Com. v. Hoopsick, D.

J-S42023-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
DANIEL JOSEPH HOOPSICK, JR.
Appellant No. 1816 WDA 2013
Appeal from the Judgment of Sentence October 23, 2013
In the Court of Common Pleas of Erie County
Criminal Division at No(s): CP-25-CR-0000648-2013
BEFORE: PANELLA, J., JENKINS, J., and MUSMANNO, J.
MEMORANDUM BY JENKINS, J.: FILED AUGUST 04, 2014
Daniel Joseph Hoopsick, Jr. (“Appellant”) appeals from the judgment of
sentence entered following his nolo contendere plea. After careful review,
we vacate the judgment of sentence and remand the matter for further
proceedings.
The facts and procedural history may be summarized as follows. On
July 10, 2013, Appellant entered a plea of nolo contendere to one count
each of sexual assault,1 endangering the welfare of children,2 and corruption
of minors3 based on allegations that he forced a minor female victim to
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1
18 Pa.C.S. § 3124.1.
2
18 Pa.C.S. § 4304.
3
18 Pa.C.S. § 6301.
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perform oral sex on him in December of the previous year. Prior to
sentencing, Appellant filed a Motion to Withdraw Nolo Contendere Plea and
Continue Until January 2014 Trial Term (“Motion to Withdraw Plea”) to which
the Commonwealth filed a response. On October 23, 2013, the trial court
conducted a hearing and denied the Motion to Withdraw Plea. The trial court
then sentenced Appellant to an aggregate term of 66 to 180 months of
incarceration as follows: 54 to 120 months of incarceration on the sexual
assault conviction, 12 to 60 months of incarceration on the endangering
welfare of children conviction to be served consecutively to the sexual
assault conviction, and 12 to 60 months of incarceration on the corruption of
minors conviction to be served concurrently to the endangering the welfare
of children conviction. Appellant timely appealed.
Appellant raises the following questions for our review:
[1.] Did the lower court improperly deny defense counsel’s
request for the appointment of conflict counsel[] in violation of
[Appellant’s] 6th Amendment right to counsel?
[2.] Did the lower court err in failing to permit Appellant to
withdraw his plea, as his plea was not knowing and voluntary?
[3.] Did the lower cour[t] abuse its discretion when it deemed
[Appellant] a sexually violent predator, as there was insufficient
evidence to support such a finding?
Appellant’s Brief, p. 2 (all capitals removed).
We address Appellant’s second claim first, as it is dispositive.
Appellant argues that the trial court erred when it did not allow him to
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withdraw his plea of nolo contendere prior to sentencing. See Appellant’s
Brief, pp. 4-6. We agree.
“[I]n terms of its effect upon a case, a plea of nolo contendere is
treated the same as a guilty plea.” Commonwealth v. Miller, 748 A.2d
733, 735 (Pa.Super.2000). The Pennsylvania Rules of Criminal Procedure
allow the withdrawal of a nolo contendere plea as follows:
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). We review a trial court’s denial of a motion to
withdraw a guilty plea for an abuse of discretion. Miller, 748 A.2d at 735.
Although there is no absolute right to withdraw a guilty plea, this Court
has repeatedly stated that “[a] pre-sentence motion to withdraw a guilty
plea should be liberally allowed and should be granted for any fair and just
reason unless granting the motion would cause substantial prejudice to the
Commonwealth.” Commonwealth v. Gordy, 73 A.3d 620, 623-24
(Pa.Super.2013) (citing Miller, 748 A.2d at 735) (internal citations omitted).
As the Court has further explained:
An assertion of innocence can constitute a fair and just reason
for plea withdrawal. In the context of a pre-sentence request for
plea withdrawal, the term “prejudice” means that, due to events
occurring after the entry of the plea, the Commonwealth’s
prosecution of its case is in a worse position that it would have
been had the trial taken place as originally scheduled. Thus,
prejudice is about the Commonwealth’s ability to try its case, not
about the personal inconvenience to complainants unless that
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inconvenience somehow impairs the Commonwealth’s
prosecution.
