J-A31027-16

                                   2017 PA Super 43



COMMONWEALTH OF PENNSYLVANIA                       IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                            Appellee

                       v.

DAVID ANTHONY ISLAS

                            Appellant                  No. 1270 EDA 2016


              Appeal from the Judgment of Sentence March 31, 2016
                 In the Court of Common Pleas of Wayne County
               Criminal Division at No(s): CP-64-CR-0000280-2015


BEFORE: BENDER, P.J.E., MOULTON, J., and FITZGERALD, J.*

OPINION BY MOULTON, J.:                            FILED FEBRUARY 24, 2017

       David Anthony Islas appeals from the March 31, 2016 judgment of

sentence entered in the Court of Common Pleas of Wayne County. Because

the trial court erred in denying Islas’ pre-sentence motion to withdraw his

guilty plea, we vacate and remand for further proceedings.

       On August 17, 2015, police arrested and charged Islas with three

counts of Indecent Assault – Complainant Less than 13.1               The alleged

incidents occurred on August 14, 2015 and August 16, 2015 at the Island

Lake Camp in Wayne County, where Islas was a camp counselor and the
____________________________________________


       *
           Former Justice specially assigned to the Superior Court.
       1
       18 Pa.C.S. § 3126(a)(7), (b)(3) (graded as a third-degree felony);
18 Pa.C.S. § 3126(a)(7) (graded as a first-degree misdemeanor); 18 Pa.C.S.
§ 3126(a)(1).
J-A31027-16



alleged victim was a camper. On January 8, 2016, three days before trial,

Islas entered a guilty plea to one count of Indecent Assault – Complainant

Less than 13, a first-degree misdemeanor; in exchange for Islas’ plea, the

Commonwealth agreed to nolle pros the other two counts.

      The trial court scheduled sentencing for March 31, 2016. On February

11, 2016, counsel for Islas withdrew from representation and current

counsel entered his appearance.      That same day, Islas filed a motion to

withdraw his guilty plea, chiefly based on an assertion of innocence.     On

February 25, 2016, following a hearing, the trial court denied Islas’ motion

to withdraw, and on March 31, 2016, sentenced Islas to 183 days (time

served) to 5 years, less 1 day, of imprisonment.

      Islas raises the following issue on appeal: “Did the trial court err or

otherwise abuse its discretion in denying . . . Islas’ pre-sentence motion to

withdraw his guilty plea[?]” Islas’ Br. at 4.

      We review a trial court’s ruling on a pre-sentence motion to withdraw

a guilty plea for an abuse of discretion. Commonwealth v. Elia, 83 A.3d

254, 261 (Pa.Super. 2013).

      Pennsylvania Rule of Criminal Procedure 591(A) provides:

         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.




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J-A31027-16



Pa.R.Crim.P. 591(A). The official comment to Rule 591 provides: “After the

attorney for the Commonwealth has had an opportunity to respond, a

request to withdraw a plea made before sentencing should be liberally

allowed.”     Id. cmt.     Similarly, in Commonwealth v. Forbes, the

Pennsylvania Supreme Court concluded:          “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.” 299

A.2d 268, 271 (1973) (emphasis in original). The Court in Forbes went on

to explain:

         [I]n 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. (internal citations and some internal quotations omitted); see also

Commonwealth v. Prendes, 97 A.3d 337, 351-52 (Pa.Super. 2014).                 In

Elia, this Court explained the rationale for the rule of liberal allowance of

withdrawal of guilty pleas before sentencing:

         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.

83 A.2d at 262 (quoting Commonwealth v. Santos, 301 A.2d 829, 830

(Pa. 1973)) (internal citation and quotations omitted).


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       In contrast, when a defendant moves to withdraw a guilty plea after

sentencing, the standard is far more stringent. “[P]ost-sentence motions for

withdrawal are subject to higher scrutiny since courts strive to discourage

entry of guilty pleas as sentence-testing devices.          A defendant must

demonstrate that manifest injustice would result if the court were to deny

his post-sentence motion to withdraw a guilty plea.”       Commonwealth v.

Broaden, 980 A.2d 124, 129 (Pa.Super. 2009) (emphasis added) (internal

citations and quotations omitted).

       In Commonwealth v. Carrasquillo, 115 A.3d 1284 (Pa. 2015), the

Pennsylvania Supreme Court recently provided further guidance on the

proper exercise of discretion in the context of pre-sentence requests to

withdraw guilty pleas.         While the Court reaffirmed the Forbes liberal-

allowance standard,2 it also observed that its own application of that

standard had “lent the [false] impression that this Court had required

acceptance of a bare assertion of innocence as a fair-and-just reason” to

withdraw a guilty plea. Id. at 1292. “In other words, we acknowledge the
____________________________________________


       2
           The Court approvingly described Forbes as reflecting that

            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.

