Com. v. Norton, M.

J. A19009/16
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
MICHAEL NORTON, : No. 2359 EDA 2015
:
Appellant :
Appeal from the Judgment of Sentence, August 7, 2015,
in the Court of Common Pleas of Pike County
Criminal Division at No. CP-52-CR-0000104-2013
BEFORE: FORD ELLIOTT, P.J.E., OTT AND FITZGERALD,* JJ.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED MARCH 23, 2017
Appellant appeals from the August 7, 2015 aggregate judgment of
sentence of two to six years’ imprisonment imposed after he pled
nolo contendere to indecent assault and corruption of minors.1 After
careful review, we affirm the judgment of sentence.
The trial court summarized the relevant facts and procedural history of
this case as follows:
[Appellant] was initially charged with two (2)
counts of Indecent Assault[] and one (1) count of
Corruption of Minors. [These charges stemmed from
appellant’s sexual abuse of minor female child at his
home between September 2008 and April 2012.] On
November 7, 2014, which was the day of jury
selection for the November 2014 Criminal Trial Term,
* Former Justice specially assigned to the Superior Court.
1
18 Pa.C.S.A. §§ 3126(a)(7) and 6301(a)(1)(ii), respectively.
J. A19009/16
[appellant] entered into a negotiated
Nolo Contendere Plea, pleading no contest to one
(1) count of Indecent Assault and one (1) count of
Corruption of Minors. The [trial c]ourt found at that
time that [appellant] had voluntarily, knowingly and
intelligently entered his plea. On November 19,
2014, [appellant] completed an “Adam Walsh Child
Protection & Safety Act Sex Offender Colloquy[.]”[]
A Sentencing Hearing was subsequently scheduled
for May 7, 2015.
A little over four months after [appellant’s]
plea of nolo contendere, on March 23, 2015,
[appellant] filed his Motion to Withdraw
Nolo Contendere Plea, claiming that he maintained
his innocence and could not live with himself taking a
plea of nolo contendere. [Appellant] advanced no
other reasons in his motion for withdrawal of his
plea. Following a hearing on [appellant’s] Motion on
April 30, 2015, the [trial c]ourt granted [appellant’s]
Motion to Withdraw the Nolo Contendere Plea by
Order dated May 29, 2015, based on the then
prevailing case law as to the standard to apply to
requests to withdraw a plea of guilty or
nolo contendere. Th[e trial c]ourt noted, however,
in its May 29, 2015 Order that two (2) cases before
our Supreme Court at that time, [Commonwealth
v. Carrasquillo, 115 A.3d 1284 (Pa. 2015) and
Commonwealth v. Hvizda, 116 A.3d 1103 (Pa.
2015)], were expected to clarify the standard in the
near future. [On June 15, 2015, the Pennsylvania
Supreme Court decided Carrasquillo.] On June 17,
2015, the Commonwealth filed its Motion for
Reconsideration of the Order Allowing Withdrawal of
Plea, based on clarifications issued by our Supreme
Court, specifically in [Carrasquillo].
After careful consideration of the
Commonwealth’s Motion, hearing held thereon and
our Supreme Court’s decisions in Carrasquillo and
Hvizda, supra, [the trial court] entered [an] Order
dated June 26, 2015 whereby the Commonwealth’s
Motion for Reconsideration was granted. On July 2,
2015, [appellant] filed a Motion for Reconsideration
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of our June 26, 2015 Order. On August 4, 2015,
th[e trial c]ourt] entered an Order denying
[appellant’s] Motion for Reconsideration.
On August 7, 2015, th[e trial] court proceeded
with sentencing, based on [appellant’s] plea of
Nolo Contendere to the counts of Indecent Assault
and Corruption of Minors. The [trial c]ourt
sentenced [appellant] to a period of incarceration in
a State Correctional Institution of not less than
two (2) years nor more than six (6) years. The
sentence imposed was in accordance with the
negotiated plea agreement of the Commonwealth
and [appellant].
Trial court opinion, 11/17/15 at 1-3 (footnote omitted; citation formatting
corrected).
On August 10, 2015, appellant filed a timely notice of appeal. On
August 11, 2015, the trial court ordered appellant to file a concise statement
of errors complained of on appeal in accordance with Pa.R.A.P. 1925(b).
Appellant complied with the trial court’s directive and filed a timely
Rule 1925(b) statement on August 17, 2015. The trial court filed its
Rule 1925(a) opinion on November 17, 2015.
On appeal, appellant raises the following issue for our review:
Whether the trial court abused its discretion by
granting, then denying [a]ppellant’s pre-trial motion
to withdraw nolo contendere plea when [a]ppellant
maintained his innocence throughout the pendency
of the matter and [a]ppellant’s counsel expressed
issues which would have given rise to a defense[?]
Appellant’s brief at 7 (some capitalization omitted).
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We recognize that appellant pled nolo contendere, rather than guilty,
to the charges at issue; however, “in terms of its effect upon a case, a plea
of nolo contendere is treated the same as a guilty plea.” Commonwealth
v. V.G., 9 A.3d 222, 226 (Pa.Super. 2010) (citation omitted).
