                                   [J-36-2018]
                    IN THE SUPREME COURT OF PENNSYLVANIA
                                MIDDLE DISTRICT

     SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.

    COMMONWEALTH OF PENNSYLVANIA,              :   No. 53 MAP 2017
                                               :
                      Appellee                 :   Appeal from the Order of the Superior
                                               :   Court at No. 2359 EDA 2015 dated
                                               :   March 23, 2017 Affirming the
               v.                              :   Judgment of Sentence of the Court of
                                               :   Common Pleas Pike County, Criminal
                                               :   Division, at No. CP-52-CR-0000104-
    MICHAEL NORTON,                            :   2013, dated August 7, 2015.
                                               :
                      Appellant                :   ARGUED: May 16, 2018

                                        OPINION


JUSTICE BAER                                            DECIDED: January 23, 2019
        In Commonwealth v. Carrasquillo, 115 A.3d 1284 (Pa. 2015), this Court dispelled

the notion that a defendant’s bare assertion of innocence requires a trial court to grant

the defendant’s presentence motion to withdraw his guilty plea. Instead, the Carrasquillo

Court held that, in the context of such a motion, “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, 115 A.3d at 1292. In the matter sub judice, a trial

court utilized this standard in denying a presentence motion to withdraw a plea of nolo

contendere,1 and the Superior Court concluded that the trial court did not abuse its

discretion in this regard. This Court granted allowance of appeal to assess whether the

1“Nolo contendere” is a Latin phrase which means, “I do not wish to contend[.]” Nolo
Contendere Definition, BLACK’S LAW DICTIONARY (10th ed. 2014), available at Westlaw.
When a defendant enters a plea of nolo contendere, he technically does not admit guilt.
See id. (defining “nolo plea”). However, for purposes of a criminal case, a plea of nolo
contendere is equivalent to a plea of guilty. Eisenberg v. Com., Dep’t of Pub. Welfare,
516 A.2d 333, 335 (Pa. 1986).
Superior Court erred by holding that the trial court properly exercised its discretion in

applying the Carrasquillo standard. We hold that the Superior Court correctly concluded

that the trial court acted within its discretion by denying the presentence motion to

withdraw a plea of nolo contendere.       Consequently, we affirm the Superior Court’s

judgment.

       The relevant background underlying this matter can be summarized as follows. In

December of 2012, a criminal complaint was filed against Appellant Michael Norton

(“Appellant”), charging him with five counts of indecent assault and one count of

corruption of minors. According to the complaint and the accompanying affidavit of

probable cause, on at least five occasions from September of 2008 through April of 2012,

Appellant sexually abused his paramour’s granddaughter (“Victim”), born in September

of 2004.

       On February 27, 2013, a preliminary hearing occurred, where Victim and Corporal

James Travis of the Pennsylvania State Police testified. Following that hearing, the

magisterial district judge dismissed three counts of indecent assault but bound over for

trial the remaining charges. The district judge’s decision was based upon his observation

that Victim testified specifically to only two alleged incidents of abuse. N.T., 10/15/2013,

Exhibit 1, at 21.

       On August 7, 2013, Appellant filed an omnibus pretrial motion in which he sought

an order precluding the Commonwealth from presenting at trial evidence regarding sexual

abuse Appellant allegedly inflicted upon his now-adult daughter (“Daughter”) when

Daughter was a child in the late 1980s and early 1990s. That evidence included a 1996

statement signed by Appellant in which he admitted to abusing Daughter sexually.2 On

October 15, 2013, the trial court held a hearing on Appellant’s pretrial motion, at which

2Appellant attached this statement to his omnibus pretrial motion. The statement is dated
March 1, 1996, and appears to have been given to New York investigators.

                                      [J-36-2018] - 2
Daughter testified regarding the abuse Appellant allegedly perpetrated upon her. The

court ultimately denied Appellant’s motion, concluding that the complained-of evidence

was admissible as prior bad acts.

       On November 7, 2014, trial was scheduled to commence for purposes of jury

selection. However, on that date, the parties informed the trial court that they had reached

an agreement. Specifically, Appellant agreed to plead nolo contendere to one count each

of indecent assault and corruption of a minor in exchange for an aggregate term of

imprisonment of two to six years. In the presence of the court, Appellant’s attorney

conducted a plea colloquy, which was supplemented by questioning by the district

attorney regarding the fact that Appellant’s plea would require him to be assessed for

purposes of determining whether he should be classified as a sexually violent predator.

