Com. v. Rowe, J.

J-S16023-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JAMES E. ROWE,
Appellant No. 509 MDA 2014
Appeal from the Judgment of Sentence of February 18, 2014
In the Court of Common Pleas of Montour County
Criminal Division at No(s): CP-47-CR-0000126-2012
BEFORE: PANELLA, OLSON AND OTT, JJ.
MEMORANDUM BY OLSON, J.: FILED JULY 09, 2015
Appellant, James E. Rowe, appeals from the judgment of sentence
entered on February 18, 2014 following his guilty pleas to statutory sexual
assault and corruption of minors. Following our Supreme Court’s recent
decision in Commonwealth v. Carrasquillo, -- A.3d. --, 2015 WL 3684430(Pa. June 15, 2015), we affirm.
The trial court summarized the facts and procedural history of this
case as follows:
On June 11, 2013, [Appellant] pled guilty to [s]tatutory
[s]exual [a]ssault (F-2) and [c]orruption of [m]inors (M-1).
On that date, an [o]rder was issued referring the case to
the Sexual Offenders’ Assessment Board (“SOAB”) for the
required assessment. The SOAB rendered its assessment
on August 27, 2013 and sentencing was scheduled for
September 3, 2013 and was continued at the request of
[Appellant] until October 15, 2015. On October 10, 2015,
[Appellant] filed a [m]otion to [w]ithdraw [p]lea of [g]uilty
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(the “Motion”). By [o]rder of October 11, 2013, the Motion
was scheduled for a hearing on November 12, 2013.
[Appellant’s] counsel appeared on November 12, 2013,
as did [Appellant’s] wife, but [Appellant] did not appear,
despite proper notice[.] Although defense counsel asserted
that [Appellant] was not present due to his grandmother
allegedly being in a car accident in “upstate New York,”
[Appellant’s] wife testified that [Appellant] did not have a
family emergency and was not in New York, but was then in
Shavertown, PA, and that the information regarding
[Appellant’s] grandmother was false. [The trial court]
accepted [Appellant’s] wife’s testimony as credible,
determined that [Appellant] had notice of the hearing on
the Motion, and proceeded with the hearing on the Motion.
In the absence of any evidence of a fair and just reason to
warrant withdrawal of [Appellant’s] guilty plea, [the trial
court] denied the Motion. In [the trial court’s] view,
[Appellant] was granted notice and opportunity to be heard
on the Motion and he chose to attempt to mislead and
defraud [the trial court]. [Appellant] was granted a
hearing, and he did not sustain his burden to prove a fair
and just reason for withdrawal of his guilty plea.
On November 22, 2013, defense counsel John W.
McDanel, Esq. filed a written [p]etition to [w]ithdraw as
[c]ounsel (the “Petition”), citing [Appellant’s] refusal to
cooperate and communicate with Mr. McDanel. By [o]rder
of November 25, 2013, a hearing was scheduled on
December 16, 2013 on the Petition. On December 16,
2013, the Petition was granted and [Appellant] was also
granted a continuance from his sentencing hearing also
scheduled for that date. [Appellant] was admonished to
secure counsel, and it was stated that no further
continuances of [Appellant’s] sentencing hearing would be
granted.
Sentencing was continued to January 23, 2014 at which
time [Appellant] sought a continuance. By [o]rder of
January 23, 2014, a continuance was granted in an effort to
accommodate [Appellant’s] right to court appointed counsel.
To further accommodate [Appellant’s] right to counsel,
successor counsel, Elizabeth A. Kulyeshie, Esq., was
appointed in the [o]rder of January 23, 2014, and the [trial
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court] made a telephone call to Ms. Kulyeshie on that date,
notifying her of her appointment so as to maximize any
preparation time that would be needed. Sentencing was
rescheduled to February 18, 2014.
At the sentencing hearing of February 18, 2014, Ms.
Kulyeshie asserted an oral motion to withdraw guilty plea.
