                            [J-36-2018] [MO: Baer, J.]
                   IN THE SUPREME COURT OF PENNSYLVANIA
                                MIDDLE DISTRICT


COMMONWEALTH OF PENNSYLVANIA,                  :   No. 53 MAP 2017
                                               :
                    Appellee                   :   Appeal from the Order of the Superior
                                               :   Court at No. 2359 EDA 2015 dated
                                               :   March 23, 2017 Affirming the
             v.                                :   Judgment of Sentence of the Court of
                                               :   Common Pleas Pike County, Criminal
                                               :   Division, at No. CP-52-CR-0000104-
MICHAEL NORTON,                                :   2013, dated August 7, 2015
                                               :
                    Appellant                  :   ARGUED: May 16, 2018


                                DISSENTING OPINION


JUSTICE DONOHUE                                         DECIDED: January 23, 2019


      In Commonwealth v. Carrasquillo, 115 A.3d 1284 (Pa. 2015), this Court held that

a defendant seeking to withdraw his guilty plea prior to sentencing, based on a claim of

innocence, must show that his claim of innocence is “at least plausible to demonstrate,

in and of itself, a fair and just reason” for withdrawal. Id. at 1292. To provide guidance

on this new standard, in the present case we granted allocatur to address:

             Whether a defendant’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 sentencing and when the Commonwealth made no
             argument of prejudice, is sufficient to establish a fair and just
             reason for withdrawing his plea of nolo contendere?

Commonwealth v. Norton, 170 A.3d 1059 (Pa. 2017) (per curiam).

      Although the Majority never squarely addresses the issue that we agreed to hear,

the Majority apparently has decided that it is not a fair and just reason to withdraw a
plea where the withdrawal is based on a factually supported argument that the

Commonwealth does not have sufficient evidence to convict. The Majority seems to

suggest that if the facts are discovered post-plea, a motion to withdraw may be viewed

more favorably. Majority Op. at 14. In so concluding, the Majority blesses the rationale

of the trial court, which denied Norton’s motion because his two “primary claims that he

was innocent and that he sought to challenge the Commonwealth’s evidence at trial,

were not novel to the post-plea proceedings of this case.” Majority Op. at 9 (citing Trial

Court Opinion, 11/17/2015, at 8).

       If the Majority’s opinion is interpreted to mean that sufficiency of the evidence

arguments will only be viewed as “at least plausible” if the facts giving rise to the

challenge post-date the entry of a plea, then the Majority has overruled Carrasquillo’s

continued embrace of the liberal grant of presentencing withdrawal motions, as few, if

any, defendants will be able to meet this standard. For the reasons discussed herein, it

is my view that this standard is antithetical to the guiding principle that motions to

withdraw should be liberally granted and to the rationale for liberality in this area, i.e., to

protect the right to trial by jury.1 Contrary to the Majority, I would hold that the trial court


1  In contrast to the liberal policy allowing plea withdrawal prior to sentencing, a far more
stringent “manifest injustice” standard applies to post-sentence motions to withdraw.
The rationale behind this distinction is a desire to discourage the use of plea
withdrawals as a device for sentence previewing. Whereas a presentence motion to
withdraw typically occurs before the defendant has an indication of how he will be
sentenced, that is not the case for a post-sentence motion which could therefore invite
abuse if granted liberally. Commonwealth v. Starr, 301 A.2d 592, 594 (Pa. 1973).
If the Majority Opinion is read to require post-plea evidence to support a pre-sentence
motion to withdraw, it functionally erases the distinction between the policy of liberality
intended for pre-sentence motions to withdraw and the higher level of scrutiny intended
for post-sentence motions, rendering the former as difficult to obtain as the latter.



                                [J-36-2018] [MO: Baer, J.] - 2
misapplied the law of liberality that governs pre-sentence motions to withdraw, and for

that reason, I believe reversal is required.

