J-S48021-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    HECTOR CASTILLO                            :
                                               :
                       Appellant               :   No. 121 EDA 2018

             Appeal from the Judgment of Sentence October 4, 2017
      In the Court of Common Pleas of Monroe County Criminal Division at
                        No(s): CP-45-CR-0001704-2015


BEFORE:      DUBOW, J., MURRAY, J., and PLATT*, J.

MEMORANDUM BY MURRAY, J.:                          FILED SEPTEMBER 12, 2018

        Hector Castillo (Appellant) appeals from the judgment of sentence

imposed after he pled guilty to aggravated assault.1 Appellant challenges the

trial court’s denial of his pre-sentence motion to withdraw his guilty plea.

Upon review, we affirm.

        The Commonwealth charged Appellant with attempted homicide,

aggravated assault, and related offenses. The case proceeded toward trial,

and a jury was empaneled on July 6, 2017. However, Appellant expressed a

desire to plead guilty, and on the following day, he entered a guilty plea to

aggravated assault. During the oral plea colloquy, Appellant stated that he

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* Retired Senior Judge assigned to the Superior Court.

1   18 Pa.C.S.A. § 2701(a)(1).
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was satisfied with his appointed counsel, that he understood the proceedings,

and that although he was taking the medications Topamax and Celexa, he was

not impaired or under the influence of any drugs, alcohol, or other

medications. N.T. Guilty Plea, 7/7/17, at 2-4. Appellant completed and signed

a written plea colloquy, which also stated that he was not under the influence

of any drugs or alcohol.

        On September 26, 2017, Appellant filed a motion requesting new

counsel, in which he stated that he wished to withdraw his guilty plea due to

“both the breakdown of the Attorney/Client relationship as well as the

assertion that [Appellant] did not make a knowing, intelligent and voluntary

plea and wished to assert his innocence.” Appellant’s Pre-Sentence Motion,

9/26/17, at 1-2. The trial court held a hearing, and Appellant testified that

on the day of the plea, he was not aware of his rights and was not “conscious”

because he was intoxicated and on medication. N.T. Sentencing, 10/4/17, at

11, 13. Appellant explained that on the night before the plea, he had one

glass of wine and did not sleep, and that due to gastric bypass surgery four

years earlier, he was “more vulnerable to intoxication [because alcohol] goes

straight to [his] bloodstream, not [his] stomach.” Id. at 11-12. Appellant

also testified that his counsel did not explain his rights or options prior to the

plea.   Id. at 13.   Thereafter, the trial court denied Appellant’s request to

withdraw his guilty plea, stating that it had an opportunity to observe

Appellant during the plea hearing, and credited his plea testimony that he was


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not under the influence of drugs or alcohol. Id. at 26. The court also denied

Appellant’s request to have new counsel appointed, and proceeded to

sentencing. The court sentenced Appellant to 3 to 6 years’ imprisonment, at

the lower end of the standard-guideline range, so that Appellant would be

eligible for a boot camp program. Id. at 51-52.

       Appellant filed a timely post-sentence motion in which he requested: (1)

reconsideration of the denial of his pre-sentence request to withdraw his plea;

(2) a reduced sentence; and (3) again, new counsel. The Commonwealth also

filed a motion for reconsideration of sentence, arguing that Appellant’s mental

health issues would likely disqualify him from boot camp, and the court should

resentence Appellant to a longer term of incarceration.2            The trial court

conducted a hearing on November 27, 2017. It denied Appellant’s motion but

granted the Commonwealth’s motion, withdrawing its recommendation that

Appellant be permitted to participate in boot camp and resentencing him to 3

years and 8 months to 10 years of imprisonment.

       Thereafter,    Appellant     obtained     new   counsel,   who   entered   his

appearance and filed a timely notice of appeal on Appellant’s behalf. The trial

court ordered Appellant to comply with Pa.R.A.P. 1925(b), and Appellant filed

a concise statement on January 3, 2018, averring that the trial court: (1)


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2 Appellant refused to participate in the pre-sentence investigation and
therefore the report did not include details about his mental health issues.
N.T. Post-Sentence Motion, 11/27/17, at 31; N.T. Sentencing, 10/4/17, at 47.


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abused its “discretion in sentencing Appellant when he had filed a timely

Motion to Withdraw his guilty plea”; and (2) “erred in precluding Appellant’s

[trial] counsel from withdrawing his appearance.”       Appellant’s Preliminary

Concise Statement of Matters Complained of on Appeal, 1/3/18, at 2. In this

first statement, Appellant requested an extension of time to file a second

statement once he received requested transcripts. The trial court granted the

request, and on February 5, 2018, Appellant filed a second statement in which

he reiterated the issues from his first statement and added claims regarding

his sentence.3

        On appeal, Appellant presents a single issue for our review:4

        SHOULD A PRE-SENTENCE REQUEST TO WITHDRAW A GUILTY
        PLEA BE ALLOWED WHERE [APPELLANT] ASSERTS THAT HE DID
        NOT ENTER A KNOWING VOLUNTARY PLEA AND ASSERTS HIS
        INNOCENCE, AND THE PROSECUTION DEMONSTRATES NO
        PREJUDICE?

Appellant’s Brief at 14.

        Appellant argues that pre-sentence requests to withdraw guilty pleas

should be liberally allowed, and that a defendant’s assertion of innocence is a



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3 Appellant averred that the trial court improperly increased his original
sentence of 3 to 6 years of imprisonment; erred in re-sentencing him “to a
higher standard range” sentence where there were no new aggravating factors
that were not presented at the first sentencing hearing; failed to consider
mitigating factors; and did not place sufficient reasons on the record to justify
the longer sentence. Appellant’s Concise Statement of Matters Complained of
on Appeal, 2/5/18, at 2-3.

