Com. v. Clevenger, W.

J-S40007-13
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
WESTLEY A. CLEVENGER,
Appellant No. 542 WDA 2012
Appeal from the Judgment of Sentence January 23, 2012
in the Court of Common Pleas of Cambria County
Criminal Division at No.: CP-11-CR-0000703-2011
BEFORE: GANTMAN, J., OTT, J., and PLATT, J.*
MEMORANDUM BY PLATT, J. FILED MARCH 21, 2016
Appellant, Westley A. Clevenger, appealed from the judgment of
sentence for one count of involuntary deviate sexual intercourse with a
person less than sixteen years of age (IDSI), imposed pursuant to a
negotiated plea agreement. Specifically, he challenged the trial court’s
denial of his pre-sentence motions to withdraw his guilty plea. We vacated
the judgment of sentence and remanded for trial. The Commonwealth
petitioned our Supreme Court for allowance of appeal. The Court granted
the petition, vacated our order, and remanded for reconsideration in light of
Commonwealth v. Carrasquillo, 115 A.3d 1284 (Pa. 2015), and
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*
Retired Senior Judge assigned to the Superior Court.
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Commonwealth v. Hvizda, 116 A.3d 1103 (Pa. 2015).1 On
reconsideration, in light of Carrasquillo and Hvizda, we affirm.
The context of the underlying case is material to our review. We
derive the facts from the trial court’s opinion and our independent review of
the certified record.
Appellant was living in a room in the house of his son and daughter-in-
law. (See N.T. Suppression Hearing, 10/20/11, at 11). The investigation
into this matter began when Appellant’s daughter-in-law and other members
of his family found a diary, kept in a journal, in his room. In it he detailed
his sexual encounters and other interactions with the Victim, a teenage girl,
identifying her by name. They also found four Polaroid photographs of the
Victim, nude or partially nude. One included her face. (See id. at 4).
Appellant’s son identified notations on the photographs as being in the
handwriting of his father. (See id. at 11). Dates on the photos matched
dates in the journal.
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1
(See Commonwealth v. Clevenger, 125 A.3d 774 (Pa. 2015) (per
curiam)):
AND NOW, this 17th day of November, 2015, the Petition for
Allowance of Appeal is GRANTED, the order of the Superior Court
is VACATED, and the matter is REMANDED for reconsideration in
light of Commonwealth v. Carrasquillo, ––– Pa. ––––, 115
A.3d 1284 (2015), and Commonwealth v. Hvizda, ––– Pa. –––
–, 116 A.3d 1103 (2015). The Petition to Remand is DENIED.
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Local police, recognizing that the offenses had occurred in another
jurisdiction (before Appellant moved in with his son’s family), referred the
matter to the Pennsylvania State Police. (See id. at 17).
In his affidavit of probable cause, investigating Trooper Mark A. Galli
reported that the Victim informed him that Appellant had previously been
her next door neighbor. (See Affidavit of Probable Cause, 3/10/11). The
Victim told the trooper that for two years Appellant repeatedly engaged in
sexual acts with her. He digitally penetrated her vagina, had her perform
oral sex on him, and engaged in vaginal intercourse with her. He also took
photographs of her. Appellant threatened to harm her family if she did not
comply with his demands. (See id.).
Once, Appellant lured the Victim into his residence on the false pretext
that her father was on the telephone. When she tried to escape, she fell
over a fence and was knocked unconscious. When she woke up, she was
naked and tied to a futon in Appellant’s house. She managed to escape
later. (See id.).
The Commonwealth charged Appellant with one hundred and fifty-
five counts involving the sexual abuse of the Victim and related offenses
beginning in November 2008 (when she was thirteen) until over two years
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later (January 2011).2 Appellant, born in 1952, was fifty-six when the
crimes began. (See Complaint, 3/10/11, at 1).
Appellant filed a motion to suppress (journal, photographs,
statements), which the court denied, after a hearing on October 20, 2011.
