J-A31027-16
2017 PA Super 43
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
DAVID ANTHONY ISLAS
Appellant No. 1270 EDA 2016
Appeal from the Judgment of Sentence March 31, 2016
In the Court of Common Pleas of Wayne County
Criminal Division at No(s): CP-64-CR-0000280-2015
BEFORE: BENDER, P.J.E., MOULTON, J., and FITZGERALD, J.*
OPINION BY MOULTON, J.: FILED FEBRUARY 24, 2017
David Anthony Islas appeals from the March 31, 2016 judgment of
sentence entered in the Court of Common Pleas of Wayne County. Because
the trial court erred in denying Islas’ pre-sentence motion to withdraw his
guilty plea, we vacate and remand for further proceedings.
On August 17, 2015, police arrested and charged Islas with three
counts of Indecent Assault – Complainant Less than 13.1 The alleged
incidents occurred on August 14, 2015 and August 16, 2015 at the Island
Lake Camp in Wayne County, where Islas was a camp counselor and the
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*
Former Justice specially assigned to the Superior Court.
1
18 Pa.C.S. § 3126(a)(7), (b)(3) (graded as a third-degree felony);
18 Pa.C.S. § 3126(a)(7) (graded as a first-degree misdemeanor); 18 Pa.C.S.
§ 3126(a)(1).
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alleged victim was a camper. On January 8, 2016, three days before trial,
Islas entered a guilty plea to one count of Indecent Assault – Complainant
Less than 13, a first-degree misdemeanor; in exchange for Islas’ plea, the
Commonwealth agreed to nolle pros the other two counts.
The trial court scheduled sentencing for March 31, 2016. On February
11, 2016, counsel for Islas withdrew from representation and current
counsel entered his appearance. That same day, Islas filed a motion to
withdraw his guilty plea, chiefly based on an assertion of innocence. On
February 25, 2016, following a hearing, the trial court denied Islas’ motion
to withdraw, and on March 31, 2016, sentenced Islas to 183 days (time
served) to 5 years, less 1 day, of imprisonment.
Islas raises the following issue on appeal: “Did the trial court err or
otherwise abuse its discretion in denying . . . Islas’ pre-sentence motion to
withdraw his guilty plea[?]” Islas’ Br. at 4.
We review a trial court’s ruling on a pre-sentence motion to withdraw
a guilty plea for an abuse of discretion. Commonwealth v. Elia, 83 A.3d
254, 261 (Pa.Super. 2013).
Pennsylvania Rule of Criminal Procedure 591(A) provides:
At any time before the imposition of sentence, the court
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.
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Pa.R.Crim.P. 591(A). The official comment to Rule 591 provides: “After the
attorney for the Commonwealth has had an opportunity to respond, a
request to withdraw a plea made before sentencing should be liberally
allowed.” Id. cmt. Similarly, in Commonwealth v. Forbes, the
Pennsylvania Supreme Court concluded: “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.” 299
A.2d 268, 271 (1973) (emphasis in original). The Court in Forbes went on
to explain:
[I]n 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. If the trial court
finds “any fair and just reason”, withdrawal of the plea
before sentence should be freely permitted, unless the
prosecution has been “substantially prejudiced.”
Id. (internal citations and some internal quotations omitted); see also
Commonwealth v. Prendes, 97 A.3d 337, 351-52 (Pa.Super. 2014). In
Elia, this Court explained the rationale for the rule of liberal allowance of
withdrawal of guilty pleas before sentencing:
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.
83 A.2d at 262 (quoting Commonwealth v. Santos, 301 A.2d 829, 830
(Pa. 1973)) (internal citation and quotations omitted).
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In contrast, when a defendant moves to withdraw a guilty plea after
sentencing, the standard is far more stringent. “[P]ost-sentence motions for
withdrawal are subject to higher scrutiny since courts strive to discourage
entry of guilty pleas as sentence-testing devices. A defendant must
demonstrate that manifest injustice would result if the court were to deny
his post-sentence motion to withdraw a guilty plea.” Commonwealth v.
Broaden, 980 A.2d 124, 129 (Pa.Super. 2009) (emphasis added) (internal
citations and quotations omitted).
In Commonwealth v. Carrasquillo, 115 A.3d 1284 (Pa. 2015), the
Pennsylvania Supreme Court recently provided further guidance on the
proper exercise of discretion in the context of pre-sentence requests to
withdraw guilty pleas. While the Court reaffirmed the Forbes liberal-
allowance standard,2 it also observed that its own application of that
standard had “lent the [false] impression that this Court had required
acceptance of a bare assertion of innocence as a fair-and-just reason” to
withdraw a guilty plea. Id. at 1292. “In other words, we acknowledge the
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2
The Court approvingly described Forbes as reflecting that
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.
