Com. v. Baez, J.

J-S34006-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
JUAN BAEZ
Appellant No. 199 EDA 2016
Appeal from the Judgment of Sentence November 23, 2015
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0004678-2014
BEFORE: BOWES, SOLANO, AND PLATT,* JJ.
MEMORANDUM BY BOWES, J.: FILED JULY 14, 2017
Juan Baez appeals from the November 23, 2015 judgment of sentence
of five to ten years imprisonment followed by ten years probation. The
sentence was entered after Appellant tendered a negotiated guilty plea to
rape of a child and unlawful contact with a minor. We affirm.
In this action, Appellant was arrested on April 1, 2014, and he
subsequently was charged with involuntary deviate sexual intercourse,
aggravated indecent assault of a child, unlawful contact with a minor, sexual
assault, endangering the welfare of a child, corruption of a minor, indecent
assault of a person less than thirteen years old, indecent exposure, rape of a
child, and aggravated assault. The matter proceeded to a jury trial on April
* Retired Senior Judge specially assigned to the Superior Court.
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27, 2015. The jury was chosen, opening arguments were made, and the
victim, her mother, and a police officer testified.
On April 28, 2015, the court was about to proceed to a hearing on the
admissibility of certain scientific evidence and had already conducted a
colloquy on the expert witness offered by the Commonwealth. Appellant’s
counsel indicated that Appellant decided to accept a plea offer made by the
Commonwealth. The terms of the plea deal involved a guilty plea by
Appellant to rape of a child and unlawful contact with a minor, the remaining
charges would be nolle prossed, and the Commonwealth would recommend
a sentence of five to ten years imprisonment followed by ten years
probation. The jury was recessed while Appellant executed a written
colloquy with the aid of his lawyer and the plea court conducted a full oral
colloquy.
The factual basis for the plea in question was as follows. K.I., the
victim, had testified that between October 2013 and March 2014, when she
was eleven years old, Appellant had, on multiple occasions, vaginally
penetrated her with his penis and fingers. K.I. also said that Appellant
placed his mouth on her vagina. K.I. disclosed the sexual abuse to her
mother, who reported it to police. The record also establishes that, during
the pertinent time frame, Appellant was forty-years old and a friend of K.I.’s
mother. When the abuse occurred, K.I. was staying at Appellant’s home on
the weekends.
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At one point in the colloquy, Appellant consulted with his lawyer off the
record about his defenses. The elements of each crime were set forth on the
record, including that rape of a child was “sexual intercourse with a child
who is less than 13 years of age” and that sexual intercourse meant
penetrating her vagina with his penis, even slightly. N.T. Guilty Plea,
4/28/15, at 14-15. After Appellant indicated that he had “[n]ot really”
penetrated K.I.’s vagina with his penis, and had not had sexual intercourse
with K.I., the plea court immediately ceased the colloquy and offered to
continue with the trial. Id. at 15. Appellant responded, “No.” Id. The court
then explained that pleading guilty was the same as an adjudication of guilt
by a jury. Appellant said that he understood that his plea would be treated
as a guilty verdict on the two charges in question. Id. at 15, 16.
Thereafter, Appellant tendered a guilty plea to rape of a child. Id. at 18
(“THE COURT CRIER: Juan Baez, . . . you’re being charged with rape of a
child, how do you plead? THE DEFENDANT: Guilty.”).
At the conclusion of the guilty plea, Appellant was referred to the
Sexual Offenders Assessment Board (“SOAB”) for a Megan’s Law
assessment. Approximately three months later, on July 17, 2015, Appellant
wrote a letter to his lawyer asking to withdraw his guilty plea and claiming
that he was innocent and pled guilty solely because he was going to receive
a sentence of sixty-five years if convicted. Counsel thereafter filed a written
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pre-sentence motion to withdraw the guilty plea asserting that Appellant was
entitled to withdraw the guilty plea because he was innocent of the charges.