115 A.3d at 1291-92 (footnote omitted).



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legitimate perception of a per se rule arising from this Court’s decisions.”

Id.   While our Court shared this misimpression, see, e.g., Prendes, 97

A.3d at 352 (concluding that “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, 46 (Pa.Super.

2011) (en banc) (same); Commonwealth v. Kirsch, 930 A.2d 1282, 1285

(Pa.Super. 2007) (noting that Forbes “indicated an assertion of innocence

qualified as a ‘fair and just’ reason”), we also observed that this per se

approach was “apparently an extremely unpopular rule with prosecutors and

trial courts,” Kirsch, 930 A.2d at 1285.

      Rejecting the per se approach, our Supreme Court in Carrasquillo

held that “a bare assertion of innocence is not, in and of itself, a sufficient

reason” to grant a defendant’s motion to withdraw a guilty plea. 115 A.3d

at 1285 (emphasis added). The Court further stated that “a mere, bare, or

non-colorable assertion of innocence is insufficient, in and of itself, to

support withdrawal of a plea.”    Id. at 1290 n.6. Replacing the bright-line

rule, the Court instructed that

         a defendant’s innocence claim must be at least plausible to
         demonstrate, in and of itself, a fair and just reason for
         presentence withdrawal of a plea.      More broadly, the
         proper inquiry on consideration of such a withdrawal
         motion is whether the accused has made some colorable
         demonstration, under the circumstances, such that
         permitting withdrawal of the plea would promote fairness
         and justice.


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Id. at 1292 (internal citation omitted).      Applying this modified, liberal-

allowance approach to the unusual circumstances before it, the Court

affirmed the trial court’s refusal to allow the defendant to withdraw his plea.

      In Carrasquillo, the defendant was accused of sexually assaulting two

minors and entered open guilty pleas to various sexual offenses, including

rape, as well as other crimes.      Id. at 1285.    At the plea colloquy, the

Commonwealth proffered the defendant’s inculpatory statements made

during interrogation, as well as identification testimony from both victims,

video surveillance showing the defendant in close proximity to the victims,

and DNA and fingerprint evidence linking him to the rape of one of the

victims. Id.

      Three and one-half months after entry of the guilty plea, the trial court

conducted a sentencing hearing. After both the prosecution and defense had

rested, the defendant: explained that he had pled guilty to spare one of the

victim’s suffering; expressed surprise at his portrayal during the sentencing

hearing; and discussed “scenarios unrelated to the sexual assault . . . , in

which 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. Eventually, “[c]laiming that

he did not commit the assault against [one of the victims], [the defendant]

insisted that a polygraph test would prove his innocence and asked to

withdraw his guilty plea.” Id.


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       The Supreme Court concluded that the trial court had acted within its

discretion in denying the defendant’s request.      Id. The Court emphasized

the uniqueness of the case given the defendant’s “bizarre” allegations of

innocence. Id. at 1293. It also distinguished its decisions in Forbes and

Commonwealth v. Woods, 307 A.2d 880 (Pa. 1973), which held that the

trial courts had abused their discretion by denying the withdrawal motions in

question, “particularly in terms of the timing of the [defendant’s] innocence

claim.”    Id. at 1292 (noting that in Forbes the motion to withdraw was

made one month after the plea, and in Woods it was made nine months

before sentencing). The Court emphasized that the defendant before it had

first asserted his innocence at the sentencing hearing, three and one-half

months after entering his plea; that his “bizarre statements” made in

association with the declaration of innocence “wholly undermined its

plausibility”; and that the Commonwealth had made a strong evidentiary

proffer at the plea hearing. Id. at 1286, 1292-93.

       More     recently,    in   Commonwealth      v.   Blango,    we    applied

Carrasquillo and held that because the defendant had not made “a

plausible claim of innocence[,] . . . the trial court did not abuse its discretion

in declining to permit withdrawal of [his] guilty plea on that ground.” 3 150

____________________________________________


       3
         We also noted that the defendant “fail[ed] to expand upon, detail,
cite to the record, or otherwise develop his claim of innocence . . . , causing
[that claim] to be waived.” Blango, 150 A.3d at 48.



