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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.                             :
                                               :
                                               :
    BRIAN THOMAS METHENY                       :
                                               :
                       Appellant               :   No. 1274 MDA 2019

          Appeal from the Judgment of Sentence Entered July 9, 2019
     In the Court of Common Pleas of Columbia County Criminal Division at
                       No(s): CP-19-CR-0000470-2018


BEFORE: SHOGAN, J., LAZARUS, J., and MUSMANNO, J.

MEMORANDUM BY LAZARUS, J.:                          FILED FEBRUARY 11, 2020

        Brian Thomas Metheny appeals from his judgment of sentence, imposed

in the Court of Common Pleas of Columbia County, after he pled guilty to one

count of attempted aggravated indecent assault.1           On appeal, Metheny

challenges the trial court’s denial of his pre-sentence motion to withdraw his

guilty plea. Upon careful review, we affirm.

        Metheny was charged with numerous offenses related to his attempt to

sexually assault the then-seven-year-old niece of his deceased girlfriend

(“Victim”). Metheny had been living with the Victim’s family at the time of the

incident.   Several years after the attempted assault, when the Victim was

approximately 12 years old, the Victim’s mother discovered text messages

between the Victim and her boyfriend in which the Victim discussed the

____________________________________________


1   18 Pa.C.S.A. §§ 3125(a)(7) and 901(a).
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attempted assault. Thereafter, the Victim’s mother reported the incident to

police and Metheny was subsequently charged.

      Jury selection was held on January 15, 2019, with trial scheduled to

begin on January 22, 2019. On January 18, 2019, the court held a pre-trial

conference with counsel, at which time Metheny and the Commonwealth

reached an agreement that Metheny would plead guilty to one count of

attempted aggravated indecent assault in exchange for the dismissal of the

remaining charges. That same day, Metheny entered a plea, at which time he

executed a written guilty plea colloquy as well as a colloquy regarding his

requirement to register and other obligations as a convicted sex offender.

      On March 6, 2019, prior to sentencing, Metheny filed a motion to

withdraw his guilty plea, in which he averred in support of his request that he

“believe[d] it was not in his best interest to enter a plea of guilty and waive

his right to a jury trial.” Motion to Withdraw Guilty Plea, 3/6/19, at ¶ 2. The

court held a hearing on March 20, 2019, after which it denied relief based on

our Supreme Court’s decision in Commonwealth v. Carrasquillo, 115 A.3d

1284 (Pa. 2015), in which the Court held that a bare assertion of innocence

is, in and of itself, not a sufficient reason for a court to grant pre-sentence

withdrawal of a guilty plea.

      On July 8, 2019, the court held a combined sentencing/sexually violent

predator (“SVP”) hearing, at which time Metheny waived his right to an SVP

hearing and conceded that he met the definition of an SVP.          The court

sentenced Metheny to a term of 42 to 120 months’ incarceration. That same

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day, Metheny filed a timely motion for reconsideration of his sentence, in

which he argued that his designation as an SVP was unconstitutional pursuant

to Commonwealth v. Butler, 173 A.3d 1212 (Pa. Super. 2017).2              The

Commonwealth stipulated to Metheny’s entitlement to relief and, by order

dated August 21, 2019, the court ordered Metheny’s SVP designation stricken.

       On August 1, 2019, Metheny filed a notice of appeal,3 followed by a

timely court-ordered Pa.R.A.P. 1925(b) statement of errors complained of on

appeal. Metheny claims that the trial court abused its discretion in denying

his pre-sentence motion to withdraw his plea.

        We begin by noting that we review a trial court’s ruling on a pre-

sentence motion to withdraw a guilty plea for an abuse of discretion.

Commonwealth v. Islas, 156 A.3d 1185, 1187 (Pa. Super. 2017).

