J-S33018-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF                            :   IN THE SUPERIOR COURT OF
    PENNSYLVANIA                               :        PENNSYLVANIA
                                               :
                                               :
                v.                             :
                                               :
                                               :
    BRANDON WADE MORAGNE-EL                    :
                                               :   No. 1793 MDA 2016
                       Appellant

             Appeal from the Judgment of Sentence October 5, 2016
                In the Court of Common Pleas of Franklin County
              Criminal Division at No(s): CP-28-CR-0002221-2014


BEFORE:      BENDER, P.J.E., OTT, J. and STRASSBURGER, J.*

MEMORANDUM BY OTT, J.:                                FILED OCTOBER 27, 2017

        Brandon Wade Moragne-El appeals from the judgment of sentence

entered on October 5, 2016, in the Franklin County Court of Common Pleas.

The trial court imposed a term of seven to 14 years’ imprisonment, following

Moragne-El’s negotiated guilty plea to possession with intent to deliver heroin

(“PWID”).1 On appeal, Moragne-El contends the trial court erred in denying

his pre-sentence motion to withdraw his guilty plea. For the reasons below,

we affirm.

        The trial court set forth the background surrounding the matter as

follows:

____________________________________________


*   Retired Senior Judge assigned to the Superior Court.

1   See 35 P.S. § 780-113(a)(30).
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            In criminal action 2213-2014, [Moragne-El] is charged with
     two counts of delivery of a controlled substance (heroin)2 and two
     counts of criminal use of a communication facility3 for allegedly
     selling heroin to a confidential informant on August 27, 2013, and
     August 29, 2013. In criminal action 2214-2014, [Moragne-El] is
     charged with one count of delivery of a controlled substance
     (heroin), one count of criminal use of a communication facility,
     and one count of possession with intent to deliver (heroin)4 for
     allegedly selling heroin to a confidential informant on May 27,
     2014, and having additional quantities of heroin on his person
     during a search incident to arrest on the same date. In criminal
     action 2221-2014, [Moragne-El] faces two counts of possession
     with intent to deliver (heroin/cocaine) based on a search of
     [Moragne-El] incident to arrest on October 9, 2014. He also faces
     one count of tampering with or fabricating physical evidence5 for
     allegedly attempting to destroy evidence of controlled substances
     hidden on his person when he was taken into custody on October
     9, 2014.

     ___________________________

     2   35 P.S. § 780-113(a)(30)[.]

     3   18 Pa.C.S.A. § 7512(a)[.]

     4   35 P.S. § 780-113(a)(30)[.]

     5 18 Pa.C.S.A. § 4910(1)[.]
     ___________________________

            [Moragne-El]’s case has taken a long and arduous path from
     mandatory arraignment on December 30, 2014, through many
     trial terms to reach this point. This Court has written two prior
     Opinions (October 30, 2015 and April 5, 2016) recounting the
     procedural history of these matters thus far. These prior Opinions
     will be incorporated into this Opinion by reference. Throughout
     the pendency of these matters, [Moragne-El] has at various times
     been represented by counsel and represented himself.

           Most recently, on September 8, 2016, [Moragne-El]’s case
     was scheduled for pre-trial conference. Rather than prepare
     [Moragne-El]’s case for trial in the upcoming September trial
     term, and after a near three hour delay, a plea agreement was


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       negotiated resolving all of [Moragne-El]’s pending cases as well as
       uncharged offenses.

               [Moragne-El], with the assistance of counsel, knowingly and
       voluntarily entered a plea of guilty in case number 2221-2014 to
       count 1, possession with intent to deliver heroin, an ungraded
       felony. An on-the-record colloquy was conducted by both the
       assistant district attorney and this Court. [Moragne-El]’s guilty
       plea was tendered in exchange for the dismissal of all remaining
       counts at case number 2221-2014, and all counts in case numbers
       2213-2014 and 2214-2014. In addition, [Moragne-El]’s plea
       agreement with the Commonwealth provided that [Moragne-El]
       receive a sentence of seven years to [14] years in a state
       correctional institution to be served concurrently with a sentence
       imposed by the Federal Court that [Moragne-El] is now serving.
       Further, the Commonwealth agreed to forego the filing of
       additional charges against [Moragne-El] for [his] alleged actions
       toward the confidential informants in his cases and his threat to
       cause physical harm to his prior counsel. Finally, in order to
       facilitate the plea agreement’s term for concurrent sentences, this
       Court, upon the request and agreement of counsel modified
       [Moragne-El]’s bail in case number 2214-2014 from $200,000
       secured to $200,000 unsecured, effectively making [Moragne-El]
       a primarily federal inmate, rather than a state inmate. This Court
       would have imposed sentence on September 8, 2016, as the plea
       agreement was acceptable to the Court. However, sentencing was
       set for September 15, 2016, to permit the parties to accurately
       calculate [Moragne-El]’s credit for time previously served.