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A.3d 45, 48 (Pa.Super. 2016).          There, the defendant had entered a

negotiated guilty plea, agreeing to cooperate with the Commonwealth by

testifying against two of his co-defendants and by providing information

about an unrelated shooting.      Id. at 47.    While the defendant did testify

against his co-defendants (and in doing so further admitted his own guilt),

during the trial of the unrelated case he repudiated, on the witness stand,

the information he had earlier provided to the Commonwealth. Id. Treating

the repudiation as a breach of the plea agreement, the Commonwealth

submitted a sentencing memorandum, requesting that the trial court

sentence the defendant to 35 to 70 years’ incarceration. Id. The next day,

having seen the Commonwealth’s sentencing request, the defendant filed a

motion to withdraw his guilty plea. Id. The trial court denied his request,

and we affirmed, concluding that the defendant’s assertion of innocence was

implausible, particularly in light of his trial testimony admitting his role in the

offense and the timing of his motion (made immediately after learning of the

Commonwealth’s sentencing recommendation), and instead was “an attempt

to manipulate the system.” Id. at 48 (quoting Commw’s Br. at 8-9), 52.

      Given the unique facts in Carrasquillo, the precise import of that

decision in the more ordinary run of cases is unclear. While this area of the

law undoubtedly will benefit from case-by-case development, see, e.g.,

Blango, supra, the Carrasquillo decision provides several guideposts that




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bear not only on our resolution of this case but also on the proper exercise

of discretion by trial courts going forward.

       First, the Court squarely rejected a per se approach in which any pre-

sentence motion to withdraw a guilty plea based on a claim of innocence

must be granted. Second, nothing in Carrasquillo suggests that the Court

intended the pendulum to swing fully in the other direction – from automatic

grants to automatic denials of pre-sentence motions to withdraw. Indeed,

the Court expressly reaffirmed the liberal-allowance language in Forbes,

which continues to stand in sharp contrast to the “manifest injustice”

standard for post-sentence motions to withdraw. Third, the Court directed

trial courts to distinguish between “mere, bare, or non-colorable” assertions

of innocence on the one hand and those that are “at least plausible” on the

other. Fourth, as trial courts undertake the task of making that distinction,

both the timing and the nature of the innocence claim, along with the

relationship of that claim to the strength of the government’s evidence, are

relevant.4    In addition, in his concurring opinion in Carrasquillo, then-

Justice Stevens added that trial courts assessing the credibility of an

____________________________________________


       4
        In Commonwealth v. Hvizda, a companion case to Carrasquillo,
our Supreme Court concluded that the defendant’s claim of innocence
amounted to a “bare assertion” where he “stated he was innocent, but he
offered no evidence,” and where the Commonwealth presented audiotapes
of his telephone conversations from prison in which he admitted to the
murder and “deserve[d] what [he was] gonna get,” but wanted a trial only
to “get some of the story out.” 116 A.3d 1103, 1104, 1107 (Pa. 2015).



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accused’s assertion of innocence should also consider any “ulterior or illicit

motive” for the motion to withdraw.           Carrasquillo, 115 A.3d at 1293

(Stevens, J., concurring); accord Commonwealh v. Tennison, 969 A.2d

572, 573 (Pa.Super. 2009).

      We further note that because “it is necessary for a criminal defendant

to acknowledge his guilt during a guilty plea colloquy prior to the court’s

acceptance of a plea, such an incongruity will necessarily be present in all

cases where an assertion of innocence is the basis for withdrawing a guilty

plea.” Katonka, 33 A.3d at 49 (quoting Kirsch, 930 A.3d 1286). Thus, a

defendant’s participation in a guilty plea may not be used to negate his later

assertion of innocence when seeking to withdraw. See id. at 50; see also

Kirsch, 930 A.2d at 1286 (stating that “it is clear that acknowledging guilt

at the plea colloquy does not prevent the later withdrawal upon a later

inconsistent assertion of innocence”). To conclude otherwise would convert

the liberal-allowance standard into a rule of automatic denial.

      Applying the foregoing principles to this case, we conclude that the

trial court erred in refusing to allow Islas to withdraw his plea. We note first

that the trial court, while citing Carrasquillo, applied the incorrect standard

in denying the motion to withdraw.      Rather than following Carrasquillo’s

liberal-allowance, pre-sentence standard, the trial court applied the far

more exacting post-sentence standard of “manifest injustice.”         See Trial

Court Opinion, 6/23/2016, at 2 (unpaginated) (“1925(a) Op.”) (finding that


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Islas “did not prove that withdrawal was necessary to correct a manifest

injustice”).   Defendants in Islas’ position, however, need not meet such a

standard, but only must proffer a “fair and just reason” for withdrawal.

