J-S66018-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
KEVIN THOMAS YOUNGQUIST :
:
Appellant : No. 49 WDA 2017
Appeal from the Judgment of Sentence December 2, 2016
In the Court of Common Pleas of Warren County Criminal Division at
No(s): CP-62-CR-0000321-2015
BEFORE: BENDER, P.J.E., DUBOW, J., and PLATT*, J.
MEMORANDUM BY DUBOW, J.: FILED NOVEMBER 20, 2017
Appellant Kevin Thomas Youngquist appeals from the Judgment of
Sentence entered on December 2, 2017, after he pled guilty to Disorderly
Conduct. Appellant challenges the denial of his pre-sentence Motion to
Withdraw his Guilty Plea. We affirm.
On June 6, 2015, Appellant and Thomas Johnson got into a physical
altercation at the home in which they were living, which resulted in Johnson
suffering a broken jaw. When police officers were called to the home,
Appellant admitted to the police that he had punched Johnson in the jaw.
The Commonwealth charged with Appellant with one count each of Simple
____________________________________
* Retired Senior Judge assigned to the Superior Court.
J-S66018-17
Assault and Harassment.1 Represented by Public Defender John Parroccini,
Esq., Appellant initially pled not guilty, and the court scheduled a jury trial.
The court subsequently granted three continuances to Defendant. On
June 6, 2016, the court scheduled trial for August 9, 2016. The parties
selected the jury on June 20, 2016.
On August 4, 2016, the court granted the Commonwealth’s request to
amend the Criminal Information to add one count of Disorderly Conduct, 18
Pa.C.S. § 5503(a)(1).
Also on August 4, 2016, Appellant entered an open guilty plea to the
Disorderly Conduct charge and agreed to $9,436.40 in Restitution. The
Commonwealth nolle prossed the remaining charges. At the time he entered
the plea, Appellant admitted that he had punched Johnson in the jaw with a
closed fist.
On August 15, 2016, Attorney Parroccini withdrew his appearance and
John R. Shreve, Esq., entered his appearance on behalf of Appellant.
On September 6, 2016, Appellant filed a Motion to Withdraw his Guilty
Plea, contending that the plea “was premised on a cursory review of his
discovery packet, leading to an improper understanding of the factual
allegations underlying his plea, the evidence against him, and the
____________________________________________
1 18 Pa.C.S. §§ 2701(a)(1) and 2709(a)(1), respectively.
-2-
J-S66018-17
Commonwealth’s burden of proof in this matter.” Motion, dated 9/6/16.
Appellant also baldly asserted his innocence. Id.
At a hearing on September 9, 2016, Appellant’s counsel repeated that,
notwithstanding his representation by counsel, Appellant had not understood
the details of his case at the time of the plea. Counsel again asserted
Appellant’s bald claim of innocence. Counsel also acknowledged that the
jury had been picked and the trial date set for August 9, 2016, before
Appellant had entered his plea, but averred that Appellant’s “motivations
behind that [were] that he misunderstood the potential level of incarceration
associated with going to trial and being guilty.” N.T. Motion to Withdraw
Plea, 9/9/16, at 5. The court denied the Motion to Withdraw the Plea,
stating, inter alia, “I haven’t heard an expression that he is innocent in [any]
way, shape or form of the charges.” Id. at 8.
On December 2, 2016, the court sentenced Appellant to Restitution
and a term of incarceration of 7 days to one year, with credit for time served
of 7 days,2 making him eligible for immediate parole.
On January 4, 2017, Appellant appealed. The court ordered Appellant
to file a Pa.R.A.P. 1925(b) Statement by January 21, 2017. On January 25,
2017, Appellant filed a Motion for Enlargement of Time to file the Rule
1925(b) Statement. The court granted the Motion and ordered Appellant to
____________________________________________
2Appellant had served 7 days in county jail after he was arrested on a bench
warrant for failing to appear for sentencing in October 2016.
