J-S59027-15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,           :   IN THE SUPERIOR COURT OF
                                        :        PENNSYLVANIA
                 Appellee               :
                                        :
           v.                           :
                                        :
CHRISTOPHER LEE REAMS,                  :
                                        :
                 Appellant              :   No. 346 WDA 2015

        Appeal from the Judgment of Sentence September 5, 2013,
                Court of Common Pleas, Clearfield County,
            Criminal Division at No. CP-17-CR-0000824-2012


COMMONWEALTH OF PENNSYLVANIA,           :   IN THE SUPERIOR COURT OF
                                        :        PENNSYLVANIA
                 Appellee               :
                                        :
           v.                           :
                                        :
CHRISTOPHER LEE REAMS,                  :
                                        :
                 Appellant              :   No. 347 WDA 2015

        Appeal from the Judgment of Sentence September 5, 2013,
                Court of Common Pleas, Clearfield County,
            Criminal Division at No. CP-17-CR-0000822-2012

BEFORE: BOWES, DONOHUE and FITZGERALD*, JJ.

MEMORANDUM BY DONOHUE, J.:                      FILED OCTOBER 06, 2015

     Appellant, Christopher Lee Reams (“Reams”), appeals from the

judgment of sentence entered on September 5, 2013 by the Court of

Common Pleas of Clearfield County, Criminal Division, following his guilty

plea to rape of a child, involuntary deviate sexual intercourse with a child,

aggravated indecent assault of a child, statutory sexual assault, sexual


*Former Justice specially assigned to the Superior Court.
J-S59027-15


assault, indecent assault of a person less than thirteen years of age, and

indecent exposure.1 For the reasons that follow, we affirm.

      The trial court summarized the relevant facts and procedural history of

this case as follows:

               These cases were initiated by the filing of
            [c]riminal [c]omplaints by Trooper Terry Jordan of
            the Pennsylvania State Police, on October 5, 2012.
            The [a]ffidavit of [p]robable [c]ause, for docket
            number CP-17-CR-822-2012, states that [Reams]
            sexually abused a young boy[,] eight years of age,
            named “S.H.,” on multiple occasions.            These
            incidents included, inter alia, anally raping the boy
            and performing oral sex on S.H. The [a]ffidavit of
            [p]robable [c]ause, for docket number CP-17-CR-
            824-2012, avers that [Reams] sexually abused
            “E.H.,” a five-year-old girl. It was alleged, among
            other incidents, that [Reams] had anal sex with E.H.
            on one occasion and inserted one of his finger[s] into
            her vagina and anus on another.

               For the purposes of trial[,] these two cases were
            consolidated. Jury selection was scheduled for this
            matter on February 7, 2013. However, on that day,
            [Reams] entered into and signed a [n]egotiated
            [p]lea [a]greement and [g]uilty [p]lea [c]olloquy.
            Also, on February 7, 2013, [Reams] appeared before
            this [c]ourt and entered his plea into the record.
            Furthermore, the [c]ourt conducted an oral colloquy
            on the record. During the course of these events,
            [Reams] was fully and competently represented by
            counsel and was advised of certain mandatory
            minimum sentences associated with his charges.
            Consequentially, jury selection for that day was
            cancelled.




1
  18 Pa.C.S.A. §§ 3121(c), 3123(b), 3125(b), 3122.1, 3124.1, 3126(a)(7),
3127(a).


                                    -2-
J-S59027-15


              On April 16, 2013, the [c]ourt issued an [o]rder
           dictating  that   the   State    Sexual   Offenders’
           Assessment Board evaluate [Reams], pursuant to
           the provisions of 42 Pa.C.S.A. § 9795.4(a). The
           assessment indicated that [Reams] met the criteria
           of a “Sexually Violent Predator” (hereinafter “SVP”)
           as defined by statute.2 The [c]ourt scheduled a
           Megan’s Law Hearing for September 5, 2013, to
           determine if [Reams] should be deemed a SVP.

