J-A20030-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF                            :   IN THE SUPERIOR COURT OF
    PENNSYLVANIA                               :        PENNSYLVANIA
                                               :
                                               :
                v.                             :
                                               :
                                               :
    CHRISTOPHER STEVEN TICHENOR                :
                                               :   No. 301 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-0000581-2016


BEFORE: GANTMAN, P.J., PANELLA, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY PANELLA, J.                               FILED MARCH 08, 2018

        Appellant, Christopher Steven Tichenor, appeals from the judgment of

sentence imposed by the Cumberland County Court of Common Pleas.

Appellant argues the trial court abused its discretion denying both his petition

to withdraw his guilty plea and his motion to suppress. We affirm.

        On June 30, 2016, Appellant pleaded guilty to one count each of Driving

Under the Influence and Possession of Drug Paraphernalia.1 However, on the

date scheduled for sentencing, Appellant indicated his desire to withdraw his

guilty plea. The trial court postponed sentencing to allow Appellant to file his

motion. On December 16, 2016, Appellant filed both a motion to withdraw his

guilty plea and a motion to suppress his blood results pursuant to Birchfield

v. North Dakota, 136 S.Ct. 2160 (2016), which the High Court decided prior
____________________________________________


1   75 Pa.C.S.A. § 3802(b), and 35 P.S. § 780-113(a)(32), respectively.
J-A20030-17



to entry of his plea. Following a hearing, the court denied both motions and

sentenced Appellant to an aggregate term of thirty days to six months’

imprisonment. This timely appeal follows.

      Appellant first alleges the trial court erred by denying his petition to

withdraw his guilty plea. Specifically, Appellant points to the fact that he filed

his motion to withdraw his plea prior to sentencing, when motions to withdraw

should be “liberally allowed.” Appellant also asserts he had a “fair and just”

reason to withdraw his plea, as he believed his suppression motion, based on

Birchfield, was meritorious.

      “We review a trial court’s ruling on a pre-sentence motion to withdraw

a guilty plea for an abuse of discretion.” Commonwealth v. Islas, 156 A.3d

1185, 1187 (Pa. Super. 2017) (citation omitted). 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
      plea unless the Commonwealth has demonstrated that it would be
      substantially prejudiced.


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

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

original).

      The trial court in the instant case concluded Appellant failed to advance

a “fair and just reason” for withdrawal. We agree.

      Appellant did not assert his innocence in the motion to withdraw (nor in

his appellate brief). And he did not claim, at any time, that he entered into

the plea involuntarily, unknowingly, or unintelligently. The only reason

Appellant set forth to support his request to withdraw his plea was his desire

to litigate a pretrial suppression motion. That is not a “fair and just reason.”

See Commonwealth v. Dorian, 460 A.2d 1121, 1123 (Pa. Super. 1983)

(finding a motion to withdraw a pre-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”).

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

Appellant’s pre-sentence motion to withdraw his guilty plea.

      Appellant next argues the trial court erred by denying his motion to

suppress pursuant to Birchfield. But as we have just found the trial court

properly refused withdrawal of the guilty plea, Appellant cannot succeed on

this claim. “Settled Pennsylvania law makes clear that by entering a guilty

plea, the defendant waives his right to challenge on direct appeal all

nonjurisdictional defects except the legality of the sentence and the validity of




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the plea.” Commonwealth v. Lincoln, 72 A.3d 606, 609 (Pa. Super. 2013)

(citation omitted).

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 03/08/2018




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