J-S16021-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF                            :   IN THE SUPERIOR COURT OF
    PENNSYLVANIA                               :        PENNSYLVANIA
                                               :
                                               :
                v.                             :
                                               :
                                               :
    WILLIAM ALLEN WYLIE                        :
                                               :   No. 1708 MDA 2017
                       Appellant               :

             Appeal from the Judgment of Sentence April 14, 2016
     In the Court of Common Pleas of Bradford County Criminal Division at
                       No(s): CP-08-CR-0000433-2014


BEFORE:      BOWES, J., MURRAY, J., and PLATT*, J.

MEMORANDUM BY MURRAY, J.:                                 FILED APRIL 02, 2018

       William Allen Wylie (Appellant) appeals from the judgment of sentence

imposed by the trial court after he pled guilty to possessing a controlled

substance (methamphetamine), possessing drug paraphernalia, driving under

the influence of a controlled substance (methamphetamine), person not to

possess a firearm, and possessing a firearm with an altered manufacturer’s

number.1 We affirm.

       The trial court explained:

       Pursuant to a plea agreement, the Commonwealth moved
       [Appellant] into the State Intermediate Punishment Program for
       which he would have to be evaluated by the Department of
____________________________________________


* Retired Senior Judge assigned to the Superior Court.

135 P.S. §§ 780-113(a)(16), (32); 75 Pa.C.S.A. § 3802(d)(1); 18 Pa.C.S.A.
§§ 6105(a)(1) and 6110.2(a).
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     Corrections, and that [Appellant] would report to the Bradford
     County Correctional Facility on January 4, 2016, to be transported
     for that evaluation. The remaining charges would be dismissed at
     sentencing pursuant to the plea agreement. By Order dated
     November 3, 2015, [Appellant] was to report to the Bradford
     County Correctional Facility on January 4, 2016, so that he could
     then be transported to SCI Camp Hill for evaluation to determine
     suitability for the State Intermediate Punishment Program. A
     thorough written plea colloquy was completed by Appellant and
     counsel, see Plea Colloquy filed November 6, 2015, and a verbal
     plea colloquy was completed wherein Appellant admitted to
     committing the offenses and was advised of the maximum
     penalties for the offenses.

           During the verbal plea colloquy, Appellant admitted as
     follows with his counsel stating the facts:

           Atty. Kolcharno: My client was at the traffic light, he was
           sleeping at the wheel, at the time the vehicle was running.
           Uh, at that time, the officers did further investigation and
           based on that investigation, your Honor, it was determined
           that my client was impaired. He did have in his system a
           certain quantity of methamphetamine at that time and did
           have on his person, possession of control, a quantity of
           methamphetamine, all totaling approximately seven (7)
           grams, and the corresponding drug paraphernalia. Further,
           officers patted him down and did find a handgun, your
           Honor. Due to his prior felony conviction in 1988, he was
           precluded from having that in his possession or control and
           also the officer has, the officer did indicate at that time,
           observation of the firearm did appear to be obliterated,
           scratched off, altered in some way, shape or form, your
           Honor.

           [Commonwealth]:        Would you require your client to
           acknowledge that your synopsis of what the officer said,
           what you said, was true?

           Attorney Kolcharno:     Based on what I have just indicated
           to you, is that true?

           [Appellant]:            Yeah, yeah.

           The Court:              Yes?

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            [Appellant]:            Yeah.

Trial Court Opinion, 11/27/17, at 2-3 (citations omitted).