(See Order, 10/21/11).
On November 1, 2011, two days before trial, Appellant pleaded guilty
to one count of IDSI with a person less than sixteen years of age. (See N.T.
Guilty Plea, 11/01/11, at 2). In exchange for the guilty plea, the
Commonwealth agreed to nol pros the remaining one hundred and fifty-
four charges, and recommend a sentence of ten to twenty years’
incarceration.
It bears noting that as an express condition of his plea agreement
Appellant agreed to participate in an evaluation by the Sexual Offenders
Assessment Board (SOAB) to determine if he should be classified as a
sexually violent predator, waiving any objections.3
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2
Specifically, the Commonwealth charged Appellant with thirty counts each
of rape by threat of forcible compulsion, IDSI, statutory sexual assault,
aggravated indecent assault, and indecent assault. See 18 Pa.C.S.A.
§§ 3121(a)(2), 3123(a)(7), 3122.1(b), 3125(a)(8), and 3126(a)(8),
respectively. Appellant was also charged with one count each of kidnapping,
luring a child into a motor vehicle or structure, unlawful restraint, false
imprisonment, and harassment. See 18 Pa.C.S.A. §§ 2901(a)(2), 2910(a),
2902(a)(2), 2903(a), and 2709(a)(3), respectively.
3
Appellant also agreed to comply with the reporting requirements of the
then applicable version of “Megan’s Law” and to pay restitution costs.
(Footnote Continued Next Page)
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Two months later, on January 12, 2012, Appellant filed a counseled
motion to withdraw his guilty plea, in which he asserted his innocence. (See
Motion to Withdraw Guilty Plea, 1/12/12). The trial court denied this motion
without a hearing on January 17, 2012. At the sentencing hearing on
January 23, 2012, counsel for Appellant made an oral motion for the court to
reconsider the denial of the motion to withdraw, asking the court to hold a
hearing, and once more proclaiming his innocence. (See N.T. Sentencing,
1/23/12, at 3, 38).
The trial court denied the motion, citing its extensive colloquy with
Appellant at the guilty plea hearing, and the specifically negotiated term of
incarceration. (See id. at 4).
Prior to sentencing, the court also held a “Megan’s Law” hearing.
Despite his promise, Appellant had refused to cooperate. (See supra at *4
n.3). After testimony and a report from SOAB expert William G. Allenbaugh,
II, the court found Appellant to be a sexually violent predator (SVP). (See
id. at 36). Defense counsel argued that Appellant’s refusal to cooperate
with the SOAB assessment was consistent with his statement of innocence.
(See id. at 37).
_______________________
(Footnote Continued)
Despite this, and the apparent prior assurance of counsel that his client
would cooperate, on December 6, 2011 Appellant declined to speak with
SOAB investigator Michael Emhoff, or otherwise participate in the SOAB
assessment. (See SOAB Investigation Report, 12/21/11, at 3; see also
N.T. Sentencing, 1/23/12, at 12).
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At the sentencing hearing, Appellant himself explained his about-face
to the court in this way: “On the guilty plea, I was determined that I could
beat 152 of the charges, that there was [sic] three that I might not have
been able to beat.” (Id. at 38). He further claimed that defense counsel
informed him that if he did not plead, the trial court judge would give him
the maximum sentence on each of the charges. (See id.). “So that’s when
I thought about it, and I said I would rather have the jury trial and decide
[sic].” (Id. at 39).
After hearing from one witness,4 the trial court sentenced Appellant to
the previously agreed sentence of not less than ten nor more than twenty
years’ incarceration in a state correctional institution. The court added, inter
alia, that Appellant was “without a doubt a clear and present danger to
society.” (Id. at 43).
