J-S78044-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                  IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA
                         Appellee

                    v.

KIENAN WADE KENNEDY

                         Appellant                  No. 428 MDA 2014


        Appeal from the Judgment of Sentence September 27, 2013
            In the Court of Common Pleas of Lebanon County
           Criminal Division at No(s): CP-38-CR-0001235-2012


BEFORE: GANTMAN, P.J., JENKINS, J., and MUSMANNO, J.

CONCURRING AND DISSENTING STATEMENT BY JENKINS, J.:

                                              FILED FEBRUARY 23, 2015

      I agree with my distinguished colleagues that Appellant’s second claim

– that the trial court improperly denied his post-sentence motion to

withdraw his guilty plea because Appellant had insufficient time to consider

the Commonwealth’s plea offer – is without merit.

      I respectfully disagree, however, with the majority’s determination

regarding Appellant’s first claim. Under the circumstances presented in this

case, I would find that the trial court abused its discretion in refusing to

allow Appellant to withdraw his guilty plea where he claimed actual

innocence and the only prejudice the Commonwealth would suffer as a result

of the plea withdrawal would be that the Commonwealth would be forced to

prosecute its case against Appellant.
J-S78044-14



     Thus, I would reverse the trial court’s order denying Appellant’s post-

sentence motion to withdraw his guilty plea and remand for further

proceedings.




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