J-S12010-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF                            :   IN THE SUPERIOR COURT OF
    PENNSYLVANIA                               :        PENNSYLVANIA
                                               :
                                               :
                v.                             :
                                               :
                                               :
    JOSEPH ROBERT MARKLE                       :
                                               :   No. 1304 MDA 2017
                       Appellant               :

             Appeal from the Judgment of Sentence July 31, 2017
     In the Court of Common Pleas of Bradford County Criminal Division at
                       No(s): CP-08-CR-0000134-2017


BEFORE: LAZARUS, J., KUNSELMAN, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY LAZARUS, J.:                               FILED MARCH 13, 2018

       Joseph Robert Markle appeals from the judgment of sentence, entered

in the Court of Common Pleas of Bradford County, following the denial of his

pre-sentence motion to withdraw his guilty plea.1         After review, we affirm

based on the Honorable Maureen T. Beirne’s opinion.

       On January 24, 2017, Markle was charged with possession of contraband

by an inmate, possession of a controlled substance, and possession of drug

paraphernalia.2      On June 1, 2017, Markle pleaded guilty to possession of
____________________________________________


1  Markle’s appeal stems from the denial of his pre-sentence motion to
withdraw guilty plea. Here, the trial court’s denial of his motion acted to
finalize the judgment of sentence for purposes of appeal. Therefore, we take
the appeal from the judgment of sentence, not the order denying post
sentence motion. See Commonwealth v. Chamberlain, 958 A.2d 395 (Pa.
Super. 1995).
J-S12010-18



contraband by an inmate.3           Markle completed an extensive written plea

colloquy with counsel, an oral colloquy with the court, was advised of the

elements of the offense, and the statutory maximum sentence. At his plea

hearing, Markle placed facts under oath and on the record to support the plea.

       On July 5, 2017, Markle filed a letter to his counsel with the Clerk of

Court’s Office, in which he stated his desire to withdraw his plea because he

believed there was ample evidence to suppress the charges.             Counsel

subsequently filed a pre-sentence motion to withdraw Markle’s guilty plea

based on an assertion of actual innocence, and the trial court held a hearing

on July 31, 2017. The trial court denied Markle’s motion, finding his claim of

innocence implausible. The trial court subsequently sentenced Markle to 24

to 60 months’ imprisonment.

       Markle filed a timely post-sentence motion, which the trial court denied

on August 9, 2017. This timely appeal follows. Both Markle and the trial court

have complied with Pa.R.A.P. 1925. Markle raises one issue on appeal: “Did

the trial court err in denying [Markle’s] pre-sentence motion to withdraw his

plea of guilty when he asserted a fair and just reason to withdraw the plea

and the Commonwealth would not be prejudiced by such [withdrawal]?” Brief

of Appellant, at 4.
____________________________________________


2 18 Pa.C.S.A. § 5123(a), 35 P.S. § 780-113(a)(16), and 35 P.S. § 780-
113(a)(32), respectively.

3 Markle pleaded guilty to possession of a contraband by an inmate “for a
sentence in the bottom end of the standard range.” N.T. Guilty Plea Hearing,
6/1/17, at 1.

                                           -2-
J-S12010-18



      “There is no absolute right to withdraw a guilty plea. Nevertheless, prior

to the imposition of sentence, a defendant should be permitted to withdraw

his plea for any fair and just reason, provided there is no substantial prejudice

to the Commonwealth.” Commonwealth v. Walker, 26 A.3d 525, 529 (Pa.

Super. 2011) (citations and quotation marks omitted); see Commonwealth

v. Randolph, 718 A.2d 1242 (Pa. 1998); Commonwealth v. Katonka, 33

A.3d 44 (Pa. Super. 2011) (en banc).          An assertion of innocence has

consistently been held to constitute a fair and just reason to withdraw a plea.

Randolph, supra; Commonwealth v. Gordy, 73 A.3d 620 (Pa. Super.

2013). However, a bare assertion of innocence is no longer a fair and just

reason permitting a pre-sentence withdrawal of a guilty plea; instead, a

defendant’s innocence claim must be at least plausible to demonstrate, in and

of itself, a fair and just reason for pre-sentence withdrawal of the plea.

Pa.R.Crim.P. 591(A). See Commonwealth v. Baez, 169 A3d 35, 39 (Pa.

