J-A02024-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA


                       v.

EVAN CASTELLANOS,

                            Appellant                  No. 1074 EDA 2016


        Appeal from the Judgment of Sentence entered March 4, 2016,
           in the Court of Common Pleas of Northampton County,
            Criminal Division, at No(s): CP-48-CR-0001114-2015.


BEFORE: OTT, RANSOM, and FITZGERALD,* JJ.

MEMORANDUM BY RANSOM, J.:                             FILED MARCH 30, 2017

        Appellant, Evan Castellanos, appeals from the judgment of sentence

imposed after he pleaded guilty to criminal attempt to commit criminal

homicide.1 We affirm.

        The trial court summarized the pertinent facts and procedural history

as follows:

               [O]n January 22, 2016, at a pretrial conference prior to the
        February Criminal Trial list, [Appellant] entered a negotiated
        guilty plea to one count of criminal attempt to commit homicide,
        graded as a first-degree felony. The guilty plea included a
        sentence bargain of 16 to 35 years’ imprisonment. At the time
        of the negotiated plea, this Court inquired as to the applicable
        sentencing guideline ranges. Guilty Plea Counsel informed the
____________________________________________


1
    See 18 Pa.C.S.A. §§ 901 and 2501.




*Former Justice specially assigned to the Superior Court.
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       Court that, using the [basic] sentencing matrix [with an offense
       gravity score (OGS) of 14 and a prior record score (PRS) of 1]
       the standard guideline range was 84 months to the statutory
       limit – [480] months.[2] However, the [Commonwealth] noted
       that the deadly weapon used matrix was applicable. Under the
       deadly weapon used matrix, with the same OGS and PRS, the
       guidelines increased to 102 months to the statutory limit.
       Therefore, the sentence bargain of 16 years (192 months) to 35
       years (420 months) was within the standard range.

            The Court went through a detailed guilty plea colloquy with
       [Appellant] prior to accepting the plea as free and voluntary. We
       also accepted the written guilty plea colloquy which was
       purported to have been filed out and signed by [Appellant].

             The [Commonwealth] summarized the fact pattern –
       [Appellant] drove to the victim’s residence in Bethlehem and
       invited the victim to come outside to meet with him while
       [Appellant] sat in the passenger seat of the car. When the
       victim came out of the house and approached the automobile,
       [Appellant] extended his arm out of the window and shot the
       victim in the chest with a .357 revolver. [Appellant] fled the
       scene and was on the run until he was apprehended in Florida
       and extradited to Northampton County. After [Appellant] heard
       the recitation by the Commonwealth and acknowledged that it
       was an accurate statement as to his crime, the Court asked
       several follow-up questions including a general inquiry as to the
       motive for the shooting of the victim who allegedly had been
       [Appellant’s] friend. [Appellant] volunteered that he shot the
       victim because “he had raped a girl named Jordan”.

            The Court also informed [Appellant] that his guilty plea
       was expected to be a final resolution in this matter.

             [Appellant] answered all the Court’s questions raised
       during the guilty plea proceeding.      Clearly, his responses
       indicated that his plea was free and voluntary and that no one
       had forced or coerced him to plead guilty. When the Court
       indicated that it was prepared to impose the sentence bargain
____________________________________________


2
  Appellant pleaded guilty to attempt to commit criminal homicide resulting
in serious bodily injury. Accordingly, the statutory maximum sentence is
forty years. 18 Pa.C.S. § 1102(c).



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      contemporaneously with the guilty plea, guilty plea counsel
      asked if the Court would delay sentencing in order to give
      [Appellant’s] family time to come to Northampton County to
      participate at sentencing. That request was granted. We set
      sentencing for March 4, 2016.

Trial Court Opinion, 5/24/16, at 1-2.

      On February 25, 2016, Appellant filed a pro se motion to withdraw his

guilty plea. Within the motion, he asserted the following:

      1. [Appellant]   did   not   understand   [the]   Basic   Sentencing
         Matrix[.]

      2. [Appellant] was not [made] aware of Basic Sentencing
         Matrix[.]

      3. [Appellant] was [coerced] into entering a guilty plea to a
         charge he was not guilty of[.]

      4. [Appellant] believes the plea was illegally induced[.]

      5. [Appellant] believes he        was   sentence[d]   outside   [the]
         sentencing guidelines[.]

      6. [Appellant] was abandon[ed] by [his] lawyer[.]

      7. [Appellant] requested pre-[trial] motions to be filed before
         entering any guilty plea[.]

Motion to Withdraw Guilty Plea, 2/25/16, at 1-2. By letter dated February

29, 2016, the Commonwealth filed its response.

      Appellant appeared for sentencing on March 4, 2016. At that time, the

trial court indicated to the parties that Appellant had filed the motion to

withdraw his guilty plea, and that guilty plea counsel, who had been

privately retained by Appellant, had filed a motion to withdraw.              The

Commonwealth then argued why it would be prejudiced should Appellant be

permitted to withdraw his plea, and guilty plea counsel informed the court of

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his displeasure with Appellant’s decision. The trial court then directly asked

Appellant why he wished to withdraw his plea, and Appellant responded,

“Your Honor, I’m not guilty of that charge and I believe like the lawyer took

advantage of my mental state.” Notes of Testimony (N.T.), 3/4/16, at 16.

