J-S38036-18


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,            :     IN THE SUPERIOR COURT OF
                                         :           PENNSYLVANIA
                 Appellee                :
                                         :
                    v.                   :
                                         :
JAIME LEE CONDELLA,                      :
                                         :
                 Appellant               :     No. 102 WDA 2018

        Appeal from the Judgment of Sentence September 15, 2017
             in the Court of Common Pleas of Warren County
           Criminal Division at No(s): CP-62-CR-0000035-2017

BEFORE:    BOWES, NICHOLS, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:          FILED AUGUST 30, 2018

     Jamie Lee Condella (Appellant) appeals from the September 15, 2017

judgment of sentence of 33 months to 10 years of incarceration following his

negotiated guilty plea to receiving stolen property. Upon review, we affirm.

     The trial court provided the following background.

            Pursuant to a negotiated plea agreement, [Appellant]
     entered a plea of guilty to … receiving stolen property on August
     4, 2017. The other charges against him, including burglary,
     were later nolle prossed. On September 5, 2017, [Appellant]
     filed a motion to withdraw [his] plea. Following argument on the
     motion, the [trial] court denied the motion by order filed
     September 13, 2017. [Appellant] was sentenced on September
     15, 2017. On September 22, 2017[, Appellant] filed a motion
     for reconsideration.    This motion asked the [trial] court to
     reconsider its sentence and also its decision not to allow
     [Appellant] to withdraw his plea.        The [trial] court heard
     argument and then denied the motion for reconsideration by
     order filed December 1, 2017.

Trial Court Opinion, 2/28/2018, at 1 (unnecessary capitalization removed).


*Retired Senior Judge assigned to the Superior Court.
J-S38036-18


        This timely-filed appeal followed.1 Appellant presents one issue for our

consideration: whether the trial court erred in denying his motion to

withdraw his guilty plea prior to sentencing. See Appellant’s Brief at 2.

              Preliminarily, we recognize 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. The Supreme Court of
        Pennsylvania recently clarified the standard of review for
        considering a trial court’s decision regarding a defendant’s pre-
        sentence motion to withdraw a guilty plea:

              [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.

        We will disturb a trial court’s decision on a request to withdraw a
        guilty plea only if we conclude that the trial court abused its
        discretion.

Commonwealth v. Blango, 150 A.3d 45, 47 (Pa. Super. 2016) (citations

and quotation marks omitted).

        [T]he determination of whether there is a “fair and just reason”
        to permit the pre-sentence withdrawal request should be based
        on the totality of the circumstances attendant at the time of
        the request, including the timing of the assertion of innocence,
        the statements made by the defendant in association with his
        declaration of innocence, and the plausibility of the defendant’s
        statements in light of the evidentiary proffer made by the
        Commonwealth at the plea hearing.


1   Both Appellant and the trial court have complied with Pa.R.A.P. 1925.



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J-S38036-18


Commonwealth v. Johnson-Daniels, 167 A.3d 17, 24 (Pa. Super. 2017),

quoting Commonwealth v. Carrasquillo, 115 A.3d 1284, 1286, 1292-93

(Pa. 2015) (emphasis added).        As to the declaration of innocence, a

defendant “need not prove his or her innocence[, but rather] need only

proffer a ‘colorable’ or ‘plausible’ claim of innocence[.]” Commonwealth v.

Islas, 156 A.3d 1185, 1191 (Pa. Super. 2017).

      In this case, Appellant failed to meet even this minimal threshold. In

his pre-sentence motion to withdraw his plea, Appellant did not provide any

reasons for withdrawal, nor did he assert his innocence.       See Motion to

Withdraw Plea, 9/5/2017.      Instead, he stated only that he “desires to

withdraw his plea of guilty and to proceed to trial to have the District

Attorney prove the charges against him ‘beyond a reasonable doubt.’”

Motion to Withdraw Plea, 9/5/2017, at ¶ 2.            The trial court denied

Appellant’s motion “for the reasons stated on the record[,]”2 Order,

9/13/2017, and sentenced Appellant on September 15, 2017.

      Thereafter, Appellant filed a motion for reconsideration, wherein he

alleged for the first time his innocence and a reason for his initial motion to

withdraw his guilty plea. Specifically, Appellant alleged that his plea was not

made knowingly because he was mistaken about his prior record score and


2The transcript of this proceeding was not made part of the certified record
on appeal. However, because our review is not hampered by its absence,
we decline to find waiver.



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J-S38036-18


resultant sentencing guidelines. Motion for Reconsideration, 9/22/2017, at ¶

3; Appellant’s Brief at 11-12.      However, even assuming Appellant was

mistaken about his prior record score and the resultant sentencing

guidelines, and that this constituted a “fair and just reason” for withdrawal,

Appellant was required to present this reason “at the time of the request” to

withdraw his plea, i.e., in his initial pre-sentence motion.         Johnson-

Daniels, 167 A.3d at 24 (citation omitted). He did not do so. Appellant’s

assertion of new reasons, after sentencing, for the trial court to reconsider

his pre-sentence motion to withdraw his plea does not remedy his failure to

do so at the time of the initial request. Moreover, at the time of his guilty

plea, Appellant was advised of his rights and the maximum statutory penalty

that could be imposed; he acknowledged that he understood his rights and

was entering the plea of his own free will. See N.T., 8/4/2017, at 8-11.

      Although it is true that an “individual’s fundamental right to a trial

requires a liberal granting of pre-sentence motions to withdraw guilty plea,”

it is well-settled that “there is no absolute right to a pre-sentence withdrawal

of a plea, and … that the denial of such a motion is proper where the

evidence before the court belies the reason offered.”     Commonwealth v.

Tennison, 969 A.2d 572, 578 (Pa. Super. 2009).            Here, there was no

reason offered in Appellant’s pre-sentence motion to withdraw his plea. Nor

was there any claim of innocence, plausible or otherwise. Accordingly, we

find that the trial court did not abuse its discretion in denying Appellant’s


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J-S38036-18


pre-sentence motion to withdraw his plea.   See, e.g., Carrasquillo, 115

A.3d at 1293 (holding trial court acted within its discretion to deny an

implausible claim of innocence raised for the first time at the sentencing

hearing).

     Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/30/2018




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