J-A13003-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                         Appellee

                    v.

EMMANUEL DAVIS,

                         Appellant                    No. 909 WDA 2015


            Appeal from the Judgment of Sentence May 7, 2015
             In the Court of Common Pleas of Cambria County
            Criminal Division at No(s): CP-11-CR-0001693-2013


BEFORE: OLSON, STABILE AND MUSMANNO, JJ.:

MEMORANDUM BY OLSON, J.:                       FILED SEPTEMBER 12, 2016

      Appellant, Emmanuel Davis, appeals from the judgment of sentence

entered on May 7, 2015, challenging the denial of his pre-sentence motion

to withdraw his guilty plea. We affirm.

      The trial court briefly set forth the facts and procedural history of this

case as follows:

        [Appellant] was charged with drug offenses arising from a
        criminal incident that took place on March 6, 2012. Multiple
        defense continuances were granted until [Appellant]
        accepted a plea to Count 1, possession with intent to deliver
        0.38 grams of cocaine, 35 P.S. § 780-113(a)(30), an
        ungraded felony offense. The plea hearing was held on
        December 4, 2014, and sentencing was scheduled for
        January 6, 2015. On that date, [Appellant] appeared with
        counsel [] and requested a continuance for medical reasons.
        The [trial court] rescheduled sentencing for March 24, 2015.
        Less than a week prior to sentencing, [Appellant] filed a
        counseled motion to withdraw his guilty plea, citing
        innocence and an unknowing, involuntary plea.
J-A13003-16


         On March 24, 2015, the Commonwealth presented the
         testimony of Detective Kevin Price, who stated that he had
         mistakenly destroyed the laboratory-analyzed drugs, which
         would be essential to the prosecution of [Appellant’s] case
         at trial. [Defense counsel] argued that any prejudice to the
         Commonwealth in trying its case, due to the loss of the
         drug evidence, was no fault of [Appellant], and contended
         that [Appellant] maintain[ed] his innocence and ha[d] an
         absolute right to withdraw his guilty plea. [Appellant did
         not present] evidence in support of this assertion. The [trial
         court] requested transcription of the guilty plea [hearing]
         and memorand[a] [from both parties], and following review
         of the submitted briefs and record, the hearing was
         rescheduled.

         On May 7, 2015, the [Commonwealth] reiterated its position
         as did [defense counsel], asserting that [Appellant]
         maintained his innocence and wanted to proceed to trial.
         The [trial court] denied the motion to withdraw and
         proceeded to sentence [Appellant] within the standard
         sentencing guideline range, to two to four years’
         incarceration.

Trial Court Opinion, 7/15/2015, at 1-2 (record citation omitted). This timely

appeal resulted.1

       On appeal, Appellant presents the following issue for our review:

         Whether the [trial] court erred in denying [Appellant’s]
         motion to withdraw [his] guilty plea filed prior to
         sentencing?

Appellant’s Brief at 4 (complete capitalization omitted).



____________________________________________


1
   Appellant filed a notice of appeal on June 5, 2015. On June 10, 2015, the
trial court ordered Appellant to file a concise statement of errors complained
of on appeal pursuant to Pa.R.A.P. 1925(b). Appellant complied timely on
June 17, 2015. On July 15, 2015, the trial court issued an opinion pursuant
to Pa.R.A.P. 1925(a).



                                           -2-
J-A13003-16



       Appellant argues that he maintained his innocence prior to sentencing

and the trial court erred by failing to withdraw his plea. Id. at 8. Appellant

relies primarily on our Supreme Court’s decisions in Commonwealth v.

Forbes, 299 A.2d 268 (Pa. 1973) and Commonwealth v. Randolph, 718

A.2d 1242 (Pa. 1998) for the proposition “that a mere assertion of innocence

was a fair and just reason for pre-sentence withdrawal of a guilty plea

absent substantial prejudice to the Commonwealth.”           Id.   Regarding

prejudice, Appellant argues:

         The [Commonwealth] avers that it has been substantially
         prejudiced because it destroyed evidence prior to
         sentencing. The [Commonwealth’s] witness stated that the
         protocol for destruction of evidence is after the 30-day
         appeal period has terminated. The 30-day appeal period
         [had not run before the evidence was destroyed]. The
         Commonwealth has not been substantially prejudiced by the
         actions of [Appellant]. If the Commonwealth has been
         prejudiced, it has been prejudiced by [its] own conduct and
         [in] violation of [its] own protocol.

Id. at 10.

       In response, the Commonwealth contends that a bare assertion of

innocence is not a sufficient reason to grant the withdrawal of a pre-

sentence guilty plea. Commonwealth’s Brief at 6. The Commonwealth relies

upon    our   Supreme   Court’s   pronouncement    in   Commonwealth        v.

