J-S05017-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    AMATUL ALMUTAKAB SHARIF                    :
                                               :
                       Appellant               :   No. 1131 MDA 2019


        Appeal from the Judgment of Sentence Entered June 21, 2019,
              in the Court of Common Pleas of Luzerne County,
            Criminal Division at No(s): CP-40-CR-0002763-2016.


BEFORE: SHOGAN, J., KUNSELMAN, J., and MUSMANNO, J.

MEMORANDUM BY KUNSELMAN, J.:                             FILED APRIL 03, 2020

       Amatul Almutakab Sharif appeals from the judgment of sentence

entered following his guilty plea. Because Sharif did not allege a sufficient

reason in asking to withdraw his guilty plea, but merely made a bare assertion

of innocence, we affirm.

       On May 13, 2016, Sharif was charged with multiple offenses, including

statutory sexual assault, involuntary deviate sexual intercourse, corruption of

minors, unlawful contact with a minor, endangering the welfare of children,

and indecent assault.1 These charges arose from Sharif engaging in sexual

activity with his step-daughter, who was 15 years old.




____________________________________________


1 18 Pa.C.S.A. §§ 3122.1(a)(1), 3123(a)(7), 6301(a)(1), 6318(a)(1), 4304
(a)(1), and 3126(a)(8).
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        At the preliminary hearing, Sharif signed an agreement to plead guilty

to involuntary deviate sexual intercourse, unlawful contact with a minor, and

endangering welfare of children.      On October 5, 2016, the Commonwealth

filed   an   amended    information   containing   only   these   three   charges.

Subsequently, Sharif decided not to plead guilty.         On June 27, 2017, the

Commonwealth again amended its information to reflect the original charges.

        Sharif’s trial was to begin on October 29, 2018. However, once he saw

that the victim showed up for trial, he decided to enter a plea. Sharif plead

guilty to unlawful contact with a minor and corruption of minors. Sentencing

was continued several times.

        On March 27, 2019, Sharif filed a motion to withdraw his plea claiming

that he was not guilty of the charges. At the hearing on this motion, Sharif

testified that he was innocent and pled guilty only because he was pressured

by his attorney as well as his wife. He also admitted to signing the guilty plea

agreement in October 2018 and lying to the court during the guilty plea

colloquy.    The trial court denied Sharif’s motion to withdraw his guilty plea.

        On June 21, 2019, the trial court imposed a sentence of 120 to 240

months on the unlawful contact with a minor charge and a concurrent

sentence of 21 to 42 months on the corruption of minors charge.

        Sharif timely appealed. Both Sharif and the trial court complied with

Pennsylvania Rule of Appellate Procedure 1925.

        On appeal, Sharif raises a single issue:




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      1. Whether the trial court committed an abuse of discretion
         and/or error of law by refusing to permit [Sharif] to withdraw
         his guilty plea.

Sharif’s Brief at 1.

      We note that 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, 156 A.3d 1185, 1187–88 (Pa. Super. 2017). Pre-sentence withdrawal

of a guilty plea is governed by Pennsylvania Rule of Criminal Procedure

591(A), which provides:

      (A) 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.” Id.

cmt. However, a defendant does not have an absolute right to such relief. In

Commonwealth v. Carrasquillo, 115 A.3d 1284 (Pa. 2015), our Supreme

Court clarified that “a bare assertion of innocence is not, in and of itself, a

sufficient reason to require a court to grant” a pre-sentence motion to

withdraw. Id. at 1285. Rather, the Court concluded that

      a defendant’s innocence claim must be at least plausible to
      demonstrate, in and of itself, a fair and just reason for
      presentence withdrawal of a plea. More broadly, 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. The policy of liberality remains

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      extant but has its limits, consistent with the affordance of a degree
      of discretion to the common pleas courts.

Id. at 1292.    Thus, the Carrasquillo Court established that trial courts

possess discretion to assess the plausibility of a defendant’s claim of

innocence. In doing so, “both the timing and the nature of the innocence

claim, along with the relationship of that claim to the strength of the

government’s evidence, are relevant.” Islas, 156 A.3d at 1191.

      Consistent with the well-established standards governing trial
      court discretion, it is important that appellate courts honor trial
      courts’ discretion in these matters, as trial courts are in the unique
      position to assess the credibility of claims of innocence and
      measure, under the circumstances, whether defendants have
      made sincere and colorable claims that permitting withdrawal of
      their pleas would promote fairness and justice.

Commonwealth v. Norton, 201 A.3d 112, 121 (Pa. 2019).

      Upon review of the record, we conclude that the trial court did not abuse

its discretion in denying Sharif’s motion to withdraw his guilty plea.         As

observed by the trial court, Sharif offered nothing more than a bald assertion

of innocence. Trial Court Opinion, 9/10/19, at 4. The trial court explained:

      Other than making an unsubstantiated claim that he was
      pressured into pleading guilty, [Sharif] presented no plausible
      argument that he was innocent and he failed to demonstrate a fair
      and just reason for the withdrawal of his plea. [Sharif] made no
      colorable demonstration that permitting the withdrawal of his plea
      would promote fairness and justice. He had more than two years
      to decide whether to proceed to trial or enter a plea. [Sharif’s]
      innocence claim was nothing more than an attempt to further
      delay the imposition of justice.

Id.



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      In reviewing the record, we further note that, in his motion to withdraw

his guilty plea, Sharif merely asserted that he was not guilty of the crimes

charged. He did not raise any other facts or cite specific circumstances that

could have provided a basis for the court to find a sincere or plausible claim

of innocence.     He did not endeavor to argue the strength of the

Commonwealth’s evidence.       Again, at the hearing on his motion, Sharif

proffered nothing more than a statement that he was innocent. Although he

claimed that he had maintained his innocence all along, he never informed the

court of this. He claimed that he entered the plea because he felt pressured

by his wife and attorney to enter the plea. During his guilty plea, however,

he never told the court that he felt pressured; instead, he confirmed to the

court that he was not pressured and was acting voluntarily.

      Accordingly, we conclude that the trial did not err in refusing to grant

Sharif’s motion to withdraw his guilty plea.

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 04/03/2020


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