       Pre-sentence withdrawal of a guilty plea is governed by Pennsylvania

Rule of Criminal Procedure 591(A), which provides as follows:

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2  In Butler, this Court held that SORNA’s framework for designating a
convicted felon as an SVP violates the federal and state constitutions because
it increases the criminal penalty without the fact-finder making the necessary
factual findings beyond a reasonable doubt. Our Supreme Court has granted
allowance of appeal in that case. See Commonwealth v. Butler, 190 A.3d
581 (Pa. 2018) (Table).

3 Metheny’s post-sentence motion to modify his sentence was still pending
when he filed his notice of appeal. Under Pa.R.Crim.P. 720(A)(2), no direct
appeal may be taken by a defendant while his post-sentence motion is still
pending. See Pa.R.Crim.P. 720, comment. However, pursuant to Pa.R.A.P.
905, we will treat Metheny’s premature notice of appeal as having been filed
after entry of the order disposing of his post-sentence motion.        See
Commonwealth v. Ratushny, 17 A.3d 1269, 1271 (Pa. Super. 2011).


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      (A) 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). The official comment to Rule 591 provides that “[a]fter

the attorney for the Commonwealth has had an opportunity to respond, a

request to withdraw a plea made before sentencing should be liberally

allowed.” Id., Cmt.

      [I]n 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. If the trial court finds “any fair and just
      reason,” withdrawal of the plea before sentence should be freely
      permitted, unless the prosecution has been “substantially
      prejudiced.”

Commonwealth v. Forbes, 299 A.2d 268, 271 (Pa. 1973) (internal citations

and some internal quotations omitted).

      In Commonwealth v. Carrasquillo, 115 A.3d 1284 (Pa. 2015), our

Supreme Court provided additional guidance as to the proper exercise of a

court’s discretion in ruling on pre-sentence motions to withdraw a plea. While

reaffirming the “liberal allowance” standard, the Court acknowledged that its

previous application of that standard had “lent the [false] impression that

[the] Court had required acceptance of a bare assertion of innocence as a fair-

and-just-reason” for withdrawal and led to a “legitimate perception of a per

se rule” arising from the Court’s prior decisions. Id. at 1292. In an attempt

to clarify the standard, the Carrasquillo Court held that “a bare assertion of

innocence is not, in and of itself, a sufficient reason to require a court to grant”




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a pre-sentence motion to withdraw. Id. at 1285. Rather, the Court concluded

that

       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 remains
       extant but has its limits, consistent with the affordance of a degree
       of discretion to the common pleas courts.

Id. at 1292.     Thus, the Carrasquillo Court established that trial courts

possess discretion to assess the plausibility of a defendant’s claim of

innocence. In doing so, “both the timing and the nature of the innocence

claim, along with the relationship of that claim to the strength of the

government’s evidence, are relevant.” Islas, 156 A.3d at 1191.

       Consistent with the well-established standards governing trial
       court discretion, it is important that appellate courts honor trial
       courts’ discretion in these matters, as trial courts are in the unique
       position to assess the credibility of claims of innocence and
       measure, under the circumstances, whether defendants have
       made sincere and colorable claims that permitting withdrawal of
       their pleas would promote fairness and justice.

Commonwealth v. Norton, 201 A.3d 112, 121 (Pa. 2019).

       Here, while Metheny did not assert his innocence in his written motion,

he did so at the hearing. He testified that, at the time he agreed to enter a

plea, he was feeling “pressured with looking at all the years [he] would have

lost at trial. And the more [he] thought about it [he] would rather go down




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with taking it in front of a [j]ury and fight instead of admitting something [he]

didn’t do.” N.T. Motion to Withdraw Hearing, 3/20/19, at 2.

      The Victim’s mother also testified at the hearing. She stated that, while

her daughter was “extremely depressed,” isolated, and tearful prior to

Metheny’s plea, once he entered a plea, she began to “trust people a little

more and come out of her shell.” Id. at 7, 8. She further testified that, if her

daughter were required to testify at a trial, “it would put her into a deeper

depression” and she would “go back into isolation.” Id. at 9.

