[J-36-2018]
IN THE SUPREME COURT OF PENNSYLVANIA
MIDDLE DISTRICT
SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.
COMMONWEALTH OF PENNSYLVANIA, : No. 53 MAP 2017
:
Appellee : Appeal from the Order of the Superior
: Court at No. 2359 EDA 2015 dated
: March 23, 2017 Affirming the
v. : Judgment of Sentence of the Court of
: Common Pleas Pike County, Criminal
: Division, at No. CP-52-CR-0000104-
MICHAEL NORTON, : 2013, dated August 7, 2015.
:
Appellant : ARGUED: May 16, 2018
OPINION
JUSTICE BAER DECIDED: January 23, 2019
In Commonwealth v. Carrasquillo, 115 A.3d 1284 (Pa. 2015), this Court dispelled
the notion that a defendant’s bare assertion of innocence requires a trial court to grant
the defendant’s presentence motion to withdraw his guilty plea. Instead, the Carrasquillo
Court held that, in the context of such a motion, “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.” Carrasquillo, 115 A.3d at 1292. In the matter sub judice, a trial
court utilized this standard in denying a presentence motion to withdraw a plea of nolo
contendere,1 and the Superior Court concluded that the trial court did not abuse its
discretion in this regard. This Court granted allowance of appeal to assess whether the
1“Nolo contendere” is a Latin phrase which means, “I do not wish to contend[.]” Nolo
Contendere Definition, BLACK’S LAW DICTIONARY (10th ed. 2014), available at Westlaw.
When a defendant enters a plea of nolo contendere, he technically does not admit guilt.
See id. (defining “nolo plea”). However, for purposes of a criminal case, a plea of nolo
contendere is equivalent to a plea of guilty. Eisenberg v. Com., Dep’t of Pub. Welfare,
516 A.2d 333, 335 (Pa. 1986).
Superior Court erred by holding that the trial court properly exercised its discretion in
applying the Carrasquillo standard. We hold that the Superior Court correctly concluded
that the trial court acted within its discretion by denying the presentence motion to
withdraw a plea of nolo contendere. Consequently, we affirm the Superior Court’s
judgment.
The relevant background underlying this matter can be summarized as follows. In
December of 2012, a criminal complaint was filed against Appellant Michael Norton
(“Appellant”), charging him with five counts of indecent assault and one count of
corruption of minors. According to the complaint and the accompanying affidavit of
probable cause, on at least five occasions from September of 2008 through April of 2012,
Appellant sexually abused his paramour’s granddaughter (“Victim”), born in September
of 2004.
On February 27, 2013, a preliminary hearing occurred, where Victim and Corporal
James Travis of the Pennsylvania State Police testified. Following that hearing, the
magisterial district judge dismissed three counts of indecent assault but bound over for
trial the remaining charges. The district judge’s decision was based upon his observation
that Victim testified specifically to only two alleged incidents of abuse. N.T., 10/15/2013,
Exhibit 1, at 21.
On August 7, 2013, Appellant filed an omnibus pretrial motion in which he sought
an order precluding the Commonwealth from presenting at trial evidence regarding sexual
abuse Appellant allegedly inflicted upon his now-adult daughter (“Daughter”) when
Daughter was a child in the late 1980s and early 1990s. That evidence included a 1996
statement signed by Appellant in which he admitted to abusing Daughter sexually.2 On
October 15, 2013, the trial court held a hearing on Appellant’s pretrial motion, at which
2Appellant attached this statement to his omnibus pretrial motion. The statement is dated
March 1, 1996, and appears to have been given to New York investigators.
[J-36-2018] - 2
Daughter testified regarding the abuse Appellant allegedly perpetrated upon her. The
court ultimately denied Appellant’s motion, concluding that the complained-of evidence
was admissible as prior bad acts.
On November 7, 2014, trial was scheduled to commence for purposes of jury
selection. However, on that date, the parties informed the trial court that they had reached
an agreement. Specifically, Appellant agreed to plead nolo contendere to one count each
of indecent assault and corruption of a minor in exchange for an aggregate term of
imprisonment of two to six years. In the presence of the court, Appellant’s attorney
conducted a plea colloquy, which was supplemented by questioning by the district
attorney regarding the fact that Appellant’s plea would require him to be assessed for
purposes of determining whether he should be classified as a sexually violent predator.
