J-A19009-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA           :   IN THE SUPERIOR COURT OF
                                           :        PENNSYLVANIA
                                           :
               v.                          :
                                           :
                                           :
    MICHAEL NORTON                         :
                                           :
                      Appellant            :   No. 2359 EDA 2015

             Appeal from the Judgment of Sentence August 7, 2015
                  In the Court of Common Pleas of Pike County
              Criminal Division at No(s): CP-52-CR-0000104-2013


BEFORE: FORD ELLIOTT, P.J.E., OTT, and FITZGERALD, JJ.*

DISSENTING MEMORANDUM BY FITZGERALD, J.:              FILED MARCH 23, 2017

        I respectfully disagree with the majority’s decision to affirm the trial

court’s order denying Appellant’s presentence motion to withdraw his nolo

contendere plea. In my view, the trial court’s determination that Appellant’s

claim of innocence did not establish fair and just reason for withdrawal is not

supported     by    the   Pennsylvania   Supreme   Court’s   recent   decision   in

Commonwealth v. Carrasquillo, 115 A.3d 1285 (Pa. 2015), or the record.

        On December 14, 2012, Appellant was charged with five counts of

indecent assault1 and one count of corruption of minors2 in a criminal



*
    Former Justice specially assigned to the Superior Court.
1
    18 Pa.C.S. § 3126(a)(7).
2
    18 Pa.C.S. § 6301(a)(1)(ii).
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complaint alleging that he sexually abused the complainant beginning when

she was three- or four-years old.3 The abuse was alleged to occur when the

complainant visited the home of her grandmother, with whom Appellant was

in a relationship.   Although the complainant referred to Appellant as a

grandfather, Appellant and the complainant were not related by blood.

      On February 27, 2013, the complainant testified at the preliminary

hearing, and the magisterial district judge held over two counts of indecent

assault and one count of corruption of minors for trial, but dismissed the

remaining three counts of indecent assault.          On April 1, 2013, the

Commonwealth filed an information.

      The Commonwealth apprised Appellant that it intended to introduce

evidence that he sexually abused his biological daughter in Orange County,

New York between 1985 and 1990, as well as Appellant’s 1996 handwritten

statement to New York investigators, in which he admitted the abuse. 4 On

August 7, 2013, Appellant filed an omnibus pre-trial motion seeking to

3
   In response to Appellant’s request for bill of particulars, the
Commonwealth asserted that the exact date and times of the offenses were
unknown, but that “the offenses were a course of conduct which occurred
between September 2008 through April 19, 2012.” Commw.’s Answer to
Request for Bill of Particulars, 4/22/13.
4
 Appellant’s biological daughter testified at a hearing on the pre-trial motion
and testified, inter alia, that Appellant began touching her inappropriately
when she was four years old. N.T., 10/15/13, at 9. According to the
Commonwealth, a New York State family court made a finding of sexual
abuse, but the matter was not prosecuted in criminal court due to New
York’s statute of limitation.




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preclude the Commonwealth from admitting the evidence.             Following a

hearing, the trial court denied Appellant’s motion to preclude the prior bad

acts evidence on December 4, 2013.5

      Appellant’s counsel requested continuances on February 3, 2014, and

March 31, 2014.    On May 6, 2014, Appellant filed a motion for additional

discovery from the Commonwealth seeking, inter alia, recordings and

interview notes from any interviews of the complainant by police, children

and youth services, or victim services.    The trial court granted Appellant’s

motion “to the extent that the information requested is in the possession of

the Commonwealth, the Police involved in the investigation, or other party

under the control of the Commonwealth.”        Order, 6/11/14.    On June 11,

2014, the trial court granted Appellant’s unopposed motion for continuance.

      In September 2014, Appellant filed a motion for recusal of the

presiding judge or continuance based on the presiding judge’s intended use

of a computer speech program to address the jury. The Commonwealth filed

a separate recusal motion for the same reason. The court, on September

10, 2014, granted Appellant’s motion for continuance to the November 2014

trial term and denied Appellant’s and the Commonwealth’s respective

motions for recusal as moot.     The matter was subsequently reassigned to

the present trial judge.