The parties also submitted to the court Appellant’s written plea colloquy.

       The trial court accepted the plea agreement, ordered Appellant to be assessed by

the Sexual Offenders Assessment Board (“SOAB”), and tentatively scheduled sentencing

for February 13, 2015. However, on the Commonwealth’s motion, sentencing was later

rescheduled for May 7, 2015.

       On March 23, 2015, Appellant filed a motion to withdraw his nolo contendere plea.

In that motion, Appellant asserted his innocence and proclaimed that he could not live

with himself for taking a plea under the circumstances. The trial court held a hearing

concerning this motion on April 30, 2015. At that hearing, Appellant reiterated that he

wanted to withdraw his plea because he was innocent of the crimes to which he pleaded

nolo contendere and because he could not live with himself for entering his plea.

       At that time, the prevailing law in the Commonwealth required a trial court to grant

a presentence motion to withdraw a guilty plea when withdrawal of the plea was based

upon a defendant’s bare assertion of innocence.            See, e.g., Commonwealth v.




                                      [J-36-2018] - 3
Carrasquillo, 78 A.3d 1120 (Pa. Super. 2013) (en banc), rev’d by Carrasquillo, supra.

Consistent with this case law, the trial court granted Appellant’s motion on May 29, 2015,

and allowed him to withdraw his plea. However, in its order, the court noted that this

Court had granted allowance of appeal to review the Superior Court’s decisions in

Carrasquillo and Commonwealth v. Hvizda, 82 A.3d 470 (Pa. Super. 2013) (unpublished

memorandum), rev’d by Commonwealth v. Hvizda, 116 A.3d 1103 (Pa. 2015), both of

which involved the standard a trial court should apply when a defendant seeks to withdraw

a guilty plea presentence based upon a claim of innocence.

       On June 5, 2015, this Court decided Carrasquillo and Hvizda, employing

Carrasquillo as the lead opinion. In examining whether a defendant’s bare assertion of

innocence requires a court to allow a defendant to withdraw a guilty plea presentence,

the Carrasquillo Court observed that this Court’s seminal decision in Commonwealth v.

Forbes, 299 A.2d 268 (Pa. 1973), reflects that: (1) “there is no absolute right to withdraw

a guilty plea;” (2) “trial courts have discretion in determining whether a withdrawal request

will be granted;” (3) “such discretion is to be administered liberally in favor of the accused;”

and (4) “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 (citing Forbes, 299 A.2d at 271) (footnote omitted).

The Carrasquillo Court further observed that the “perfunctory fashion in which these

principles were applied to the circumstances presented in Forbes, as well as in the

ensuing decision in [Commonwealth v. Woods, 307 A.2d 880 (Pa. 1973)], also lent the

impression that this Court had required acceptance of a bare assertion of innocence as

a fair-and-just reason.” Carrasquillo, 115 A.3d at 1292. Indeed, the Carrasquillo Court

acknowledged the Superior Court’s “legitimate perception of a per se rule arising from

this Court’s decisions[,]” such as Forbes. Id.




                                       [J-36-2018] - 4
       In setting out to clarify the law in this area, the Carrasquillo Court adopted the

approach of other jurisdictions that require a defendant’s claim of innocence to “be at

least plausible to demonstrate, in and of itself, a fair and just reason for presentence

withdrawal of a plea.” Id. Stated more broadly, pursuant to this approach, “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.” Id. In closing, the Court stated that the

“policy of liberality remains extant but has its limits, consistent with the affordance of a

degree of discretion to the common pleas courts.”3 Id.