              In the meantime, [Reams] had been scheduled
           for sentencing on July 9, 2013.       [Reams], via
           counsel, made an oral [m]otion for a continuance
           due the pending Megan’s Law Hearing. The [c]ourt
           granted said [m]otion and scheduled sentencing for
           September 5, 2013, to follow the Megan’s Law
           [h]earing.    [Reams] then filed a [p]etition to
           [w]ithdraw [p]lea on July 17, 2013. The [c]ourt held
           a [h]earing on this [m]otion on August 13, 2013, at
           which time the [c]ourt denied [Reams]’s request to
           withdraw his plea.

             On September 5, 2013, the [sentencing hearing]
           was held pursuant to 42 Pa.C.S.A. § 9795.4, at
           which time [Reams] was classified as a SVP.

Trial Court Opinion, 4/13/15, at 1-3 (footnote omitted).


           2
             An SVP under Pennsylvania’s version of Megan’s
           Law is defined as follows:

                 A person who has been convicted of a
                 sexually violent offense as set forth in
                 section 9795.1 (relating to registration)
                 and who is determined to be a sexually
                 violent predator under section 9795.4
                 (relating to assessments) due to a
                 mental    abnormality    or  personality
                 disorder that makes the person likely to
                 engage in predatory sexually violent
                 offenses.

           42 Pa.C.S.A. § 9792.


                                    -3-
J-S59027-15


      The same day, the trial court sentenced Reams to an aggregate term

of twenty to forty years of incarceration. On September 16, 2013, Reams

filed a post-sentence motion for reconsideration of sentence, which the trial

court denied on October 21, 2013. On November 22, 2013, Reams filed a

notice of appeal, which this Court quashed as untimely on April 28, 2014.

On October 14, 2014, Reams filed a pro se petition pursuant to the Post

Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546, in which he

averred that his appointed counsel was ineffective for failing to file a timely

notice of appeal.   On February 12, 2015, the PCRA court granted Reams’

PCRA petition, reinstating his direct appeal rights nunc pro tunc.      Reams

received new appointed counsel during the PCRA proceedings.

      On February 12, 2015, Reams filed a timely notice of appeal.          On

March 6, 2015, the trial court ordered Reams to file a concise statement of

the errors complained of on appeal pursuant to Rule 1925(b) of the

Pennsylvania Rules of Appellate Procedure. On March 18, 2015, Reams filed

a timely Rule 1925(b) statement.

      On appeal, Reams raises the following issue for our review: “Whether

the [trial court] improperly denied the [Reams’] request to withdraw his

[guilty plea?]” Reams’ Brief at vi. Reams asserts that the trial court erred

in denying his presentence motion to withdraw his guilty plea because he

claimed that he was innocent of the allegations against him and because




                                     -4-
J-S59027-15


there would be no prejudice to the Commonwealth’s case if the trial court

permitted Reams to withdraw his plea.3 See id. at 1-3.

      We acknowledge the following standard for reviewing a trial’s denial of

a presentence motion to withdraw a guilty plea:

               The standard of review that we employ in
            challenges to a trial court’s decision regarding a
            presentence motion to withdraw a guilty plea is well-
            settled. “A trial court’s decision regarding whether
            to permit a guilty plea to be withdrawn should not be
            upset absent an abuse of discretion. An abuse of
            discretion exists when a defendant shows any ‘fair
            and just’ reasons for withdrawing his plea absent
            ‘substantial prejudice’ to the Commonwealth.” In its
            discretion, a trial court may grant a motion for the
            withdrawal of a guilty plea at any time before the
            imposition of sentence.          Pa.R.Crim.P. 591(A).
            “Although 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.” The policy underlying
            this liberal exercise of discretion is well-established:
            “The trial courts in exercising their discretion must
            recognize that ‘before judgment, the courts should
            show solicitude for a defendant who wishes to undo
            a waiver of all constitutional rights that surround the
            right to trial – perhaps the most devastating waiver
            possible under our constitution.’”

Commonwealth v. Elia, 83 A.3d 254, 261-62 (Pa. Super. 2013) (internal

citations omitted).




