J-S40007-13


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                         IN THE SUPERIOR COURT OF
                                                            PENNSYLVANIA
                            Appellee

                       v.

WESTLEY A. CLEVENGER,

                            Appellant                       No. 542 WDA 2012


            Appeal from the Judgment of Sentence January 23, 2012
               in the Court of Common Pleas of Cambria County
               Criminal Division at No.: CP-11-CR-0000703-2011


BEFORE: GANTMAN, J., OTT, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.                                     FILED MARCH 21, 2016

        Appellant, Westley A. Clevenger, appealed from the judgment of

sentence for one count of involuntary deviate sexual intercourse with a

person less than sixteen years of age (IDSI), imposed pursuant to a

negotiated plea agreement.           Specifically, he challenged the trial court’s

denial of his pre-sentence motions to withdraw his guilty plea. We vacated

the judgment of sentence and remanded for trial.                The Commonwealth

petitioned our Supreme Court for allowance of appeal.              The Court granted

the petition, vacated our order, and remanded for reconsideration in light of

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


____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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Commonwealth            v.   Hvizda,     116     A.3d   1103   (Pa.     2015).1     On

reconsideration, in light of Carrasquillo and Hvizda, we affirm.

       The context of the underlying case is material to our review.               We

derive the facts from the trial court’s opinion and our independent review of

the certified record.

       Appellant was living in a room in the house of his son and daughter-in-

law. (See N.T. Suppression Hearing, 10/20/11, at 11).                 The investigation

into this matter began when Appellant’s daughter-in-law and other members

of his family found a diary, kept in a journal, in his room. In it he detailed

his sexual encounters and other interactions with the Victim, a teenage girl,

identifying her by name. They also found four Polaroid photographs of the

Victim, nude or partially nude.          One included her face.        (See id. at 4).

Appellant’s son identified notations on the photographs as being in the

handwriting of his father. (See id. at 11). Dates on the photos matched

dates in the journal.


____________________________________________


1
  (See Commonwealth v. Clevenger, 125 A.3d 774 (Pa. 2015) (per
curiam)):

       AND NOW, this 17th day of November, 2015, the Petition for
       Allowance of Appeal is GRANTED, the order of the Superior Court
       is VACATED, and the matter is REMANDED for reconsideration in
       light of Commonwealth v. Carrasquillo, ––– Pa. ––––, 115
       A.3d 1284 (2015), and Commonwealth v. Hvizda, ––– Pa. –––
       –, 116 A.3d 1103 (2015). The Petition to Remand is DENIED.




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      Local police, recognizing that the offenses had occurred in another

jurisdiction (before Appellant moved in with his son’s family), referred the

matter to the Pennsylvania State Police. (See id. at 17).

      In his affidavit of probable cause, investigating Trooper Mark A. Galli

reported that the Victim informed him that Appellant had previously been

her next door neighbor. (See Affidavit of Probable Cause, 3/10/11). The

Victim told the trooper that for two years Appellant repeatedly engaged in

sexual acts with her. He digitally penetrated her vagina, had her perform

oral sex on him, and engaged in vaginal intercourse with her. He also took

photographs of her. Appellant threatened to harm her family if she did not

comply with his demands. (See id.).

      Once, Appellant lured the Victim into his residence on the false pretext

that her father was on the telephone.     When she tried to escape, she fell

over a fence and was knocked unconscious.      When she woke up, she was

naked and tied to a futon in Appellant’s house.     She managed to escape

later. (See id.).

      The Commonwealth charged Appellant with one hundred and fifty-

five counts involving the sexual abuse of the Victim and related offenses

beginning in November 2008 (when she was thirteen) until over two years




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later (January 2011).2           Appellant, born in 1952, was fifty-six when the

crimes began. (See Complaint, 3/10/11, at 1).

       Appellant     filed   a    motion       to   suppress   (journal,   photographs,

statements), which the court denied, after a hearing on October 20, 2011.

(See Order, 10/21/11).

