J-A20030-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF : IN THE SUPERIOR COURT OF
PENNSYLVANIA : PENNSYLVANIA
:
:
v. :
:
:
CHRISTOPHER STEVEN TICHENOR :
: No. 301 MDA 2017
Appellant
Appeal from the Judgment of Sentence February 7, 2017
In the Court of Common Pleas of Cumberland County
Criminal Division at No(s): CP-21-CR-0000581-2016
BEFORE: GANTMAN, P.J., PANELLA, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY PANELLA, J. FILED MARCH 08, 2018
Appellant, Christopher Steven Tichenor, appeals from the judgment of
sentence imposed by the Cumberland County Court of Common Pleas.
Appellant argues the trial court abused its discretion denying both his petition
to withdraw his guilty plea and his motion to suppress. We affirm.
On June 30, 2016, Appellant pleaded guilty to one count each of Driving
Under the Influence and Possession of Drug Paraphernalia.1 However, on the
date scheduled for sentencing, Appellant indicated his desire to withdraw his
guilty plea. The trial court postponed sentencing to allow Appellant to file his
motion. On December 16, 2016, Appellant filed both a motion to withdraw his
guilty plea and a motion to suppress his blood results pursuant to Birchfield
v. North Dakota, 136 S.Ct. 2160 (2016), which the High Court decided prior
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1 75 Pa.C.S.A. § 3802(b), and 35 P.S. § 780-113(a)(32), respectively.
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to entry of his plea. Following a hearing, the court denied both motions and
sentenced Appellant to an aggregate term of thirty days to six months’
imprisonment. This timely appeal follows.
Appellant first alleges the trial court erred by denying his petition to
withdraw his guilty plea. Specifically, Appellant points to the fact that he filed
his motion to withdraw his plea prior to sentencing, when motions to withdraw
should be “liberally allowed.” Appellant also asserts he had a “fair and just”
reason to withdraw his plea, as he believed his suppression motion, based on
Birchfield, was meritorious.
“We review a trial court’s ruling on a pre-sentence motion to withdraw
a guilty plea for an abuse of discretion.” Commonwealth v. Islas, 156 A.3d
1185, 1187 (Pa. Super. 2017) (citation omitted). Pennsylvania Rule of
Criminal Procedure 591(A) provides that, “[a]t any time before imposition of
sentence, the court may, in its discretion, permit, upon motion of the
defendant, … the withdrawal of a plea of guilty … and the substitution of a plea
of not guilty.”
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. Thus, 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. 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. As a general rule, the mere articulation of innocence
is 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.
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Commonwealth v. Kpou, 153 A.3d 1020, 1022-1023 (Pa. Super. 2016)
(internal citations, quotation marks, and brackets omitted; ellipses in
original).
The trial court in the instant case concluded Appellant failed to advance
a “fair and just reason” for withdrawal. We agree.
Appellant did not assert his innocence in the motion to withdraw (nor in
his appellate brief). And he did not claim, at any time, that he entered into
the plea involuntarily, unknowingly, or unintelligently. The only reason
Appellant set forth to support his request to withdraw his plea was his desire
to litigate a pretrial suppression motion. That is not a “fair and just reason.”
See Commonwealth v. Dorian, 460 A.2d 1121, 1123 (Pa. Super. 1983)
(finding a motion to withdraw a pre-sentence guilty plea properly denied
where defendant’s desire to withdraw the plea was not based on claimed
innocence, but on information that defendant may have a “possible defense”).
Therefore, we find the trial court did not abuse its discretion in denying
Appellant’s pre-sentence motion to withdraw his guilty plea.
Appellant next argues the trial court erred by denying his motion to
suppress pursuant to Birchfield. But as we have just found the trial court
properly refused withdrawal of the guilty plea, Appellant cannot succeed on
this claim. “Settled Pennsylvania law makes clear that by entering a guilty
plea, the defendant waives his right to challenge on direct appeal all
nonjurisdictional defects except the legality of the sentence and the validity of
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the plea.” Commonwealth v. Lincoln, 72 A.3d 606, 609 (Pa. Super. 2013)
(citation omitted).
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 03/08/2018
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