Gordy, 73 A.3d at 624 (internal citations omitted). The fact that a witness
later becomes a reluctant witness does not demonstrate that substantial
prejudice has inured to the Commonwealth to permit denial of pre-sentence
withdrawal of a guilty plea. See Commonwealth v. Kirsch, 930 A.2d
1282, 1286-88 (Pa.Super.2007).
Here, Appellant filed his Motion to Withdraw Plea prior to sentencing.
In support of his request, Appellant claimed actual innocence both in his
motion and at the hearing on the motion. See Motion to Withdraw Plea, p. 1
(“Motion to Withdraw Plea”); N.T. 10/23/2013, p. 4. Appellant’s claim of
actual innocence constituted a fair and just reason for the trial court to
permit the pre-sentence withdrawal of Appellant’s guilty plea.4 See Gordy,
supra.
At the hearing on the Motion to Withdraw Plea, the Commonwealth
offered the testimony of Stacie Pedersen, the victim’s caseworker from the
Erie County Office of Children and Youth. See N.T. 10/23/2013, pp. 6-10.
Ms. Pedersen explained that, prior to Appellant’s nolo contendere plea, the
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4
We note that Appellant’s claim of actual innocence does not contradict his
previous plea. See Commonwealth v. Boyd, 292 A.2d 434, 435
(Pa.Super.1972) (noting that a plea of nolo contendere is not an express
admission of guilt, but instead is a waiver of trial and an authorization for
the court to treat the defendant as if he were guilty for the purpose of the
case).
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victim exhibited an elevated level of anxiety, decreased concentration,
difficulties in school, behavioral outbursts, aggressive behaviors, and bed-
wetting. Id. at 8. Ms. Pedersen testified that these behaviors decreased
significantly after the victim learned of the plea and believed the matter to
be resolved. Id. at 7. However, Ms. Pedersen opined that the victim’s
anxiety and negative behaviors would return and possibly increase if the
victim learned that she would have to testify in a trial. Id. at 8. Based on
the Motion to Withdraw Plea and the hearing testimony, the trial court
denied the motion, explaining that (1) Appellant had presented a fair and
just reason for the withdrawal of his plea, but (2) “there would be a
significant impact upon the child victim if that plea were withdrawn.” N.T.
10/23/2013, p. 17. This was error.
The victim’s pre-plea anxiety is akin to anxiety experienced by
witnesses in criminal cases every day in this Commonwealth and amounts to
her personal inconvenience. That the victim’s mental state had improved
after learning of the plea is immaterial. Appellant’s request to withdraw his
nolo contendere plea would have returned the Commonwealth to exactly
where it had been prior to the plea: in a situation where the Commonwealth
needed to prove its case using the testimony of a reluctant witness.5 As
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5
We further note that the “significant impact upon the child” feared by the
trial court was entirely speculative. Even if proven, the witness’s increased
reluctance to testify attendant to learning Appellant had withdrawn his plea
(Footnote Continued Next Page)
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such, the Commonwealth would not have experienced “substantial
prejudice” had the trial court allowed Appellant to withdraw his plea prior to
sentencing. See Gordy, supra; see also Kirsch, 930 A.2d at 1288 (having
to prove its case following withdrawal of a plea is not prejudice to the
Commonwealth). Accordingly, the trial court abused its discretion in denying
the pre-sentencing Motion to Withdraw Plea.
Because our determination of Appellant’s second issue is dispositive to
the matter, we need not examine his remaining claims.
Judgment of sentence vacated. Order denying the Motion to Withdraw
Plea reversed. Case remanded for further proceedings consistent with this
decision. Jurisdiction relinquished.
Judge Panella notes dissent.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/4/2014
_______________________
(Footnote Continued)
would not have demonstrated substantial prejudice to the Commonwealth.
See Gordy, supra.
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