115 A.3d at 1291-92 (footnote omitted).
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legitimate perception of a per se rule arising from this Court’s decisions.”
Id. While our Court shared this misimpression, see, e.g., Prendes, 97
A.3d at 352 (concluding that “mere articulation of innocence [was] a ‘fair
and just’ reason for the pre-sentence withdrawal of a guilty plea unless the
Commonwealth has demonstrated that it would be substantially
prejudiced”); Commonwealth v. Katonka, 33 A.3d 44, 46 (Pa.Super.
2011) (en banc) (same); Commonwealth v. Kirsch, 930 A.2d 1282, 1285
(Pa.Super. 2007) (noting that Forbes “indicated an assertion of innocence
qualified as a ‘fair and just’ reason”), we also observed that this per se
approach was “apparently an extremely unpopular rule with prosecutors and
trial courts,” Kirsch, 930 A.2d at 1285.
Rejecting the per se approach, our Supreme Court in Carrasquillo
held that “a bare assertion of innocence is not, in and of itself, a sufficient
reason” to grant a defendant’s motion to withdraw a guilty plea. 115 A.3d
at 1285 (emphasis added). The Court further stated that “a mere, bare, or
non-colorable assertion of innocence is insufficient, in and of itself, to
support withdrawal of a plea.” Id. at 1290 n.6. Replacing the bright-line
rule, the Court instructed that
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.
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Id. at 1292 (internal citation omitted). Applying this modified, liberal-
allowance approach to the unusual circumstances before it, the Court
affirmed the trial court’s refusal to allow the defendant to withdraw his plea.
In Carrasquillo, the defendant was accused of sexually assaulting two
minors and entered open guilty pleas to various sexual offenses, including
rape, as well as other crimes. Id. at 1285. At the plea colloquy, the
Commonwealth proffered the defendant’s inculpatory statements made
during interrogation, as well as identification testimony from both victims,
video surveillance showing the defendant in close proximity to the victims,
and DNA and fingerprint evidence linking him to the rape of one of the
victims. Id.
Three and one-half months after entry of the guilty plea, the trial court
conducted a sentencing hearing. After both the prosecution and defense had
rested, the defendant: explained that he had pled guilty to spare one of the
victim’s suffering; expressed surprise at his portrayal during the sentencing
hearing; and discussed “scenarios unrelated to the sexual assault . . . , in
which the CIA purportedly had victimized him by seeking to employ him as
an assassin abroad, and where a serpent assertedly appeared and ‘[t]he
Antichrist, he came out of me[.]’” Id. at 1286. Eventually, “[c]laiming that
he did not commit the assault against [one of the victims], [the defendant]
insisted that a polygraph test would prove his innocence and asked to
withdraw his guilty plea.” Id.
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The Supreme Court concluded that the trial court had acted within its
discretion in denying the defendant’s request. Id. The Court emphasized
the uniqueness of the case given the defendant’s “bizarre” allegations of
innocence. Id. at 1293. It also distinguished its decisions in Forbes and
Commonwealth v. Woods, 307 A.2d 880 (Pa. 1973), which held that the
trial courts had abused their discretion by denying the withdrawal motions in
question, “particularly in terms of the timing of the [defendant’s] innocence
claim.” Id. at 1292 (noting that in Forbes the motion to withdraw was
made one month after the plea, and in Woods it was made nine months
before sentencing). The Court emphasized that the defendant before it had
first asserted his innocence at the sentencing hearing, three and one-half
months after entering his plea; that his “bizarre statements” made in
association with the declaration of innocence “wholly undermined its
plausibility”; and that the Commonwealth had made a strong evidentiary
proffer at the plea hearing. Id. at 1286, 1292-93.
More recently, in Commonwealth v. Blango, we applied
Carrasquillo and held that because the defendant had not made “a
plausible claim of innocence[,] . . . the trial court did not abuse its discretion
in declining to permit withdrawal of [his] guilty plea on that ground.” 3 150
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3
We also noted that the defendant “fail[ed] to expand upon, detail,
cite to the record, or otherwise develop his claim of innocence . . . , causing
[that claim] to be waived.” Blango, 150 A.3d at 48.
