J-S65020-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
VINCENT FITZGERALD IVEY,
Appellant No. 7 WDA 2016
Appeal from the Judgment of Sentence of August 18, 2015
In the Court of Common Pleas of Somerset County
Criminal Division at No(s): CP-56-CR-0000624-2014
BEFORE: LAZARUS, OLSON AND PLATT,* JJ.
MEMORANDUM BY OLSON, J.: FILED OCTOBER 17, 2016
Appellant, Vincent Fitzgerald Ivey, appeals from the judgment of
sentence entered on August 18, 2015. On appeal, Appellant challenges 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:
On October 4, 2014, [Appellant] was charged by [criminal
i]nformation with three felony counts of [m]anufacture,
[d]elivery, or [p]ossession with [i]ntent to [m]anufacture or
[d]eliver, a [c]ontrolled [s]ubstance ([h]eroin) under 35
P.S. § 780-113(a)(30).
On December 8, 2014, [Appellant] pleaded guilty to one
count of [p]ossession with [i]ntent to [d]istribute [h]eroin
(less than two grams), an ungraded felony. At the plea
colloquy, the [Commonwealth] informed the court that the
charge arose out of a controlled buy arranged by the
Somerset County Bureau of Investigations which occurred
on August 26, 2013, wherein [Appellant] sold seven
“baggies” of heroin to a confidential informant for a sum of
*Retired Senior Judge assigned to the Superior Court.
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$150.00. [The trial court] asked [Appellant] whether the
facts recited by the [Commonwealth] were accurate as
recited, and [Appellant] stated[,] “Yes sir.” [The trial court]
then asked [Appellant] whether he was pleading guilty
because he was truly guilty, and again [Appellant] stated[,]
“Yes sir.” [The trial court] accepted [Appellant’s] plea, and
upon acceptance, granted the Commonwealth’s motion to
withdraw the remaining charges. Sentencing was scheduled
for February 12, 2015 at 9:30 a.m.
On February 12, 2015, [Appellant] appeared for sentencing
and moved for a continuance to give him additional time to
examine the information contained in the pre-sentence
investigation [report]. The Commonwealth having not
objected, [the trial court] granted [Appellant’s] continuance
request [and], with [Appellant] present, rescheduled
sentencing for 9:00 a.m. on March 12, 2015.
On March 12, 2015, [Appellant] failed to appear for his
sentencing hearing, prompting [the trial court] to issue a
bench warrant for [Appellant’s] arrest. On March 16, 2015,
[Appellant] appeared before the court for sentencing and
orally advised [the trial court] that he wished to withdraw
his guilty plea. [The trial court] ordered [Appellant] to file a
written petition to withdraw his plea, which [Appellant] filed
on March 16, 2015. [The trial court] scheduled a hearing
on the petition to withdraw for March 19, 2015.
On March 19, 2015, [the trial court] convened a hearing to
address [Appellant’s] petition withdraw his guilty plea.
During the hearing, [the trial court] informed [Appellant]
that [it] would permit him to withdraw his guilty plea, but
that all withdrawn charges would be reinstated and [the
trial court] would not approve another negotiated plea
agreement in the future. [Appellant] then requested
another continuance, this time for thirty days, indicating to
the court that he needed more time to hire private counsel
to advise him concerning his options. [The trial court]
granted [Appellant’s] request and, in [his] presence,
rescheduled the hearing for April 23, 2015. [The trial court]
indicated on the record that no further continuances would
be granted.
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On April 23, 2015, [Appellant], once again, failed to appear
for his hearing, prompting [the] issuance of another bench
warrant. Furthermore, no private attorney had entered an
appearance on behalf of [Appellant]. On April 30, 2015,
[Appellant] was brought before the court on a bench
warrant. [The trial court] vacated the bench warrant and
reinstated [Appellant’s] bail at $25,000.00 cash, which
[Appellant] was unable to post. On June 23, 2015, [the
trial court] issued a [n]otice of [s]entencing, setting
[Appellant’s] sentencing for July 8, 2015. On July 8, 2015,
having been informed that the Commonwealth would
oppose [Appellant’s] written motion to withdraw his guilty
plea, [the trial court] continued the sentencing hearing
generally, pending the resolution of the withdrawal issue.
On August 18, 2015, some eight months after [Appellant’s]
plea of guilty, [the trial court] conducted a hearing on
[Appellant’s] petition to withdraw his plea. Upon completion
of the hearing, [the trial court] denied [Appellant’s] petition
and immediately proceeded to sentencing. [Appellant] was
sentenced to, inter alia, twenty-seven months to eight years
in a [s]tate [c]orrectional [i]nstitution, with 119 days credit
for time served.
