J-S28020-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                       IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                            Appellee

                       v.

ANTHONY JIMEE PETE

                            Appellant                   No. 1223 WDA 2016


              Appeal from the Judgment of Sentence March 16, 2015
                  In the Court of Common Pleas of Butler County
               Criminal Division at No(s): CP-10-CR-0001994-2013

BEFORE: OLSON, J., MOULTON, J., and STRASSBURGER, J.*

MEMORANDUM BY MOULTON, J.:                        FILED OCTOBER 04, 2017

       Anthony Jimee Pete appeals from the March 16, 2015 judgment of

sentence entered in the Butler County Court of Common Pleas following his

guilty plea for statutory sexual assault, 18 Pa.C.S. § 3122.1(b). We affirm.

       The trial court set forth the history of this case:

            [O]n September 17, 2014, [Pete] entered a guilty plea to
            statutory sexual assault. On January 21, 2015, the time
            set for sentencing, [Pete] informed the Court that he
            wished to withdraw his guilty plea.        A hearing was
            scheduled on March 16, 2015, during which [Pete]’s
            testimony and argument by the parties w[ere] presented
            to the Court. The Court denied the motion to withdraw
            guilty plea and proceeded to sentence [Pete] on that
            date.[1] On March 15, 2016, [Pete] filed a pro se Motion
            for Post Conviction Collateral Relief. On March [22], 2016,
____________________________________________


       *   Retired Senior Judge assigned to the Superior Court.

       1   The court sentenced Pete to 42 to 144 months’ incarceration.
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           the Court appointed PCRA counsel. On July 20, 2016,
           PCRA counsel filed an Amended Petition for Post-Conviction
           Relief requesting that [Pete]’s right to file a direct appeal
           from his judgment of sentence be reinstated nunc pro
           tunc. The Commonwealth consented to the reinstatement
           of [Pete]’s direct appellate rights. On July 22, 2016, the
           Court granted the relief and [Pete]’s right to file a direct
           appeal from his judgment of sentence was reinstated nunc
           pro tunc. On August 16, 2016, [Pete] filed [his] Notice of
           Appeal Nunc Pro Tunc.

1925(a) Opinion, 10/20/16, at 1.

       Pete raises the following issue on appeal:      “Whether the trial court

erred in denying [his] pre-sentence Motion to Withdraw Guilty Plea[.]”

Pete’s Br. at 5. Pete’s argument, however, is two-fold.        First, Pete claims

that the trial court should have allowed him to withdraw his guilty plea

because he presented a fair and just reason for doing so.          Second, Pete

claims that his guilty plea was not knowing, voluntary, and intelligent.2

I.     Pre-Sentence Motion to Withdraw

       “We review a trial court’s ruling on a pre-sentence motion to withdraw

a guilty plea for an abuse of discretion.”       Commonwealth v. Islas, 156

A.3d 1185, 1187 (Pa.Super. 2017).

       Pennsylvania Rule of Criminal Procedure 591(A) states that, “[a]t 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
____________________________________________


       2 Pete argues that there was a fair and just reason to withdraw his
guilty plea because it was not knowingly, voluntarily and intelligently
entered. However, any argument that he did not knowingly, voluntarily, and
intelligently enter a plea attacks the validity of the plea itself.



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of a plea of guilty or nolo contendere and the substitution of a plea of not

guilty.”    Pa.R.Crim.P. 591(A).       The Pennsylvania Supreme Court has

explained that while “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.”     Commonwealth v. Forbes,

299 A.2d 268, 271 (Pa. 1973) (emphasis in original). Further, “[i]f the trial

court finds ‘any fair and just reason[,’] withdrawal of the plea before

sentence should be freely permitted, unless the prosecution has been

‘substantially prejudiced.’” Id.

      To determine whether a defendant has presented a “fair and just

reason,” we must employ the standards set forth by our Supreme Court in

Commonwealth v. Carrasquillo, 115 A.3d 1284 (Pa. 2015), and explained

by this Court in Islas:

              First, the Court [in Carrasquillo] squarely rejected a
           per se approach in which any presentence motion to
           withdraw a guilty plea based on a claim of innocence must
           be granted. Second, nothing in Carrasquillo suggests
           that the Court intended the pendulum to swing fully in the
           other direction — from automatic grants to automatic
           denials of pre-sentence motions to withdraw. Indeed, the
           Court expressly reaffirmed the liberal-allowance language
           in Forbes, which continues to stand in sharp contrast to
           the “manifest injustice” standard for post-sentence
           motions to withdraw. Third, the Court directed trial courts
           to distinguish between “mere, bare, or non-colorable”
           assertions of innocence on the one hand and those that
           are “at least plausible” on the other. Fourth, as trial courts
           undertake the task of making that distinction, both the
           timing and the nature of the innocence claim, along with
           the relationship of that claim to the strength of the
           government’s evidence, are relevant. In addition, in his

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           concurring opinion in Carrasquillo, then-Justice Stevens
           added that trial courts assessing the credibility of an
           accused’s assertion of innocence should also consider any
           “ulterior or illicit motive” for the motion to withdraw.
           Carrasquillo, 115 A.3d at 1293 (Stevens, J., concurring);
           accord Commonwealh v. Tennison, 969 A.2d 572, 573
           (Pa.Super. 2009).