When asked about his mental state and what medication Appellant had been

taking, Appellant said, “It’s like [X]anax[,]” although he did not know the

product name.       Id.   Appellant further informed the court that he himself

never filled out the written guilty plea. Finding Appellant “not credible,” id.

at 17, the trial court denied Appellant’s withdrawal motion, and imposed the

negotiated sentence.

      This timely appeal follows.     Both Appellant and the trial court have

complied with Pa.R.A.P. 1925.

      Appellant raises the following issue:

            Whether the Trial Court erred and abused its discretion in
            denying Appellant’s Motion to Withdraw Guilty Plea prior to
            sentencing despite Appellant’s plausible proclamation of
            innocence by asserting he was not guilty of the charge and
            the fact that the Commonwealth would not have been
            substantially prejudiced by the withdrawal?

Appellant’s Brief at 3.

      There are significantly different standards of proof for defendants who

move to withdraw a guilty plea before sentencing and for those who move to

withdraw a plea after sentencing.       See Commonwealth v. Kirsch, 930

A.2d 1282, 1284-1285 (Pa. Super. 2007). Recently, our Supreme Court has

clarified   the   pre-sentence   standard    of   proof   in   Commonwealth   v.

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Carrasquillo, 115 A.3d 1284 (Pa. 2015).               The high court first noted the

standard it had established many years ago in Commonwealth v. Forbes,

299 A.2d 268, 271 (Pa. 1973):

         [T]his Court’s Forbes decision reflects that: there 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.

Carrasquillo, 115 A.3d at 1291-1292 (citing Forbes, 299 A.2d at 271)

(footnote omitted).

      At issue in Carrasquillo was “whether the common pleas courts must

accept a bare assertion of innocence as a fair and just reason for

withdrawal.”        Carrasquillo, 115 A.3d at 1289.         Our Supreme Court then

discussed the interpretation this Court has given Forbes and subsequent

Supreme Court pronouncements, and it acknowledged “the legitimate

perception     of    a   per   se   rule   arising   from   this   Court’s   decisions.”

Carrasquillo, 115 A.3d at 1292.                  The high court then stated its

disagreement with the application of such a “bright-line” rule:

             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 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

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      with the affordance of a degree of discretion to the common
      pleas courts.

Carrasquillo, 115 A.3d at 1292 (citation omitted).

      Stated succinctly, our Supreme Court in Carrasquillo concluded that

“a bare assertion of innocence is not, in and of itself, a sufficient reason to

require a court to grant such a request.”     Id. at 1285.   Finally, the high

court concluded that, given its disposition, it need not discuss the issue of

prejudice to the Commonwealth. Id. at 1293 n.9.

      The trial court in this case found the fact pattern presented analogous

to that involved in Carrasquillo:

            Here, we evaluated the credibility of [Appellant’s] assertion
      of “innocence.” He provided no justification or support for his
      not guilty claim other than the claim that he didn’t understand
      the guilty plea proceeding. Frankly, anyone would review the
      guilty plea transcript could reach only one conclusion, that
      [Appellant’s] plea was free, knowing, and voluntarily and further
      that his acknowledgement of his guilt was beyond the general
      acquiescence of the facts where a defendant simply agrees to
      the Commonwealth’s presentation of the facts.                Here,
      [Appellant] offered his justification, his motivation, for
      committing this crime.

            There was nothing about [Appellant’s] assertion of a lack
      of understanding of the guilty plea proceeding [sic] nor any
      support for the bald assertion that he was “not guilty.”
      Certainly, there is nothing in this record which supports a
      plausible demonstration of innocence which would provide a fair
      and just reason for the withdrawal of his guilty plea. Without
      any credible record to justify the withdrawal of the guilty plea,
      we were unwilling to exercise our discretion. Finally, we note
      that our decision rests squarely within the four corners of the
      most recent pronouncement by our Supreme Court on this issue
      found in Carrasquillo.

Trial Court’s Opinion, 5/24/16, at 4-5. We agree.

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       Appellant’s arguments to the contrary are unavailing.           Just as our

Supreme Court in Carrasquillo held that a bare assertion of innocence is

insufficient to permit a pre-sentence plea withdrawal, the bare assertion that

the innocence claim is “plausible” is likewise insufficient. As the high court

stated in Carrasquillo, a criminal defendant seeking to withdraw his guilty

plea prior to sentencing must make “some colorable demonstration, under

the circumstances” that “permitting withdrawal of the plea would promote

fairness and justice.” Carrasquillo, 115 A.3d at 1292. Appellant has failed

to so in this case.3

       Finally,   we   reject    Appellant’s   argument   regarding   the   lack   of

“substantial prejudice” to the Commonwealth. As in Carrasquillo, we need

not reach this issue unless Appellant has presented a plausible basis for his

claim of innocence. See id., supra.

       In summary, because Appellant failed to establish a plausible claim

regarding his innocence, the trial court properly denied his pre-sentence

motion to withdraw his guilty plea.

       Judgment of sentence affirmed.



____________________________________________


3
  We also reject Appellant’s alternative claim that we should remand so that
“a more thorough record could be made regarding his assertion of
innocence.” Appellant’s Brief at 6. Appellant has already been given an
opportunity to present a colorable claim that the circumstances should have
allowed for the pre-sentence withdraw of his plea.




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J-A02024-17




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/30/2017




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