             Prior to the imposition of sentence on September 15, 2016,
       and unbeknownst to his counsel, [Moragne-El] made an oral
       motion to withdraw his plea. [Moragne-El]’s request to withdraw
       his guilty plea is based on: 1) his assertion of innocence; 2) his
       belief that a conviction from the State of Maryland does not
       preclude the imposition of a RRRI minimum sentence; and 3) his
       conversation with his sister after the entry of his plea.

Trial Court Opinion, 10/3/2016, at 1-3.2

____________________________________________


2  It appears that because of the plea agreement, Moragne-El only appealed
from Criminal Docket 2221-2014, and not Criminal Dockets 2213-2014 and



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       On October 3, 2016, the court denied Moragne-El’s motion to withdraw

his guilty plea. Two days later, the court sentenced him to a term of seven to

14 years’ imprisonment at Criminal Docket 2221-2014. The court also issued

orders regarding forfeiture of certain property as per the plea agreement on

October 5 and 10, 2016.3 This appeal followed.4

       In his sole issue on appeal, Moragne-El contends the trial court erred in

denying his pre-sentence motion to withdraw his guilty plea based on the

reasons he offered the court: (1) his assertion of innocence; (2) his belief

that his prior burglary conviction did not make him ineligible for a Recidivism

Risk Reduction Incentive (RRRI)5 sentence; and (3) he spoke with his sister




____________________________________________


2214-2014. Furthermore, neither the docket nor the certified record contains
the April 5, 2016, opinion that the trial court refers to in its restatement of the
case background. It appears, that opinion discusses Moragne-El’s efforts to
secure nominal bail. See Trial Court Opinion, 10/3/2016, at 6 n.7.

3  On October 5, 2016, the court ordered that $6,164.00 in United States
currency and a 1999 Lincoln Town Car be seized from Moragne-El pursuant to
42 Pa.C.S. § 6801, et seq. On October 10, 2016, the court ordered that
Moragne-El forfeit an additional $2,392.00 in United States currency, that
same Lincoln vehicle with an updated VIN number, and three cellular phones.

4  On October 31,2016, the trial court ordered Moragne-El to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
Moragne-El filed a concise statement on November 18, 2016. The trial court
issued an opinion pursuant to Pa.R.A.P. 1925(a) on November 20, 2016,
relying on its October 3, 2016, opinion that denied Moragne-El’s motion to
withdraw his guilty plea.

5   See 61 Pa.C.S. §§ 4501-4512.

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who said that he should not have pled guilty to a crime he did not commit.

Moragne-El’s Brief at 17.

      It is well-settled the decision whether to permit a defendant to withdraw

a guilty plea is within the sound discretion of the trial court. Commonwealth

v. Elia, 83 A.3d 254, 261-262 (Pa. Super. 2013), appeal denied, 94 A.3d 1007

(Pa. 2014). A a pre-sentence motion to withdraw is decided under a liberal

standard.   Commonwealth v. Kpou, 153 A.3d 1020, 1022 (Pa. Super.

2016). Pursuant to Pennsylvania Rule of Criminal Procedure 591:

      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).

      In the seminal decision Commonwealth v. Forbes, 299 A.2d 268 (Pa.

1973), the Pennsylvania Supreme Court first defined the parameters for

granting a pre-sentence motion to withdraw:

      [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.’

Id. at 271 (internal citations omitted).

      After the Forbes decision, the Supreme Court adopted the view that a

defendant’s bald assertion of innocence was a sufficient “fair and just reason”

for withdrawal of a guilty plea. See Commonwealth v. Randolph, 718 A.2d


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1242, 1244 (Pa. 1998) (defendant’s claim that he was innocent of several of

the 13 burglary charges to which he pled guilty was sufficient to justify pre-

sentence withdrawal of plea; “[a]ppellant made a clear assertion of his

innocence before the trial court … [and] the uncontroverted evidence of record

fails to reveal that the Commonwealth would have suffered any prejudice, let

alone substantial prejudice, had [a]ppellant’s withdrawal request been

permitted.”) (footnote omitted).

      However, in Commonwealth v. Carrasquillo, 115 A.3d 1284 (Pa.