5
  The trial court denied Appellant’s motion for a determination of finality with
respect to its prior bad acts ruling.



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        On November 7, 2014, Appellant entered into a negotiated nolo

contendere plea to one count of indecent assault and one count of corruption

of minors, which included an agreement for an aggregate two-to-six-year

sentence of imprisonment. The court accepted the plea and directed that he

undergo an assessment by the Sexual Offenders Assessment Board

(“SOAB”). Twelve days later, on November 19, 2014, Appellant completed a

form advising him of the registration provisions of Sexual Offender

Registration and Notification Act.6

        On March 23, 2015, Appellant filed a counseled motion to withdraw his

plea, asserting that he “has maintained his innocence in this matter and

cannot live with himself taking a plea to charges that he is innocent of.”

Mot. to Withdraw Nolo Contendere Plea, 3/23/15, at 1.

        On April 5, 2015, a SOAB assessor conducted an SVP evaluation.

Appellant did not participate, indicating through counsel that he wished to

withdraw his plea. The SOAB assessor found that Appellant was a sexually

violent predator (“SVP”).

        On June 1, 2015, following a hearing, the trial court entered an order

granting Appellant’s motion to withdraw his plea, but noting that a decision

by the Pennsylvania Supreme Court in Carrasquillo was pending.            The

Pennsylvania Supreme Court decided Carrasquillo on June 15, 2015, and

two days later, the Commonwealth filed a motion for reconsideration of the

6
    42 Pa.C.S. §§ 9799.10-9799.41.



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trial court’s June 1, 2015 order.     On June 25, 2015, the court heard

arguments on the motion and on June 26, 2015, granted reconsideration

and denied Appellant’s motion to withdraw his plea.

     On August 7, 2015, the trial court convened a sentencing hearing at

which Appellant stipulated to the SOAB’s SVP determination.       The court

thereafter imposed the negotiated aggregate sentence of two to six years’

imprisonment. This timely appeal, in which Appellant challenges the denial

of his presentence motion to withdraw his plea under Carrasquillo,

followed.

     It is well settled that:

        [T]rial 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.

Carrasquillo, 115 A.3d at 1291-92.

     In Carrasquillo, the Pennsylvania Supreme Court rejected a per se

approach to considering a presentence withdrawal of pleas based on an

assertion of innocence. Id. at 1285. Moreover, the Court reaffirmed that

“there is no absolute right to withdraw a guilty plea” and emphasized that

“the trial courts have discretion in determining whether a withdrawal request

will be granted.” Carrasquillo, 115 A.3d at 1291-92 (citation omitted).

       The Court clarified:




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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 [regarding a
         presentence withdrawal of a plea] remains extant but has
         its limits, consistent with the affordance of a degree of
         discretion to the common pleas courts.

Id. at 1292.

      A review of the Carrasquillo Court’s discussion of the record is

illuminating.     In Carrasquillo, the defendant pleaded guilty to sexual

offenses. More than three and a half months later, at sentencing, the trial

court heard (1) evidence that the defendant should be classified as an SVP,

(2) statements from one of the victim’s family, her teacher, and her

physician,      (3)   evidence   that    the   defendant   suffered      from   a

neuropsychological impairment, and (4) the defendant’s family’s request for

leniency. Carrasquillo, 115 A.3d at 1286. Subsequently, during allocution,

the defendant asserted

         that he had pled guilty to spare [the victim] suffering, and
         he therefore expressed surprise at his portrayal during the
         sentencing hearing. [He] also stated that he had entered
         his plea because, absent a polygraph examination, his
         account would not have been believed and he would not
         have received a fair trial.      He continued to discuss
         scenarios unrelated to the sexual assault of [the victim], in
         which the CIA purportedly had victimized him by seeking
         to employ him as an assassin abroad, and where a serpent
         assertedly appeared and “[t]he Antichrist, he came out of
         me[.]”    Claiming that he did not commit the assault
         against [the victim] and had been framed, [he] insisted


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         that a polygraph test would prove his innocence and asked
         to withdraw his guilty plea.

