J-S47006-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    CHARLES FRANCIS PLUMMER                    :
                                               :
                       Appellant               :   No. 497 MDA 2019

         Appeal from the Judgment of Sentence Entered March 14, 2019
      In the Court of Common Pleas of Luzerne County Criminal Division at
                        No(s): CP-40-CR-0004641-2017


BEFORE: DUBOW, J., NICHOLS, J., and MUSMANNO, J.

MEMORANDUM BY DUBOW, J.:                            FILED DECEMBER 04, 2019

        Appellant, Charles Francis Plummer, appeals from the March 14, 2019

Judgment of Sentence entered in the Luzerne County Court of Common Pleas

following his conviction of Possession With Intent to Deliver (“PWID”)

(cocaine) and Criminal Use of a Communication Facility.1 Appellant challenges

the denial of his pre-trial Motion to Withdraw Guilty Plea. After careful review,

we affirm.

        On January 22, 2019, Appellant entered an open guilty plea to the above

crimes.    On March 14, 2019, the court convened Appellant’s sentencing

hearing, at the outset of which Appellant made an oral Motion to Withdraw his

guilty plea. In support of the Motion, Appellant alleged that “as soon as” he

left the court after entering his guilty plea almost two months earlier, he had

____________________________________________


1   35 P.S. § 780-113(a)(30) and 18 Pa.C.S. §7512(a), respectively.
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learned that the woman for whom he had obtained the cocaine was

cooperating with law enforcement and had “lured” him into getting her drugs

by claiming to be “sick” and in need of drugs due to her addiction.     N.T.

Sentencing, 3/14/19, at 3. Appellant reported that he had been told that this

woman’s true motive was that she was angry with the supplier—not

Appellant—and wanted to implicate him. Id. Appellant’s counsel explained

that Appellant believed that he could raise an entrapment defense, but that

counsel did not consider the defense viable. Id. at 3-4. The Commonwealth

opposed Appellant’s Motion.    The sentencing court denied the Motion and

sentenced Appellant to an aggregate term of 35 to 72 months’ incarceration,

followed by one year of probation.

      Appellant timely appealed from his Judgment of Sentence.          Both

Appellant and the trial court complied with Pa.R.A.P. 1925.

      On appeal, Appellant challenges “[w]hether the trial court abused its

discretion by denying Appellant’s pre-sentence [M]otion to [W]ithdraw his

guilty plea?”   Appellant’s Brief at 1.   He argues that his assertion of an

entrapment defense “suggest[ed] his innocence” and that the court abused

its discretion in denying his Motion because the Commonwealth did not offer

any evidence and “made absolutely no credible argument” that the withdrawal

of his plea would cause it prejudice. Id. at 6-7.

      This Court reviews the denial of a motion to withdraw a guilty plea for

an abuse of discretion. Commonwealth v. Gordy, 73 A.3d 620 (Pa. Super.

2013). An abuse of discretion is more than an error in judgment; it will not

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be found unless the trial court’s judgment was manifestly unreasonable, or

was the result of partiality, bias, or ill-will. Commonwealth v. McNabb, 819

A.2d 54, 55 (Pa. Super. 2003).

      Pennsylvania Rule of Criminal Procedure 591(A) provides that, “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).

      The following precepts inform our review of a trial court’s denial of a

motion to withdraw a guilty plea prior to sentencing:

      We begin with the principle that a defendant has no absolute right
      to withdraw a guilty plea; rather, the decision to grant such a
      motion lies within the sound discretion of the trial court.
      Commonwealth v. Hutchins, 683 A.2d 674, 675 (Pa. Super.
      1996). In the seminal case of Commonwealth v. Forbes, 299
      A.2d 268 (Pa. 1973), the Supreme Court set forth the standard
      for determining when a motion to withdraw a guilty plea prior to
      sentencing should be granted. The Court stated that “[a]lthough
      there is no absolute right to withdraw a guilty plea, properly
      received by the trial court, it is clear that a request made before
      sentencing . . . should be liberally allowed.” 299 A.2d at 271. The
      Court then outlined the now well-established two[-]prong test for
      determining when to grant a pre-sentence motion to withdraw a
      plea: (1) the defendant has provided a “fair and just reason” for
      withdrawal of his plea; and (2) the Commonwealth will not be
      “substantially prejudiced in bringing the case to trial.” Id.

Commonwealth v. Muhammad, 794 A.2d 378, 382-83 (Pa. Super. 2002).

      In 2015, the Pennsylvania Supreme Court in Commonwealth v.

