J-S67040-18


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF                        :    IN THE SUPERIOR COURT OF
PENNSYLVANIA,                          :          PENNSYLVANIA
                                       :
                 Appellee              :
                                       :
            v.                         :
                                       :
LUIS MEDINA,                           :
                                       :
                 Appellant             :    No. 665 EDA 2018

             Appeal from the Judgment of Sentence March 6, 2017
                in the Court of Common Pleas of Monroe County
              Criminal Division at No(s): CP-45-CR-0000039-2016
                                          CP-45-CR-0000594-2016

BEFORE: OTT, J., NICHOLS, J. and STRASSBURGER, J.*

MEMORANDUM BY STRASSBURGER, J.:                 FILED JANUARY 03, 2019

     Luis Medina (Appellant) appeals from the judgment of sentence entered

March 6, 2017, after he pleaded guilty to robbery and receiving stolen

property.   Upon review, we vacate Appellant’s judgment of sentence and

remand with instructions.

     On May 25, 2016, Appellant 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.

Pertinent to this appeal, as part of Appellant’s plea agreement, the

Commonwealth informed the trial court that it was in “agreement with a state

intermediate punishment sentence in connection with these offenses.” Id. As

such, the Commonwealth requested the trial court, prior to sentencing,



* Retired Senior Judge assigned to the Superior Court
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“remand [Appellant] to a state correctional institution for an evaluation for the

state intermediate [punishment] program [(State IP program)].”1 Id.

Appellant’s plea was accepted, and the trial court directed Appellant be

committed to the Department of Corrections for an State IP program

evaluation, noting the “Commonwealth has waived [Appellant’s] ineligibility

for the State [IP p]rogram based on the instant conviction and his prior

criminal history.” Id at 14-15. Sentencing was deferred pending the outcome

of Appellant’s evaluation.

      On February 8, 2018, prior to his sentencing hearing, Appellant filed a

motion to withdraw his guilty plea.          Therein, Appellant averred that

unbeknownst to him, his counsel, and the district attorney, charges were filed

against Appellant in Northampton County and a detainer was placed on

Appellant.   Motion to Withdraw Guilty Plea, 2/8/2018, at 1 (unnumbered).

Because of this detainer, Appellant was denied participation into the State IP

program. Id. In Appellant’s motion, defense counsel asserted that he would

not have advised Appellant he was eligible for the State IP program had he




1
  This agreement was memorialized in Appellant’s written guilty plea and
colloquy wherein the Commonwealth agreed, in exchange for Appellant’s plea,
to “nolle pros remaining charges” and request Appellant be “sent for
evaluation into the State IP program. If accepted into the program the
Commonwealth will waive all disqualifying charges and [Appellant] will be
responsible for restitution.” Guilty Plea and Colloquy, 5/27/2016, at 1
(unnumbered). Appellant acknowledged that this agreement, as it pertained
to sentencing was “not binding” on the trial court, and Appellant was not
“guaranteed a specific sentence in exchange for” his plea. Id. at 2.



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been aware of the outstanding detainer which “automatically disqualified”

Appellant from participating in the State IP program.        Id.   Based on the

foregoing, Appellant sought to withdraw his guilty plea “due to [Appellant’s]

unknowing and uncounseled plea. But for counsel’s presentation that he was

eligible for the State IP Program, [Appellant] 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 Appellant’s counsel and the

Commonwealth, as well as a brief inquiry by the trial court. N.T., 3/6/2016,

at 2-5.   Appellant’s counsel reiterated the same arguments set forth in

Appellant’s motion. Id. at 2 (“But for the State IP [program, Appellant] would

not have entered into that guilty plea; and without that still being on the table,

I don’t believe that his plea would be knowing, intelligent and voluntary.”). In

response, the Commonwealth argued the trial court should deny Appellant’s

motion because the language used during Appellant’s plea colloquy made it

clear that there was no guarantee that Appellant would be accepted into the

State IP program. Id. at 3 (“[L]ooking back at the plea colloquy, there is very

clear language in here that says ‘if’ [Appellant] is accepted into the State IP




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Program.”).      Ultimately, the trial court denied Appellant’s motion 2 and

proceeded directly to sentencing.

        [Appellant was sentenced] within the standard guideline range to
        an aggregate sentence of [48 to 120] months in a state
        correctional institution. Appellant received a time credit
        commencing on December 12, 2015. On March 9, 2017, Appellant
        filed a motion to reconsider sentence[, which the trial court]
        denied on March 10, 2017. On April 6, 2017, Appellant filed a
        timely notice of appeal to th[is] Court[.] … On October 17, 2017,
        th[is] Court issued an order dismissing [] Appellant’s appeal for
        failing to file a brief. On November 2, 2017, Appellant filed a Pro
        Se motion for post[-]conviction collateral relief (hereinafter
        “PCRA”), claiming ineffective assistance of counsel. [The trial
        court] appointed counsel and granted counsel leave to file an
        amended PCRA petition, which counsel did on December 8, 2017.
        Thereafter, [the trial court] scheduled and held a hearing on
        January 25, 2018. After hearing [the trial court] entered an order
        granting Appellant’s PCRA petition[] and reinstated [h]is appellate
        rights before th[is] Court. On February 23, 2018, Appellant filed
        a notice of appeal[.3]

Trial    Court   Opinion,   3/29/2018,   at    1-2   (unnumbered)   (unnecessary

capitalization omitted).

