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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
DANIEL RAY DRODDY :
:
Appellant : No. 82 WDA 2021
Appeal from the Judgment of Sentence Entered December 2, 2020
In the Court of Common Pleas of Clarion County Criminal Division at
No(s): CP-16-CR-0000416-2019
BEFORE: OLSON, J., NICHOLS, J., and COLINS, J.*
MEMORANDUM BY NICHOLS, J.: FILED: DECEMBER 23, 2021
Appellant Daniel Ray Droddy appeals from the judgment of sentence
imposed after he pled guilty to rape of a child.1 Appellant argues that the trial
court erred in denying his pre-sentence motion to withdraw the guilty plea.
We affirm.
Briefly, Appellant was arrested and charged with numerous sex offenses
based on allegations that he sexually abused his ex-wife’s then-twelve-year-
old niece. See Criminal Information, 10/23/19, at 1-2. At a pre-trial hearing
on May 29, 2020 Attorney Robbie Taylor (plea counsel) indicated that
Appellant intended to enter a guilty plea. Initially, the Commonwealth
explained:
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* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S. § 3121(c).
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By way of background, there had been a standing plea offer which
was to count 1 which was rape of a child, a felony of the first
degree under Section 3121(c), as a standard guideline sentence.
We had negotiations prior to the hearing today. There’s been
several things that have been discussed, but just for the record,
there’s been additional evidence that’s come to light.
There was discussion of a potential amendment of the information
which could include more offenses being listed and obviously, this
hearing coming up.
As a result of that, I spoke with [Appellant’s plea counsel] earlier
this week and modified the plea agreement, that it would still be
to count 1, rape of a child, a felony of the first degree.
The only difference is, it would not be a standard guideline
sentence. It would be an open plea.
What this would essentially allow for is that [Appellant] can
present evidence or argument at the time of sentencing regarding
a request for a mitigated sentence.
I obviously am not going to be in [agreement] with that, but he
does have the opportunity to argue for a mitigated sentence at
that time.
N.T. Guilty Plea Hr’g, 5/29/20, at 2-3.
Appellant’s plea counsel then explained: “I’ve had a number of
conversations with my client, including this morning at my office while on the
phone, as well as while he was here. He intends to move forward by pleading
guilty to that single charge under the terms and conditions that the district
attorney has just laid out.” Id. at 4.
The trial court confirmed that Appellant had watched a video that
explained his rights with respect to entering a guilty plea. Id. at 5-6.
Appellant stated that he understood his rights and did not have any questions.
Id. at 5. Appellant also confirmed that he had read, reviewed, and signed the
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written plea colloquy which outlined his rights and the terms of the open plea.
Id. at 7-8. The trial court explained to Appellant that he could receive a
maximum sentence of forty years’ imprisonment for pleading guilty to the
rape charge, and Appellant stated that he understood. Id. at 8-9. Ultimately,
the trial court accepted Appellant’s plea. At that time, the following exchange
occurred:
THE COURT: The plea was entered pursuant to the agreement by
the terms of which -- it shall be an open plea subject to the
condition that the maximum sentence will fall at the high end of
the guidelines?
[Plea counsel]: Will not exceed the high end of the guideline
range.
THE COURT: Will not exceed the high end of the guideline range.
Id. at 12-13. The trial court also ordered Appellant to participate in a pre-
sentence investigation (PSI) report and an evaluation with the Sexual
Offender Assessment Board (SOAB) prior to sentencing.
Nearly two months later, on August 27, 2020, plea counsel filed a motion
to withdraw from representation. Then, on September 2, 2020, counsel filed
a motion to withdraw Appellant’s plea. Therein, counsel stated that “[a]t the
time [Appellant] entered his guilty plea he felt a tremendous amount of
pressure to enter the plea only to realize after the fact that he had made a
mistake.” Mot. to Withdraw Guilty Plea, 9/2/20, at 1. Further, counsel
explained that Appellant would “advise the [trial] court that he is, in fact,
innocent of the offense of rape of a child, and only [pled guilty] because of
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the fear associated with possibly losing at trial.” Id. Finally, counsel
reiterated his request to withdraw as counsel and for the trial court to allow
Attorney J.D. Ryan (new counsel) to proceed on Appellant’s behalf. Id.
The trial court conducted a hearing on October 5, 2020. At the hearing,
Appellant appeared with new counsel, who questioned Appellant regarding the
circumstances of his guilty plea. Appellant testified that he pled guilty because
plea counsel told him that the sentence would be “four to six years with an
argument for a mitigated sentence” and that “it wouldn’t be any more.” N.T.