       If my reading of the Majority’s opinion gives credit to announcing this post-plea

evidence requirement as a standard to apply in deciding motions to withdraw pleas

when that was not intended, then I am equally concerned that the Majority is imbuing

trial courts with unfettered discretion in granting or denying motions to withdraw. As the

Majority correctly states, an abuse of discretion will not be found based, inter alia, on a

mere error of judgment, but rather exists where the trial court has reached a conclusion

which overrides or misapplies the law. Majority Op. at 8, 13.2 The purpose of our grant

of allowance of appeal in this case was to determine what is the substantive “law” to be

followed by trial courts in deciding whether a fair and just reason has been advanced to

support a motion to withdraw a guilty plea. For example, as articulated in our grant of

allowance of appeal, is it a fair and just reason to withdraw if it is plausibly argued that

the Commonwealth does not have sufficient evidence to convict?3 In my view, testing


2 The question of whether an abuse of discretion standard applies to our review of pre-
sentence motions to withdraw pleas is not before us. I agree with the Concurrence,
however, that there is a tension inherent in reviewing the trial court’s decision for abuse
of discretion. See Concurring Op. at 1-2. As discussed herein, motions to withdraw
guilty pleas prior to sentencing are to be liberally granted. By contrast, “when a trial
court comes to a conclusion through the exercise of its discretion, there is a heavy
burden [on the appellant] to show that this discretion has been abused.”
Commonwealth v. Eichinger, 915 A.2d 1122, 1139 (Pa. 2007) (citation omitted). Such a
high threshold strikes me as ill-fitted to enforcing a policy of liberality. However,
Pa.R.Crim.P. 591 recognizes that trial courts have discretion in deciding such motions.
3  An example from a well-travelled area of law is illustrative of the application of a legal
standard in the context of assessing whether a trial court abused its discretion. The
admission of evidence is solely within the discretion of the trial court, and a trial court’s
evidentiary rulings will be reversed on appeal only if the trial court abused its discretion.
In making an evidentiary ruling, however, a trial court’s discretion is cabined by the legal
test it is required to apply. See e.g., Commonwealth v. Woodard, 129 A.3d 480, 494
(continued…)

                               [J-36-2018] [MO: Baer, J.] - 3
the plausibility of a guilty plea withdrawal against the sufficiency of the Commonwealth’s

evidence is consistent with the policy of liberality re-announced in Carrasquillo and

embedded in our criminal justice system.

       The Majority’s opinion is so amorphous in its statement of the law that it can be

read to say that a trial court, having had the opportunity to observe the defendant, can,

in its discretion, convert any reason for withdrawal into a “bare assertion of innocence”

and deny the motion. If this is the “legal standard,” then no decision of a trial court can

ever be overruled because the “law” is whatever the trial court’s view of fairness and

justice is under the circumstances.        Such discretion is essentially unreviewable.

Unfortunately, other than blessing a trial court’s exercise of discretion, the Majority does

not articulate any standard against which these motions must be decided.

       Although the Majority purports to recognize that a trial court’s exercise of

discretion is cabined by the application of a substantive legal standard, see Majority Op.

at 15, n.7, its decision is untethered to any standard. For example, at no point does the

Majority reconcile the denial of the motion to withdraw with the level of liberality required

(…continued)
(Pa. 2015) (ruling on admissibility of photograph of homicide victim requires trial court to
examine whether photograph is inflammatory and, if not, whether it is relevant and can
assist the jury in understanding the facts of the case); see also, e.g. Pa.R.E. 403
(providing that “the court may exclude evidence if its probative value is outweighed by a
danger of one or more of the following: unfair prejudice, confusing the issues,
misleading the jury, undue delay, wasting time, or needlessly presenting cumulative
evidence”). The trial court, of course, exercises its discretion in applying these
substantive legal standards to a case, but discretion is not itself the governing legal
standard. See id.
In reviewing a trial court’s evidentiary ruling, the appellate court may disturb the order of
the trial court only where there has been an error or misapplication of law or a clear or
manifest abuse of discretion. Id. Plainly, this standard of review contemplates the
existence of substantive law which the trial court is required to apply.



                               [J-36-2018] [MO: Baer, J.] - 4
in deciding such motions. Further, if the Majority suggests that a “fair and just reason”

is the substantive legal standard, this suggestion ignores the fact that in Carrasquillo,

this Court began to craft the parameters for a cognizable claim of innocence as a “fair

and just reason” for withdrawal. Our grant of allowance in this case was intended to

further define the contours of a claim of innocence that is “at least plausible.”

       A bedrock principle of American criminal jurisprudence is that an accused is

presumed innocent under the law unless and until the government is able to prove his

guilt beyond a reasonable doubt. See In re Winship, 397 U.S. 358, 363-64 (1970).