The parties also submitted to the court Appellant’s written plea colloquy.
The trial court accepted the plea agreement, ordered Appellant to be assessed by
the Sexual Offenders Assessment Board (“SOAB”), and tentatively scheduled sentencing
for February 13, 2015. However, on the Commonwealth’s motion, sentencing was later
rescheduled for May 7, 2015.
On March 23, 2015, Appellant filed a motion to withdraw his nolo contendere plea.
In that motion, Appellant asserted his innocence and proclaimed that he could not live
with himself for taking a plea under the circumstances. The trial court held a hearing
concerning this motion on April 30, 2015. At that hearing, Appellant reiterated that he
wanted to withdraw his plea because he was innocent of the crimes to which he pleaded
nolo contendere and because he could not live with himself for entering his plea.
At that time, the prevailing law in the Commonwealth required a trial court to grant
a presentence motion to withdraw a guilty plea when withdrawal of the plea was based
upon a defendant’s bare assertion of innocence. See, e.g., Commonwealth v.
[J-36-2018] - 3
Carrasquillo, 78 A.3d 1120 (Pa. Super. 2013) (en banc), rev’d by Carrasquillo, supra.
Consistent with this case law, the trial court granted Appellant’s motion on May 29, 2015,
and allowed him to withdraw his plea. However, in its order, the court noted that this
Court had granted allowance of appeal to review the Superior Court’s decisions in
Carrasquillo and Commonwealth v. Hvizda, 82 A.3d 470 (Pa. Super. 2013) (unpublished
memorandum), rev’d by Commonwealth v. Hvizda, 116 A.3d 1103 (Pa. 2015), both of
which involved the standard a trial court should apply when a defendant seeks to withdraw
a guilty plea presentence based upon a claim of innocence.
On June 5, 2015, this Court decided Carrasquillo and Hvizda, employing
Carrasquillo as the lead opinion. In examining whether a defendant’s bare assertion of
innocence requires a court to allow a defendant to withdraw a guilty plea presentence,
the Carrasquillo Court observed that this Court’s seminal decision in Commonwealth v.
Forbes, 299 A.2d 268 (Pa. 1973), reflects that: (1) “there is no absolute right to withdraw
a guilty plea;” (2) “trial courts have discretion in determining whether a withdrawal request
will be granted;” (3) “such discretion is to be administered liberally in favor of the accused;”
and (4) “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 1291-92 (citing Forbes, 299 A.2d at 271) (footnote omitted).
The Carrasquillo Court further observed that the “perfunctory fashion in which these
principles were applied to the circumstances presented in Forbes, as well as in the
ensuing decision in [Commonwealth v. Woods, 307 A.2d 880 (Pa. 1973)], also lent the
impression that this Court had required acceptance of a bare assertion of innocence as
a fair-and-just reason.” Carrasquillo, 115 A.3d at 1292. Indeed, the Carrasquillo Court
acknowledged the Superior Court’s “legitimate perception of a per se rule arising from
this Court’s decisions[,]” such as Forbes. Id.
[J-36-2018] - 4
In setting out to clarify the law in this area, the Carrasquillo Court adopted the
approach of other jurisdictions that require a defendant’s claim of innocence to “be at
least plausible to demonstrate, in and of itself, a fair and just reason for presentence
withdrawal of a plea.” Id. Stated more broadly, pursuant to this approach, “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.” Id. In closing, the Court stated that the
“policy of liberality remains extant but has its limits, consistent with the affordance of a
degree of discretion to the common pleas courts.”3 Id.
3 Regarding the application of these principles to the circumstances in Carrasquillo,
Carrasquillo pleaded guilty to several sexual offenses. At Carrasquillo’s plea colloquy,
the Commonwealth proffered evidence, including his inculpatory statements to police and
DNA evidence linking him to the crimes. Carrasquillo, 115 A.3d at 1285. During the
sentencing hearing but before he received his sentence, Carrasquillo sought to withdraw
his plea by claiming his innocence; however, his explanation of his innocence included
bizarre references, such as statements that the CIA had victimized him by seeking to
employ him as an assassin abroad. Id. at 1286. The trial court denied Carrasquillo’s
motion to withdraw his plea and sentenced him. Carrasquillo appealed to the Superior
Court, which reversed the trial court on the basis of case law that held that a defendant’s
bare assertion of innocence requires a trial court to grant the defendant’s presentence
motion to withdraw his guilty plea. Id. at 1287-88.
