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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
MICHAEL NORTON :
:
Appellant : No. 2359 EDA 2015
Appeal from the Judgment of Sentence August 7, 2015
In the Court of Common Pleas of Pike County
Criminal Division at No(s): CP-52-CR-0000104-2013
BEFORE: FORD ELLIOTT, P.J.E., OTT, and FITZGERALD, JJ.*
DISSENTING MEMORANDUM BY FITZGERALD, J.: FILED MARCH 23, 2017
I respectfully disagree with the majority’s decision to affirm the trial
court’s order denying Appellant’s presentence motion to withdraw his nolo
contendere plea. In my view, the trial court’s determination that Appellant’s
claim of innocence did not establish fair and just reason for withdrawal is not
supported by the Pennsylvania Supreme Court’s recent decision in
Commonwealth v. Carrasquillo, 115 A.3d 1285 (Pa. 2015), or the record.
On December 14, 2012, Appellant was charged with five counts of
indecent assault1 and one count of corruption of minors2 in a criminal
*
Former Justice specially assigned to the Superior Court.
1
18 Pa.C.S. § 3126(a)(7).
2
18 Pa.C.S. § 6301(a)(1)(ii).
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complaint alleging that he sexually abused the complainant beginning when
she was three- or four-years old.3 The abuse was alleged to occur when the
complainant visited the home of her grandmother, with whom Appellant was
in a relationship. Although the complainant referred to Appellant as a
grandfather, Appellant and the complainant were not related by blood.
On February 27, 2013, the complainant testified at the preliminary
hearing, and the magisterial district judge held over two counts of indecent
assault and one count of corruption of minors for trial, but dismissed the
remaining three counts of indecent assault. On April 1, 2013, the
Commonwealth filed an information.
The Commonwealth apprised Appellant that it intended to introduce
evidence that he sexually abused his biological daughter in Orange County,
New York between 1985 and 1990, as well as Appellant’s 1996 handwritten
statement to New York investigators, in which he admitted the abuse. 4 On
August 7, 2013, Appellant filed an omnibus pre-trial motion seeking to
3
In response to Appellant’s request for bill of particulars, the
Commonwealth asserted that the exact date and times of the offenses were
unknown, but that “the offenses were a course of conduct which occurred
between September 2008 through April 19, 2012.” Commw.’s Answer to
Request for Bill of Particulars, 4/22/13.
4
Appellant’s biological daughter testified at a hearing on the pre-trial motion
and testified, inter alia, that Appellant began touching her inappropriately
when she was four years old. N.T., 10/15/13, at 9. According to the
Commonwealth, a New York State family court made a finding of sexual
abuse, but the matter was not prosecuted in criminal court due to New
York’s statute of limitation.
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preclude the Commonwealth from admitting the evidence. Following a
hearing, the trial court denied Appellant’s motion to preclude the prior bad
acts evidence on December 4, 2013.5
Appellant’s counsel requested continuances on February 3, 2014, and
March 31, 2014. On May 6, 2014, Appellant filed a motion for additional
discovery from the Commonwealth seeking, inter alia, recordings and
interview notes from any interviews of the complainant by police, children
and youth services, or victim services. The trial court granted Appellant’s
motion “to the extent that the information requested is in the possession of
the Commonwealth, the Police involved in the investigation, or other party
under the control of the Commonwealth.” Order, 6/11/14. On June 11,
2014, the trial court granted Appellant’s unopposed motion for continuance.
In September 2014, Appellant filed a motion for recusal of the
presiding judge or continuance based on the presiding judge’s intended use
of a computer speech program to address the jury. The Commonwealth filed
a separate recusal motion for the same reason. The court, on September
10, 2014, granted Appellant’s motion for continuance to the November 2014
trial term and denied Appellant’s and the Commonwealth’s respective
motions for recusal as moot. The matter was subsequently reassigned to
the present trial judge.
5
The trial court denied Appellant’s motion for a determination of finality with
respect to its prior bad acts ruling.
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On November 7, 2014, Appellant entered into a negotiated nolo
contendere plea to one count of indecent assault and one count of corruption
of minors, which included an agreement for an aggregate two-to-six-year
sentence of imprisonment. The court accepted the plea and directed that he
undergo an assessment by the Sexual Offenders Assessment Board
(“SOAB”). Twelve days later, on November 19, 2014, Appellant completed a
form advising him of the registration provisions of Sexual Offender
Registration and Notification Act.6
On March 23, 2015, Appellant filed a counseled motion to withdraw his
plea, asserting that he “has maintained his innocence in this matter and
cannot live with himself taking a plea to charges that he is innocent of.”
Mot. to Withdraw Nolo Contendere Plea, 3/23/15, at 1.
On April 5, 2015, a SOAB assessor conducted an SVP evaluation.
Appellant did not participate, indicating through counsel that he wished to
withdraw his plea. The SOAB assessor found that Appellant was a sexually
violent predator (“SVP”).