      The court denied Metheny’s motion. In doing so, it specifically found

that Metheny did not offer a fair and just reason for withdrawal of his plea.

“Rather, the only profession that he has made is that he is innocent and at

the time of his guilty plea he felt ‘pressured.’” Id. at 11. Citing Metheny’s

guilty plea colloquy statements that no one had used force, threats, or

promises to induce his plea, the court concluded that Metheny’s claim that he

felt pressure was not credible. See id. Thus, the court found Metheny’s bare

assertion of innocence insufficient under Carrasquillo. The court further held

that “resurrection of the case and the consequential re-opening of old wounds

of a healing child is prejudicial to the prosecution.” Id.

      Upon careful review of the record, we agree with the trial court’s

determination that Metheny offered nothing more than a bare assertion of

innocence in support of his request to withdraw his guilty plea and, further,

that his bare assertion of innocence did not constitute a fair and just reason




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for withdrawal under the totality of the circumstances. We find support for

this conclusion in our Supreme Court’s decision in Norton, supra.

      In Norton, the appellant sought to withdraw his plea of nolo contendere

to charges of indecent assault and corruption of minors, which he had entered

on the date scheduled for jury selection.     Four and one-half months later,

Norton filed a motion to withdraw his plea, asserting his innocence and

averring that he “could not live with himself for taking a plea under the

circumstances.” Norton, 201 A.3d at 115. Consistent with then-prevailing

case law, the court granted Norton’s motion. In its order, however, the court

noted that our Supreme Court had granted allowance of appeal in

Carrasquillo in order to clarify the standard for withdrawal a pre-sentence

guilty plea.    Six days later, the Court decided Carrasquillo and the

Commonwealth filed a timely motion for reconsideration, asserting that, under

the holding in Carrasquillo, Norton’s bare assertion of innocence was

insufficient to justify withdrawal. Rather, the Commonwealth argued, Norton’s

assertion of innocence was “implausible” and that “fairness and justice did not

require the court to allow” withdrawal. Id. at 117. Norton responded that he

had always maintained his innocence and, if permitted to withdraw his plea,

he intended to contest the charges by attacking the victim’s credibility at trial.

      The trial court granted the Commonwealth’s motion for reconsideration

and denied Norton’s motion to withdraw, finding that Norton had plenty of

time to consider and assert his innocence prior to entering his plea and had

ample time to “discover and inspect the Commonwealth’s evidence well prior

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to his plea.” Id. at 118. On appeal, this Court affirmed Norton’s judgment of

sentence, finding that the record supported the trial court’s determination

under Carrasquillo.

      The Supreme Court granted allowance of appeal to consider whether

Norton’s “assertion of innocence based on the sufficiency of the evidence and

his inability to reconcile entering a plea when he maintained his innocence

well before the time of his sentencing and when the Commonwealth made no

argument of prejudice” was a fair and just reason for withdrawal. Id. at 120.

After reviewing the holding in Carrasquillo, the Court concluded:

      Appellant asserted in the trial court that: (1) he is innocent; (2)
      he cannot live with himself for taking a plea; and (3) he wants to
      test the Commonwealth’s evidence at trial. Simply put, the last
      two assertions add nothing to the first. Appellant’s contention that
      he could not live with himself for entering his plea is self-serving
      makeweight and does not add any substantive support to the
      plausibility of his claim of innocence. Appellant’s desire to test the
      Commonwealth’s evidence at trial is equally non-substantive.
      Generally speaking, trials are always proceedings in which the
      parties test each other’s evidence, and Appellant’s belated wish
      for a trial fails to bolster his claim of innocence, particularly in light
      of the fact that any vulnerability in the Commonwealth’s evidence,
      specifically Victim’s testimony, was well known to Appellant prior
      to him entering his plea. In other words, for all intents and
      purposes, the reality is that Appellant solely asserted his
      innocence in an attempt to withdraw his plea presentence.

Id. at 121–22.