3 Regarding the application of these principles to the circumstances in Carrasquillo,
Carrasquillo pleaded guilty to several sexual offenses. At Carrasquillo’s plea colloquy,
the Commonwealth proffered evidence, including his inculpatory statements to police and
DNA evidence linking him to the crimes. Carrasquillo, 115 A.3d at 1285. During the
sentencing hearing but before he received his sentence, Carrasquillo sought to withdraw
his plea by claiming his innocence; however, his explanation of his innocence included
bizarre references, such as statements that the CIA had victimized him by seeking to
employ him as an assassin abroad. Id. at 1286. The trial court denied Carrasquillo’s
motion to withdraw his plea and sentenced him. Carrasquillo appealed to the Superior
Court, which reversed the trial court on the basis of case law that held that a defendant’s
bare assertion of innocence requires a trial court to grant the defendant’s presentence
motion to withdraw his guilty plea. Id. at 1287-88.

        Upon further appeal to this Court, we clarified the law in this area, as discussed
supra, and applied that law to Carrasquillo’s circumstances. The Court concluded that
the trial court acted within its discretion by denying Carrasquillo’s presentence motion to
withdraw his guilty plea because Carrasquillo’s claim of innocence was implausible in light
of, inter alia, the bizarre nature of his statements during his plea colloquy and the strength
of the Commonwealth’s case against him. Id. at 1291-93.

       As to Hvizda, Hvizda pleaded guilty to first-degree murder and possession of an
instrument of crime. 116 A.3d at 1104. He later sought to withdraw that plea based upon
a bare assertion of innocence. The trial court denied the motion, concluding that the claim
of innocence was pretextual and an attempt to manipulate the system. Id. at 1104-05.
The Superior Court reversed and stated that the trial court should have accepted Hvizda’s
claim of innocence and allowed him to withdraw his plea. On appeal to this Court, we
explained that the Carrasquillo Court “determined that a bare assertion of innocence—
such as [Hzivda] provided as the basis for withdrawing his guilty plea—is not, in and of



                                       [J-36-2018] - 5
       After this Court issued its opinions in Carrasquillo and Hvizda, the Commonwealth,

in the case at bar, timely filed in the trial court a motion for reconsideration of its order

permitting Appellant to withdraw his plea of nolo contendere.             In that motion, the

Commonwealth highlighted that the court permitted Appellant to withdraw his plea based

solely on an assertion of innocence and that Carrasquillo and Hvizda held that a bare

assertion of innocence is not, in and of itself, a sufficient reason to require a court to grant

a defendant’s presentence request to withdraw a guilty plea.

       On June 25, 2015, the trial court entertained argument on the Commonwealth’s

motion for reconsideration. For its part, the Commonwealth questioned the plausibility

and sincerity of Appellant’s assertion of innocence and suggested that Appellant simply

was seeking to delay the prosecution and the consequences that awaited him. The

Commonwealth posited that strong evidence of record indicates that Appellant’s assertion

of innocence was implausible and that fairness and justice did not require the court to

allow Appellant to withdraw his plea.

       Appellant’s counsel, on the other hand, insisted that Appellant had always

maintained his innocence, emphasizing that his nolo contendere plea did not equate to

an admission of guilt to the crimes of which he was convicted. In this regard, Counsel

also asserted that, when the SOAB interviewed Appellant to assess his sexual offender

status, he “refused to participate, maintaining his innocence.” N.T., 6/25/2015, at 7.

Counsel further stated that, if permitted to withdraw his plea, Appellant intended to contest

the Commonwealth’s evidence at trial by attacking Victim’s credibility, as she answered,

“I don’t remember,” at least 15 times during the preliminary hearing. Id. at 8. Counsel




itself a sufficient reason to require a court to grant such a request.” Id. at 1107. The
Court, therefore, concluded that the trial court did not err by denying Hzvida’s presentence
motion to withdraw his guilty plea. Id.

                                        [J-36-2018] - 6
also seemed to insinuate that he would again challenge at trial the admissibility of the

prior-bad-acts evidence regarding his sexual abuse of Daughter.

       On June 26, 2015, the trial court issued a speaking order granting the

Commonwealth’s motion for reconsideration and denying Appellant’s motion to withdraw

his plea. In so doing, the court applied the Carrasquillo standard and concluded that

Appellant “did not make a colorable demonstration for withdrawal of his plea of nolo

contend[e]re that would promote fairness and justice.” Trial Court Order, 6/26/2015, at 2-

3. In support of this conclusion, the court observed that Appellant entered his negotiated

plea on November 7, 2014, which notably was the day that the court and parties were set

to pick a jury. Id. at 3.   The court further reported that, shortly after entering his plea,

Appellant signed a sexual offender colloquy, acknowledging his obligations to register as

a sexual offender as required by Pennsylvania law. 4          The court noted that, at the

Commonwealth’s request, it then scheduled sentencing for May 7, 2015.

