J-S39021-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA            :     IN THE SUPERIOR COURT OF
                                         :          PENNSYLVANIA
                                         :
              v.                         :
                                         :
                                         :
 PHOUPHET HOMESOMBATH                    :
                                         :
                   Appellant             :     No. 131 MDA 2018

        Appeal from the Judgment of Sentence November 10, 2014
 In the Court of Common Pleas of Lackawanna County Criminal Division at
                     No(s): CP-35-CR-0003068-2010


BEFORE: STABILE, J., MURRAY, J., and MUSMANNO, J.

MEMORANDUM BY MURRAY, J.:                          FILED AUGUST 07, 2018

     Phouphet Homesombath (Appellant) appeals from the trial court’s denial

of his motion to withdraw guilty plea. Upon review, we affirm.

     The trial court summarized the factual and procedural background,

which has spanned several years, as follows:

            Under     Docket       Number       CP-35-CR-0003068-2010,
     [Appellant] was charged with one (1) count of Corrupt
     Organization in violation of 18 Pa. C.S.A. § 911(b)(2), one (1)
     count of Conspiracy - Possession With Intent to Deliver in
     violation of 18 Pa. C.S.A. § 903, two (2) counts of Possession With
     Intent to Deliver in violation of 35 P.S. § 780-113(a)(30), and one
     (1) count of Possession of Drug Paraphernalia in violation of 35
     P.S. § 780-113(a)(32).         These charges stemmed from the
     execution of a search warrant by Scranton Police Special
     Investigations Division on October 28, 2010, after they received
     information that a package containing a large amount of
     marijuana would be delivered to a residence in Scranton. Dinning,
     Affidavit of Probable Cause, October 28, 2010, at p.1.

           On April 11, 2011 [Appellant] entered a guilty to plea to one
     (1) count of Conspiracy and one (1) count of Possession With
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     Intent to Deliver. [Appellant] was represented by Attorney Ernest
     Preate from his Preliminary Hearing through the Guilty Plea.

            On August 4, 2011, [Appellant], through his new counsel,
     Matthew Comerford, filed a Motion to Withdraw Guilty Plea. On
     January 6, 2012, following a hearing, this [c]ourt denied
     [Appellant’s] Motion to Withdraw Guilty Plea. In the Order, this
     [c]ourt provided the following reasons for denying [Appellant’s]
     Motion, including its finding that the assertion of innocence by
     [Appellant] was not credible and did not amount to a fair and just
     reason, the Commonwealth would suffer substantial prejudice,
     and that under the totality of the circumstances, including the
     numerous continuances of sentencing, that the Motion was merely
     a dilatory tactic. Thereafter, [Appellant] absconded or otherwise
     failed to appear for a period of time.

           [Appellant] was subsequently apprehended and sentenced
     on November 10, 2014, to fourteen (14) to twenty-eight (28)
     months followed by four (4) years’ Special Probation on the
     Conspiracy charge and thirty (30) to sixty (60) months’
     confinement followed by four (4) years’ Special Probation on the
     PWID charge, consecutive; for an aggregate sentence of forty-
     four (44) to eighty-eight (88) months’ confinement followed by
     eight (8) years’ Special Probation.

           On November 20, 2014, counsel for [Appellant] filed a
     Motion for Reconsideration of Sentence, which was denied by this
     [c]ourt on November 21, 2014. No direct appeal was filed.

            On December 19, 2014, [Appellant] filed a pro se Petition
     for Post Conviction Relief.       Thereafter, Attorney Terrence
     McDonald was appointed as PCRA counsel and supplemented the
     PCRA Petition on June 3, 2015, asserting additional claims
     including ineffectiveness against Attorney Matthew Comerford for
     failure to appeal the denial of [Appellant’s] Motion to Withdraw
     Guilty Plea or appealing the sentence imposed.

            A hearing was held on August 31, 2015, at which time both
     [Appellant] and Attorney Comerford testified that [Appellant]
     communicated his request for a direct appeal, but the appeal was
     not filed due to a dispute regarding payment.

          On December 14, 2017, this [c]ourt granted the PCRA to
     the extent that it reinstated [Appellant’s] right to direct appeal

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      nunc pro tunc, as the Petition both plead and proved that he was
      denied the opportunity to file a direct appeal.

            As such, [Appellant] timely appealed in compliance with this
      [c]ourt’s December 14, 2017, Order reinstating the right to appeal
      nunc pro tunc.

Trial Court Opinion, 3/16/18, at 1-3.

      Appellant filed this appeal on January 12, 2018. The trial court ordered

Appellant to comply with Pa.R.A.P. 1925(b), and Appellant filed his concise

statement of errors complained of on appeal on February 5, 2015. The trial

court filed its opinion on March 16, 2018.
      Appellant presents a single issue for our review:

            Whether the trial court committed an abuse of discretion in
      denying Appellant’s presentence Motion to Withdraw Guilty Plea
      after Appellant provided a fair and just reason for withdrawing his
      plea and no substantial prejudice would befall the
      Commonwealth?

