J-S16012-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                          Appellee

                     v.

ROGER E. VALDEZ

                          Appellant                   No. 1339 MDA 2014


            Appeal from the Judgment of Sentence July 30, 2014
             In the Court of Common Pleas of Lebanon County
            Criminal Division at No(s): CP-38-CR-0001053-2013


BEFORE: PANELLA, J., OLSON, J., and OTT, J.

MEMORANDUM BY PANELLA, J.                              FILED JUNE 01, 2015

       Appellant, Roger E. Valdez, appeals from the judgment of sentence

following his conviction of rape of a child and related charges, entered on

July 30, 2014, in the Court of Common Pleas of Lebanon County. No relief is

due.

       We write primarily for the parties’ benefit and recite only the facts and

procedural history essential to our disposition. Valdez was charged with one

count of rape of a child, three counts of involuntary deviate sexual

intercourse with a child, one count of unlawful contact with a minor, one

count of aggravated indecent assault, one count of indecent assault, and one
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count of corruption of minors.1 The charges stem from an incident in which

Valdez, who at the time of the offenses was 37 years old, posed as a 17-

year-old in an online chat forum and lured a 12-year-old victim into

engaging in sexual intercourse. The matter was scheduled for trial on March

4 and 5, 2014. Immediately prior to trial, on March 3, 2014, Valdez entered

an open guilty plea to all charges.            Valdez then filled out and signed a

written guilty plea colloquy, after which the trial court engaged in a lengthy

oral colloquy. See N.T., Guilty Plea Hearing, 3/3/15.

       Prior to sentencing, Valdez filed a Motion to Withdraw Guilty Plea,2

which the trial court denied. At sentencing on July 30, 2014, Valdez again

reiterated his request to withdraw his plea.            Valdez did not assert his

innocence, but rather repeatedly maintained that the 12-year-old-victim

“went after me and preyed on me,” and that “what she has done is wrong …

and that the fact [is] that she has been doing this to several other men….”

N.T., Sentencing, 7/30/14 at 24 (emphasis added). The trial court denied

Valdez’s request and sentenced him to an aggregate term of 10 to 30 years’

incarceration. This timely appeal followed.



____________________________________________


1
  18 Pa.C.S.A. § 3121(c); 18 Pa.C.S.A. § 3123(b); 18 Pa.C.S.A. §
6318(a)(1); 18 Pa.C.S.A. § 3125(a)(7); 18 Pa.C.S.A. § 3126(a)(7); and 18
Pa.C.S.A. § 6301(a)(1)(i).
2
  Valdez did not state in his motion a specific reason to support his request
to withdraw his plea.



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       On appeal, Valdez claims that the lower court abused its discretion by

denying his presentence motion to withdraw his guilty plea. He maintains

that the court insufficiently established the nature of the offenses charged

and the factual basis to establish such charges during the guilty plea

colloquy in violation of Pennsylvania Rule of Criminal Procedure 590.3 See

Appellant’s Brief at 11.

              The standard of review that we employ in challenges to a
       trial court’s decision regarding a presentence 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.” Commonwealth v. Pardo, 35 A.3d 1222,
       1227 (Pa. Super.2011) (quoting Commonwealth v. Prysock,
       972 A.2d 539, 541 (Pa. Super.2009); citing Commonwealth v.
       Anthony, 504 Pa. 551, 475 A.2d 1303, 1308 (1984)). 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.
       Pa.R.Crim.P. 591(A). “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.” Commonwealth v. Forbes, 450 Pa. 185,
       299 A.2d 268, 271 (1973). The policy underlying this liberal
____________________________________________


3
  The Commonwealth maintains that Valdez has not preserved this issue for
our review. In his Rule 1925(b) Concise Statement of Errors Complained of
on Appeal, Valdez alleged only that his “plea was not knowingly,
intelligently, and voluntarily entered.” Statement of Errors Complained of on
Appeal, 8/27/14. The Commonwealth argues that this general statement did
not adequately preserve the more specific issue now raised on appeal, that
the trial court insufficiently established the factual predicate for the offenses
charged.      However, as we find that this issue does implicate the
voluntariness of Valdez’s guilty plea, we decline to find this claim to be
waived.



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        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.’ ” Commonwealth v. Santos, 450 Pa. 492, 301
        A.2d 829, 830 (1973) (quoting Commonwealth v. Neely, 449
        Pa. 3, 295 A.2d 75, 76 (1972)). In Forbes, our Supreme Court
        instructed that, “in determining whether to grant a presentence
        motion for withdrawal of a guilty plea, ‘the test to be applied by
        the trial courts is fairness and justice.’ ” Forbes, 299 A.2d at
        271 (quoting United States v. Stayton, 408 F.2d 559, 561 (3d
        Cir.1969)).

Commonwealth v. Elia, 83 A.2d 254, 261-262 (Pa. Super. 2013), appeal

denied, 94 A.3d 1007 (Pa. 2014).

        “It is well-settled that an assertion of innocence may constitute a fair

and just reason for the pre-sentence withdrawal of a guilty plea.” Id. at 263

(citations omitted).    Herein, as previously noted, Valdez did not assert his

innocence at the plea withdrawal hearing. To the contrary, Valdez instead

repeatedly placed the blame for his crimes on the 12-year-old victim.        He

now argues that his plea was involuntary because “the [c]ourt failed to

properly explain the nature of the charges….” Appellant’s Brief at 11.

