J-S34006-17

                              2017 PA Super 258

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA


                    v.

JUAN BAEZ

                         Appellant                     No. 199 EDA 2016


         Appeal from the Judgment of Sentence November 23, 2015
            In the Court of Common Pleas of Philadelphia County
            Criminal Division at No(s): CP-51-CR-0004678-2014


BEFORE: BOWES, SOLANO, AND PLATT,* JJ.

OPINION BY BOWES, J.:                                 FILED AUGUST 10, 2017

      Juan Baez appeals from the November 23, 2015 judgment of sentence

of five to ten years imprisonment followed by ten years probation.        The

sentence was entered after Appellant tendered a negotiated guilty plea to

rape of a child and unlawful contact with a minor. We affirm.

      In this action, Appellant was arrested on April 1, 2014, and he

subsequently was charged with involuntary deviate sexual intercourse,

aggravated indecent assault of a child, unlawful contact with a minor, sexual

assault, endangering the welfare of a child, corruption of a minor, indecent

assault of a person less than thirteen years old, indecent exposure, rape of a

child, and aggravated assault. The matter proceeded to a jury trial on April

27, 2015.   The jury was chosen, opening arguments were made, and the

victim, her mother, and a police officer testified.


* Retired Senior Judge specially assigned to the Superior Court.
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      On April 28, 2015, the court was about to proceed to a hearing on the

admissibility of certain scientific evidence and had already conducted a

colloquy on the expert witness offered by the Commonwealth. Appellant’s

counsel indicated that Appellant decided to accept a plea offer made by the

Commonwealth.      The terms of the plea deal involved a guilty plea by

Appellant to rape of a child and unlawful contact with a minor, the remaining

charges would be nolle prossed, and the Commonwealth would recommend

a sentence of five to ten years imprisonment followed by ten years

probation.    The jury was recessed while Appellant executed a written

colloquy with the aid of his lawyer and the plea court conducted a full oral

colloquy.

      The factual basis for the plea in question was as follows.      K.I., the

victim, had testified that between October 2013 and March 2014, when she

was eleven years old, Appellant had, on multiple occasions, vaginally

penetrated her with his penis and fingers.      K.I. also said that Appellant

placed his mouth on her vagina.      K.I. disclosed the sexual abuse to her

mother, who reported it to police. The record also establishes that, during

the pertinent time frame, Appellant was forty-years old and a friend of K.I.’s

mother. When the abuse occurred, K.I. was staying at Appellant’s home on

the weekends.

      At one point in the colloquy, Appellant consulted with his lawyer off the

record about his defenses. The elements of each crime were set forth on the

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record, including that rape of a child was “sexual intercourse with a child

who is less than 13 years of age” and that sexual intercourse meant

penetrating her vagina with his penis, even slightly.        N.T. Guilty Plea,

4/28/15, at 14-15. After Appellant indicated that he had “[n]ot really”

penetrated K.I.’s vagina with his penis, and had not had sexual intercourse

with K.I., the plea court immediately ceased the colloquy and offered to

continue with the trial. Id. at 15. Appellant responded, “No.” Id. The court

then explained that pleading guilty was the same as an adjudication of guilt

by a jury. Appellant said that he understood that his plea would be treated

as a guilty verdict on the two charges in question.              Id. at 15, 16.

Thereafter, Appellant tendered a guilty plea to rape of a child.      Id. at 18

(“THE COURT CRIER: Juan Baez, . . . you’re being charged with rape of a

child, how do you plead? THE DEFENDANT: Guilty.”).

      At the conclusion of the guilty plea, Appellant was referred to the

Sexual   Offenders   Assessment    Board    (“SOAB”)   for   a    Megan’s   Law

assessment. Approximately three months later, on July 17, 2015, Appellant

wrote a letter to his lawyer asking to withdraw his guilty plea and claiming

that he was innocent and pled guilty solely because he was going to receive

a sentence of sixty-five years if convicted. Counsel thereafter filed a written

pre-sentence motion to withdraw the guilty plea asserting that Appellant was

entitled to withdraw the guilty plea because he was innocent of the charges.