The oral motion was denied []as having been previously
filed and adjudicated. [The trial court] cited [Appellant’s]
intentional misrepresentation to the [c]ourt as to his
whereabouts at the time of the hearing on the Motion and
the credible testimony of his wife in that regard. The
[c]ourt proceeded with sentencing [and imposed an
aggregate term of imprisonment of 15 to 36 months].
Trial Court Opinion, 7/24/2014, at 1-3 (record citations omitted). This
timely appeal resulted.1
Appellant presents the following issue for our review:
Whether the trial court erred in denying [] Appellant’s
motion to withdraw his guilty plea.
Appellant’s Brief at 4 (complete capitalization omitted).
Appellant argues that the trial court abused its discretion when it
denied his motion to withdraw his guilty plea prior to sentencing. Appellant
asserts the trial court erred when it determined that Appellant failed to meet
his burden of proving a fair and just reason to withdraw his plea. Id. at 7.
He maintains that in requesting the withdrawal of his guilty plea he “was
asserting his innocence” which “has been deemed a fair and just reason for
____________________________________________
1
Appellant filed a timely notice of appeal on March 19, 2014. On March 27,
2014, the trial court ordered Appellant to file a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b). Appellant complied
timely on April 22, 2014. The trial court issued an opinion pursuant to
Pa.R.A.P. 1925(a) on July 24, 2014.
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seeking withdraw[al].” Id. at 11. Appellant claims his mere articulation of
innocence sufficed. Id. Appellant also argues that the trial court erred
when it heard testimony from Appellant’s estranged wife at the hearing on
the motion to withdraw wherein she “basically yell[ed] out from the galley.”
Id. Appellant asserts that the trial court further compounded its error by
not allowing him to articulate his reasons for withdrawing his guilty plea
when he renewed his request by oral motion at the sentencing hearing. Id.
Finally, Appellant contends “the Commonwealth presented no evidence or
testimony that [it] would be substantially prejudiced by withdrawal.” Id.
“A decision regarding whether to accept a defendant's presentence
motion to withdraw a guilty plea is left to the discretion of the sentencing
court.” Commonwealth v. Unangst, 71 A.3d 1017, 1019 (Pa. Super.
2013). Regarding a trial court’s discretion, our Supreme Court has declared:
An abuse of discretion exists when the trial court has
rendered a judgment that is manifestly unreasonable,
arbitrary, or capricious, has failed to apply the law, or was
motivated by partiality, prejudice, bias, or ill will. A finding
by an appellate court that it would have reached a different
result than the trial court does not constitute a finding of an
abuse of discretion.
Commonwealth v. Banks, 29 A.3d 1129, 1135 (Pa. 2011) (citation
omitted).
“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.” Unangst, at 1020. Our
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Supreme Court recently decided Carrasquillo “to clarify whether the
common pleas court must accept a bare assertion of innocence as a fair and
just reason for withdrawal[]” of a guilty plea.2 Carrasquillo, at *8. The
Carrasquillo Court ultimately determined:
[T]here 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.
* * *
[…A] defendant’s innocence claim must be at least plausible
to demonstrate, in and of itself, a fair and just reason from
presentence withdrawal of a plea. More broadly, the proper
inquiry on consideration of such 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 court.
Carrasquillo, at *12-14 (citations and footnote omitted). The Carrasquillo
Court also noted that the timing of a defendant’s innocence claim is a factor
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2
“In order to be applied to a defendant, the new decision must be handed
down during the pendency of the defendant's direct appeal and the issue
must be properly preserved during that direct appeal.” Commonwealth v.
Carr, 535 A.2d 1120, 1125 (Pa. Super. 1987) (emphasis omitted). Here,
Appellant has always asserted that his claim of innocence was a fair and just
reason for withdrawal of his guilty pleas and preserved that issue for our
review. There is no question that Carrasquillo was decided during the
pendency of Appellant’s direct appeal.
