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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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,                           :         No. 2359 EDA 2015
                                          :
                          Appellant       :


            Appeal from the Judgment of Sentence, August 7, 2015,
                 in the Court of Common Pleas of Pike County
               Criminal Division at No. CP-52-CR-0000104-2013


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


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                  FILED MARCH 23, 2017

        Appellant appeals from the August 7, 2015 aggregate judgment of

sentence of two to six years’ imprisonment imposed after he pled

nolo contendere to indecent assault and corruption of minors.1            After

careful review, we affirm the judgment of sentence.

        The trial court summarized the relevant facts and procedural history of

this case as follows:

                    [Appellant] was initially charged with two (2)
              counts of Indecent Assault[] and one (1) count of
              Corruption of Minors. [These charges stemmed from
              appellant’s sexual abuse of minor female child at his
              home between September 2008 and April 2012.] On
              November 7, 2014, which was the day of jury
              selection for the November 2014 Criminal Trial Term,

* Former Justice specially assigned to the Superior Court.
1
    18 Pa.C.S.A. §§ 3126(a)(7) and 6301(a)(1)(ii), respectively.
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          [appellant]     entered     into     a     negotiated
          Nolo Contendere Plea, pleading no contest to one
          (1) count of Indecent Assault and one (1) count of
          Corruption of Minors. The [trial c]ourt found at that
          time that [appellant] had voluntarily, knowingly and
          intelligently entered his plea. On November 19,
          2014, [appellant] completed an “Adam Walsh Child
          Protection & Safety Act Sex Offender Colloquy[.]”[]
          A Sentencing Hearing was subsequently scheduled
          for May 7, 2015.

                 A little over four months after [appellant’s]
          plea of nolo contendere, on March 23, 2015,
          [appellant]     filed   his   Motion    to   Withdraw
          Nolo Contendere Plea, claiming that he maintained
          his innocence and could not live with himself taking a
          plea of nolo contendere. [Appellant] advanced no
          other reasons in his motion for withdrawal of his
          plea. Following a hearing on [appellant’s] Motion on
          April 30, 2015, the [trial c]ourt granted [appellant’s]
          Motion to Withdraw the Nolo Contendere Plea by
          Order dated May 29, 2015, based on the then
          prevailing case law as to the standard to apply to
          requests to withdraw a plea of guilty or
          nolo contendere. Th[e trial c]ourt noted, however,
          in its May 29, 2015 Order that two (2) cases before
          our Supreme Court at that time, [Commonwealth
          v. Carrasquillo, 115 A.3d 1284 (Pa. 2015) and
          Commonwealth v. Hvizda, 116 A.3d 1103 (Pa.
          2015)], were expected to clarify the standard in the
          near future. [On June 15, 2015, the Pennsylvania
          Supreme Court decided Carrasquillo.] On June 17,
          2015, the Commonwealth filed its Motion for
          Reconsideration of the Order Allowing Withdrawal of
          Plea, based on clarifications issued by our Supreme
          Court, specifically in [Carrasquillo].

               After    careful     consideration   of     the
          Commonwealth’s Motion, hearing held thereon and
          our Supreme Court’s decisions in Carrasquillo and
          Hvizda, supra, [the trial court] entered [an] Order
          dated June 26, 2015 whereby the Commonwealth’s
          Motion for Reconsideration was granted. On July 2,
          2015, [appellant] filed a Motion for Reconsideration


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              of our June 26, 2015 Order. On August 4, 2015,
              th[e trial c]ourt] entered an Order denying
              [appellant’s] Motion for Reconsideration.

                    On August 7, 2015, th[e trial] court proceeded
              with sentencing, based on [appellant’s] plea of
              Nolo Contendere to the counts of Indecent Assault
              and Corruption of Minors.         The [trial c]ourt
              sentenced [appellant] to a period of incarceration in
              a State Correctional Institution of not less than
              two (2) years nor more than six (6) years. The
              sentence imposed was in accordance with the
              negotiated plea agreement of the Commonwealth
              and [appellant].

Trial court opinion, 11/17/15 at 1-3 (footnote omitted; citation formatting

corrected).

      On August 10, 2015, appellant filed a timely notice of appeal.          On

August 11, 2015, the trial court ordered appellant to file a concise statement

of errors complained of on appeal in accordance with Pa.R.A.P. 1925(b).

Appellant complied with the trial court’s directive and filed a timely

Rule 1925(b) statement on August 17, 2015.              The trial court filed its

Rule 1925(a) opinion on November 17, 2015.

      On appeal, appellant raises the following issue for our review:

              Whether the trial court abused its discretion by
              granting, then denying [a]ppellant’s pre-trial motion
              to withdraw nolo contendere plea when [a]ppellant
              maintained his innocence throughout the pendency
              of the matter and [a]ppellant’s counsel expressed
              issues which would have given rise to a defense[?]

Appellant’s brief at 7 (some capitalization omitted).