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      Sentencing was scheduled for November 23, 2015. At the inception of

the proceeding, the court heard argument on the question of withdrawal.

The court first clarified that the plea in question was actually a negotiated

guilty plea, stating “And we’re here for sentencing, it’s just a matter of

imposing the sentence that was negotiated, five to ten, followed by ten

years probation.” N.T. Sentencing, 11/23/15, at 10.      When asked why he

wanted to withdraw the plea, Appellant said, “Because I’m not—I’m not

guilty, I’m innocent.”   Id. at 14.   The Commonwealth then indicated that

Appellant was offered the same plea on June 24, 2014, and rejected it.

Appellant denied hearing about the plea offer prior to trial. Speaking directly

to the court, Appellant said, “That’s the only time I found out [about the plea

offer], the day you told me, 65 years. And if I don’t plead guilty, I’ll get 65

years.” Id. at 15.

      To refute this assertion that the guilty plea was accepted based upon

the court’s threat to impose sixty-five years upon conviction, the court

corrected Appellant. It stated, “No, what I told you was that the maximum

sentence for these charges was 140 years. So I don’t know what you were

listening to or where you got 65 from.”      Id. at 15-16.    The guilty plea

colloquy confirms that Appellant was told that he could be “sentenced up to

140 years in prison” if he was convicted of all the charged offenses. N.T.

Guilty Plea, 4/28/15, at 7 (emphasis added). After discussions concerning




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whether withdrawal of the guilty plea would permit Appellant to engage in

jury shopping, the court denied the motion.

      The SOAB board had concluded that Appellant was not a sexually

violent predator, and the court proceeded to impose the negotiated term of

five to ten years in jail followed by ten years probation.       This appeal

followed. Appellant presents this question for our review:

      1. Did the Lower Court err and/or abuse its discretion when it
         denied the Appellant’s motion to withdraw his guilty plea prior
         to sentencing when the motion to withdraw a guilty plea prior
         to sentencing is to be liberally granted for any fair and just
         reason unless the prosecution has suffered substantial
         prejudice?

Appellant’s brief at 5.

      Our Supreme Court disseminated the case Commonwealth v.

Carrasquillo, 115 A.3d 1284 (Pa. 2015), on June 15, 2015, five months

before the hearing on Appellant’s pre-sentence motion to withdraw.         That

decision clarified the parameters of when a pre-sentence motion to withdraw

is to be granted based upon an assertion of innocence.          Therein, our

Supreme Court re-affirmed that the trial court is imbued with the discretion

to deny a defendant permission to withdraw a guilty plea, whether that

request is tendered before or after sentencing, and we, as an appellate

court, can reverse its decision only when that discretion is abused.

Pa.R.Crim.P. 591(A) (emphasis added) (“At any time before the imposition

of sentence, the court may, in its discretion, permit, upon motion of the



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defendant, or direct, sua sponte, the withdrawal of a plea of guilty or nolo

contendere and the substitution of a plea of not guilty.”).      While a pre-

sentence motion to withdraw is to be liberally allowed,

       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, supra at 1291–92 (footnote omitted).1

       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 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
____________________________________________


1
   The pre-sentence standard starkly contrasts with the one applicable to a
defendant’s post-sentence motion to withdraw. “Post-sentence motions for
withdrawal are subject to higher scrutiny since courts strive to discourage
entry of guilty pleas as sentence-testing devices.      A defendant must
demonstrate that manifest injustice would result if the court were to deny
his post-sentence motion to withdraw a guilty plea.” Commonwealth v.
Islas, 156 A.3d 1185, 1188 (Pa.Super. 2017) (citation omitted; emphasis in
original)




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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.      See also

Commonwealth v. Hvizda, 116 A.3d 1103 (Pa. 2015) (companion case to

Carrasquillo).