       On November 1, 2011, two days before trial, Appellant pleaded guilty

to one count of IDSI with a person less than sixteen years of age. (See N.T.

Guilty Plea, 11/01/11, at 2).              In exchange for the guilty plea, the

Commonwealth agreed to nol pros the remaining one hundred and fifty-

four charges, and recommend a sentence of ten to twenty years’

incarceration.

       It bears noting that as an express condition of his plea agreement

Appellant agreed to participate in an evaluation by the Sexual Offenders

Assessment Board (SOAB) to determine if he should be classified as a

sexually violent predator, waiving any objections.3

____________________________________________


2
  Specifically, the Commonwealth charged Appellant with thirty counts each
of rape by threat of forcible compulsion, IDSI, statutory sexual assault,
aggravated indecent assault, and indecent assault.       See 18 Pa.C.S.A.
§§ 3121(a)(2), 3123(a)(7), 3122.1(b), 3125(a)(8), and 3126(a)(8),
respectively. Appellant was also charged with one count each of kidnapping,
luring a child into a motor vehicle or structure, unlawful restraint, false
imprisonment, and harassment. See 18 Pa.C.S.A. §§ 2901(a)(2), 2910(a),
2902(a)(2), 2903(a), and 2709(a)(3), respectively.
3
  Appellant also agreed to comply with the reporting requirements of the
then applicable version of “Megan’s Law” and to pay restitution costs.
(Footnote Continued Next Page)


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      Two months later, on January 12, 2012, Appellant filed a counseled

motion to withdraw his guilty plea, in which he asserted his innocence. (See

Motion to Withdraw Guilty Plea, 1/12/12). The trial court denied this motion

without a hearing on January 17, 2012.            At the sentencing hearing on

January 23, 2012, counsel for Appellant made an oral motion for the court to

reconsider the denial of the motion to withdraw, asking the court to hold a

hearing, and once more proclaiming his innocence. (See N.T. Sentencing,

1/23/12, at 3, 38).

      The trial court denied the motion, citing its extensive colloquy with

Appellant at the guilty plea hearing, and the specifically negotiated term of

incarceration. (See id. at 4).

      Prior to sentencing, the court also held a “Megan’s Law” hearing.

Despite his promise, Appellant had refused to cooperate. (See supra at *4

n.3). After testimony and a report from SOAB expert William G. Allenbaugh,

II, the court found Appellant to be a sexually violent predator (SVP). (See

id. at 36).    Defense counsel argued that Appellant’s refusal to cooperate

with the SOAB assessment was consistent with his statement of innocence.

(See id. at 37).

                       _______________________
(Footnote Continued)

Despite this, and the apparent prior assurance of counsel that his client
would cooperate, on December 6, 2011 Appellant declined to speak with
SOAB investigator Michael Emhoff, or otherwise participate in the SOAB
assessment. (See SOAB Investigation Report, 12/21/11, at 3; see also
N.T. Sentencing, 1/23/12, at 12).



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       At the sentencing hearing, Appellant himself explained his about-face

to the court in this way: “On the guilty plea, I was determined that I could

beat 152 of the charges, that there was [sic] three that I might not have

been able to beat.”       (Id. at 38). He further claimed that defense counsel

informed him that if he did not plead, the trial court judge would give him

the maximum sentence on each of the charges. (See id.). “So that’s when

I thought about it, and I said I would rather have the jury trial and decide

[sic].” (Id. at 39).

       After hearing from one witness,4 the trial court sentenced Appellant to

the previously agreed sentence of not less than ten nor more than twenty

years’ incarceration in a state correctional institution. The court added, inter

alia, that Appellant was “without a doubt a clear and present danger to

society.” (Id. at 43).