On August 19, 2015, [Appellant] filed a post-sentence
motion to withdraw his plea. On September 11, 2015,
[Appellant’s] counsel [] filed a [m]otion to [w]ithdraw as
[c]ounsel, which [the trial court] granted. On October 2,
2015, [the trial court] appointed [new counsel] to represent
[Appellant]. On December 4, 2015, [the trial court]
summarily denied [Appellant’s] post-sentence motion.
[Appellant] filed his [n]otice of [a]ppeal on December 23,
2015. On December 29, 2015, [the trial court] ordered
[Appellant] to file a [c]oncise [s]tatement of [errors]
[c]omplained of on [a]ppeal, with which [Appellant]
complied on January 15, 2016. [The trial court issued an
opinion pursuant to Pa.R.A.P. 1925(a) on March 7, 2016.]
Trial Court Opinion, 3/7/2016, at 1-3 (record citations omitted).
On appeal, Appellant presents the following issues for our review:
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I. Whether the [s]entencing [c]ourt committed a
reversible error of law and/or an abuse of discretion
when it denied [Appellant’s] presentence petition to
withdraw his guilty plea under the Forbes[1] standard?
II. Whether pursuant to equitable principles this appeal
should be granted due to the narrow and factually
specific circumstances in which [Appellant’s] petition
was filed and partially heard well in advance of the
change of the law that was ultimately used to deny
his petition?
III. Whether the [s]entencing [c]ourt committed a
reversible error of law and/or an abuse of discretion
when it denied [Appellant’s] presentence petition to
withdraw under the Carrasquillo[2] standard?
Appellant’s Brief at 3.
All of Appellant’s issues are interrelated, so we will examine them
together. First, Appellant argues that he maintained his innocence prior to
sentencing and the trial court erred by refusing his request to withdraw his
plea. Id. at 12. Appellant relies primarily on our Supreme Court’s decision
in Commonwealth v. Forbes, 299 A.2d 268 (Pa. 1973) for the proposition
that, “[i]f the sentencing court finds any fair and just reason [for] withdrawal
of [a] plea before sentencing[, the request] should be freely permitted,
unless the prosecution has been substantially prejudiced.” Id. at 13.
Appellant avers that in March 2015, while Forbes was prevailing law, he
made two assertions of his innocence and there was no prejudice to the
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1
Commonwealth v. Forbes, 299 A.2d 268 (Pa. 1973).
2
Commonwealth v. Carrasquillo, 115 A.3d 1284 (Pa. 2015).
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Commonwealth. Id. at 14. He claims that if he had not requested a
continuance, the trial court would have granted his presentence request to
withdraw under Forbes. Id. Next, Appellant claims the trial court erred by
relying on Carrasquillo, a case decided by our Supreme Court on June 15,
2015, because:
his [presentence] petition [to withdraw his guilty plea] was
filed well in advance of the Carrasquillo decision, and a
partial hearing was held two days later and then continued.
Then at the subsequent August 18, 2015 hearing, two
months after Carrasquillo was decided, his petition was
explicitly denied based on that case.
[… H]olding [Appellant] to a standard that emerged after
the filing of his petition and first hearing (the time in which
research into the applicable law is generally conducted)
would violate principles of fairness and equity.
Id. at 15-16. Finally, in the alternative, Appellant maintains “his assertions
of innocence met the standard set forth in Carrasquillo[.]” Id. at 16. More
specifically, Appellant argues he gave a plausible innocence claim when he:
(1) “asserted that the only reason he entered the guilty plea in the first
place […] was to have the other two charges dropped and avoid the risk of
going to trial and facing incarceration, as he was under the impression that if
he pled guilty he would not be incarcerated[;]” and (2) claimed “he did not
possess or sell drugs.” Id. at 17-18. He avers Carrasquillo is
distinguishable because Carrasquillo, in asserting his innocence, made
bizarre statements about “the CIA kidnapping him and a snake that
appeared out of the thin air” and, additionally, “the Commonwealth
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presented overwhelming evidence of [Carrasquillo’s] guilt at the plea
colloquy, including [] inculpatory statements, fingerprints, video and DNA
evidence[.]” Id. at 23-24. Whereas, in this case, Appellant contends “the
Commonwealth [] simply orally stated at the time of the plea that an
unidentified [confidential informant] bought less than two grams of drugs
from [Appellant] with absolutely no supporting evidence.” Id.
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
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) (internal
quotations and citations omitted).
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While Carrasquillo was decided after Appellant’s request to withdraw
his plea, 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
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).
