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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
PEDRO EWING :
:
Appellant : No. 225 MDA 2019
Appeal from the Judgment of Sentence Entered January 4, 2019
In the Court of Common Pleas of Luzerne County Criminal Division at
No(s): CP-40-CR-0004338-2015
BEFORE: BOWES, J., LAZARUS, J., and DUBOW, J.
MEMORANDUM BY LAZARUS, J.: FILED NOVEMBER 26, 2019
Pedro Ewing appeals from the judgment of sentence, entered in the
Court of Common Pleas of Luzerne County, following his conviction for two
counts of involuntary deviate sexual intercourse (IDSI),1 statutory sexual
assault,2 corruption of minors,3 and unlawful contact with minors.4 Ewing
argues that the trial court abused its discretion when it denied his motion to
withdraw his no contest plea. After careful review, we affirm.
On September 12, 2015, Ewing brought A.W., a 14 year old autistic girl,
to his room. While in the room, Ewing talked with A.W. and gave her drugs.
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1 18 Pa.C.S. § 3123(a)(7).
2 18 Pa.C.S. § 3122.1(b).
3 18 Pa.C.S. § 6301(a)(1)(i).
4 18 Pa.C.S. § 6318(a)(1).
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He then attempted to have vaginal intercourse with A.W. When he was unable
to have vaginal intercourse, he proceeded to have oral intercourse with A.W.
and forced A.W. to engage in oral intercourse with him.
On September 14, 2015, Ewing was charged with the above-mentioned
crimes. On April 18, 2016, as part of a plea agreement, Ewing pled guilty to
unlawful contact with minors and the Commonwealth withdrew the remaining
charges. However, prior to sentencing, Ewing requested that the trial court
allow him to withdraw his guilty plea. The trial court granted the request on
October 28, 2016, and the case was set for trial. On May 17, 2018, the
Commonwealth amended the information to include the original charges.
Ewing was called for trial on October 29, 2018. On that day, prior to
jury selection, Ewing pled no contest to all charges, which the court accepted
and subsequently scheduled sentencing for January 4, 2019. On January 2,
2019, Ewing filed a pro se motion to withdraw his no contest plea. The court
allowed Ewing to make the same motion orally through his counsel at the
sentencing hearing. The court denied Ewing’s motion and sentenced him to
an aggregate term of 18 to 36 years’ incarceration. Ewing improperly filed a
post-sentence motion and notice of appeal pro se. On February 4, 2019,
Ewing’s counsel properly filed this timely appeal.5
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5In its Rule 1925(a) opinion, the trial court argued that this appeal should be
quashed as premature. The trial court noted that a sexually violent predator
(SVP) hearing had not occurred and then held that the order was not final
until Ewing has an SVP determination. This Court has previously found that,
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Ewing’s sole issue on appeal is that the trial court abused its discretion
when it denied his motion to withdraw his no contest plea. Ewing argues that
the trial court did not give him an opportunity to substantiate his assertion of
innocence.
“The effect of a nolo contendere plea in Pennsylvania . . . when accepted
. . . is an implied confession of guilt only, and cannot be used against the
defendant as an admission in any civil suit for the same act.” Eisenberg v.
Commonwealth, 516 A.2d 333, 335 (Pa. 1986) (citing Commonwealth v.
Ferguson, 44 Pa. Super. 626, 628 (1910)) (internal quotation marks
omitted). “[I]n terms of its effect upon a case, a plea of nolo contendere is
treated the same as a guilty plea.” Commonwealth v. Miller, 748 A.2d 733,
735 (Pa. Super. 2000). We analyze a trial court’s denial of a pre-sentence
motion to withdraw either plea using the same standard. See
Commonwealth v. Norton, 201 A.3d 112, 122 (Pa. 2019).
“A trial court’s decision regarding whether to permit a guilty plea to be
withdrawn should not be upset absent an abuse of discretion. An abuse of
discretion exists when a defendant shows any ‘fair and just’ reasons for
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when a defendant waives a pre-sentence SVP determination, a judgment of
sentence is not a final order until there is an SVP determination. See
Commonwealth v. Schrader, 141 A.3d 558 (Pa. Super. 2016). However,
in light of our recent ruling that SVP hearings are unconstitutional using the
“clear and convincing” standard, there is currently no statutory mechanism to
make an SVP determination. See Commonwealth v. Butler, 173 A.3d 1212,
1218 (Pa. Super. 2017) (appeal granted 190 A.3d 581 (Pa. 2018)). Thus, the
judgement of sentence was the final order in this case. See 42 Pa.C.S. §
742.
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withdrawing his plea absent ‘substantial prejudice’ to the Commonwealth.”
Commonwealth v. Pardo, 35 A.3d 1222, 1227 (Pa. Super. 2011) (quoting
Commonwealth v. Prysock, 972 A.2d 539, 541 (Pa. Super. 2009); see also
Commonwealth v. Anthony, 475 A.2d 1303, 1308 (Pa. 1984)). “[A]n
assertion of innocence may constitute a fair and just reason for the pre-
sentence withdrawal of a guilty plea.” Commonwealth v. Miller, 639 A.2d
815, 816-17 (Pa. Super. 1994); see Commonwealth v. Forbes, 299 A.2d
268, 271 (Pa. 1973). However, a mere assertion of innocence is not sufficient.
Commonwealth v. Carrasquillo, 115 A.3d 1284, 1292 (Pa. 2015). Rather,
a defendant seeking to withdraw must demonstrate that his claim of innocence
is plausible and granting the withdrawal will promote fairness and justice.
Commonwealth v. Norton, 201 A.3d 112, 120-21 (Pa. 2019).
Here, Ewing claimed that he was not guilty of the IDSI charges and that
the unlawful contact with a minor charge was a “cover-up.” N.T. Trial, 1/4/19,
at 4. He did not claim he was innocent of the remaining charges. In his
attempt to show his claim of innocence was plausible, Ewing argued that he
did not meet A.W. until a day after the crimes occurred, but he admitted he
bore “some guilt in this.” Id. at 5. Ewing’s argument is implausible because
he claims he was not present when the crimes occurred, but he did commit
other crimes involving A.W. at the same time. See Norton, 201 A.3d at 120-
21 (requiring, inter alia, claim of innocence be plausible). Furthermore, Ewing
waited until two days before sentencing to change his plea. The trial court
noted that Ewing had three years to decide whether to proceed to trial or enter
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a plea, and the court concluded that his innocence claim was “nothing more
than an attempt to further delay the imposition of justice.” Trial Court
Opinion, 3/22/19, at 5. We agree. After our review, we are unable to find
that the trial abused its discretion. See Pardo, supra.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/26/2019
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