Appellant’s Brief at 4.

      We review a trial court’s denial of a pre-sentence request to withdraw a

guilty plea mindful of the following:

      [W]e recognize that 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.” Pa.R.Crim.P. 591(A). The Supreme Court of Pennsylvania
      recently clarified the standard of review for considering a trial
      court’s decision regarding a defendant’s pre-sentence motion 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.

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      Commonwealth v. Carrasquillo, 631 Pa. 692, 115 A.3d 1284,
      1285, 1291–92 (2015) (holding there is no per se rule regarding
      pre-sentence request to withdraw a plea, and bare assertion of
      innocence is not a sufficient reason to require a court to grant
      such request). We will disturb a trial court’s decision on a request
      to withdraw a guilty plea only if we conclude that the trial court
      abused its discretion. Commonwealth v. Gordy, 73 A.3d 620,
      624 (Pa. Super. 2013).

Commonwealth v. Blango, 150 A.3d 45, 47 (Pa. Super. 2016), appeal

denied, 168 A.3d 1254 (Pa. 2017). “An abuse of discretion is not a mere

error in judgment but, rather, involves bias, ill will, partiality, prejudice,

manifest unreasonableness, and/or misapplication of law.         By contrast, a

proper exercise of discretion conforms to the law and is based on the facts of

record.” Gordy, 73 A.3d at 624 (citation omitted).

      We note that, although it does not impact our disposition, Appellant

petitioned to withdraw his guilty plea prior to the Pennsylvania Supreme

Court’s decision in Carrasquillo. Our Supreme Court in Carrasquillo, with

reference to its prior decision in Commonwealth v. Forbes, 299 A.2d 268

(Pa. 1973), stated “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, 115 A.3d at 1291–1292. The Supreme Court

observed that the “perfunctory fashion in which these principles were applied

to the circumstances presented in Forbes, as well as in the ensuing decision



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in [Commonwealth v.] Woods, 307 A.2d 880 [Pa. 1973)], also lent the

impression that this Court had required acceptance of a bare assertion of

innocence as a fair-and-just reason.” Id. at 1292. The Supreme Court then

specifically held that a bare assertion of innocence is not a sufficient reason

to require a court to grant such request.

        Instantly, Appellant does not argue that he made a bare assertion of

innocence. Rather, Appellant argues that he presented a fair and just basis

to support the withdrawal of his guilty plea. He states that he “did not merely

make a bare claim of innocence, but instead, under oath, he claimed that he

was innocent of the charges, that he was not found to have drugs on his

person, did not occupy or own the property where drugs were found, did not

own the suitcase in which drugs were stored, and informed the court that he

previously testified under oath that the suitcase with drugs did not belong to

him.”    Appellant’s Brief at 9.   Appellant thus asserts that he “plausibly

demonstrated a fair and just reason for withdrawal of his guilty plea.” Id.

Appellant further maintains that the Commonwealth failed to demonstrate that

it would be substantially prejudiced by the withdrawal of his guilty plea.

        Conversely, the Commonwealth counters that the trial court, “in its

discretion, correctly found Appellant had not made a ‘colorable demonstration,

such that allowing the withdrawal of the plea would promote fairness and

justice.’” Commonwealth Brief at 11. The Commonwealth additionally asserts

that it would be “greatly prejudiced” because it allowed two of Appellant’s co-

defendants to plead guilty, and nolle prossed another co-defendant’s charges,

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after Appellant entered his plea and before Appellant filed his motion to

withdraw the plea. Id. at 11. The Commonwealth states that as a result, it

“lost all leverage it had over the co-defendants, placing the Commonwealth in

a worse place than it would have been in prior to the Appellant pleading

guilty.” Id.

        Our review of the record confirms that on April 6, 2011, Appellant pled

guilty to conspiracy to commit possession with the intent to deliver, as well as

possession with intent to deliver.1 Sentencing was scheduled for July 5, 2011.

Appellant requested a continuance and sentencing was re-scheduled for

August 9, 2011.       On August 2, 2011, Appellant filed another continuance

motion, as well as his motion to withdraw the plea. The trial court held an

evidentiary hearing on August 16, 2011 and August 19, 2011, when it heard

argument as well as testimony.

