J-S65020-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                         Appellee

                    v.

VINCENT FITZGERALD IVEY,

                         Appellant                     No. 7 WDA 2016


         Appeal from the Judgment of Sentence of August 18, 2015
            In the Court of Common Pleas of Somerset County
           Criminal Division at No(s): CP-56-CR-0000624-2014


BEFORE: LAZARUS, OLSON AND PLATT,* JJ.

MEMORANDUM BY OLSON, J.:                          FILED OCTOBER 17, 2016

      Appellant, Vincent Fitzgerald Ivey, appeals from the judgment of

sentence entered on August 18, 2015. On appeal, Appellant challenges the

denial of his pre-sentence motion to withdraw his guilty plea. We affirm.

      The trial court briefly set forth the facts and procedural history of this

case as follows:

        On October 4, 2014, [Appellant] was charged by [criminal
        i]nformation with three felony counts of [m]anufacture,
        [d]elivery, or [p]ossession with [i]ntent to [m]anufacture or
        [d]eliver, a [c]ontrolled [s]ubstance ([h]eroin) under 35
        P.S. § 780-113(a)(30).

        On December 8, 2014, [Appellant] pleaded guilty to one
        count of [p]ossession with [i]ntent to [d]istribute [h]eroin
        (less than two grams), an ungraded felony. At the plea
        colloquy, the [Commonwealth] informed the court that the
        charge arose out of a controlled buy arranged by the
        Somerset County Bureau of Investigations which occurred
        on August 26, 2013, wherein [Appellant] sold seven
        “baggies” of heroin to a confidential informant for a sum of

*Retired Senior Judge assigned to the Superior Court.
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       $150.00. [The trial court] asked [Appellant] whether the
       facts recited by the [Commonwealth] were accurate as
       recited, and [Appellant] stated[,] “Yes sir.” [The trial court]
       then asked [Appellant] whether he was pleading guilty
       because he was truly guilty, and again [Appellant] stated[,]
       “Yes sir.” [The trial court] accepted [Appellant’s] plea, and
       upon acceptance, granted the Commonwealth’s motion to
       withdraw the remaining charges. Sentencing was scheduled
       for February 12, 2015 at 9:30 a.m.

       On February 12, 2015, [Appellant] appeared for sentencing
       and moved for a continuance to give him additional time to
       examine the information contained in the pre-sentence
       investigation [report].     The Commonwealth having not
       objected, [the trial court] granted [Appellant’s] continuance
       request [and], with [Appellant] present, rescheduled
       sentencing for 9:00 a.m. on March 12, 2015.

       On March 12, 2015, [Appellant] failed to appear for his
       sentencing hearing, prompting [the trial court] to issue a
       bench warrant for [Appellant’s] arrest. On March 16, 2015,
       [Appellant] appeared before the court for sentencing and
       orally advised [the trial court] that he wished to withdraw
       his guilty plea. [The trial court] ordered [Appellant] to file a
       written petition to withdraw his plea, which [Appellant] filed
       on March 16, 2015. [The trial court] scheduled a hearing
       on the petition to withdraw for March 19, 2015.

       On March 19, 2015, [the trial court] convened a hearing to
       address [Appellant’s] petition withdraw his guilty plea.
       During the hearing, [the trial court] informed [Appellant]
       that [it] would permit him to withdraw his guilty plea, but
       that all withdrawn charges would be reinstated and [the
       trial court] would not approve another negotiated plea
       agreement in the future.       [Appellant] then requested
       another continuance, this time for thirty days, indicating to
       the court that he needed more time to hire private counsel
       to advise him concerning his options. [The trial court]
       granted [Appellant’s] request and, in [his] presence,
       rescheduled the hearing for April 23, 2015. [The trial court]
       indicated on the record that no further continuances would
       be granted.




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        On April 23, 2015, [Appellant], once again, failed to appear
        for his hearing, prompting [the] issuance of another bench
        warrant. Furthermore, no private attorney had entered an
        appearance on behalf of [Appellant]. On April 30, 2015,
        [Appellant] was brought before the court on a bench
        warrant. [The trial court] vacated the bench warrant and
        reinstated [Appellant’s] bail at $25,000.00 cash, which
        [Appellant] was unable to post. On June 23, 2015, [the
        trial court] issued a [n]otice of [s]entencing, setting
        [Appellant’s] sentencing for July 8, 2015. On July 8, 2015,
        having been informed that the Commonwealth would
        oppose [Appellant’s] written motion to withdraw his guilty
        plea, [the trial court] continued the sentencing hearing
        generally, pending the resolution of the withdrawal issue.