Under the circumstances of this case, Islas’ assertion of innocence

constituted such a fair and just reason.

      Islas’ assertion of innocence, unlike that of the defendants in

Carrasquillo and Blango, was not “mere, bare, or non-colorable” but

instead was “at least plausible.” At the hearing on his motion to withdraw,

Islas testified that:   he did not engage in the charged conduct; he had

maintained his innocence when interviewed by law enforcement; had the

conduct occurred as alleged, it would have been witnessed by other campers

and counselors in the cabin at the time; the victim had a motive to fabricate

the charges; the victim had delayed in reporting the first incident; and Islas

was of good character, had no criminal record, and had never received a

similar complaint in the many years he had been working in the field. N.T.,

2/25/16, at 5-11. Islas further testified that his new counsel had explained

to him, as prior counsel had not, his available defenses, including his ability

to call character witnesses on his behalf. Id. at 6-7.

      A defendant seeking to withdraw his or her plea before sentencing

need not prove his or her innocence.       The defendant need only proffer a

“colorable” or “plausible” claim of innocence, which Islas has surely done.

Our conclusion is reinforced when we examine the other factors deemed


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relevant by Carrasquillo. Islas moved to withdraw his plea just over one

month after its entry and almost two months before sentencing. Moreover,

neither the Commonwealth nor the trial court identified any “ulterior or illicit

motive” for the motion or any effort to game the system.          Instead, the

motion appears to have been triggered, at least in part, by new and different

advice from new counsel.          Finally, in contrast to Carrasquillo, the

Commonwealth’s case seems to rest chiefly on the testimony of the victim,

and nothing about that evidence “wholly undermines [the] plausibility” of

Islas’ claim of innocence.

      That Islas’ claim of innocence may fail at trial is not a valid ground for

denying his motion.          In State v. Munroe, cited with approval in

Carrasquillo, 115 A.3d at 1290 n.6, the New Jersey Supreme Court held

that a trial court’s conclusion that a defendant’s claim of innocence was

unlikely to succeed was irrelevant, “for the ultimate goal [in evaluating a

motion to withdraw a guilty plea] is to ensure that legitimate disputes about

the guilt or innocence of a criminal defendant are decided by a jury.”       45

A.3d 348, 356 (N.J. 2012).        As we explained in Elia, “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.”         83 A.2d at 262

(quoting Santos, 301 A.2d at 830) (internal quotations omitted); accord


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Commonwealth v. Hvizda, 116 A.3d 1103, 1106 (Pa. 2015) (“[T]he main

reason the Court has repeatedly invoked in support of the liberal allowance

of presentence withdrawal of pleas is to safeguard defendants’ trial rights.”).

      Based on the facts of this case, we conclude that Islas is entitled to

such solicitude because his colorable claim of innocence constitutes a “fair

and just” reason for withdrawal of his plea.         Nevertheless, he was not

entitled to withdraw his plea if, at the time of the motion, such withdrawal

would have “substantially prejudiced” the Commonwealth. See Forbes, 299

A.2d at 271; Blango, 150 A.3d at 51.              We turn, therefore, to the

Commonwealth’s claim that it would be substantially prejudiced were Islas

permitted to withdraw his plea.

      In Blango, this Court set forth the governing standard for measuring

substantial prejudice:

           Even if there is a ‘fair and just reason’ to permit
           withdrawal of a guilty plea, withdrawal should not be
           permitted if the prosecution has been ‘substantially
           prejudiced.’ 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.

150 A.3d at 51 (internal citations and some quotation marks omitted). We

further explained that while

         there exists little case law explaining what constitutes
         prejudice in the withdrawal of a guilty plea context. . . . , it
         would seem that prejudice would require a showing that
         due to events occurring after the plea was entered, the

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           Commonwealth is placed in a worse position than it would
           have been had trial taken place as scheduled. This follows
           from the fact that the consequence of granting the motion
           is to put the parties back in the pre-trial stage of
           proceedings.     This further follows from the logical
           proposition that prejudice cannot be equated with the
           Commonwealth being made to do something it was already
           obligated to do prior to the entry of the plea.