Carrasquillo, 115 A.3d 1284 (Pa. 2015), further clarified the inquiry that

must be made when considering a pre-sentence attempt to withdraw a plea


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based on a claim of innocence. It held that “the proper inquiry . . . is whether

the   accused   has   made       some     colorable   demonstration,    under   the

circumstances, such that permitting withdrawal of the plea would promote

fairness and justice.” Carrasquilla, 115 A.3d at 1292. Thus, a defendant

seeking to withdraw his plea based on an assertion of innocence must make

such a claim that is “at least plausible to demonstrate, in and of itself, a fair

and just reason for presentence withdrawal of a plea.” Id. “The policy of

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

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

      The determination of whether there is a “fair and just reason” is based

on the totality of the circumstances present at the time the withdrawal request

is made.    Commonwealth v. Tennison, 969 A.2d 572, 573 (Pa. Super.

2009).     In making a determination of whether a defendant has made a

plausible assertion of innocence, trial courts should consider “both the timing

and the nature of the innocence claim, along with the relationship of that claim

to the strength of the government’s evidence,” and “any ‘ulterior or illicit

motive’ for the motion to withdraw.” Commonwealth v. Islas, 156 A.3d

1185, 1190-91 (Pa. Super. 2017) (citing Carrasquillo, supra, at 1293). See

also Commonwealth v. Hvizda, 116 A.3d 1103, 1107 (Pa. 2015) (noting

Carrasquillo’s holding that “a bald assertion of innocence” is no longer

sufficient grounds to permit withdrawal of a guilty plea).

      An entrapment defense does not deny that the defendant committed

the   charged   offense,   but   rather    constitutes   an   affirmative   defense.

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Commonwealth v. Joseph, 848 A.2d 934, 938 (Pa. Super. 2004).                 A

successful entrapment defense requires the defendant to prove by a

preponderance of the evidence that the conduct of the police or an agent of

the police reached such a “level of outrageousness” as to “make a reasonable

person feel compelled to commit the crimes.” Commonwealth v. Zingarelli,

839 A.2d 1064, 1073-74 (Pa. Super. 2003).

      In its Rule 1925(a) Opinion, the trial court first noted, and Appellant

does not dispute, that “the record demonstrates that [Appellant’s] guilty plea

colloquy inquiry covered all material matters necessary to a voluntary,

knowing[,] and intelligent plea of guilty.” Trial Ct. Op., 5/9/19, at 5.     In

explaining its decision to deny Appellant’s Motion to Withdraw Guilty Plea, the

court opined as follows:

      [Appellant] testified [that] he was aware of the alleged affirmative
      defense of entrapment immediately following the entry of his
      guilty plea. Notwithstanding, he did not expeditiously seek to
      withdraw the guilty plea in order to advance an alleged
      entrapment defense at trial until his counsel reviewed the [Pre-
      Sentence Investigation Report] and he appeared for sentencing—
      51 days after he entered the guilty plea.

      We certainly recognize the standard to be applied herein is that of
      a pre-sentence request to withdraw a guilty plea and, applying
      that standard, we find [Appellant] failed to offer any fair, just[,]
      or timely explanation in support of his request to withdraw the
      guilty plea.

Id. at 6 (footnote omitted).

      Our review of the record confirms that Appellant conceded that he had

been aware of his alleged entrapment defense since “as soon as” he left the

court after entering his guilty plea. Moreover, Appellant did not allege, let

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alone prove, by a preponderance of the evidence that the alleged conduct of

the police or an agent of the police reached such a “level of

outrageousness” as to “make a reasonable person feel compelled to commit

the crimes.” See Zingarelli, supra. Thus, Appellant did not state a basis for

a viable entrapment defense.

       In light of the eleventh-hour nature of Appellant’s request to withdraw

his plea, and his “bare assertion of innocence,” we conclude that the trial court

did not abuse its discretion in finding that Appellant did not provide a “fair and

just reason” to permit Appellant to withdraw his plea. See Carrasquillo, 115

A.3d at 1292 (holding that a bare assertion of innocence is not a fair and just

reason to permit a pre-sentence withdrawal of a guilty plea and that “the

timing of the innocence claim” is relevant). Appellant’s claim, therefore, fails.2

       Judgment of Sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 12/04/2019

____________________________________________


2Because we agree with the trial court that Appellant failed to present a fair
and just reason militating withdrawal of his guilty plea, we need not address
Appellant’s assertion that the court should have granted his Motion because
Commonwealth offered no evidence that it would suffer prejudice if the court
permitted Appellant to withdraw his plea.


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