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A.3d 45, 48 (Pa.Super. 2016). There, the defendant had entered a
negotiated guilty plea, agreeing to cooperate with the Commonwealth by
testifying against two of his co-defendants and by providing information
about an unrelated shooting. Id. at 47. While the defendant did testify
against his co-defendants (and in doing so further admitted his own guilt),
during the trial of the unrelated case he repudiated, on the witness stand,
the information he had earlier provided to the Commonwealth. Id. Treating
the repudiation as a breach of the plea agreement, the Commonwealth
submitted a sentencing memorandum, requesting that the trial court
sentence the defendant to 35 to 70 years’ incarceration. Id. The next day,
having seen the Commonwealth’s sentencing request, the defendant filed a
motion to withdraw his guilty plea. Id. The trial court denied his request,
and we affirmed, concluding that the defendant’s assertion of innocence was
implausible, particularly in light of his trial testimony admitting his role in the
offense and the timing of his motion (made immediately after learning of the
Commonwealth’s sentencing recommendation), and instead was “an attempt
to manipulate the system.” Id. at 48 (quoting Commw’s Br. at 8-9), 52.
Given the unique facts in Carrasquillo, the precise import of that
decision in the more ordinary run of cases is unclear. While this area of the
law undoubtedly will benefit from case-by-case development, see, e.g.,
Blango, supra, the Carrasquillo decision provides several guideposts that
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bear not only on our resolution of this case but also on the proper exercise
of discretion by trial courts going forward.
First, the Court squarely rejected a per se approach in which any pre-
sentence motion to withdraw a guilty plea based on a claim of innocence
must be granted. Second, nothing in Carrasquillo suggests that the Court
intended the pendulum to swing fully in the other direction – from automatic
grants to automatic denials of pre-sentence motions to withdraw. Indeed,
the Court expressly reaffirmed the liberal-allowance language in Forbes,
which continues to stand in sharp contrast to the “manifest injustice”
standard for post-sentence motions to withdraw. Third, the Court directed
trial courts to distinguish between “mere, bare, or non-colorable” assertions
of innocence on the one hand and those that are “at least plausible” on the
other. Fourth, as trial courts undertake the task of making that distinction,
both the timing and the nature of the innocence claim, along with the
relationship of that claim to the strength of the government’s evidence, are
relevant.4 In addition, in his concurring opinion in Carrasquillo, then-
Justice Stevens added that trial courts assessing the credibility of an
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4
In Commonwealth v. Hvizda, a companion case to Carrasquillo,
our Supreme Court concluded that the defendant’s claim of innocence
amounted to a “bare assertion” where he “stated he was innocent, but he
offered no evidence,” and where the Commonwealth presented audiotapes
of his telephone conversations from prison in which he admitted to the
murder and “deserve[d] what [he was] gonna get,” but wanted a trial only
to “get some of the story out.” 116 A.3d 1103, 1104, 1107 (Pa. 2015).
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accused’s assertion of innocence should also consider any “ulterior or illicit
motive” for the motion to withdraw. Carrasquillo, 115 A.3d at 1293
(Stevens, J., concurring); accord Commonwealh v. Tennison, 969 A.2d
572, 573 (Pa.Super. 2009).
We further note that because “it is necessary for a criminal defendant
to acknowledge his guilt during a guilty plea colloquy prior to the court’s
acceptance of a plea, such an incongruity will necessarily be present in all
cases where an assertion of innocence is the basis for withdrawing a guilty
plea.” Katonka, 33 A.3d at 49 (quoting Kirsch, 930 A.3d 1286). Thus, a
defendant’s participation in a guilty plea may not be used to negate his later
assertion of innocence when seeking to withdraw. See id. at 50; see also
Kirsch, 930 A.2d at 1286 (stating that “it is clear that acknowledging guilt
at the plea colloquy does not prevent the later withdrawal upon a later
inconsistent assertion of innocence”). To conclude otherwise would convert
the liberal-allowance standard into a rule of automatic denial.
Applying the foregoing principles to this case, we conclude that the
trial court erred in refusing to allow Islas to withdraw his plea. We note first
that the trial court, while citing Carrasquillo, applied the incorrect standard
in denying the motion to withdraw. Rather than following Carrasquillo’s
liberal-allowance, pre-sentence standard, the trial court applied the far
more exacting post-sentence standard of “manifest injustice.” See Trial
Court Opinion, 6/23/2016, at 2 (unpaginated) (“1925(a) Op.”) (finding that
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Islas “did not prove that withdrawal was necessary to correct a manifest
injustice”). Defendants in Islas’ position, however, need not meet such a
standard, but only must proffer a “fair and just reason” for withdrawal.