      At the plea hearing, the Commonwealth stated that Appellant, “for

personal reasons, [is] requesting a delay until January fourth, to begin the

incarceration and evaluation period.” N.T., 11/3/15, at 2. The trial court,

after accepting Appellant’s plea, stated, “[Appellant] is directed to report to

the Bradford County Correctional Facility on January 4, 201[6] . . . at nine

a.m. Thereafter, [Appellant] shall be transported to [the] State Correctional

Facility at Camp Hill for a[n] SIP evaluation.   The Court Administrator will

schedule sentencing upon notice of the acceptance or non-acceptance into the

SIP program.” Id. at 11. Appellant was released on bail. Less than two

months later, and before January 4, 2016, when Appellant was to report to

the Bradford County Correctional Facility:

            The Commonwealth filed a Petition to Revoke Bail on
      December 30, 2015, alleging Appellant had violated bail
      conditions by being arrested by Federal authorities for illegal
      possession/conspiracy to deliver controlled substances. An arrest
      warrant was then issued. Appellant did not report to the Bradford
      County Correctional Facility on January 4, 2016 pursuant to the
      plea agreement and as directed by Order of Court. Therefore,
      sentencing was scheduled for March 10, 2016, which was
      continued upon motion of counsel to April 14, 2016.

            [Appellant] filed a Motion to Withdraw Guilty Plea on April
      12, 2016, claiming: that he entered the plea on the expectation
      and promise that he would be sentenced to State Intermediate
      Punishment if the evaluation deemed him a candidate; that he had
      been indicted in the US District Court for drug related offenses and
      that evaluation of these matters, the plea in the instant case would
      “severely prejudice [Appellant’s] constitutional rights as he would

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      face an extremely harsher sentence in the United States District
      Court”; and finally making a bare assertion of being innocent. See
      Motion to Withdraw Guilty Plea filed April 12, 2016. A hearing was
      held prior to sentencing on April 14, 2016 and the Motion to
      Withdraw Guilty Plea was denied. Appellant was sentenced on
      April 14, 2016, to [an] aggregate sentence of a minimum of 72
      months to a maximum of 150 months. No appeal was filed.

            Thereafter, Appellant filed a timely PCRA Petition alleging
      that he requested his then counsel to file an appeal which was not
      done. The Commonwealth and new counsel for Appellant agreed
      that the appellate rights should be reinstated and an Order was
      entered reinstating same.

            Appellant has now appealed and filed a Statement of Matters
      Complained of on Appeal pursuant to Pa.R.App.Proc. Rule 1925(b)
      setting out the single issue that his motion to withdraw his guilty
      pleas should have been granted.

Trial Court Opinion, 11/27/17, at 4-5.

      Appellant presents this Court with the following Statement of Question

Involved:

            Should [A]ppellant be allowed to withdraw his guilty plea in
      a case where he maintained his innocence of the firearm charges,
      where his lawyer argued he had a defense to those charges, and
      where [A]ppellant had previously stated on the record that he
      never “opened the gun,” “found it in the car,” and handed the gun
      to a police officer?

Appellant’s Brief at 5.

      Preliminary, we note that nowhere in his argument does Appellant

reference, cite or otherwise discuss his assertion that he “previously stated on

the record that he never ‘opened the gun,’ ‘found it in the car,’ and handed

the gun to a police officer.” Id. We further note that Appellant’s testimony

in this regard occurred at the April 14, 2016 hearing prior to sentencing, but



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after the trial court had denied Appellant’s motion to withdraw guilty plea.

N.T., 4/14/16, at 11.

       Rather, citing the Supreme Court’s decision in Commonwealth v.

Carrasquillo, Appellant argues that the trial court erred in denying his

request to withdraw his guilty plea because he “established a colorable

demonstration under the circumstances that allowing the plea to be withdrawn

would not substantially prejudice the Commonwealth, and would promote

fairness and justice.” Appellant’s Brief at 10, citing Carrasquillo, 115 A.3d

1284 (Pa. 2015).       Appellant specifically asserts that “[a]s set forth in the

sentencing proceeding,” his counsel expressed concern about Appellant

“entering a plea to something that he felt that he was not guilty of, but yet at

the same token there was a benefit of possibly finally getting his life together.

. .” Id. at 10-11, citing N.T., 4/14/16, at 4. Appellant also states that his

counsel “further informed the court that he was not indicating he was not

guilty of all five offenses, but rather he was guilty of the misdemeanor offenses

but that he had a defense to the firearm related offenses and was not guilty

of those.” Id. at 11, citing N.T, 11/3/15, at 4.2

       This Court recently addressed our Supreme Court’s decision in

Carrasquillo:


____________________________________________


2 Appellant erroneously attributes this second quote to counsel at page 4 of
the guilty plea hearing on November 3, 2015. Both of the quotes cited by
Appellant are contained in the notes of testimony from the sentencing hearing
on April 14, 2016.

