J-S37001-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
PAUL DONALD WHISNER
Appellant No. 1202 MDA 2016
Appeal from the Judgment of Sentence June 30, 2016
In the Court of Common Pleas of Cumberland County
Criminal Division at No: CP-21-CR-0000738-2015
BEFORE: STABILE, MOULTON, and MUSMANNO, JJ.
MEMORANDUM BY STABILE, J.: FILED AUGUST 22, 2017
Appellant, Paul Donald Whisner, appeals from the June 30, 2016
judgment of sentence entered in the Court of Common Pleas of Cumberland
County (“trial court”) sentencing him to an aggregate sentence of 18 to 40
years’ incarceration for rape of a child and involuntary deviate sexual
intercourse with a child under the age of 13 (“IDSI”).1 Appellant is
challenging the trial court’s denial of his motion to withdraw his no contest
plea. Upon review, we affirm.
Appellant was charged with eleven counts, including rape of a child
and IDSI, in February 2015. Following a number of continuance requests by
Appellant, he certified that he was ready for trial at the December 8, 2015
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1
18 Pa.C.S.A. §§ 3121(c) and 3123(b), respectively.
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pre-trial conference. Appellant was provided with plea offers by the
Commonwealth. The trial court summarized the relevant procedural history
of the matter as follows.
Appellant’s case was called for trial on December 15, 2015.
Due to a scheduling conflict, a new assistant district attorney
was selected to prosecute the Commonwealth’s case. On the
morning of December 15, 2015, with the jury panel in the
courthouse and the Commonwealth’s witnesses present and
prepared for trial, Appellant accepted a new plea offer made by
the Commonwealth. In exchange for a plea of nolo contendere,
nine of the eleven charges against Appellant were dropped,
leaving the above-captioned charges. Appellant pled to these
charges. Sentencing was scheduled for March 29, 2016.
Following entry of Appellant’s plea, an assessment by the
Pennsylvania Sexual Offender Assessment Board (hereinafter,
“SOAB”) was ordered. The SOAB Report was completed on
February 22, 2016, received by the Commonwealth on February
24, 2016, and Appellant’s counsel was notified of the report on
February 26, 2016. Upon receipt of the SOAB report, the
Commonwealth requested a hearing to determine whether
Appellant was a sexually violent predator. The hearing was
scheduled for April 08, 2016, and Appellant’s date of sentencing
was rescheduled to April 08, 2016, following the sexually violent
predator hearing.
On April 07, 2016, Appellant’s counsel indicated that
Appellant wished to withdraw his pleas of nolo contendere.
Given the last-minute nature of this notification, Appellant’s
sentencing was immediately continued until May 31, 2016, while
Appellant was directed to file a written motion to withdraw his
nolo contendere pleas on or before April 13, 2016. Appellant did
file his motion later in the day on April 07, 2016, and the
Commonwealth filed a timely response. Appellant’s sexually
violent predator hearing was continued.
After consideration of Appellant’s motion and the
Commonwealth’s response, a hearing was scheduled for June 17,
2016. All further action on the case, including sentencing, was
continued generally. Following the hearing on June 17, 2016,
Appellant’s motion was denied by order of court dated June 17,
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2016. After denial of Appellant’s motion, a hearing was held on
June 30, 2016, wherein the [trial court] heard the testimony and
evidence presented by both parties regarding whether Appellant
was a sexually violent predator. As reflected in the order of
court entered on June 30, 2016, it was found that the
Commonwealth proved by clear and convincing evidence that
Appellant was a sexually violent predator.
Appellant appealed the decision of [the trial court] by filing
his notice of appeal on July 22, 2016. Appellant was granted
leave to proceed in forma pauperis, and was directed to file a
concise statement of errors complained of on appeal by August
12, 2016. Appellant’s concise statement of errors, raising only
one error for appellate review was received on August 12,
2016[.]
Trial Court Opinion, 10/3/16, at 2-4 (unnecessary capitalization omitted)
(emphasis in original). The trial court issued a Pa.R.A.P. 1925(a) opinion on
October 3, 2016.
Appellant raises a sole issue on appeal, “did the trial court abuse its
discretion and thereby err in denying Appellant’s motion to withdraw his nolo
contendere pleas?” Appellant’s Brief at 6.
Our standard of review for a trial court’s decision regarding a
presentence motion to withdraw a guilty or nolo contendere plea is to
determine whether the trial court abused its discretion. Commonwealth v.
Islas, 156 A.3d 1185, 1187 (Pa. Super. 2017) (citing Commonwealth v.
Elia, 83 A.3d 254, 261 (pa. Super. 2013)). Our rules of Criminal Procedure
provide that “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). However,
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[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 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)
(citing Commonwealth v. Forbes, 299 A.2d 268, 271 (Pa. 1973))
(footnote omitted).
In Carrasquillo, our Supreme Court held that to withdraw a guilty
plea prior to sentencing, a defendant must assert more than a mere claim of
innocence. Id. at 1293. The defendant in Carrasquillo pled guilty to a
number of offenses including rape. Id. at 1285. During the plea colloquy,
the Commonwealth proffered significant evidence against the defendant.
Id. Following a SVP hearing, the defendant testified that he wanted to spare
the victim from testifying, he was innocent, had been framed, and that “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.’” Id. at 1286. Our Supreme Court found that the trial
court acted within its discretion when it denied the defendant’s motion to
withdraw his plea, noting the bizarre statements by the defendant combined
with his declaration of innocence “wholly undermined its plausibility,
particular in light of the Commonwealth’s strong evidentiary proffer at the
plea hearing.” Id. at 1293.
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In the matter sub judice, Appellant is arguing that unlike in
Carrasquillo, he raised an innocence claim and “provided the trial court
with fair-and-just reasons for the pre-sentence withdrawal of his nolo
contendere pleas.” Appellant’s Brief at 12 (capitalization omitted).
Appellant’s brief fails to discuss what the fair and just reasons claimed that
would warrant the withdrawal of his nolo contendere pleas; thus, Appellant’s
argument is waived. See Commonwealth v. Johnson, 985 A.2d 915, 924
(Pa. 2009) (“[W]here an appellate brief fails to provide any discussion of a
claim with citation to relevant authority or fails to develop the issue in any
other meaningful fashion capable of review, that claim is waived.”) (citations
omitted).
Even if Appellant’s claim was not waived, it is meritless. The trial
court noted that Appellant sought to withdraw his plea “because he felt
pressured to plead out and because he believed that he would be released
from prison in December if he pled.” Trial Court Opinion, 10/3/16, at 6
(footnotes omitted). The trial court found Appellant’s belief he would be
released from prison as a result of the plea inconceivable. 2 Moreover,
Appellant discussed a possible sentence with his attorney; thus, the trial
court found that he could not have reasonably believed this to be the case.
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2
Appellant was facing a maximum of 40 years’ incarceration on each
offense. Further, the trial court sentenced Appellant to a standard range
sentence.
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Upon review, we find that the trial court did not abuse its discretion when
denying Appellant’s motion to withdraw his nolo contendere plea.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/22/2017
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Com. v. Whisner, P.
Combined Opinion