Id. (record citations omitted).

      The trial court, in Carrasquillo, refused to credit the defendant’s

assertion of innocence. The court, in relevant part,

         reasoned that [the defendant’s] claim of innocence—
         premised in part on an explanation that he had been
         framed in an elaborate scheme orchestrated by the Central
         Intelligence Agency and conditioned upon a polygraph
         test—was implausible, insincere, and “nothing more than
         an attempt to manipulate the justice system” by
         introducing a belated competency-based defense. The
         court stressed that [the defendant] asserted his innocence
         nearly four months after entering his guilty plea and only
         minutes before sentencing, timing which also diminished
         his credibility.    . . . [R]ather than a good-faith
         advancement of innocence, [the defendant’s] “allocution
         was a guilty, shamed reaction to harsh testimony at the
         sentencing hearing, in which he heard himself described as
         a ‘monster,’ ‘pedophile,’ and ‘rapist’ by the victim and her
         family as they recounted the suffering and anguish he
         inflicted upon them.”

Id. at 1287 (citations omitted).

      In rejecting a per se approach to the defendant’s request to withdraw

his plea, the Carrasquillo Court explained:

         This case, in our view, illustrates why the existing per se
         approach to innocence claims is unsatisfactory. Here, [the
         defendant’s] assertion was first made in sentencing
         allocution, after the close of the evidentiary record (which,
         in any event, was dedicated to a different purpose, since
         no motion to withdraw had been advanced before or
         during such record’s development). No request was made
         to reopen the record for an orderly presentation in support
         of [the defendant’s] request.         Moreover, the bizarre
         statements made by [the defendant] in association with
         his declaration of innocence wholly undermined its


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         plausibility, particular in light of the Commonwealth’s
         strong evidentiary proffer at the plea hearing. In the
         circumstances, the common pleas court should not have
         been required to forego sentencing; rather, we find that it
         acted within its discretion to refuse the attempted
         withdrawal of the plea.

Id. at 1292-93 (footnote omitted).

       Thus, Carrasquillo does not stand for the proposition that an

assertion of innocence alone is insufficient reason for withdrawing a plea

before sentencing.      See id. at 1292 (acknowledging “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”);

Commonwealth v. Islas, 1270 EDA 2016 (Pa. Super. Feb. 24, 2017) (slip

op. at 9-10). Rather, the Court reaffirmed that the trial court may exercise

discretion when evaluating the assertion of innocence and whether the

assertion constitutes fair and just reasons to withdraw a plea. Notably, the

Carrasquillo Court also maintained the distinction between “[t]he policy of

liberality” applicable to presentence plea withdrawals and the higher scrutiny

of post-sentence withdrawals under the manifest injustice standard.             See

Carrasquillo, 115 A.3d at 1292; Islas, 1270 EDA 2016 at 9; see

generally Commonwealth v. Broaden, 980 A.2d 124, 128-29 (Pa. Super.

2009) (“‘Manifest injustice may be established if the plea was not tendered

knowingly, intelligently, and voluntarily.’” (citation omitted)).

       In the present case, Appellant clearly and unequivocally asserted his

innocence and stated that “he could not live with the plea.”             See Mot. to


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Withdraw Nolo Contendere Plea, 3/23/15, at 2; N.T., 4/30/15, at 4-5. The

trial court did not expressly determine that Appellant’s assertion of

innocence was incredible, implausible, or insincere. Cf. Carrasquillo, 115

A.3d at 1287. Unlike the defendant in Carrasquillo, Appellant’s assertion

was not bizarre or outlandish.      Cf. id.   Moreover, the court did not

specifically find that Appellant was attempting to manipulate the justice

system. Cf. id. Therefore, I cannot conclude that Appellant’s assertion was

akin to the “bare assertion of innocence” discussed in Carasquillo.

