J-A13003-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
EMMANUEL DAVIS,
Appellant No. 909 WDA 2015
Appeal from the Judgment of Sentence May 7, 2015
In the Court of Common Pleas of Cambria County
Criminal Division at No(s): CP-11-CR-0001693-2013
BEFORE: OLSON, STABILE AND MUSMANNO, JJ.:
MEMORANDUM BY OLSON, J.: FILED SEPTEMBER 12, 2016
Appellant, Emmanuel Davis, appeals from the judgment of sentence
entered on May 7, 2015, challenging the denial of his pre-sentence motion
to withdraw his guilty plea. We affirm.
The trial court briefly set forth the facts and procedural history of this
case as follows:
[Appellant] was charged with drug offenses arising from a
criminal incident that took place on March 6, 2012. Multiple
defense continuances were granted until [Appellant]
accepted a plea to Count 1, possession with intent to deliver
0.38 grams of cocaine, 35 P.S. § 780-113(a)(30), an
ungraded felony offense. The plea hearing was held on
December 4, 2014, and sentencing was scheduled for
January 6, 2015. On that date, [Appellant] appeared with
counsel [] and requested a continuance for medical reasons.
The [trial court] rescheduled sentencing for March 24, 2015.
Less than a week prior to sentencing, [Appellant] filed a
counseled motion to withdraw his guilty plea, citing
innocence and an unknowing, involuntary plea.
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On March 24, 2015, the Commonwealth presented the
testimony of Detective Kevin Price, who stated that he had
mistakenly destroyed the laboratory-analyzed drugs, which
would be essential to the prosecution of [Appellant’s] case
at trial. [Defense counsel] argued that any prejudice to the
Commonwealth in trying its case, due to the loss of the
drug evidence, was no fault of [Appellant], and contended
that [Appellant] maintain[ed] his innocence and ha[d] an
absolute right to withdraw his guilty plea. [Appellant did
not present] evidence in support of this assertion. The [trial
court] requested transcription of the guilty plea [hearing]
and memorand[a] [from both parties], and following review
of the submitted briefs and record, the hearing was
rescheduled.
On May 7, 2015, the [Commonwealth] reiterated its position
as did [defense counsel], asserting that [Appellant]
maintained his innocence and wanted to proceed to trial.
The [trial court] denied the motion to withdraw and
proceeded to sentence [Appellant] within the standard
sentencing guideline range, to two to four years’
incarceration.
Trial Court Opinion, 7/15/2015, at 1-2 (record citation omitted). This timely
appeal resulted.1
On appeal, Appellant presents the following issue for our review:
Whether the [trial] court erred in denying [Appellant’s]
motion to withdraw [his] guilty plea filed prior to
sentencing?
Appellant’s Brief at 4 (complete capitalization omitted).
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1
Appellant filed a notice of appeal on June 5, 2015. On June 10, 2015, 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
June 17, 2015. On July 15, 2015, the trial court issued an opinion pursuant
to Pa.R.A.P. 1925(a).
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Appellant argues that he maintained his innocence prior to sentencing
and the trial court erred by failing to withdraw his plea. Id. at 8. Appellant
relies primarily on our Supreme Court’s decisions in Commonwealth v.
Forbes, 299 A.2d 268 (Pa. 1973) and Commonwealth v. Randolph, 718
A.2d 1242 (Pa. 1998) for the proposition “that a mere assertion of innocence
was a fair and just reason for pre-sentence withdrawal of a guilty plea
absent substantial prejudice to the Commonwealth.” Id. Regarding
prejudice, Appellant argues:
The [Commonwealth] avers that it has been substantially
prejudiced because it destroyed evidence prior to
sentencing. The [Commonwealth’s] witness stated that the
protocol for destruction of evidence is after the 30-day
appeal period has terminated. The 30-day appeal period
[had not run before the evidence was destroyed]. The
Commonwealth has not been substantially prejudiced by the
actions of [Appellant]. If the Commonwealth has been
prejudiced, it has been prejudiced by [its] own conduct and
[in] violation of [its] own protocol.
Id. at 10.
