J-S27040-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA           :   IN THE SUPERIOR COURT OF
                                        :        PENNSYLVANIA
                                        :
              v.                        :
                                        :
                                        :
 RODNEY GAFFNEY,                        :
                                        :
                   Appellant            :   No. 3850 EDA 2017

         Appeal from the Judgment of Sentence October 30, 2017
   In the Court of Common Pleas of Chester County Criminal Division at
                     No(s): CP-15-CR-0003575-2014


BEFORE: SHOGAN, J., LAZARUS, J., and DUBOW, J.

MEMORANDUM BY DUBOW, J.:                      FILED NOVEMBER 21, 2018

     Appellant Rodney Gaffney appeals from the Judgment of Sentence that

the court entered after denying his pre-sentence Motion to Withdraw Guilty

Plea. We affirm.

     The underlying facts, as paraphrased from the trial court’s Opinion, are

as follows. On March 18, 2014, while driving through Coatesville with Robert

Snyder, Zaequon Closson saw Appellant driving a vehicle with Maurice Scott

in the front passenger’s seat. When Closson thought he saw Maurice Scott

reach for a weapon, Closson sped off toward his apartment, with Appellant

and Maurice Scott in pursuit.    Upon arriving at the apartment complex,

Closson left the car and ran toward his residence. Maurice Scott then exited

his vehicle, pointed a machine-gun-style handgun at Closson and attempted

to shoot him, but the gun jammed. Appellant then exited the vehicle and shot
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at Closson. Closson shot back at Appellant and injured a 14-year-old boy,

who was standing in front of a window inside a nearby residence. Trial Court

Opinion, 8/22/17, at 2.

       On October 2, 2014, the Commonwealth arrested Appellant and charged

him with, inter alia, Aggravated Assault and Persons Not to Possess Firearms.1

Appellant did not post bail. Because Appellant was on parole from a prior

armed Robbery conviction, the State Board of Probation and Parole (the

“Board”) placed a detainer on Appellant.

       The court scheduled a joint trial for Appellant and Mr. Scott for

September 28, 2015. However, after the parties picked the jury, Appellant’s

counsel became ill and the court entered a mistrial without prejudice as to

Appellant and continued his trial to a later date. The jury subsequently found

Mr. Scott not guilty of all charges on October 2, 2015.2

       After several continuances, the court scheduled Appellant’s trial for

March 13, 2017. On the eve of trial, Appellant entered into a negotiated guilty

plea to one count of Aggravated Assault and one count of Persons Not to

Possess Firearms. Under oath, Appellant admitted that he tried to shoot Mr.


____________________________________________


1 18 Pa.C.S. § 2702(a)(1) and 18 Pa.C.S. § 6105(a)(1), respectively. The
Commonwealth also charged Appellant’s co-defendant, Maurice Scott, with
various offenses as a result of the March 18, 2014 incident.

2 Robert Snyder, an anticipated Commonwealth witness, absconded from
probationary supervision and did not testify at Mr. Scott’s trial. The
Commonwealth subsequently detained him as a witness for Appellant’s
anticipated trial.

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Closson, manifesting extreme indifference to the value of human life. N.T.

Plea, 3/13/17, at 2, 9. Appellant’s plea agreement included a sentence of

eleven-and-a-half to twenty-three months’ incarceration followed by four

years of probation, and allowed for Appellant to receive credit from June 8,

2016 through the date of the plea agreement (approximately nine months’

time served). Guilty Plea Colloquy, 3/13/17, at 3.

       In explaining the basis of the negotiated sentence, which fell below the

applicable sentencing guidelines, Appellant’s counsel referenced the back-time

due on Appellant’s parole.        The trial court deferred sentencing that day in

order to determine the amount of restitution owed by Appellant.3

       Nearly two months later, on May 4, 2017, Appellant wrote a letter to the

Chester County District Attorney’s office stating:

       [W]e had a negotiated plea stating 20 months [of incarceration]
       goes to [the Board] and the other 11 months goes to [the plea
       negotiated for the March 2014 matter]. I just received some
       information today that [the Commonwealth] cannot give
       me 20 months [time-served credit] to the [Board because
       the Board] will not count it… If I cannot receive anything
       in writing to say the [Board] will count the [20 months’
       time served], then I would like to take my plea back and
       exercise my right to a fair trial.