In explaining his denial of Appellant’s motion to withdraw the guilty
plea, the trial judge stated, “I truly believe you knew exactly what you were
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4
Notably, at sentencing, Appellant’s daughter, Bambi Buchkoski, read a
prepared statement into the record, against him. (See N.T. Sentencing, at
40-41). Ms. Buchkoski had reported to Trooper Galli that she, too, had been
molested by Appellant when she was a child. (See Affidavit of Probable
Cause, (Interviews), 3/11/11, at 3). Even though the sentence was for the
agreed term, the trial court also expressly noted that it had reviewed the
presentence investigation report, the testimony and report of SOAB expert
Allenbaugh, and the affidavit of probable cause. (See N.T. Sentencing, at
42-43, 45). The court also noted that Appellant was not RRRI eligible, based
on his prior record. (See id. at 45).
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doing.” (Id. at 44). The judge also ascribed Appellant’s attempt to
withdraw his plea to “playing games.” (Id. at 45).
On January 25, 2012, Appellant filed a counseled post-sentence
motion challenging the trial court’s denial of his two prior motions to
withdraw his guilty plea; he maintained his innocence. (See Post-Sentence
Motion, 1/25/12). On February 20, 2012, the trial court held a hearing on
the post-sentence motion. The Victim’s mother offered the only testimony.
(See N.T. Motion to Withdraw Guilty Plea, 2/20/12, at 5-14). The trial court
denied Appellant’s motion on March 20, 2012. (See Trial Court Opinion and
Order, 3/20/12, at 1-9).
Appellant filed a timely notice of appeal5 on March 22, 2012, and
submitted a timely 1925(b) statement of errors on April 12, 2012. See
Pa.R.A.P. 1925(b). The trial court filed a 1925(a) statement on May 8,
2012, referencing its March 20, 2012 Opinion and Order. See Pa.R.A.P.
1925(a).
Appellant raised one question (with two combined claims) on appeal:
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5
An appeal in a criminal matter “is properly taken from the judgment of
sentence, as opposed to the order denying [an] [a]ppellant’s post-sentence
motions.” Commonwealth v. Olavage, 894 A.2d 808, 809 n.1 (Pa. Super.
2006), appeal denied, 907 A.2d 1102 (Pa. 2006) (citation omitted). Here,
Appellant improperly appealed from the March 20, 2012 order denying his
post-sentence motion. (See Notice of Appeal, 3/22/12). However, we note
that Appellant properly stated in his brief that the appeal was taken from the
January 23, 2012 judgment of sentence. (See Appellant’s Brief, at 2). We
have changed the caption accordingly.
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I. Whether the sentencing court abused its discretion by not
permitting [Appellant] to withdraw his guilty plea where he
asserted his innocence and the alleged [V]ictim would be able to
testify at trial[?]
(Appellant’s Brief, at 4).
Appellant argued that the court should have permitted his motion to
withdraw under the liberal standard for granting plea withdrawals prior to
sentencing, under Commonwealth v. Forbes, 299 A.2d 268 (Pa. 1973),
and Commonwealth v. Randolph, 718 A.2d 1242, 1245 (Pa. 1998). (See
Appellant’s Brief, at 9-10). We disagree.
On review after remand, we are mindful of the following legal
principles:
A guilty plea is not a ceremony of innocence, it is an
occasion when one offers a confession of guilt . . . . The
defendant is before the court to acknowledge facts that he is
instructed constitute a crime. . . . He is then to voluntarily say
what he knows occurred, whether the Commonwealth would
prove them or not, and that he will accept their legal meaning
and their legal consequence. A criminal defendant who elects to
plead guilty has a duty to answer questions truthfully. A
defendant will not be permitted to postpone the final disposition
of his case by lying to the court concerning his culpability and
thereafter withdraw his plea of guilty by contradicting his prior
testimony and asserting innocence.
Commonwealth v. Cole, 564 A.2d 203, 206 (Pa. Super. 1989) (citations
and internal quotation marks omitted).
A motion to withdraw a guilty plea before sentencing is governed by
Pennsylvania Rule of Criminal Procedure 591, which in pertinent part
provides that “[a]t any time before the imposition of sentence, the court
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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).