        On January 6, 2012, the trial court denied the motion. The trial court

concluded that “the facts before this court reveal that based upon the totality

of the circumstances, [Appellant] did not make a credible assertion of

innocence and thus did not provide a fair and just reason to withdraw his guilty

plea prior to sentencing.” Order, 1/6/12, at 2. The trial court explained:

             Appellant’s assertion [of innocence that was] invoked at the
        prospect of being sentenced . . . was anything but credible.
        Indeed, no sooner would the assertion be made than it would be
        completely contradicted by statements admitting guilt at
        [Appellant’s] hearing of August 16, 2011 and August 19, 2011.
        During the hearing, [Appellant] made inconsistent statements
____________________________________________


1   18 Pa.C.S.A. § 903; 35 P.S. § 780-113(a)(30).

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     about his partnership with his co-defendant, Alfred Bachiller, as
     well as their plans to sell marijuana to establish a staffing agency.
     Specifically, [Appellant’s] pre-sentence interviewer, Lisa White,
     corroborated [Appellant’s] statements at the time of the extended
     hearing on August 19, 2011. Ms. White testified that [Appellant]
     provided facts beyond the affidavit of probable cause during the
     Pre-Sentence interview. She noted that [Appellant] admitted to
     his partnership with Alfred Bachiller and how he planned to fund
     the staffing agency with drug proceeds. As such, this Court finds
     that the statements made by both [Appellant] and Lisa White
     undermine the credibility of [Appellant’s] assertion of innocence
     to the Court.

           Specifically, this Court finds that [Appellant’s] petition for
     withdrawal of his guilty plea was pretextual, and merely used as
     a dilatory tactic rather than as a lawful means to assert his
     innocence. See Commonwealth v. Cole, 564 A.2d 203 (Pa.
     Super. 1989) (a criminal defendant will not be permitted to play
     fast and loose with the guilty plea process in order to delay
     prosecution). This Court finds that [Appellant’s] motion is founded
     upon a desire to delay sentencing rather than a sincere assertion
     of innocence. A review of the [Appellant’s] prior record indicates
     that [Appellant] is no stranger to the criminal justice system and
     as such voluntarily, knowingly, and intelligently proffered a guilty
     plea on the date scheduled for his trial. The colloquy indicates that
     [Appellant] was able to understand the questions and answer
     them correctly; and that he both fully understood the questions
     as well as his decision to plead guilty. Accordingly, this Court holds
     that [Appellant’s] assertion of innocence was contrived and falls
     short of a fair and just reason to warrant his withdrawal request.

           Moreover, had [Appellant’s] withdrawal request been
     permitted, the Commonwealth would have suffered substantial
     prejudice. In reliance upon [Appellant’s] guilty plea, the
     Commonwealth negotiated two guilty pleas with [Appellant’s] co-
     Defendants, Alfred Bachiller and Opal Robinson. Both co-
     Defendants, who were two key witnesses, pled on April 14, 2011
     and were sentenced subsequently thereafter. In further reliance,
     the Commonwealth nolle-prossed the charges against a third co-
     Defendant, Pany Phommachanh. As a result of these events, the
     Commonwealth is placed in a worse position than it would have
     been had trial taken place as scheduled. For example, while the
     three co-defendants are undoubtedly available in a technical
     sense, the reluctance of the three co-defendants to testify in a

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      manner that would cause incarceration of [Appellant] is evident,
      and significantly impairs the Commonwealth in this case.

Id. at 2-4.

      Our review of the notes of testimony confirms Appellant’s assertion that

after entering his plea, he testified to being innocent, to not having drugs on

his person, and not residing at the residence where drugs were found. N.T.,

8/16/11, at 2-3. Appellant admitted that he was in a van where a suitcase

containing drugs was discovered, but stated that the suitcase did not belong

to him. Id. at 3.

      However, Probation Officer Lisa Brudnicki testified that she interviewed

Appellant after he entered his plea for the purpose of preparing a pre-sentence

investigation report (PSI).   Ms. Brudnicki averred that she and Appellant

communicated clearly, and that when she reviewed the information about the

marijuana as described in the affidavit of probable cause, Appellant

understood it. N.T., 8/19/11, at 8. Ms. Brudnicki testified that Appellant told

her he had a 10-year business relationship with his co-defendant, Al Bachiller,

and that “Al proposed the idea of selling marijuana, and [Appellant] agreed to

it.” Id. at 9. The PSI was admitted into evidence. Id. at 10.

      The final and third witness was Appellant’s former attorney, Ernest

Preate. Mr. Preate testified that Appellant told him “that he didn’t have any

knowledge” about the marijuana, but that after “the shock” of his co-

defendants testifying against him at the suppression hearing, and upon

conferring with Mr. Preate, Appellant entered his guilty plea. Id. at 16-18.



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      Thereafter, the trial court denied Appellant’s motion, and determined

that even under Forbes, Appellant did not have the absolute right to withdraw

his plea.     Citing Commonwealth v. Tennison, 969 A.2d 572 (Pa. Super.