       In explaining his denial of Appellant’s motion to withdraw the guilty

plea, the trial judge stated, “I truly believe you knew exactly what you were

____________________________________________


4
  Notably, at sentencing, Appellant’s daughter, Bambi Buchkoski, read a
prepared statement into the record, against him. (See N.T. Sentencing, at
40-41). Ms. Buchkoski had reported to Trooper Galli that she, too, had been
molested by Appellant when she was a child. (See Affidavit of Probable
Cause, (Interviews), 3/11/11, at 3). Even though the sentence was for the
agreed term, the trial court also expressly noted that it had reviewed the
presentence investigation report, the testimony and report of SOAB expert
Allenbaugh, and the affidavit of probable cause. (See N.T. Sentencing, at
42-43, 45). The court also noted that Appellant was not RRRI eligible, based
on his prior record. (See id. at 45).




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doing.”    (Id. at 44).        The judge also ascribed Appellant’s attempt to

withdraw his plea to “playing games.” (Id. at 45).

       On January 25, 2012, Appellant filed a counseled post-sentence

motion challenging the trial court’s denial of his two prior motions to

withdraw his guilty plea; he maintained his innocence. (See Post-Sentence

Motion, 1/25/12). On February 20, 2012, the trial court held a hearing on

the post-sentence motion. The Victim’s mother offered the only testimony.

(See N.T. Motion to Withdraw Guilty Plea, 2/20/12, at 5-14). The trial court

denied Appellant’s motion on March 20, 2012. (See Trial Court Opinion and

Order, 3/20/12, at 1-9).

       Appellant filed a timely notice of appeal5 on March 22, 2012, and

submitted a timely 1925(b) statement of errors on April 12, 2012.        See

Pa.R.A.P. 1925(b).       The trial court filed a 1925(a) statement on May 8,

2012, referencing its March 20, 2012 Opinion and Order.         See Pa.R.A.P.

1925(a).

       Appellant raised one question (with two combined claims) on appeal:
____________________________________________


5
  An appeal in a criminal matter “is properly taken from the judgment of
sentence, as opposed to the order denying [an] [a]ppellant’s post-sentence
motions.” Commonwealth v. Olavage, 894 A.2d 808, 809 n.1 (Pa. Super.
2006), appeal denied, 907 A.2d 1102 (Pa. 2006) (citation omitted). Here,
Appellant improperly appealed from the March 20, 2012 order denying his
post-sentence motion. (See Notice of Appeal, 3/22/12). However, we note
that Appellant properly stated in his brief that the appeal was taken from the
January 23, 2012 judgment of sentence. (See Appellant’s Brief, at 2). We
have changed the caption accordingly.




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      I. Whether the sentencing court abused its discretion by not
      permitting [Appellant] to withdraw his guilty plea where he
      asserted his innocence and the alleged [V]ictim would be able to
      testify at trial[?]

(Appellant’s Brief, at 4).

      Appellant argued that the court should have permitted his motion to

withdraw under the liberal standard for granting plea withdrawals prior to

sentencing, under Commonwealth v. Forbes, 299 A.2d 268 (Pa. 1973),

and Commonwealth v. Randolph, 718 A.2d 1242, 1245 (Pa. 1998). (See

Appellant’s Brief, at 9-10). We disagree.

      On review after remand, we are mindful of the following legal

principles:

            A guilty plea is not a ceremony of innocence, it is an
      occasion when one offers a confession of guilt . . . . The
      defendant is before the court to acknowledge facts that he is
      instructed constitute a crime. . . . He is then to voluntarily say
      what he knows occurred, whether the Commonwealth would
      prove them or not, and that he will accept their legal meaning
      and their legal consequence. A criminal defendant who elects to
      plead guilty has a duty to answer questions truthfully.          A
      defendant will not be permitted to postpone the final disposition
      of his case by lying to the court concerning his culpability and
      thereafter withdraw his plea of guilty by contradicting his prior
      testimony and asserting innocence.

Commonwealth v. Cole, 564 A.2d 203, 206 (Pa. Super. 1989) (citations

and internal quotation marks omitted).