The standard of review that we employ in challenges to a
trial court’s decision regarding a presentence motion to withdraw
a guilty plea is well-settled. “A trial court’s decision regarding
whether to permit a guilty plea to be withdrawn should not be
upset absent an abuse of discretion. 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. Pardo, 35 A.3d 1222,
1227 (Pa. Super. 2011) (quoting Commonwealth v. Prysock,
972 A.2d 539, 541 (Pa. Super. 2009); citing *262
Commonwealth v. Anthony, 504 Pa. 551, 475 A.2d 1303,
1308 (1984)). In its discretion, a trial court may grant a motion
for the withdrawal of a guilty plea at any time before the
imposition of sentence. Pa.R.Crim.P. 591(A). “Although there is
no absolute right to withdraw a guilty plea, properly received by
the trial court, it is clear that a request made before sentencing
. . . should be liberally allowed.” Commonwealth v. Forbes,
450 Pa. 185, 299 A.2d 268, 271 (1973). The policy underlying
this liberal exercise of discretion is well-established: “The trial
courts in exercising their discretion must recognize that ‘before
judgment, the courts should show solicitude for a defendant who
wishes to undo a waiver of all constitutional rights that surround
the right to trial—perhaps the most devastating waiver possible
under our constitution.’ ” Commonwealth v. Santos, 450 Pa.
492, 301 A.2d 829, 830 (1973) (quoting Commonwealth v.
Neely, 449 Pa. 3, 295 A.2d 75, 76 (1972)). In Forbes, our
Supreme Court instructed that, “in determining whether to grant
a presentence motion for withdrawal of a guilty plea, ‘the test to
be applied by the trial courts is fairness and justice.’ ” Forbes,
299 A.2d at 271 (quoting United States v. Stayton, 408 F.2d
559, 561 (3d Cir. 1969)).
Commonwealth v. Elia, 83 A.3d 254, 261-62 (Pa. Super. 2013), appeal
denied, 94 A.3d 1007 (Pa. 2014); see also Forbes, supra at 271 (“If the
trial court finds ‘any fair and just reason’, withdrawal of the plea before
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sentence should be freely permitted, unless the prosecution has been
‘substantially prejudiced.’”). In Randolph our Supreme Court added:
We wish to make it clear that we do not now, nor have we
ever, abandoned, altered or modified the standard articulated in
Forbes regarding a defendant’s ability to withdraw a guilty plea
prior to sentencing. Consequently, we are troubled, to say the
least, by the Superior Court’s cavalier disregard of the Forbes
standard, which appears to be motivated not by the facts of this
case, but instead by the Superior Court’s steadfast disagreement
with this Court’s rationale set forth therein. See, e.g.
Commonwealth v. Turiano, 411 Pa. Super. 391, 601 A.2d
846, 851-2 (1992), where the Superior Court noted its
reluctance to follow Forbes and its desire to abandon the
standard set forth therein based upon its belief that the standard
has become obsolete. We take this opportunity to admonish the
Superior Court that it is obligated to apply and not evade our
decisions. It is a fundamental precept of our judicial system that
a lower tribunal may not disregard the standards articulated by a
higher court.
Randolph, supra at 1245.
Because the application of the Forbes standard raises questions of
law, our standard of review is de novo, and our scope of review is plenary.
See Carrasquillo, supra at 1291; see also Commonwealth v.
Farabaugh, 128 A.3d 1191, 1193 (Pa. 2015).
Our Supreme Court has recently clarified its position on many of the
challenges which have arisen over the years in applying Forbes and
Randolph, and their progeny, on appeal. Most notably, in Carrasquillo,
the Court explained:
Our decision turns on the conclusion that a bare assertion of
innocence is not, in and of itself, a sufficient reason to require a
court to grant such a request.
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* * *
[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. . . . More broadly, 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. The policy of liberality remains
extant but has its limits, consistent with the affordance of a
degree of discretion to the common pleas courts.
