J-S81007-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF                            :   IN THE SUPERIOR COURT OF
    PENNSYLVANIA                               :        PENNSYLVANIA
                                               :
                                               :
                v.                             :
                                               :
                                               :
    THOMAS EUGENE BAUGHMAN                     :
                                               :   No. 350 MDA 2017
                       Appellant               :

            Appeal from the Judgment of Sentence February 7, 2017
             In the Court of Common Pleas of Cumberland County
             Criminal Division at No(s): CP-21-CR-0002796-2015


BEFORE:      PANELLA, J., STABILE, J., and PLATT, J.

MEMORANDUM BY PANELLA, J.                                 FILED APRIL 24, 2018

        Thomas Baughman appeals from the judgment of sentence entered

after he pled guilty to various crimes including driving under the influence of

alcohol (“DUI”) while his license was suspended from a previous DUI

conviction. We affirm. In fact, this was Baughman’s seventh lifetime conviction

for DUI. After the court postponed sentencing at Baughman’s request,

Baughman declined to appear for his sentencing hearing. And the court then

issued a bench warrant for his arrest.

        While Baughman was a fugitive, the United States Supreme Court found

that “motorists cannot be deemed to have consented to submit to a blood test


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   Retired Senior Judge assigned to the Superior Court.
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on pain of committing a criminal offense.” Birchfield v. North Dakota, 136

S.Ct. 2160, 2186 (2016). In so finding, the Court vacated the conviction of

one of the petitioners who had consented to a blood draw after being informed

by police that he must comply with the blood test, or else face criminal

penalties.

      Several months later, Baughman was finally apprehended while

awaiting trial in another county for various crimes, including yet another DUI

charge. On the day prior to his rescheduled sentencing hearing, Baughman

filed a motion to withdraw his guilty plea. He asserted that he wished to have

his blood test results suppressed pursuant to Birchfield. The trial court denied

the motion, and sentenced Baughman to a term of imprisonment of 1½ to 5

years. This timely appeal followed.

      On appeal, Baughman contends the court erred in denying his motion

to withdraw his guilty plea. Pennsylvania Rule of Criminal Procedure 591(A)

provides that, “[a]t any time before imposition of sentence, the court may, in

its discretion, permit, upon motion of the defendant, … the withdrawal of a

plea of guilty … and the substitution of a plea of not guilty.”

      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. Thus, in
      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. As a general rule, the mere articulation of innocence
      is a fair and just reason for the pre-sentence withdrawal of a guilty

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       plea unless the Commonwealth has demonstrated that it would be
       substantially prejudiced.

Commonwealth v. Kpou, 153 A.3d 1020, 1022-1023 (Pa. Super. 2016)

(internal citations, quotation marks, and brackets omitted; ellipses in

original).

       Initially, we agree with Baughman’s assertion that the court applied the

incorrect standard in rejecting his motion to withdraw his guilty plea. See Trial

Court Opinion, 6/1/17, at 3 (holding that Baughman had not established a

“manifest injustice” in support of his request to withdraw his guilty plea).1 As

noted above, Baughman moved to withdraw his plea prior to sentencing. Thus,

he was entitled to withdrawal if he could set forth any “fair and just” reason

for the withdrawal. He was not required to demonstrate a “manifest injustice.”

       However, this does not render the trial court’s decision wrong. See The

Brickman Group, Ltd. v. CGU, Inc., 865 A.2d 918, 928 (Pa. Super. 2004)

(“We are not bound by the trial court’s rationale, and may affirm on any

basis.”)

       A “fair and just” reason is not any reason. Commonwealth v. Dorian,

460 A.2d 1121, 1123 (Pa. Super. 1983) (finding a motion to withdraw a pre-


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1 The trial court did conclude, in the alternative, that it would have rejected
Baughman’s request to withdraw his guilty plea even under the more lenient
standards applicable to pre-sentence requests. See id., at 4 n.11. The court
concluded that withdrawal of the plea would have prejudiced the
Commonwealth. We do not reach the issue of prejudice to the Commonwealth,
as Baughman failed to establish the predicate requirement of a “fair and just”
reason for the withdrawal.

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sentence guilty plea properly denied where defendant’s desire to withdraw the

plea was not based on claimed innocence, but on information that defendant

may have a “possible defense”). Rather, the proper standard is “whether the

accused has made some colorable demonstration, under the circumstances,

such that permitting withdrawal of the plea would promote fairness and

justice.” Commonwealth v. Carrasquillo, 115 A.3d 1284, 1292 (Pa. 2015).

      Baughman did not assert his innocence in his motion to withdraw.

Furthermore, he conceded that he was not challenging any of the factual bases

for his convictions. See N.T., Sentencing Hearing, 2/7/17, at 3. Finally, he has

not claimed, at any time, that he entered into the plea involuntarily,

unknowingly, or unintelligently. The only reason Baughman has ever set forth

to support his request to withdraw his plea was his desire to litigate a pretrial

suppression motion. Under these circumstances, we cannot conclude

withdrawal of Baughman’s plea would promote “fairness and justice.” Thus,

his desire to litigate Birchfield is not a “fair and just” reason for the

withdrawal of his guilty plea.

      Therefore, we find the trial court did not abuse its discretion in denying

Appellant’s pre-sentence motion to withdraw his guilty plea. As this is the only

issue on appeal, we affirm Baughman’s judgment of sentence.

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 04/24/18




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