4   The Commonwealth has not filed a reply brief.

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fair and just reason to withdraw a plea.       In support, Appellant generally

maintains, without further explanation or citation to the record, that he

presented “testimony of innocence.” Appellant’s Brief at 22, 29. Appellant

asserts that he was confused and did not understand the plea proceedings,

and that he “clearly was very hesitant in his answers, although it does not

clearly reflect that in the transcript.” Id. at 21, 23. He also observes that

during the oral plea colloquy, it “appear[ed] that the [the trial c]ourt indicated

. . . that it was in agreement . . . that [Appellant] would be deemed to be boot

camp eligible,” but the court subsequently found that he would likely not be

eligible for boot camp.   Id. at 27.    Finally, Appellant claims that when he

sought to withdraw his plea, “there was no prejudice of record to the

Commonwealth.” Id. at 30.

      Preliminarily, we note that Appellant failed to include the issue

concerning the validity of his guilty plea in either of his Rule 1925(b)

statements. Ordinarily, “[i]ssues not included in the Statement and/or not

raised in accordance with the provisions of this paragraph (b)(4) are waived.”

Pa.R.A.P. 1925(b)(4)(vii); see also Commonwealth v. Castillo, 888 A.2d

775, 780 (Pa. 2005) (“Any issues not raised in a Pa.R.A.P.1925(b) statement

will be deemed waived.).”     However, in Commonwealth v. Rosado, 150

A.3d 425 (Pa. 2016), the Pennsylvania Supreme Court considered an appeal

in which the defendant’s attorney “completely abandoned” all the claims that

were raised in the court-ordered Rule 1925(b) statement and instead raised,


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in the appellate brief, an unpreserved issue that resulted in the “complete

waiver of all merits review.” Id. at 434. The Supreme Court held “that the

filing of an appellate brief which abandons all preserved issues in favor of

unpreserved ones constitutes ineffective assistance of counsel per se.” Id. at

440.

       Here, Appellant’s counsel, like the attorney in Rosado, has abandoned

all of the issues raised in the Rule 1925(b) statements in favor of a single

issue – the validity of Appellant’s guilty plea – that was not preserved in either

statement. Consistent with Rosado, we decline to conclude that Appellant’s

guilty plea issue is waived, as the conduct is per se ineffectiveness.       See

Commonwealth v. Thompson, 39 A.3d 335, 340 n.11 (Pa. Super. 2012)

(under Rule 1925(c)(3), the remedy for per se ineffectiveness in criminal

cases is no longer collateral relief, but to remand to the trial court, either for

the filing of a Rule 1925(b) statement nunc pro tunc or the filing of a Rule

1925(a) opinion addressing the issues raised in an untimely 1925(b)

statement). Instantly, however, the trial court in its Rule 1925(a) opinion has

adequately addressed Appellant’s request to withdraw his plea. Thus, remand

is not necessary, and we turn to the merits of Appellant’s issue.

       [W]e recognize that 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 Supreme Court of Pennsylvania
       recently clarified the standard of review for considering a trial
       court’s decision regarding a defendant’s pre-sentence motion to
       withdraw a guilty plea:

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        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.

     Commonwealth v. Carrasquillo, . . . 115 A.3d 1284, 1285,
     1291–92 ([Pa.] 2015) (holding there is no per se rule regarding
     pre-sentence request to withdraw a plea, and bare assertion of
     innocence is not a sufficient reason to require a court to grant
     such request). We will disturb a trial court’s decision on a request
     to withdraw a guilty plea only if we conclude that the trial court
     abused its discretion. Commonwealth v. Gordy, 73 A.3d 620,
     624 (Pa. Super. 2013).

Commonwealth v. Blango, 150 A.3d 45, 47 (Pa. Super. 2016), appeal

denied, 168 A.3d 1254 (Pa. 2017). Further, “[a] person who elects to plead

guilty is bound by the statements he makes in open court while under oath

and he may not later assert grounds for withdrawing the plea which contradict

the statements he made at his plea colloquy.” Commonwealth v. Kpou,

153 A.3d 1020, 1024 (Pa. Super. 2016) (citation omitted).

     During the oral plea colloquy, Appellant stated that he was taking the

medications Topamax and Celexa, and when asked by the trial court whether

the medications impaired his ability to understand the plea proceedings,

responded unequivocally, “No,” and “I understand [the court’s statements]

and the process that we’re going through right now.” N.T. Guilty Plea, 7/7/17,

at 3-4. Likewise, in his written plea colloquy, Appellant denied that he was

under the influence of drugs or alcohol. As the trial court correctly pointed

out – and contrary to Appellant’s claim on appeal – he did not articulate a

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claim of innocence at the sentencing hearing.        See Trial Court Opinion,

2/21/18, at 2; Appellant’s Brief at 22, 29.5 Instead, Appellant argued that he

should be permitted to withdraw his plea because he was intoxicated and

under the influence of medication at the time of the plea. N.T. Sentencing,

10/4/17, at 11. As previously noted, the trial court denied relief on the basis

that it had observed Appellant at the plea hearing and credited his testimony

that he was not intoxicated or otherwise impaired when he entered his guilty

plea. Accordingly, we discern no merit to Appellant’s claim that the trial court

abused its discretion by denying his motion to withdraw his guilty plea. See

Blango, supra.

       Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/12/18




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5 Even if Appellant had made such a claim, a bare assertion of innocence is
insufficient for relief. Carrasquillo, 115 A.3d at 1293.

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