In this case, the trial court “did not believe that [Appellant] had made
a colorable demonstration of a fair and just reason for why [it] should permit
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his plea to be withdrawn.” Trial Court Opinion, 3/7/2016, at 6. The trial
court determined that Appellant qualified his claim of innocence when he
“admitted that part of his reason for wanting to withdraw his plea was that
the recommended sentence in the [p]re-[s]entence [r]eport exceeded what
he was expecting[.]” Id. Appellant’s brief appears to support this sentence-
testing motive to the extent it states that Appellant believed he could avoid
incarceration if he pled guilty. Appellant’s Brief at 17. In sum, the trial
court concluded:
Between [Appellant’s] equivocation – which suggested […]
that [Appellant] was concerned less with his innocence than
with making the strategic decision which benefited him most
– and [Appellant] failing to appear for subsequent
proceedings, resulting in two arrest warrants, [the trial
court was] disinclined to believe his bare assertions of
innocence. Quite simply, [the trial court] believed that
[Appellant] was doing whatever he could to manipulate the
system.
Trial Court Opinion, 3/7/2016, at 7. Furthermore, the trial court also
determined that “[s]ince [Appellant] failed to satisfy the standard applicable
to pre-sentence plea withdrawals, [Appellant] also failed to satisfy the
heightened standard applicable to post-sentence plea withdrawals, when he
again sought to withdraw his plea on the same grounds.” 3 Id., citing
Commonwealth v. Muntz, 630 A.2d 51, 53 (Pa. Super. 1993) (“When
considering a petition to withdraw a guilty plea submitted to a trial court
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3
On appeal, however, Appellant does not challenge the trial court’s ruling
on his post-sentence motion.
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after sentencing, however, it is well-established that a showing of
prejudice on the order of manifest injustice … is required before the
withdrawal is properly justified.”) (emphasis in original; quotations and
citation omitted).
Upon review of the record, we find no trial court abuse of discretion or
error of law in denying Appellant’s pre-sentence motion to withdraw his
guilty plea. Appellant testified that “before sentencing – when [he] got the
[pre-sentence investigation] recommendation, it was nothing like what
[Appellant] was led to believe or that [he] believed it was going to be.”
N.T., 8/18/2015, at 5. He “entered the guilty plea on the advice of [his]
attorney and […] was led to believe that [his sentence] wouldn’t entail [] jail
time.” Id. at 8. When asked whether the reason for his request to
withdraw his plea was because Appellant did not like the sentence
recommendation contained in the pre-sentence investigation report,
Appellant stated, “That’s part of it, ma’am; yes it is.” Id. at 9. Thus, the
trial court reasonably determined that Appellant pled guilty and then claimed
his innocence only after he was dissatisfied with the range of sentences he
potentially faced. We discern no error.
In further support of our position, our Supreme Court previously
determined:
It is well recognized that a pre-sentencing plea withdrawal
motion and a post-sentencing plea withdrawal motion
present entirely different problems. As a general rule, the
guilty plea itself is ‘the defendant's consent that judgment
of conviction may be entered without a trial.’ Brady v.
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United States, 397 U.S. 742, 748 (1970). Nothing remains
to be done following acceptance of a valid plea save to
impose sentence. Consequently, a motion to withdraw a
guilty plea made before sentencing normally precedes any
indication by the court of what penalty will be exacted.
There is therefore little risk that the defendant will enter a
guilty plea and then withdraw it before sentencing as a
means of testing the court's attitude towards sentencing.
Similarly, there is less risk that the prosecution will be
substantially prejudiced by the withdrawal, before
sentencing, of a constitutionally valid guilty plea.
It is otherwise with a post-sentencing petition to withdraw a
guilty plea. Such a procedure obviously would be useful as a
sentence testing device, and, if permitted with any degree
of liberality, would invite abuse.
Commonwealth v. Starr, 301 A.2d 592, 594, 450 Pa. 485, 488–489 (Pa.
1973) (footnote omitted).
Moreover, we recognize
post-sentence motions for withdrawal are subject to higher
scrutiny since courts strive to discourage the entry of
guilty pleas as sentencing-testing devices. 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 withdraw the plea, and the manifest injustice
standard will apply to the pre-sentence motion.
Commonwealth v. Prendes, 97 A.3d 337, 352 (Pa. Super. 2014)
(emphasis added; internal citations omitted).
While we recognize that the above-mentioned cases dealt with post-
sentence motions to withdraw and, thus, follow the more stringent “manifest
injustice” standard of review, the reasoning behind Starr and Prendes is
apropos instantly. Here, Appellant attempted to use his guilty plea as a
sentencing-testing device, albeit prior to his actual sentencing. We believe
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the trial court properly considered the suspicious timing of Appellant’s
request to withdraw his guilty plea. See Carrasquillo, 115 A.3d at 1292.
Appellant did not file his motion to withdraw his guilty plea until after he
received sentencing recommendations in his pre-sentence report. After he
received those recommendations, Appellant failed to appear for sentencing
twice, resulting in the issuance of bench warrants each time. Accordingly,
we agree with the trial court that Appellant’s claim of innocence rings hollow
in light of his stall tactics and obvious discontent with his sentencing
recommendations. Hence, Appellant’s claims lack merit.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/17/2016
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