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for the trial court’s consideration in guilty plea withdrawal matters. Id. at
*13.
In the case at bar, the trial court concluded:
[…Appellant] was granted notice and an opportunity to b[e]
heard, and he failed to sustain his burden of proving a fair
and just reason for seeking to withdraw his guilty plea.
[Appellant] not only knew about the hearing, but
intentionally lied to his attorney to attempt to justify his
failure to attend the hearing. He had his day in court on his
Motion and the Motion was denied for failure to sustain his
burden of proof.
* * *
[Appellant] was granted his due process on the Motion and
he consciously chose not to attend the hearing on the
Motion on November 12, 2013. The matter had been
adjudicated in a manner which granted [Appellant] his due
process, but he flouted the system and threw away his
opportunity to be heard by choosing not to attend the
hearing and in lying to his attorney, who unwittingly relayed
the false information to the Court regarding the reasons for
[Appellant’s] absence. No court has the time to entertain
repeated identical motions from a defendant who will pick
and choose when he is good and ready to appear for his
motions. The denial of the Motion by [o]rder of November
12, 2013 is the law of the case and res judicata.
Trial Court Opinion, 7/24/2014, at 3-4.
Upon review of the record, we discern no abuse of discretion in
denying Appellant’s request to withdraw his guilty plea prior to sentencing.
On June 11, 2013, Appellant pled guilty to statutory sexual assault and
corruption of a minor. Approximately four months later, on October 10,
2013, counsel for Appellant filed a motion to withdraw the guilty plea. In
that motion, counsel averred that Appellant “asserts that he is innocent of
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the charges against him and did not commit any of the charged offenses.”
Motion to Withdraw Plea of Guilty, 10/10/2013, at ¶ 5. However, as the
Commonwealth points out, the motion was not verified and Appellant did not
affix an affidavit to the motion specifying “that the facts [we]re verified
subject to the penalties for unsworn falsification to authorities.”
Pa.R.Crim.P. 575(g). The trial court scheduled a hearing on the guilty plea
withdrawal motion on November 12, 2013. Appellant did not appear.
At the hearing, defense counsel stated that Appellant “indicated … he
was in upstate New York with his grandmother who was in a car accident.”
N.T., 11/12/2013, at 3. Appellant’s wife, “who posted bail [was] also
[present] and she [knew Appellant] was aware of [the] proceeding.” Id.
Under oath,3 Appellant’s wife testified that Appellant did not have a family
emergency and told her “he was going to state that he had a family
emergency so he would not have to” appear. Id. at 4. Thereafter, the
following exchange between defense counsel, John McDanel, Esquire, and
the trial court ensued:
The Court: […] Mr. McDanel, do you have any
evidence – we’re going to go forward
with this motion to withdraw guilty
plea even in [Appellant’s] absence
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3
We reject Appellant’s characterization of his wife’s testimony as mere
statements blurted out in open court. In fact, the trial court called Mrs.
Rowe to the stand and swore her in before asking her direct questions under
oath.
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because he should have been here.
Do you have any evidence to help
sustain that motion? I suspect not
without your client.
Mr. McDanel: He asserts his innocence.
The Court: Without him here?
Mr. McDanel: We’re going to go without him here.
The Court: It puts you in a difficult position, but
the burden of proof still is on
[Appellant] to carry the elements of
withdrawing a guilty plea, but if he’s
not here and hasn’t availed himself of
the hearing that has been accorded to
him.
Mr. McDanel: With all due respect, if that’s how the
[c]ourt’s going to go, we obviously
can’t go forward without him here.
The Court: Or we can adjudicate it in his absence
for failure to sustain the burden of
proof. And I do lend credibility to
what Mrs. Rowe said which we’re not
going to mess around and waste time
scheduling and rescheduling and
rescheduling hearings on motions to
withdraw guilty plea, if he doesn’t see
fit to attend. So that’s why I’m being
kind of hard about it.
