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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ROBERT HARRIS :
:
Appellant : No. 337 EDA 2018
Appeal from the Judgment of Sentence July 20, 2017
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0007582-2014
BEFORE: BENDER, P.J.E., OLSON, J., and MUSMANNO, J.
MEMORANDUM BY OLSON, J.: FILED MARCH 06, 2019
Appellant, Robert Harris, appeals from the judgment of sentence
entered on July 20, 2017, as made final by the denial of Appellant’s
post-sentence motion on July 25, 2017. We affirm.
On February 16, 2017, Appellant pleaded guilty to involuntary deviate
sexual assault (“IDSI”), trafficking in individuals, and criminal conspiracy.1
During the guilty plea hearing, the Commonwealth summarized the factual
basis for Appellant’s plea:
In March of 2012, [Appellant] and his girlfriend, co-defendant
Shante Fenning, recruited the [14-year-old victim, K.C.,] to
work for them as a prostitute. They worked out of 21 West
Harvey Street, in the city and county of Philadelphia.
During approximately a month that the victim was with
[Appellant] and the co-defendant, she would go on
approximately ten dates a day. [Appellant] and Shante
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1 18 Pa.C.S.A. §§ 3123(a)(7), 3002(a), and 903, respectively.
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Fenning would use force or threats to keep [K.C.] in the
house with them. [Appellant] would drive [K.C.] on different
out calls, one of which was to an attorney in Center City, who
will be facing trial in September. . . .
[D]uring the course of [K.C.’s] month with [Appellant] and
his girlfriend, on one occasion [Appellant] did force the victim
to [give him] oral sex where she did place her mouth on
[Appellant’s] penis. In terms of all the sex acts as described,
that was vaginal and oral intercourse that she had with
various people who paid money to her for those sex acts.
N.T. Plea Hearing, 2/16/17, at 9-10 and 13.
Appellant testified that he agreed with the Commonwealth’s factual
recitation and further testified that he was pleading guilty because he was, in
fact, guilty of the offenses. Id. at 7 and 19-20. The trial court accepted
Appellant’s guilty plea and scheduled sentencing for May 12, 2017. Id. at
20-21.
On April 18, 2017, Appellant filed a pro se motion to withdraw his guilty
plea. Within the pro se motion, Appellant claimed that the trial court should
permit him to withdraw his plea because “he is innocent of the charges against
him and did not commit any of the charged offenses;” his plea “was not a
knowing, intelligent[,] and voluntary act on his part;” and “the Commonwealth
will not be substantially prejudiced if [Appellant were] permitted to withdraw
his guilty plea and proceed to trial.” Appellant’s Pro Se Motion to Withdraw
Guilty Plea, 4/18/17, at 2-3 (some internal capitalization omitted). In light of
Appellant’s pro se filing, Appellant’s counsel filed a motion to continue the
sentencing hearing and the trial court continued Appellant’s sentencing
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hearing to July 20, 2017. See Order Granting Motion for Continuance,
5/12/17, at 1; Order Granting Motion for Continuance, 6/29/17, at 1.
On July 19, 2017 (which was the day before the scheduled sentencing
hearing), Appellant’s counsel filed a “Supplemental Motion to Withdraw Guilty
Plea.” Within the motion, counsel reiterated the allegations that Appellant
made in his pro se filing. Appellant’s Supplemental Motion to Withdraw Guilty
Plea, 7/19/17, at ¶¶ 30-37.
On July 20, 2017, the trial court held a hearing on Appellant’s motion to
withdraw his guilty plea. During the hearing, the trial court asked Appellant’s
counsel to explain the “fair and just reasons” that would justify withdrawal of
the plea. See N.T. Plea Withdrawal Hearing, 7/20/17, at 7. In response,
counsel claimed that Appellant should be entitled to withdraw his plea
because: “one of the reasons” Appellant pleaded guilty was because he
“wanted to get this case behind him and move on with his life;” during the
plea hearing, Appellant initially contested the Commonwealth’s declaration
that the victim “placed her mouth on [Appellant’s] penis” (although Appellant
later agreed to this fact during the same plea hearing); in the statements
Appellant gave to the police, he never “admit[ted] to any type of sexual
contact with the victim;” in the statements Appellant’s co-defendant gave to
the police, she never alleged that Appellant sexually assaulted the victim;
“there is no DNA evidence that would support any kind of claim that
[Appellant] had sexual contact with the victim;” and, the victim did not accuse
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Appellant of sexually assaulting her in each statement that she made to the
police. See id. at 7-15.
