J-S16023-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

JAMES E. ROWE,

                        Appellant                   No. 509 MDA 2014


        Appeal from the Judgment of Sentence of February 18, 2014
             In the Court of Common Pleas of Montour County
           Criminal Division at No(s): CP-47-CR-0000126-2012


BEFORE: PANELLA, OLSON AND OTT, JJ.

MEMORANDUM BY OLSON, J.:                             FILED JULY 09, 2015

      Appellant, James E. Rowe, appeals from the judgment of sentence

entered on February 18, 2014 following his guilty pleas to statutory sexual

assault and corruption of minors.    Following our Supreme Court’s recent

decision in Commonwealth v. Carrasquillo, -- A.3d. --, 2015 WL 3684430

(Pa. June 15, 2015), we affirm.

      The trial court summarized the facts and procedural history of this

case as follows:

            On June 11, 2013, [Appellant] pled guilty to [s]tatutory
        [s]exual [a]ssault (F-2) and [c]orruption of [m]inors (M-1).
        On that date, an [o]rder was issued referring the case to
        the Sexual Offenders’ Assessment Board (“SOAB”) for the
        required assessment. The SOAB rendered its assessment
        on August 27, 2013 and sentencing was scheduled for
        September 3, 2013 and was continued at the request of
        [Appellant] until October 15, 2015. On October 10, 2015,
        [Appellant] filed a [m]otion to [w]ithdraw [p]lea of [g]uilty
J-S16023-15


       (the “Motion”). By [o]rder of October 11, 2013, the Motion
       was scheduled for a hearing on November 12, 2013.

           [Appellant’s] counsel appeared on November 12, 2013,
       as did [Appellant’s] wife, but [Appellant] did not appear,
       despite proper notice[.] Although defense counsel asserted
       that [Appellant] was not present due to his grandmother
       allegedly being in a car accident in “upstate New York,”
       [Appellant’s] wife testified that [Appellant] did not have a
       family emergency and was not in New York, but was then in
       Shavertown, PA, and that the information regarding
       [Appellant’s] grandmother was false.        [The trial court]
       accepted [Appellant’s] wife’s testimony as credible,
       determined that [Appellant] had notice of the hearing on
       the Motion, and proceeded with the hearing on the Motion.
       In the absence of any evidence of a fair and just reason to
       warrant withdrawal of [Appellant’s] guilty plea, [the trial
       court] denied the Motion.       In [the trial court’s] view,
       [Appellant] was granted notice and opportunity to be heard
       on the Motion and he chose to attempt to mislead and
       defraud [the trial court].      [Appellant] was granted a
       hearing, and he did not sustain his burden to prove a fair
       and just reason for withdrawal of his guilty plea.

           On November 22, 2013, defense counsel John W.
       McDanel, Esq. filed a written [p]etition to [w]ithdraw as
       [c]ounsel (the “Petition”), citing [Appellant’s] refusal to
       cooperate and communicate with Mr. McDanel. By [o]rder
       of November 25, 2013, a hearing was scheduled on
       December 16, 2013 on the Petition. On December 16,
       2013, the Petition was granted and [Appellant] was also
       granted a continuance from his sentencing hearing also
       scheduled for that date. [Appellant] was admonished to
       secure counsel, and it was stated that no further
       continuances of [Appellant’s] sentencing hearing would be
       granted.

          Sentencing was continued to January 23, 2014 at which
       time [Appellant] sought a continuance.      By [o]rder of
       January 23, 2014, a continuance was granted in an effort to
       accommodate [Appellant’s] right to court appointed counsel.
       To further accommodate [Appellant’s] right to counsel,
       successor counsel, Elizabeth A. Kulyeshie, Esq., was
       appointed in the [o]rder of January 23, 2014, and the [trial

                                   -2-
J-S16023-15


         court] made a telephone call to Ms. Kulyeshie on that date,
         notifying her of her appointment so as to maximize any
         preparation time that would be needed. Sentencing was
         rescheduled to February 18, 2014.