      A motion to withdraw a guilty plea before sentencing is governed by

Pennsylvania Rule of Criminal Procedure 591, which in pertinent part

provides that “[a]t any time before the imposition of sentence, the court


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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 standard of review that we employ in challenges to a
      trial court’s decision regarding a presentence motion to withdraw
      a guilty plea is well-settled. “A trial court’s decision regarding
      whether to permit a guilty plea to be withdrawn should not be
      upset absent an abuse of discretion. An abuse of discretion
      exists when a defendant shows any ‘fair and just’ reasons for
      withdrawing his plea absent ‘substantial prejudice’ to the
      Commonwealth.” Commonwealth v. Pardo, 35 A.3d 1222,
      1227 (Pa. Super. 2011) (quoting Commonwealth v. Prysock,
      972 A.2d 539, 541 (Pa. Super. 2009); citing *262
      Commonwealth v. Anthony, 504 Pa. 551, 475 A.2d 1303,
      1308 (1984)). In its discretion, a trial court may grant a motion
      for the withdrawal of a guilty plea at any time before the
      imposition of sentence. Pa.R.Crim.P. 591(A). “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.” Commonwealth v. Forbes,
      450 Pa. 185, 299 A.2d 268, 271 (1973). 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.’ ” Commonwealth v. Santos, 450 Pa.
      492, 301 A.2d 829, 830 (1973) (quoting Commonwealth v.
      Neely, 449 Pa. 3, 295 A.2d 75, 76 (1972)). In Forbes, our
      Supreme Court instructed that, “in determining whether to grant
      a presentence motion for withdrawal of a guilty plea, ‘the test to
      be applied by the trial courts is fairness and justice.’ ” Forbes,
      299 A.2d at 271 (quoting United States v. Stayton, 408 F.2d
      559, 561 (3d Cir. 1969)).

Commonwealth v. Elia, 83 A.3d 254, 261-62 (Pa. Super. 2013), appeal

denied, 94 A.3d 1007 (Pa. 2014); see also Forbes, supra at 271 (“If the

trial court finds ‘any fair and just reason’, withdrawal of the plea before


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sentence should be freely permitted, unless the prosecution has been

‘substantially prejudiced.’”). In Randolph our Supreme Court added:

            We wish to make it clear that we do not now, nor have we
      ever, abandoned, altered or modified the standard articulated in
      Forbes regarding a defendant’s ability to withdraw a guilty plea
      prior to sentencing. Consequently, we are troubled, to say the
      least, by the Superior Court’s cavalier disregard of the Forbes
      standard, which appears to be motivated not by the facts of this
      case, but instead by the Superior Court’s steadfast disagreement
      with this Court’s rationale set forth therein.          See, e.g.
      Commonwealth v. Turiano, 411 Pa. Super. 391, 601 A.2d
      846, 851-2 (1992), where the Superior Court noted its
      reluctance to follow Forbes and its desire to abandon the
      standard set forth therein based upon its belief that the standard
      has become obsolete. We take this opportunity to admonish the
      Superior Court that it is obligated to apply and not evade our
      decisions. It is a fundamental precept of our judicial system that
      a lower tribunal may not disregard the standards articulated by a
      higher court.

Randolph, supra at 1245.

      Because the application of the Forbes standard raises questions of

law, our standard of review is de novo, and our scope of review is plenary.

See   Carrasquillo,    supra   at   1291;     see   also   Commonwealth      v.

Farabaugh, 128 A.3d 1191, 1193 (Pa. 2015).

      Our Supreme Court has recently clarified its position on many of the

challenges which have arisen over the years in applying Forbes and

Randolph, and their progeny, on appeal.        Most notably, in Carrasquillo,

the Court explained:

      Our decision turns on the conclusion that a bare assertion of
      innocence is not, in and of itself, a sufficient reason to require a
      court to grant such a request.


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                                  *     *      *

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

Carrasquillo, supra at 1285, 1292; accord, Hvizda, supra at 1107 (“a

bare assertion of innocence—such as Appellee provided as the basis for

withdrawing his guilty plea—is not, in and of itself a sufficient reason to

require a court to grant such a request.”).