Carrasquillo, supra at 1285, 1292; accord, Hvizda, supra at 1107 (“a
bare assertion of innocence—such as Appellee provided as the basis for
withdrawing his guilty plea—is not, in and of itself a sufficient reason to
require a court to grant such a request.”).
Here, applying the principles enunciated in Carrasquillo and Hvizda,
we conclude that Appellant offers no more than a bare assertion of
innocence, insufficient to justify, let alone require, the grant of a withdrawal
of his guilty plea.
Appellant argues that “a clear assertion of innocence [ ] suffices under
governing caselaw as a ‘fair and just reason’ for withdrawal[.]” (Appellant’s
Brief, at 10). We disagree.
As already noted, 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.
Rather, the trial court retains a “degree of discretion” in determining
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whether the defendant’s innocence claim is plausible. Carrasquillo, supra
at 1292.
Appellant further argues that the trial court made an impermissible
determination of the credibility of his claim of innocence. (See Appellant’s
Brief, at 12-16). In support, he cites Commonwealth v. Katonka, 33 A.3d
44, 49 (Pa. Super. 2011) (en banc). Katonka, in turn, cites Randolph,
supra at 1244.
However, in Carrasquillo our Supreme Court, while “acknowledg[ing]
the legitimate perception of a per se rule arising from this Court’s
decisions[,]” in effect abrogated the Randolph/Katonka disapproval of
credibility determinations by the trial court: “[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.” Carrasquillo, supra at
1292 (emphases added).
The Carrasquillo Court explained that “[a]s with other such bright-
line rules, however, the principle is subject to the axiom that the holding of a
decision is to be determined according to the facts under consideration,”
(citing Oliver v. City of Pittsburgh, 11 A.3d 960, 966 (Pa. 2011), (“the
holding of a judicial decision is to be read against its facts”)). Id.Similarly, in his concurrence, then-Justice Stevens disapproved a per
se approach which prohibited trial courts from assessing the credibility of an
“assertion of innocence” on a presentence motion to withdraw a guilty plea:
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“This per se approach, which was based upon the utterance of ‘magic
words,’ undermined the trial court’s role as a finder of fact and removed
necessary discretion from the court. I agree with the majority that such an
approach was unsatisfactory.” Id. at 1293 (Stevens, J., concurring).
In this case, the only explanation provided by Appellant for his claim of
innocence amounted, at best, to a mere strategic calculation of the odds,
and at worst, to a deliberate ploy to game the system. Specifically, as
previously summarized, at sentencing this colloquy took place:
THE COURT: You maintain today that you are innocent of
the charges that you plead [sic] guilty to?
[APPELLANT]: Yes.
[DEFENSE COUNSEL]: You would like to go to trial on
this?
[APPELLANT]: Yes. On the guilty plea, I was determined
that I could beat 152 of the charges, that there was [sic] three
that I might not have been able to beat.
(N.T. Sentencing, at 38).
Then, in a somewhat rambling and disjointed narrative, Appellant
claimed that he was told that if he went to trial, the court could (or would)
impose thirty to sixty years’ imprisonment on each of the three charges that
he did not think he could “beat.” He continued:
[I] would have been like 90 or 100 years [old] when I got out of
jail.
So that’s when I thought about it, and I said I would rather
have the jury trial and [sic] decide.
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[COUNSEL]: Is that all?
[APPELLANT]: Yes.
[COUNSEL]: I have nothing else Your Honor.
(Id. at 38-39) (emphasis added). The trial court decided that Appellant’s
claim of innocence was not only equivocal but not credible. (See Trial Ct.
Op., 3/20/12, at 6-7).
It is not our purpose or intent to analyze Appellant’s reasoning on its
merits.6 We simply observe that, despite counsel’s insistence, the record
strongly supports a finding that Appellant was not proclaiming his innocence
except in the nominal, “magic words,” pretextual sense. The record
supports the conclusion that he was merely calculating the odds of what
sentence he thought he could get in various circumstances. Pleader’s regret,
and hopes, however unfounded, of engineering a shorter sentence do not
present a fair and just reason to permit the withdrawal of a guilty plea. Nor
do they promote fairness and justice.
