J-S42023-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

DANIEL JOSEPH HOOPSICK, JR.

                            Appellant               No. 1816 WDA 2013


           Appeal from the Judgment of Sentence October 23, 2013
                 In the Court of Common Pleas of Erie County
             Criminal Division at No(s): CP-25-CR-0000648-2013


BEFORE: PANELLA, J., JENKINS, J., and MUSMANNO, J.

MEMORANDUM BY JENKINS, J.:                         FILED AUGUST 04, 2014

        Daniel Joseph Hoopsick, Jr. (“Appellant”) appeals from the judgment of

sentence entered following his nolo contendere plea.     After careful review,

we vacate the judgment of sentence and remand the matter for further

proceedings.

        The facts and procedural history may be summarized as follows. On

July 10, 2013, Appellant entered a plea of nolo contendere to one count

each of sexual assault,1 endangering the welfare of children,2 and corruption

of minors3 based on allegations that he forced a minor female victim to

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1
    18 Pa.C.S. § 3124.1.
2
    18 Pa.C.S. § 4304.
3
    18 Pa.C.S. § 6301.
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perform oral sex on him in December of the previous year.            Prior to

sentencing, Appellant filed a Motion to Withdraw Nolo Contendere Plea and

Continue Until January 2014 Trial Term (“Motion to Withdraw Plea”) to which

the Commonwealth filed a response. On October 23, 2013, the trial court

conducted a hearing and denied the Motion to Withdraw Plea. The trial court

then sentenced Appellant to an aggregate term of 66 to 180 months of

incarceration as follows: 54 to 120 months of incarceration on the sexual

assault conviction, 12 to 60 months of incarceration on the endangering

welfare of children conviction to be served consecutively to the sexual

assault conviction, and 12 to 60 months of incarceration on the corruption of

minors conviction to be served concurrently to the endangering the welfare

of children conviction. Appellant timely appealed.

      Appellant raises the following questions for our review:

      [1.] Did the lower court improperly deny defense counsel’s
      request for the appointment of conflict counsel[] in violation of
      [Appellant’s] 6th Amendment right to counsel?

      [2.] Did the lower court err in failing to permit Appellant to
      withdraw his plea, as his plea was not knowing and voluntary?

      [3.] Did the lower cour[t] abuse its discretion when it deemed
      [Appellant] a sexually violent predator, as there was insufficient
      evidence to support such a finding?

Appellant’s Brief, p. 2 (all capitals removed).

      We address Appellant’s second claim first, as it is dispositive.

Appellant argues that the trial court erred when it did not allow him to




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withdraw his plea of nolo contendere prior to sentencing.    See Appellant’s

Brief, pp. 4-6. We agree.

      “[I]n terms of its effect upon a case, a plea of nolo contendere is

treated the same as a guilty plea.” Commonwealth v. Miller, 748 A.2d

733, 735 (Pa.Super.2000).     The Pennsylvania Rules of Criminal Procedure

allow the withdrawal of a nolo contendere plea as follows:

     At 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).    We review a trial court’s denial of a motion to

withdraw a guilty plea for an abuse of discretion. Miller, 748 A.2d at 735.

     Although there is no absolute right to withdraw a guilty plea, this Court

has repeatedly stated that “[a] pre-sentence motion to withdraw a guilty

plea should be liberally allowed and should be granted for any fair and just

reason unless granting the motion would cause substantial prejudice to the

Commonwealth.”      Commonwealth v. Gordy, 73 A.3d 620, 623-24

(Pa.Super.2013) (citing Miller, 748 A.2d at 735) (internal citations omitted).

As the Court has further explained:

     An assertion of innocence can constitute a fair and just reason
     for plea withdrawal. In the context of a pre-sentence request for
     plea withdrawal, the term “prejudice” means that, due to events
     occurring after the entry of the plea, the Commonwealth’s
     prosecution of its case is in a worse position that it would have
     been had the trial taken place as originally scheduled. Thus,
     prejudice is about the Commonwealth’s ability to try its case, not
     about the personal inconvenience to complainants unless that


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       inconvenience        somehow        impairs   the   Commonwealth’s
       prosecution.