Islas, 156 A.3d at 1190-91 (internal footnote omitted).

       Pete first contends that the trial court should have allowed him to

withdraw his plea because he asserted his innocence at the hearing on his

motion to withdraw. During the hearing, Pete stated that he was innocent,

that he did not understand the implications of Megan’s Law,3 and that he

had felt it would be better to take the plea at the time. N.T., 3/16/15, at 5. 4

       During the hearing on his motion to withdraw, Pete stated:

____________________________________________


       3Pete does not argue in his brief that he did not understand the
implication of Megan’s Law; thus, he has abandoned this claim on appeal.

       4Additionally, in his brief, Pete raises an additional claim that he had a
defense of mistake of age. Pete argues that during the hearing “there was
no discernible exploration into how [Pete] could be innocent of the crimes
with which he was charged . . . . There was no questioning as to whether
[Pete] had a viable defense to the charge.” Pete’s Br. at 18.

      We note that Pete did not raise this claim at the hearing on the motion
to withdraw. To the extent Pete is claiming that plea counsel was ineffective
in not questioning him regarding possible defenses, we note that claims of
ineffectiveness of counsel cannot be raised on direct appeal absent
exceptional circumstances not present in this case. See Commonwealth v.
Holmes, 79 A.3d 562, 576 (Pa. 2013) (holding that absent exceptional
circumstances, “claims of ineffective assistance of counsel are to be deferred
to PCRA review; trial courts should not entertain claims of ineffectiveness
upon post-verdict motions; and such claims should not be reviewed upon
direct appeal”).



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        Well, I would like to assert my innocence and take this to
        trial because I feel I just want to pursue my innocence. I
        didn’t really understand the logis [sic] of the Megan’s Law
        and I felt it would be better to take a plea at the time. But
        I know I have a chance. I’m willing to take it back.

N.T., 3/16/15, at 5.     During cross-examination, the following exchange

occurred:

        [COMMONWEALTH]: Okay. Would it be correct to say at
        this point that you want to withdraw your plea in this case
        because of the Megan’s Law implications, correct?

        [PETE]: Well, part of it, yeah.

        [COMMONWEALTH]: Well, part. What’s the other part?

        [PETE]: Well, part of it is because I didn’t – I didn’t rape
        anybody. That’s not what I’m [sic] really want to plead
        guilty to.

        [COMMONWEALTH]: Well, do you understand that you
        didn’t plead guilty to raping anybody?

        [PETE]: Yeah. But that’s not what I understand the [sic]
        sexual assault though.

        [COMMONWEALTH]: Do you understand that what you
        pled guilty to was statutory sexual assault?

        [PETE]: Yes.

        [COMMONWEALTH]: And that’s not -- that’s not rape?

        [PETE]: It says it’s forceable but that’s what -- that’s what
        I take from it. I just didn’t like -- I don’t know if it’s the
        title or whatever, but I would rather just take what I get.

        [COMMONWEALTH]: Take what you get with what?

        [PETE]: Trial.

                                     ...

        [COMMONWEALTH]: Okay. Now, just so I understand,
        what at this time is making you say that you want to
        withdraw that plea, just so I’m clear?


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         [PETE]: Because I am innocent.

         [COMMONWEALTH]: You are saying that you didn’t do
         that?

         [PETE]: I am saying that I -- I did but it’s not like how
         they are trying to portray it, how it happened. You see
         what I’m saying?

         [COMMONWEALTH]: What you are admitting, what you are
         saying is that the sex occurred just not like how she said,
         is that correct?

         [PETE]: Exactly. Yes.

         [COMMONWEALTH]: Okay.

         [PETE]: And that’s what I would just like to actually try to
         get my story out.    That’s what’s really bothering me
         because it’s just --

         [COMMONWEALTH]: So, you are admitting that you did
         have sex with her when you were 11 years older than she
         was, correct?

         [PETE]: Yes.

         [COMMONWEALTH]: And when you had sex with her, she
         was 15 years of age, correct?

         [PETE]: Yes.

         [COMMONWEALTH]: We’re not arguing that, right?

         [PETE]: No.

         [COMMONWEALTH]: Okay. It’s just the circumstances?

         [PETE]: Yes.

Id. at 7-8, 9-10.

      The Pennsylvania Supreme Court has concluded that a claim of

innocence is not a “fair and just reason” to withdraw a guilty plea unless it is

at least a plausible claim. In Commonwealth v. Hvizda, 116 A.3d 1103,

1104, 1107 (Pa. 2015), a companion case to Carrasquillo, the defendant

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“stated he was innocent, but he offered no evidence.”          In contrast, the

Commonwealth          presented       audiotapes   of   defendant’s   telephone

conversations from prison in which he admitted to the murder and stated

that he wanted a trial only to “get some of the story out.” Id. at 1104. Our

Supreme Court concluded that the defendant’s claim of innocence amounted

to a “bare assertion” of innocence. Id. at 1107.

