Com. v. Potrzebrowski, T.

J-A12030-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
TERRY JAMES POTRZEBROWSKI :
:
Appellant : No. 1355 MDA 2020
Appeal from the Judgment of Sentence Entered August 25, 2020
In the Court of Common Pleas of Bradford County Criminal Division at
No(s): CP-08-CR-0000715-2019
BEFORE: LAZARUS, J., STABILE, J., and MUSMANNO, J.
MEMORANDUM BY LAZARUS, J.: FILED AUGUST 18, 2021
Terry James Potrzebrowski appeals from the judgment of sentence,
entered in the Court of Common Pleas of Bradford County, after entering a
plea of nolo contendere to theft by unlawful taking.1 Upon review, we affirm.
On February 26, 2020, pursuant to a plea agreement with the
Commonwealth, Potrzebrowski pled nolo contendere2 to one count of theft by
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1 18 Pa.C.S.A. § 3921(a).
2 This Court noted in Commonwealth v. Moser, 999 A.2d 602 (Pa. Super.
2010), that:
[A]lthough a nolo contendere plea has the same effect as a
guilty plea for purposes of sentencing and is considered
a conviction, it is not an admission of guilt. Unlike a guilty plea,
a nolo contendere plea does not involve an acknowledgment as to
having committed an illegal act. Rather,
the nolo contendere plea admits that the allegations, if proven,
meet the elements of the offense or offenses charged. Hence, in
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unlawful taking3 in exchange for a sentence of probation and payment of
restitution. On June 4, 2020, the day of Potrzebrowski’s sentencing,
Potrzebrowski requested to withdraw his plea and, over the Commonwealth’s
objection, the trial court granted his request.4 On June 8, 2020, the
Commonwealth filed a motion to reconsider the trial court’s grant of
Potrzebrowski’s plea withdrawal, citing, inter alia, Pa.R.Crim.P. 591, which
provides that “[w]hen a defendant moves for the withdrawal of a plea of []
nolo contendere, the attorney for the Commonwealth shall be given 10 days
to respond.” Pa.R.Crim.P. 591; see also id., cmt. (when defendant orally
moves to withdraw plea of nolo contendere at sentencing, court should
conduct on-the-record colloquy to determine whether fair and just reason
exists to permit withdrawal; if court finds there may be fair and just reason,
court must give attorney for Commonwealth 10 days to respond to motion).
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pleading no contest, [one does] not admit to having committed
the acts alleged.
Id. at 606.
3 The Commonwealth alleged that, on November 11, 2018, Potrzebrowski met
with the victim in Bradford County to purchase her iPhone for $500 and
intentionally passed five counterfeit one-hundred-dollar bills in exchange
therefor, thereby exercising unlawful control over the phone. N.T. Plea
Hearing, 2/26/20, at 5.
4 Counsel for Potrzebrowski explained that Potrzebrowski “informed me today
that he has evidence that . . . will exonerate him of the charges. I have not
seen any of that information[,] but he informed me today that he has that
with him.” N.T Sentencing Hearing, 4/20/20, at 3.
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On June 12, 2020, the trial court vacated its June 4, 2020 order and
directed Potrzebrowski to file a written motion to withdraw his plea within 14
days, after which the Commonwealth would have 10 days to respond.
Potrzebrowski timely filed his written motion in which he explained that “he is
innocent[,] and he has evidence to prove his innocence. . . . At the time of
his plea, . . . due to evidence that existed at the time, he believed that he
could not overcome the Commonwealth’s case.” Response to
Commonwealth’s Motion, 6/25/20; see also Motion to Withdraw Plea of Nolo
Contendere, 6/29/20 (incorporating same by reference). In response, the
Commonwealth argued that Potrzebrowski failed to state with any degree of
specificity what this alleged new evidence was, and therefore failed to proffer
a “fair and just reason for the withdrawal of his plea[.]” Brief in Support of
Opposition to Defendant’s Motion, 7/6/20, at 6. Following a hearing on August
25, 2020, the trial court denied Potrzebrowski’s motion to withdraw his plea
and sentenced Potrzebrowski to a term of probation of 12 months, further
directing that he pay $500 in restitution to the victim, a $1,000 fine, and the
costs of prosecution. Potrzebrowski timely filed a notice of appeal, and both
Potrzebrowski and the trial court complied with Pa.R.A.P. 1925. On appeal,
Potrzebrowski raises the following issue for our review: “Did the trial court
err[] in denying [Potrzebrowski]’s motion to withdraw his plea of nolo
contendere?” Brief of Appellant, at 6.