        In assessing the voluntariness of a plea, we note that “[t]he law does

not require that appellant be pleased with the outcome of his decision to

enter a plea of guilty: All that is required is that [appellant’s] decision to

plead     guilty   be   knowingly,    voluntarily   and   intelligently   made.”

Commonwealth v. Yager, 685 A.2d 1000, 1004 (Pa. Super. 1996) (en

banc) (citation and internal quotation marks omitted).



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     Once a defendant has entered a plea of guilty, it is presumed
     that he was aware of what he was doing, and the burden of
     proving involuntariness is upon him.       Therefore, where the
     record clearly demonstrates that a guilty plea colloquy was
     conducted, during which it became evident that the defendant
     understood the nature of the charges against him, the
     voluntariness of the plea is established. … Determining whether
     a defendant understood the connotations of his plea and its
     consequences requires an examination of the totality of the
     circumstances surrounding the plea.

            [I]n order to determine the voluntariness of the plea and
     whether the defendant acted knowingly and intelligently, the
     trial court must, at a minimum, inquire into the following six
     areas:

     (1) Does the defendant understand the nature of the charges to
     which he is pleading guilty?

     (2) Is there a factual basis for the plea?

     (3) Does the defendant understand that he has a right to trial by
     jury?

     (4) Does the defendant understand that he is presumed innocent
     until he is found guilty?

     (5) Is the defendant aware of the permissible ranges of
     sentences and/or fines for the offenses charged?

     (6) Is the defendant aware that the judge is not bound by the
     terms of any plea agreement tendered unless the judge accepts
     such agreement?

Commonwealth v. McCauley, 797 A.2d 920, 922 (Pa. Super. 2001)

(citation omitted). This examination may be conducted by defense counsel

or the attorney for the Commonwealth, as permitted by the judge.           See

Pa.R.Crim.P. 590, Comment.

     The record belies Valdez’s assertion that the trial court failed to explain

the nature of the charges or establish the factual basis for the plea. At the



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outset of the guilty plea hearing, the trial court explained the charges to

which Valdez was pleading guilty as follows.

            On or about April 23 through April 28, 2013, at 500 East
      Main Street in the Borough of Palmyra, Lebanon County, Count
      I, Rape of a Child, in that you did engage in sexual intercourse
      with the victim … when the child was less than 13 years of age;
      Count II, Involuntary Deviate Sexual Intercourse, in that you did
      engage in anal intercourse with this young lady; Count III,
      Involuntary Deviate Sexual Intercourse of the Child, in that you
      did perform oral intercourse on [the victim]; Count IV,
      Involuntary Sexual Intercourse with a Child, in that you did
      cause [the victim] to perform oral sexual intercourse upon you;
      Count V, Unlawful Contact or Communication with a Minor, in
      that you did communicate with [the victim] for the purpose of
      engaging in sexual relations with [the victim], or did engage in
      sexual intercourse with [the victim]; Count VI, Aggravated
      Indecent Assault, in that you did digitally penetrate the vagina of
      [the victim]; Count VII, Indecent Assault, in that you did touch
      [the victim’s] vagina, buttocks, breast and/or kissed her; and
      Count VIII, Corruption of a Minor, in that you, being 20 years of
      age or older, did engage in sexual contact with – and her being
      less than 18 years of age, rather, and you being I believe you
      said 26 [sic] at the time these matters occurred, did engage in
      sexual contact and/or communication with [the victim].

N.T., Plea Hearing, 3/3/14 at 3-4.     When the trial court later specifically

asked whether Valdez had vaginal sexual intercourse with the victim, he

admitted, “[y]es, sir.” Id. at 6-7. Valdez additionally acknowledged that he

“accept[ed] all of those charges, sir.” Id. at 7.

      Considering the trial court’s detailed explanation of the factual

surrounding the charges, as well as Valdez’s own admission and acceptance

of the charges as stated, we are more than satisfied that Valdez was

adequately apprised of the nature of the charges and the factual basis for

the plea. Our decision is further reinforced by the fact that in response to


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question 11 on the written guilty plea colloquy form, which asked “Do you

admit to committing the crime or crimes to which you are pleading guilty

and did your criminal conduct fit the legal elements explained to you which

make up the crime or crimes,” Valdez answered in the affirmative.

“Appellant is bound by these statements, which he made in open court while

under oath, and he may not now asserts grounds for withdrawing the plea

which contradict the statements.” Commonwealth v. Willis, 68 A.3d 997,

1009 (Pa. Super. 2013) (citing Commonwealth v. Turetsky, 925 A.2d 876

(Pa. Super. 2007)).

      In light of the foregoing, we find no evidence to suggest that Valdez’s

plea was involuntarily entered. It therefore follows that Valdez has failed to

establish a “fair and just reason” for the presentence withdrawal of his plea.

Accordingly, we find no basis to conclude that the trial court abused its

discretion in denying Valdez’s motion to withdraw his guilty plea.

      Judgment of sentence affirmed.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/1/2015



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