             At the sentencing hearing of February 18, 2014, Ms.
         Kulyeshie asserted an oral motion to withdraw guilty plea.
         The oral motion was denied []as having been previously
         filed and adjudicated. [The trial court] cited [Appellant’s]
         intentional misrepresentation to the [c]ourt as to his
         whereabouts at the time of the hearing on the Motion and
         the credible testimony of his wife in that regard. The
         [c]ourt proceeded with sentencing [and imposed an
         aggregate term of imprisonment of 15 to 36 months].

Trial Court Opinion, 7/24/2014, at 1-3 (record citations omitted).       This

timely appeal resulted.1

       Appellant presents the following issue for our review:

         Whether the trial court erred in denying [] Appellant’s
         motion to withdraw his guilty plea.

Appellant’s Brief at 4 (complete capitalization omitted).

       Appellant argues that the trial court abused its discretion when it

denied his motion to withdraw his guilty plea prior to sentencing. Appellant

asserts the trial court erred when it determined that Appellant failed to meet

his burden of proving a fair and just reason to withdraw his plea. Id. at 7.

He maintains that in requesting the withdrawal of his guilty plea he “was

asserting his innocence” which “has been deemed a fair and just reason for
____________________________________________


1
  Appellant filed a timely notice of appeal on March 19, 2014. On March 27,
2014, the trial court ordered Appellant to file a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b). Appellant complied
timely on April 22, 2014. The trial court issued an opinion pursuant to
Pa.R.A.P. 1925(a) on July 24, 2014.



                                           -3-
J-S16023-15



seeking withdraw[al].” Id. at 11. Appellant claims his mere articulation of

innocence sufficed.     Id.   Appellant also argues that the trial court erred

when it heard testimony from Appellant’s estranged wife at the hearing on

the motion to withdraw wherein she “basically yell[ed] out from the galley.”

Id.   Appellant asserts that the trial court further compounded its error by

not allowing him to articulate his reasons for withdrawing his guilty plea

when he renewed his request by oral motion at the sentencing hearing. Id.

Finally, Appellant contends “the Commonwealth presented no evidence or

testimony that [it] would be substantially prejudiced by withdrawal.” Id.

      “A decision regarding whether to accept a defendant's presentence

motion to withdraw a guilty plea is left to the discretion of the sentencing

court.”     Commonwealth v. Unangst, 71 A.3d 1017, 1019 (Pa. Super.

2013). Regarding a trial court’s discretion, our Supreme Court has declared:

          An abuse of discretion exists when the trial court has
          rendered a judgment that is manifestly unreasonable,
          arbitrary, or capricious, has failed to apply the law, or was
          motivated by partiality, prejudice, bias, or ill will. A finding
          by an appellate court that it would have reached a different
          result than the trial court does not constitute a finding of an
          abuse of discretion.

Commonwealth v. Banks, 29 A.3d 1129, 1135 (Pa. 2011) (citation

omitted).

      “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.”           Unangst, at 1020.      Our



                                       -4-
J-S16023-15



Supreme Court recently decided Carrasquillo “to clarify whether the

common pleas court must accept a bare assertion of innocence as a fair and

just reason for withdrawal[]” of a guilty plea.2       Carrasquillo, at *8.   The

Carrasquillo Court ultimately determined:

         [T]here 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.

                                *          *       *

         […A] defendant’s innocence claim must be at least plausible
         to demonstrate, in and of itself, a fair and just reason from
         presentence withdrawal of a plea. More broadly, the proper
         inquiry on consideration of such 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. The policy of liberality remains extant but has
         its limits, consistent with the affordance of a degree of
         discretion to the common pleas court.

Carrasquillo, at *12-14 (citations and footnote omitted). The Carrasquillo

Court also noted that the timing of a defendant’s innocence claim is a factor
____________________________________________


2
  “In order to be applied to a defendant, the new decision must be handed
down during the pendency of the defendant's direct appeal and the issue
must be properly preserved during that direct appeal.” Commonwealth v.
Carr, 535 A.2d 1120, 1125 (Pa. Super. 1987) (emphasis omitted). Here,
Appellant has always asserted that his claim of innocence was a fair and just
reason for withdrawal of his guilty pleas and preserved that issue for our
review. There is no question that Carrasquillo was decided during the
pendency of Appellant’s direct appeal.