       The trial court continued by explaining that, in his motion to withdraw his plea,

Appellant simply averred that “he was innocent and could not live with himself for taking

a plea to offenses of which he is innocent.” Id. at 4. Appellant made the same general

claim at the April 30, 2015, hearing on his motion to withdraw, which the court determined

“was the gist” of Appellant’s reason for requesting withdrawal of his plea. Id.

       Appellant filed a motion for reconsideration of the June 26 th order, which was

denied on August 4, 2015.5        On August 7, 2015, consistent with the parties’ plea

agreement, the trial court sentenced Appellant to an aggregate term of imprisonment of

two to six years. During the sentencing hearing, the trial court also explained that, as a

4 The trial court did not explain why it noted this fact, though it appears to have been
aimed simply at giving a full timeline of the events that led up to Appellant filing his motion
to withdraw his nolo contendere plea.
5 The trial court apparently held a hearing on Appellant’s motion for reconsideration, but
there is no transcript of that hearing in the certified record.

                                       [J-36-2018] - 7
result of his convictions for indecent assault and corruption of a minor, Appellant was to

be classified as a Tier III sexual offender pursuant to the Sexual Offender Registration

and Notification Act, 42 Pa.C.S. §§ 9799.10-9799.42.

       Appellant timely filed a notice of appeal, and the trial court directed him to comply

with Pa.R.A.P. 1925(b). Appellant filed a concise statement of matters complained of on

appeal. Therein, Appellant stated that he intended to raise four issues on appeal, all of

which concerned the trial court’s decision to deny his motion to withdraw his nolo

contendere plea.

       In its Pa.R.A.P. 1925(a) opinion, the trial court bolstered the analysis that it

provided in its speaking order denying Appellant’s motion to withdraw his plea. In relevant

part, the court stated that it went to great lengths in the plea colloquy with Appellant to

ensure that he entered his plea knowingly, voluntarily, and intelligently. Trial Court

Opinion, 11/17/2015, at 6. The court explained that the plea colloquy was conducted in

chambers while the prospective jury pool waited in the courtroom.

       The trial court also explained that it initially granted Appellant’s motion to withdraw

his plea based upon the prevailing law at the time which suggested that a bare assertion

of innocence warranted the withdrawal of a plea prior to sentencing. However, on the

Commonwealth’s motion, the court believed it prudent to reconsider its decision in light

of this Court’s opinion in Carrasquillo, id. at 6-7, which was decided eight days after the

court permitted Appellant to withdraw his plea based upon his bare assertion of

innocence. In this regard, the court reiterated its conclusion that Appellant failed to

“demonstrate, under the facts of this case, that permitting withdrawal of his plea would

promote fairness and justice.” Id. at 7. The court opined that Appellant had ample time

prior to his November 7, 2014, plea to consider and assert his innocence. Id.




                                       [J-36-2018] - 8
       Lastly, the trial court addressed Appellant’s claim that he intended to contest the

Commonwealth’s evidence at trial. Id. at 8. Similar to its consideration of his assertion

of innocence, the court found that Appellant had ample time to discover and inspect the

Commonwealth’s evidence well prior to his plea. The court stated, “It would be logical

that [Appellant] and his counsel considered all of the evidence of the case, including the

Commonwealth’s evidence or lack thereof, in deciding whether to enter into the

negotiated[] nolo contendere plea agreement with the Commonwealth.” Id. The court

concluded that any assertion of a desire to challenge the Commonwealth’s evidence was

not new to the case. Id. In other words, Appellant’s two “primary claims, that he was

innocent and that he sought to challenge the Commonwealth’s evidence at trial, were not

novel to the post-plea proceedings of this case.” Id. The trial court, therefore, denied

Appellant’s motion to withdraw his nolo contendere plea because his bare assertion of

innocence did not establish that withdrawal of the plea would promote fairness and

justice.