2009), the court stated, “a mere assertion of innocence does not divest a

judge of the discretion to weigh [Appellant’s] sincerity according to the totality

of the circumstances known to the judge.” Order, 1/6/12, at 1. The court

concluded that Appellant “did not make a credible assertion of innocence and

thus did not provide a fair and just reason to withdraw his guilty plea prior to

sentencing.” Id. at 2.

      The trial court also found that the Commonwealth would be substantially

prejudiced by a withdrawal of Appellant’s plea because “the reluctance of the

three co-defendants to testify in a manner that would cause incarceration of

[Appellant] is evident.”     Id. at 4.      As previously noted, “in determining

whether to grant a pre-sentence motion for withdrawal of a guilty plea, ‘the

test to be applied by the trial courts is fairness and justice.’ If 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.’” Forbes, 299 A.2d at 271 (citations omitted). “It is settled law

that ‘prejudice,’ in the withdrawal of a guilty plea context, requires a showing

that, due to events occurring after the plea was entered, the Commonwealth

is placed in a worse position than it would have been had trial taken place as

scheduled.” Blango, 150 A.3d at 51, citing Commonwealth v. Kirsch, 930

A.2d 1282, 1286 (Pa. Super. 2007).               See also Gordy, 73 A.3d at 624

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(“[P]rejudice is about the Commonwealth’s ability to try its case, not about

the personal inconvenience to complainants unless that inconvenience

somehow impairs the Commonwealths prosecution.”). We agree with the trial

court that the Commonwealth would be prejudiced in this case. The record

belies Appellant’s assertion that the Commonwealth’s claim of substantial

prejudice “was not supported and amounted to mere speculation.” Appellant’s

Brief at 10. Due to the two pleas and nolle prosse in the cases of Appellant’s

three co-defendants, the Commonwealth would clearly be in a worse position

at trial. This Court recently addressed a similar scenario, stating:

      [W]e also agree with the trial court’s finding that Appellant’s guilty
      plea could not be withdrawn because the Commonwealth would
      suffer substantial prejudice from the withdrawal. As noted above,
      Appellant did not assert his alleged innocence until over two years
      after he entered his guilty plea; in that time, his co-defendant
      . . . had already entered a guilty plea and had been
      sentenced. The trial court found that [the co-defendant’s]
      lack of motivation to cooperate with the prosecution would
      severely prejudice the Commonwealth if it sought to try
      Appellant.

Commonwealth v. Davis, 2018 PA Super 180 (June 22, 2018) (emphasis

added).

      In sum, we find no abuse of discretion by the trial court. The trial court’s

denial of Appellant’s motion to withdraw his guilty plea is consistent with both

the law and facts of record. The Honorable Michael J. Barrasse has presided

in Appellant’s case from its inception in 2010, through the present appeal.

Judge Barrasse, now President Judge Barrasse, restated his rationale for

denying Appellant’s motion to withdraw his guilty plea:


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      Specifically, this [c]ourt found that [Appellant’s] motion was
      founded upon a desire to delay sentencing rather than a sincere
      assertion of innocence. A review of [Appellant’s] prior record
      indicated that [Appellant] is no stranger to the criminal justice
      system and as such voluntarily, knowingly, and intelligently
      proffered a guilty plea on the date scheduled for his trial. The
      colloquy indicated that [Appellant] was able to understand the
      questions and answer them affirmatively; and that he both fully
      understood the questions as well as his decision to plead guilty.
      Accordingly, this [c]ourt held that [Appellant’s] assertion of
      innocence was contrived and falls short of a fair and just reason
      to warrant his withdrawal request.

             Moreover, this [c]ourt found that, had [Appellant’s]
      withdrawal request been permitted, the Commonwealth would
      have suffered substantial prejudice. In reliance upon the
      [Appellant’s] guilty plea, the Commonwealth negotiated two guilty
      pleas with [Appellant’s] co-defendants, Alfred Bachiller and Opal
      Robinson. Both co-defendants, who were two key witnesses set to
      testify against [Appellant], entered guilty pleas shortly after
      [Appellant] and were sentenced subsequently thereafter. In
      further reliance on [Appellant’s] guilty plea, the Commonwealth
      nolle prossed the charges against the third co-defendant, Pany
      Phommachanh. As such, this [c]ourt determined that as a result
      of these events, the Commonwealth was placed in a worse
      position than it would have been had the trial taken place as
      originally scheduled; for example, while the three co-defendants
      would have been available in a technical sense, the reluctance of
      the three co-defendants to testify in a manner that would cause
      incarceration of [Appellant] is evident, and significantly impairs
      the Commonwealth in this case.

Trial Court Opinion, 3/16/16, at 7-8.

      On this record, we discern no abuse of discretion by the trial court and

therefore affirm the denial of Appellant’s motion to withdraw his guilty plea.




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     Order affirmed.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/7/2018




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