Mot. to Withdraw Plea Hr’g, 10/5/20, at 5. Further, although Appellant
acknowledged that the trial court had informed him of the maximum sentence
for the rape charge, he stated that plea counsel had failed to discuss that with
him prior to the hearing. Id. at 11. In any event, Appellant testified that he
was innocent of the charges against him and did not want to proceed with a
guilty plea. Id. at 12.
On cross-examination, the Commonwealth questioned Appellant about
incriminating statements he had made to police and to his former girlfriend.
First, the Commonwealth introduced a recording of Appellant’s initial interview
with police, which took place in the back of a police car outside of Appellant’s
residence on August 26, 2019. See N.T. Mot. to Withdraw Plea Hr’g at 21;
Commonwealth’s Ex. B (Police Interview, 8/26/19).2
____________________________________________
2 Although the Commonwealth did not play the video or phone call at the
hearing, the recordings were provided to the trial court and included in the
certified record transmitted to this Court. For purposes of clarity, we will cite
to the exhibit as admitted at the hearing.
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The record reflects that during the police interview, Appellant admitted
that he and the victim had used Facebook messenger to exchange sexualized
messages, including explicit photos. See Commonwealth’s Ex. B (Police
Interview, 8/26/19). Although Appellant initially told police that the victim
initiated the sexual conversations and that he rejected her requests for sex,
he then explained that he had been suffering from depression and anxiety,
had been drinking alcohol to excess, and that he had done things two years
ago that he could not remember, including with the victim. Id. When asked
if he had sexual intercourse with the victim, Appellant initially stated: “I’m
sure I have but I don’t remember . . . I probably did.” Id. Eventually,
Appellant admitted it was “more than likely” that he had sex with the victim.
Id.
At the hearing, when questioned about his apparent confession to police,
Appellant testified:
I told them no until they told me that they had proof of something.
I told them that nothing physical ever happened. They didn’t want
to listen. I never had been in trouble before. When they told me
that something happened, I didn’t know. I have PTSD. I take
medication for it. My mind was just going all over the place. I
didn’t know whether to continue to tell the truth or agree with the
police. I didn’t know.
See N.T. Mot. to Withdraw Plea Hr’g at 13.
The Commonwealth also introduced audio from a phone call between
Appellant and his former girlfriend, Nicole, which was recorded while Appellant
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was incarcerated at the Clarion County Correctional Facility in 2019. During
the call, the following exchange occurred:
Nicole: What did you do?
Appellant: I don’t want to say over the phone. I did something
stupid two years ago and I regretted it since.
Nicole: Your mom kind of told me a little bit. She didn’t want to,
but she did.
Appellant: If you never want to talk to me again, I understand.
Nicole: I need to know if you did anything, did you act on it at all?
Did you physically touch anybody?
Appellant: Yes Nicole.
Nicole: You did?
Appellant: I was not in a good [inaudible]. Why do you think I
quit drinking? Why do you think I’m on medications, now?
[inaudible]
Nicole: How many, was it just one person or more?
Appellant: Just one, Nicole.
Nicole: I liked you.
Appellant: I like you too Nicole, that’s why I’m calling you.
Nicole: You did stuff with a minor.
Appellant: It wasn’t right, Nicole.
Commonwealth’s Ex. B (Recorded Phone Call, 8/27/19).
When questioned about the phone call, Appellant testified that Nicole
never directly asked him if he had sex with the victim. N.T. Mot. to Withdraw
Plea Hr’g at 16. He further testified that, to the extent he admitted to
inappropriate conduct with a minor, he was referring to his text conversations
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with the victim, not physical contact. Id. At the conclusion of the hearing,
the trial court took the matter under advisement.
On October 27, 2020, the trial court issued an order denying Appellant’s
motion to withdraw the plea. Therein, the trial court explained that Appellant
“offered nothing more than a bare assertion of innocence that has been
rebutted by the Commonwealth, and failed to provide a ‘fair and just’ reason
for withdrawal of his plea.” Trial Ct. Op. & Order, 10/27/20, at 2-3
(unpaginated). On December 2, 2020, the trial court sentenced Appellant to
a period of twenty to forty years’ incarceration. Appellant filed post-sentence
motions, which the trial court denied.
Appellant subsequently filed a timely notice of appeal and a court-
ordered Pa.R.A.P. 1925(b) statement.3 The trial court issued a Rule 1925(a)
opinion incorporating its October 27, 2020 order and opinion denying
Appellant’s motion.
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3 In his Rule 1925(b) statement, Appellant raised an additional claim
challenging the discretionary aspects of his sentence. However, in his brief,
Appellant notes that the issue has been “withdrawn after review of [the]
record and relevant case law.” See Appellant’s Brief at 4. Therefore, we do
not address it on appeal. See Commonwealth v. Rodgers, 605 A.2d 1228,
1239 (Pa. Super. 1992) (stating that “[w]e must deem an issue abandoned
where it has been identified on appeal” but not developed in the appellant’s
brief).
