas never admitted his guilt in this matter, his profession
of innocence in his motion to withdraw did not necessarily represent a change
in circumstances. Rather, it possibly represented “buyer’s remorse:” Ortiz-
Cuevas’s subsequent regret over the decision he made to take the Alford
plea. In other words, Ortiz-Cuevas subsequently re-weighed the risks and
benefits and came to a different conclusion. We cannot conclude that, under
these circumstances, the trial court abused its discretion in deciding that Ortiz-
Cuevas’s continued profession of innocence did not provide a fair and just
reason to withdraw his guilty plea by itself.
However, in addition to his claim of innocence, Ortiz-Cuevas also
contends his plea was involuntarily and unknowingly entered. Specifically, he
-7-
J-A10002-22
argues the trial court coerced him into entering his Alford plea. Ortiz-Cuevas
points out that the trial judge intimated that he would impose a sentence in
excess of twenty to forty years if the jury convicted Ortiz-Cuevas of
committing the charged crimes. See N.T., Guilty Plea Hearing, 3/22/21, at 2.
While the judge’s statement, taken in isolation, could be construed as
an attempt to pressure Ortiz-Cuevas to accept the proffered plea deal, the
colloquy as a whole refutes that interpretation. The trial judge subsequently
disclaimed any attempt at prejudging the case. See id. at 3. Further, during
the plea colloquy, the trial judge explicitly asked Ortiz-Cuevas, “Am I forcing
you to do this?” Id. at 8. Ortiz-Cuevas responded:
I am not being forced, but it brought a lot of pressure onto me –
being – you know, twenty to forty years is the rest of my life. I
have seen people innocently convicted. I have seen it all. So I
would rather take a deal, which I will still have my life when I get
home if that is the case.
Id.
The impact of the trial judge’s statement was further explored at the
end of the colloquy:
THE COURT: Has anyone forced you, threatened you, coerced you,
done anything to make you accept this plea in this case?
THE DEFENDANT: To be honest, Your Honor, that twenty to forty
you mentioned scared me.
THE COURT: Okay. Well, I can bring the jury up?
THE DEFENDANT: No.
-8-
J-A10002-22
THE COURT: I need you to be clear on this. I can’t have you come
back at sentencing and say, I was coerced. You forced me to do
it, Judge.
And if you believe that, I don’t have any problem with it. I am
prepared to get the jury to come upstairs. They are standing in a
line downstairs.
THE DEFENDANT: My personal opinion is – it is just – yeah, I made
the decision on my own free will, Your Honor.
THE COURT: I have not forced you?
THE DEFENDANT: No. No. I just had to sit down and think about
it thoroughly.
N.T., Guilty Plea Hearing, 3/22/21, at 14-15.
As noted above, Ortiz-Cuevas is bound by the statements he made
under oath during the plea colloquy. He explicitly denied he was being forced
to accept the plea deal. Instead, he explained that he was primarily concerned
with the possibility of spending the rest of his life in jail. He accepted the
proffered deal in order to avoid that risk. Under these circumstances, we
cannot conclude the trial court abused its discretion in finding that its
comments regarding sentencing did not force Ortiz-Cuevas to accept the
Alford plea.
Finally, Ortiz-Cuevas contends that he was not aware of the lifetime
registration and reporting requirements that would be a collateral
consequence of his negotiated plea. We acknowledge that the plea colloquy
does not explicitly refute this argument. There is no explicit mention of
registration or reporting requirements under SORNA.
-9-
J-A10002-22
Nonetheless, Ortiz-Cuevas is not entitled to relief because he does not
assert that his registration requirements are punitive in nature. While Ortiz-
Cuevas extensively argues that his plea is invalid due to his ignorance of the
registration requirements, he relies, to his detriment, on an error contained in
the trial court’s opinion on appeal. The trial court erroneously claimed it
imposed registration requirements under SORNA II’s Subchapter I. See Trial
Court Opinion, 9/21/21, at 11. However, it is SORNA II’s Subchapter H that
applies to Ortiz-Cuevas’s convictions, as the underlying offenses were
committed after the effective date of SORNA II – December 20, 2012.
