J-S49022-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                            Appellee

                       v.

TROY LOWELL SCHOFFLER

                            Appellant               No. 2611 EDA 2015


              Appeal from the Judgment of Sentence July 7, 2015
                In the Court of Common Pleas of Lehigh County
              Criminal Division at No(s): CP-39-CR-0003521-2013


BEFORE: PANELLA, OLSON, JJ. and STEVENS, P.J.E.*

MEMORANDUM BY OLSON, J.:                          FILED AUGUST 29, 2016

       Appellant, Troy Lowell Schoffler, appeals from the judgment of

sentence entered on July 7, 2015, following his guilty pleas to acquisition of

a controlled substance by misrepresentation, fraud or forgery and criminal

conspiracy.1 Upon review, we affirm.

       The trial court summarized the facts and procedural history of this

case as follows:

         The charges stemmed from [A]ppellant’s creati[on] of
         fraudulent prescriptions between January 1, 2008[] and
         December 17, 2009.      He gave these [prescriptions] to
         several co-defendants who used them to illegally obtain
         Oxycontin, Xanax, Methadone and Adderall from pharmacies
         in various Pennsylvania counties. Some of the controlled
         substances obtained with the fraudulent prescriptions were
____________________________________________


1
    35 P.S. § 780-113(a)(12) and 18 Pa.C.S.A. § 903, respectively.



*Former Justice specially assigned to the Superior Court.
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       given by the co-defendants to [A]ppellant for his own use
       and the rest were kept or sold by the co-defendants.

       At [a hearing on] February 6, 2015,[] [A]ppellant and the
       Commonwealth entered a plea bargain which was accepted
       by the [trial] court. Under the plea bargain, [A]ppellant
       agreed to enter guilty pleas to [the aforementioned crimes].
       The sentences could not exceed the low end of the standard
       range of the sentencing guidelines and they had to be run
       concurrently. The Commonwealth agreed to withdraw all of
       the remaining counts in the [criminal] information. A major
       consideration in the Commonwealth’s [agreement of]
       entering this plea bargain[,] and the [trial] court’s
       acceptance of it[,] was [A]ppellant’s cooperation as a trial
       witness in the prosecution of Doctor David Daley in Lehigh
       County[.]

       On July 2, 2015, the [trial] court received a letter from
       [A]ppellant stating that he wished to withdraw his guilty
       pleas. [The trial court] treated this letter as a formal
       motion. On July 7, 2015, [the trial court] conducted a
       hearing. In support of the motion, [A]ppellant claimed he
       was innocent of the charges.         In light of [A]ppellant’s
       testimony in the Daley case and his admissions with his
       guilty pleas, [the trial court] found his claim of innocence to
       be false. [The trial court] denied [A]ppellant’s motion to
       withdraw his guilty pleas and proceeded to sentencing.
       [The trial court sentenced Appellant to three to eight years
       of imprisonment on each charge.] The sentences were
       within the mitigated range of the [sentencing] guidelines.
       [The trial court] ordered that the two sentences run
       concurrently so that [A]ppellant’s aggregate sentence was
       state confinement for not less than three years to not more
       than eight years [of incarceration].            The sentences
       conformed to the plea bargain.

       On July 15, 2015, [A]ppellant filed a post-sentence motion
       to modify his sentences which [the trial court] denied by
       order filed on July 22, 2015. In the July 22 order, [the trial
       court] also granted a motion filed by [A]ppellant’s trial




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         counsel []       to   withdraw        from   his   representation   of
         [A]ppellant.

Trial Court Opinion, 11/30/15, at 2-3.          This timely appeal resulted.2

       Appellant raises one claim for appellate review:

         1. Whether the [trial] court erred when it denied
            [Appellant’s] pre-sentence motion to withdraw his guilty
            plea?