Mr. McDanel: I understand. All I would indicate
without a client here is we made an
allegation in the petition that he was
innocent of the charges, there was no
answer submitted to the contrary.
The Court: There is no requirement of an answer
to be submitted.
Mr. McDanel: I understand that.
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The Court: And I sympathize.
Id. at 5-6. The trial court ultimately determined that “upon failure of
[Appellant] to present any evidence [], it [] found that [Appellant] failed to
sustain his burden of proof and his motion to withdraw plea of guilty [was]
denied.” Id. at 7.
Following the hearing on November 12, 2013, the trial court entered
an order denying Appellant relief. Thereafter, the case proceeded to
sentencing. At the sentencing hearing, newly appointed counsel asked the
trial court to reconsider Appellant’s motion to withdraw his guilty plea. N.T.,
2/18/2014, at 2. Pointing to Appellant’s failure to attend the hearing on his
motion to withdraw his guilty plea, as well as the testimony of Appellant’s
wife at that hearing, the trial court denied relief. Id. at 2-3. The trial court
then offered Appellant his right to allocution; Appellant chose not to speak.
Id. at 7.
Based upon all of the foregoing, Appellant did not offer a plausible
innocence claim that demonstrated “in and of itself, a fair and just reason
from presentence withdrawal of a plea.” Carrasquillo, at *14. Appellant
did not make a “colorable demonstration, under the circumstances, such
that permitting withdrawal of the plea would promote fairness and justice.”
Id. In fact, Appellant did not offer any reason to withdraw. The unverified
motion amounted to an assertion of innocence by defense counsel, but not
Appellant. There is no dispute that Appellant received notice of the hearing
set for the motion to withdraw, but then failed to attend. Defense counsel
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did not present any other evidence at the hearing or at the sentencing
hearing prior to imposition of sentence. Thus, Appellant never presented
sworn testimony asserting his innocence. Accordingly, Appellant presented
the trial court with, at most, a bald, unsupported assertion by defense
counsel that Appellant was innocent.
Appellant does not claim that a bald, unverified motion asserting
innocence, advanced without support of record evidence, warrants the
withdrawal of a guilty plea. Moreover, our independent research efforts
reveal no support for this view. In fact, upon review of the cases collected
by our Supreme Court in Carrasquillo, those decisions reveal that, at a
bare minimum, defendants must be present at scheduled hearings on their
motions to personally assert their innocence. See Carrasquillo, at *2 (At
the hearing to withdraw the guilty plea, Carrasquillo “insisted that a
polygraph test would prove his innocence and asked to withdraw his guilty
plea.”); see also Commonwealth v. Hvizda, 2015 WL 3795936, at *1 (Pa.
2015) (companion case to Carrasquillo) (“At the hearing, [Hvizda] again
stated that he was innocent, but he offered no evidence.”); see also
Commonwealth v. Forbes, 299 A.2d 268, 269 (Pa. 1973) (“appellant
expressed a desire to withdraw his guilty plea because, as he stated, ‘I don't
want to plead guilty to nothing I didn't do.’”); see also Commonwealth v.
Katonka, 33 A.3d 44, 49 (Pa. Super. 2011) (en banc) (citing notes of
testimony from the hearing on the motion to withdraw a guilty plea,
“Katonka specifically asserted that he was innocent of the crimes and this
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assertion was neither contradictory nor conditioned on some other event.”);
see also generally Commonwealth v. Miller, 639 A.2d 815 (Pa. Super.
1994) (upon written motion and in person at a subsequent hearing, Miller
asserted his innocence.). Here, Appellant never personally asserted his
innocence, let alone offered a plausible reason for withdrawing his guilty
plea. Accordingly, we discern no abuse of discretion by the trial court in
denying Appellant’s bald, unsupported assertion of innocence to withdraw his
pre-sentence guilty plea. Appellant’s sole appellate claim lacks merit.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/9/2015
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