J-S73010-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                         Appellee

                    v.

JAMIE DUNCAN MCCABE,

                         Appellant                  No. 50 MDA 2014


           Appeal from the Judgment of Sentence December 9, 2013
              In the Court of Common Pleas of Schuylkill County
             Criminal Division at No(s): CP-54-CR-0001871-2012


BEFORE: BOWES, WECHT, and MUSMANNO, JJ.

MEMORANDUM BY BOWES, J.:                       FILED DECEMBER 04, 2014

       Jamie Duncan McCabe appeals from the judgment of sentence of one

to two and one-half years incarceration imposed by the trial court after he

pled guilty to driving under the influence of drugs (“DUI”) and possession of

cocaine. We affirm.

       We glean the following facts from the affidavit of probable cause

contained in Appellant’s criminal complaint.   On June 28, 2011, Pottsville

Police responded to the 800 block of Grant Street in Pottsville due to a

report of an individual parked in the middle of the roadway obstructing

traffic.   Officer Richard Pugh arrived on the scene at approximately

7:30 a.m. He observed a black Ford sport utility vehicle blocking the street.

When he approached, he saw that the vehicle’s engine was running and the

transmission was in drive. Accordingly, he reached through the driver’s side
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window and placed the vehicle in park. Appellant was seated in the driver’s

seat and remained oblivious to the officer’s actions.

        Appellant had difficulty awakening, and his eyes were glassy and

extremely bloodshot.     According to the officer, Appellant was disoriented,

had difficulty answering questions, and was speaking with slow slurred

speech.    Officer Pugh asked Appellant to exit the vehicle.    Upon alighting

from the car, Appellant had difficulty standing. Appellant failed field sobriety

tests and was placed under arrest.       As a result of the arrest, a search

incident to arrest was conducted. The search of Appellant’s person yielded

two small clear baggies containing a white powder substance that tested

positively for cocaine. In addition, blood tests confirmed that Appellant had

the presence of cocaine, cocaine metabolites, Alprazolam, and Phenobarbital

in his system.

        Appellant initially pled guilty on May 24, 2013; however, he withdrew

that plea. Thereafter, Appellant again entered a guilty plea on August 16,

2013.     Nonetheless, the court permitted him to withdraw that plea.       The

instant guilty plea occurred on October 18, 2013. On the date of sentencing,

December 9, 2013, prior to his sentence being imposed, Appellant moved to

withdraw his guilty plea.     Appellant did not assert his innocence.       The

Commonwealth objected, claiming that Appellant was gaming the system

and that he had entered his plea on the date of jury selection. It added that

it was prejudiced by Appellant’s latest attempt to withdraw his plea and that

the reasons he provided were known before the entry of his plea.

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      The court declined to allow Appellant to withdraw his plea and imposed

a sentence of one year to two and one-half years on the possession charge

and a concurrent sentence of three to six months for the DUI. This timely

appeal ensued.     The trial court directed Appellant to file and serve a

Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal.

Appellant complied, and the trial court authored its decision. The matter is

now ripe for this Court’s review. Appellant’s sole issue on appeal is “whether

the trial court abused its discretion in denying Appellant’s motion to

withdraw his guilty plea prior to sentencing?” Appellant’s brief at 6.

      “There is no absolute right to withdraw a guilty plea. Nevertheless,

prior to the imposition of sentence, a defendant should be permitted to

withdraw his plea for any fair and just reason, provided there is no

substantial prejudice to the Commonwealth.” Commonwealth v. Walker,

26 A.3d 525, 529 (Pa.Super. 2011) (citations and quotation marks omitted);

see   Commonwealth        v.   Randolph,    718    A.2d   1242    (Pa.   1998);

Commonwealth v. Forbes, 299 A.2d 268 (Pa. 1973); Commonwealth v.

Katonka, 33 A.3d 44 (Pa.Super. 2011) (en banc).               An assertion of

innocence has consistently been held to constitute a fair and just reason to




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withdraw a plea.      Randolph, supra; Forbes, supra; Commonwealth v.

Gordy, 73 A.3d 620 (Pa.Super. 2013).1

       With regard to prejudice, our Supreme Court has held that prejudice

arises when a pre-sentence motion for withdrawal occurs after the

Commonwealth has dismissed a key witness.        Commonwealth v. Ross,

447 A.2d 943 (Pa. 1983). Similarly, this Court in Commonwealth v. Cole,

564 A.2d 203 (Pa.Super. 1989) (en banc), determined that prejudice existed

where a key witness left the jurisdiction after the entry of the plea.   In

addition, this Court has recognized prejudice where a pre-sentence

withdrawal motion is submitted at the last instant in a case involving child

sex abuse where family member witnesses, though available, were reluctant

to testify and the delay would have “dulled the five year old child victim’s

recall of events[.]”        Commonwealth v. Carr, 543 A.2d 1232, 1234

(Pa.Super. 1988).
____________________________________________


1
     We acknowledge that despite this Court’s repeated requests for
Commonwealth v. Forbes, 299 A.2d 268 (Pa. 1973), to be re-examined in
light of advancements in guilty plea proceedings, see Commonwealth v.
Turiano, 601 A.2d 846, (Pa.Super. 1992); Commonwealth v. Iseley, 615
A.2d 408 (Pa.Super. 1992); Commonwealth v. Rish, 606 A.2d 946
(Pa.Super. 1992); Commonwealth v. Cole, 564 A.2d 203 (Pa.Super. 1989)
(en banc), our Supreme Court rebuked this Court in Commonwealth v.
Randolph, 718 A.2d 1242 (Pa. 1998), and indicated that a bald assertion of
innocence is sufficient to warrant a pre-sentence guilty plea withdrawal.
However, the Pennsylvania Supreme Court has granted allowance of appeal
in a case to consider whether a trial court may decline to permit a pre-
sentence withdrawal where it finds that an assertion of innocence is
insincere. Commonwealth v. Carrasquillo, 86 A.3d 830 (Pa. 2014)
(allowance of appeal granted).



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      We       add,   as   the    Commonwealth         astutely   points   out,    that   in

Commonwealth v. Iseley, 615 A.2d 408 (Pa.Super. 1992), this Court

declined to extend the Forbes rationale to cases where the defendant had

previously been permitted to withdraw his guilty plea. The Iseley Court did

recognize that a claim of innocence ordinarily is a fair and just reason to

withdraw a pre-sentence plea.               However, because Iseley had already

successfully     withdrawn       his   guilty   plea   once,   we   held   that,    absent

extraordinary circumstances, his assertion of innocence was insufficient to

warrant a second withdrawal.

      Here, although Appellant argues that he asserted his innocence, the

record belies that claim. Indeed, the sentencing court expressly placed on

the record that Appellant was not asserting that he was innocent and

Appellant did not challenge these claims.                  See N.T., 12/9/13, at 4

(Sentencing Court setting forth, “that has nothing to do with whether he’s

innocent or guilty of these charges.”); id. at 8 (court opining that reasons

for withdrawal “has nothing to do with whether he committed the offenses or

not.”).    Appellant’s reasons for withdrawing his plea were that he had

additional open cases, concerns regarding his prior record score, and

discovery issues. Accordingly, even if this were Appellant’s first attempt to

withdraw his plea, he did not establish a fair and just reason for withdrawal

of his plea.

      Judgment of sentence affirmed.


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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/4/2014




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