____________________________________________


3 On March 17, 2017, after Appellant pleaded guilty, the court released Robert
Snyder who had been detained as a Commonwealth witness pending
Appellant’s trial. On March 27, 2017, the court sentenced Zaequon Closson
to time served and released him from custody.




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N.T. Motion, 7/7/17, at 12, quoting Letter, dated 5/4/17 (emphasis added).4

       On May 17, 2017, the court docketed another letter from Appellant to

his attorney asking the attorney to file a Motion to Withdraw Guilty Plea. In

that letter, Appellant noted that he “does not want to take responsibility for

something [he] did not do.” Trial Court Opinion, 8/22/17, at 5, quoting Letter,

dated 5/17/17.

       On May 22, 2017, the Board sent Appellant a letter stating that

Appellant would not be eligible for time served between his arrest and his

release in June 2016 because he had failed to post bail on the charges

stemming from the March 2014 Coatesville incident because “any time

[Appellant served] on a no-bail status must be applied to any sentence

[Appellant receives].” Id.; see also N.T. Motion, 7/7/17, at 8-10.

       On June 30, 2017, Appellant’s counsel filed a Motion to Withdraw Guilty

Plea, contending that Appellant maintains his innocence, and that his

innocence is supported by the acquittal of Mr. Scott, his co-defendant.

Counsel also asserted that an additional witness that did not testify during

____________________________________________


4  In his Brief, Appellant refers to three letters: one he wrote to the
Commonwealth on May 4, 2017; one he wrote to his counsel and the Chester
County Clerk of Courts on May 17, 2017; and one he received from the Board
on May 22, 2017. Appellant’s Brief at x. None of these letters, however, are
in the record. See Commonwealth v. Preston, 904 A.2d 1, 7 (Pa. Super.
2006) (requiring Appellant to ensure that the record certified on appeal is
complete in the sense that it contains all of the materials necessary for the
reviewing court to perform its duty). Because the trial court’s Opinion and
both parties’ Briefs refer to these letters, we conclude that we will not hold
Appellant’s failure to transmit the full record against him. See Pa.R.A.P. 1931.


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Scott’s trial would testify in Appellant’s defense. Last, counsel asserted that

the Board’s refusal to credit Appellant for time served that was part of his

negotiated plea agreement was a fair and just reason for withdrawing the

guilty plea. Motion to Withdraw Guilty Plea, 6/30/17, at 1-2.

      On July 7, 2017, the court held a hearing on Appellant’s Motion. At that

hearing, Appellant’s counsel presented the same arguments set forth in the

Motion, and noted that Appellant will serve at least an additional year in prison

as a result of the Board’s refusal to credit Appellant in accordance with the

March 13, 2017 plea agreement.          N.T. Motion, 7/7/17, at 10-11.         The

Commonwealth argued that: (1) Appellant’s claim of innocence was not

plausible; (2) the Board’s findings and detainer related to Appellant’s previous

Robbery conviction were not guaranteed in the March 2017 plea deal, nor

could they have been, because the Commonwealth does not have the ability

to control the determinations of the Board; and (3) Appellant simply wanted

to withdraw his guilty plea because he took a risk that his time served would

be credited by the Board and it failed. Id. at 13-14, 19-20.

      On August 22, 2017, the trial court denied Appellant’s Motion to

Withdraw Guilty Plea. The court stated, inter alia, that “because the evidence

against [Appellant] appears to be more substantial than that presented at

Maurice Scott’s trial, we find that [Appellant’s] claim of innocence, based

solely on the jury’s verdict in Maurice Scott’s case, to be insufficient to satisfy

[Appellant’s] burden of demonstrating a colorable claim of innocence.” Trial

Court Opinion, 8/22/17, at 10-11.            The court also found that the

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Commonwealth would not be substantially prejudiced if it granted Appellant’s

Motion. Id. at 11-12.

      On October 30, 2017, the court sentenced Appellant in accordance with

the terms of the negotiated guilty plea, and credited Appellant with eleven

months’ time served. N.T. Sentencing, 10/30/17, at 8-10. The court released

Appellant from custody for the instant convictions, and defense counsel

pointed out that he was still in custody on the Board’s detainer. Id. at 10-11.

      This timely appeal followed. Both Appellant and the trial court complied

with Pa.R.A.P. 1925.

      Appellant presents the following questions for this Court’s consideration:

      1. Did the lower court err in denying the Appellant’s motion to
         withdraw his guilty plea by not considering any fair and just
         reason?

      2. Did the lower court err in denying the Appellant’s motion to
         withdraw his guilty plea by concluding that the Appellant did
         not present a plausible claim of innocence?