On June 1, 2015, following a hearing, the trial court entered an order
granting Appellant’s motion to withdraw his plea, but noting that a decision
by the Pennsylvania Supreme Court in Carrasquillo was pending. The
Pennsylvania Supreme Court decided Carrasquillo on June 15, 2015, and
two days later, the Commonwealth filed a motion for reconsideration of the
6
42 Pa.C.S. §§ 9799.10-9799.41.
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trial court’s June 1, 2015 order. On June 25, 2015, the court heard
arguments on the motion and on June 26, 2015, granted reconsideration
and denied Appellant’s motion to withdraw his plea.
On August 7, 2015, the trial court convened a sentencing hearing at
which Appellant stipulated to the SOAB’s SVP determination. The court
thereafter imposed the negotiated aggregate sentence of two to six years’
imprisonment. This timely appeal, in which Appellant challenges the denial
of his presentence motion to withdraw his plea under Carrasquillo,
followed.
It is well settled that:
[T]rial courts have discretion in determining whether a
withdrawal request will be granted; such discretion is to be
administered liberally in favor 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.
Carrasquillo, 115 A.3d at 1291-92.
In Carrasquillo, the Pennsylvania Supreme Court rejected a per se
approach to considering a presentence withdrawal of pleas based on an
assertion of innocence. Id. at 1285. Moreover, the Court reaffirmed that
“there is no absolute right to withdraw a guilty plea” and emphasized that
“the trial courts have discretion in determining whether a withdrawal request
will be granted.” Carrasquillo, 115 A.3d at 1291-92 (citation omitted).
The Court clarified:
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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 [regarding a
presentence withdrawal of a plea] remains extant but has
its limits, consistent with the affordance of a degree of
discretion to the common pleas courts.
Id. at 1292.
A review of the Carrasquillo Court’s discussion of the record is
illuminating. In Carrasquillo, the defendant pleaded guilty to sexual
offenses. More than three and a half months later, at sentencing, the trial
court heard (1) evidence that the defendant should be classified as an SVP,
(2) statements from one of the victim’s family, her teacher, and her
physician, (3) evidence that the defendant suffered from a
neuropsychological impairment, and (4) the defendant’s family’s request for
leniency. Carrasquillo, 115 A.3d at 1286. Subsequently, during allocution,
the defendant asserted
that he had pled guilty to spare [the victim] suffering, and
he therefore expressed surprise at his portrayal during the
sentencing hearing. [He] also stated that he had entered
his plea because, absent a polygraph examination, his
account would not have been believed and he would not
have received a fair trial. He continued to discuss
scenarios unrelated to the sexual assault of [the victim], in
which the CIA purportedly had victimized him by seeking
to employ him as an assassin abroad, and where a serpent
assertedly appeared and “[t]he Antichrist, he came out of
me[.]” Claiming that he did not commit the assault
against [the victim] and had been framed, [he] insisted
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that a polygraph test would prove his innocence and asked
to withdraw his guilty plea.
Id. (record citations omitted).
The trial court, in Carrasquillo, refused to credit the defendant’s
assertion of innocence. The court, in relevant part,
reasoned that [the defendant’s] claim of innocence—
premised in part on an explanation that he had been
framed in an elaborate scheme orchestrated by the Central
Intelligence Agency and conditioned upon a polygraph
test—was implausible, insincere, and “nothing more than
an attempt to manipulate the justice system” by
introducing a belated competency-based defense. The
court stressed that [the defendant] asserted his innocence
nearly four months after entering his guilty plea and only
minutes before sentencing, timing which also diminished
his credibility. . . . [R]ather than a good-faith
advancement of innocence, [the defendant’s] “allocution
was a guilty, shamed reaction to harsh testimony at the
sentencing hearing, in which he heard himself described as
a ‘monster,’ ‘pedophile,’ and ‘rapist’ by the victim and her
family as they recounted the suffering and anguish he
inflicted upon them.”
Id. at 1287 (citations omitted).
In rejecting a per se approach to the defendant’s request to withdraw
his plea, the Carrasquillo Court explained:
This case, in our view, illustrates why the existing per se
approach to innocence claims is unsatisfactory. Here, [the
defendant’s] assertion was first made in sentencing
allocution, after the close of the evidentiary record (which,
in any event, was dedicated to a different purpose, since
no motion to withdraw had been advanced before or
during such record’s development). No request was made
to reopen the record for an orderly presentation in support
of [the defendant’s] request. Moreover, the bizarre
statements made by [the defendant] in association with
his declaration of innocence wholly undermined its
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plausibility, particular in light of the Commonwealth’s
strong evidentiary proffer at the plea hearing. In the
circumstances, the common pleas court should not have
been required to forego sentencing; rather, we find that it
acted within its discretion to refuse the attempted
withdrawal of the plea.
Id. at 1292-93 (footnote omitted).