        Appellant’s sole issue on appeal challenges the court’s denial of

Appellant’s pre-sentence motion to withdraw his guilty plea. Appellant’s Brief

7. Specifically, Appellant avers the trial court erred in denying his motion

when he “asserted his plea was unknowing, uncounseled and not made




2
 In denying Appellant’s motion, the trial court determined that the fact that
Appellant was evaluated for but ultimately not accepted into the State IP
program was not a “fair and just reason” warranting the withdrawal of
Appellant’s plea. N.T., 3/6/2016 at 4.
3
    Both Appellant and the trial court complied with Pa.R.A.P. 1925.


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voluntarily[.]”   Id. (unnecessary capitalization omitted). We consider

Appellant’s issue mindful of the following principles.

      We review a trial court’s ruling on a pre-sentence motion to
      withdraw a guilty plea for an abuse of discretion. Pennsylvania
      Rule of Criminal Procedure 591(A) provides:

            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:
      “After the attorney for the Commonwealth has had an opportunity
      to respond, a request to withdraw a plea made before sentencing
      should be liberally allowed.” Similarly, in Commonwealth v.
      Forbes, the Pennsylvania Supreme Court concluded: “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.” The Court in Forbes
      went on to explain:

            [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.”

      In [Commonwealth v. Elia, 83 A.3d 254 (Pa. Super. 2013)], this
      Court explained the rationale for the rule of liberal allowance of
      withdrawal of guilty pleas before sentencing:

            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.



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      In contrast, when a defendant moves to withdraw a guilty plea
      after sentencing, the standard is far more stringent. “[P]ost-
      sentence motions for withdrawal are subject to higher scrutiny
      since courts strive to discourage entry of guilty pleas as sentence-
      testing devices. A defendant must demonstrate that manifest
      injustice would result if the court were to deny his post-sentence
      motion to withdraw a guilty plea.”

Commonwealth v. Islas, 156 A.3d 1185, 1187–88 (Pa. Super. 2017) (some

citations and emphasis in original omitted).

      Before addressing the merits of Appellant’s arguments on appeal, we

note that in its 1925(a) opinion to this Court, the trial court, “[u]pon review

of the record in preparation for [its opinion], and in consideration of relevant

law pertaining to pre-sentence withdrawal of guilty plea requests” concluded

that it “may have erred in denying Appellant’s request to withdraw his guilty

plea[]” and requested this Court vacate its March 6, 2017 sentencing order

and “remand the matter back to th[e trial court] so that [it] can conduct an

on-the record colloquy of Appellant to determine whether to grant his request

to withdraw his guilty plea.”       Trial Court Opinion, 3/29/2018, at 4-5

(unnumbered). In finding as such, the trial court expressed that “Appellant

signed the written guilty plea and colloquy form with the expectation that he

would be eligible for [the State IP Program]. Therefore, [the trial court] now

question[s] whether or not [Appellant’s] guilty plea was voluntarily, knowingly

[] and intelligently made.” Id. at 4.

      In his brief on appeal, Appellant, referencing the trial court’s

acknowledgment “that it may have erred in denying [] Appellant’s motion to



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withdraw[,]” requests this Court vacate his “judgment of sentence entered in

the above-captioned case and allow Appellant to withdraw his guilty plea[].”

Appellant’s Brief at 11, 21. Conversely, the Commonwealth urges this Court

to affirm Appellant’s judgment of sentence. Commonwealth’s Brief at 8.

      Upon review, based on the facts before us and the averments by

Appellant’s plea counsel, we agree with the trial court that the parties would

benefit from a more thorough and comprehensive hearing on Appellant’s

motion. In finding as such, we are cognizant that trial courts are not required

to hold a hearing on a defendant’s motion to withdraw his guilty plea, nor is

this Court required to remand a case based solely on a trial court’s request.

However, in the context of motions to withdraw a guilty plea, this Court has

held that a hearing may be necessary in “borderline” cases.                See

Commonwealth v. Cappelli, 489 A.2d 813, 819 (Pa. Super. 1985) (“It is

true that in ‘borderline’ cases [involving a motion to withdraw a guilty plea,]

a hearing should be granted.”).

      In this case, Appellant filed a pre-sentence motion to withdraw his guilty

plea based on, inter alia, plea counsel erroneously advising Appellant that he

was eligible for the State IP program when in fact, he was automatically

disqualified due to an outstanding detainer. Motion to Withdraw Guilty Plea,

2/8/2018, at 1 (unnumbered). Because of this, Appellant avers his plea was

not knowingly or voluntarily entered. Id. Based on these averments alone,

we believe Appellant may have set forth a “fair and just reason” to warrant



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the withdrawal of his plea. C.f. Commonwealth v. Dicken, 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.

See Commonwealth v. Hickman, 799 A.2d 136 (Pa. Super. 2002) (plea

counsel’s erroneous advice about boot camp eligibility under negotiated

sentence invalidated Appellant’s guilty plea)”).

      While the Commonwealth urges this Court to affirm Appellant’s

judgment of sentence, we cannot make credibility determinations in the first

instance to assess Appellant’s understanding of the plea and agreements

between the parties and therefore find, as the trial court has suggested, that

a hearing4 is necessary. Thus, we remand for a hearing on Appellant’s motion

to withdraw. On remand, “the test to be applied by the trial court[] is fairness

and justice. If the trial court finds ‘any fair and just reason,’” the trial court

should freely permit Appellant’s request to withdraw his plea “unless the

prosecution has been ‘substantially prejudiced.’”     Islas, 156 A.3d at 1188

(citation omitted).

      Judgment of sentence vacated.          Case remanded for proceedings

consistent with this memorandum. Jurisdiction relinquished.




4
 As noted supra, before sentencing, the trial court entertained arguments set
forth by the parties, as well as engaged in a brief questioning of plea counsel
before ultimately denying Appellant’s motion. As alluded to by the trial court,
we find this was inadequate to conduct a proper assessment into the facts
surrounding Appellant’s plea.


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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/3/19




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