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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                      v.                       :
                                               :
                                               :
    ANTONIE FLETCHER                           :
                                               :
                       Appellant               :   No. 1031 EDA 2016

            Appeal from the Judgment of Sentence November 5, 2015
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                        No(s): CP-51-CR-0013164-2012


BEFORE: BOWES, J., LAZARUS, J., and RANSOM, J.

MEMORANDUM BY LAZARUS, J.:                           FILED FEBRUARY 27, 2018

        Antonie Fletcher appeals from his judgment of sentence, entered in the

Court of Common Pleas of Philadelphia County, after he entered an open guilty

plea to possession of a firearm prohibited,1 firearms not to be carried without

a license,2 and carrying a firearm in public.3 Upon careful review, we affirm.

        On October 17, 2012, Philadelphia Police Officers James Kuzowsky and

Derek Lowery stopped Fletcher at approximately 9:10 p.m. for operating a

vehicle with dark-tinted windows. During the stop, the officers asked Fletcher

for his license and registration.          When Fletcher reached into his glove

compartment, Officer Kuzowsky observed what he believed to be a firearm in
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1   18 Pa.C.S.A § 6105.

2   18 Pa.C.S.A § 6106.

3   18 Pa.C.S.A § 6108.
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plain view inside the glove compartment. The officers removed Fletcher from

the vehicle and recovered a .9-millimeter Taurus firearm loaded with 16

bullets. The weapon was test-fired and proven operable.

      Fletcher was arrested and charged with the aforementioned violations

of the Uniform Firearms Act. On July 8, 2015, Fletcher entered an open guilty

plea to all counts.    The court accepted Fletcher’s plea and immediately

sentenced him on the section 6108 violation (possession of a firearm in public)

to two years’ reporting probation.     The court deferred sentencing for the

remaining counts under sections 6105 and 6106.

      After sentencing on the section 6108 violation, but before sentencing on

the remaining two counts, Fletcher filed a motion to withdraw his guilty pleas

on July 20, 2015. Fletecher asserted that, while at the time he entered his

plea, he felt that was the most appropriate course of action, since entering his

plea he has “reconsidered his decision.” Motion to Withdraw Guilty Plea,

7/20/15, at ¶ 6. Fletcher did not, however, assert that he was innocent of the

charges or provide any other reason in support of withdrawal.               The

Commonwealth opposed withdrawal and, on November 5, 2015, the court

denied the motion and proceeded to sentence Fletcher to three to six years’

incarceration on the section 6105 offense, followed by three years’ probation

on the section 6106 charge, to be served consecutively with the two years of

probation imposed for the violation of section 6108.

      The court held a status-of-counsel hearing on November 12, 2015, at

which time the court appointed new counsel to represent Fletcher on appeal.

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Counsel filed a post-sentence motion challenging as excessive the sentence

imposed for possession of a firearm prohibited. That motion was denied by

operation of law on March 18, 2016. Fletcher filed a timely notice of appeal,

as well as a court-ordered concise statement of errors complained of on appeal

pursuant to Pa.R.A.P. 1925(b). On appeal, Fletcher asserts that the trial court

erred in denying his motion to withdraw his guilty plea with respect to the

section 6105 and 6106 charges.

      We begin by noting that we review the trial court’s ruling on a motion

to withdraw a guilty plea for abuse of discretion. Abuse of discretion occurs

when the law is overridden or misapplied, the judgment exercised is

manifestly unreasonable, or the result of partiality, prejudice, bias, or ill-will.

Commonwealth v. Prysock, 972 A.2d 539, 541 (Pa. Super. 2009).

      “Our Supreme Court has established significantly different standards of

proof for defendants who move to withdraw a guilty plea before sentencing

and   for   those   who   move     to   withdraw   a   plea   after   sentencing.”

Commonwealth v. Pardo, 35 A.3d 1222, 1226 (Pa. Super. 2011).

      The proper standard to be used prior to sentencing is whether a
      fair and just reason exists. If the trial court finds any fair and just
      reason for the withdrawal, such withdrawal should be permitted
      because of the importance of an accused’s rights to a trial by his
      peers. However, once a sentence has been imposed, an accused
      should be permitted to withdraw his guilty plea only “to correct a
      manifest injustice.” Commonwealth v. Starr, [] 301 A.2d 592
      ([Pa.] 1973). The basis for the difference between these two
      standards is clear. Allowing an accused to withdraw his guilty plea
      after imposition of sentence requires a stricter standard to prevent
      defendants from using a guilty plea as a tool for previewing the



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       sentencing by the court. Such a misuse does not occur when
       withdrawing a guilty plea prior to sentencing.

Commonwealth v. Lesko, 467 A.2d 307, 310 (Pa. 1983).