The trial court denied Appellant’s motion and proceeded to sentencing.
The trial court sentenced Appellant to serve an aggregate term of 14 to 28
years in prison, followed by eight years of probation, for his convictions. N.T.
Sentencing Hearing, 7/20/17, at 47-48.
Appellant filed a timely post-sentence motion on July 20, 2017.
Appellant claimed, among other things, that the trial court abused its
discretion by imposing a manifestly unreasonable sentence. Appellant’s
Post-Sentence Motion, 7/20/17, at 3-4. The trial court denied the motion on
July 25, 2017 and, after the nunc pro tunc restoration of Appellant’s direct
appeal rights, Appellant filed a timely notice of appeal. Appellant raises two
claims on appeal:
1. Did the trial court err in denying [] Appellant’s motion to
withdraw his guilty plea where [] Appellant asserted his
innocence and where [] Appellant did not convicing[ly] agree
to the facts which supported the charge of [IDSI]?
2. Did the trial court err in imposing an excessive and
unreasonable sentence?
Appellant’s Brief at 3 (some internal capitalization omitted).
Appellant first claims that the trial court erred when it denied his
pre-sentence motion to withdraw his guilty plea to IDSI. This claim fails.
We have explained:
Pennsylvania Rule of Criminal Procedure 591(A) provides
that, “At any time before the imposition of sentence, the
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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.” Pa.R.Crim.P. 591(A).
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. In
determining whether to grant a presentence motion for
withdrawal of a guilty plea, the test to be applied by the trial
courts is fairness and justice. Therefore, if the defendant
provides a fair and just reason for wishing to withdraw his or
her plea, the trial court should grant it unless it would
substantially prejudice the Commonwealth.
Commonwealth v. Williams, 198 A.3d 1181, 1184 (Pa. Super. 2018)
(internal corrections and some internal quotations and citations omitted).
“We review a trial court's ruling on a pre-sentence motion to withdraw
a guilty plea for an abuse of discretion.” Id. With respect to the abuse of
discretion standard, our Supreme Court has held:
When a court comes to a conclusion through the exercise of
its discretion, there is a heavy burden to show that this
discretion has been abused. It is not sufficient to persuade
the appellate court that it might have reached a different
conclusion, it is necessary to show an actual abuse of the
discretionary power. An abuse of discretion will not be found
based on a mere error of judgment, but rather exists where
the 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. Absent an abuse of that discretion, we will
not disturb the ruling of the trial court.
Commonwealth v. Eichinger, 915 A.2d 1122, 1140 (Pa. 2007) (internal
citations omitted).
As our Supreme Court has held, “a bare assertion of innocence is not,
in and of itself, a sufficient reason to require a court to grant . . . a
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pre[-]sentence motion to withdraw a guilty plea.” Commonwealth v.
Carrasquillo, 115 A.3d 1284, 1285 and 1293 (Pa. 2015). For a defendant to
satisfy his burden, our Supreme Court has held that the “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.
This requires that the defendant “ma[k]e some colorable demonstration,
under the circumstances, such that permitting withdrawal of the plea would
promote fairness and justice.” Id. Our Supreme Court has also emphasized:
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.
Commonwealth v. Norton, ___ A.3d ___, 2019 WL 287153 at *7 (Pa.
2019).
In this case, the trial court held a hearing on Appellant’s pre-sentence
motion to withdraw his guilty plea and, at the end of the hearing, the trial
court arrived at the specific factual conclusion that Appellant’s claim of
innocence was not plausible. See N.T. Withdrawal Hearing, 7/20/17, at
19-20; Trial Court Opinion, 5/16/18, at 5-6. Now on appeal, Appellant claims
that the trial court’s factual conclusion was an abuse of discretion because:
“Appellant indicated that he was innocent in his pro se [filing] and [in his]
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counseled motion to withdraw his guilty plea;” in the statements Appellant
gave to the police, Appellant never admitted that he had sexual contact with
the victim; and, in the statements the victim gave to the police, the victim did
not continually accuse Appellant of sexually assaulting her. See Appellant’s
Brief at 10. The trial court, however, heard Appellant’s claims of innocence
and specifically concluded that the claims were not colorable and that
Appellant was simply presenting a bare assertion of innocence. See N.T.