Super. 2017).

      Here, the trial court found Markle’s claim of innocence incredible and

implausible. See Trial Court Opinion, 10/27/17, 3-7. During the hearing,

Markle asserted that he did not understand the plea agreement, was coerced,

and did not realize the length of a potential sentence; the trial court found

these arguments to be incongruent with his claim of innocence. The trial court

also considered Markle’s July 5, 2017 letter to counsel, wherein he stated he

believed the trial court should have suppressed evidence/charges against him,

but not that he was innocent.

                                      -3-
J-S12010-18



      Markle failed to establish a plausible, fair and just reason for withdrawal

of his guilty plea. Walker, supra; Baez, supra. Therefore, after review of

the record, the parties’ briefs and relevant case law, we affirm based on Judge

Beirne’s well-reasoned opinion. In the event of further proceedings, we direct

the parties to attach a copy of Judge Beirne’s opinion.

      Judgment of sentence affirmed.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/13/2018




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  COMMONWEALTH OF PENNSYLVANIA: IN THE COURT 01? COMMON PL

                   vs.                                  :    BRADFORD COUNTY, PENNSYLVANIA

 JOSEPH MARKLE                                              NO.    CP-08-CR-0000134-2017


        STATEMENT PURSUANT TO PA. R. APP. PROC. RULE 1925(a)

       OF THE PENNSYLVANIARULES OF APPELLATE PROCEDURE

         Appellant filed a timely appeal from judgment of sentence,           Appellant was sentenced on

 July 31, 2017 on the offense of Possession of Contraband by an Inmate,           18   Pa.C.S.A. §5123(a), a

 felony of the second degree, to   a   minimum of twenty-four (24) months and a maximum of sixty

 (60) months.'      Appellant further filed a timely Concise Statement of Matters Complained Of

 pursuant to Pa.R.App.Proc. Rule 1925(b). Appellant complains that the Court erred in denying

 his pre -sentence motion to withdraw guilty plea.          Appellant's claim is without merit.

         On or about January 24, 2017, Appellant was charged with Possession of Contraband by

an Inmate,   18   Pa.C.S.A. §5123(a), a felony of the second degree, Possession of Controlled

Substance, 35 P.S. §780-113(a)(16), a misdemeanor, and Possession of Drug Paraphernalia, 35

P.S. §780-113(a)(32), a misdemeanor.          The Affidavit of Probable Cause alleges that a Bradford

County Correctional Facility Officer was preparing to send out inmate mail when he felt a lumpy

substance inside a letter that was to be sent out for Appellant who was an inmate at the time.

The Officer called the Pennsylvania State Police.            Upon Trooper's investigation, suspected

drugs were found in the envelope inside a plastic sandwich bag.            Also in the envelope was a

handwritten note from Appellant to his girlfriend. Appellant was interviewed by the Trooper

and after being advised of his Miranda rights agreed to speak to the Trooper.            Appellant told




  Appellant was also sentenced on same date in case 08CR0000151-2017 for the offense of Possession of a
Controlled Substance, 35 P.S. 780-I 13(a)(16) M , to a minimum of6 months and a maximum of 12 months. This
sentence was directed to be served consecutively to the 24 month to 60 month sentence.
  Trooper when asked about the substance in the plastic bag "what benefit is        it to me   if I own up to

  it?"   Appellant had been housed in the Restricted Housing Unit with no cell mate.            Inmates in

 said unit are on twenty-three (23) hour lockdown with one (I) hour to shower and exercise.

 Once an inmate submits outgoing mail, other inmates do not have access to           it.   The substance

 tested positive for methamphetamine.

         On June I, 2017, Appellant entered a plea of guilty to the offense of Possession of

 Contraband by an Inmate as amended,       18   Pa.C.S.A. §5 23(a.2), a felony of the second degree.
                                                              I




 The plea agreement called for a sentence in the "bottom end" of the standard range. N.T. 6/1/17

 Plea Hearing, Pg    1.   Appellant completed an extensive written plea colloquy with counsel and

 an additional oral colloquy by the Court.      Appellant was advised of the definition of the offense;

 N.T. 6/1/17 Plea Hearing, Pg 2. Facts to support the plea were placed on the record by

 Appellant while being questioned by his counsel as follows:

         Q. At any time when you were an inmate at Bradford County, did you have in your

possession a controlled substance?