Under the circumstances of this case, Islas’ assertion of innocence
constituted such a fair and just reason.
Islas’ assertion of innocence, unlike that of the defendants in
Carrasquillo and Blango, was not “mere, bare, or non-colorable” but
instead was “at least plausible.” At the hearing on his motion to withdraw,
Islas testified that: he did not engage in the charged conduct; he had
maintained his innocence when interviewed by law enforcement; had the
conduct occurred as alleged, it would have been witnessed by other campers
and counselors in the cabin at the time; the victim had a motive to fabricate
the charges; the victim had delayed in reporting the first incident; and Islas
was of good character, had no criminal record, and had never received a
similar complaint in the many years he had been working in the field. N.T.,
2/25/16, at 5-11. Islas further testified that his new counsel had explained
to him, as prior counsel had not, his available defenses, including his ability
to call character witnesses on his behalf. Id. at 6-7.
A defendant seeking to withdraw his or her plea before sentencing
need not prove his or her innocence. The defendant need only proffer a
“colorable” or “plausible” claim of innocence, which Islas has surely done.
Our conclusion is reinforced when we examine the other factors deemed
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relevant by Carrasquillo. Islas moved to withdraw his plea just over one
month after its entry and almost two months before sentencing. Moreover,
neither the Commonwealth nor the trial court identified any “ulterior or illicit
motive” for the motion or any effort to game the system. Instead, the
motion appears to have been triggered, at least in part, by new and different
advice from new counsel. Finally, in contrast to Carrasquillo, the
Commonwealth’s case seems to rest chiefly on the testimony of the victim,
and nothing about that evidence “wholly undermines [the] plausibility” of
Islas’ claim of innocence.
That Islas’ claim of innocence may fail at trial is not a valid ground for
denying his motion. In State v. Munroe, cited with approval in
Carrasquillo, 115 A.3d at 1290 n.6, the New Jersey Supreme Court held
that a trial court’s conclusion that a defendant’s claim of innocence was
unlikely to succeed was irrelevant, “for the ultimate goal [in evaluating a
motion to withdraw a guilty plea] is to ensure that legitimate disputes about
the guilt or innocence of a criminal defendant are decided by a jury.” 45
A.3d 348, 356 (N.J. 2012). As we explained in Elia, “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.” 83 A.2d at 262
(quoting Santos, 301 A.2d at 830) (internal quotations omitted); accord
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Commonwealth v. Hvizda, 116 A.3d 1103, 1106 (Pa. 2015) (“[T]he main
reason the Court has repeatedly invoked in support of the liberal allowance
of presentence withdrawal of pleas is to safeguard defendants’ trial rights.”).
Based on the facts of this case, we conclude that Islas is entitled to
such solicitude because his colorable claim of innocence constitutes a “fair
and just” reason for withdrawal of his plea. Nevertheless, he was not
entitled to withdraw his plea if, at the time of the motion, such withdrawal
would have “substantially prejudiced” the Commonwealth. See Forbes, 299
A.2d at 271; Blango, 150 A.3d at 51. We turn, therefore, to the
Commonwealth’s claim that it would be substantially prejudiced were Islas
permitted to withdraw his plea.
In Blango, this Court set forth the governing standard for measuring
substantial prejudice:
Even if there is a ‘fair and just reason’ to permit
withdrawal of a guilty plea, withdrawal should not be
permitted if the prosecution has been ‘substantially
prejudiced.’ It is settled law that “prejudice,” in the
withdrawal of a guilty plea context, requires a showing
that, due to events occurring after the plea was
entered, the Commonwealth is placed in a worse
position than it would have been had trial taken place
as scheduled.
150 A.3d at 51 (internal citations and some quotation marks omitted). We
further explained that while
there exists little case law explaining what constitutes
prejudice in the withdrawal of a guilty plea context. . . . , it
would seem that prejudice would require a showing that
due to events occurring after the plea was entered, the
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Commonwealth is placed in a worse position than it would
have been had trial taken place as scheduled. This follows
from the fact that the consequence of granting the motion
is to put the parties back in the pre-trial stage of
proceedings. This further follows from the logical
proposition that prejudice cannot be equated with the
Commonwealth being made to do something it was already
obligated to do prior to the entry of the plea.