Withdrawal Hearing, 7/20/17, at 19-20; Trial Court Opinion, 5/16/18, at 5-6.
Our review of the record establishes that the trial court’s factual findings were
eminently reasonable and were, thus, within its discretion. Indeed, the claims
that “Appellant indicated that he was innocent in his pro se [filing] and [in his]
counseled motion to withdraw his guilty plea” and that Appellant “never
admitted he had sexual contact with the victim” are simply bare assertions of
innocence. See Appellant’s Brief at 10. Moreover, the mere fact that the
victim did not accuse Appellant of sexually assaulting her in each statement
that she gave to the police does not cause Appellant’s claim of innocence to
be plausible. The victim, in fact, did accuse Appellant of sexually assaulting
her and Appellant admitted to this fact during his guilty plea hearing. See
N.T. Withdrawal Hearing, 7/20/17, at 12 (Appellant’s counsel admitted that
“there were other statements that [the victim] had given to the police and
testified [to] at the Grand Jury where she did say there was sexual contact
with [Appellant]”).
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Appellant also argues that the trial court abused its discretion in not
granting his motion to withdraw his IDSI guilty plea because the factual basis
for the charge was inadequate. Appellant’s Brief at 11. This claim is waived
as Appellant did not object to the factual basis of the charge during his plea
colloquy. Commonwealth v. Monjaras-Amaya, 163 A.3d 466, 469-470
(Pa. Super. 2017) (Issues regarding guilty plea must be raised before trial
court); Commonwealth v. D’Collanfield, 805 A.2d 1244, 1246 (Pa. Super
2002) (Issue of whether the evidence presented during a guilty plea was
insufficient to establish guilt beyond a reasonable doubt was waived for failing
to raise it before trial court). Even if this issue were not waived, it lacks merit
as the facts set forth at the plea hearing established Appellant forced the 14-
year-old victim to perform oral sex on him by placing his penis in her mouth.
These facts support a charge of IDSI under 18 Pa.C.S.A. § 3123(a)(7).
Moreover, Appellant admitted to committing these acts.
Therefore, Appellant’s claim that the trial court abused its discretion
when it denied his motion to withdraw his IDSI guilty plea fails.2
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2 Within the argument section of Appellant’s brief, Appellant also claims, in
passing, that the trial court erred in not permitting him to withdraw his guilty
pleas to trafficking in individuals and criminal conspiracy. See Appellant’s
Brief at 10. However, Appellant’s Pennsylvania Rule of Appellate Procedure
2116(a) “statement of questions involved” section only claimed that the trial
court erred in denying his motion to withdraw his guilty plea to IDSI. See
Appellant’s Brief at 3. Therefore, Appellant waived any claim of error with
respect to his trafficking in individuals and criminal conspiracy convictions.
See Pa.R.A.P. 2116(a) (“No question will be considered unless it is stated in
the statement of questions involved or is fairly suggested thereby”).
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Appellant’s second and final numbered claim on appeal contends that
the trial court abused its discretion by imposing a manifestly excessive
sentence. Before we may reach the merits of Appellant’s discretionary aspects
of sentencing claim, we must engage in an analysis to determine, inter alia,
whether Appellant's brief includes a concise statement of the reasons relied
upon for allowance of appeal with respect to the discretionary aspects of
sentence. See Pa.R.A.P. 2119(f); see also Commonwealth v. Antidormi,
84 A.3d 736, 759 (Pa. Super. 2014) (describing four prerequisites to
substantive review of discretionary sentencing challenge). “[C]laims relating
to the discretionary aspects of a sentence are waived if an appellant does not
include a Pa.R.A.P. 2119(f) statement in his brief and the [Commonwealth]
objects to the statement's absence.” Commonwealth v. Brougher, 978 A.2d
373, 375 (Pa. Super. 2009), citing Commonwealth v. Foster, 960 A.2d 160,
163 (Pa. Super. 2008). Here, Appellant failed to comply with the requirement
of 2119(f) and the Commonwealth has objected to the exclusion of the
required statement. See Commonwealth's Brief at 14. Therefore, we may
not review the merits of Appellant's discretionary sentencing challenge.
Judgment of sentence affirmed. Jurisdiction relinquished.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/6/19
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