Upon further appeal to this Court, we clarified the law in this area, as discussed
supra, and applied that law to Carrasquillo’s circumstances. The Court concluded that
the trial court acted within its discretion by denying Carrasquillo’s presentence motion to
withdraw his guilty plea because Carrasquillo’s claim of innocence was implausible in light
of, inter alia, the bizarre nature of his statements during his plea colloquy and the strength
of the Commonwealth’s case against him. Id. at 1291-93.
As to Hvizda, Hvizda pleaded guilty to first-degree murder and possession of an
instrument of crime. 116 A.3d at 1104. He later sought to withdraw that plea based upon
a bare assertion of innocence. The trial court denied the motion, concluding that the claim
of innocence was pretextual and an attempt to manipulate the system. Id. at 1104-05.
The Superior Court reversed and stated that the trial court should have accepted Hvizda’s
claim of innocence and allowed him to withdraw his plea. On appeal to this Court, we
explained that the Carrasquillo Court “determined that a bare assertion of innocence—
such as [Hzivda] provided as the basis for withdrawing his guilty plea—is not, in and of
[J-36-2018] - 5
After this Court issued its opinions in Carrasquillo and Hvizda, the Commonwealth,
in the case at bar, timely filed in the trial court a motion for reconsideration of its order
permitting Appellant to withdraw his plea of nolo contendere. In that motion, the
Commonwealth highlighted that the court permitted Appellant to withdraw his plea based
solely on an assertion of innocence and that Carrasquillo and Hvizda held that a bare
assertion of innocence is not, in and of itself, a sufficient reason to require a court to grant
a defendant’s presentence request to withdraw a guilty plea.
On June 25, 2015, the trial court entertained argument on the Commonwealth’s
motion for reconsideration. For its part, the Commonwealth questioned the plausibility
and sincerity of Appellant’s assertion of innocence and suggested that Appellant simply
was seeking to delay the prosecution and the consequences that awaited him. The
Commonwealth posited that strong evidence of record indicates that Appellant’s assertion
of innocence was implausible and that fairness and justice did not require the court to
allow Appellant to withdraw his plea.
Appellant’s counsel, on the other hand, insisted that Appellant had always
maintained his innocence, emphasizing that his nolo contendere plea did not equate to
an admission of guilt to the crimes of which he was convicted. In this regard, Counsel
also asserted that, when the SOAB interviewed Appellant to assess his sexual offender
status, he “refused to participate, maintaining his innocence.” N.T., 6/25/2015, at 7.
Counsel further stated that, if permitted to withdraw his plea, Appellant intended to contest
the Commonwealth’s evidence at trial by attacking Victim’s credibility, as she answered,
“I don’t remember,” at least 15 times during the preliminary hearing. Id. at 8. Counsel
itself a sufficient reason to require a court to grant such a request.” Id. at 1107. The
Court, therefore, concluded that the trial court did not err by denying Hzvida’s presentence
motion to withdraw his guilty plea. Id.
[J-36-2018] - 6
also seemed to insinuate that he would again challenge at trial the admissibility of the
prior-bad-acts evidence regarding his sexual abuse of Daughter.
On June 26, 2015, the trial court issued a speaking order granting the
Commonwealth’s motion for reconsideration and denying Appellant’s motion to withdraw
his plea. In so doing, the court applied the Carrasquillo standard and concluded that
Appellant “did not make a colorable demonstration for withdrawal of his plea of nolo
contend[e]re that would promote fairness and justice.” Trial Court Order, 6/26/2015, at 2-
3. In support of this conclusion, the court observed that Appellant entered his negotiated
plea on November 7, 2014, which notably was the day that the court and parties were set
to pick a jury. Id. at 3. The court further reported that, shortly after entering his plea,
Appellant signed a sexual offender colloquy, acknowledging his obligations to register as
a sexual offender as required by Pennsylvania law. 4 The court noted that, at the
Commonwealth’s request, it then scheduled sentencing for May 7, 2015.