Thus, Carrasquillo does not stand for the proposition that an
assertion of innocence alone is insufficient reason for withdrawing a plea
before sentencing. See id. at 1292 (acknowledging “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”);
Commonwealth v. Islas, 1270 EDA 2016 (Pa. Super. Feb. 24, 2017) (slip
op. at 9-10). Rather, the Court reaffirmed that the trial court may exercise
discretion when evaluating the assertion of innocence and whether the
assertion constitutes fair and just reasons to withdraw a plea. Notably, the
Carrasquillo Court also maintained the distinction between “[t]he policy of
liberality” applicable to presentence plea withdrawals and the higher scrutiny
of post-sentence withdrawals under the manifest injustice standard. See
Carrasquillo, 115 A.3d at 1292; Islas, 1270 EDA 2016 at 9; see
generally Commonwealth v. Broaden, 980 A.2d 124, 128-29 (Pa. Super.
2009) (“‘Manifest injustice may be established if the plea was not tendered
knowingly, intelligently, and voluntarily.’” (citation omitted)).
In the present case, Appellant clearly and unequivocally asserted his
innocence and stated that “he could not live with the plea.” See Mot. to
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Withdraw Nolo Contendere Plea, 3/23/15, at 2; N.T., 4/30/15, at 4-5. The
trial court did not expressly determine that Appellant’s assertion of
innocence was incredible, implausible, or insincere. Cf. Carrasquillo, 115
A.3d at 1287. Unlike the defendant in Carrasquillo, Appellant’s assertion
was not bizarre or outlandish. Cf. id. Moreover, the court did not
specifically find that Appellant was attempting to manipulate the justice
system. Cf. id. Therefore, I cannot conclude that Appellant’s assertion was
akin to the “bare assertion of innocence” discussed in Carasquillo.
Rather than addressing the quality of Appellant’s assertion of
innocence, the court suggested that the assertion of innocence, in and of
itself, did not establish a fair and just reason for withdrawal. See Order,
6/26/15, at 4 (unpaginated); Trial Ct. Op., 11/17/15, at 7-8. In support,
the court examined the almost two years between the commencement of the
action and Appellant’s plea and the more than four months between
Appellant’s plea and his motion to withdraw. The court twice indicated that
Appellant did not raise any new allegations in support of his claim of
innocence. See id. at 8. The court noted Appellant “had ample time to
consider his assertion of innocence” and “all of the evidence of the case,
including the Commonwealth’s evidence or lack thereof,” when entering into
the agreement. In sum, the court concluded:
[Appellant’s] two (2) primary claims, that he is innocent
and that he sought to challenge the Commonwealth’s
evidence at trial, were not novel to the post-plea
proceedings of this case. Both of these assertions were
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certainly known to [Appellant] prior to the entry of his
negotiated plea and would assuredly have been considered
by him and counsel in deciding to accept the plea of nolo
contendere. Accordingly, [Appellant’s] bases for
withdrawal of his plea did not make a colorable
demonstration that allowing him to withdraw his plea
would have promoted fairness and justice.
Trial Ct. Op. at 8.
The trial court thus suggested that Appellant entered into his plea
knowingly, intelligently, and voluntarily under the totality of the
circumstances. However, this rationale conflates the standards applicable to
a presentence and post-sentence plea withdrawal. See Carrasquillo, 115
A.3d at 1292; Broaden, 980 A.2d at 128-29. Even if the record reveals
some delay by Appellant, I discern no basis to conclude those delays evinced
bad-faith, gamesmanship, or a response to the consequence of his plea.
Therefore, I would conclude 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.
Lastly, it is well settled that
Even if there is a “‘fair and just reason’ to permit
withdrawal of a guilty plea, withdrawal should not be
permitted if “the prosecution has been ‘substantially
prejudiced.’” It is settled law that “prejudice,” in the
withdrawal of a guilty plea context, requires a showing
that, due to events occurring after the plea was entered,
the Commonwealth is placed in a worse position than it
would have been had trial taken place as scheduled.
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Commonwealth v. Blango, 150 A.3d 45, 51 (Pa. Super. 2016) (citations
omitted).
The majority suggests that the passage of time between the filing of
the charges and his motion to withdraw his plea would result in prejudice.
See Majority Mem. at 7. However, the Commonwealth did not assert
prejudice when responding to Appellant’s request to withdraw his plea, did
not create an evidentiary record for the trial court to consider prejudice, and
does not argue prejudice on appeal. See N.T., 4/30/15, at 6-7;
Commonwealth’s Mot. for Reconsider. of the Order Allowing Withdraw of
Plea, 6/17/15, at 1 (indicating that the Commonwealth was prepared for trial
following the trial court’s initial withdrawal of Appellant’s plea); N.T.,
6/25/15, at 9-11 (indicating that the Commonwealth failed to respond to
Appellant’s assertion that the Commonwealth would not suffer prejudice);
see also Commonwealth’s Brief at 7. Moreover, the record does not
indicate that the Commonwealth would be hampered from calling witnesses
or presenting the same case it would have before sentencing in this case.
Therefore, under the circumstances of this case, I conclude that
Appellant is entitled to relief and would reverse the order denying Appellant’s
presentence request to withdraw.
Thus, I respectfully dissent.
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