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      We recognize that appellant pled nolo contendere, rather than guilty,

to the charges at issue; however, “in terms of its effect upon a case, a plea

of nolo contendere is treated the same as a guilty plea.” Commonwealth

v. V.G., 9 A.3d 222, 226 (Pa.Super. 2010) (citation omitted).

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

Pennsylvania Rule of Criminal Procedure 591, which provides, in pertinent

part, that “[a]t 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).

      “When reviewing a trial court’s denial of a motion to withdraw a plea of

[nolo contendere], we will not disturb the court’s decision absent an abuse

of discretion.” Commonwealth v. Lewis, 791 A.2d 1227, 1232 (Pa.Super.

2002), appeal denied, 806 A.2d 859 (Pa. 2002) (brackets in original;

citation omitted).   “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. Elia, 83 A.3d 254,

261-262 (Pa.Super. 2013), appeal denied, 94 A.3d 1007 (Pa. 2014)

(internal quotation marks and citations omitted).

      As noted, our supreme court has recently clarified its position on many

of the challenges that have arisen with regard to the withdrawal of a guilty

plea based upon an assertion of innocence. In Carrasquillo, our supreme



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court clarified that, in the pre-sentence guilty plea withdrawal context, “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.”     Carrasquillo, 115 A.3d at 1292 (citations omitted).                  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.” Id. at 1285. Rather, the

trial court retains a degree of discretion in determining whether the

defendant’s innocence claim “is plausible to demonstrate, in and of itself, a

fair and just reason for presentence withdrawal of a plea.” Id. at 1292; see

also Hvizda, 116 A.3d at 1107.

        Instantly, the trial court concluded that appellant failed to present a

“fair   and   just   reason”    in   support   of   his   motion   to   withdraw   his

nolo contendere plea.          (Trial court opinion, 11/17/15 at 4.)      Relying on

Carrasquillo, the trial court noted that appellant’s “mere proclamation of

innocence, in and of itself,” was an insufficient basis to allow withdrawal of

his nolo contendere plea. (Id. at 7.) The trial court further determined

that appellant’s two primary arguments, namely, that (1) he is innocent and

(2) he intended to contest the Commonwealth’s lack of evidence at trial,

“were not novel to the post-plea proceedings of this case.”               (Id. at 8.)

Rather, the trial court reasoned that “both of these assertions were certainly



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known to [appellant] prior to entry of his negotiated plea and would

assuredly have been considered by him and counsel in deciding to accept the

plea of nolo contendere.” (Id.)

      Upon review of the record, we discern no abuse of discretion on the

part of the trial court in denying appellant’s pre-sentence motion to withdraw

his nolo contendere plea.         The trial court analyzed the circumstances

surrounding    appellant’s   pre-trial     proceedings,   his   entry   of    a

nolo contendere plea on the morning of jury selection, and his subsequent

motion to withdraw said plea approximately four months later.       (See trial

court opinion, 11/17/15 at 4-8.)         Contrary to appellant’s argument on

appeal, the record supports the trial court’s determination that appellant

failed to make a “colorable demonstration, under the circumstances, such

that permitting withdrawal of the plea would promote fairness and justice.”

Carrasquillo, 115 A.3d at 1292 (emphasis added).

      Appellant entered a negotiated nolo contendere plea on November 7,

2014, and the trial court went to considerable lengths to ensure that this

plea agreement was done knowingly, voluntarily and intelligently.        (See

“Nolo Contendere Colloquy,” 11/7/14 at 9-19.) It further bears noting that

as a result of his negotiated plea agreement, appellant participated in an

evaluation by the Sexual Offenders Assessment Board, which ultimately

determined that he met the criteria of a sexually violent predator.          By

appellant’s own admission, this plea was a product of “nearly two (2) years



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of negotiation” between the Commonwealth and appellant. (See appellant’s

brief at 15.) Moreover, at the time of his plea, more than 20 months had

elapsed since appellant was charged in connection with this incident in April

2013.     (See Criminal Information, 4/1/13.)     Appellant possessed ample

opportunity during this nearly two-year period to examine and weigh the

evidence in this case, including the Commonwealth’s evidence or lack

thereof, in deciding whether to assert his innocence or “assert a viable

defense to the charges” at trial. He failed to do so. Permitting withdrawal of

the nolo contendere plea at this stage, based upon nothing more than

appellant’s mere assertion that he “cannot live with himself taking a plea to

charges that he is innocent of[,]” would have resulted in substantial

prejudice    to   the   Commonwealth.     (See   “Motion   to   Withdraw   Nolo

Contendere Plea,” 3/23/15 at ¶ 3.)

        Accordingly, we conclude that the trial court, in light of the standard

articulated in Carrasquillo, acted within its discretion in denying appellant’s

pre-sentence motion to withdraw his nolo contendere plea.

        Judgment of sentence affirmed.



        Ott, J. joins this Memorandum.

        Fitzgerald, J. files a Dissenting Memorandum.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 3/23/2017




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