J-S37001-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

PAUL DONALD WHISNER

                            Appellant               No. 1202 MDA 2016


             Appeal from the Judgment of Sentence June 30, 2016
             In the Court of Common Pleas of Cumberland County
               Criminal Division at No: CP-21-CR-0000738-2015


BEFORE: STABILE, MOULTON, and MUSMANNO, JJ.

MEMORANDUM BY STABILE, J.:                         FILED AUGUST 22, 2017

        Appellant, Paul Donald Whisner, appeals from the June 30, 2016

judgment of sentence entered in the Court of Common Pleas of Cumberland

County (“trial court”) sentencing him to an aggregate sentence of 18 to 40

years’ incarceration for rape of a child and involuntary deviate sexual

intercourse with a child under the age of 13 (“IDSI”).1         Appellant is

challenging the trial court’s denial of his motion to withdraw his no contest

plea. Upon review, we affirm.

        Appellant was charged with eleven counts, including rape of a child

and IDSI, in February 2015. Following a number of continuance requests by

Appellant, he certified that he was ready for trial at the December 8, 2015

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1
    18 Pa.C.S.A. §§ 3121(c) and 3123(b), respectively.
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pre-trial conference.       Appellant was provided with plea offers by the

Commonwealth. The trial court summarized the relevant procedural history

of the matter as follows.

            Appellant’s case was called for trial on December 15, 2015.
      Due to a scheduling conflict, a new assistant district attorney
      was selected to prosecute the Commonwealth’s case. On the
      morning of December 15, 2015, with the jury panel in the
      courthouse and the Commonwealth’s witnesses present and
      prepared for trial, Appellant accepted a new plea offer made by
      the Commonwealth. In exchange for a plea of nolo contendere,
      nine of the eleven charges against Appellant were dropped,
      leaving the above-captioned charges. Appellant pled to these
      charges. Sentencing was scheduled for March 29, 2016.

            Following entry of Appellant’s plea, an assessment by the
      Pennsylvania Sexual Offender Assessment Board (hereinafter,
      “SOAB”) was ordered. The SOAB Report was completed on
      February 22, 2016, received by the Commonwealth on February
      24, 2016, and Appellant’s counsel was notified of the report on
      February 26, 2016. Upon receipt of the SOAB report, the
      Commonwealth requested a hearing to determine whether
      Appellant was a sexually violent predator. The hearing was
      scheduled for April 08, 2016, and Appellant’s date of sentencing
      was rescheduled to April 08, 2016, following the sexually violent
      predator hearing.

             On April 07, 2016, Appellant’s counsel indicated that
      Appellant wished to withdraw his pleas of nolo contendere.
      Given the last-minute nature of this notification, Appellant’s
      sentencing was immediately continued until May 31, 2016, while
      Appellant was directed to file a written motion to withdraw his
      nolo contendere pleas on or before April 13, 2016. Appellant did
      file his motion later in the day on April 07, 2016, and the
      Commonwealth filed a timely response. Appellant’s sexually
      violent predator hearing was continued.

            After consideration of Appellant’s motion and the
      Commonwealth’s response, a hearing was scheduled for June 17,
      2016. All further action on the case, including sentencing, was
      continued generally. Following the hearing on June 17, 2016,
      Appellant’s motion was denied by order of court dated June 17,

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      2016. After denial of Appellant’s motion, a hearing was held on
      June 30, 2016, wherein the [trial court] heard the testimony and
      evidence presented by both parties regarding whether Appellant
      was a sexually violent predator. As reflected in the order of
      court entered on June 30, 2016, it was found that the
      Commonwealth proved by clear and convincing evidence that
      Appellant was a sexually violent predator.

            Appellant appealed the decision of [the trial court] by filing
      his notice of appeal on July 22, 2016. Appellant was granted
      leave to proceed in forma pauperis, and was directed to file a
      concise statement of errors complained of on appeal by August
      12, 2016. Appellant’s concise statement of errors, raising only
      one error for appellate review was received on August 12,
      2016[.]

Trial Court Opinion, 10/3/16, at 2-4 (unnecessary capitalization omitted)

(emphasis in original). The trial court issued a Pa.R.A.P. 1925(a) opinion on

October 3, 2016.

      Appellant raises a sole issue on appeal, “did the trial court abuse its

discretion and thereby err in denying Appellant’s motion to withdraw his nolo

contendere pleas?” Appellant’s Brief at 6.

      Our standard of review for a trial court’s decision regarding a

presentence motion to withdraw a guilty or nolo contendere plea is to

determine whether the trial court abused its discretion. Commonwealth v.

Islas, 156 A.3d 1185, 1187 (Pa. Super. 2017) (citing Commonwealth v.

Elia, 83 A.3d 254, 261 (pa. Super. 2013)). Our rules of Criminal Procedure

provide 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). However,

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     [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.

Commonwealth v. Carrasquillo, 115 A.3d 1284, 1291-92 (Pa. 2015)

(citing Commonwealth v. Forbes, 299 A.2d 268, 271 (Pa. 1973))

(footnote omitted).

     In Carrasquillo, our Supreme Court held that to withdraw a guilty

plea prior to sentencing, a defendant must assert more than a mere claim of

innocence.   Id. at 1293.     The defendant in Carrasquillo pled guilty to a

number of offenses including rape. Id. at 1285. During the plea colloquy,

the Commonwealth proffered significant evidence against the defendant.

Id. Following a SVP hearing, the defendant testified that he wanted to spare

the victim from testifying, he was innocent, had been framed, and that “the

CIA purportedly had victimized him by seeking to employ him as an assassin

abroad, and where a serpent assertedly appeared and ‘[t]he Antichrist, he

came out of me.’”     Id. at 1286.   Our Supreme Court found that the trial

court acted within its discretion when it denied the defendant’s motion to

withdraw his plea, noting the bizarre statements by the defendant combined

with his declaration of innocence “wholly undermined its plausibility,

particular in light of the Commonwealth’s strong evidentiary proffer at the

plea hearing.” Id. at 1293.




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       In the matter sub judice, Appellant is arguing that unlike in

Carrasquillo, he raised an innocence claim and “provided the trial court

with fair-and-just reasons for the pre-sentence withdrawal of his nolo

contendere     pleas.”      Appellant’s    Brief   at   12   (capitalization   omitted).

Appellant’s brief fails to discuss what the fair and just reasons claimed that

would warrant the withdrawal of his nolo contendere pleas; thus, Appellant’s

argument is waived. See Commonwealth v. Johnson, 985 A.2d 915, 924

(Pa. 2009) (“[W]here an appellate brief fails to provide any discussion of a

claim with citation to relevant authority or fails to develop the issue in any

other meaningful fashion capable of review, that claim is waived.”) (citations

omitted).

       Even if Appellant’s claim was not waived, it is meritless.               The trial

court noted that Appellant sought to withdraw his plea “because he felt

pressured to plead out and because he believed that he would be released

from prison in December if he pled.”             Trial Court Opinion, 10/3/16, at 6

(footnotes omitted).       The trial court found Appellant’s belief he would be

released from prison as a result of the plea inconceivable. 2                  Moreover,

Appellant discussed a possible sentence with his attorney; thus, the trial

court found that he could not have reasonably believed this to be the case.


____________________________________________


2
   Appellant was facing a maximum of 40 years’ incarceration on each
offense. Further, the trial court sentenced Appellant to a standard range
sentence.



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Upon review, we find that the trial court did not abuse its discretion when

denying Appellant’s motion to withdraw his nolo contendere plea.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/22/2017




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