J-S36032-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    JESSE KINDER                               :
                                               :
                       Appellant               :   No. 1771 WDA 2019

       Appeal from the Judgment of Sentence Entered October 29, 2019
     In the Court of Common Pleas of Crawford County Criminal Division at
                       No(s): CP-20-CR-0000975-2018


BEFORE: OLSON, J., KING, J., and PELLEGRINI, J.*

MEMORANDUM BY PELLEGRINI, J.:                          FILED AUGUST 14, 2020

        Jesse Kinder (Kinder) appeals from the judgment of sentence imposed

in the Court of Common Pleas of Crawford County (trial court) following his

entry of a guilty plea to criminal mischief.1       Counsel has filed a brief and

petition to withdraw pursuant to Anders v. California, 386 U.S. 738 (1967),

and Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009).                 We grant

counsel’s petition to withdraw and affirm the judgment of sentence.




____________________________________________


*   Retired Senior Judge assigned to the Superior Court.

1   18 Pa.C.S. § 3304(a)(5).
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                                               I.

       On June 12, 2019, Kinder entered a guilty plea to the above-mentioned

charge.2    At the hearing, Kinder admitted under oath that he intentionally

caused damage totaling $9,014.97 to property owned by the United

Community Independence Programs (UCIP) in Vernon Township on December

17-18, 2017. Two Pennsylvania State Police Troopers had collected Kinder’s

blood and DNA from a door handle and DVD player on the UCIP property.

Kinder indicated that he understood the offense carried a maximum penalty

of seven years’ imprisonment and a $15,000.00 fine.      The Commonwealth

nolle prossed the remaining charges of burglary and theft by unlawful taking.

       On June 21, 2019, Kinder filed a pro se motion requesting to withdraw

his guilty plea on the basis that he is innocent of the crime. The trial court

held a hearing on the motion on August 1, 2019. Kinder acted pro se and

stated multiple times that he did not want to postpone the proceeding to

obtain counsel. (See N.T. Motion to Withdraw Guilty Plea, 8/01/19, at 2, 6-

7). Kinder reiterated that he did not commit the offense. (See id. at 3). He

also noted that he entered the plea in order to gain transfer from county jail




____________________________________________


2Kinder elected to represent himself at the plea hearing following a thorough
colloquy regarding waiver of his right to counsel. (See N.T. Guilty Plea,
6/12/19, at 2-3, 7-8). At the time of the hearing, Kinder had recently been
convicted of burglary and related charges in two separate Crawford County
cases and was appealing those convictions.


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because it “did not have the resources to help me fight my [separate] case in

the Superior Court.” (Id. at 3).

        The trial court issued a memorandum and order denying Kinder’s motion

to withdraw his guilty plea on August 22, 2019. On October 29, 2019, the

trial court sentenced Kinder to a term of not less than twenty-four nor more

than sixty months’ incarceration, plus costs, a fine of $150.00 and restitution

to UCIP in the amount of $500.00. This timely appeal followed. Kinder and

the trial court complied with Rule 1925. See Pa.R.A.P. 1925(a)-(b). Counsel

filed an application to withdraw and an Anders Brief in this Court on May 28,

2020.

                                      II.

        We first address counsel’s application to withdraw which must satisfy

both procedural and substantive requirements. Procedurally, counsel must:

(1) petition the court for leave to withdraw, stating that after making a

conscientious examination of the record, counsel has determined that the

appeal would be frivolous; (2) furnish a copy of the brief to the defendant;

and (3) advise the defendant that he or she has the right to retain private

counsel or raise additional arguments that the defendant deems worthy of the

court’s attention. See Commonwealth v. Cartrette, 83 A.3d 1030, 1032

(Pa. Super. 2013).

        Counsel in the instant case has complied with these procedural

mandates. The motion to withdraw indicates that counsel reviewed the entire


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record and concluded that the instant appeal is wholly frivolous. (See Motion

to Withdraw as Counsel, 5/28/20, at 1). Counsel has certified that he sent a

copy of the Anders brief and motion to withdraw as counsel to Kinder.

Counsel’s letter to Kinder advises him of the right to hire private counsel or

raise pro se any additional arguments he would like this Court to consider.

(See Letter from Scott A. White, Esquire to Kinder, 5/27/20).