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      That decision clarified the parameters of when a pre-sentence
      motion to withdraw is to be granted based upon an assertion of
      innocence. Therein, our Supreme Court re-affirmed that the trial
      court is imbued with the discretion to deny a defendant permission
      to withdraw a guilty plea, whether that request is tendered before
      or after sentencing, and we, as an appellate court, can reverse its
      decision only when that discretion is abused. Pa.R.Crim.P. 591(A)
      (emphasis added) (“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.”).

Commonwealth v. Baez, 169 A.3d 35, 38–39 (Pa. Super. 2017).                  We

recognized that while a pre-sentence motion to withdraw is to be liberally

allowed, there is no absolute right to withdraw a guilty plea, and trial courts

have discretion to determine whether a withdrawal request will be granted.

Id. at 39. The trial court’s 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.”        Id. citing Carrasquillo, at

1291–92. However:

      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. 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.

Baez, 169 A.3d at 39 (citations and quotation marks omitted).




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       Notably, at the guilty plea hearing, Appellant’s counsel3 stated that

Appellant would plead guilty to persons not to possess a firearm and

possession of a firearm with an altered number. N.T., 11/3/15, at 2. Counsel

additionally presented Appellant’s written plea colloquy to the court.       Id.

Appellant testified that he reviewed, understood, and signed the written plea

colloquy, and that all of his responses were “true and correct.” Id. at 3. This

exchange followed:

       BY THE COURT:           You’re planning to plead guilty to firearms
       not to be carried without a license and that’s defined as follows .
       . . Do you understand that as it’s defined?

       A:                          Yes, your Honor.

       [Commonwealth]:        No, the felony three wasn’t one of the
       ones he’s pleading to.

       [Appellant’s Counsel]: Your Honor, that would be Count number
       ten (10),-

       THE COURT:                  Okay.

       [Appellant’s Counsel]: - it’s a felony of the second degree,-

       THE COURT:                  Okay.

       [Appellant’s Counsel]: - on the information.

       THE COURT:                  My apologies. So let me define that for
       you then.

       [Commonwealth:              Count ten, - the previous felony was a
       burglary.


____________________________________________


3 The same attorney, Corey Kolcharno, Esquire, represented Appellant at both
the plea and sentencing hearings.

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      THE COURT:                Okay. So this is the definition. Person not
      to possess, use, manufacture, control or sell or transfer firearm.
      [reads definition] . . . Do you understand that as it’s defined?

      [Appellant]:             Yeah.

N.T., 11/3/15, at 4-5.

      Appellant’s counsel then stated:

      Officers patted [Appellant] down and did find a handgun, your
      Honor. Due to his prior felony conviction in 1988, he was
      precluded from having that in his possession or control and also
      the officer has, the officer did indicate at that time, observation of
      the firearm did appear to be obliterated, scratched off, altered in
      some way, shape or form, your Honor. I believe I’ve provided an
      accurate synopsis of the facts in question.

Id. at 7-8.

      Five months later at sentencing, Appellant’s counsel conceded that

Appellant “entered a plea to two felony firearm related offenses and then three

other offenses, they’re misdemeanor related.”        N.T., 4/14/16, at 2.      He

acknowledged, “During that time he was directed by this Court to be evaluated

. . . Your Honor was gracious enough to allow him out on his own, I guess,

recognizance or at liberty during the holiday season and to report January 4th.

. . . On or about December 21, 2015, Your Honor, it came to my attention that

he was indicted in the Federal Court in the Middle District of Scranton for a

drug-related offense there.” Id. at 3. The docket shows that Appellant filed

his motion to withdraw guilty plea on April 12, 2016, two days prior to

sentencing.