The trial court continued by explaining that, in his motion to withdraw his plea,
Appellant simply averred that “he was innocent and could not live with himself for taking
a plea to offenses of which he is innocent.” Id. at 4. Appellant made the same general
claim at the April 30, 2015, hearing on his motion to withdraw, which the court determined
“was the gist” of Appellant’s reason for requesting withdrawal of his plea. Id.
Appellant filed a motion for reconsideration of the June 26 th order, which was
denied on August 4, 2015.5 On August 7, 2015, consistent with the parties’ plea
agreement, the trial court sentenced Appellant to an aggregate term of imprisonment of
two to six years. During the sentencing hearing, the trial court also explained that, as a
4 The trial court did not explain why it noted this fact, though it appears to have been
aimed simply at giving a full timeline of the events that led up to Appellant filing his motion
to withdraw his nolo contendere plea.
5 The trial court apparently held a hearing on Appellant’s motion for reconsideration, but
there is no transcript of that hearing in the certified record.
[J-36-2018] - 7
result of his convictions for indecent assault and corruption of a minor, Appellant was to
be classified as a Tier III sexual offender pursuant to the Sexual Offender Registration
and Notification Act, 42 Pa.C.S. §§ 9799.10-9799.42.
Appellant timely filed a notice of appeal, and the trial court directed him to comply
with Pa.R.A.P. 1925(b). Appellant filed a concise statement of matters complained of on
appeal. Therein, Appellant stated that he intended to raise four issues on appeal, all of
which concerned the trial court’s decision to deny his motion to withdraw his nolo
contendere plea.
In its Pa.R.A.P. 1925(a) opinion, the trial court bolstered the analysis that it
provided in its speaking order denying Appellant’s motion to withdraw his plea. In relevant
part, the court stated that it went to great lengths in the plea colloquy with Appellant to
ensure that he entered his plea knowingly, voluntarily, and intelligently. Trial Court
Opinion, 11/17/2015, at 6. The court explained that the plea colloquy was conducted in
chambers while the prospective jury pool waited in the courtroom.
The trial court also explained that it initially granted Appellant’s motion to withdraw
his plea based upon the prevailing law at the time which suggested that a bare assertion
of innocence warranted the withdrawal of a plea prior to sentencing. However, on the
Commonwealth’s motion, the court believed it prudent to reconsider its decision in light
of this Court’s opinion in Carrasquillo, id. at 6-7, which was decided eight days after the
court permitted Appellant to withdraw his plea based upon his bare assertion of
innocence. In this regard, the court reiterated its conclusion that Appellant failed to
“demonstrate, under the facts of this case, that permitting withdrawal of his plea would
promote fairness and justice.” Id. at 7. The court opined that Appellant had ample time
prior to his November 7, 2014, plea to consider and assert his innocence. Id.
[J-36-2018] - 8
Lastly, the trial court addressed Appellant’s claim that he intended to contest the
Commonwealth’s evidence at trial. Id. at 8. Similar to its consideration of his assertion
of innocence, the court found that Appellant had ample time to discover and inspect the
Commonwealth’s evidence well prior to his plea. The court stated, “It would be logical
that [Appellant] and his counsel considered all of the evidence of the case, including the
Commonwealth’s evidence or lack thereof, in deciding whether to enter into the
negotiated[] nolo contendere plea agreement with the Commonwealth.” Id. The court
concluded that any assertion of a desire to challenge the Commonwealth’s evidence was
not new to the case. Id. In other words, Appellant’s two “primary claims, that he was
innocent and that he sought to challenge the Commonwealth’s evidence at trial, were not
novel to the post-plea proceedings of this case.” Id. The trial court, therefore, denied
Appellant’s motion to withdraw his nolo contendere plea because his bare assertion of
innocence did not establish that withdrawal of the plea would promote fairness and
justice.
On appeal to the Superior Court, Appellant posited that the trial court abused its
discretion by denying his presentence motion to withdraw his plea of nolo contendere. In
terms of the Carrasquillo standard, Appellant contrasted his claim of innocence with
Carrasquillo’s claims. Appellant argued that, unlike the circumstances presented in
Carrasquillo, his protestation of innocence was plausible because he had maintained his
innocence throughout the trial court proceedings. Appellant further argued that the record
indicated that he was not attempting to delay his prosecution and that he offered a viable
defense to the charges to which he pleaded, namely, he could challenge the sufficiency
of the Commonwealth’s evidence by undermining the credibility of the Commonwealth’s
witnesses, particularly that of Victim.
