J-S42010-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                       Appellee

                  v.

CHARLES LEE CAROTHERS, JR.,

                       Appellant                   No. 1388 MDA 2016


           Appeal from the Judgment of Sentence July 26, 2016
           In the Court of Common Pleas of Cumberland County
           Criminal Division at No(s): CP-21-CR-0002405-2015

BEFORE: OLSON, J., MOULTON, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY OLSON, J.:                          FILED AUGUST 25, 2017

     Appellant, Charles Lee Carothers, Jr., appeals from the judgment of

sentence entered on July 26, 2016. We affirm.

     The factual background of this case is as follows.   On May 2, 2015,

Appellant was stopped by Officer Michael Reibsane of the Middlesex

Township Police Department. Officer Reibsane suspected that Appellant was

driving under the influence of alcohol and placed him under arrest.

Appellant was read the DL-26 implied consent form and declined to provide

a blood sample.

     The procedural history of this case is as follows.   On November 16,

2015, the Commonwealth charged Appellant via criminal information with
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two counts of driving under the influence – general impairment (“DUI”),1

fleeing police,2 and speeding.3 On March 24, 2016, Appellant pled guilty to

DUI and recklessly endangering another person.4

        On June 27, 2016, Appellant moved to withdraw his guilty plea. The

trial court conducted an evidentiary hearing and, on July 26, 2016, denied

the motion.     That same day, the trial court sentenced Appellant to an

aggregate term of six to twelve months’ imprisonment followed by 18

months’ probation. This timely appeal followed.5

        Appellant presents two issues for our review:

     1. Did the [trial] court abuse its discretion when it denied the
        withdrawal of Appellant’s guilty plea prior to sentencing where
        Appellant had practical reasons for wishing to withdraw?

     2. Had the [trial] court not abused its discretion in denying the
        withdrawal of Appellant’s guilty plea, would Appellant have been
        able to file pretrial motions to dismiss the DUI charges pursuant
        to Birchfield v. North Dakota[, 136 S.Ct. 2160 (2016)?]

1
  75 Pa.C.S.A. § 3802(a)(1). Appellant was charged with one count of DUI
and one count of DUI with refusal for the same conduct. This Court
disapproves of this charging practice and has provided guidance on how the
Commonwealth should handle these situations.               See generally
Commonwealth v. Farrow, 2017 WL 3185316 (Pa. Super. July 27, 2017).
2
    75 Pa.C.S.A. § 3733(a).
3
    75 Pa.C.S.A. § 3362(a)(3).
4
    18 Pa.C.S.A. § 2705.
5
  On August 26, 2016, the trial court ordered Appellant to file a concise
statement of errors complained of on appeal (“concise statement”). See
Pa.R.A.P. 1925(b). On September 15, 2016, Appellant filed his concise
statement. On October 19, 2016, the trial court issued its Rule 1925(a)
opinion. Both of Appellant’s issues were included in his concise statement.


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Appellant’s Brief at 6 (complete capitalization and emphasis omitted).

      In his first issue, Appellant argues that the trial court erred in denying

his motion to withdraw his guilty plea. “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) (citation

omitted). Pennsylvania Rule of Criminal Procedure 591(A) provides 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).

      “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.”    Commonwealth v. Kpou, 153 A.3d 1020,

1022 (Pa. Super. 2016) (internal alteration, ellipsis, and citation omitted).

“[I]n determining whether to grant a presentence motion for withdrawal of a

guilty plea, the test to be applied by the trial courts is fairness and justice.”

Commonwealth v. Elia, 83 A.3d 254, 262 (Pa. Super. 2013) (internal

quotation marks and citation omitted). Therefore, if the defendant provides

a fair and just reason for wishing to withdraw his or her plea, the trial court

should grant it unless it would substantially prejudice the Commonwealth.

Commonwealth v. Carrasquillo, 115 A.3d 1284, 1287 (Pa. 2015) (citation

omitted).


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      Appellant argues that the fair and just reason for permitting the

withdrawal of his guilty plea was that it was affecting his ability to find a job.

Specifically, Appellant avers that he was applying for jobs as a commercial

truck driver and that his guilty plea prevented him from being hired.             We

conclude that the trial court reasonably concluded that Appellant’s DUI

conviction was not affecting his ability to find a new job.

