J-S67006-15



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                          Appellee

                     v.

DARIN GOINS,

                          Appellant                  No. 166 MDA 2015


          Appeal from the Judgment of Sentence February 11, 2011
            In the Court of Common Pleas of Lackawanna County
             Criminal Division at No(s): CP-35-CR-0001384-2010


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

MEMORANDUM BY BOWES, J.:                        FILED NOVEMBER 10, 2015

       Darin Goins has filed this nunc pro tunc appeal from the February 11,

2011 judgment of sentence of seven and one-half to twenty years

imprisonment that was imposed after he tendered a guilty plea to

aggravated assault. We affirm.

       Based on an incident occurring on April 5, 2010, Appellant was

charged with aggravated assault, robbery graded as a first-degree felony,

simple assault, reckless endangerment, disorderly conduct, and harassment.

The preliminary hearing was held on May 24, 2010. At that time, the victim,

Michael Caselli, testified as follows. On April 5, 2010, he was renting a room

at 343 Madison Avenue, Scranton.        Mr. Caselli’s friend, Lonnie Williams,

came to his room, and was accompanied by Appellant and Sharon McCool.


*
    Retired Senior Judge assigned to the Superior Court.
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The four individuals smoked crack cocaine together. Mr. Caselli’s landlord,

who did not like Mr. Caselli to have guests, arrived at the house. Mr. Caselli

told the three visitors to stay in his room until the landlord left. Once this

occurred, Mr. Caselli asked the three people to leave.

      Mr. Caselli then went to a bank machine about three blocks from his

residence and retrieved $180 in cash.       When Mr. Caselli returned home,

Appellant was standing on the steps of 343 Madison Avenue and offered to

sell Mr. Caselli a substance alleged to be cocaine. The victim testified that

he declined to purchase the substance after ascertaining that it was not the

drug in question.    Mr. Caselli reported that, after Mr. Caselli refused to

purchase the alleged drugs, Appellant “quickly turned violent, he attacked

me, grabbed me by the neck--.” N.T. Preliminary Hearing, 5/24/10, at 10.

Appellant slammed Mr. Caselli against a wall and screamed “give me the

f***ing money.” Id. at 11.

      As Appellant continued to scream those words, Mr. Caselli freed

himself and started to walk away.      Appellant pushed the victim, who fell

forward. Mr. Caselli reported that he then felt “excruciating pain in my eye,

and I was pushing myself up off a fence and I knew I was seriously injured.”

Id. at 12.    One of the rods on the top of the fence had penetrated the

victim’s eye. Appellant continued to scream about the money, went through

the victim’s jacket, and then left the scene on a bicycle.




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        After the assault, the victim was missing $100, his keys, and his ATM

card.    Mr. Caselli was flown to Wills Eye Institute and underwent two

surgeries on his eye, which was blinded.      As of May 24, 2010, the victim

anticipated that he would have to undergo three additional surgeries as a

result of the penetration of his face by the fence post.

        On November 1, 2010, Appellant tendered an open guilty plea to

aggravated assault, and, in return, all the other charges were nol prossed.

Sixteen days later, on November 17, 2010, Appellant filed a pro se petition

to withdraw the guilty plea.     Since Appellant was represented, the court

ordered that the motion be forwarded to counsel.           His attorney filed a

counseled petition on December 23, 2010. That motion asserted Appellant’s

innocence as the sole reason for permission to retract the plea.

        Two hearings were held on the petition to withdraw the guilty plea. At

the January 28, 2011 hearing, Appellant’s counsel said that he was

“asserting [Appellant’s] innocence” as “a fair and just reason” for permitting

the plea to be withdrawn. N.T. Hearing, 1/28/11, at 2. The Commonwealth

countered that it would be prejudiced by withdrawal. It noted that the jury

panel had been summoned and selection was about to begin when

Appellant’s counsel approached the district attorney and asked if his client

could enter a plea. Meanwhile, “All of the Commonwealth’s witnesses were

subpoenaed,” and a doctor “had cleared his schedule and reviewed all of the

medical records of the victim in order to come here and testify.” Id. at 3-4.

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Additionally, the Commonwealth had experienced difficulty locating “two of

our witnesses, they are transient[.]” Id. at 4. There thus was a risk that

the Commonwealth would be unable to locate those witnesses if a trial was

awarded.