        On August 18, 2015, some eight months after [Appellant’s]
        plea of guilty, [the trial court] conducted a hearing on
        [Appellant’s] petition to withdraw his plea. Upon completion
        of the hearing, [the trial court] denied [Appellant’s] petition
        and immediately proceeded to sentencing. [Appellant] was
        sentenced to, inter alia, twenty-seven months to eight years
        in a [s]tate [c]orrectional [i]nstitution, with 119 days credit
        for time served.

        On August 19, 2015, [Appellant] filed a post-sentence
        motion to withdraw his plea. On September 11, 2015,
        [Appellant’s] counsel [] filed a [m]otion to [w]ithdraw as
        [c]ounsel, which [the trial court] granted. On October 2,
        2015, [the trial court] appointed [new counsel] to represent
        [Appellant].    On December 4, 2015, [the trial court]
        summarily denied [Appellant’s] post-sentence motion.

        [Appellant] filed his [n]otice of [a]ppeal on December 23,
        2015. On December 29, 2015, [the trial court] ordered
        [Appellant] to file a [c]oncise [s]tatement of [errors]
        [c]omplained of on [a]ppeal, with which [Appellant]
        complied on January 15, 2016. [The trial court issued an
        opinion pursuant to Pa.R.A.P. 1925(a) on March 7, 2016.]

Trial Court Opinion, 3/7/2016, at 1-3 (record citations omitted).

      On appeal, Appellant presents the following issues for our review:




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         I.     Whether the [s]entencing [c]ourt committed a
                reversible error of law and/or an abuse of discretion
                when it denied [Appellant’s] presentence petition to
                withdraw his guilty plea under the Forbes[1] standard?

         II.    Whether pursuant to equitable principles this appeal
                should be granted due to the narrow and factually
                specific circumstances in which [Appellant’s] petition
                was filed and partially heard well in advance of the
                change of the law that was ultimately used to deny
                his petition?

         III.   Whether the [s]entencing [c]ourt committed a
                reversible error of law and/or an abuse of discretion
                when it denied [Appellant’s] presentence petition to
                withdraw under the Carrasquillo[2] standard?

Appellant’s Brief at 3.

       All of Appellant’s issues are interrelated, so we will examine them

together. First, Appellant argues that he maintained his innocence prior to

sentencing and the trial court erred by refusing his request to withdraw his

plea. Id. at 12. Appellant relies primarily on our Supreme Court’s decision

in Commonwealth v. Forbes, 299 A.2d 268 (Pa. 1973) for the proposition

that, “[i]f the sentencing court finds any fair and just reason [for] withdrawal

of [a] plea before sentencing[, the request] should be freely permitted,

unless the prosecution has been substantially prejudiced.”          Id. at 13.

Appellant avers that in March 2015, while Forbes was prevailing law, he

made two assertions of his innocence and there was no prejudice to the

____________________________________________


1
    Commonwealth v. Forbes, 299 A.2d 268 (Pa. 1973).
2
    Commonwealth v. Carrasquillo, 115 A.3d 1284 (Pa. 2015).



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Commonwealth.      Id. at 14.    He claims that if he had not requested a

continuance, the trial court would have granted his presentence request to

withdraw under Forbes. Id. Next, Appellant claims the trial court erred by

relying on Carrasquillo, a case decided by our Supreme Court on June 15,

2015, because:

        his [presentence] petition [to withdraw his guilty plea] was
        filed well in advance of the Carrasquillo decision, and a
        partial hearing was held two days later and then continued.
        Then at the subsequent August 18, 2015 hearing, two
        months after Carrasquillo was decided, his petition was
        explicitly denied based on that case.

        [… H]olding [Appellant] to a standard that emerged after
        the filing of his petition and first hearing (the time in which
        research into the applicable law is generally conducted)
        would violate principles of fairness and equity.

