J-S04034-20 & J-S04035-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA           :    IN THE SUPERIOR COURT OF
                                        :         PENNSYLVANIA
                   Appellant            :
                                        :
                                        :
             v.                         :
                                        :
                                        :
 LUIS MEDINA                            :    No. 1574 EDA 2019

                Appeal from the Order Entered May 2, 2019
    In the Court of Common Pleas of Monroe County Criminal Division at
                      No(s): CP-45-CR-0000039-2016

 COMMONWEALTH OF PENNSYLVANIA           :    IN THE SUPERIOR COURT OF
                                        :         PENNSYLVANIA
                   Appellant            :
                                        :
                                        :
             v.                         :
                                        :
                                        :
 LUIS MEDINA                            :    No. 1575 EDA 2019

                Appeal from the Order Entered May 2, 2019
    In the Court of Common Pleas of Monroe County Criminal Division at
                      No(s): CP-45-CR-0000594-2016


BEFORE: BENDER, P.J.E., STABILE, J., and MURRAY, J.

MEMORANDUM BY MURRAY, J.:                         FILED MARCH 11, 2020

     The Commonwealth of Pennsylvania (Appellant) appeals from the order

permitting Luis Medina (Medina) to withdraw his guilty plea. We affirm.

     A panel of this Court recently explained:

          On May 25, 2016, [Medina] pleaded guilty to one count of
     robbery at docket number CP-45-CR-0000039-2016, and one
     count of receiving stolen property at docket number CP-45-CR-
     0000594-2016. N.T., 5/25/2016, at 12[; see also 18 Pa.C.S.A.
     §§ 3701(a)(1)(ii), 3925(a).]     [A]s part of [Medina’s] plea
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       agreement, [Appellant] informed the trial court that [Appellant]
       was in “agreement with a state intermediate punishment sentence
       in connection with these offenses.” [N.T., 5/25/2016, at 12.] As
       such, [Appellant] requested [that] the trial court, prior to
       sentencing, “remand [Medina] to a state correctional institution
       for an evaluation for the state intermediate [punishment] program
       [(S[]IP program)].” Id. [Medina’s] plea was accepted, and the
       trial court directed [that] [he] be committed to the Department of
       Corrections for a S[]IP program evaluation, noting [that]
       “[Appellant] has waived [Medina’s] ineligibility for the [SIP
       p]rogram based on the instant conviction and his prior criminal
       history.” Id. at 14-15. Sentencing was deferred pending the
       outcome of [Medina’s] evaluation.

              On February 8, 2018, prior to his sentencing hearing,
       [Medina] filed a motion to withdraw his guilty plea. Therein,
       [Medina] averred that, unbeknownst to him, his counsel, and the
       district attorney, charges were filed against [him] in Northampton
       County[1] and a detainer was placed on [him]. Motion to Withdraw
       Guilty Plea, 2/8/2018, at 1 (unnumbered). Because of this
       detainer, [Medina] was denied participation into the S[]IP
       program. Id. In [Medina’s] motion, defense counsel asserted
       that he would not have advised [Medina that] he was eligible for
       the S[]IP program had [counsel] been aware of the outstanding
       detainer[,] which “automatically disqualified” [Medina] from
       participating in the S[]IP program. Id. Based on the foregoing,
       [Medina] sought to withdraw his guilty plea “due to [his]
       unknowing and uncounseled plea. But for counsel’s presentation
       that [Medina] was eligible for the S[]IP Program, [he] would not
       have” pleaded guilty. Id. at 2. Upon receipt of the motion, the
       trial court scheduled a hearing. Order of Court, 2/13/2017.

             On March 6, 2016, the parties appeared for the hearing,
       which was short and consisted solely of arguments from
       [Medina’s] counsel and the [prosecutor], as well as a brief inquiry
       by the trial court. N.T., 3/6/2016, at 2-5. [Medina’s] counsel
       reiterated the same arguments set forth in [his] motion. Id. at 2
       ([where counsel stated that “b]ut for the [SIP program, Medina]
       would not have entered into that guilty plea; and without that still
____________________________________________


1We reference these charges as “the Northampton charges”; the Northampton
charges were subsequently dismissed due to a violation of Pa.R.Crim.P. 600
(prompt trial).

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        being on the table, I don’t believe that his plea would be knowing,
        intelligent and voluntary.”). In response, [Appellant] argued
        [that] the trial court should deny [Medina’s] motion because the
        language used during [his] plea colloquy made it clear that there
        was no guarantee that [Medina] would be accepted into the S[]IP
        program. Id. at 3 ([where the prosecutor stated that “l]ooking
        back at the plea colloquy, there is very clear language in here that
        says ‘if’ [Medina] is accepted into the S[]IP Program.”).
        Ultimately, the trial court denied [Medina’s] motion and proceeded
        directly to sentencing.