3
    We note that Reams also sought to withdraw his guilty plea after
sentencing. See Post-Sentence Motion for Reconsideration of Sentence
Nunc Pro Tunc, 9/16/13, ¶¶ 5-13. Reams, however, does not challenge the
denial of this motion on appeal.   Therefore, we will only address his
presentence motion to withdraw.


                                     -5-
J-S59027-15


        In Commonwealth v. Forbes, 299 A.2d 268 (Pa. 1973), our

Supreme Court instructed that

              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.’

Id. at 271.

        In recent years, this Court has adopted a per se approach to innocence

claims by defendants, holding that “[our] Supreme Court [in Forbes] held

that the mere articulation of innocence was a ‘fair and just’ reason for the

pre-sentence withdrawal of a guilty plea unless the Commonwealth has

demonstrated that it would be substantially prejudiced.”        Commonwealth

v. Katonka, 33 A.3d 44, 49 (Pa. Super. 2011). In so doing, this Court has

limited a trial court’s discretion in granting or denying a presentence motion

for withdrawal of a guilty plea by foreclosing credibility determinations

relative to a defendant’s assertion of innocence.        See Commonwealth v.

Randolph, 718 A.2d 1242, 1244 (Pa. 1998) (finding that our Supreme

Court    condemned     “rendering    a   credibility   determination     as   to    the

defendant’s actual innocence.”). Specifically, this Court previously held that

a trial court may not deny a defendant’s presentence withdrawal based on

the fact that the defendant entered the guilty plea voluntarily, knowingly and

intelligently,   see   Commonwealth        v.   Pardo,    35   A.3d    1222,       1229



                                         -6-
J-S59027-15


(Pa. Super. 2011), or its belief that the withdrawal is being used as a

dilatory tactic, see Commonwealth v. Unangst, 71 A.3d 1017, 1022

(Pa. Super. 2013).

      Recently, however, in Commonwealth v. Carrasquillo, 115 A.3d

1284 (Pa. 2015) and Commonwealth v. Hvizda, 116 A.3d 1103 (Pa.

2015), our Supreme Court altered its position on a trial court’s discretion

regarding presentence withdrawals of guilty pleas. Specifically, the Supreme

Court “determined that a bare assertion of innocence … is not, in and of

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

116   A.3d   at   1107   (citing   Carrasquillo,   115    A.3d   at   1285).   In

Carrasquillo, our Supreme Court explained:

                [T]here 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. The perfunctory
             fashion in which these principles were applied … lent
             the impression that this Court had required
             acceptance of a bare assertion of innocence as a fair-
             and-just reason.

Id. at 1291-92 (footnote and citations omitted).         Therefore, our Supreme

Court set forth the following standard for determining whether to permit a

presentence withdrawal of a guilty plea:

                [T]he proper inquiry on consideration of such a
             withdrawal motion is whether the accused has made



                                       -7-
J-S59027-15


             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.

      We conclude that in this case, the trial court did not err in determining

that Reams failed to make a colorable demonstration that permitting

withdrawal of his plea would promote fairness and justice.             Here, the

certified record reflects that Reams did not assert his innocence either in his

petition to withdraw his guilty plea or during the hearing on that petition. To

the contrary, in his petition to withdraw his guilty plea, Reams provided no

reason whatsoever as to why the trial court should permit him to withdraw

his guilty plea. See Petition to Withdraw Plea, 7/17/13. Furthermore, at the

hearing on his petition to withdraw his guilty plea, the sole basis Reams

provided to the trial court for the withdrawal of his plea was: “I think I can

do a better deal on my plea and all that stuff.”         N.T., 8/13/13, at 3.

Therefore, not only did Reams fail to assert a “fair and just” reason for the

withdrawal of his guilty plea, but he did not even provide a bare assertion of

innocence.     Accordingly, we conclude that the trial court did not abuse its

discretion in denying Reams petition to withdraw his guilty plea.

      Judgment of sentence affirmed.




                                      -8-
J-S59027-15


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 10/6/2015




                          -9-