       On appeal to the Superior Court, Appellant posited that the trial court abused its

discretion by denying his presentence motion to withdraw his plea of nolo contendere. In

terms of the Carrasquillo standard, Appellant contrasted his claim of innocence with

Carrasquillo’s claims.   Appellant argued that, unlike the circumstances presented in

Carrasquillo, his protestation of innocence was plausible because he had maintained his

innocence throughout the trial court proceedings. Appellant further argued that the record

indicated that he was not attempting to delay his prosecution and that he offered a viable

defense to the charges to which he pleaded, namely, he could challenge the sufficiency

of the Commonwealth’s evidence by undermining the credibility of the Commonwealth’s

witnesses, particularly that of Victim.




                                          [J-36-2018] - 9
       The Commonwealth insisted that the trial court properly applied Carrasquillo. In

so doing, the Commonwealth highlighted that, in seeking to withdraw his plea of nolo

contendere, Appellant merely asserted his innocence without making any specific,

colorable demonstration that the withdrawal of that plea would promote fairness and

justice.   In terms of Appellant’s declared trial-defense strategy, the Commonwealth

suggested that any defense predicated on attacking Victim’s credibility should have been

readily apparent to Appellant and his counsel following the preliminary hearing; yet,

despite this seemingly obvious knowledge, Appellant nonetheless chose to plead nolo

contendere. Thus, in the Commonwealth’s view, the trial court acted within its discretion

by denying Appellant’s presentence motion to withdraw his plea.

       The Superior Court ultimately affirmed Appellant’s judgment of sentence in an

unpublished memorandum. Commonwealth v. Norton, 2017 WL 1113289 (Pa. Super

filed March 23, 2017).      After reiterating the substance of this Court’s opinion in

Carrasquillo, the Superior Court stated that it could discern no abuse of discretion in the

trial court’s decision to deny Appellant’s presentence motion to withdraw his plea of nolo

contendere. Indeed, the intermediate court concluded that the record supported 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.” Norton, 2017 WL 1113289, at *3 (quoting Carrasquillo, 115 A.3d at 1292)

(emphasis removed). In support of this conclusion, the Superior Court observed, inter

alia, that, despite having possessed ample opportunity during the nearly two-year period

between his arrest and his plea “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 [ ] a viable defense to the charges at trial[,]” Appellant failed to do so. Id.




                                      [J-36-2018] - 10
       Senior Judge Fitzgerald filed a dissenting memorandum. In the dissent’s view, the

trial court erroneously failed to address the quality of Appellant’s assertion of innocence

and conflated the liberal standard for assessing a presentence motion to withdraw a guilty

plea with the more stringent standard that governs a defendant’s post-sentence request

to withdraw such a plea.6 In sum, the dissent concluded 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.” Id. at *7.

       Appellant filed a petition for allowance of appeal, which we granted to address the

following issue, as phrased by Appellant:

       Whether a defendant’s assertion of innocence based on the sufficiency of
       the evidence and his inability to reconcile entering a plea when he
       maintained his innocence well before the time of his sentencing and when
       the Commonwealth made no argument of prejudice, is sufficient to establish
       a fair and just reason for withdrawing his plea of nolo contendere?
Commonwealth v. Norton, 170 A.3d 1059 (Pa. 2017).

       In his brief to this Court, Appellant simply reiterates, with minor augmentation, the

arguments that he presented to the Superior Court regarding the alleged errors made by

the trial court. Indeed, the “Argument” portion of Appellant’s brief fails to acknowledge

the rationale that the Superior Court offered in support of its decision to affirm Appellant’s

judgment of sentence, let alone assign any error to that rationale. In response, the

Commonwealth similarly renews its contention that the trial court acted within its

discretion by denying Appellant’s motion to withdraw his plea.

       Reduced to its essence, the question Appellant poses to this Court requires us to

examine whether the Superior Court properly determined that the trial court acted within



6 Stated succinctly, “the standard for post-sentence withdrawal is a stringent one,
requiring the defendant to establish manifest injustice.” Hvizda, 116 A.3d at 1106.

                                      [J-36-2018] - 11
its discretion by denying Appellant’s presentence motion to withdraw his plea of nolo

contendere pursuant to this Court’s decision in Carrasquillo. Thus, it is helpful to begin

our analysis with a brief review of the well-settled law regarding trial court discretion.