Thus, when a defendant chooses to enter a guilty plea rather than proceed to trial, the

law seeks to ensure that he does so knowingly, intelligently and voluntarily, with the

fullest understanding that he is waiving this fundamental right, among many others.

See generally Santobello v. New York, 404 U.S. 257, 264 (1971) (Douglas, J.,

concurring) (describing a guilty plea as “a serious and sobering occasion inasmuch as it

constitutes a waiver of the fundamental rights to a jury trial, to confront one’s accusers,

to present witnesses in one’s defense, to remain silent, and to be convicted of proof

beyond all reasonable doubt”). A guilty plea is considered a defendant’s consent that

judgment of conviction may be entered without a trial. Commonwealth v. Starr, 301

A.2d at 594. Once the court accepts a plea, the defendant’s presumption of innocence

is forfeited and all that remains is the imposition of a sentence. See Commonwealth v.

Jones, 683 A.2d 1181, 1202-03 (Pa. 1996) (observing that the presumption of

innocence no longer applies during the penalty phase of a criminal proceeding).

       Nonetheless, even a defendant who knowingly and voluntarily swears that he is

guilty may seek to withdraw his plea and proceed to trial.          See Commonwealth v.




                               [J-36-2018] [MO: Baer, J.] - 5
Santos, 301 A.2d 829, 830 (Pa. 1973). Consistent with our jurisprudence, Rule 591 of

the Pennsylvania Rules of Criminal Procedure, relating to presentence plea

withdrawals, provides: “[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.” Id. Citing this Court’s decisions in Commonwealth v. Forbes, 299 A.2d 268 (Pa.

1973), and Commonwealth v. Randolph, 718 A.2d 1242 (Pa. 1998), the official

comment to Rule 591 notes that “after the Commonwealth has had an opportunity to

respond, a request to withdraw a plea made before sentencing should be liberally

allowed.” Pa. R. Crim. P. 591, Comment.

       In Forbes, we explained that “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.” Forbes, 299 A.2d at 271. A liberal rule

allowing withdrawal of a plea prior to sentencing helps to ensure that a defendant is not

denied the fundamental right to trial by jury unless he unequivocally relinquishes it. Id.

Accordingly, we indicated that “any fair and just reason” could serve as a basis for

granting a presentence withdrawal motion “unless the prosecution has been

substantially prejudiced.” Id. (citing ABA Standards Relating to Pleas of Guilty § 2.1(b)

(Approved Draft, 1968)). Based on the facts in Forbes, we held that a defendant’s post-

plea, pre-sentencing bare assertion of innocence – “I don’t want to plead guilty to

nothing I didn’t do” – constituted such a “fair and just reason” for withdrawal. Id. at 272.

       Carrasquillo modified Forbes. In Carrasquillo, we recognized that the “per se

approach” to innocence claims had become untenable, but expressly retained Forbes’




                               [J-36-2018] [MO: Baer, J.] - 6
“policy of liberality.”    Carrasquillo, 115 A.3d at 1292.      The Carrasquillo court’s

requirement of plausibility of the assertion of innocence must be given definition by

reference to the facts of the case because this Court did not otherwise shed light on the

concept of plausibility.     In Carrasquillo, the defendant was accused of sexually

assaulting two girls.      He made inculpatory statements at the time of arrest and

subsequently entered open guilty pleas after being informed of the constitutional rights

he would waive by so doing. Id. at 1285-86. At his plea colloquy, the Commonwealth

proffered a range of evidence against him, including his own statements, victim

identification testimony, video surveillance recordings of the defendant in the vicinity of

the victims, and DNA and fingerprint evidence linking him to the rape of one of the

victims. Id. at 1285.

       At his sentencing hearing several months later, the Commonwealth read into the

record a report prepared by the Sexual Offenders Assessment Board (“SOAB”)

characterizing the defendant as a sexually violent predator and a cruel assailant

motivated by rage and anger. Id. at 1286. Family members of one of the victims

testified to the trauma defendant had inflicted. Id. Following the presentation of this

testimony, the defendant sought to withdraw his guilty plea. Id. In furtherance of his

request, he made a series of outlandish remarks asserting, for example, that “the

Antichrist, he came out of me,” and that the CIA had victimized him by seeking to

employ him as an assassin.       Id. He insisted that he had been framed and that a

polygraph test would prove his innocence. The sentencing court denied his motion to

withdraw. Id. at 1287.