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6
We observe objectively, however, that in the totality of circumstances his
stated reasons make little sense. Leaving aside Appellant’s tenuous grasp of
mathematics, the length of sentence was fixed at the guilty plea hearing,
when the trial court accepted the plea and recommended sentence. (See
N.T. Guilty Plea, at 3-5). If, rightly or wrongly, he feared a longer sentence
by going to trial, withdrawing his guilty plea was the exact opposite of what
he should have done. The utter illogic of Appellant’s stated reasoning
supports the trial court’s conclusion that he was engaging in gamesmanship.
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Additionally, we note that when Appellant did get the requested7
opportunity to present reasons, at the hearing on his post-sentence motion
to withdraw guilty plea, he did not testify, or present any other evidence.
Instead, his counsel, after reciting some procedural history, made a
cursory, conclusory boilerplate argument, consisting of the mere bald
assertion that Appellant maintained his innocence and counsel’s belief that
the Commonwealth’s witnesses were available, so there was no prejudice to
the Commonwealth, and therefore he had met the standard for pre-sentence
withdrawal. (See N.T. Motion To Withdraw Guilty Plea, 2/20/12, at 4).8
Counsel did not develop any argument beyond the bare assertions.
Appellant failed to present a fair and just reason to grant his motion to
withdraw.
We observe that the reasoning in Carrasquillo is not without
antecedents. See Carrasquillo, supra at 1290 n.6 (collecting cases).9 In
particular, we note the following observation:
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7
At sentencing, defense counsel had requested “a hearing[,] the opportunity
to properly argue his motion.” (N.T. Sentencing, at 3).
8
As previously noted, the only witness was the Victim’s mother, for the
Commonwealth. (See N.T. Motion, 2/20/12, at 5-14).
9
Our Supreme Court also cited, inter alia, Thomas P. Reilly, Note, Now I'm
Guilty, Now I'm Not: The Automatic Right to Pre–Sentence Guilty Plea
Withdrawals in Pennsylvania Since Commonwealth v. Forbes, 59 Vill. L.
Rev. 305, 320–30 & nn. 85–138 (2014) (collecting cases) (offering a
comparison between Pennsylvania cases governing presentence plea
(Footnote Continued Next Page)
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I agree with the majority that an assertion of innocence
will provide “just cause” to withdraw a guilty plea, in some
cases. However, before I would find such an assertion to be
“just cause” to withdraw a valid plea, I would require some
credible explanation for the inconsistency between appellant’s
sworn admissions in support of the initial guilty plea and the
subsequent assertion of innocence. Otherwise, a disingenuous
incantation of the words “I now claim I am innocent” by judicial
alchemy would become magic words with which to evade the
legitimate requirement of “just cause” for withdrawal of the plea.
Such a construction of our Supreme Court’s precedents would
constrain trial courts to reward rather than sanction the most
disingenuous of such claims, and the most brazen of perjuries.
Cole, supra at 208 (Kelly, J., concurring) (emphasis in original).
Here, we discern no abuse of discretion or error of law by the trial
court. Appellant’s first claim lacks merit.
Appellant presents a companion claim that there is no prejudice to the
Commonwealth because “the alleged victim would be able to testify at trial.”
(Appellant’s Brief, at 4; see also id. at 16-19). Because of our resolution of
the first claim, we have no need to address the second companion issue.
See Carrasquillo, supra at 1293 n.9 (“In light of our disposition, above,
we do not reach the second issue presented on appeal, which concerns
prejudice to the Commonwealth.”).
Judgment of sentence affirmed.
_______________________
(Footnote Continued)
withdrawal with those of other jurisdictions). See Carrasquillo, supra at
1290 n.6.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/21/2016
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