A motion to withdraw a guilty plea before sentencing is governed by
Pennsylvania Rule of Criminal Procedure 591, which provides, in pertinent
part, 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).
“When reviewing a trial court’s denial of a motion to withdraw a plea of
[nolo contendere], we will not disturb the court’s decision absent an abuse
of discretion.” Commonwealth v. Lewis, 791 A.2d 1227, 1232 (Pa.Super.
2002), appeal denied, 806 A.2d 859 (Pa. 2002) (brackets in original;
citation omitted). “An abuse of discretion exists when a defendant shows
any fair and just reasons for withdrawing his plea absent substantial
prejudice to the Commonwealth.” Commonwealth v. Elia, 83 A.3d 254,
261-262 (Pa.Super. 2013), appeal denied, 94 A.3d 1007 (Pa. 2014)
(internal quotation marks and citations omitted).
As noted, our supreme court has recently clarified its position on many
of the challenges that have arisen with regard to the withdrawal of a guilty
plea based upon an assertion of innocence. In Carrasquillo, our supreme
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court clarified that, in the pre-sentence guilty plea withdrawal context, “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.” Carrasquillo, 115 A.3d at 1292 (citations omitted). The
Carrasquillo court rejected the per se approach to innocence claims,
holding that “a bare assertion of innocence is not, in and of itself, a sufficient
reason to require a court to grant such a request.” Id. at 1285. Rather, the
trial court retains a degree of discretion in determining whether the
defendant’s innocence claim “is plausible to demonstrate, in and of itself, a
fair and just reason for presentence withdrawal of a plea.” Id. at 1292; see
also Hvizda, 116 A.3d at 1107.
Instantly, the trial court concluded that appellant failed to present a
“fair and just reason” in support of his motion to withdraw his
nolo contendere plea. (Trial court opinion, 11/17/15 at 4.) Relying on
Carrasquillo, the trial court noted that appellant’s “mere proclamation of
innocence, in and of itself,” was an insufficient basis to allow withdrawal of
his nolo contendere plea. (Id. at 7.) The trial court further determined
that appellant’s two primary arguments, namely, that (1) he is innocent and
(2) he intended to contest the Commonwealth’s lack of evidence at trial,
“were not novel to the post-plea proceedings of this case.” (Id. at 8.)
Rather, the trial court reasoned that “both of these assertions were certainly
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known to [appellant] prior to entry of his negotiated plea and would
assuredly have been considered by him and counsel in deciding to accept the
plea of nolo contendere.” (Id.)
Upon review of the record, we discern no abuse of discretion on the
part of the trial court in denying appellant’s pre-sentence motion to withdraw
his nolo contendere plea. The trial court analyzed the circumstances
surrounding appellant’s pre-trial proceedings, his entry of a
nolo contendere plea on the morning of jury selection, and his subsequent
motion to withdraw said plea approximately four months later. (See trial
court opinion, 11/17/15 at 4-8.) Contrary to appellant’s argument on
appeal, the record supports the trial court’s determination that appellant
failed to make a “colorable demonstration, under the circumstances, such
that permitting withdrawal of the plea would promote fairness and justice.”
Carrasquillo, 115 A.3d at 1292 (emphasis added).
Appellant entered a negotiated nolo contendere plea on November 7,
2014, and the trial court went to considerable lengths to ensure that this
plea agreement was done knowingly, voluntarily and intelligently. (See
“Nolo Contendere Colloquy,” 11/7/14 at 9-19.) It further bears noting that
as a result of his negotiated plea agreement, appellant participated in an
evaluation by the Sexual Offenders Assessment Board, which ultimately
determined that he met the criteria of a sexually violent predator. By
appellant’s own admission, this plea was a product of “nearly two (2) years
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of negotiation” between the Commonwealth and appellant. (See appellant’s
brief at 15.) Moreover, at the time of his plea, more than 20 months had
elapsed since appellant was charged in connection with this incident in April
2013. (See Criminal Information, 4/1/13.) Appellant possessed ample
opportunity during this nearly two-year period to examine and weigh the
evidence in this case, including the Commonwealth’s evidence or lack
thereof, in deciding whether to assert his innocence or “assert a viable
defense to the charges” at trial. He failed to do so. Permitting withdrawal of
the nolo contendere plea at this stage, based upon nothing more than
appellant’s mere assertion that he “cannot live with himself taking a plea to
charges that he is innocent of[,]” would have resulted in substantial
prejudice to the Commonwealth. (See “Motion to Withdraw Nolo
Contendere Plea,” 3/23/15 at ¶ 3.)
Accordingly, we conclude that the trial court, in light of the standard
articulated in Carrasquillo, acted within its discretion in denying appellant’s
pre-sentence motion to withdraw his nolo contendere plea.
Judgment of sentence affirmed.
Ott, J. joins this Memorandum.
Fitzgerald, J. files a Dissenting Memorandum.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/23/2017
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