Carrasquillo, 115 A.3d 1284 (Pa. 2015), a decision filed on June 15, 2015,

after the submission of Appellant’s pre-sentence request to withdraw his

plea and after the imposition of sentence in this case. Carrasquillo states

that the proper inquiry for the pre-sentence withdrawal of a guilty plea “is


                                    -3-
J-A13003-16



whether the accused has made some colorable demonstration, under the

circumstances, such that permitting withdrawal of a plea would promote

fairness and justice.”2     Commonwealth’s Brief at 6, citing Carrasquillo, 115

A.3d     at   1292.      The    Commonwealth       posits   that   Appellant   avoids

Carrasquillo by simply not citing it, relying instead upon the 1973 Forbes

decision, contrary to prevailing law.            Id. at 7-8.       Furthermore, the

Commonwealth suggests Appellant bears the burden to show a lack of

substantial prejudice and that, under the circumstances of this case, “the

inadvertent destruction of evidence constitutes substantial prejudice.” Id. at

9, citing Commonwealth v. Kirsch, 930 A.2d 1282, 1287 (Pa. Super.

2007).

       The standard of review that we employ in challenges to a trial court's

decision regarding a pre-sentence motion to withdraw a guilty plea is

well-settled:

          A trial court's decision regarding whether to permit a guilty
          plea to be withdrawn should not be upset absent an abuse
          of discretion. An abuse of discretion exists when a
          defendant shows any fair and just reasons for withdrawing
          his plea absent substantial prejudice to the Commonwealth.
          In its discretion, a trial court may grant a motion for the
          withdrawal of a guilty plea at any time before the imposition
          of sentence.       Although 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. The policy underlying this liberal exercise
____________________________________________


2
   The trial court, likewise, relied upon Carrasquillo in its Pa.R.A.P. 1925(a)
opinion setting forth its reasons for denying Appellant’s request for relief.



                                           -4-
J-A13003-16


        of discretion is well-established: The trial courts in
        exercising their discretion must recognize that before
        judgment, the courts should show solicitude for a defendant
        who wishes to undo a waiver of all constitutional rights that
        surround the right to trial—perhaps the most devastating
        waiver possible under our constitution. In Forbes, our
        Supreme Court instructed that, in determining whether to
        grant a pre[-]sentence motion for withdrawal of a guilty
        plea, the test to be applied by the trial courts is fairness and
        justice.

Commonwealth v. Elia, 83 A.3d 254, 261–262 (Pa. Super. 2013).

      While Carrasquillo was decided after the trial court denied Appellant’s

request to withdraw his plea and imposed its sentence, we adhere to the

“general rule in Pennsylvania [that applies] the law in effect at the time of

the appellate decision.” Commonwealth v. Housman, 986 A.2d 822, 840

(Pa. 2009). The Carrasquillo Court determined:

        there is no absolute right to withdraw a guilty plea; trial
        courts have discretion in determining whether a withdrawal
        request will be granted; such discretion is to be
        administered liberally in favor of the accused; and 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 1291–1292 (footnote omitted). More specifically,

“a defendant's innocence claim must be at least plausible to demonstrate, in

and of itself, a fair and just reason for pre[-]sentence withdrawal of a plea.”

Id. at 1292.   The Supreme Court concluded that “a per se approach” to

allowing pre-sentence withdrawal of a guilty plea on a mere assertion of

innocence “is unsatisfactory.”   Id.   The Carrasquillo Court noted that in

evaluating a pre-sentence request to withdraw a guilty plea, courts could



                                       -5-
J-A13003-16



consider the timing of the innocence claim. Id., citing Forbes, 299 A.2d at

272 (“Obviously, the appellant, by his assertion of innocence—so early in the

proceedings, i.e., one month after the initial tender of a plea,—offered a ‘fair

and just’ reason for withdrawal of the plea.”) (brackets omitted).

      Here, the trial court concluded it “was presented with no more than a

bare assertion of [Appellant’s] innocence, and [it could not] discern [a]

plausible nor colorable showing within the record which would demonstrate

that withdrawal would promote fairness and justice.”       Trial Court Opinion,

7/15/2015, at 2. In support of its decision, the trial court highlighted the

fact that, in this case, there was a “three-year delay, attributable to

[Appellant], between his arrest and his motion to withdraw, which

contributed to the accidental destruction of the drug evidence.” Id. at 3.

      We discern no abuse of discretion.     Appellant relies exclusively on a

bare assertion of his innocence. However, as discussed above, our Supreme

Court has condemned a per se approach to allowing the withdrawal of a

pre-sentence guilty plea on such a basis. Appellant’s unsupported assertion

of innocence, after a three-year delay of his own making and one week

before sentencing, is not a plausible demonstration that withdrawal of his

plea would promote fairness and justice. Hence, we agree that withdrawal

of Appellant’s guilty plea was not proper.       Accordingly, Appellant’s sole

appellate issue is without merit.

      Judgment of sentence affirmed.




                                     -6-
J-A13003-16


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/12/2016




                          -7-