Sentencing was scheduled for November 23, 2015. At the inception of
the proceeding, the court heard argument on the question of withdrawal.
The court first clarified that the plea in question was actually a negotiated
guilty plea, stating “And we’re here for sentencing, it’s just a matter of
imposing the sentence that was negotiated, five to ten, followed by ten
years probation.” N.T. Sentencing, 11/23/15, at 10. When asked why he
wanted to withdraw the plea, Appellant said, “Because I’m not—I’m not
guilty, I’m innocent.” Id. at 14. The Commonwealth then indicated that
Appellant was offered the same plea on June 24, 2014, and rejected it.
Appellant denied hearing about the plea offer prior to trial. Speaking directly
to the court, Appellant said, “That’s the only time I found out [about the plea
offer], the day you told me, 65 years. And if I don’t plead guilty, I’ll get 65
years.” Id. at 15.
To refute this assertion that the guilty plea was accepted based upon
the court’s threat to impose sixty-five years upon conviction, the court
corrected Appellant. It stated, “No, what I told you was that the maximum
sentence for these charges was 140 years. So I don’t know what you were
listening to or where you got 65 from.” Id. at 15-16. The guilty plea
colloquy confirms that Appellant was told that he could be “sentenced up to
140 years in prison” if he was convicted of all the charged offenses. N.T.
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Guilty Plea, 4/28/15, at 7 (emphasis added). After discussions concerning
whether withdrawal of the guilty plea would permit Appellant to engage in
jury shopping, the court denied the motion.
The SOAB board had concluded that Appellant was not a sexually
violent predator, and the court proceeded to impose the negotiated term of
five to ten years in jail followed by ten years probation. This appeal
followed. Appellant presents this question for our review:
1. Did the Lower Court err and/or abuse its discretion when it
denied the Appellant’s motion to withdraw his guilty plea prior
to sentencing when the motion to withdraw a guilty plea prior
to sentencing is to be liberally granted for any fair and just
reason unless the prosecution has suffered substantial
prejudice?
Appellant’s brief at 5.
Our Supreme Court disseminated the case Commonwealth v.
Carrasquillo, 115 A.3d 1284 (Pa. 2015), on June 15, 2015, five months
before the hearing on Appellant’s pre-sentence motion to withdraw. That
decision clarified the parameters of when a pre-sentence motion to withdraw
is to be granted based upon an assertion of innocence. Therein, our
Supreme Court re-affirmed that the trial court is imbued with the discretion
to deny a defendant permission to withdraw a guilty plea, whether that
request is tendered before or after sentencing, and we, as an appellate
court, can reverse its decision only when that discretion is abused.
Pa.R.Crim.P. 591(A) (emphasis added) (“At any time before the imposition
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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.”). While a pre-
sentence motion to withdraw is to be liberally allowed,
there is no absolute right to withdraw a guilty plea; trial courts
have discretion in determining whether a withdrawal request will
be granted; such discretion is to be administered liberally in
favor of the accused; and any demonstration by a defendant of a
fair-and-just reason will suffice to support a grant, unless
withdrawal would work substantial prejudice to the
Commonwealth.
Carrasquillo, supra at 1291–92 (footnote omitted).1
The Carrasquillo Court, breaking with prior precedent, held that a
bare assertion of innocence is no longer a fair and just reason permitting a
pre-sentence withdrawal of a guilty plea. Instead, “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.” Id. at 1292. Our High
Court outlined that the correct inquiry “on consideration of such a withdrawal
motion is whether the accused has made some colorable demonstration,
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1
The pre-sentence standard starkly contrasts with the one applicable to a
defendant’s post-sentence motion to withdraw. “Post-sentence motions for
withdrawal are subject to higher scrutiny since courts strive to discourage
entry of guilty pleas as sentence-testing devices. A defendant must
demonstrate that manifest injustice would result if the court were to deny
his post-sentence motion to withdraw a guilty plea.” Commonwealth v.