Id. at 52 (quoting Kirsch, 930 A.2d at 1286) (footnote omitted). In
assessing a claim of substantial prejudice, we focus on whether there was a
material change in circumstances between a defendant’s guilty plea and his
motion to withdraw. Commonwealth v. Gordy, 73 A.3d 620, 627
(Pa.Super. 2013). In other words, the question before us is whether, at the
time Islas moved to withdraw his plea, the prosecution would have been
substantially prejudiced by being required to try its case.5
Islas entered his guilty plea on January 8, 2016, three days before trial
was set to begin and before a jury had been selected. He filed his motion to
withdraw less than five weeks later, on February 11, 2016, the same day
new counsel entered his appearance. At the hearing on the motion to
withdraw, when discussing whether the witnesses would be available to
testify, the Commonwealth did not argue that securing the witnesses would
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5
Any additional prejudice occasioned by the time elapsed between the
trial court’s denial of the motion to withdraw and the disposition of this
appeal (or an eventual trial) is irrelevant to the question presented here.
Such prejudice is the product of the denial of the motion to withdraw, not of
the request to withdraw itself.
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be a problem. Despite the Commonwealth’s failure to assert any prejudice,
let alone substantial prejudice, the trial court, in its Rule 1925(a) opinion,
found substantial prejudice on the following grounds:
[A]llowing [Islas] to withdraw his [guilty plea] at this
juncture would prejudice not only the prosecution, but also
the victim of the crime. The victim of this crime
experienced closure as a result of [Islas’] admission of
guilt and his subsequent sentence. To allow [Islas] to
withdraw his plea at this juncture would require the victim
to reopen wounds that began to heal. . . . Furthermore,
the Commonwealth would attempt to call at least 5
witnesses who live in another state, and given the fact that
this crime involved a child, it is difficult to know how
cooperative this victim would be at trial, as well as any
witnesses for the victim.
1925(a) Op. at 3-4.
The trial court’s finding of substantial prejudice is unsupported by the
record in this case. The Commonwealth affirmatively chose not to present
evidence concerning witness availability at the hearing, resting instead on
the argument that Islas had not offered a fair and just reason to withdraw
his plea. To the contrary, the Commonwealth suggested that it had no
reason to believe it would be unable to present its witnesses at trial:
[Prosecutor]: Your Honor, I don’t think I have a burden to
do anything regarding availability of witnesses and
whatnot until it is shown that he has a fair and just reason
to withdraw his plea. I will say, for the record, that as far
as I know all of these people are living and well. I have no
reason to – I know the victim is [be]cause I talked to his
parents within the last two weeks. I, you know, I worry
about the guy in Florida but I, you know, we’ll cross that
bridge when we get to it, I guess.
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N.T., 2/25/16, at 16. The Commonwealth, having chosen not to proffer
evidence of substantial prejudice below, cannot establish such prejudice on
this record, based on mere speculation in an appellate brief.6 To be clear,
the relevant time for measuring prejudice to the Commonwealth is at the
filing of the motion to withdraw, which in this case was roughly one month
after trial was originally scheduled or, at the latest, the time of the hearing
on the motion to withdraw; it is not after sentencing or when the issue has
reached this Court on appeal. Absent any evidence of a material change in
circumstances between January 8, 2016, when the plea was entered, and
February 25, 2016, when the trial court held the hearing on Islas’ motion to
withdraw, we have no choice but to conclude that the trial court abused its
discretion in finding substantial prejudice to the Commonwealth.
One additional aspect of the trial court’s analysis merits further
discussion. The trial court expressed understandable concern that allowing
Islas to withdraw his plea would adversely affect the victim, who likely had
experienced some closure following the entry of Islas’ plea of guilty.
Undoubtedly, uncertainty over the need to testify could have a powerful,
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6
The Commonwealth presented no evidence (nor did it argue to the
trial court) that Islas’ withdrawal of his guilty plea would change the
witnesses’ availability or their willingness to testify. See Kirsch, 930 A.2d
at 1286 (“There is no indication that [the victim] cannot be subpoenaed and
put on the witness stand.”). Furthermore, that some of these witnesses are
from out-of-state was as true on the originally scheduled trial date as it was
one month later when Islas moved to withdraw his plea.
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negative impact on any crime victim. But in the absence of actual evidence
of an adverse impact on the Commonwealth’s ability to try this particular
case, such speculation does not supersede a defendant’s constitutional right
to a trial.
In sum, we conclude that the trial court abused its discretion in not
allowing Islas to withdraw his guilty plea.
Judgment of sentence vacated. Case remanded for further
proceedings. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/24/2017
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