It is well-settled that, “[i]n terms of its effect on a case, a plea of nolo
contendere is treated the same as a guilty plea.” Commonwealth v. Lewis,
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791 A.2d 1227, 1230 (Pa. Super. 2002). “A trial court’s decision regarding
whether to permit a guilty plea to be withdrawn should not be upset absent
an abuse of discretion.” Commonwealth v. Elia, 83 A.3d 254, 261 (Pa.
Super. 2013). “An abuse of discretion will not be found based on a mere error
of judgment, but rather exists where the [trial] court has reached a conclusion
[that] overrides or misapplies the law, or where the judgment exercised is
manifestly unreasonable, or the result of partiality, prejudice, bias[,] or ill-
will.” Commonwealth v. Norton, 201 A.3d 112, 120 (Pa. 2019).
Pursuant to Rule 591(A), at any time before the imposition of sentence,
the trial court may, in its discretion, permit the defendant to withdraw a plea
of guilty or nolo contendere and instead plead not guilty. See id. Our
Supreme Court has held that, although such discretion is to be administered
liberally in favor of the accused, there is no absolute right to withdraw a plea.
See Commonwealth v. Carrasquillo, 115 A.3d 1284, 1291 (Pa. 2015).
Withdrawal is warranted only where the defendant proffers a “fair and just
reason [for withdrawal] and substantial prejudice will not inure to the
Commonwealth.” Id. at 696-97.
In Carrasquillo, our Supreme Court held that a bare assertion of
innocence is insufficient to warrant withdrawal of a plea. The Court clarified:
[T]he 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.
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Id. at 1292.
There, Carrasquillo entered an open guilty plea to various offenses,
including rape of an eleven-year-old girl. Three and one-half months later, at
his sentencing hearing, Carrasquillo sought to withdraw his plea, stating, inter
alia, that he did not rape the minor victim, that he had been “framed,” and
that a polygraph (or lie detector) test would prove his innocence. See id. at
1286. In concluding that the sentencing court acted within its discretion in
denying Carrasquillo’s withdrawal motion, the Supreme Court noted that
Carrasquillo’s assertion of innocence “was first made in sentencing allocution,
after the close of the evidentiary record[, and n]o request was made to reopen
the record for an orderly presentation in support of [his] request.” Id. at
1292-93. The Court further noted that certain “bizarre statements” made by
Carrasquillo in association with his declaration of innocence, including that the
Central Intelligence Agency orchestrated the scheme to frame him, wholly
undermined his credibility. Id. at 1293.
Here, Potrzebrowski entered a plea of nolo contendere, and over three
months later, at his sentencing hearing, indicated for the first time that he
was innocent and had new exculpatory evidence. Despite making this claim,
Potrzebrowski did not specify at any point the nature of the alleged
exculpatory evidence. See generally N.T Sentencing Hearing, 4/20/20;
Response to Commonwealth’s Motion, 6/25/20; Motion to Withdraw Plea of
Nolo Contendere, 6/29/20; Brief of Appellant, at 1-10. We agree with the
Commonwealth that Potrzebrowski’s “refusal to disclose so much as the most
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general description of what this evidence might be serves to undermine the
credibility of his otherwise bare assertion of innocence.” Brief of Appellee, at
5.
Under these circumstances, Potrzebrowski has not advanced a
“colorable demonstration . . . that permitting withdrawal of the plea would
promote fairness and justice.” See Carrasquillo, supra at 1292. Therefore,
the trial court was within its discretion to deny his motion to withdraw his plea
of nolo contendere. Elia, supra; see also Commonwealth v. Norton, 201
A.3d 112, 114 (Pa. 2019) (trial court acted within its discretion when it denied
appellant’s presentence motion to withdraw plea of nolo contendere on the
basis that bare assertion of innocence, in and of itself, is not sufficient reason
to grant such motion).
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/18/2021
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