-3-
J-S66018-17
file his Rule 1925(b) Statement by February 23, 2017. On February 27,
2017, Appellant filed his Rule 1925(b) Statement stating, “The Trial Court
erred in denying the Defendant’s Motion to Withdraw his Plea of guilty.” 3
The trial court filed a Rule 1925(a) Opinion, noting the “exceedingly brief”
and untimely Rule 1925(b) Statement, but nonetheless addressing the
merits. See Trial Ct. Op., dated 3/15/17, at 1.
In his Brief, Appellant raises the following issue:
Did the Trial Court err when it denied the Defendant’s pre-
sentence motion to withdraw his plea of guilty when the
Defendant, who is both physically and mentally disabled,
asserted his innocence to the charges against him and made
known to the court that his initial plea was made without any
prior review of the discovery materials, was made without any
discussion of the available legal defenses, and was premised on
a misunderstanding of the application sentencing guidelines and
burden of proof?
Appellant’s Brief at 5-6.
Generally, the untimely filing of a Rule 1925(b) Statement results in
waiver of the issues on appeal. Commonwealth v. Hill, 16 A.3d 484, 494
(Pa. 2011). However, where a defendant is represented by counsel, the late
filing represents per se ineffectiveness, which would normally require us to
remand for the filing of a Rule 1925(b) statement nunc pro tunc.
Commonwealth v. Burton, 973 A.2d 428, 433 (Pa. Super. 2009) (en
____________________________________________
3Appellant’s Rule 1925(b) Statement is dated February 23, 2017, but was
not filed with the Court of Common Pleas until February 27, 2017.
-4-
J-S66018-17
banc). However, where a Rule 1925(b) Statement is untimely and the trial
court has filed an Opinion addressing the issues raised, we may elect not to
remand and proceed to review the appellant’s arguments. See, e.g.,
Commonwealth v. Grohowski, 980 A.2d 113, 115 (Pa. Super. 2009)
(concluding that “the trial court has addressed the merits of the issues
raised by the Commonwealth so that we may review the issues raised.”).
In the instant case, notwithstanding the untimeliness of Appellant’s
Rule 1925(b) Statement, the trial court addressed the issue “in the interest
of justice and expedience.” Trial Ct. Op., dated 3/15/17, at 1. We will,
likewise, address the issue in the interests of judicial economy.
Appellant challenges the trial court’s refusal to allow him to withdraw
his guilty plea prior to sentencing. There is no absolute right to withdraw a
guilty plea. Commonwealth v. Carrasquillo, 115 A.3d 1284, 1292 (Pa.
2015). “Before sentence, the court in its discretion may allow the defendant
to withdraw his plea for any fair and just reason unless the prosecution has
been substantially prejudiced by reliance upon the defendant's plea.”
Commonwealth v. Forbes, 299 A.2d 268, 271 (Pa. 1973) (citation
omitted). “Because the plea involves the simultaneous waiver of so many
constitutional rights, a request to withdraw prior to sentencing is generally
‘liberally allowed.’” Commonwealth v. Dickter, 465 A.2d 1, 2 (Pa. Super.
1983), citing Forbes, supra at 271. However, the “bare assertion of
-5-
J-S66018-17
innocence is not, in and of itself, a sufficient reason to require a court to
grant such a request.” Carrasquillo, supra at 1285.
[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. The policy of liberality remains
extant but has its limits, consistent with the affordance of a
degree of discretion to the common pleas courts.
Id. at 1292. We, thus, review the denial of pre-sentence Motion to
Withdraw a Guilty Plea for an abuse of discretion.4
In her Pa.R.A.P. 1925(a) Opinion, the Hon. Maureen A. Skerda
addressed Appellant’s challenge to the denial of his plea withdrawal motion
as follows:
Appellant only made a bare assertion of innocence, which was
insufficient to support his motion to withdraw his plea prior to
sentencing. Furthermore, appellant made admissions to the
police at the time of the arrest as well as to the court at time of
colloquy that support [that] he understood the nature of the
charges and admitted to the conduct. Accordingly, the court
denied the motion to the extent that it relied on a claim of
innocence. … Further, Appellant did not contradict … the
Commonwealth [when it noted that Appellant had “made an
inculpatory statement to a police officer which amounted to a
confession.”] Coupled with Appellant’s admissions at the time
he entered his guilty plea, this information makes Appellant’s
claim of innocence appear implausible.