Gordy, 73 A.3d at 624 (internal citations omitted). The fact that a witness

later becomes a reluctant witness does not demonstrate that substantial

prejudice has inured to the Commonwealth to permit denial of pre-sentence

withdrawal of a guilty plea.         See Commonwealth v. Kirsch, 930 A.2d

1282, 1286-88 (Pa.Super.2007).

       Here, Appellant filed his Motion to Withdraw Plea prior to sentencing.

In support of his request, Appellant claimed actual innocence both in his

motion and at the hearing on the motion. See Motion to Withdraw Plea, p. 1

(“Motion to Withdraw Plea”); N.T. 10/23/2013, p. 4.          Appellant’s claim of

actual innocence constituted a fair and just reason for the trial court to

permit the pre-sentence withdrawal of Appellant’s guilty plea.4 See Gordy,

supra.

       At the hearing on the Motion to Withdraw Plea, the Commonwealth

offered the testimony of Stacie Pedersen, the victim’s caseworker from the

Erie County Office of Children and Youth. See N.T. 10/23/2013, pp. 6-10.

Ms. Pedersen explained that, prior to Appellant’s nolo contendere plea, the


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4
  We note that Appellant’s claim of actual innocence does not contradict his
previous plea.     See Commonwealth v. Boyd, 292 A.2d 434, 435
(Pa.Super.1972) (noting that a plea of nolo contendere is not an express
admission of guilt, but instead is a waiver of trial and an authorization for
the court to treat the defendant as if he were guilty for the purpose of the
case).



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victim exhibited an elevated level of anxiety, decreased concentration,

difficulties in school, behavioral outbursts, aggressive behaviors, and bed-

wetting.    Id. at 8.    Ms. Pedersen testified that these behaviors decreased

significantly after the victim learned of the plea and believed the matter to

be resolved.     Id. at 7.       However, Ms. Pedersen opined that the victim’s

anxiety and negative behaviors would return and possibly increase if the

victim learned that she would have to testify in a trial. Id. at 8. Based on

the Motion to Withdraw Plea and the hearing testimony, the trial court

denied the motion, explaining that (1) Appellant had presented a fair and

just reason for the withdrawal of his plea, but (2) “there would be a

significant impact upon the child victim if that plea were withdrawn.” N.T.

10/23/2013, p. 17. This was error.

       The victim’s pre-plea anxiety is akin to anxiety experienced by

witnesses in criminal cases every day in this Commonwealth and amounts to

her personal inconvenience.         That the victim’s mental state had improved

after learning of the plea is immaterial. Appellant’s request to withdraw his

nolo contendere plea would have returned the Commonwealth to exactly

where it had been prior to the plea: in a situation where the Commonwealth

needed to prove its case using the testimony of a reluctant witness.5       As


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5
  We further note that the “significant impact upon the child” feared by the
trial court was entirely speculative. Even if proven, the witness’s increased
reluctance to testify attendant to learning Appellant had withdrawn his plea
(Footnote Continued Next Page)


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such,    the   Commonwealth          would       not   have   experienced   “substantial

prejudice” had the trial court allowed Appellant to withdraw his plea prior to

sentencing. See Gordy, supra; see also Kirsch, 930 A.2d at 1288 (having

to prove its case following withdrawal of a plea is not prejudice to the

Commonwealth). Accordingly, the trial court abused its discretion in denying

the pre-sentencing Motion to Withdraw Plea.

        Because our determination of Appellant’s second issue is dispositive to

the matter, we need not examine his remaining claims.

        Judgment of sentence vacated. Order denying the Motion to Withdraw

Plea reversed. Case remanded for further proceedings consistent with this

decision. Jurisdiction relinquished.

        Judge Panella notes dissent.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/4/2014



                       _______________________
(Footnote Continued)

would not have demonstrated substantial prejudice to the Commonwealth.
See Gordy, supra.



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