      Appellant was convicted of 19 offenses between 1994 and 2011. See

Commonwealth        v.    Carothers,   CP-21-CR-0003145-2010          (attempt     to

possess with intent to deliver a controlled substance); Commonwealth v.

Carothers, CP-21-CR-0002437-2007 (simple assault); Commonwealth v.

Carothers,    CP-22-CR-0004115-2006          (escape,   resisting   arrest,    simple

assault, and criminal mischief); Commonwealth v. Carothers, CP-21-CR-

0000051-2002 (resisting arrest); Commonwealth v. Carothers, CP-21-

CR-0001427-2000 (theft by unlawful taking and criminal trespassing);

Commonwealth         v.    Carothers,      CP-21-CR-0001854-1999              (making

terroristic threats); Commonwealth v. Carothers, CP-21-CR-0000284-

1999 (theft by deception); Commonwealth v. Carothers, CP-21-CR-

0001237-1998 (possession with intent to deliver a controlled substance);6

Commonwealth v. Carothers, CP-21-CR-0001470-1996 (possession with

intent to deliver a controlled substance); Commonwealth v. Carothers,

6
  Appellant also sought to withdraw his guilty plea in that case. The trial
court denied that motion and this Court affirmed. Commonwealth v.
Carothers, 697 MDA 1999 (Pa. Super. Feb. 8, 2000) (unpublished
memorandum).


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CP-21-CR-0001449-1996 (conspiracy to possess with intent to deliver a

controlled substance); Commonwealth v. Carothers, CP-21-CR-0002129-

1995 (theft by deception); Commonwealth v. Carothers, CP-21-CR-

0002128-1995 (possession with intent to deliver a controlled substance);

Commonwealth        v.   Carothers,    CP-21-CR-0001797-1994           (retaliation

against a witness); Commonwealth v. Carothers, CP-21-CR-0001210-

1994    (harassment);    and   Commonwealth       v.      Carothers,   CP-21-CR-

0000374-1994 (harassment).       The trial court found that these convictions

were the reason that Appellant was unable to secure a truck driving job.

       We ascertain no abuse of discretion in this finding. As noted above,

the trial court held an evidentiary hearing on Appellant’s motion to withdraw.

At that hearing, Appellant only presented his own testimony.           He did not

present the testimony of any potential employers nor did he present any

documentary evidence.     Thus, the only evidence Appellant offered was his

own self-serving testimony regarding why he was unable to secure a truck

driving job. Appellant’s prior convictions were for very serious offenses. In

addition to multiple drug offenses, Appellant was previously convicted of

multiple theft offenses, resisting arrest, and escape.           The trial court

reasonably found that these serious convictions were the reason Appellant

was having difficulty securing a job as a truck driver.

       Appellant argues that this case is analogous to Islas, in which this

Court found that information received from new defense counsel regarding



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defenses available to him at trial was a fair and just reason for permitting

withdrawal. This argument is without merit for two reasons. First, in this

case the alleged new legal information available to Appellant was regarding

the collateral consequences of his conviction. Specifically, Appellant alleges

that he only learned that his DUI conviction would appear on a background

check after he pled guilty.       On the other hand, in Islas the new legal

information affected the guilt portion of a potential trial. Second, and more

importantly, as noted above, the trial court reasonably found that the effect

of his present guilty plea on his ability to find a truck driving job is non-

existent.   As such, Appellant failed to show a fair and just reason for

withdrawing his guilty plea and the trial court’s denial of his motion to

withdraw    his   guilty   plea   was   not   manifestly   unreasonable.    Cf.

Commonwealth v. Biesecker, 161 A.3d 321, 329 (Pa. Super. 2017)

(citation omitted) (“An abuse of discretion is not merely an error of

judgment, but is rather the overriding or misapplication of the law, or the

exercise of judgment that is manifestly unreasonable, or the result of bias,

prejudice, ill-will or partiality, as shown by the evidence of record.”). As we

conclude the trial court did not err by denying Appellant’s motion to

withdraw his guilty plea, we need not address his second issue which is

conditioned upon the trial court having abused its discretion in denying his

motion to withdraw his guilty plea. Accordingly, we affirm his judgment of

sentence.



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     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/25/2017




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