Id. at 52 (quoting Kirsch, 930 A.2d at 1286) (footnote omitted).                In

assessing a claim of substantial prejudice, we focus on whether there was a

material change in circumstances between a defendant’s guilty plea and his

motion to withdraw.           Commonwealth v. Gordy, 73 A.3d 620, 627

(Pa.Super. 2013). In other words, the question before us is whether, at the

time Islas moved to withdraw his plea, the prosecution would have been

substantially prejudiced by being required to try its case.5

       Islas entered his guilty plea on January 8, 2016, three days before trial

was set to begin and before a jury had been selected. He filed his motion to

withdraw less than five weeks later, on February 11, 2016, the same day

new counsel entered his appearance.                At the hearing on the motion to

withdraw, when discussing whether the witnesses would be available to

testify, the Commonwealth did not argue that securing the witnesses would

____________________________________________


       5
        Any additional prejudice occasioned by the time elapsed between the
trial court’s denial of the motion to withdraw and the disposition of this
appeal (or an eventual trial) is irrelevant to the question presented here.
Such prejudice is the product of the denial of the motion to withdraw, not of
the request to withdraw itself.




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be a problem. Despite the Commonwealth’s failure to assert any prejudice,

let alone substantial prejudice, the trial court, in its Rule 1925(a) opinion,

found substantial prejudice on the following grounds:

            [A]llowing [Islas] to withdraw his [guilty plea] at this
            juncture would prejudice not only the prosecution, but also
            the victim of the crime.        The victim of this crime
            experienced closure as a result of [Islas’] admission of
            guilt and his subsequent sentence. To allow [Islas] to
            withdraw his plea at this juncture would require the victim
            to reopen wounds that began to heal. . . . Furthermore,
            the Commonwealth would attempt to call at least 5
            witnesses who live in another state, and given the fact that
            this crime involved a child, it is difficult to know how
            cooperative this victim would be at trial, as well as any
            witnesses for the victim.

1925(a) Op. at 3-4.

      The trial court’s finding of substantial prejudice is unsupported by the

record in this case. The Commonwealth affirmatively chose not to present

evidence concerning witness availability at the hearing, resting instead on

the argument that Islas had not offered a fair and just reason to withdraw

his plea.     To the contrary, the Commonwealth suggested that it had no

reason to believe it would be unable to present its witnesses at trial:

            [Prosecutor]: Your Honor, I don’t think I have a burden to
            do anything regarding availability of witnesses and
            whatnot until it is shown that he has a fair and just reason
            to withdraw his plea. I will say, for the record, that as far
            as I know all of these people are living and well. I have no
            reason to – I know the victim is [be]cause I talked to his
            parents within the last two weeks. I, you know, I worry
            about the guy in Florida but I, you know, we’ll cross that
            bridge when we get to it, I guess.




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N.T., 2/25/16, at 16.        The Commonwealth, having chosen not to proffer

evidence of substantial prejudice below, cannot establish such prejudice on

this record, based on mere speculation in an appellate brief.6 To be clear,

the relevant time for measuring prejudice to the Commonwealth is at the

filing of the motion to withdraw, which in this case was roughly one month

after trial was originally scheduled or, at the latest, the time of the hearing

on the motion to withdraw; it is not after sentencing or when the issue has

reached this Court on appeal. Absent any evidence of a material change in

circumstances between January 8, 2016, when the plea was entered, and

February 25, 2016, when the trial court held the hearing on Islas’ motion to

withdraw, we have no choice but to conclude that the trial court abused its

discretion in finding substantial prejudice to the Commonwealth.

       One additional aspect of the trial court’s analysis merits further

discussion. The trial court expressed understandable concern that allowing

Islas to withdraw his plea would adversely affect the victim, who likely had

experienced some closure following the entry of Islas’ plea of guilty.

Undoubtedly, uncertainty over the need to testify could have a powerful,
____________________________________________


       6
        The Commonwealth presented no evidence (nor did it argue to the
trial court) that Islas’ withdrawal of his guilty plea would change the
witnesses’ availability or their willingness to testify. See Kirsch, 930 A.2d
at 1286 (“There is no indication that [the victim] cannot be subpoenaed and
put on the witness stand.”). Furthermore, that some of these witnesses are
from out-of-state was as true on the originally scheduled trial date as it was
one month later when Islas moved to withdraw his plea.




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negative impact on any crime victim. But in the absence of actual evidence

of an adverse impact on the Commonwealth’s ability to try this particular

case, such speculation does not supersede a defendant’s constitutional right

to a trial.

       In sum, we conclude that the trial court abused its discretion in not

allowing Islas to withdraw his guilty plea.

       Judgment   of   sentence   vacated.    Case   remanded   for   further

proceedings. Jurisdiction relinquished.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/24/2017




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