Islas, 156 A.3d 1185, 1188 (Pa.Super. 2017) (citation omitted; emphasis in
original)
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under the circumstances, such that permitting withdrawal of the plea would
promote fairness and justice.” Id. In that decision, our Supreme Court
ruled that the defendant had not offered a plausible innocence claim given
that it was rather bizarre--a “devil made me to it” claim of innocence--and
since the innocence claim was offered just prior to sentencing. See also
Commonwealth v. Hvizda, 116 A.3d 1103 (Pa. 2015) (companion case to
Carrasquillo).
In this case, the plea court concluded that Appellant’s assertion of
innocence was not plausible since he failed to offer “any additional testimony
establishing the basis of a ‘fair and just reason’ justifying the withdrawal of
his guilty plea.” Trial Court Opinion, 9/2/16, at 9. We concur with this
assessment. Relying extensively upon pre-Carrasquillo case law, Appellant
first maintains that his bald assertion of innocence was sufficient to mandate
withdrawal. He attempts to distinguish Carrasquillo on the ground that the
assertion of innocence therein was not leveled until sentencing and that it
was unusual in nature.
Appellant overlooks our Supreme Court’s companion case in Hvizda,
where the defendant’s claimed innocence was straightforward, but refuted
by the Commonwealth’s proof. In Hvizda, the defendant entered a guilty
plea to first degree murder in connection with the stabbing death of his
estranged spouse. Prior to imposition of his sentence, he asked to withdraw
the plea claiming that he was innocent. The trial court conducted a hearing
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on the request to withdraw, where the defendant again asserted that he was
innocent but failed to proffer any support for that claim. On the other hand,
the Commonwealth produced recorded telephone conversations that the
defendant made from jail; in the tapes, the defendant admitted that he
killed his wife and indicated that he wanted to go to trial to tell his side of
the story.
The trial court denied the motion to withdraw finding that, given the
Commonwealth’s tapes, the assertion of innocence was pretextual and
designed to manipulate the judicial system. In an unpublished
memorandum, we reversed based upon Commonwealth v. Katonka, 33
A.3d 44, 49 (Pa.Super. 2011) (en banc), wherein the en banc court held that
“credibility assessments relative to a defendant's claim of innocence were
impermissible.” Id. Our High Court reversed the panel’s holding in Hvizda,
noting that, under its companion decision in Carrasquillo, a bald assertion
of innocence is no longer sufficient grounds to permit withdrawal of a guilty
plea. The Hvizda Court upheld the trial court’s refusal to permit the
defendant to withdraw his guilty plea because his innocence assertion was
implausible as it was unsupported and rebutted by the Commonwealth’s
proof.
In the present case, at the hearing on his pre-sentence motion to
withdraw, Appellant offered a bald claim that he was innocent that was
unaccompanied by assertions that he had defenses to the charges. The
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guilty plea colloquy refuted his secondary position that he pled guilty
because the trial court told him that it would impose a sentence of sixty-five
years in jail if the jury convicted him. On the other hand, the record
establishes that the victim testified that Appellant penetrated her vagina
with his penis and fingers and that he placed his mouth on her vagina.
Indeed, the present case stands in stark contrast to our recent decision in
Commonwealth v. Islas, 156 A.3d 1185 (Pa.Super. 2017), where we
concluded that the trial court had abused its discretion in denying the
defendant’s pre-sentence motion to withdraw his guilty plea. The defendant
in Islas was charged with three counts of indecent assault on a camper who
attended a camp where he was a counselor, and he pled guilty to one count.
One month after pleading guilty and immediately after procuring a new
lawyer, the defendant moved to withdraw his plea.
Not only had the trial court in Islas employed the incorrect standard in
assessing the defendant’s motion by utilizing the more-stringent rules
applicable to post-sentence motions to withdraw, see footnote 2, supra, the
defendant therein had offered significant support for his position that he was
actually innocent of the charged sexual contact with the victim. We
observed:
At the hearing on his motion to withdraw, Islas testified that: he
did not engage in the charged conduct; he had maintained his
innocence when interviewed by law enforcement; had the
conduct occurred as alleged, it would have been witnessed by
other campers and counselors in the cabin at the time; the
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victim had a motive to fabricate the charges; the victim had
delayed in reporting the first incident; and Islas was of good
character, had no criminal record, and had never received a
similar complaint in the many years he had been working in the
field.