      At the conclusion of that hearing, the court declared that it was unsure

that a mere assertion of innocence was sufficient to permit withdrawal since

the plea was tendered when jury selection was about to begin.         The trial

court provided the parties with an opportunity to submit briefs. At that point

in the proceedings, Appellant interjected that, in his pro se petition, he also

had claimed that he should be able to withdraw his guilty plea since the

Commonwealth withheld a videotape of the incident from him and that he

wanted to view it.

      Sentencing was scheduled for February 11, 2011, where the matter of

the plea withdrawal was revisited. At that time, the court asked Appellant’s

counsel, “[Y]ou offered as the reason for the withdrawal of the plea the fact

that the defendant claims that he did not commit any of the charged

offenses; is that correct?” N.T. Hearing, 1/2/11, at 4. Counsel answered,

“That’s correct, your Honor, he asserts his innocence.”     Id.   Counsel also

reported that Appellant wanted to withdraw the plea since he was anxious

and depressed and in a deteriorated mental state when he entered his guilty

plea. Id.




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      The court responded that it would accept the assertion of innocence as

grounds for withdrawal of the plea. Id. at 5. It rejected the claim that the

plea could be withdrawn based upon Appellant’s mental condition. The court

reported:

      for the record that the colloquy was conducted by me in
      chambers with him sitting at my desk. It was an oral colloquy
      that was done eyeball to eyeball by me and him and I did not
      detect any depression, anxiety, or compulsion of any kind at that
      point in time and I did so note that on the record that I found
      [the plea] to be knowing, intelligent and voluntary on his part.

Id. at 5. Thereafter, Appellant said that he had nothing else to offer.

      The Commonwealth leveled a two-pronged attack on Appellant’s ability

to withdraw his guilty plea.    It first asserted that “the defendant’s bare

assertion of his innocence following . . . a lengthy colloquy after he had

come right to the brink of going to trial . . . . would not meet the standard of

a fair and just reason.” Id. at 6. In addition to the reasons proffered at the

January 2, 2011 hearing, the Commonwealth also reported that it would be

substantially prejudiced by the withdrawal because the victim, having

undergone five additional surgeries, was no longer able to testify.         The

district attorney had a letter from a medical professional indicating that the

victim could not testify due to memory loss and anxiety. The five additional

medical procedures had resulted in incidents where the victim simply

blanked out and caused him to experience high levels of anxiety, especially

when revisiting the attack.



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      The court denied Appellant’s presentence motion to withdraw, and

imposed a seven and one-half to twenty year term of imprisonment.

Appellant did not file a direct appeal, but did file a timely petition for PCRA

relief on July 5, 2011.     Counsel was appointed, and PCRA relief was

subsequently denied.      On appeal, we reversed and remanded for a

determination of whether Appellant was entitled to have his direct appeal

rights reinstated.   Commonwealth v. Goins, 105 A.3d 793 (Pa.Super.

2014) (unpublished memorandum). Based upon an agreement between the

parties, on December 18, 2014, the trial court granted Appellant the right to

appeal nunc pro tunc. This appeal followed.

      Appellant raises a single position: “Whether the trial court abused its

discretion in finding that Appellant’s assertion of innocence was not a fair

and just reason for withdrawing [the] guilty plea; and, further finding that

the Commonwealth would be substantially prejudiced if Appellant’s Pre-

Sentence Motion for Withdrawal of Guilty Plea were granted?”       Appellant’s

brief at 4.

      We first recite our standard of review: “A decision regarding whether

to accept a defendant's presentence motion to withdraw a guilty plea is left

to the discretion of the sentencing court.” Commonwealth v. Unangst, 71

A.3d 1017, 1019 (Pa.Super. 2013) (citing Pa.R.Crim.P. 591, which states,

“At any time before the imposition of sentence, the court may, in its

discretion, permit, upon motion of the defendant . . . the withdrawal of a

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plea of guilty[.]”). While there is no absolute right to withdraw a guilty plea,

if a motion to withdraw is filed prior to sentencing, such motions are to be

granted liberally, and “a defendant should be permitted to withdraw his plea

for ‘any fair and just reason,’ provided there is no substantial prejudice to

the Commonwealth.” Unangst, supra at 1020.