         A.   Yes.

         Q. And that would be methamphetamine?

         A.   Yes.

 N.T. 6/1/17 Plea Hearing Pg. 4, Ins. 9-14.          Further, Appellant was advised of the maximum

penalty for said offense and that he could receive same. N.T. 6/1/17 Plea Hearing, Pg. 6, Ins.

10-21.    Appellant was asked by the Court if he understood that by entering a plea of guilty he

was admitting to committing a crime and did he in fact commit the crime to which he was

pleading guilty to - he responded yes, he did understand.         N.T. 6/1/17 Plea Hearing. Pgs. 6-7.

Finally, Appellant acknowledged that he understood and had agreed to the plea agreement as set

                                                 2
 forth by the Assistant District Attorney at the hearing.          N.T. 6/1/17    Plea Hearing. Pg.   7,   Ins. 6-12.

 Sentencing was scheduled for July           31, 2017.


            On July   5,   2017,   Defendant filed a letter to his counsel with the Prothonotary's Office

 requesting the letter be made of record. In that letter, he requested that his guilty plea be

 withdrawn because there "is ample evidence to suppress the charges...", "the original drug buys

 were illegally induced...." and the plea "should be pulled pending the outcome of the triggering

 action."      See Appellant's correspondence filed        July   5,   2017.   Appellant was referring charges

 of selling illegal substances that resulted       in his being incarcerated and thereafter contraband

 being found in the envelope he mailed from the jail.                  His statements in his letter to his counsel

do not allege that he is innocent of the offenses.          He clearly stated that he believes he has a

suppression issue and wishes to have that heard and place the instant case on hold.

         A counseled Motion to Withdraw Guilty Plea was also filed wherein Appellant asserted

innocence of the underlying charge. The motion also asserted there is "no evidence alleged

showing he brought the controlled substances into the jail, interacted with any individual who

possessed or delivered controlled substance or was observed placing the controlled substance

into the letter. Furthermore, the letter where the alleged controlled substance was found passed

between other parties after defendant released it increasing the chance of interference or

tampering resulting in controlled substances allegedly being found." See Motion to Withdraw

Guilty Plea.

        At the hearing on the motion to withdraw, counsel argued that Appellant could not have

possessed the contraband in the jail as he was searched multiple times prior to and when he was

admitted into the jail; no indication of a log who handled outgoing mail; and that Appellant was

in restricted housing not having the same level of access to the jail that would bring him into

                                                      3
    contact with other inmates where he could have acquired contraband and there                         is no report   that

    he was engaging in any              activity that was odd or unusual suggesting smuggling drugs            to the jail.

    N.T. 7/31/17 on Motion to Withdraw Guilty Plea and Sent. Pg                  2.   Upon questioning by his

    counsel, Appellant responded:

           Q.         And did you take the plea -at the plea hearing for the sake of just accomplishing the

    plea deal?

           A. Yes, cause I was more or less trying to              - with the - with the original possession
charge.

           Q.         Okay.

           A.         I   kind of had   a   misunderstanding even -even though    I   said yes I understood, that's       -a
lot of this      is   confusing to me.

           Q.         And what did       - what was the misunderstanding that you had?
           A. That the sentences would               be   lighter and different and only get up to that much time.

I   didn't know it          was going to be a down -state prison, I've never been to prison in Pennsylvania.

N.T. 7/31/2017, Motion to Withdraw Guilty Plea and Sentencing Hearing, Pg.                           8


           Defendant, on cross examination, when confronted with his statements during the

colloquy made at the plea hearing wherein he admitted to possessing methamphetamine in the

Bradford County Correctional Facility, stated:

          A. I thought we were discussing the simple possession, that I gave to Sayre P.D.

          when they arrest me, that's the possession that I was talking about.                  I   didn't   possess

          anything at the Bradford County Correctional Facility.

          Q.      Well you were there to plead guilty to both offenses, were you not?

          A.      Just to get it over with, sir, yes.

          Q.      Okay, so you understood what you were being asked, is that correct?

                                                             4
             A.   Yes.

           Q. All right and you can read and write and understand the English Language?

           A.     Yes,   I   can.

           Q.     And isn't it true that really you decided you didn't like the plea agreement?

           A. Not at all.           I   thought I was   - between the two cases, between here and Mr. Wilson,
           that it was more of a pressure or coercion to just get it over with and made me feel like

           I   couldn't win anyway, so was just looking for the easy way out, yes. But
                                                I




         I     am innocent.