       Here, Pete admitted to having sex with the victim while the victim was

15 years old and he was 11 years older than she was. See N.T., 3/16/15, at

9-10. Pete merely disagreed with how “they are trying to portray that it . . .

happened,” and wanted to “just like to actually try to get my story out.” Id.

As in Hvizda, Pete’s claim amounts to a bare assertion of innocence,5 and

does not meet the “at least plausible” standard set forth in Carrasquillo.

See Carrasquillo, 115 A.3d at 1292. Therefore, we conclude that Pete has

not presented a fair and just reason warranting withdrawal of his guilty plea.

Accordingly, we need not reach the question whether the Commonwealth

would have been substantially prejudiced by a withdrawal of the plea.


____________________________________________


       5Further, as Pete admits in his brief, his claim of innocence made at
the hearing to withdraw his guilty plea was “confusing.” See Pete’s Br. at 14
(“[Pete’s] assertion of innocence was somewhat confusing at the hearing on
his motion to withdraw . . . .”). During direct examination, Pete claimed that
he was innocent, N.T., 3/16/15, at 5; however, during cross-examination, he
admitted to the crime and stated that he just did not agree with the
circumstances and wanted to “just like to actually try to get my story out.”
Id. at 9-10.



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II.   Whether Guilty Plea was Knowing, Voluntary, and Intelligent

      Next, we address Pete’s claim that his guilty plea was not knowing,

voluntary, and intelligent.     We have stated, “A defendant wishing to

challenge the voluntariness of a guilty plea on direct appeal must either

object during the plea colloquy or file a motion to withdraw the plea within

ten days of sentencing.” Commonwealth v. Lincoln, 72 A.3d 606, 609-10

(Pa.Super. 2013). “Failure to employ either measure results in waiver.” Id.

at 610. The rationale behind this waiver principle is that

         “[i]t is for the court which accepted the plea to consider
         and correct, in the first instance, any error which may
         have been committed.” Commonwealth v. Roberts, 237
         Pa.Super. 336, 352 A.2d 140, 141 (1975) (holding that
         common and previously condoned mistake of attacking
         guilty plea on direct appeal without first filing petition to
         withdraw plea with trial court is procedural error resulting
         in waiver; stating, “(t)he swift and orderly administration
         of criminal justice requires that lower courts be given the
         opportunity to rectify their errors before they are
         considered on appeal”; “Strict adherence to this procedure
         could, indeed, preclude an otherwise costly, time
         consuming, and unnecessary appeal to this court”).

Id.

      Here, while Pete did make an oral motion to withdraw his plea, he

failed to raise this particular claim with the trial court at any time during the

motion to withdraw proceedings. Pete now argues that “a plain reading of

[his] questioning . . . shows that [he] was not, in fact, aware of the nature

of the offense to which he pled guilty.” Pete’s Br. at 19. During the hearing

on the motion to withdraw, however, Pete never stated that he was unaware


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of the charge against him or that he did not understand the nature and

elements of the crime. Accordingly, we conclude he has waived his claim. 6

____________________________________________


       6Even if Pete had not waived his claim, we would conclude that it
lacks merit. The information filed against Pete listed the elements of
statutory sexual assault. Further, Pete completed and signed a six-page
written plea colloquy and orally acknowledged the terms of the agreement.
N.T., 9/17/14, at 7-8. In the written colloquy, Pete initialed and signed that
he understood the charges and that his attorney had briefed him on the
elements. In addition, during the hearing on the motion to withdraw guilty
plea, the following exchange occurred:

           [COMMONWEALTH]: Do you understand that what you
           pled guilty to was statutory sexual assault?

           [PETE]: Yes.

                                           ...

           [COMMONWEALTH]: So, you are admitting that you did
           have sex with her when you were 11 years older than she
           was, correct?

           [PETE]: Yes.

           [COMMONWEALTH]: And when you had sex with her, she
           was 15 years of age, correct?

           [PETE]: Yes.

           [COMMONWEALTH]: We’re not arguing that, right?

           [PETE]: No.

N.T., 3/16/15, at 7, 10.

      Considering the totality of the circumstances, we conclude that Pete
was aware of the nature of the offense and the elements of the crime. See
Commonwealth v. Kpou, 153 A.3d 1020, 1023-24 (Pa.Super. 2016)
(courts review the “totality of the circumstances” to determine whether a
defendant entered a voluntary, intelligent, and knowing plea); see also
(Footnote Continued Next Page)


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      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/4/2017




(Footnote Continued) _______________________

Commonwealth v. Pollard, 832 A.2d 517, 523 (Pa.Super. 2003) (law
presumes that defendant who enters into plea is aware of what he or she is
doing, and defendant bears burden of proving otherwise).



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