Appellant’s Brief at vii (italics in original).

      In both issues, Appellant challenges the trial court’s refusal to allow him

to withdraw his guilty plea prior to sentencing. There is no absolute right to

withdraw a guilty plea. Commonwealth v. Carrasquillo, 115 A.3d 1284,

1291 (Pa. 2015). Trial courts have discretion in determining whether to grant

a withdrawal request, and such discretion is to be administered liberally in




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favor of the accused. Id. at 1291-92.5 We, thus, review the denial of a pre-

sentence Motion to Withdraw a Guilty Plea for an abuse of discretion.

       Any demonstration by a defendant of a fair and just reason will suffice

to support a grant, unless withdrawal would substantially prejudice the

Commonwealth. Id. at 1292. “Because the plea involves the simultaneous

waiver of so many constitutional rights, a request to withdraw prior to

sentencing is ‘liberally allowed.’” Commonwealth v. Dickter, 465 A.2d 1, 2

(Pa. Super. 1983), citing Commonwealth v. Forbes, 299 A.2d 268, 271 (Pa.

1973). However, the “bare assertion of innocence is not, in and of itself, a

sufficient reason to require a court to grant such a request.” Carrasquillo,

supra at 1285. As the Supreme Court found:

       [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. More broadly, the proper
       inquiry on 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. 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. at 1292 (emphasis added).




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5 See also Pa.R.Crim.P. 591(A): “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.”

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      The trial court must base its determination of whether to permit a pre-

sentence withdrawal request on the totality of the circumstances attendant at

the time of the request. Commonwealth v. Johnson-Daniels, 167 A.3d 17,

24 (Pa. Super. 2017). These circumstances may include “the timing of the

assertion of innocence, the statements made by the defendant in association

with his declaration of innocence, and the plausibility of the defendant’s

statements in light of the evidentiary proffer made by the Commonwealth at

the plea hearing.” Id. The trial court should also consider any “ulterior or

illicit motive” for the motion to withdraw the plea. Commonwealth v. Islas,

156 A.3d 1185, 1190-91 (Pa. Super. 2017).

      As previously noted, the trial court found that the Commonwealth would

not be substantially prejudiced by Appellant withdrawing his guilty plea. Thus,

our analysis turns on whether (1) Appellant has made a plausible claim of

innocence, and (2) he has offered a colorable demonstration that permitting

withdrawal of the plea would promote fairness and justice.

      In his Brief, Appellant argues that he put forth a plausible claim of

innocence under the standard set forth in Carrasquillo because Mr. Scott was

acquitted of similar charges stemming from the same incident and “[o]ther

than [] one additional witness [that cannot identify Appellant as the shooter],

the testimony and evidence in Appellant’s case would have been exactly the

same as in his co-defendant’s case.” Appellant’s Brief at 8. We disagree.




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      Appellant baldly claimed in May 2017 that he “does not want to take

responsibility for something [he] did not do,” and contended that his trial

would be markedly similar to his co-defendant’s trial, which resulted in

acquittal. However, applying the guidelines set forth in Commonwealth v.

Johnson-Daniels, 167 A.3d 17, (Pa. Super. 2017), the timing of Appellant’s

innocence claim and the statements he made in his May 2017 letters fatally

undermine the plausibility of his claim of innocence.

      Appellant entered a negotiated guilty plea on the eve of trial. After he

pled guilty, he stayed silent and waited to hear from the Board. In fact, even

in his letter dated May 4, 2017, nearly two months after his plea, Appellant

did not assert any declaration of innocence.     In that first letter, Appellant

states only: “I just received some information today… [and] if I cannot receive

anything in writing to say the [Board] will count the time, then I would like to

take my plea back and exercise my right to a fair trial.” N.T. Motion, 7/7/17,

at 12, quoting Letter, dated May 4, 2017. Plainly read, Appellant’s first letter

was a rushed attempt to back out of a deal immediately after he learned of an

undesirable outcome from the Board. Appellant’s actions make clear that the

decision from the Board solely motivated him to make a claim of innocence

after nearly two months of silence.

      Based on the totality of the circumstances, we, like the trial court,

conclude that Appellant has not presented a plausible claim of innocence such

that permitting withdrawal of his plea would promote fairness and justice.


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     Accordingly, the trial court properly denied Appellant’s Motion to

Withdraw Guilty Plea.

     Judgment of Sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/21/18




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