      Here, applying the principles enunciated in Carrasquillo and Hvizda,

we conclude that Appellant offers no more than a bare assertion of

innocence, insufficient to justify, let alone require, the grant of a withdrawal

of his guilty plea.

      Appellant argues that “a clear assertion of innocence [ ] suffices under

governing caselaw as a ‘fair and just reason’ for withdrawal[.]” (Appellant’s

Brief, at 10). We disagree.

      As already noted, the Carrasquillo Court rejected the per se approach

to innocence claims, holding that a bare assertion of innocence is not, in and

of itself, a sufficient reason to require a court to grant such a request.

Rather, the trial court retains a “degree of discretion” in determining




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whether the defendant’s innocence claim is plausible. Carrasquillo, supra

at 1292.

      Appellant further argues that the trial court made an impermissible

determination of the credibility of his claim of innocence. (See Appellant’s

Brief, at 12-16). In support, he cites Commonwealth v. Katonka, 33 A.3d

44, 49 (Pa. Super. 2011) (en banc).        Katonka, in turn, cites Randolph,

supra at 1244.

      However, in Carrasquillo our Supreme Court, while “acknowledg[ing]

the legitimate perception of a per se rule arising from this Court’s

decisions[,]” in effect abrogated the Randolph/Katonka disapproval of

credibility determinations by the trial court: “[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.” Carrasquillo, supra at

1292 (emphases added).

      The Carrasquillo Court explained that “[a]s with other such bright-

line rules, however, the principle is subject to the axiom that the holding of a

decision is to be determined according to the facts under consideration,”

(citing Oliver v. City of Pittsburgh, 11 A.3d 960, 966 (Pa. 2011), (“the

holding of a judicial decision is to be read against its facts”)). Id.

      Similarly, in his concurrence, then-Justice Stevens disapproved a per

se approach which prohibited trial courts from assessing the credibility of an

“assertion of innocence” on a presentence motion to withdraw a guilty plea:


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“This per se approach, which was based upon the utterance of ‘magic

words,’ undermined the trial court’s role as a finder of fact and removed

necessary discretion from the court. I agree with the majority that such an

approach was unsatisfactory.” Id. at 1293 (Stevens, J., concurring).

     In this case, the only explanation provided by Appellant for his claim of

innocence amounted, at best, to a mere strategic calculation of the odds,

and at worst, to a deliberate ploy to game the system.        Specifically, as

previously summarized, at sentencing this colloquy took place:

           THE COURT: You maintain today that you are innocent of
     the charges that you plead [sic] guilty to?

             [APPELLANT]: Yes.

             [DEFENSE COUNSEL]:     You would like to go to trial on
     this?

            [APPELLANT]: Yes. On the guilty plea, I was determined
     that I could beat 152 of the charges, that there was [sic] three
     that I might not have been able to beat.

(N.T. Sentencing, at 38).

     Then, in a somewhat rambling and disjointed narrative, Appellant

claimed that he was told that if he went to trial, the court could (or would)

impose thirty to sixty years’ imprisonment on each of the three charges that

he did not think he could “beat.” He continued:

     [I] would have been like 90 or 100 years [old] when I got out of
     jail.

           So that’s when I thought about it, and I said I would rather
     have the jury trial and [sic] decide.


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              [COUNSEL]: Is that all?

              [APPELLANT]: Yes.

              [COUNSEL]: I have nothing else Your Honor.

(Id. at 38-39) (emphasis added).           The trial court decided that Appellant’s

claim of innocence was not only equivocal but not credible. (See Trial Ct.

Op., 3/20/12, at 6-7).

       It is not our purpose or intent to analyze Appellant’s reasoning on its

merits.6   We simply observe that, despite counsel’s insistence, the record

strongly supports a finding that Appellant was not proclaiming his innocence

except in the nominal, “magic words,” pretextual sense.                The record

supports the conclusion that he was merely calculating the odds of what

sentence he thought he could get in various circumstances. Pleader’s regret,

and hopes, however unfounded, of engineering a shorter sentence do not

present a fair and just reason to permit the withdrawal of a guilty plea. Nor

do they promote fairness and justice.