      In this case, the plea court concluded that Appellant’s assertion of

innocence was not plausible since he failed to offer “any additional testimony

establishing the basis of a ‘fair and just reason’ justifying the withdrawal of

his guilty plea.”   Trial Court Opinion, 9/2/16, at 9.   We concur with this

assessment. Relying extensively upon pre-Carrasquillo case law, Appellant

first maintains that his bald assertion of innocence was sufficient to mandate

withdrawal. He attempts to distinguish Carrasquillo on the ground that the

assertion of innocence therein was not leveled until sentencing and that it

was unusual in nature.

      Appellant overlooks our Supreme Court’s companion case in Hvizda,

where the defendant’s claimed innocence was straightforward, but refuted

by the Commonwealth’s proof. In Hvizda, the defendant entered a guilty

plea to first degree murder in connection with the stabbing death of his

estranged spouse. Prior to imposition of his sentence, he asked to withdraw

the plea claiming that he was innocent. The trial court conducted a hearing

on the request to withdraw, where the defendant again asserted that he was

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innocent but failed to proffer any support for that claim. On the other hand,

the Commonwealth produced recorded telephone conversations that the

defendant made from jail; in the tapes, the defendant admitted that he

killed his wife and indicated that he wanted to go to trial to tell his side of

the story.

         The trial court denied the motion to withdraw finding that, given the

Commonwealth’s tapes, the assertion of innocence was pretextual and

designed      to   manipulate   the   judicial   system.   In   an   unpublished

memorandum, we reversed based upon Commonwealth v. Katonka, 33

A.3d 44, 49 (Pa.Super. 2011) (en banc), wherein the en banc court held that

“credibility assessments relative to a defendant's claim of innocence were

impermissible.” Id. Our High Court reversed the panel’s holding in Hvizda,

noting that, under its companion decision in Carrasquillo, a bald assertion

of innocence is no longer sufficient grounds to permit withdrawal of a guilty

plea.     The Hvizda Court upheld the trial court’s refusal to permit the

defendant to withdraw his guilty plea because his innocence assertion was

implausible as it was unsupported and rebutted by the Commonwealth’s

proof.

         In the present case, at the hearing on his pre-sentence motion to

withdraw, Appellant offered a bald claim that he was innocent that was

unaccompanied by assertions that he had defenses to the charges.            The

guilty plea colloquy refuted his secondary position that he pled guilty

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because the trial court told him that it would impose a sentence of sixty-five

years in jail if the jury convicted him.    On the other hand, the record

establishes that the victim testified that Appellant penetrated her vagina

with his penis and fingers and that he placed his mouth on her vagina.

Indeed, the present case stands in stark contrast to our recent decision in

Commonwealth v. Islas, 156 A.3d 1185 (Pa.Super. 2017), where we

concluded that the trial court had abused its discretion in denying the

defendant’s pre-sentence motion to withdraw his guilty plea. The defendant

in Islas was charged with three counts of indecent assault on a camper who

attended a camp where he was a counselor, and he pled guilty to one count.

One month after pleading guilty and immediately after procuring a new

lawyer, the defendant moved to withdraw his plea.

      Not only had the trial court in Islas employed the incorrect standard in

assessing the defendant’s motion by utilizing the more-stringent rules

applicable to post-sentence motions to withdraw, see footnote 2, supra, the

defendant therein had offered significant support for his position that he was

actually innocent of the charged sexual contact with the victim.           We

observed:

      At the hearing on his motion to withdraw, Islas testified that: he
      did not engage in the charged conduct; he had maintained his
      innocence when interviewed by law enforcement; had the
      conduct occurred as alleged, it would have been witnessed by
      other campers and counselors in the cabin at the time; the
      victim had a motive to fabricate the charges; the victim had
      delayed in reporting the first incident; and Islas was of good

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      character, had no criminal record, and had never received a
      similar complaint in the many years he had been working in the
      field.

