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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
TERAH MPEREY ODOI :
:
Appellant : No. 364 MDA 2020
Appeal from the Judgment of Sentence Entered January 30, 2020,
in the Court of Common Pleas of Luzerne County,
Criminal Division at No(s): CP-40-CR-0000522-2019.
BEFORE: LAZARUS, J., KUNSELMAN, J., and MURRAY, J.
MEMORANDUM BY KUNSELMAN, J.: FILED MAY 07, 2021
Odoi appeals from the judgment of sentence entered following his guilty
plea. Upon review, we affirm.
On March 13, 2019, Odoi was charged with various offenses for groping
a female Lyft driver against her will. At the time of the incident, Odoi was
very drunk. On September 16, 2019, Odoi entered into a counseled nolo
contendere ("no contest") plea agreement with the Commonwealth to a single
count of indecent assault. The written terms of the agreement did not contain
a sentencing recommendation. Odoi did, however, agree to complete sex
offender counseling, follow recommendations related thereto and to register
as a Tier I sex offender. The agreement bears the signatures of Odoi, his
attorney and the assistant district attorney.
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On November 26, 2019, Odoi filed a counseled motion to withdraw the
plea averring he was innocent. The trial court considered the motion at the
time originally set for Odoi’s sentencing hearing. The court denied the motion
and continued the date for sentencing.
On January 30, 2020, the court sentenced Odoi to 9 to 24 months less
one day of incarceration. Additionally, Odoi was ordered to register as a Tier
I offender under SORNA, complete sex offender counseling and follow
recommendations, and have no contact with the complainant.
Odoi filed this timely appeal. The trial court and Odoi complied with
Pennsylvania Rule of Appellate Procedure.
On appeal, Odoi claims that the trial court erred in refusing to allow him
to withdraw his plea of nolo contendere and proceed to trial. See Odoi’s Brief
at 2. Specifically, he argues that after entering his plea and thoroughly
reviewing the discovery from the Commonwealth, Odoi, who is illiterate, had
a better understanding of the case. Having reviewed the case, he did not
believe he committed any criminal act; he could not recall touching the
complainant. The Commonwealth’s case was solely based on the testimony
of the complainant; there was no physical evidence. Id. at 6-7.
Consequently, according to Odoi, he presented a plausible claim of innocence
and should have been permitted to withdraw his plea. Id. at 7.
We note that 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, 1187–88 (Pa. Super. 2017). Pre-sentence withdrawal
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of a guilty plea is governed by Pennsylvania Rule of Criminal Procedure
591(A), which provides:
(A) At 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.
Pa.R.Crim.P. 591(A). The official comment to Rule 591 provides: “After the
attorney for the Commonwealth has had an opportunity to respond, a request
to withdraw a plea made before sentencing should be liberally allowed.” Id.
cmt. However, a defendant does not have an absolute right to such relief. In
Commonwealth v. Carrasquillo, 115 A.3d 1284 (Pa. 2015), our Supreme
Court clarified that “a bare assertion of innocence is not, in and of itself, a
sufficient reason to require a court to grant” a pre-sentence motion to
withdraw. Id. at 1285. Rather, the Court concluded that
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. Thus, the Carrasquillo Court established that trial courts still
have discretion to assess the plausibility of a defendant’s claim of innocence.
In doing so, “both the timing and the nature of the innocence claim, along
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with the relationship of that claim to the strength of the government’s
evidence, are relevant.” Islas, 156 A.3d at 1191.
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, 201 A.3d 112, 121 (Pa. 2019).
Upon review of the record, we conclude that the trial court did not abuse
its discretion in denying Odoi’s motion to withdraw his guilty plea. In reaching
its decision, the trial court examined the record of the plea hearing, Odoi’s
written plea colloquy, and his reason for wanting to withdraw his plea. The
trial court explained:
The record reflects that on September 16, 2019, an Assistant
District Attorney (ADA) appeared on behalf of the Commonwealth.
Odoi was represented by Attorney Sundmaker. At the onset of
the hearing, the ADA, in the presence of Odoi and his counsel,
specifically outlined the terms of the plea and stated the Odoi
agreed to plea nolo contendere, or "no contest," to Count 1,
indecent assault, a misdemeanor of the second degree. She
stated of record the offense subjected Defendant to a maximum
of two years in prison and a maximum fine of $5,000. Odoi was
again made aware of the requirement that he complete sex
offender counseling and follow any recommendations, undergo an
SOAB evaluation and register as a Tier I offender. Thereafter,
Odoi agreed it was his decision to plead no contest as outlined by
the ADA.
Importantly, the record demonstrates Odoi was acutely aware of
the rights he relinquished by entering the plea and defense
counsel interjected -- in the presence of Odoi -- that he engaged
in an extensive discussion with Odoi, noting his inability to contest
the Commonwealth's evidence. Notably, Odoi did not disagree
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with -- or otherwise take issue with -- his attorney's
representation at any point thereafter. As noted above, Odoi also
completed a written plea colloquy with his attorney. Indeed, Odoi
acknowledged to the court reviewing the written plea colloquy
with his attorney and providing the answers to the questions
posed therein. Odoi agreed he signed page three of the written
colloquy and, when asked whether he had any questions for the
court regarding the no contest plea or the rights he was giving up,
stated he did not.
Lastly, in response to questions from the court, Odoi did not
contest the factual basis for his no contest plea as set forth on the
record by the ADA. In our judgment, the record demonstrates
that the court's colloquy and inquiry covered all material matters
necessary to a voluntary, knowing and intelligent plea. See,
Commonwealth v. Muhammad, 794 A.2d 378, 383 (Pa. Super.
2002). "No more than the inquiries outlined in Pa.R.Crim.P. 3197
is required." Commonwealth v. Kay, 478 A.2d 1366, 1368 (Pa.
Super. 1984).
Trial Court Opinion, 8/3/20, at 3-4 (citations to record omitted).
Notwithstanding this, the trial court recognized that it could, in its
discretion, permit Odoi to withdraw his plea. However, it explained:
Here, in our judgment, Odoi did not meet his burden and establish
a fair and just reason to withdraw his no contest plea. Through his
counsel, Odoi indicated to the court that he was entering a no
contest plea because he did "not have the ability to contravene
the Commonwealth's evidence." Odoi Defendant also indicated
that because of intoxication he could not be certain what
happened and had "no clear recollection of events." Odoi further
indicated to the court that he couldn't defend against the
testimony of the victim who was sober at the time of the event.
As noted above, Odoi did not contest any of these statements.
Id. at 5 (citations to record omitted).
At the hearing on his motion, Odoi did not demonstrate that anything
had changed since his plea to his demonstrate his innocence. As the trial
court noted, it was unclear what caused Odoi to suddenly to reconsider his
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plea. Instead, Odoi merely claimed that he did not believe he did anything
wrong; he did not say with certainty that he did not grope the driver, since he
was intoxicated. His recollection was still unclear. Odoi remained unable to
contravene the Commonwealth’s case. Furthermore, a review of the discovery
did not reveal any change in the basis for the Commonwealth’s case.
Essentially, Odoi had more time to reconsider the entry of his plea and
repercussions thereof and simply changed his mind. As the trial court
concluded, Odoi did not satisfy his burden. Accordingly, we conclude that the
trial did not abuse its discretion in refusing to grant Odoi’s motion to withdraw
his guilty plea.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/7/2021
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