                               [J-36-2018] [MO: Baer, J.] - 7
       Citing Forbes, a divided en banc panel of the Superior Court reversed, finding

defendant’s claim of innocence controlling despite his “fantastical” assertions.

Carrasquillo, 78 A.3d at 1126. The Superior Court held that “our law does not (contrary

to the Commonwealth’s suggestion) require some quantum of ‘rational support’ as a

prerequisite for a plea withdrawal.” Id.

       On appeal, this Court reversed, deciding in essence that some quantum of

“rational support” is a prerequisite for a pre-sentence plea withdrawal. We clarified that,

broadly speaking, “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.” Carrasquillo, 115 A.3d at 1292. Specifically, when a defendant asserts his

innocence as a basis for withdrawing his guilty plea, as in Carrasquillo, his “innocence

claim must be at least plausible to demonstrate, in and of itself, a fair and just reason for

presentence withdrawal of a plea.” Id. Finally, we explained that “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.

       Applying this standard to the unique facts in Carrasquillo, we held that the

“bizarre statements” that accompanied Carrasquillo’s assertion of innocence “wholly

undermined its plausibility,” particularly because the Commonwealth’s evidentiary

proffer at the plea hearing was strong. Id. at 1293. We also observed that Carrasquillo

had waited until his sentencing hearing to seek withdrawal. Id. at 1292-93. This delay,

and the concomitant failure to advance a written motion to withdraw while the record

was still open, weighed against granting his request. Id.




                               [J-36-2018] [MO: Baer, J.] - 8
       We decided Hvizda as a companion case to Carrasquillo.               In Hvizda, the

defendant pled guilty to first-degree murder and possession of an instrument of crime

after surrendering himself to police and confessing to the stabbing of his estranged wife

immediately following the incident in question. Commonwealth v. Hvizda, 116 A.3d

1103, 1104 (Pa. 2015). Two months later, at his sentencing hearing, he told the court:

“I’m here to maintain my innocence in the charge of murder in the first degree.” Id. His

counsel explained that his client’s “fair and just reason” in support of his motion to

withdraw his plea was “that he maintains his innocence” as to the charges. Id. At a

hearing on the motion, the Commonwealth presented a tape recording of the

defendant’s telephone conversations from prison during which he again confessed to

the crime but stated that he wished to go to trial to “get some of the story out.” Id. The

trial court denied the motion, calling his “bald assertion of innocence … at best

pretextual and an attempt to manipulate the system.” Id. at 1105. The Superior Court

reversed and the Commonwealth appealed.            Citing our holding in Carrasquillo, we

reiterated that Hvizda’s “bare assertion of innocence … is not, in and of itself a sufficient

reason to require a court to grant” a withdrawal request. Id. at 1107.

       Carrasquillo and Hvizda informed us that a “claim of innocence,” standing alone,

is not sufficient to satisfy the Forbes’ “fair and just reason” basis for withdrawal.4

Instead, the defendant must show that his claim of innocence is “at least plausible” by


4  Pursuant to Rule 591 and Forbes, it remains true that “any fair and just reason” may
provide the basis for withdrawal, so long as the Commonwealth would not be
substantially prejudiced. See Forbes, 299 A.2d at 271 (emphasis added). Withdrawing
a plea does not require an assertion of innocence, per se. Carrasquillo merely provides
that when an assertion of innocence is the accused’s rationale for wanting to withdraw
his plea, he must make a colorable demonstration as to the plausibility of that assertion.



                               [J-36-2018] [MO: Baer, J.] - 9
making a “colorable demonstration” that granting his motion “would promote fairness

and justice.” Carrasquillo, 115 A.3d at 1292. Neither outlandish statements unrelated

to the crime nor an unsupported claim about the potential outcome of polygraph testing

will convert a bare assertion of innocence into an assertion of innocence that is “at least

plausible.” See id. Given their unique facts, however, neither Carrasquillo nor Hvizda,

provided guidance regarding what sort of demonstration is necessary and sufficient to

show plausibility and, as stated, this Court did not further explain the standard.

However, it is clear that in both cases, the Commonwealth’s evidence to convict was

strong and neither defendant had articulated a legally cognizable defense. Indeed, the

claims of innocence in both cases were implausible.