Commonwealth v. Medina, 209 A.3d 475 (Pa. Super. 2019) (unpublished

memorandum at **1-4) (footnote and emphasis added, footnotes in original

omitted).2

        On March 6, 2017, the trial court sentenced Medina to an aggregate 4

to 10 years in prison; he was not considered for the SIP program.              He

thereafter filed a motion to reconsider sentence, which the trial court denied.

        Following a procedural history that is not relevant here, Medina filed a

direct appeal in Medina I. The Medina I panel held that Medina was entitled

to an evidentiary hearing on the motion to withdraw his guilty plea, and thus

vacated the judgment of sentence and remanded the matter for the trial court

to conduct a hearing.            See Medina I, 209 A.3d 475 (unpublished

memorandum at **9-10); see also id. at *9 (suggesting that Medina may

have raised a just reason to be permitted to withdraw his plea).




____________________________________________


2   We refer to this decision as “Medina I.”



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        The trial court conducted a hearing on May 2, 2019.3 At the close of the

hearing, the trial court entered an order granting Medina’s motion to withdraw

his guilty plea.     Appellant then filed notices of appeal4 and court-ordered

concise statements of errors complained of on appeal, pursuant to

Pennsylvania Rule of Appellate Procedure 1925(b).

        Appellant presents a single issue for our review:           “Whether the

Sentencing Court erred in granting [Medina’s] motion to withdraw his guilty

plea once he was deemed ineligible for the [SIP] Program?” Brief for Appellant

at 4.

        We have stated the applicable law as follows:

              “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, 2017 PA Super 43, 156 A.3d 1185,
        1187 (Pa. Super. 2017) (citation omitted). Pennsylvania Rule of
        Criminal Procedure 591(A) provides that, “[a]t 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).



____________________________________________


3 At that time, Medina had served approximately 3½ years in prison for the
underlying convictions, toward his aggregate term of 4 to 10 years. The trial
court informed Medina of the possibility that if he elected to withdraw his plea
and proceed to trial, he could receive an increased aggregate sentence if
convicted. N.T., 5/2/19, at 24.

4 Appellant complied with the dictates of our Pennsylvania Supreme Court in
Commonwealth v. Walker, 185 A.3d 969, 971 (Pa. June 1, 2018) (holding
that, prospectively from the date of the Walker decision, “where a single
order resolves issues arising on more than one docket, separate notices of
appeal must be filed for each case.”).

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           “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. Kpou, 2016 PA Super 308, 153 A.3d 1020,
     1022 (Pa. Super. 2016) []. “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.”
     Commonwealth v. Elia, 2013 PA Super 323, 83 A.3d 254, 262
     (Pa. Super. 2013) []. Therefore, if the defendant provides a fair
     and just reason for wishing to withdraw his or her plea, the trial
     court should grant it unless it would substantially prejudice the
     Commonwealth. Commonwealth v. Carrasquillo, 631 Pa. 692,
     115 A.3d 1284, 1287 (Pa. 2015) (citation omitted).

Commonwealth v. Williams, 198 A.3d 1181, 1184 (Pa. Super. 2018) (some

parentheticals omitted); see also Commonwealth v. Blango, 150 A.3d 45,

51 (Pa. Super. 2016) (stating that “‘prejudice,’ in the withdrawal of a guilty

plea context, requires 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.”).

            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.

Elia, 83 A.3d at 262 (citations and quotation marks omitted).

     Here, Appellant argues:

     [Medina] did not immediately file a motion to withdraw his guilty
     [plea], but made several attempts to regain eligibility for the SIP
     program, and it was only after those attempts failed that he
     decided to withdraw his guilty plea. It is only the sentence that
     he disputes. Therefore, [his] guilty plea was knowingly and
     voluntarily made. If he would have been accepted into the SIP
     program, he would not have protested. [Medina] should not be

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      permitted to manipulate the sentencing process to obtain a more
      favorable sentence by now arguing that his guilty plea was not
      knowingly and voluntarily made.