      Regarding the substantive elements, the brief accompanying counsel’s

petition to withdraw must: (1) provide a summary of the procedural history

and facts of record; (2) refer to anything in the record that counsel believes

arguably supports the appeal; (3) set forth counsel’s conclusion that the

appeal is frivolous; and (4) state counsel’s reasons for concluding that the

appeal is frivolous. See Santiago, supra at 361. Counsel’s Anders brief

summarizes the factual and procedural history, identifies one potential issue

for appeal, and outlines the legal reasons that led counsel to conclude that

any appeal would be frivolous.

      Because counsel has complied with the aforementioned requirements,

we now “make a full examination of the proceedings and make an independent

judgment to decide whether the appeal is in fact wholly frivolous.” Santiago,

supra at 355 n.5. The Anders brief identifies one issue arguably supporting

an appeal challenging the trial court’s refusal to permit Kinder to withdraw his

guilty plea.




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                                           III.

       As noted, Kinder’s sole issue alleges the trial court abused its discretion

in denying his motion to withdraw his guilty plea to criminal mischief of the

UCIP property. He claims the court should have permitted withdrawal of the

plea where he filed the motion before sentencing and asserted his innocence

to the crime.3

       Regarding withdrawal of a plea, in Commonwealth v. Carrasquillo,

115 A.3d 1284, 1291-92 (Pa. 2015), we explained that while a pre-sentence

motion to withdraw is to be liberally allowed, nonetheless:

       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.

       We went on to further explain in Commonwealth v. Baez, 169 A.3d

35, 39 (Pa. Super. 2017) (footnote and one citation omitted; case citation

formatting provided) held that:

       The Carrasquillo Court, breaking with prior precedent, held that
       a bare assertion of innocence is no longer a fair and just
       reason permitting a pre-sentence withdrawal of a guilty
       plea. Instead, “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.” Id. at
       1292. Our High Court outlined that the correct inquiry “on
____________________________________________


3We review a trial court’s decision regarding whether to permit a presentence
guilty plea to be withdrawn for an abuse of discretion. See Commonwealth
v. Elia, 83 A.3d 254, 261 (Pa. Super. 2013), appeal denied, 94 A.3d 1007
(Pa. 2014).

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      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 that decision, our Supreme
      Court ruled that the defendant had not offered a plausible
      innocence claim given that it was rather bizarre—a “devil made
      me to it” claim of innocence—and since the innocence claim was
      offered just prior to sentencing. (Emphasis added.)

      Most recently, in Commonwealth v. Norton, 201 A.3d 112, 121 (Pa.

2019), we stated that we must give deference to the trial court’s decision not

to allow the withdrawal of the plea, stating:

      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.

      The trial court’s discretion, however, is not unfettered and must be

informed by the law that requires it to make credibility determinations that

are supported by the record. See id.

      In this case, the trial court was extremely familiar with this case, having

observed Kinder throughout the various court proceedings. It determined that

Kinder’s bare assertion of innocence was implausible and that it was not a fair

and just reason for withdrawing the plea. (See Trial Court Opinion, 8/22/19,

at 3). The court noted Kinder’s repeated waiver of his right to counsel after

its extensive colloquy.   (See id. 1-3).     It also appropriately assessed the


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plausibility of Kinder’s contentions supporting withdrawal of his plea when it

considered the timing of the plea, which occurred “on the eve of trial in a

perceived effort to engage in gamesmanship and to avoid being housed in the

Crawford County Jail.” (Id. at 3; see also N.T. Motion to Withdraw Guilty

Plea, at 3). The court further noted the testimony of the two state troopers

at a pre-trial hearing who collected Kinder’s blood and DNA from a door handle

and a DVD player at the crime scene as evidence of Kinder’s guilt.           (See

T.C.O., at 3). Finally, the court properly factored into its exercise of discretion

that Kinder admitted under oath at his guilty plea colloquy to engaging in

criminal mischief on the UCIP property. (See id.) (see also Commonwealth

v. Yeomans, 24 A.3d 1044, 1047 (Pa. Super. 2011) (stating longstanding

rule of Pennsylvania that a defendant may not challenge his guilty plea by

asserting that he lied while under oath and is bound by statements he makes

in open court).

      In sum, we conclude that the trial court acted within its discretion when

it denied Kinder’s motion to withdraw his guilty plea on the basis that his bare,

belated assertion of innocence was not a sufficient reason to permit

withdrawal of the plea, making the only claim for which Kinder seeks review

frivolous.

      Furthermore, after independent review, we determine that there are no

other non-frivolous bases for appeal and this appeal is wholly frivolous.

Accordingly, we affirm the judgment of sentence.


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     Judgment of sentence affirmed. Petition to withdraw granted.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/14/2020




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