                                       -8-
J-S16021-18


     Appellant references his counsel’s statements at sentencing to support

his argument. In context and as a whole, the statements of counsel in support

of Appellant’s motion to withdraw guilty plea read:

            I think SIP was [Appellant’s] last resort and we had
     thoughtfully weighed this back and forth. And there was part of
     him that was concerned about entering a plea to something that
     he felt that he was not guilty of, but yet on the same token there
     was a benefit of possibly finally getting his life together,
     straightening his life out, and getting clean; and the SIP program,
     as this court is well aware, is one avenue to do that and sometime
     the best avenue because it does have that component of structure
     and incarceration.

           In addition to that, your Honor, I’ve spoken to his Federal
     Public Defender, I know that with regard to these charges in
     particular, I know [] the felonies in particular and the sentence
     that accompanies those will astronomically prejudice him in the
     Federal Courts, that’s just a small component.

            And finally, your Honor, as I first indicated, [Appellant] will
     tell you and I will tell you on his behalf that he and I have to sort
     of amend my averment here that he’s not indicating he is not
     guilty of all five offenses, he would agree that the Misdemeanor
     offenses he is guilty of, okay. However, when it came to the
     firearm related offenses, your Honor, that that – he does have a
     defense for those and that he feels that he is not guilty of those.
     So I would ask the Court to do it – at the very least allow those
     two charges to be withdrawn at this time, your Honor, and I know
     by way of procedure I would have to ask the Court to, if your
     Honor’s going to consider allowing the – or granting my relief,
     allowing the entire plea to be withdrawn as opposed to doing it
     sort of in a bifurcated way.

            So based on those three (3) reasons, your Honor, I’m trying
     to be as candid as possible and I’m – I’m in a very precarious
     situation because I will – I’m genuinely trying to help this man
     with an addiction and I know he will readily admit that he got
     arrested and put himself in that position and yet he’s looking at
     right now on the felonies alone potentially 10 to 20 years, and also
     on top of that a federal sentence which could be probably double
     that. He could be doing the equivalent of what would be a third
     degree murder sentence.

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            So with that being said, your Honor, I think the prejudice is
      there, the case I cited to is the key case in Pennsylvania,
      Carrasquillo, I know there’s one line in there that I believe that’s
      pertinent that the court’s – that the trial courts are to, you know,
      they have a lot of discretion, your Honor has a lot of discretion in
      evaluating these motions; but also the Court did indicate there
      that they should be liberally, you know, liberally grant in favor of
      the defendant.

N.T., 4/14/16, at 4-5.

      Thereafter, the trial court stated that it had reviewed Carrasquillo and

noted the timeframe of Appellant’s November 3, 2015 plea, his subsequent

arrest and bail revocation in December of 2015, and the motion to withdraw

guilty plea served on the court on April 11, 2016. The court stated that the

“timing of it in and of itself is not really a credible assertion of innocence.” Id.

at 9. The trial court continued:

      Not being eligible for the SIP Program is not a reason to withdraw
      a guilty plea because th[ere] wasn’t an agreement for that, that
      was just a recommendation.

             The other charges pending and how it’s going to affect those
      other charges is not a reason – a fair and just reason for
      withdrawing a guilty plea. It certainly is a – is just a – mere
      attempt at trying to manipulate the justice system, the criminal
      justice system and trying to get the best deal and best sentencing
      ...

             So, with – with . . . the timing of it . . I don’t find the
      assertion of innocence credible at all. There hasn’t really been
      any articulate – articulation as to – as to what type of defense [to
      the firearms charges] there would be. It wasn’t in writing and it
      wasn’t asserted today.

Id.




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      In sum, the trial court found that Appellant’s assertion of innocence was

not credible because he was facing a harsher sentence in federal court “as a

result of his plea and conviction in this case,” which “appears to be Appellant’s

ultimate motive for wishing to withdraw his plea.”         Trial Court Opinion,

11/21/17, at 7.    The record supports the trial court’s determination that

Appellant offered no “colorable demonstration under the circumstances” or a

“plausible innocence claim” to support the granting of his motion to withdraw

his plea. Accordingly, we discern no abuse of discretion by the trial court.

     Judgment of sentence affirmed.
Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/2/2018




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