       When a defendant seeks to withdraw a guilty (or nolo contendere) plea, he is

asking the court to reinstate his trial rights and to cloak him, again, with the presumption

of innocence. We have for decades recognized that motions to withdraw a plea should

be liberally granted so that a citizen’s right to trial by jury is promoted, a principle that we

reaffirmed in Carrasquillo. Id. In my view, if a defendant presents a defense strategy

which, when weighed against the strength of the Commonwealth’s evidence, could

plausibly lead a jury to conclude that the Commonwealth has failed to prove guilt

beyond a reasonable doubt, a fair and just reason exists to permit the withdrawal of a

guilty plea.5



5 Independent of any claim of innocence, the trial court may also consider the timing of
defendant’s motion to withdraw. Certainly, even under Forbes and its progeny, where a
bare assertion of innocence established a fair and just reason for withdrawal, evidence
that the timing of the motion to withdraw established a defendant’s attempt to
manipulate the criminal justice system could nonetheless result in the denial of the
motion to withdraw. Additionally, trial courts must consider whether granting the motion
(continued…)

                               [J-36-2018] [MO: Baer, J.] - 10
       Applying this test to the facts of the case before us, in my view Norton’s assertion

of innocence is “at least plausible.”     Although Norton sought to withdraw his plea

because he “cannot not live with himself taking a plea [of nolo contendere] to charges

that he is innocent of,” his innocence claim is not bare. To the contrary, if permitted to

go to trial, Norton (through counsel) indicated that he would attempt to sow doubt as to

the sufficiency of the Commonwealth’s evidence against him by challenging the strength

of the victim’s testimony. Specifically, he highlighted the extent to which her testimony

at the preliminary hearing was riddled with “I don’t remember” responses to questions

about the alleged incidents.6 Norton also previewed that he would again challenge the

admission of “prior bad acts” evidence, including testimony from his daughter that he

abused her many years prior to the charge at issue as well as evidence that he

confessed to that prior abuse.7



(…continued)
to withdraw would substantially prejudice the Commonwealth if the Commonwealth so
claims.
6  Norton was charged with five counts of indecent assault and one count of corruption
of a minor. The criminal complaint alleged that he sexually abused his paramour’s
minor granddaughter beginning when she was three or four years old. At a preliminary
hearing on February 27, 2013, the alleged victim testified that the abuse occurred
between September 2008 and April 2012. Specifically, she stated that the abuse
occurred more than one time and “a lot” but she could not remember whether it
occurred more than two times. In light of this testimony, the magisterial district judge
dismissed three counts of indecent assault, but held over the remaining charges.
7   In his motion in limine, Norton argued that the alleged prior incidents occurred
approximately eighteen years before the incidents alleged in the instant matter, making
the former far too remote in time to be admissible pursuant to Pennsylvania Rule of
Evidence 404(b). See Defendant’s Brief in Support of Omnibus Pretrial Motion,
11/5/2013, at 2-3 (citing cases for the proposition that evidence of an independent crime
is only admissible if it allegedly occurred “at or about the same time of the criminal act in
question” and “not far apart in time” from charged incident). He further argued that the
remoteness in time of the 404(b) evidence weighed most heavily against admission
(continued…)

                              [J-36-2018] [MO: Baer, J.] - 11
      It is conceivable that the defense strategy Norton set forth during his withdrawal

hearing could ultimately lead to his acquittal. The Rule 404(b) evidence was significant

to the Commonwealth’s case. A successful challenge to the ruling on its admissibility

reduces the Commonwealth’s case against Norton to the victim’s testimony based on a

demonstrably poor memory. Even the Commonwealth concedes that challenging the

victim’s ability to testify was a “readily apparent” defense and suggests that it would be

an even stronger one if Norton succeeded in excluding the 404(b) testimony. 8 See

Commonwealth’s Brief at 11. The fact that Norton was aware of this information prior to