                                           -5-
J-S16023-15



for the trial court’s consideration in guilty plea withdrawal matters. Id. at

*13.

       In the case at bar, the trial court concluded:

         […Appellant] was granted notice and an opportunity to b[e]
         heard, and he failed to sustain his burden of proving a fair
         and just reason for seeking to withdraw his guilty plea.
         [Appellant] not only knew about the hearing, but
         intentionally lied to his attorney to attempt to justify his
         failure to attend the hearing. He had his day in court on his
         Motion and the Motion was denied for failure to sustain his
         burden of proof.

                             *         *           *

         [Appellant] was granted his due process on the Motion and
         he consciously chose not to attend the hearing on the
         Motion on November 12, 2013. The matter had been
         adjudicated in a manner which granted [Appellant] his due
         process, but he flouted the system and threw away his
         opportunity to be heard by choosing not to attend the
         hearing and in lying to his attorney, who unwittingly relayed
         the false information to the Court regarding the reasons for
         [Appellant’s] absence. No court has the time to entertain
         repeated identical motions from a defendant who will pick
         and choose when he is good and ready to appear for his
         motions. The denial of the Motion by [o]rder of November
         12, 2013 is the law of the case and res judicata.

Trial Court Opinion, 7/24/2014, at 3-4.

       Upon review of the record, we discern no abuse of discretion in

denying Appellant’s request to withdraw his guilty plea prior to sentencing.

On June 11, 2013, Appellant pled guilty to statutory sexual assault and

corruption of a minor.     Approximately four months later, on October 10,

2013, counsel for Appellant filed a motion to withdraw the guilty plea. In

that motion, counsel averred that Appellant “asserts that he is innocent of

                                      -6-
J-S16023-15



the charges against him and did not commit any of the charged offenses.”

Motion to Withdraw Plea of Guilty, 10/10/2013, at ¶ 5.               However, as the

Commonwealth points out, the motion was not verified and Appellant did not

affix an affidavit to the motion specifying “that the facts [we]re verified

subject    to   the    penalties    for    unsworn   falsification   to   authorities.”

Pa.R.Crim.P. 575(g). The trial court scheduled a hearing on the guilty plea

withdrawal motion on November 12, 2013. Appellant did not appear.

       At the hearing, defense counsel stated that Appellant “indicated … he

was in upstate New York with his grandmother who was in a car accident.”

N.T., 11/12/2013, at 3.          Appellant’s wife, “who posted bail [was] also

[present] and she [knew Appellant] was aware of [the] proceeding.”                 Id.

Under oath,3 Appellant’s wife testified that Appellant did not have a family

emergency and told her “he was going to state that he had a family

emergency so he would not have to” appear.              Id. at 4.     Thereafter, the

following exchange between defense counsel, John McDanel, Esquire, and

the trial court ensued:


          The Court:               […] Mr. McDanel, do you have any
                                   evidence – we’re going to go forward
                                   with this motion to withdraw guilty
                                   plea even in [Appellant’s] absence
____________________________________________


3
   We reject Appellant’s characterization of his wife’s testimony as mere
statements blurted out in open court. In fact, the trial court called Mrs.
Rowe to the stand and swore her in before asking her direct questions under
oath.



                                           -7-
J-S16023-15


                      because he should have been here.
                      Do you have any evidence to help
                      sustain that motion? I suspect not
                      without your client.

       Mr. McDanel:   He asserts his innocence.

       The Court:     Without him here?

       Mr. McDanel:   We’re going to go without him here.

       The Court:     It puts you in a difficult position, but
                      the burden of proof still is on
                      [Appellant] to carry the elements of
                      withdrawing a guilty plea, but if he’s
                      not here and hasn’t availed himself of
                      the hearing that has been accorded to
                      him.

       Mr. McDanel:   With all due respect, if that’s how the
                      [c]ourt’s going to go, we obviously
                      can’t go forward without him here.

       The Court:     Or we can adjudicate it in his absence
                      for failure to sustain the burden of
                      proof. And I do lend credibility to
                      what Mrs. Rowe said which we’re not
                      going to mess around and waste time
                      scheduling and rescheduling and
                      rescheduling hearings on motions to
                      withdraw guilty plea, if he doesn’t see
                      fit to attend. So that’s why I’m being
                      kind of hard about it.