[J-36-2018] - 9
The Commonwealth insisted that the trial court properly applied Carrasquillo. In
so doing, the Commonwealth highlighted that, in seeking to withdraw his plea of nolo
contendere, Appellant merely asserted his innocence without making any specific,
colorable demonstration that the withdrawal of that plea would promote fairness and
justice. In terms of Appellant’s declared trial-defense strategy, the Commonwealth
suggested that any defense predicated on attacking Victim’s credibility should have been
readily apparent to Appellant and his counsel following the preliminary hearing; yet,
despite this seemingly obvious knowledge, Appellant nonetheless chose to plead nolo
contendere. Thus, in the Commonwealth’s view, the trial court acted within its discretion
by denying Appellant’s presentence motion to withdraw his plea.
The Superior Court ultimately affirmed Appellant’s judgment of sentence in an
unpublished memorandum. Commonwealth v. Norton, 2017 WL 1113289 (Pa. Super
filed March 23, 2017). After reiterating the substance of this Court’s opinion in
Carrasquillo, the Superior Court stated that it could discern no abuse of discretion in the
trial court’s decision to deny Appellant’s presentence motion to withdraw his plea of nolo
contendere. Indeed, the intermediate court concluded that the record supported the trial
court’s determination that Appellant failed to make a “colorable demonstration, under the
circumstances, such that permitting withdrawal of the plea would promote fairness and
justice.” Norton, 2017 WL 1113289, at *3 (quoting Carrasquillo, 115 A.3d at 1292)
(emphasis removed). In support of this conclusion, the Superior Court observed, inter
alia, that, despite having possessed ample opportunity during the nearly two-year period
between his arrest and his plea “to examine and weigh the evidence in this case, including
the Commonwealth’s evidence or lack thereof, in deciding whether to assert his
innocence or [ ] a viable defense to the charges at trial[,]” Appellant failed to do so. Id.
[J-36-2018] - 10
Senior Judge Fitzgerald filed a dissenting memorandum. In the dissent’s view, the
trial court erroneously failed to address the quality of Appellant’s assertion of innocence
and conflated the liberal standard for assessing a presentence motion to withdraw a guilty
plea with the more stringent standard that governs a defendant’s post-sentence request
to withdraw such a plea.6 In sum, the dissent concluded that “the trial court erred in its
application of Carrasquillo and that Appellant’s assertion of innocence, in conjunction with
his proffered defense based on the credibility of the complainant, establishes fair and just
reason for withdrawing his plea.” Id. at *7.
Appellant filed a petition for allowance of appeal, which we granted to address the
following issue, as phrased by Appellant:
Whether a defendant’s assertion of innocence based on the sufficiency of
the evidence and his inability to reconcile entering a plea when he
maintained his innocence well before the time of his sentencing and when
the Commonwealth made no argument of prejudice, is sufficient to establish
a fair and just reason for withdrawing his plea of nolo contendere?
Commonwealth v. Norton, 170 A.3d 1059 (Pa. 2017).
In his brief to this Court, Appellant simply reiterates, with minor augmentation, the
arguments that he presented to the Superior Court regarding the alleged errors made by
the trial court. Indeed, the “Argument” portion of Appellant’s brief fails to acknowledge
the rationale that the Superior Court offered in support of its decision to affirm Appellant’s
judgment of sentence, let alone assign any error to that rationale. In response, the
Commonwealth similarly renews its contention that the trial court acted within its
discretion by denying Appellant’s motion to withdraw his plea.
Reduced to its essence, the question Appellant poses to this Court requires us to
examine whether the Superior Court properly determined that the trial court acted within
6 Stated succinctly, “the standard for post-sentence withdrawal is a stringent one,
requiring the defendant to establish manifest injustice.” Hvizda, 116 A.3d at 1106.
[J-36-2018] - 11
its discretion by denying Appellant’s presentence motion to withdraw his plea of nolo
contendere pursuant to this Court’s decision in Carrasquillo. Thus, it is helpful to begin
our analysis with a brief review of the well-settled law regarding trial court discretion.