____________________________________________


6
  We observe objectively, however, that in the totality of circumstances his
stated reasons make little sense. Leaving aside Appellant’s tenuous grasp of
mathematics, the length of sentence was fixed at the guilty plea hearing,
when the trial court accepted the plea and recommended sentence. (See
N.T. Guilty Plea, at 3-5). If, rightly or wrongly, he feared a longer sentence
by going to trial, withdrawing his guilty plea was the exact opposite of what
he should have done. The utter illogic of Appellant’s stated reasoning
supports the trial court’s conclusion that he was engaging in gamesmanship.




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       Additionally, we note that when Appellant did get the requested7

opportunity to present reasons, at the hearing on his post-sentence motion

to withdraw guilty plea, he did not testify, or present any other evidence.

       Instead, his counsel, after reciting some procedural history, made a

cursory, conclusory boilerplate argument, consisting of the mere bald

assertion that Appellant maintained his innocence and counsel’s belief that

the Commonwealth’s witnesses were available, so there was no prejudice to

the Commonwealth, and therefore he had met the standard for pre-sentence

withdrawal.     (See N.T. Motion To Withdraw Guilty Plea, 2/20/12, at 4).8

Counsel did not develop any argument beyond the bare assertions.

Appellant failed to present a fair and just reason to grant his motion to

withdraw.

       We observe that the reasoning in Carrasquillo is not without

antecedents. See Carrasquillo, supra at 1290 n.6 (collecting cases).9 In

particular, we note the following observation:

____________________________________________


7
  At sentencing, defense counsel had requested “a hearing[,] the opportunity
to properly argue his motion.” (N.T. Sentencing, at 3).
8
  As previously noted, the only witness was the Victim’s mother, for the
Commonwealth. (See N.T. Motion, 2/20/12, at 5-14).
9
  Our Supreme Court also cited, inter alia, Thomas P. Reilly, Note, Now I'm
Guilty, Now I'm Not: The Automatic Right to Pre–Sentence Guilty Plea
Withdrawals in Pennsylvania Since Commonwealth v. Forbes, 59 Vill. L.
Rev. 305, 320–30 & nn. 85–138 (2014) (collecting cases) (offering a
comparison between Pennsylvania cases governing presentence plea
(Footnote Continued Next Page)


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             I agree with the majority that an assertion of innocence
      will provide “just cause” to withdraw a guilty plea, in some
      cases. However, before I would find such an assertion to be
      “just cause” to withdraw a valid plea, I would require some
      credible explanation for the inconsistency between appellant’s
      sworn admissions in support of the initial guilty plea and the
      subsequent assertion of innocence. Otherwise, a disingenuous
      incantation of the words “I now claim I am innocent” by judicial
      alchemy would become magic words with which to evade the
      legitimate requirement of “just cause” for withdrawal of the plea.
      Such a construction of our Supreme Court’s precedents would
      constrain trial courts to reward rather than sanction the most
      disingenuous of such claims, and the most brazen of perjuries.

 Cole, supra at 208 (Kelly, J., concurring) (emphasis in original).

      Here, we discern no abuse of discretion or error of law by the trial

court. Appellant’s first claim lacks merit.

      Appellant presents a companion claim that there is no prejudice to the

Commonwealth because “the alleged victim would be able to testify at trial.”

(Appellant’s Brief, at 4; see also id. at 16-19). Because of our resolution of

the first claim, we have no need to address the second companion issue.

See Carrasquillo, supra at 1293 n.9 (“In light of our disposition, above,

we do not reach the second issue presented on appeal, which concerns

prejudice to the Commonwealth.”).

      Judgment of sentence affirmed.



                       _______________________
(Footnote Continued)

withdrawal with those of other jurisdictions). See Carrasquillo, supra at
1290 n.6.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/21/2016




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