Id. at 15-16. Finally, in the alternative, Appellant maintains “his assertions

of innocence met the standard set forth in Carrasquillo[.]” Id. at 16. More

specifically, Appellant argues he gave a plausible innocence claim when he:

(1) “asserted that the only reason he entered the guilty plea in the first

place […] was to have the other two charges dropped and avoid the risk of

going to trial and facing incarceration, as he was under the impression that if

he pled guilty he would not be incarcerated[;]” and (2) claimed “he did not

possess or sell drugs.”       Id. at 17-18.      He avers Carrasquillo is

distinguishable because Carrasquillo, in asserting his innocence, made

bizarre statements about “the CIA kidnapping him and a snake that

appeared out of the thin air” and, additionally, “the Commonwealth



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presented overwhelming evidence of [Carrasquillo’s] guilt at the plea

colloquy, including [] inculpatory statements, fingerprints, video and DNA

evidence[.]” Id. at 23-24. Whereas, in this case, Appellant contends “the

Commonwealth [] simply orally stated at the time of the plea that an

unidentified [confidential informant] bought less than two grams of drugs

from [Appellant] with absolutely no supporting evidence.” Id.

      The standard of review that we employ in challenges to a trial court's

decision regarding a pre-sentence motion to withdraw a guilty plea is

well-settled:

        A trial court's decision regarding whether to permit a guilty
        plea to be withdrawn should not be upset absent an abuse
        of discretion. An abuse of discretion exists when a
        defendant shows any fair and just reasons for withdrawing
        his plea absent substantial prejudice to the Commonwealth.
        In its discretion, a trial court may grant a motion for the
        withdrawal of a guilty plea at any time before the imposition
        of sentence.       Although there is no absolute right to
        withdraw a guilty plea, properly received by the trial court,
        it is clear that a request made before sentencing should be
        liberally allowed. The policy underlying this liberal exercise
        of discretion is well-established: The trial courts in
        exercising their discretion must recognize that before
        judgment, the courts should show solicitude for a defendant
        who wishes to undo a waiver of all constitutional rights that
        surround the right to trial—perhaps the most devastating
        waiver possible under our constitution. In Forbes, our
        Supreme Court instructed that, in determining whether to
        grant a pre[-]sentence motion for withdrawal of a guilty
        plea, the test to be applied by the trial courts is fairness and
        justice.

Commonwealth v. Elia, 83 A.3d 254, 261–262 (Pa. Super. 2013) (internal

quotations and citations omitted).



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      While Carrasquillo was decided after Appellant’s request to withdraw

his plea, we adhere to the “general rule in Pennsylvania [that applies] the

law in effect at the time of the appellate decision.”     Commonwealth v.

Housman, 986 A.2d 822, 840 (Pa. 2009).               The Carrasquillo Court

determined:

        there 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.

Carrasquillo, 115 A.3d at 1291–1292 (footnote omitted). More specifically,

“a defendant's innocence claim must be at least plausible to demonstrate, in

and of itself, a fair and just reason for pre[-]sentence withdrawal of a plea.”

Id. at 1292.   The Supreme Court concluded that “a per se approach” to

allowing pre-sentence withdrawal of a guilty plea on a mere assertion of

innocence “is unsatisfactory.”   Id.   The Carrasquillo Court noted that in

evaluating a pre-sentence request to withdraw a guilty plea, courts could

consider the timing of the innocence claim. Id., citing Forbes, 299 A.2d at

272 (“Obviously, the appellant, by his assertion of innocence—so early in the

proceedings, i.e., one month after the initial tender of a plea —offered a ‘fair

and just’ reason for withdrawal of the plea.”) (brackets omitted).

      In this case, the trial court “did not believe that [Appellant] had made

a colorable demonstration of a fair and just reason for why [it] should permit



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his plea to be withdrawn.”         Trial Court Opinion, 3/7/2016, at 6.     The trial

court determined that Appellant qualified his claim of innocence when he

“admitted that part of his reason for wanting to withdraw his plea was that

the recommended sentence in the [p]re-[s]entence [r]eport exceeded what

he was expecting[.]” Id. Appellant’s brief appears to support this sentence-

testing motive to the extent it states that Appellant believed he could avoid

incarceration if he pled guilty.        Appellant’s Brief at 17.   In sum, the trial

court concluded:

         Between [Appellant’s] equivocation – which suggested […]
         that [Appellant] was concerned less with his innocence than
         with making the strategic decision which benefited him most
         – and [Appellant] failing to appear for subsequent
         proceedings, resulting in two arrest warrants, [the trial
         court was] disinclined to believe his bare assertions of
         innocence. Quite simply, [the trial court] believed that
         [Appellant] was doing whatever he could to manipulate the
         system.