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On appeal, Appellant raises one issue for review: “Whether the [trial]
court erred in denying Appellant’s presentence motion to withdraw plea?”
Appellant’s Brief at 4.4
The crux of Appellant’s claim is that he provided the trial court with a
fair and just reason to justify withdrawal of his plea. In support, Appellant
claims that he is innocent of the charges against him and that he only accepted
a plea to avoid the possibility of a life sentence if he were convicted at trial.5
Id. at 11. He further asserts that “although there certainly is evidence of [his]
guilt, he was able to present arguments favorable to his position of
innocence.” Id. at 13. Specifically, Appellant argues that he provided
“reasons for his false confession and a factual basis for a defense, in that the
victim was never [at] his house after their conversations turned sexual in
nature.” Id. at 14-15. With respect to the police interview, Appellant claims
that “[a]t the very least, . . . [h]is confession was made after repeated denial
of the allegations, and an assertion of lack of criminal record and lack of
experience with law enforcement. He continually asserted that nothing
physical happened with the victim.” Id. at 15. As to the jail recording,
____________________________________________
4In its brief, the Commonwealth relies entirely on the trial court’s October 27,
2020 opinion and notes that “any additional argument by the Commonwealth
would be cumulative.” See Commonwealth’s Brief at 1-2.
5 We note that although Appellant refers to his prior testimony concerning the
reasons why he entered a guilty plea (i.e., “he was under the impression that
[the plea] was for[,] at most[,] a sentence of four to six years” and that he
did not know it was an open plea until two months after sentencing), he does
not challenge the knowing or voluntary nature of the plea itself.
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Appellant reiterates that the “admission he made was in connection to
inappropriate computer conversations he had with the victim” and that he
“indicated [that] he never had sex with the victim.” Id. at 13. Under these
circumstances, Appellant argues that his testimony before the trial court “was
clearly more than a bald assertion of innocence” and that, therefore, he is
entitled to relief. Id. at 14-15 (relying on Commonwealth v. Islas, 156
A.3d 1185 (Pa. Super. 2017)).
It is well settled that a criminal defendant “has no absolute right to
withdraw a guilty plea; rather, the decision to grant such a motion lies within
the sound discretion of the trial court.” Commonwealth v. Muhammad,
794 A.2d 378, 382 (Pa. Super. 2002) (citation omitted). We review the denial
of a motion to withdraw a guilty plea for an abuse of discretion.
Commonwealth v. Gordy, 73 A.3d 620, 624 (Pa. Super. 2013). “An abuse
of discretion is not a mere error in judgment but, rather, involves bias, ill will,
partiality, prejudice, manifest unreasonableness, and/or misapplication of
law.” Id. (citation omitted).
A defendant’s burden of proof for withdrawing a guilty plea “differs
depending on whether the defendant seeks to withdraw the plea before or
after sentencing.” Commonwealth v. Hart, 174 A.3d 660, 664 (Pa. Super.
2017). In the context of a pre-sentence motion to withdraw a plea, our
Supreme Court has stated:
[T]here is no absolute right to withdraw a guilty plea; trial courts
have discretion in determining whether a withdrawal request will
be granted; such discretion is to be administered liberally in favor
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of the accused; and 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.
Commonwealth v. Carrasquillo, 115 A.3d 1284, 1291-92 (Pa. 2015)
(citation and footnote omitted); see also Pa.R.Crim.P. 591(A) (stating that
“[a]t any time before the imposition of sentence, the court may, in its
discretion, permit . . . the withdrawal of a plea”).
This Court has summarized the law on pre-sentence motions to
withdraw guilty pleas as follows:
The Carrasquillo Court, breaking with prior precedent, held that
a bare assertion of innocence is no longer a fair and just reason
permitting a pre-sentence withdrawal of a guilty plea. Instead, “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. Our High Court outlined that the correct 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 that decision, our Supreme
Court ruled that the defendant had not offered a plausible
innocence claim given that it was rather bizarre—a “devil made
me to it” claim of innocence—and since the innocence claim was
offered just prior to sentencing. Id. See also Commonwealth
v. Hvizda,[ 116 A.3d 1103 (Pa. 2015)] (companion case to
Carrasquillo).
* * *
[In our] Supreme Court’s companion case in Hvizda, . . . the
defendant’s claimed innocence was straightforward, but refuted
by the Commonwealth’s proof. In Hvizda, the defendant entered
a guilty plea to first degree murder in connection with the stabbing
death of his estranged spouse. Prior to imposition of his sentence,
he asked to withdraw the plea claiming that he was innocent. The
trial court conducted a hearing on the request to withdraw, where
the defendant again asserted that he was innocent but failed to
proffer any support for that claim. On the other hand, the
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Commonwealth produced recorded telephone conversations that
the defendant made from jail; in the tapes, the defendant
admitted that he killed his wife and indicated that he wanted to
go to trial to tell his side of the story.
