Com. v. McCabe, J.

J-S73010-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JAMIE DUNCAN MCCABE,
Appellant No. 50 MDA 2014
Appeal from the Judgment of Sentence December 9, 2013
In the Court of Common Pleas of Schuylkill County
Criminal Division at No(s): CP-54-CR-0001871-2012
BEFORE: BOWES, WECHT, and MUSMANNO, JJ.
MEMORANDUM BY BOWES, J.: FILED DECEMBER 04, 2014
Jamie Duncan McCabe appeals from the judgment of sentence of one
to two and one-half years incarceration imposed by the trial court after he
pled guilty to driving under the influence of drugs (“DUI”) and possession of
cocaine. We affirm.
We glean the following facts from the affidavit of probable cause
contained in Appellant’s criminal complaint. On June 28, 2011, Pottsville
Police responded to the 800 block of Grant Street in Pottsville due to a
report of an individual parked in the middle of the roadway obstructing
traffic. Officer Richard Pugh arrived on the scene at approximately
7:30 a.m. He observed a black Ford sport utility vehicle blocking the street.
When he approached, he saw that the vehicle’s engine was running and the
transmission was in drive. Accordingly, he reached through the driver’s side
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window and placed the vehicle in park. Appellant was seated in the driver’s
seat and remained oblivious to the officer’s actions.
Appellant had difficulty awakening, and his eyes were glassy and
extremely bloodshot. According to the officer, Appellant was disoriented,
had difficulty answering questions, and was speaking with slow slurred
speech. Officer Pugh asked Appellant to exit the vehicle. Upon alighting
from the car, Appellant had difficulty standing. Appellant failed field sobriety
tests and was placed under arrest. As a result of the arrest, a search
incident to arrest was conducted. The search of Appellant’s person yielded
two small clear baggies containing a white powder substance that tested
positively for cocaine. In addition, blood tests confirmed that Appellant had
the presence of cocaine, cocaine metabolites, Alprazolam, and Phenobarbital
in his system.
Appellant initially pled guilty on May 24, 2013; however, he withdrew
that plea. Thereafter, Appellant again entered a guilty plea on August 16,
2013. Nonetheless, the court permitted him to withdraw that plea. The
instant guilty plea occurred on October 18, 2013. On the date of sentencing,
December 9, 2013, prior to his sentence being imposed, Appellant moved to
withdraw his guilty plea. Appellant did not assert his innocence. The
Commonwealth objected, claiming that Appellant was gaming the system
and that he had entered his plea on the date of jury selection. It added that
it was prejudiced by Appellant’s latest attempt to withdraw his plea and that
the reasons he provided were known before the entry of his plea.
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The court declined to allow Appellant to withdraw his plea and imposed
a sentence of one year to two and one-half years on the possession charge
and a concurrent sentence of three to six months for the DUI. This timely
appeal ensued. The trial court directed Appellant to file and serve a
Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal.
Appellant complied, and the trial court authored its decision. The matter is
now ripe for this Court’s review. Appellant’s sole issue on appeal is “whether
the trial court abused its discretion in denying Appellant’s motion to
withdraw his guilty plea prior to sentencing?” Appellant’s brief at 6.
“There is no absolute right to withdraw a guilty plea. Nevertheless,
prior to the imposition of sentence, a defendant should be permitted to
withdraw his plea for any fair and just reason, provided there is no
substantial prejudice to the Commonwealth.” Commonwealth v. Walker,
26 A.3d 525, 529 (Pa.Super. 2011) (citations and quotation marks omitted);
see Commonwealth v. Randolph, 718 A.2d 1242 (Pa. 1998);
Commonwealth v. Forbes, 299 A.2d 268 (Pa. 1973); Commonwealth v.
Katonka, 33 A.3d 44 (Pa.Super. 2011) (en banc). An assertion of
innocence has consistently been held to constitute a fair and just reason to
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withdraw a plea. Randolph, supra; Forbes, supra; Commonwealth v.
Gordy, 73 A.3d 620 (Pa.Super. 2013).1
With regard to prejudice, our Supreme Court has held that prejudice
arises when a pre-sentence motion for withdrawal occurs after the
Commonwealth has dismissed a key witness. Commonwealth v. Ross,
447 A.2d 943 (Pa. 1983). Similarly, this Court in Commonwealth v. Cole,
564 A.2d 203 (Pa.Super. 1989) (en banc), determined that prejudice existed
where a key witness left the jurisdiction after the entry of the plea. In
addition, this Court has recognized prejudice where a pre-sentence
withdrawal motion is submitted at the last instant in a case involving child
sex abuse where family member witnesses, though available, were reluctant
to testify and the delay would have “dulled the five year old child victim’s
recall of events[.]” Commonwealth v. Carr, 543 A.2d 1232, 1234
(Pa.Super. 1988).
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1
We acknowledge that despite this Court’s repeated requests for
Commonwealth v. Forbes, 299 A.2d 268 (Pa. 1973), to be re-examined in
light of advancements in guilty plea proceedings, see Commonwealth v.
Turiano, 601 A.2d 846, (Pa.Super. 1992); Commonwealth v. Iseley, 615
A.2d 408 (Pa.Super. 1992); Commonwealth v. Rish, 606 A.2d 946
(Pa.Super. 1992); Commonwealth v. Cole, 564 A.2d 203 (Pa.Super. 1989)
(en banc), our Supreme Court rebuked this Court in Commonwealth v.
Randolph, 718 A.2d 1242 (Pa. 1998), and indicated that a bald assertion of
innocence is sufficient to warrant a pre-sentence guilty plea withdrawal.
However, the Pennsylvania Supreme Court has granted allowance of appeal
in a case to consider whether a trial court may decline to permit a pre-
sentence withdrawal where it finds that an assertion of innocence is
insincere. Commonwealth v. Carrasquillo, 86 A.3d 830 (Pa. 2014)
(allowance of appeal granted).
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We add, as the Commonwealth astutely points out, that in
Commonwealth v. Iseley, 615 A.2d 408 (Pa.Super. 1992), this Court
declined to extend the Forbes rationale to cases where the defendant had
previously been permitted to withdraw his guilty plea. The Iseley Court did
recognize that a claim of innocence ordinarily is a fair and just reason to
withdraw a pre-sentence plea. However, because Iseley had already
successfully withdrawn his guilty plea once, we held that, absent
extraordinary circumstances, his assertion of innocence was insufficient to
warrant a second withdrawal.
Here, although Appellant argues that he asserted his innocence, the
record belies that claim. Indeed, the sentencing court expressly placed on
the record that Appellant was not asserting that he was innocent and
Appellant did not challenge these claims. See N.T., 12/9/13, at 4
(Sentencing Court setting forth, “that has nothing to do with whether he’s
innocent or guilty of these charges.”); id. at 8 (court opining that reasons
for withdrawal “has nothing to do with whether he committed the offenses or
not.”). Appellant’s reasons for withdrawing his plea were that he had
additional open cases, concerns regarding his prior record score, and
discovery issues. Accordingly, even if this were Appellant’s first attempt to
withdraw his plea, he did not establish a fair and just reason for withdrawal
of his plea.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/4/2014
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