Trial Court Opinion, 3/7/2016, at 7.             Furthermore, the trial court also

determined that “[s]ince [Appellant] failed to satisfy the standard applicable

to pre-sentence plea withdrawals, [Appellant] also failed to satisfy the

heightened standard applicable to post-sentence plea withdrawals, when he

again sought to withdraw his plea on the same grounds.” 3                 Id., citing

Commonwealth v. Muntz, 630 A.2d 51, 53 (Pa. Super. 1993) (“When

considering a petition to withdraw a guilty plea submitted to a trial court
____________________________________________


3
  On appeal, however, Appellant does not challenge the trial court’s ruling
on his post-sentence motion.



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after sentencing, however, it is well-established that a showing of

prejudice on the order of manifest injustice … is required before the

withdrawal is properly justified.”) (emphasis in original; quotations and

citation omitted).

      Upon review of the record, we find no trial court abuse of discretion or

error of law in denying Appellant’s pre-sentence motion to withdraw his

guilty plea. Appellant testified that “before sentencing – when [he] got the

[pre-sentence investigation] recommendation, it was nothing like what

[Appellant] was led to believe or that [he] believed it was going to be.”

N.T., 8/18/2015, at 5.    He “entered the guilty plea on the advice of [his]

attorney and […] was led to believe that [his sentence] wouldn’t entail [] jail

time.”   Id. at 8.     When asked whether the reason for his request to

withdraw his plea was because Appellant did not like the sentence

recommendation       contained   in   the   pre-sentence   investigation   report,

Appellant stated, “That’s part of it, ma’am; yes it is.” Id. at 9. Thus, the

trial court reasonably determined that Appellant pled guilty and then claimed

his innocence only after he was dissatisfied with the range of sentences he

potentially faced. We discern no error.

      In further support of our position, our Supreme Court previously

determined:

         It is well recognized that a pre-sentencing plea withdrawal
         motion and a post-sentencing plea withdrawal motion
         present entirely different problems. As a general rule, the
         guilty plea itself is ‘the defendant's consent that judgment
         of conviction may be entered without a trial.’ Brady v.

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        United States, 397 U.S. 742, 748 (1970). Nothing remains
        to be done following acceptance of a valid plea save to
        impose sentence. Consequently, a motion to withdraw a
        guilty plea made before sentencing normally precedes any
        indication by the court of what penalty will be exacted.
        There is therefore little risk that the defendant will enter a
        guilty plea and then withdraw it before sentencing as a
        means of testing the court's attitude towards sentencing.
        Similarly, there is less risk that the prosecution will be
        substantially prejudiced by the withdrawal, before
        sentencing, of a constitutionally valid guilty plea.

        It is otherwise with a post-sentencing petition to withdraw a
        guilty plea. Such a procedure obviously would be useful as a
        sentence testing device, and, if permitted with any degree
        of liberality, would invite abuse.

Commonwealth v. Starr, 301 A.2d 592, 594, 450 Pa. 485, 488–489 (Pa.

1973) (footnote omitted).

     Moreover, we recognize

        post-sentence motions for withdrawal are subject to higher
        scrutiny since courts strive to discourage the entry of
        guilty pleas as sentencing-testing devices.         If the
        appellant knows the only possible sentence he can get for
        the crime to which he pled guilty, then any pre-sentence
        motion to withdraw the plea is akin to a post-sentence
        motion to withdraw the plea, and the manifest injustice
        standard will apply to the pre-sentence motion.

Commonwealth v. Prendes, 97 A.3d 337, 352 (Pa. Super. 2014)

(emphasis added; internal citations omitted).

     While we recognize that the above-mentioned cases dealt with post-

sentence motions to withdraw and, thus, follow the more stringent “manifest

injustice” standard of review, the reasoning behind Starr and Prendes is

apropos instantly.   Here, Appellant attempted to use his guilty plea as a

sentencing-testing device, albeit prior to his actual sentencing. We believe

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the trial court properly considered the suspicious timing of Appellant’s

request to withdraw his guilty plea.   See Carrasquillo, 115 A.3d at 1292.

Appellant did not file his motion to withdraw his guilty plea until after he

received sentencing recommendations in his pre-sentence report. After he

received those recommendations, Appellant failed to appear for sentencing

twice, resulting in the issuance of bench warrants each time. Accordingly,

we agree with the trial court that Appellant’s claim of innocence rings hollow

in light of his stall tactics and obvious discontent with his sentencing

recommendations. Hence, Appellant’s claims lack merit.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/17/2016




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