Id. at 1191. As those assertions constituted valid defenses against the
charges leveled by the victim, we reversed the trial court’s denial of Islas’
pre-sentence motion to withdraw his guilty plea.
In this case, Appellant simply insisted that he was innocent, and
incorrectly represented that the plea was coerced by trial-court threats to
impose a sixty-five year jail term. The fact remains that Appellant faced 140
years in jail, his negotiated sentence was ninety percent less, and his desire
to avoid a more lengthy prison term is not grounds for withdrawing the plea.
Commonwealth v. Dosch, 501 A.2d 667, 670 (Pa. 1985) (“a plea is not
rendered involuntary merely because it is prompted by a belief that it will
enable a defendant to obtain a more lenient sentence”); see also
Commonwealth v. Blango, 150 A.3d 45 (Pa.Super. 2016) (upholding trial
court’s conclusion that the defendant had not leveled a plausible claim of
innocence given Commonwealth’s evidence, and where withdrawal request
was leveled after the defendant observed sentencing memorandum prepared
by the Commonwealth in which it requested lengthy sentence). Under the
circumstances, we cannot find that the trial court abused its discretion in
characterizing Appellant’s innocence claim as falling short of the mark under
Carrasquillo.
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On appeal, Appellant does not contend that he proffered defenses in
support of his pre-sentence withdrawal such that his innocence claim should
be considered plausible. Instead, in his brief, he relies upon certain events
occurring at the guilty plea colloquy. Specifically, Appellant outlines the
portion of the colloquy where he denied that he penetrated K.I.’s vagina with
his penis. As noted, supra, after Appellant articulated that denial, the trial
court immediately ceased the proceeding. It offered Appellant the
opportunity to continue with the trial, but Appellant declined that offer. At
that point, the trial readily could have resumed since the witness on the
admissibility of scientific evidence was present, and the jury had been
recessed but remained empaneled. The guilty plea court then articulated
that a guilty plea was the same as a guilty verdict, and Appellant entered a
guilty plea to rape of a child. Furthermore, Appellant never balked at the
representations that he digitally penetrated K.I. and that he placed his
mouth on her vagina.
Until this appeal, Appellant never asserted that this momentary denial
of penile penetration at the guilty plea colloquy constituted a plausible pre-
sentence claim of innocence. It was not raised in Appellant’s letter to
counsel, in the motion to withdraw the guilty plea, in the memorandum in
support of that motion, or at the hearing on the pre-sentence motion to
withdraw. This basis for withdrawal was never presented to the trial court;
it is thus waived for purposes of this appeal. Commonwealth v. Wanner,
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2017 WL 11526092017 *2 (Pa.Super. filed March 28, 2017) (defendant
waived position that there was an affirmative defense to crime “by failing to
rise it before the trial”) (citing Pa.R.A.P. 302(a) (“Issues not raised in the
lower court are waived and cannot be raised for the first time on appeal.”)).
“This requirement bars an appellant from raising a new and different theory
of relief for the first time on appeal.” Id. (citation and quotation marks
omitted). Since Appellant never asserted before the plea court that his
denial of penile penetration at the plea colloquy was a plausible claim of
innocence requiring grant of his pre-sentence motion to withdraw the guilty
plea, it may not be advanced now as grounds for reversal of the decision in
question.
The plea court also concluded that Appellant’s guilty plea could not be
withdrawn because the Commonwealth would suffer substantial prejudice
from withdrawal. The Commonwealth had already picked a jury and
presented three of its witnesses, including the child victim. In addition, a
scientific witness had been colloquied and was present to offer additional
testimony. We conclude that the court’s ruling in this respect is legally
sound.