“When a [trial] court comes to a conclusion through the exercise of its discretion,
there is a heavy burden [on the appellant] to show that this discretion has been abused.”
Commonwealth v. Eichinger, 915 A.2d 1122, 1140 (Pa. 2007) (citation omitted). An
appellant cannot meet this burden by simply persuading an appellate court that it may
have reached a different conclusion than that reached by the trial court; rather, to
overcome this heavy burden, the appellant must demonstrate that the trial court actually
abused its discretionary power. Id. “An abuse of discretion will not be found based on a
mere error of judgment, but rather exists where the [trial] court has reached a conclusion
which overrides or misapplies the law, or where the judgment exercised is manifestly
unreasonable, or the result of partiality, prejudice, bias or ill-will.” Id. Absent an abuse of
that discretion, an appellate court should not disturb a trial court’s ruling. Id.
With these standards in mind, we reiterate that the Carrasquillo Court overruled a
relatively long line of precedent which, understandably but mistakenly, required trial
courts to grant presentence motions to withdraw guilty pleas based upon defendants’ bare
assertions of innocence. As noted above, Carrasquillo held that, when a defendant files
a presentence motion to withdraw a guilty plea based upon a claim of innocence, the
“innocence claim must be at least plausible to demonstrate, in and of itself, a fair and just
reason for presentence withdrawal of a plea.” Carrasquillo, 115 A.3d at 1292. Stated
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.” Id. While the
Carrasquillo Court acknowledged that the “policy of liberality remains extant,” the Court
[J-36-2018] - 12
explained that this policy “has its limits, consistent with the affordance of a degree of
discretion to the common pleas courts.” Id.; see also Pa.R.Crim.P. 591(A) (explaining
that, “[a]t 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[]”).
Thus, the Carrasquillo Court clearly established that trial courts have the discretion
to assess the plausibility of claims of innocence. Consistent with the well-established
standards governing trial court discretion, it is important that appellate courts honor trial
courts’ discretion in these matters, as trial courts are in the unique position to assess the
credibility of claims of innocence and measure, under the circumstances, whether
defendants have made sincere and colorable claims that permitting withdrawal of their
pleas would promote fairness and justice.
To be clear, when a trial court is faced with a presentence motion to withdraw a
guilty plea, the court’s discretion is not unfettered. As this Court has often explained,
“[t]he term ‘discretion’ imports the exercise of judgment, wisdom and skill so as to reach
a dispassionate conclusion, within the framework of the law, and is not exercised for the
purpose of giving effect to the will of the judge.” Commonwealth v. Widmer, 744 A.2d
745, 753 (Pa. 2000) (citation omitted). Thus, a court’s discretion in ruling on a
presentence motion to withdraw a guilty plea must be informed by the law, which, for
example, requires courts to grant these motions liberally, Carrasquillo, supra, and to make
credibility determinations that are supported by the record, see Commonwealth v. Myers,
722 A.2d 649, 652 (Pa. 1998) (explaining that, “when appellate review involves the trial
court’s findings of fact and credibility determinations, those findings are binding on the
reviewing court if they find support in the record”). Moreover, while an appellate court
should not substitute its judgment for that of a trial court that ruled on a presentence
[J-36-2018] - 13
motion to withdraw a guilty plea, the appellate court is tasked with the important role of
assessing the propriety of the trial court’s exercise of its discretion. See Widmer, 744
A.2d at 753 (“The propriety of the exercise of discretion in such an instance may be
assessed by the appellate process when it is apparent that there was an abuse of that
discretion.”).
Turning to the circumstances of this case, in support of his presentence motion to
withdraw his plea of nolo contendere, Appellant asserted in the trial court that: (1) he is
innocent; (2) he cannot live with himself for taking a plea; and (3) he wants to test the
Commonwealth’s evidence at trial. Simply put, the last two assertions add nothing to the
first. Appellant’s contention that he could not live with himself for entering his plea is self-
serving makeweight and does not add any substantive support to the plausibility of his
claim of innocence. Appellant’s desire to test the Commonwealth’s evidence at trial is
equally non-substantive. Generally speaking, trials are always proceedings in which the
parties test each other’s evidence, and Appellant’s belated wish for a trial fails to bolster
his claim of innocence, particularly in light of the fact that any vulnerability in the
Commonwealth’s evidence, specifically Victim’s testimony, was well known to Appellant
prior to him entering his plea. In other words, for all intents and purposes, the reality is
that Appellant solely asserted his innocence in an attempt to withdraw his plea
presentence.