Id. at 1191.    As those assertions constituted valid defenses against the

charges leveled by the victim, we reversed the trial court’s denial of Islas’

pre-sentence motion to withdraw his guilty plea.

      In this case, Appellant simply insisted that he was innocent, and

incorrectly represented that the plea was coerced by trial-court threats to

impose a sixty-five year jail term. The fact remains that Appellant faced 140

years in jail, his negotiated sentence was ninety percent less, and his desire

to avoid a more lengthy prison term is not grounds for withdrawing the plea.

Commonwealth v. Dosch, 501 A.2d 667, 670 (Pa. 1985) (“a plea is not

rendered involuntary merely because it is prompted by a belief that it will

enable a defendant to obtain a more lenient sentence”); see also

Commonwealth v. Blango, 150 A.3d 45 (Pa.Super. 2016) (upholding trial

court’s conclusion that the defendant had not leveled a plausible claim of

innocence given Commonwealth’s evidence, and where withdrawal request

was leveled after the defendant observed sentencing memorandum prepared

by the Commonwealth in which it requested lengthy sentence).       Under the

circumstances, we cannot find that the trial court abused its discretion in

characterizing Appellant’s innocence claim as falling short of the mark under

Carrasquillo.




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      On appeal, Appellant does not contend that he proffered defenses in

support of his pre-sentence withdrawal such that his innocence claim should

be considered plausible. Instead, in his brief, he relies upon certain events

occurring at the guilty plea colloquy.   Specifically, Appellant outlines the

portion of the colloquy where he denied that he penetrated K.I.’s vagina with

his penis. As noted, supra, after Appellant articulated that denial, the trial

court immediately ceased the proceeding.          It offered Appellant the

opportunity to continue with the trial, but Appellant declined that offer. At

that point, the trial readily could have resumed since the witness on the

admissibility of scientific evidence was present, and the jury had been

recessed but remained empaneled.      The guilty plea court then articulated

that a guilty plea was the same as a guilty verdict, and Appellant entered a

guilty plea to rape of a child. Furthermore, Appellant never balked at the

representations that he digitally penetrated K.I. and that he placed his

mouth on her vagina.

      Until this appeal, Appellant never asserted that this momentary denial

of penile penetration at the guilty plea colloquy constituted a plausible pre-

sentence claim of innocence.     It was not raised in Appellant’s letter to

counsel, in the motion to withdraw the guilty plea, in the memorandum in

support of that motion, or at the hearing on the pre-sentence motion to

withdraw. This basis for withdrawal was never presented to the trial court;

it is thus waived for purposes of this appeal. Commonwealth v. Wanner,

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158 A.3d 714, 717 (Pa.Super. 2017) (defendant waived position that there

was an affirmative defense to crime “by failing to rise it before the trial”)

(citing Pa.R.A.P. 302(a) (“Issues not raised in the lower court are waived

and cannot be raised for the first time on appeal.”)). “This requirement bars

an appellant from raising a new and different theory of relief for the first

time on appeal.”     Id. (citation and quotation marks omitted).        Since

Appellant never asserted before the plea court that his denial of penile

penetration at the plea colloquy was a plausible claim of innocence requiring

grant of his pre-sentence motion to withdraw the guilty plea, it may not be

advanced now as grounds for reversal of the decision in question.

     The plea court also concluded that Appellant’s guilty plea could not be

withdrawn because the Commonwealth would suffer substantial prejudice

from withdrawal.     The Commonwealth had already picked a jury and

presented three of its witnesses, including the child victim.   In addition, a

scientific witness had been colloquied and was present to offer additional

testimony.    We conclude that the court’s ruling in this respect is legally

sound.