      In the matter sub judice, Metheny had ample time to consider and

evaluate the Commowealth’s evidence prior to agreeing to a plea three days

after a jury had been selected for his trial. In addition, the trial court found

that Metheny’s claim of having felt “pressure” to enter a plea lacked credibility

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in light of the statements he made during his guilty plea colloquy. The court’s

findings are supported in the record. As such, Metheny’s claim of pressure

lends no “substantive support to the plausibility of his claim of innocence.”

Id. at 121. Thus, as in Norton, Metheny is left with only a bare assertion of

innocence, which our Supreme Court has repeatedly stated is insufficient to

justify pre-trial withdrawal of a plea.   See Carrasquillo, supra; Norton,

supra.

      Moreover, Metheny did not raise any other facts or cite specific

circumstances that could have provided a basis for the court to find a sincere

or colorable claim of innocence. Metheny did not challenge sufficiency of the

Commonwealth’s evidence, cite his own good character, or suggest that the

Victim had any motive to fabricate her claims. See, e.g., Islas, 156 A.3d at

1191 (finding plausible assertion of innocence where defendant—who pled

guilty to indecently assaulting camper at camp where he worked as

counselor—testified that: “he did not engage in the charged conduct; he had

maintained his innocence when interviewed by law enforcement; had the

conduct occurred as alleged, it would have been witnessed by other[s] . . . ;

the victim had a motive to fabricate the charges; the victim had delayed

reporting . . . ; and [the defendant] was of good character, had no criminal

record, and had never received a similar complaint in the many years he had

been working in the field”).

      In sum, Carrasquillo established that a trial court acts within its

discretion in denying a pre-sentence motion to withdraw where an appellant

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presents nothing more than a bare assertion of innocence in support of his

request. Because Metheny’s motion was premised on just such an assertion,

the trial court did not abuse its discretion in denying him relief.

      Finally, we note that, as an “independent reason” for denying Metheny’s

motion, the trial court concluded that the Commonwealth would have been

substantially prejudiced by allowing Metheny to withdraw his plea. See Trial

Court Opinion, 9/6/19, at 6. Specifically, the court found that the Victim would

have been “further psychologically traumatized by the resurrection of the . . .

case after she was assured that the case had ended[.]” Id.

      [T]here exists little case law explaining what constitutes prejudice
      in the withdrawal of a guilty plea context[. However,] it would
      seem that prejudice would require 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. This follows from the fact that the consequence of
      granting the motion is to put the parties back in the pre-trial stage
      of proceedings. This further follows from the logical proposition
      that prejudice cannot be equated with the Commonwealth being
      made to do something it was already obligated to do prior to the
      entry of the plea.

Islas, 156 A.3d at 1192.

      This Court has previously held that the Commonwealth’s “humane

desire” to shield a Victim from further trauma potentially brought on by being

required to testify at trial “does not suffice as a matter of law to substantiate

a claim of substantial prejudice.” Commonwealth v. Carrasquillo, 78 A.3d

1120, 1129 (Pa. Super. 2013), rev'd on other grounds, 115 A.3d 1284 (2015).

Rather, “prejudice is about the Commonwealth’s ability to try its case, not



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about     the   personal   inconvenience      to    complainants[,]   unless   that

inconvenience     somehow      impairs   the       Commonwealth’s     prosecution.”

Commonwealth v. Gordy, 73 A.3d 620, 624 (Pa. Super. 2013). Here, the

Commonwealth presented no evidence that the Victim would have been

unwilling or unable to testify at trial, or that emotional trauma to the Victim

would otherwise have had an adverse impact on the ability of the

Commonwealth to prosecute its case.        Accordingly, the trial court erred in

finding substantial prejudice on that basis. Nonetheless, because we agree

with the trial court that Metheny’s bare assertion of innocence did not, under

the circumstances, constitute a fair and just reason to withdraw his plea, we

affirm the court’s decision.

        Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 02/11/2020




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