(…continued)
when, as here, there were significant differences between the prior act and the charged
act. Id. at 2-4 (setting forth the various distinctions between the two alleged incidents
and urging that the absence of “striking similarities between the cases” makes the
404(b) testimony inadmissible).
In apparent agreement with my proposed approach, the Concurrence engages in an
assessment of the strength of the Commonwealth’s evidence but joins the Majority
nonetheless, in part because it views the Commonwealth’s evidence against Norton as
strong (even, I gather, when weighed against Norton’s proffered defense strategy). See
Concurring Op. at 1-2. In this regard, the Concurrence suggests that the evidence that
Norton confessed to abusing his own daughter many years prior to the alleged abuse in
the instant matter is particularly weighty. See id. at 2. As noted, Norton’s proffered
defense strategy involves a continued challenge to the admission of prior bad act
evidence, which includes his confession. In light of the foregoing discussion about the
law governing admissibility under Rule 404(b), as well as the policy of liberality
governing motions to withdraw, I do not agree with the Concurrence that the
Commonwealth’s evidence is strong when weighed against Norton’s proposed defense
strategy. It also bears noting that the Commonwealth argued in its brief opposing
Norton’s motion in limine that it would seek to introduce the confession “depending on
the nature of the defense and whether Norton testifies.” Commonwealth’s Opposition
Brief at 3. Furthermore, the trial court reasoned, anomalously, that because the
Commonwealth had no evidence other than the uncorroborated testimony of the victim,
it would allow the introduction of prior bad acts. Order, 12/4/2013, at 6.
8  Norton signaled that his defense strategy at trial would also involve contesting a
statement in the affidavit of probable cause, attributed to the victim, that Norton’s pubic
hair was black. See Norton’s Brief at 23. Notably, with or without this particular point,
Norton’s proffered defense strategy is plausible.



                             [J-36-2018] [MO: Baer, J.] - 12
his plea should be of no consequence if the goal is to protect a defendant’s right to trial

by jury advanced by liberal grants of motions to withdraw.

      The plausibility of Norton’s claim of innocence stands in stark contrast to the

implausible claims made by the defendants in Carrasquillo and Hvizda.              Neither

Carrasquillo nor Hvizda proffered a defense strategy when making their claims of

innocence.    In addition, the Commonwealth’s evidence against each of these

defendants was multi-faceted and substantial. See Carrasquillo, 115 A.3d at 1292-97;

Hvizda, 116 A.3d at 1104-07. Finally, Norton did not wait until his sentencing hearing to

seek withdrawal of his plea. His motion to withdraw was filed six weeks prior to his

scheduled sentencing hearing and only four months after entering his plea. 9 Moreover,

he filed a proper motion to withdraw in which he asserted his innocence and, on the

record, made a colorable demonstration that his claim was plausible. In contrast to

those made in Carrasquillo and Hvizda, neither the content of Norton’s motion nor its

timing reflects any effort to delay or manipulate the system.10 No bright line rules should



9  In addition, on April 5, 2015, four weeks prior to the scheduled sentencing hearing,
Norton refused to participate in an interview by the SOAB, again maintaining his
innocence. Hearing, 6/25/2015, at 7. The Majority observes that the trial court relied
upon Norton’s acknowledgement to the SOAB that Pennsylvania law required him to
register as a sex offender. Majority Op. at 7 (discussing Trial Court Opinion, 11/17/2015,
at 3). Neither the Majority nor the trial court, however, has explained how this point in
any way supports the denial of Norton’s motion to withdraw his plea, since it constituted
nothing more than a recognition of current Pennsylvania law, and the record here
clearly reflects that the extent of Norton’s participation in the SOAB proceedings was to
refuse to participate in the interview – with no acknowledgement of any guilt for the
remaining criminal charges against him.             Hearing, 6/25/2015, at 4, 7.      The
Commonwealth has not suggested to the contrary.
10  As to a different timing issue, the Majority blesses the trial court’s reference to the
fact that Norton entered into the plea shortly before jury selection. Majority Op. at 14.
Given that an offer of a plea is not within the control of the defendant and this record is
(continued…)

                             [J-36-2018] [MO: Baer, J.] - 13
be drawn regarding the point at which a motion to withdraw will be considered

manipulative, especially because Rule 591 plainly gives the trial court discretion to grant

these motions at any point before the imposition of a sentence.

       In sum, in light of our announced continued adherence to the policy of liberally

granting motions to withdraw guilty/nolo contendere pleas, I would conclude that Norton

established a fair and just reason for allowing the withdrawal of his plea. Norton’s claim

of innocence was supported by a defense strategy which, when weighed against the

Commonwealth’s evidence, could plausibly result in Norton’s acquittal at trial. As such,

I would reverse the decision of the trial court.

       For the foregoing reasons, I respectfully dissent.

       Justice Wecht joins this dissenting opinion.




(…continued)
devoid of any evidence as to when the plea offer was made, any reliance on this factor
should be totally discounted.



                              [J-36-2018] [MO: Baer, J.] - 14