In Commonwealth v. Cole, 564 A.2d 203 (Pa.Super. 1989), the
Commonwealth brought a key witness from Georgia to testify against the
defendant. The defendant entered a guilty plea, the witness returned to
Georgia, and before sentence was imposed, the defendant sought to retract
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his plea. We affirmed the trial court’s denial of that request. We concluded
that if the defendant were allowed to rescind the plea, it would have
permitted the defendant to use his motion for the “improper purpose of
gambling on the Commonwealth's ability to produce the witness for a second
trial.” Id. at 206. We observed that “[t]his is the type of prejudice to the
Commonwealth against which the rule was intended to protect.” Id.Similarly, in Commonwealth v. Ross, 447 A.2d 943 (Pa. 1982), in a
per curiam opinion, our Supreme Court upheld a trial court’s refusal of the
defendant’s pre-sentence request to withdraw his guilty plea. The court
ruled that the “request to withdraw the plea, which had been made after the
dismissal of numerous key Commonwealth witnesses in reliance on the plea,
was properly denied[.]” Id.; see also Commonwealth v. Prendes, 97
A.3d 337, 353 (Pa. Super. 2014) (substantial prejudice exists if a defendant
obtains “a full preview of the Commonwealth's evidence before deciding” to
seek withdrawal and could engage in jury shopping if he decides the selected
jury seems unfavorable inclined towards him).2
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2
In Commonwealth v. Prendes, 97 A.3d 337 (Pa.Super. 2014), we
opined that the standards applicable to post-sentence motions to withdraw a
guilty plea, see footnote 2, supra, should be applied when a negotiated
guilty plea has been entered. We stated therein:
If the appellant knows the only possible sentence he can get for
the crime to which he pled guilty, then any pre-sentence motion
to withdraw the plea is akin to a post-sentence motion to
(Footnote Continued Next Page)
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In this case, three witnesses had already testified. The guilty plea
colloquy indicates that the Commonwealth also had another witness present
who was going to offer testimony on scientific evidence when Appellant
elected to tender a guilty plea. Hence, we cannot conclude that the trial
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(Footnote Continued)
withdraw the plea, and the “manifest injustice” standard will
apply to the pre-sentence motion. Commonwealth v. Lesko,
502 Pa. 511, 517, 467 A.2d 307, 310 (1983).
Id. at 352.
In Lesko, our Supreme Court ruled that it was proper to utilize the
manifest injustice standard in assessing whether a pre-sentence motion to
withdraw should be granted when the plea agreement includes a negotiated
sentence. Lesko, however, was overruled in Commonwealth v. Hvizda,
116 A.3d 1103, 1106 (2015), wherein our High Court announced: “we
disapprove Lesko's idiosyncratic approach to presentence withdrawal.”
Since Prendes relied upon Lesko for the stated proposition and since
Lesko was subsequently overruled by Hvizda, we cannot utilize the
manifest injustice standard in assessing the validity of Appellant’s guilty
plea. This Court has previously reached the same conclusion in two
unpublished memoranda. See Commonwealth v. Wright, 2016 WL
7079767 (Pa.Super. 2016); Commonwealth v. Cross, 2015 WL 6114603,
(Pa.Super. 2015).
Additionally, in Commonwealth v. Islas, 156 A.3d 1185 (Pa.Super.
2017), we observed that the Prendes Court indicated that a bald assertion
of innocence constituted a fair and just reason to permit pre-sentence
withdrawal of a guilty plea. This precept was, of course, abrogated by
Carrasquillo and Hvizda after Prendes was decided
Nevertheless, the Prendes ruling remains undisturbed on the question
of whether the Commonwealth is prejudiced when a defendant seeks to
withdraw a guilty plea after the Commonwealth has presented its case.
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court abused its discretion in finding that the Commonwealth would be
substantially prejudiced if Appellant were permitted to enter his guilty plea.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/14/2017
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