J-S33018-17


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA              :     IN THE SUPERIOR COURT OF
                                          :          PENNSYLVANIA
                          Appellee        :
                                          :
                 v.                       :
                                          :
BRANDON WADE MORAGNE-EL                   :
                                          :
                          Appellant       :     No. 1793 MDA 2016

           Appeal from the Judgment of Sentence October 5, 2016
              In the Court of Common Pleas of Franklin County
            Criminal Division at No(s): CP-28-CR-0002221-2014

BEFORE:     BENDER, P.J.E., OTT, J., and STRASSBURGER, J.*

DISSENTING MEMORANDUM BY STRASSBURGER, J.:

                                              FILED OCTOBER 27, 2017

      Because the trial court erred in denying Moragne-El’s pre-sentence

motion to withdraw his guilty plea, I respectfully dissent.

      When examining whether Moragne-El’s claim of innocence constituted a

fair and just reason to withdraw his plea, both the Majority and the trial court

err in focusing upon Moragne-El’s admissions of guilt at the plea hearing. See

Majority Memorandum, at 10-11 (“Moragne-El offered no support for his claim

of innocence, particularly in light of his comments at the guilty plea hearing.”);

Trial Court Opinion, 10/3/2016, at 4 (determining Moragne-El’s “own words

at time of his plea belie his claims of innocence”).

      This Court recently reaffirmed that “a defendant’s participation in a

guilty plea may not be used to negate his later assertion of innocence when



*Retired Senior Judge assigned to the Superior Court.
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seeking to withdraw.” Commonwealth v. Islas, 156 A.3d 1185, 1191 (Pa.

Super. 2017) (citing Commonwealth v. Katonka, 33 A.3d 44, 49 (Pa. Court.

2011) (en banc), abrogated on other grounds, Commonwealth v.

Carrasquillo, 115 A.3d 1284 (Pa. 2015)). “[B]ecause ‘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.’” Id. (quoting Katonka, 33 A.3d at 49). Using a

defendant’s admissions of guilt against him when he seeks to withdraw his

plea prior to sentencing based on a claim of innocence “would convert the

liberal-allowance standard into a rule of automatic denial.” Id. Thus, when

determining that Moragne-El’s claim of innocence was not plausible, the

Majority and the trial court should not have relied upon the contradiction

between Moragne-El’s acknowledgement of guilt at the plea colloquy and his

later assertion of innocence when seeking to withdraw his plea.

      Furthermore, I believe Moragne-El presented a fair and just reason to

withdraw his plea apart from his claim of innocence.        When seeking to

withdraw his plea, Moragne-El presented the following alternative grounds for

withdrawal.

      Another reason that I’m withdrawing my plea is because to my
      knowledge me and my attorney – we didn’t talk about this, but to
      my knowledge I was under the assumption that because I’m not
      a violent person that I was RRRI eligible. As of last week [the
      assistant district attorney], he said something to the extent that
      I’m not RRRI eligible because I have a burglary conviction on my

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      record. This information is false. I don’t have any burglaries. I
      have a fourth degree attempted burglary in Maryland[,] which is
      equivalent to F-2 burglary in Pennsylvania[,] which doesn’t
      disqualify me from being RRRI eligible. I just wanted to note that
      for the record.

N.T., 9/15/2016, at 2-3.

      The Majority summarily dismisses this reason without explanation.

Majority Memorandum at 11 (stating Moragne-El’s “concerns regarding his

eligibility for RRRI does not constitute a fair and just reason to withdraw his

plea.”). However, this Court has recognized previously that “the failure to

discuss or raise the issue of RRRI may also be a fair and just reason” to permit

a plea withdrawal. Commonwealth v. Pardo, 435 A.3d 1222, 1224 n.4 (Pa.

Super. 2011).

      The only mention of RRRI at the plea hearing was the assistant district

attorney’s statement that Moragne-El was not RRRI eligible based upon his

burglary conviction. N.T., 9/8/2016, at 4-5. Moragne-El was not questioned

during his oral or written colloquy regarding RRRI eligibility; so there is no

indication in the record whether Moragne-El understood the meaning of RRRI

eligibility prior to pleading guilty.1 RRRI eligibility can significantly impact a

sentence. Pardo, 435 A.3d at 1230 n. 12 (noting that participants “could




1 Moragne-El’s counsel asserted at the sentencing hearing that “there was no
anticipation that [Moragne-El] would be RRRI eligible” during plea
negotiations. N.T., 10/5/2016, at 6. However, this statement does not
indicate whether Moragne-El personally understood his RRRI eligibility before
pleading guilty. Moreover, Moragne-El was not present during the sentencing
hearing when counsel made this statement.

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J-S33018-17


potentially receive 16.6%–25% less of his ordered sentence”). Our Supreme

Court has instructed the lower courts to allow liberally requests to withdraw a

guilty plea prior to sentencing when there is no prejudice to the

Commonwealth and the defendant has a fair and just reason to withdraw.

Islas, 156 A.3d at 1187–88 (noting that the Court expressly reaffirmed the

liberal-allowance   standard   for   pre-sentence   motions   to   withdraw   in

Carrasquillo). Therefore, in my view, Moragne-El presented a fair and just

reason to withdraw his plea. Accordingly, I dissent.




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