       Here, Fletcher filed his motion to withdraw after being sentenced on one

count (the section 6108 violation), but prior to being sentenced on the

remaining two counts (section 6105 and 6106 violations). In reviewing his

motion, the trial court concluded that the “post-sentence” standard should

apply to all three counts.4 However, the court also found that, even under the

less stringent pre-sentence standard, Fletcher was not entitled to withdraw

his plea. Because we agree that Fletcher failed to present a “fair and just”

reason to withdraw his plea, we affirm.

       Pennsylvania Rule of Criminal Procedure 591(A) governs pre-sentence

withdrawal of a guilty plea and provides that “[a]t any time before the

imposition of a sentence, the court may, in its discretion, permit, upon motion

of the defendant, or direct, sua sponte, the withdrawal of a guilty plea[.]”

Pa.R.Crim.P. 591(A). “Although, there is no absolute right to withdraw a guilty

plea, properly received by the court, it is clear that a request made before

sentencing should be liberally allowed.”         Commonwealth v. Forbes, 299

A.2d 268, 271 (Pa. 1973). However, a bare assertion of innocence is not a


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4  Because we conclude that Fletcher is unable to satisfy even the lower
threshold for pre-sentence withdrawal, we need not determine whether the
trial court erred in determining that the post-sentence standard should apply
to Fletcher’s request to withdraw his pleas to the section 6105 and 6016
violations. We are not bound by the rationale of the trial court, and may affirm
on any basis. In re Jacobs, 15 A.3d 509, 509 (Pa. Super. 2011).

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sufficient reason to require a court to grant such a request. Commonwealth

v. Carrasquillo, 115 A.3d 1284, 1285 (Pa. 2015).

      On appeal, Fletcher claims that he asserted his innocence and, thus,

should have been granted leave to withdraw his plea. The record belies this

assertion.

      [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. More broadly, the proper
      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. The policy of liberality remains
      extant but has its limits, consistent with the affordance of a degree
      of discretion to the common pleas courts.

Id. at 1292.

Additionally, we note that

      So many safeguards have been imposed by law to ensure that a
      guilty plea is voluntarily and knowingly made, that a defendant
      should not be permitted to withdraw his guilty plea, even before
      sentencing, merely by intoning the allegation that "I am not
      guilty," where, as here, his plea of guilty was supported by an
      extensive colloquy in which the defendant expressly admitted
      guilt.

Commonwealth v. Cole, 564 A.2d 203, 207 (Pa. Super. 1989).

      In his written motion to withdraw his guilty plea, Fletcher asserted the

following rationale in support of withdrawal:

      5. At the time Defendant entered the plea of guilty, Defendant felt
      that that course of action was appropriate and in his best interest.

      6. Since the entry of the guilty plea, Defendant reconsidered his
      decision.


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      7. By way of letter to counsel dated July 13, 2015 and postmarked
      July 14, 2015, it appears the Defendant now wishes to withdraw
      his guilty plea and proceed to trial in this case.

Motion to Withdraw Plea, 7/20/15, at ¶¶ 5-7.

      Fletcher failed to make even a bare assertion of innocence, much less a

plausible one that would demonstrate a “fair and just” reason for withdrawal.

Carrasquillo, supra. Moreover, during allocution, Fletcher merely noted his

dissatisfaction with counsel and alleged fabrication of evidence by the police:

      THE DEFENDANT: First, I would like to say that throughout this
      entire case, I've [sic] never was okay with my attorney’s
      representation.    I've had full and plenty letters to the Bar
      Association that I was betrayed of not being sent to -- made copies
      sent to the administrative judge, the Bar Association and I have
      my fiancée that is here today, to mail it for me to the Bar
      Association. All of that, it was never done. She listened to my
      attorney, always telling her that the things are okay and to talk to
      me and asked to have my speedy trial violation argued before I
      accepted the plea. He told me that Your Honor would just deny it
      and say judicial delay.

      I have proof in black and white documents that the police officers
      committed perjury on the stand. I'm sure I told him that and
      wanted to argue that, according to police report, that the cop said
      on the stand and testified under oath, admittedly, that he did this
      and that and I have proof that he didn't do this and committed
      perjury, both of the cops and he – he’s – it is too late for that.

N.T. Sentencing, 11/5/15, at 9-10.

      As our Supreme Court has held, dissatisfaction with counsel is not a “fair

and just” reason to withdraw a plea where the plea colloquy demonstrates

that the defendant’s plea was knowing and voluntary and where the defendant

expressed satisfaction with his counsel’s representation. Commonwealth v.




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Kerbacher, 594 A.2d 655, 656 (Pa. 1991).              Fletcher’s plea colloquy

demonstrates both. See N.T. Guilty Plea, 7/8/15, at 4-14.

      Based upon our review of the record as a whole, we conclude that the

trial court did not abuse its discretion in denying Fletcher’s motion to withdraw

his guilty plea where Fletcher did not plausibly assert his innocence at any

point, and provided no other “fair and just” reason for withdrawal.

Carrasquillo, supra.

      Judgment of sentence affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/27/18




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