     In Commonwealth v. Cole, 564 A.2d 203 (Pa.Super. 1989), the

Commonwealth brought a key witness from Georgia to testify against the

defendant.    The defendant entered a guilty plea, the witness returned to

Georgia, and before sentence was imposed, the defendant sought to retract

his plea. We affirmed the trial court’s denial of that request. We concluded

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that if the defendant were allowed to rescind the plea, it would have

permitted the defendant to use his motion for the “improper purpose of

gambling on the Commonwealth's ability to produce the witness for a second

trial.” Id. at 206. We observed that “[t]his is the type of prejudice to the

Commonwealth against which the rule was intended to protect.” Id.

       Similarly, in Commonwealth v. Ross, 447 A.2d 943 (Pa. 1982), in a

per curiam opinion, our Supreme Court upheld a trial court’s refusal of the

defendant’s pre-sentence request to withdraw his guilty plea.      The court

ruled that the “request to withdraw the plea, which had been made after the

dismissal of numerous key Commonwealth witnesses in reliance on the plea,

was properly denied[.]” Id.; see also Commonwealth v. Prendes, 97

A.3d 337, 353 (Pa.Super. 2014) (substantial prejudice exists if a defendant

obtains “a full preview of the Commonwealth's evidence before deciding” to

seek withdrawal and could engage in jury shopping if he decides the selected

jury seems unfavorably inclined towards him).2


____________________________________________


2
    In Commonwealth v. Prendes, 97 A.3d 337 (Pa.Super. 2014), we
opined that the standards applicable to post-sentence motions to withdraw a
guilty plea, see footnote 2, supra, should be applied when a negotiated
guilty plea has been entered. We stated therein:

       If the appellant knows the only possible sentence he can get for
       the crime to which he pled guilty, then any pre-sentence motion
       to withdraw the plea is akin to a post-sentence motion to
       withdraw the plea, and the “manifest injustice” standard will
(Footnote Continued Next Page)


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      In this case, three witnesses had already testified.         The guilty plea

colloquy indicates that the Commonwealth also had another witness present

who was going to offer testimony on scientific evidence when Appellant

elected to tender a guilty plea.          Hence, we cannot conclude that the trial

court abused its discretion in finding that the Commonwealth would be

substantially prejudiced if Appellant were permitted to enter his guilty plea.
                       _______________________
(Footnote Continued)

      apply to the pre-sentence motion. Commonwealth v. Lesko,
      502 Pa. 511, 517, 467 A.2d 307, 310 (1983).

Id. at 352.

      In Lesko, our Supreme Court ruled that it was proper to utilize the
manifest injustice standard in assessing whether a pre-sentence motion to
withdraw should be granted when the plea agreement includes a negotiated
sentence. Lesko, however, was overruled in Commonwealth v. Hvizda,
116 A.3d 1103, 1106 (2015), wherein our High Court announced: “we
disapprove Lesko's idiosyncratic approach to presentence withdrawal.”
Since Prendes relied upon Lesko for the stated proposition and since
Lesko was subsequently overruled by Hvizda, we cannot utilize the
manifest injustice standard in assessing the validity of Appellant’s guilty
plea.   This Court has previously reached the same conclusion in two
unpublished memoranda.       See Commonwealth v. Wright, 2016 WL
7079767 (Pa.Super. 2016); Commonwealth v. Cross, 2015 WL 6114603,
(Pa.Super. 2015).

   Additionally, in Commonwealth v. Islas, 156 A.3d 1185 (Pa.Super.
2017), we observed that the Prendes Court indicated that a bald assertion
of innocence constituted a fair and just reason to permit pre-sentence
withdrawal of a guilty plea. This precept was, of course, abrogated by
Carrasquillo and Hvizda after Prendes was decided

      Nevertheless, the Prendes ruling remains undisturbed on the question
of whether the Commonwealth is prejudiced when a defendant seeks to
withdraw a guilty plea after the Commonwealth has presented its case.




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     Judgment of sentence affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/10/2017




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