Brief for Appellant at 14. Appellant further posits that “the future availability

of the SIP program would be placed into jeopardy by allowing defendants to

test their chances of getting into the program with the belief that they could

just withdraw their guilty [plea] if they are not successful in first getting into

the program.”    Id.   Finally, Appellant contends that the trial court’s ruling

caused Appellant substantial prejudice, asserting:

      [Medina’s] co-defendant [in one of the two cases] had agreed to
      testify against [Medina] at trial. Once [Medina] pled and was
      sentenced, the [court] proceeded to sentence his co-defendant.
      Had this case gone to trial, [it is likely the court] would never have
      proceed to sentence the co-defendant as that takes away any
      incentive for [the co-defendant] to testify against [Medina].

Id. at 14-15.

      Upon review, we find no abuse of discretion in the trial court’s

determination that Medina advanced a “fair and just reason” for withdrawal.

Prior to entering his plea, Medina was incorrectly advised by his counsel that

there were no impediments to his being evaluated and potentially accepted

into the SIP program. In actuality, due to the Northampton charges, Medina

was ineligible for SIP. Moreover, at the time of the plea, Appellant stated on

the record that it was waiving any ineligibility impediments that may have

precluded Medina from being accepted into SIP, such that Medina reasonably

believed and expected that he would receive SIP.




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      Finally, the panel in Medina I aptly cited two closely related cases that

support a determination that such circumstances constitute a fair and just

reason to permit Medina to withdraw his plea:

      Commonwealth v. Dicken, 2006 PA Super 51, 895 A.2d 50, 54
      (Pa. Super. 2006) (“Being advised that you are eligible for boot
      camp, when i[n] fact you are not, may be a fair and just reason
      for withdrawal of a plea.[”);] [s]ee [also] Commonwealth v.
      Hickman, 2002 PA Super 152, 799 A.2d 136[, 142] (Pa. Super.
      2002) (plea counsel’s erroneous advice about boot camp eligibility
      under negotiated sentence invalidated [a]ppellant’s guilty plea)[].

Medina I, 209 A.3d 475 (unpublished memorandum at *9).

      We further disagree with Appellant’s characterization that Medina was

“manipulat[ing]   the   sentencing   process   to   obtain   a   more   favorable

sentence[.]” Brief for Appellant at 14. Rather, Medina filed the motion to

withdraw his guilty plea, pointing out plea counsel’s erroneous advice, before

he was sentenced. Cf. Commonwealth v. Kelly, 5 A.3d 370, 377 (Pa. Super.

2010) (explaining that “[p]ost-sentence motions for withdrawal are subject to

higher scrutiny [than pre-sentence motions to withdraw] since courts strive

to discourage the entry of guilty pleas as sentencing-testing devices.” (citation

omitted)).

      Additionally, the trial court properly rejected Appellant’s contention that

permitting withdrawal of the plea caused Appellant substantial prejudice. In

this regard, we agree with and adopt the trial court’s rationale:

      Although Appellant contends that it is prejudiced because
      [Medina’s] codefendant in these cases has already entered a guilty
      plea and was sentenced, we cannot say that Appellant is
      substantially prejudiced. Appellant does not contend that the co-

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       defendant is unavailable to testify. Appellant simply stated that
       the co[-]defendant has no motivation to cooperate[,] since he
       entered his guilty plea and has been sentenced. We cannot say
       that a co-defendant’s possible lack of motivation to cooperate and
       testify at trial constituted substantial prejudice to [] Appellant. []
       Appellant may suffer[] some prejudice if the co-defendant is less
       than willing to cooperate and testify against [Medina;] however,
       we cannot say that this constitutes a substantial prejudice to []
       Appellant. Further, [Appellant] does not assert that the victim or
       any other witness is not available to testify at trial.

Trial Court Opinion, 6/12/19, at 4 (unnumbered).5 Any potential prejudice to

Appellant (1) does not rise to the level of “substantial” prejudice; and (2) is

outweighed by the “fairness and justice” to which Medina is entitled in

exercising his constitutionally-protected right to a jury trial.

       Accordingly, as we discern no abuse of the trial court’s exercise of its

broad discretion, we affirm the order granting Medina’s motion to withdraw

his guilty plea.

       Order affirmed.




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5   Moreover, contrary to Appellant’s assertion, our prior decision in
Commonwealth v. Davis, 191 A.3d 883 (Pa. Super. 2018), does not compel
a different determination as to prejudice, since the circumstances in Davis
differ from those in the instant case. See id. at 891 (holding that the
Commonwealth would suffer substantial prejudice if the defendant was
permitted to withdraw his guilty pleas where (1) the Commonwealth had
destroyed the narcotics upon which defendant’s convictions were based; and
(2) defendant’s co-defendant had already been sentenced and thus lacked
motivation to cooperate with the prosecution).

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/11/20




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