       Mr. McDanel:   I understand.     All I would indicate
                      without a client here is we made an
                      allegation in the petition that he was
                      innocent of the charges, there was no
                      answer submitted to the contrary.

       The Court:     There is no requirement of an answer
                      to be submitted.

       Mr. McDanel:   I understand that.

                            -8-
J-S16023-15



        The Court:              And I sympathize.

Id. at 5-6.     The trial court ultimately determined that “upon failure of

[Appellant] to present any evidence [], it [] found that [Appellant] failed to

sustain his burden of proof and his motion to withdraw plea of guilty [was]

denied.” Id. at 7.

      Following the hearing on November 12, 2013, the trial court entered

an order denying Appellant relief.        Thereafter, the case proceeded to

sentencing. At the sentencing hearing, newly appointed counsel asked the

trial court to reconsider Appellant’s motion to withdraw his guilty plea. N.T.,

2/18/2014, at 2.     Pointing to Appellant’s failure to attend the hearing on his

motion to withdraw his guilty plea, as well as the testimony of Appellant’s

wife at that hearing, the trial court denied relief. Id. at 2-3.   The trial court

then offered Appellant his right to allocution; Appellant chose not to speak.

Id. at 7.

      Based upon all of the foregoing, Appellant did not offer a plausible

innocence claim that demonstrated “in and of itself, a fair and just reason

from presentence withdrawal of a plea.” Carrasquillo, at *14.           Appellant

did not make a “colorable demonstration, under the circumstances, such

that permitting withdrawal of the plea would promote fairness and justice.”

Id. In fact, Appellant did not offer any reason to withdraw. The unverified

motion amounted to an assertion of innocence by defense counsel, but not

Appellant.    There is no dispute that Appellant received notice of the hearing

set for the motion to withdraw, but then failed to attend. Defense counsel

                                      -9-
J-S16023-15



did not present any other evidence at the hearing or at the sentencing

hearing prior to imposition of sentence.     Thus, Appellant never presented

sworn testimony asserting his innocence. Accordingly, Appellant presented

the trial court with, at most, a bald, unsupported assertion by defense

counsel that Appellant was innocent.

      Appellant does not claim that a bald, unverified motion asserting

innocence, advanced without support of record evidence, warrants the

withdrawal of a guilty plea.   Moreover, our independent research efforts

reveal no support for this view. In fact, upon review of the cases collected

by our Supreme Court in Carrasquillo, those decisions reveal that, at a

bare minimum, defendants must be present at scheduled hearings on their

motions to personally assert their innocence. See Carrasquillo, at *2 (At

the hearing to withdraw the guilty plea, Carrasquillo “insisted that a

polygraph test would prove his innocence and asked to withdraw his guilty

plea.”); see also Commonwealth v. Hvizda, 2015 WL 3795936, at *1 (Pa.

2015) (companion case to Carrasquillo) (“At the hearing, [Hvizda] again

stated that he was innocent, but he offered no evidence.”); see also

Commonwealth v. Forbes, 299 A.2d 268, 269 (Pa. 1973) (“appellant

expressed a desire to withdraw his guilty plea because, as he stated, ‘I don't

want to plead guilty to nothing I didn't do.’”); see also Commonwealth v.

Katonka, 33 A.3d 44, 49 (Pa. Super. 2011) (en banc) (citing notes of

testimony from the hearing on the motion to withdraw a guilty plea,

“Katonka specifically asserted that he was innocent of the crimes and this

                                    - 10 -
J-S16023-15



assertion was neither contradictory nor conditioned on some other event.”);

see also generally Commonwealth v. Miller, 639 A.2d 815 (Pa. Super.

1994) (upon written motion and in person at a subsequent hearing, Miller

asserted his innocence.).     Here, Appellant never personally asserted his

innocence, let alone offered a plausible reason for withdrawing his guilty

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

denying Appellant’s bald, unsupported assertion of innocence to withdraw his

pre-sentence guilty plea. Appellant’s sole appellate claim lacks merit.

        Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/9/2015




                                    - 11 -