       “When a [trial] court comes to a conclusion through the exercise of its discretion,

there is a heavy burden [on the appellant] to show that this discretion has been abused.”

Commonwealth v. Eichinger, 915 A.2d 1122, 1140 (Pa. 2007) (citation omitted). An

appellant cannot meet this burden by simply persuading an appellate court that it may

have reached a different conclusion than that reached by the trial court; rather, to

overcome this heavy burden, the appellant must demonstrate that the trial court actually

abused its discretionary power. Id. “An abuse of discretion will not be found based on a

mere error of judgment, but rather exists where the [trial] court has reached a conclusion

which overrides or misapplies the law, or where the judgment exercised is manifestly

unreasonable, or the result of partiality, prejudice, bias or ill-will.” Id. Absent an abuse of

that discretion, an appellate court should not disturb a trial court’s ruling. Id.

       With these standards in mind, we reiterate that the Carrasquillo Court overruled a

relatively long line of precedent which, understandably but mistakenly, required trial

courts to grant presentence motions to withdraw guilty pleas based upon defendants’ bare

assertions of innocence. As noted above, Carrasquillo held that, when a defendant files

a presentence motion to withdraw a guilty plea based upon a claim of innocence, the

“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, 115 A.3d at 1292. Stated

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.” Id. While the

Carrasquillo Court acknowledged that the “policy of liberality remains extant,” the Court




                                       [J-36-2018] - 12
explained that this policy “has its limits, consistent with the affordance of a degree of

discretion to the common pleas courts.” Id.; see also Pa.R.Crim.P. 591(A) (explaining

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[]”).

       Thus, the Carrasquillo Court clearly established that trial courts have the discretion

to assess the plausibility of claims of innocence. Consistent with the well-established

standards governing trial court discretion, it is important that appellate courts honor trial

courts’ discretion in these matters, as trial courts are in the unique position to assess the

credibility of claims of innocence and measure, under the circumstances, whether

defendants have made sincere and colorable claims that permitting withdrawal of their

pleas would promote fairness and justice.

       To be clear, when a trial court is faced with a presentence motion to withdraw a

guilty plea, the court’s discretion is not unfettered. As this Court has often explained,

“[t]he term ‘discretion’ imports the exercise of judgment, wisdom and skill so as to reach

a dispassionate conclusion, within the framework of the law, and is not exercised for the

purpose of giving effect to the will of the judge.” Commonwealth v. Widmer, 744 A.2d

745, 753 (Pa. 2000) (citation omitted).        Thus, a court’s discretion in ruling on a

presentence motion to withdraw a guilty plea must be informed by the law, which, for

example, requires courts to grant these motions liberally, Carrasquillo, supra, and to make

credibility determinations that are supported by the record, see Commonwealth v. Myers,

722 A.2d 649, 652 (Pa. 1998) (explaining that, “when appellate review involves the trial

court’s findings of fact and credibility determinations, those findings are binding on the

reviewing court if they find support in the record”). Moreover, while an appellate court

should not substitute its judgment for that of a trial court that ruled on a presentence




                                      [J-36-2018] - 13
motion to withdraw a guilty plea, the appellate court is tasked with the important role of

assessing the propriety of the trial court’s exercise of its discretion. See Widmer, 744

A.2d at 753 (“The propriety of the exercise of discretion in such an instance may be

assessed by the appellate process when it is apparent that there was an abuse of that

discretion.”).

       Turning to the circumstances of this case, in support of his presentence motion to

withdraw his plea of nolo contendere, Appellant asserted in the trial court that: (1) he is

innocent; (2) he cannot live with himself for taking a plea; and (3) he wants to test the

Commonwealth’s evidence at trial. Simply put, the last two assertions add nothing to the

first. Appellant’s contention that he could not live with himself for entering his plea is self-

serving makeweight and does not add any substantive support to the plausibility of his

claim of innocence. Appellant’s desire to test the Commonwealth’s evidence at trial is

equally non-substantive. Generally speaking, trials are always proceedings in which the

parties test each other’s evidence, and Appellant’s belated wish for a trial fails to bolster

his claim of innocence, particularly in light of the fact that any vulnerability in the

Commonwealth’s evidence, specifically Victim’s testimony, was well known to Appellant

prior to him entering his plea. In other words, for all intents and purposes, the reality is

that Appellant solely asserted his innocence in an attempt to withdraw his plea

presentence.