____________________________________________
4 We may reverse a decision based on an abuse of discretion “only upon
demonstration of manifest unreasonableness, partiality, prejudice, bias, or
ill-will.” Commonwealth v. Cameron, 780 A.2d 688, 692 (Pa. Super.
2001).
-6-
J-S66018-17
Trial Ct. Op. at 3-4 (citations to N.T. omitted).
Judge Skerda also observed the following with respect to Appellant’s
claims that he had insufficient information about his case before he entered
his guilty plea:
In his Motion to Withdraw a Plea of Guilty, at paragraph 2,
Appellant alleged that he misunderstood the allegations and
evidence against him and the Commonwealth’s burden of proof.
At the time of the hearing on Appellant’s motion to withdraw his
plea, the court asked Appellant’s counsel for details concerning
the mistaken beliefs that Appellant had concerning his plea.
Counsel specified that Appellant believed he would automatically
be sentenced to serve the maximum period of incarceration that
could legally be imposed for the crime to which he pled guilty.
Counsel also stated that Appellant believed he had no possible
defenses to the charges against him.
At the time Appellant entered his guilty plea, an appropriate
colloquy was conducted on the record which satisfied the
requirements of Pa.R.Crim.P. 590(A)(3)[5] and the comments
thereto. Also Appellant’s responses to some of the questions
asked during the colloquy contradict Appellant’s specific claims
as to misunderstandings he had. Appellant stated that he was
aware of the nature of the charges against him, and he was read
the charge to which he plead guilty, including the underlying
factual basis, and Appellant stated that he admitted to the
charge. Appellant was also informed that he had a right to a
trial and a trial by jury. Also, the court notes that Appellant was
scheduled for a trial the week after he entered his guilty plea,
and he and his counsel had already participated in selecting the
jury. Appellant was informed of the presumption of his
innocence and that the Commonwealth had the burden to prove
him guilty beyond a reasonable doubt. Finally, Appellant was
____________________________________________
5 Pa. R. Crim. P. 590(A)(3) provides: “The judge may refuse to accept a plea
of guilty, … and shall not accept it unless the judge determines after inquiry
of the defendant that the plea is voluntarily and understandingly tendered.”
-7-
J-S66018-17
informed by the court of the maximum possible sentence of
incarceration and the maximum possible fine that he could
receive, and counsel for Appellant at that time certified on the
record that he had advised Appellant of the permissible range of
sentences and the maximum sentence allowed by law.
The colloquy conducted with Appellant satisfied the legal
prerequisites to a finding that the plea was voluntarily and
understandingly entered. Thus the court denied Appellant’s
motion to withdraw his guilty plea to the extent that it claimed
the plea was not voluntarily and/or understandingly entered.
Although it is not a necessary foundation for the court’s denial of
Appellant’s motion, the court also notes that Appellant could not
have been prejudiced by the mistaken impressions that he
allegedly had concerning his plea. Appellant allegedly believed
that he would be sentenced to the maximum period of
incarceration for the crime he plead guilty to, which was one
year. In reality, the sentencing guidelines provided for a
standard range with a minimum and maximum of restorative
sanctions. Because Appellant had seven days of presentence
incarceration credit, he was sentenced to a minimum of seven
days and immediately paroled.
Trial Ct. Op. at 4-5 (citations to N.T. omitted).
Our review of the certified record, including the transcripts from each
of the relevant hearings, indicates that the trial court’s analysis is supported
by the record and the law. We, thus, adopt Judge Skerda’s analysis as our
own, and conclude that the court did not abuse its discretion in denying
Appellant’s Motion to Withdraw his Guilty Plea.
Judgment affirmed.
-8-
J-S66018-17
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/20/2017
-9-