        Appellant’s first position is that his pre-sentence assertion of innocence

should not have been rejected by the trial court as a fair and just reason for

permitting withdrawal of his guilty plea. A bare assertion of innocence, such

as the one made herein, formerly was considered a fair and just reason

permitting the presentence withdrawal of a guilty plea; the law has since

changed. In Commonwealth v. Carrasquillo, 115 A.3d 1284 (Pa. 2015),

our Supreme Court articulated that “a bare assertion of innocence is not, in

and of itself, a sufficient reason to require a court to grant” a presentence

request to withdraw a guilty plea.        Id. at 1285 (emphasis added).         It

reinforced the principle that “there is no absolute right to withdraw a guilty

plea” and that the trial court is vested with the discretion to determine

“whether a withdrawal request will be granted.”          Id. at 1291-92.      The

Carrasquillo Court did reaffirm that the trial courts are to exercise that

discretion “liberally in favor of the accused” and that “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.” Id. at

1292.

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       In rejecting imposition of a per se rule that a bare assertion of

innocence constitutes a fair and just reason for withdrawal of a guilty plea in

the presentence setting, our High Court was “persuaded by the approach of

other jurisdictions which require that 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. The Carrasquillo Court, in closing,

guided    us   with   the    principle   that    “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.” Id.

It continued that the policy that presentence motions for the withdrawal of a

guilty plea should be granted liberally “remains extant but has its limits,

consistent with the affordance of a degree of discretion to the common pleas

courts.” Id.

       We find that, herein, the trial court did not abuse its discretion. 1 Given

the evidence proffered at the preliminary hearing, the assertion of innocence

____________________________________________


1
  The court concluded that Appellant gave dubious grounds for withdrawal,
such as there was a videotape of the aggravated assault that would
exonerate him and that the assertion of innocence leveled by Appellant was
not clear. Trial Court Opinion, 3/19/15, at 7. We respectfully disagree with
the trial court’s suggestion that the assertion of innocence in this case was
unclear. The counseled motion requested withdrawal on the basis that
Appellant was innocent. Counsel clearly articulated at both evidentiary
hearings that withdrawal was being sought on the basis of an assertion of
(Footnote Continued Next Page)


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was implausible, and Appellant failed to make a colorable demonstration,

under the circumstances, that withdrawal of the plea would promote fairness

and justice.    The victim’s testimony clearly and unequivocally established

Appellant’s guilt as to the charged offenses.              The record reveals that the

Commonwealth had been ready to proceed to trial with other witnesses to

these events. Appellant failed to offer any evidence or argument that would

call into doubt the victim’s account of Appellant’s actions. Accordingly, we

conclude that Appellant’s bald assertion of innocence herein was not a fair

and just reason for withdrawing his guilty plea.

      Appellant    also      challenges      the   trial   court’s   finding   that   the

Commonwealth would have been substantially prejudiced by the withdrawal.

However, the trial court’s finding in this respect is fully supported by the

record. The trial court noted the following:

            Here, as the court found on February 11, 2011, the
      Commonwealth offered credible testimony and a letter from the
      victim's doctor, that while the victim was able to testify on the
      day scheduled for trial, the victim was no longer able to testify.
                       _______________________
(Footnote Continued)

innocence.    Counsel never mentioned the videotape.           Rather, it was
Appellant who raised the issue of the videotape in his pro se motion to
withdraw, which was a nullity. Commonwealth v. Ali, 10 A.3d 282 (Pa.
2010) (pro se filings by represented litigant are not legally effective since a
defendant is not entitled to hybrid representation); accord Commonwealth
v. Ellis, 626 A.2d 1137 (Pa. 1993) (defendant has no right to hybrid
representation either at trial or on appeal).       At the January 2, 2011
evidentiary hearing, Appellant raised the issue of the videotape after counsel
had presented his positions to the court, and Appellant offered it as an
additional reason to permit withdrawal.



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     The Commonwealth represented that the victim suffered from
     post-traumatic stress disorder, and this would be consistent with
     his no longer being able to testify in the case. The victim also
     suffered brain damage and memory loss because of the assault
     which further compromised his ability to testify. Furthermore,
     the Commonwealth had subpoenaed witnesses from outside of
     the area and could likely not locate some of the witnesses who
     were ready to testify on the day that the defendant entered his
     plea. Because the Commonwealth established that it would
     suffer substantial prejudice if the defendant was allowed to
     withdraw his plea, the court properly denied the motion to
     withdraw the guilty plea.

Id. at 9.   These facts were sufficient to sustain the trial court’s finding of

substantial prejudice. Commonwealth v. Dicken, 895 A.2d 50 (Pa.Super.

2006) (upholding refusal to allow defendant to withdraw guilty plea prior to

sentencing since Commonwealth was prepared to proceed to trial with a

witness who lived in Georgia when plea was tendered and witness returned

to Georgia in reliance on the plea). Hence, we affirm the judgment of

sentence.

     Judgment of sentence affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/10/2015




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