The trial court denied the motion to withdraw finding that, given
the Commonwealth’s tapes, the assertion of innocence was
pretextual and designed to manipulate the judicial system. In an
unpublished memorandum, [this Court] reversed based upon
Commonwealth v. Katonka, 33 A.3d 44, 49 (Pa. Super. 2011)
(en banc), [in which the Court] held that “credibility assessments
relative to a defendant’s claim of innocence were impermissible.”
Id. Our High Court reversed the panel’s holding in Hvizda, noting
that, under its companion decision in Carrasquillo, a bald
assertion of innocence is no longer sufficient grounds to permit
withdrawal of a guilty plea. The Hvizda Court upheld the trial
court’s refusal to permit the defendant to withdraw his guilty plea
because his innocence assertion was implausible as it was
unsupported and rebutted by the Commonwealth’s proof.
Commonwealth v. Baez, 169 A.3d 35, 39-40 (Pa. Super. 2017); cf. Islas,
156 A.3d 1191-92 (finding that the defendant’s claim of innocence was “at
least plausible,” in part, because he maintained his innocence when
interviewed by law enforcement and, unlike in Carrasquillo, the
Commonwealth’s case was based solely “on the testimony of the victim, and
nothing about that evidence ‘wholly undermines [the] plausibility’ of [the
defendant’s] claim of innocence”).
Here, the trial court addressed Appellant’s request to withdraw his guilty
plea as follows:
In the instant case, [Appellant] asserts that he felt a tremendous
amount of pressure to enter the guilty plea, only to realize after
the fact that he had made a mistake. [Appellant] argues that he
is, in fact, innocent of the offense of rape of a child and only pled
guilty because of the fear associated with possibly losing at trial
or of having additional charges filed against him.
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At the hearing on [Appellant’s] motion to withdrawal [sic] his
guilty plea, to refute [Appellant’s] claim of innocence, the
Commonwealth produced video footage from shortly after
[Appellant’s] arrest in which [Appellant] made statements to
Corporal Bernard Novak and Trooper Joseph Streyle of the
Pennsylvania State Police, admitting to physically touching the
minor victim, having sex acts performed on him by the minor
victim, as well as having vaginal sex with the minor victim when
she was approximately twelve years old. Additionally, the
Commonwealth produced recorded telephone conversations that
[Appellant] made from jail to his then-girlfriend after his arrest.
In the recording, [Appellant] admitted that he physically touched
a minor. While he now asserts his innocence as a basis to
withdraw his plea, [Appellant] has not maintained his innocence
to this point and, on the contrary, has made statements
proclaiming his guilt. This court finds that [Appellant’s] assertion
of innocence at this time is not plausible as he failed to offer
“additional testimony establishing the basis of a fair and just
reason” that justifies the withdrawal of his guilty plea, especially
in light of his previous statements admitting sexual acts with the
minor victim. Baez, 169 A.3d at 39 (citation omitted). Just as
the Pennsylvania Supreme Court found in Hvizda, [Appellant’s]
bald assertion of innocence in this case has been rebutted by the
Commonwealth’s evidence. Furthermore, on cross-examination
during the hearing, [Appellant] testified that it was his belief that
if he withdrew his plea and went to trial he would be released from
jail in the near future pursuant to Rule 600, further undermining
his “fair and just” reason for asking to withdraw his plea.
The court finds [Appellant] has offered nothing more than a bare
assertion of innocence that has been rebutted by the
Commonwealth, and failed to provide a “fair and just” reason for
withdrawal of his plea.
Trial Ct. Op. & Order at 2-3 (unpaginated).
Based on our review of the record, we discern no abuse of discretion by
the trial court in denying Appellant’s pre-sentence motion to withdraw his
guilty plea. See Gordy, 73 A.3d at 624. As noted by the trial court, the
Commonwealth presented evidence concerning Appellant’s statements to law
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enforcement and to his former girlfriend, both of which wholly undermine his
claim of innocence. See Hvizda, 116 A.3d at 1103; cf. Islas, 156 A.3d at
1191-92. Further, to the extent Appellant attempts to recharacterize the
nature of his statements or the context in which they were made, his
assertions are belied by the record. See Trial Ct. Op. & Order at 2-3; see
also Commonwealth’s Ex. B. Therefore, we agree with the trial court that
Appellant has failed to demonstrate a fair and just reason for withdrawing his
plea. See Carrasquillo, 115 A.3d at 1292. Accordingly, Appellant is not
entitled to relief.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/23/2021
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