2015), the Pennsylvania Supreme Court retreated from the per se approach

it advocated in Forbes. (Defendant first asserted his innocence during his

sentencing allocution, claiming he had been framed by the Central Intelligence

Agency and possessed by the “Antichrist,” and insisting a polygraph test would

prove his innocence. Carrasquillo, 115 A.3d at 1286.)

      The Carrasquillo Court stated the “existing per se approach to

innocence claims is unsatisfactory.” Id. at 1292. The Court reflected:

      [T]here is no absolute right to withdraw a guilty plea; 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.

                                       …

      Presently, we are persuaded by the approach of other jurisdictions
      which require 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

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

Id. at 1291-1292 (footnote omitted; emphasis added).

      The Supreme Court concluded the trial court had acted within its

discretion when it denied the defendant’s motion to withdraw his plea. The

Court emphasized the defendant’s claim of innocence was first made during

his sentencing allocution, and was accompanied by “bizarre statements” which

“wholly undermined its plausibility, particularly in light of the Commonwealth’s

strong evidentiary proffer at the plea hearing.”      Id. at 1293.    See also

Commonwealth v. Hvizda, 116 A.3d 1103 (Pa. 2015) (companion case to

Carrasquillo).

      More recently, in Commonwealth v. Blango, 150 A.3d 45 (Pa. Super.

2016), appeal denied, __ A.3d __, 2017 WL 1374163 [513 EAL 2016] (Pa.

April 12, 2017) the defendant entered a negotiated guilty plea, agreeing to

testify against his co-defendants in matter and by providing information

regarding an unrelated shooting. Id. at 47. The defendant testified against

his co-defendants at their trial, further acknowledging his guilt, but during the

unrelated criminal trial, he recanted the information that he provided to the

Commonwealth.      Id.   Considering his statements as a breach of the plea

agreement, the Commonwealth offered a sentencing recommendation,

requesting the court sentence defendant to a term of 35 to 70 years’


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imprisonment.       Id.    The next day, after reviewing the Commonwealth’s

request, the defendant filed a motion to withdraw his guilty plea. Id. On

appeal, a panel of this Court applied Carrasquillo and held that because the

defendant had not made “a plausible claim of innocence[,] ... the trial court

did not abuse its discretion in declining to permit withdrawal of [his] guilty

plea on that ground.” Blango, 150 A.3d at 48.6

       Here, the trial court found the following:

              In the first instance, [Moragne-El] suggests that he seeks
       withdrawal because he is innocent. However, [Moragne-El]’s own
       words at [the] time of his plea belie his claims of innocence. Upon
       careful examination, the record will reflect that at the time
       [Moragne-El] entered his guilty plea, he refused to specifically
       articulate exactly what he had done to permit this Court to find
       that there was a factual basis for the plea of guilty to possession
       with the intent to deliver heroin. [Moragne-El] suggested that he
       did not recall the events, a claim the Court now sees was
       incredible.    The Court then reviewed the Commonwealth’s
       charging documents with [Moragne-El], on the record, resulting in
       [Moragne-El] admitting to being in possession of a quantity of
       heroin with the intent to deliver said controlled substance, on the
       date in question. [Moragne-El] acknowledged his participation in
       the offense and even apologized to the Court and the Franklin
       County community for his role in the heroin epidemic currently
       plaguing the area. His apology appeared sincere and credible.
       Having tendered his plea, the Court thereafter entered an Order


____________________________________________


6 Compare with Commonwealth v. Islas, 156 A.3d 1185, 1189 (Pa. Super.
2017) (concluding trial court had erred in denying the defendant’s pre-
sentence motion to withdraw his guilty plea because his assertion of innocence
was “not ‘mere, bare, or non-colorable,’ but instead was ‘at least plausible’”
where: (1) he had entered his plea three days before trial was set to begin
and before jury selection began; (2) he moved to withdraw plea over one
month after entry and when new counsel entered his appearance, which was
almost two months before sentencing; and (3) he maintained his innocence
from the beginning.

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     altering [Moragne-El]’s bail in case number 2214-2014 to
     “unsecured” to facilitate the sentence agreement.

            [Moragne-El] also supported his motion to withdraw with
     argument that he has an alibi defense he desires to assert. This
     argument is unavailing.       [Moragne-El]’s alibi defense is not
     applicable to case number 2221-2014; rather, his alibi defense is
     raised and filed, untimely6 in case number 2213-2014, a case
     which is to be dismissed as part of the plea. [Moragne-El] has
     filed no notice of alibi defense in case number 2221-2014.