N.T. 7/31/2017 Motion to Withdraw Guilty Plea Hearing, pgs. 10-11.

         In contradiction to Appellant's claim that he thought he was pleading to the simple

possession charge from Sayre Police Department, at the plea hearing, defendant also entered a

plea to that charge.          During the plea colloquy, Appellant's counsel made it clear by asking

during the colloquy about the "other charges, Simple Possession...               in Sayre   Borough...,"   there

was a traffic stop, defendant was searched and a bag of methamphetamine was found. N.T.

6/1/2017 Plea Hearing, Pg. 4, Ins 14-25                 - Pg 5, Ins   1-5.


        Pa.R.Crim.P. 59I(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, sill) sponte, the

withdrawal of a plea of guilty or nolo contendere and the substitution of a plea of not guilty."

The Supreme Court has held that while a pre -sentence motion to withdraw is to be liberally

allowed,

                   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.


                                                            5
   Commonwealth v. Carrasquillo, 631 Pa. 692, 115 A.3d 1284 at 1291-1292 (Pa. 2015).

                 The Carrasquillo Court, breaking with prior precedent, held that a bare

         assertion of innocence     is no   longer a fair and just reason permitting a pre -

         sentence withdrawal of a guilty plea. Instead, '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.' Id. at 1292. Our High Court outlined that

         the correct 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. Id.



  Commonwealth v. Baez, 2017 Pa. Super. LEXIS 604, *7-8.

         Appellant argued that the Commonwealth did not call any witnesses to discredit

Appellant's assertion that he had been searched and multiple individuals had access                to the letter.

The Commonwealth had no burden to do so. Appellant has the burden of demonstrating his

claim of innocence   is at   "least plausible", that is he must set forth "some colorable demonstration

such that permitting withdrawal of pea would promote fairness and justice." Id.                   Appellant's

own assertions are contradictory in and of themselves rendering his claim of innocence

disingenuous and incredible.

        Defendant pled guilty at the plea hearing admitting to possessing the methamphetamine;

he then wrote a statement that he wanted to withdraw his plea because he believed he had

suppression issues - not mentioning any claim of innocence; his counsel filed               a   motion to

withdraw the pela asserting innocence because others had access to the letter, he was stripped

searched and he had limited access to other irnnates.         Appellant testified to this at the hearing to

withdraw guilty plea and stated that he was innocent. He also stated that he misunderstood -

that he thought the sentences would be lighter and different and did not know          it   would be served

                                                   6
     in a state correctional facility.     On cross examination, Appellant, testified that he thought he was

     pleading    to a   simple possession charge, that he pled guilty "just to get   it   over with" and that it

     was a pressure or coercion.        Yet the extensive plea colloquy clearly indicates that Appellant

 understood what he was pleading to and the terms of the plea agreement. N.T. 6/1/17 Plea

 Hearing.

            Further statements made by Appellant that lend towards his incredibility              is   during   a   Bail

 Reduction hearing on June 2, 2017, Appellant stated he "got involved in drugs" and that he "was

 trying to sell to supplement" his drug use. N.T. 6/2/17 Bail Reduction Hearing pg 6.                       During

 his presentence investigation interview with the probation office, he stated he never used drugs

 and that he only began selling methamphetamine for the money. N.T. 7/31/17 Sent. Hearing.

 Pg. 18,        Further, his history with the probation department indicated a history of drug use and

 testing positive for same. N.T. 7/31/17 Sent Hearing. Pg. 21.

            Clearly Appellant believed he had a suppression issues in regards to possession charges

 that let him to be in the Bradford County Correctional Facility at the time the methamphetamine

 was found in the letter he was mailing to his girlfriend. Then he began grasping at other potential

reasons for withdrawal such as he did not understand, was coerced, did not realize the length of

potential sentence All Appellant's statements are contradictory and incredible making his

claim of innocence far from plausible.

           Therefore, this Court did not err in denying the Motion to Withdraw Guilty Plea and the

judgment of sentence should be affirmed.

                                                               BY THE COURT:

Date: October 27, 2017                                         /s/Maureen T. Beirne                             P. J.

jc
attn.: Court Administrator

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