In response, the Commonwealth contends that a bare assertion of
innocence is not a sufficient reason to grant the withdrawal of a pre-
sentence guilty plea. Commonwealth’s Brief at 6. The Commonwealth relies
upon our Supreme Court’s pronouncement in Commonwealth v.
Carrasquillo, 115 A.3d 1284 (Pa. 2015), a decision filed on June 15, 2015,
after the submission of Appellant’s pre-sentence request to withdraw his
plea and after the imposition of sentence in this case. Carrasquillo states
that the proper inquiry for the pre-sentence withdrawal of a guilty plea “is
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whether the accused has made some colorable demonstration, under the
circumstances, such that permitting withdrawal of a plea would promote
fairness and justice.”2 Commonwealth’s Brief at 6, citing Carrasquillo, 115
A.3d at 1292. The Commonwealth posits that Appellant avoids
Carrasquillo by simply not citing it, relying instead upon the 1973 Forbes
decision, contrary to prevailing law. Id. at 7-8. Furthermore, the
Commonwealth suggests Appellant bears the burden to show a lack of
substantial prejudice and that, under the circumstances of this case, “the
inadvertent destruction of evidence constitutes substantial prejudice.” Id. at
9, citing Commonwealth v. Kirsch, 930 A.2d 1282, 1287 (Pa. Super.
2007).
The standard of review that we employ in challenges to a trial court's
decision regarding a pre-sentence 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.
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. 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. The policy underlying this liberal exercise
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2
The trial court, likewise, relied upon Carrasquillo in its Pa.R.A.P. 1925(a)
opinion setting forth its reasons for denying Appellant’s request for relief.
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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. In Forbes, our
Supreme Court instructed that, in determining whether to
grant a pre[-]sentence motion for withdrawal of a guilty
plea, the test to be applied by the trial courts is fairness and
justice.
Commonwealth v. Elia, 83 A.3d 254, 261–262 (Pa. Super. 2013).
While Carrasquillo was decided after the trial court denied Appellant’s
request to withdraw his plea and imposed its sentence, we adhere to the
“general rule in Pennsylvania [that applies] the law in effect at the time of
the appellate decision.” Commonwealth v. Housman, 986 A.2d 822, 840
(Pa. 2009). The Carrasquillo Court determined:
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, 115 A.3d at 1291–1292 (footnote omitted). More specifically,
“a defendant's innocence claim must be at least plausible to demonstrate, in
and of itself, a fair and just reason for pre[-]sentence withdrawal of a plea.”
Id. at 1292. The Supreme Court concluded that “a per se approach” to
allowing pre-sentence withdrawal of a guilty plea on a mere assertion of
innocence “is unsatisfactory.” Id. The Carrasquillo Court noted that in
evaluating a pre-sentence request to withdraw a guilty plea, courts could
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consider the timing of the innocence claim. Id., citing Forbes, 299 A.2d at
272 (“Obviously, the appellant, by his assertion of innocence—so early in the
proceedings, i.e., one month after the initial tender of a plea,—offered a ‘fair
and just’ reason for withdrawal of the plea.”) (brackets omitted).
Here, the trial court concluded it “was presented with no more than a
bare assertion of [Appellant’s] innocence, and [it could not] discern [a]
plausible nor colorable showing within the record which would demonstrate
that withdrawal would promote fairness and justice.” Trial Court Opinion,
7/15/2015, at 2. In support of its decision, the trial court highlighted the
fact that, in this case, there was a “three-year delay, attributable to
[Appellant], between his arrest and his motion to withdraw, which
contributed to the accidental destruction of the drug evidence.” Id. at 3.
We discern no abuse of discretion. Appellant relies exclusively on a
bare assertion of his innocence. However, as discussed above, our Supreme
Court has condemned a per se approach to allowing the withdrawal of a
pre-sentence guilty plea on such a basis. Appellant’s unsupported assertion
of innocence, after a three-year delay of his own making and one week
before sentencing, is not a plausible demonstration that withdrawal of his
plea would promote fairness and justice. Hence, we agree that withdrawal
of Appellant’s guilty plea was not proper. Accordingly, Appellant’s sole
appellate issue is without merit.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/12/2016
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