     ___________________________

     6  See Pa.R.Crim.P. 567(A) which requires the filing of a notice of
     alibi defense “not later than the time required for filing the
     omnibus pretrial motion …” Defendant’s Notice by Defendant of
     Alibi Defense was filed on September 6, 2016, long after his
     December 31, 2014 Mandatory Arraignment.
     ___________________________

           [Moragne-El] suggests that after entering his plea he spoke
     with his sister, who he says is an attorney, who encouraged him
     to go to trial.      [Moragne-El] also takes offense to the
     determination that he is ineligible for a recidivism risk reduction
     incentive sentence (“RRRI”) because the Commonwealth and the
     probation department mischaracterized a prior burglary conviction
     from Maryland. These arguments are nothing more than “buyer’s
     remorse” and not grounds for the withdrawal of a plea. Further,
     if [Moragne-El] believes that the burglary prior is not a
     disqualifying offense, the Court would consider more carefully
     examining the issue in a post-sentence motion.

            [Moragne-El]’s actions in attempting to withdraw his plea
     are nothing more than his continued efforts to manipulate the
     Franklin County Court and to delay trial and frustrate the criminal
     justice system as a whole. [Moragne-El] got what he wanted on
     September 8, 2016 – an Order modifying his bail in case number
     2214-2014 to $200,000 unsecured. Now he wants to have the
     benefit of an unsecured bail and further delay trial. This Court
     cannot permit [Moragne-El] to continue to manipulate and
     frustrate the criminal justice process.

Trial Court Opinion, 10/3/2016, at 4-5.


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       We agree with the court’s conclusion.       We note that, of the various

reasons he provided for wanting to withdraw his guilty plea, the only fair and

just reason Moragne-El proffered is a mere assertion of his general innocence,7

which is no longer sufficient as pursuant to Carrasquillo,8 and does not

constitute a “plausible claim” of innocence under Blango.

       Furthermore, the trial court’s ruling is supported by the unique

circumstances in this case. A review of the record reveals that Moragne-El

entered the plea, which involved three separate criminal actions, after three

hours of negotiations.9 During the oral colloquy, he acknowledged that on

October 9, 2014, he possessed 10.07 grams of heroin with the intent to

deliver. N.T., 9/8/2016, at 10. Moreover, he admitted the following:

       I just want to say I’m sorry for the hassle I put you all through
       and, you know, I never meant to be a menace or a cancer to the
       society, like I understand like the more I set back in jail I sit up
       and think of the bad things I did out here and I apologize, you
       know, for any pain I caused. I know the heroin epidemic is --
       pardon my language, it’s fuck’n up, you know, Franklin County
       and I don’t mean -- I don’t know. I regret doing what I did. That’s
       it, Your Honor.

Id. at 11.




____________________________________________


7 For example, he does not allege he had no knowledge that he possessed
over ten grams of heroin or that a friend set him up.

8We note his discussion with his sister that he did not commit the crime also
goes to a general assertion of innocence.

9   See N.T., 9/15/2016, at 12.

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       Significantly, the court was prepared to sentence Moragne-El that same

day but waited until the following week in order to double check the credit for

time served. Id. at 10. Seven days later, on the day he was supposed to be

sentenced, Moragne-El orally requested to withdraw his guilty plea.        N.T.,

9/15/2016, at 2-4.          Moragne-El asserted the following as reasons for

withdrawing: (1) he was innocent and did not commit the crime; and (2) he

did not believe his prior conviction disqualified him from being RRRI eligible.

Id. He also said that he spoke with his sister after the guilty plea hearing and

she asked him why he agreed to something he did not do, to which he replied

that he was “just trying to get out of Franklin County Jail and they scared

[him.]” Id. at 5. Moragne-El offered no support for his claim of innocence,

particularly in light of his comments at the guilty plea hearing. 10 Moreover,

his concerns regarding his eligibility for RRRI does not constitute a fair and

just reason to withdraw his plea.

       Based on the totality of the circumstances, we concur with the trial court

that Moragne-El’s offer of innocence is not plausible, and that his actions were

more of an attempt to manipulate the court system in order to delay

imprisonment. See Carrasquillo, supra; Blango, supra. Accordingly, we

affirm the judgment of sentence.


____________________________________________


10 It appears Moragne-El was far concerned more with the nature and length
of his sentence than his actual innocence. See N.T., 9/15/2016, at 3-4, 7-13
(discussions regarding forfeiture of vehicle and cash and bail being reinstated
as secured rather than unsecured).

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     Judgment of sentence affirmed.

     President Judge Emeritus Bender joins this decision.

     Judge Strassburger files a dissenting memorandum.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/27/2017




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