Appellant’s Brief at 6.
____________________________________________


2
    On August 4, 2015, Appellant filed a pro se notice of appeal. Appellant
requested representation and, after a showing of indigence, the trial court
appointed the Lehigh Public Defender to represent Appellant on appeal. In
October 2015, the Lehigh Public Defender filed a petition to withdraw
because it had a conflict of interest arising from its representation of one of
Appellant’s co-defendants. On October 15, 2015, the trial court allowed the
Lehigh Public Defender to withdraw and appointed Robert E. Sletvold,
Esquire to represent Appellant. On October 19, 2015, the trial court ordered
Attorney Sletvold to file a concise statement of errors complained of on
appeal pursuant to Pa.R.A.P. 1925(b). Counsel did not file a timely Rule
1925(b) statement. Thereafter, the trial court issued an opinion pursuant to
Pa.R.A.P. 1925(a) on November 30, 2015. Initially, the trial court found
Appellant waived all issues for failing to comply with Rule 1925. The trial
court then recognized that a defense attorney's failure to comply with Rule
1925 may constitute per se ineffectiveness warranting a remand for further
proceedings. Accordingly, the trial court’s opinion went on “to state [its]
reason for denying [A]ppellant’s motion to withdraw his guilty pleas.” Trial
Court Opinion, 11/30/15, at 4. On December 9, 2015, Attorney Sletvold
filed an application for an extension of time and a corresponding Rule
1925(b) statement contending “[t]he trial court erred when it denied
[Appellant’s] pre-sentence motion to withdraw his guilty plea.” Rule 1925(b)
Statement, 12/9/15, at 1 (unpaginated).       “[I]f there has been an untimely
filing [of a Rule 1925(b) statement], this Court may decide the appeal on the
merits if the trial court had adequate opportunity to prepare an opinion
addressing the issues being raised on appeal.”        See Commonwealth v.
Burton, 973 A.2d 428, 433 (Pa. Super. 2009) (en banc), citing Pa.R.A.P.
1925(c)(3). Here, there is a Rule 1925(a) opinion addressing the merits of
the untimely Rule 1925(b) statement, thus we will decide this appeal on its
merits.



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      Appellant argues that the trial court abused its discretion in denying

his request to withdraw his guilty pleas prior to sentencing. Id. at 10-12.

He claims that although there is no absolute right to withdraw a guilty plea,

a request to do so before sentencing should be liberally allowed for any fair

and just reason.   Id. at 10.    Appellant maintains that “[h]e asserted his

innocence, he described being pressured by a previous prosecutor into

taking responsibility for charges for someone else and asking his attorney

many times to withdraw [the plea].”       Id. at 11.   Furthermore, Appellant

asserts that the Commonwealth would suffer no prejudice if the trial court

granted his request. Id.

      The standard of review that we employ in challenges to a trial court's

decision regarding a presentence motion to withdraw a guilty plea is

well-settled:

        A trial court's decision regarding whether to permit a guilty
        plea to be withdrawn should not be upset absent an abuse
        of discretion. An abuse of discretion exists when a
        defendant shows any fair and just reasons for withdrawing
        his plea absent substantial prejudice to the Commonwealth.
        In its discretion, a trial court may grant a motion for the
        withdrawal of a guilty plea at any time before the imposition
        of sentence. 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. […] The trial courts in exercising their discretion
        must recognize that before judgment, the courts should
        show solicitude for a defendant who wishes to undo a
        waiver of all constitutional rights that surround the right to
        trial—perhaps the most devastating waiver possible under
        our constitution. […O]ur Supreme Court [has] instructed
        that in determining whether to grant a presentence motion


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         for withdrawal of a guilty plea, the test to be applied by the
         trial courts is fairness and justice.

Commonwealth v. Elia, 83 A.3d 254, 261–262 (Pa. Super. 2013) (internal

quotations and citations omitted).

      Our Supreme Court has determined, however, that a mere assertion of

innocence, by itself, will not suffice to withdraw a guilty plea concluding,

         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.

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

      In this case, the trial court determined that Appellant “merely asserted

his innocence without offering any facts or arguments to support this claim.”

Trial Court Opinion, 11/30/15, at 4.        In addition, the trial court found

“Appellant’s claim of innocence was undercut when he testified during Doctor

Daley’s trial[.]”   Id.   More specifically, the trial court noted that at Dr.

Daley’s trial, over which the trial court also preceded, Appellant “under

oath[,] told the jury, [] told everybody in the courtroom, [] told [the trial

court] how [Appellant was] involved up to [his] ears in forging these

prescriptions and in this whole scheme.” N.T., 7/7/15, at 10. Thus, the trial

court ultimately determined Appellant offered no plausible reason to support




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his assertion of innocence and denied Appellant’s motion to withdraw his

guilty plea. Id. at 5.

      Upon review of the record, we agree and discern no abuse of

discretion in denying Appellant’s motion to withdraw his guilty pleas.

Appellant’s assertion of innocence was simply not plausible in light of his

culpable admissions when testifying against a co-defendant.   Under those

circumstances, Appellant failed to make a colorable demonstration that

permitting withdrawal of his plea would promote fairness and justice.

Hence, Appellant was not entitled to relief and his sole appellate issue is

without merit.

      Judgment of sentence affirmed.

  Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/29/2016




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