Ortiz-Cuevas mistakenly relies on the trial court’s erroneous
classification in arguing before this Court:
In its Opinion Pursuant to Rule 1925(a), the Trial Court relies on
Commonwealth v. Lacombe, 234 A.3d 602 (Pa. 2020) in
concluding that no remedy is warranted based on its failure to
apprise Mr. Ortiz-Cuevas[] of the life-time registration
requirements. While it is conceded that Subchapter I was the
legislature’s response to Commonwealth v. Muniz, and that the
Court in Lacombe held that Subchapter I was not punitive in
effect such that retroactive application of its provisions did not
violate ex post facto clauses, it is nevertheless maintained that
the failure of the Trial Court to apprise Mr. Ortiz-Cuevas of the
life-time registration requirements [invalidated] the plea, or at the
very least, significantly contributed to the totality of
circumstances demonstrating that Mr. Ortiz-Cuevas did not have
a full understanding of the nature and consequences of his plea.
Appellant’s Brief, at 27 (internal citations and quotation marks omitted).
If Ortiz-Cuevas’s registration requirements are non-punitive, then they
are deemed a collateral consequence of his conviction and he need not be
- 10 -
J-A10002-22
aware of them before pleading guilty. See Commonwealth v. Leidig, 956
A.2d 399 (Pa. 2008).
Even though Ortiz-Cuevas makes no attempt to argue that the
registration requirements imposed on him were punitive, we must address his
issue on the merits. See Commonwealth v. Hart, 174 A.3d 660 (Pa. Super.
2017). There, Hart argued that he should be allowed to withdraw his nolo
contendere plea due to the trial court’s failure to follow its standard practice
of informing him, on the record, of his registration requirements under SORNA
I. See id., at 663. Neither of his issues on appeal asserted that SORNA I
registration requirements were punitive. See id., at 664. This is unsurprising,
as Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017) (holding SORNA I
registration requirements to be punitive in nature), was issued during the
pendency of the appeal in Hart. See Hart, 174 A.3d at 666. The Hart panel,
however, recognized the recent holding of Muniz and applied it while
addressing Hart’s issues on appeal. Based on Muniz, the Hart panel
concluded that the trial court abused its discretion in denying Hart’s post-
sentence motion to withdraw his nolo contendere plea due to the trial court’s
failure to inform Hart of SORNA I’s registration requirements. See id., at 668.
While we must address Ortiz-Cuevas’s issue on appeal pursuant to Hart,
we conclude Hart is otherwise distinguishable from this case. As noted, Hart
dealt with SORNA I, while the registration requirements here are imposed
pursuant to SORNA II, subchapter H. When Hart was filed, SORNA I’s
- 11 -
J-A10002-22
registration requirements were clearly and unmistakably deemed to be
punitive pursuant to Muniz. In contrast, whether SORNA II, subchapter H’s
registration requirements are punitive in nature is an open question. See
Commonwealth v. Thorne, 276 A.3d 1192, 1198 (Pa. 2022).
Accordingly, we must analyze, in the first instance, whether subchapter
H’s registration requirements are punitive in nature. In this regard, we
conclude that a recent decision of this Court is controlling. In Commonwealth
v. Wolf, a panel of this Court refused to entertain a claim that subchapter H
was punitive in nature in the absence of a developed factual record in support
of that contention. See id., 276 A.3d 805, 813 (Pa. Super. 2022). Here, Ortiz-
Cuevas has failed to present a factual record capable of supporting a
conclusion that subchapter H is punitive in nature. Under these circumstances,
we “will not venture beyond our Supreme Court’s holding in [Commonwealth
v. Torsilieri, 232 A.3d 567 (Pa. 2020).]” Wolf, 276 A.3d at 813. If, for
purposes of this appeal, SORNA II’s subchapter H registration requirements
are not punitive, the trial court was not required to inform Ortiz-Cuevas of
them before accepting his guilty plea. See Leidig, 956 A.2d at 406.
Accordingly, Ortiz-Cuevas has failed to establish that the trial court erred in
refusing to allow him to withdraw his Alford plea.
- 12 -
J-A10002-22
As we conclude none of Ortiz-Cuevas’s issues on appeal merit relief, we
affirm the judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/20/2022
- 13 -