     Rather than addressing the quality of         Appellant’s assertion of

innocence, the court suggested that the assertion of innocence, in and of

itself, did not establish a fair and just reason for withdrawal.   See Order,

6/26/15, at 4 (unpaginated); Trial Ct. Op., 11/17/15, at 7-8.      In support,

the court examined the almost two years between the commencement of the

action and Appellant’s plea and the more than four months between

Appellant’s plea and his motion to withdraw. The court twice indicated that

Appellant did not raise any new allegations in support of his claim of

innocence.   See id. at 8.   The court noted Appellant “had ample time to

consider his assertion of innocence” and “all of the evidence of the case,

including the Commonwealth’s evidence or lack thereof,” when entering into

the agreement. In sum, the court concluded:

        [Appellant’s] two (2) primary claims, that he is innocent
        and that he sought to challenge the Commonwealth’s
        evidence at trial, were not novel to the post-plea
        proceedings of this case. Both of these assertions were


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         certainly known to [Appellant] prior to the entry of his
         negotiated plea and would assuredly have been considered
         by him and counsel in deciding to accept the plea of nolo
         contendere.      Accordingly, [Appellant’s] bases for
         withdrawal of his plea did not make a colorable
         demonstration that allowing him to withdraw his plea
         would have promoted fairness and justice.

Trial Ct. Op. at 8.

      The trial court thus suggested that Appellant entered into his plea

knowingly,    intelligently,   and      voluntarily   under   the   totality   of   the

circumstances. However, this rationale conflates the standards applicable to

a presentence and post-sentence plea withdrawal. See Carrasquillo, 115

A.3d at 1292; Broaden, 980 A.2d at 128-29.               Even if the record reveals

some delay by Appellant, I discern no basis to conclude those delays evinced

bad-faith, gamesmanship, or a response to the consequence of his plea.

Therefore, I would conclude that the trial court erred in its application of

Carrasquillo and that Appellant’s assertion of innocence, in conjunction

with his proffered defense based on the credibility of the complainant,

establishes fair and just reason for withdrawing his plea.

      Lastly, it is well settled that

         Even if there is a “‘fair and just reason’ to permit
         withdrawal of a guilty plea, withdrawal should not be
         permitted if “the prosecution has been ‘substantially
         prejudiced.’” It is settled law that “prejudice,” in the
         withdrawal of a guilty plea context, requires a showing
         that, due to events occurring after the plea was entered,
         the Commonwealth is placed in a worse position than it
         would have been had trial taken place as scheduled.




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Commonwealth v. Blango, 150 A.3d 45, 51 (Pa. Super. 2016) (citations

omitted).

      The majority suggests that the passage of time between the filing of

the charges and his motion to withdraw his plea would result in prejudice.

See Majority Mem. at 7.        However, the Commonwealth did not assert

prejudice when responding to Appellant’s request to withdraw his plea, did

not create an evidentiary record for the trial court to consider prejudice, and

does not argue prejudice on appeal.             See N.T., 4/30/15, at 6-7;

Commonwealth’s Mot. for Reconsider. of the Order Allowing Withdraw of

Plea, 6/17/15, at 1 (indicating that the Commonwealth was prepared for trial

following the trial court’s initial withdrawal of Appellant’s plea); N.T.,

6/25/15, at 9-11 (indicating that the Commonwealth failed to respond to

Appellant’s assertion that the Commonwealth would not suffer prejudice);

see also Commonwealth’s Brief at 7.            Moreover, the record does not

indicate that the Commonwealth would be hampered from calling witnesses

or presenting the same case it would have before sentencing in this case.

      Therefore, under the circumstances of this case, I conclude that

Appellant is entitled to relief and would reverse the order denying Appellant’s

presentence request to withdraw.

      Thus, I respectfully dissent.




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