The trial court was intimately familiar with this case, having observed Appellant
throughout the various trial court proceedings. Additionally, the court demonstrated a
studied understanding of the law in this area. For example, the trial court appropriately
assessed the plausibility of Appellant’s contentions supporting withdrawal of his plea
when it considered the timing and entry of the nolo contendere plea, which occurred in
chambers while a prospective jury pool waited in the courtroom. The trial court also
[J-36-2018] - 14
properly factored into its exercise of discretion Appellant’s knowledge of his available
defenses when he pleaded and then inexplicably waited four months to file his motion to
withdraw his plea.
After the trial court assessed the nature of the claim Appellant offered in support
of his motion to withdraw his plea, the court reasonably determined that, like the
defendant in Hvizda, Appellant simply was presenting a bare assertion of innocence.
Consequently, the court denied his presentence motion to withdraw his guilty plea. As
the Superior Court determined, the clear standard articulated in Carrasquillo establishes
that the trial court acted within its discretion when it denied Appellant’s motion on the
basis that his bare assertion of innocence was not, in and of itself, a sufficient reason to
require the court to grant Appellant’s presentence motion to withdraw his nolo contendere
plea. See Hvizda, 116 A.3d 1103 (applying the holding in Carrasquillo and concluding
that the trial court did not err by denying Hvizda’s presentence motion to withdraw his
guilty plea, which was premised on a bare assertion of innocence).
For these reasons, we hold that the Superior Court correctly determined that the
trial court did not abuse its discretion by denying Appellant’s motion to withdraw his plea.7
7 The Dissent expresses concern that we are: (1) creating a per se rule that “it is not a
fair and just reason to withdraw a plea where the withdrawal is based on a factually
supported argument that the Commonwealth does not have sufficient evidence to
convict[,]” Dissenting Opinion at 1-2; (2) suggesting that, as a matter of law, “if facts are
discovered post-plea, a motion to withdraw may be viewed more favorably[,]” id. at 2; and
(3) somehow “imbuing trial courts with unfettered discretion in granting or denying
motions to withdraw[,]” id. at 3; see id. at 4 (asserting that “the Majority’s opinion is so
amorphous in its statement of the law that it can be read to say that a trial court, having
the opportunity to observe the defendant, can, in its discretion, convert any reason for
withdrawal into a ‘bare assertion of innocence’ and deny the motion”).
Respectfully, we are not creating any per se rules regarding what constitutes a fair
and just reason to withdraw a guilty plea presentence. To the contrary, we believe that
this opinion makes clear that trial courts must decide on a case-by-case basis whether a
defendant, moving to withdraw a guilty plea presentence, has presented a fair and just
[J-36-2018] - 15
We, therefore, affirm the judgment of the Superior Court, which affirmed Appellant’s
judgment of sentence.
Chief Justice Saylor and Justices Todd, Dougherty and Mundy join the opinion.
Chief Justice Saylor files a concurring opinion in which Justices Todd and
Dougherty join.
Justice Donohue files a dissenting opinion in which Justice Wecht joins.
reason to support such a motion. Indeed, one of Carasquillo’s lessons is that trial courts
should not deny or grant presentence motions to withdraw guilty pleas based upon any
particular factor, such as a defendant’s bare assertion of innocence or, as the dissent
seems to suggest, a desire to pursue a standard defense strategy seeking to discredit the
Commonwealth’s evidence. Rather, when ruling on a presentence motion to withdraw a
guilty plea, a court should carefully exercise its discretion in accordance with the law.
While we believe that this opinion adequately explains the concept of trial court discretion
in this context, supra at 12-14, we are confident that trial courts are well-aware of the
boundaries of their discretion, as myriad of their rulings turn on the exercise of this time-
honored legal standard. If, through the proper exercise of this discretion, a trial court
concludes that a defendant merely has made an assertion of innocence in support his
motion to withdraw his plea, then the court has the authority to deny the motion.
Carrasquillo, supra.
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