       The trial court was intimately familiar with this case, having observed Appellant

throughout the various trial court proceedings. Additionally, the court demonstrated a

studied understanding of the law in this area. For example, the trial court appropriately

assessed the plausibility of Appellant’s contentions supporting withdrawal of his plea

when it considered the timing and entry of the nolo contendere plea, which occurred in

chambers while a prospective jury pool waited in the courtroom. The trial court also




                                       [J-36-2018] - 14
properly factored into its exercise of discretion Appellant’s knowledge of his available

defenses when he pleaded and then inexplicably waited four months to file his motion to

withdraw his plea.

       After the trial court assessed the nature of the claim Appellant offered in support

of his motion to withdraw his plea, the court reasonably determined that, like the

defendant in Hvizda, Appellant simply was presenting a bare assertion of innocence.

Consequently, the court denied his presentence motion to withdraw his guilty plea. As

the Superior Court determined, the clear standard articulated in Carrasquillo establishes

that the trial court acted within its discretion when it denied Appellant’s motion on the

basis that his bare assertion of innocence was not, in and of itself, a sufficient reason to

require the court to grant Appellant’s presentence motion to withdraw his nolo contendere

plea. See Hvizda, 116 A.3d 1103 (applying the holding in Carrasquillo and concluding

that the trial court did not err by denying Hvizda’s presentence motion to withdraw his

guilty plea, which was premised on a bare assertion of innocence).

       For these reasons, we hold that the Superior Court correctly determined that the

trial court did not abuse its discretion by denying Appellant’s motion to withdraw his plea.7


7 The Dissent expresses concern that we are: (1) creating a per se rule that “it is not a
fair and just reason to withdraw a plea where the withdrawal is based on a factually
supported argument that the Commonwealth does not have sufficient evidence to
convict[,]” Dissenting Opinion at 1-2; (2) suggesting that, as a matter of law, “if facts are
discovered post-plea, a motion to withdraw may be viewed more favorably[,]” id. at 2; and
(3) somehow “imbuing trial courts with unfettered discretion in granting or denying
motions to withdraw[,]” id. at 3; see id. at 4 (asserting that “the Majority’s opinion is so
amorphous in its statement of the law that it can be read to say that a trial court, having
the opportunity to observe the defendant, can, in its discretion, convert any reason for
withdrawal into a ‘bare assertion of innocence’ and deny the motion”).

       Respectfully, we are not creating any per se rules regarding what constitutes a fair
and just reason to withdraw a guilty plea presentence. To the contrary, we believe that
this opinion makes clear that trial courts must decide on a case-by-case basis whether a
defendant, moving to withdraw a guilty plea presentence, has presented a fair and just



                                      [J-36-2018] - 15
We, therefore, affirm the judgment of the Superior Court, which affirmed Appellant’s

judgment of sentence.

       Chief Justice Saylor and Justices Todd, Dougherty and Mundy join the opinion.

       Chief Justice Saylor files a concurring opinion in which Justices Todd and

Dougherty join.

       Justice Donohue files a dissenting opinion in which Justice Wecht joins.




reason to support such a motion. Indeed, one of Carasquillo’s lessons is that trial courts
should not deny or grant presentence motions to withdraw guilty pleas based upon any
particular factor, such as a defendant’s bare assertion of innocence or, as the dissent
seems to suggest, a desire to pursue a standard defense strategy seeking to discredit the
Commonwealth’s evidence. Rather, when ruling on a presentence motion to withdraw a
guilty plea, a court should carefully exercise its discretion in accordance with the law.
While we believe that this opinion adequately explains the concept of trial court discretion
in this context, supra at 12-14, we are confident that trial courts are well-aware of the
boundaries of their discretion, as myriad of their rulings turn on the exercise of this time-
honored legal standard. If, through the proper exercise of this discretion, a trial court
concludes that a defendant merely has made an assertion of innocence in support his
motion to withdraw his plea, then the court has the authority to deny the motion.
Carrasquillo, supra.

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