Opinion
No. 524 EDA 2006.
Filed: April 4, 2007.
Appeal from the Judgment of Sentence entered January 5, 2006, in the Court of Common Pleas of Pike County, Criminal Division at No. 37-Criminal-2005.
¶ 1 This is a direct appeal from a judgment of sentence. Appellant challenges the trial court's order denying his pre-sentence motion to withdraw his guilty plea. We vacate Appellant's judgment of sentence, reverse the trial court's order denying Appellant's motion to withdraw his guilty plea, and remand the case to the trial court for further proceedings.
¶ 2 The factual and procedural histories underlying this matter can be summarized as follows. Appellant was charged with one count each of burglary, criminal trespass, criminal mischief, and drivers required to be licensed. On July 18, 2005, following the selection of a jury to hear his case, Appellant entered a guilty plea to the charges of burglary and drivers required to be licensed. The trial court accepted Appellant's guilty plea following an oral and written guilty plea colloquy. The written colloquy included a provision that Appellant " MAY NOT withdraw [his] plea of guilty, unless the sentencing [c]ourt does not accept [the] plea agreement." Guilty Plea Colloquy, 7/18/05, at 1 (emphasis in original).
¶ 3 Prior to sentencing, Appellant filed a pro se motion to withdraw his guilty plea. In his motion and at a hearing regarding this motion, Appellant maintained that he was innocent of the burglary charge to which he pled guilty. In an opinion and order entered on November 4, 2005, the trial court denied Appellant's motion to withdraw his guilty plea. The court primarily grounded its decision on an unpublished, non-precedential memorandum opinion of this Court. According to the trial court, Appellant was bound by the provision in his written guilty plea colloquy which stated that he may not withdraw his plea of guilt unless the court did not accept the plea agreement.
¶ 4 Thereafter, the court levied fines against Appellant and sentenced him to a term of incarceration of not less than five nor more than fifteen years. Appellant then filed a motion to modify his sentence, which the trial court denied. Appellant timely filed a notice of appeal and complied with the trial court's order directing him to file a concise statement of matters complained of on appeal. In his brief to this Court, Appellant asks "[w]hether the lower court abused its discretion in denying Appellants [sic] Petition to Withdraw Guilty Plea prior to sentencing?" Appellant's Brief at 5.
¶ 5 Consistent with the law that governs a pre-sentence motion to withdraw a guilty plea, Appellant argues to this Court that he should have been allowed to withdraw his guilty plea because he asserted his innocence as to the crime of burglary and because allowing him to withdraw his guilty plea will not prejudice the Commonwealth. In response, the Commonwealth contends that because the trial court accepted Appellant's guilty plea, he was bound by the provision in his written guilty plea colloquy which stated that he may not withdraw his guilty plea. The Commonwealth finds support for this argument in Commonwealth v. Porreca, 595 A.2d 23 (Pa. 1991). ¶ 6 We begin by disapproving of the trial court grounding its denial of Appellant's motion to withdraw his guilty plea upon an unpublished memorandum opinion of this Court. It is well established that "[a]n unpublished memorandum decision shall not be relied upon or cited by a Court or a party in any other action or proceeding. . . ." Schaaf v. Kaufman et al., 850 A.2d 655, 662 (Pa.Super. 2004) (quoting and discussing this Court's Internal Operating Procedure § 67.37(A)). ¶ 7 We also find the Commonwealth's reliance on Porreca to be misplaced. Porreca addressed a provision in a plea agreement which bears some similarities to the provision in Appellant's agreement which states that he may not withdraw his guilty plea. However, the decision reached in Porreca is of no import here because Porreca dealt with the denial of a defendant's post-sentence motion to withdraw a guilty plea, rather than the denial of a pre-sentence motion to withdraw a guilty plea, which is the subject of this appeal. This distinction is crucial given that a pre-sentence motion to withdraw a guilty plea should be liberally allowed, whereas a post-sentence motion to withdraw a guilty plea is subject to a higher scrutiny which requires a showing of a "manifest injustice." See Commonwealth v. Flick, 802 A.2d 620, 623 (Pa.Super. 2002) (distinguishing the law as it applies to a pre-sentence motion to withdraw a guilty plea versus a post-sentence motion to withdraw a guilty plea).
¶ 8 Contrary to the trial court, we find that, for purposes of determining whether a defendant is entitled to withdraw a guilty plea prior to sentencing, the defendant is no more bound by a provision in the plea agreement which waives the defendant's right to withdraw the guilty plea then the defendant is bound by the provisions in the plea agreement that waive other rights. In all plea agreements, defendants relinquish certain rights, all of which are recoverable if the plea is withdrawn. Thus, when a defendant desires to withdraw a guilty plea prior to sentencing, the only questions to be answered are whether any fair and just reason supports the withdrawal of the plea and whether the Commonwealth will be substantially prejudiced if the defendant is allowed to withdraw the plea. See Commonwealth v. Clinger, 833 A.2d 792, 794 (Pa.Super. 2003) (explaining the test for determining the merits of a pre-sentence motion to withdraw a guilty plea). We note that a defendant's pre-sentence assertion of innocence has been held to constitute a fair and just reason to permit a defendant to withdraw a guilty plea. See, e.g., Commonwealth v. Randolph, 718 A.2d 1242 (Pa. 1998). Applying this law to this matter, we find that the trial court erred in denying Appellant's pre-sentence motion to withdraw his guilty plea. ¶ 9 Appellant asserted in his motion to withdraw his guilty plea and maintained in the hearing on this motion that he is innocent of the crime of burglary. He, therefore, invoked a fair and just reason in support of his motion to withdraw his guilty plea. The only question that remains is whether allowing Appellant to withdraw his guilty plea will cause the Commonwealth substantial prejudice.
"When we examine a ruling of the trial court on a motion to withdraw a guilty plea, we review both the exercise of discretion, as well the application of the law." Clinger, 833 A.2d at 794.
¶ 10 In his pro se motion to withdraw his guilty plea, Appellant submitted, inter alia, that the Commonwealth would suffer no prejudice if he would be permitted to withdraw his guilty plea. See Appellant's Motion to Withdraw Guilty Plea, 9/22/05, at ¶ 9. The transcript of the hearing on the motion reveals that the Commonwealth never countered Appellant's position that it would suffer no prejudice if Appellant were to be allowed to withdraw his guilty plea. Rather, when the Commonwealth was asked at the hearing what its position was concerning Appellant's motion, the Commonwealth argued that Appellant should not be allowed to withdraw his guilty plea because his plea colloquy was adequate and because Appellant's underlying reason for seeking to withdraw his plea was that he did not like the possible sentence he might have to face. N.T., 10/17/05, at 15-16. In fact, the Commonwealth has never claimed substantial prejudice, even in its appellate brief.
¶ 11 Thus, we find that "the Commonwealth failed to demonstrate, much less assert, that it would suffer substantial prejudice." Commonwealth v. Goodenow, 741 A.2d 783, 787 (Pa.Super. 1999). As such, the trial erred in denying Appellant's pre-sentence motion to withdraw his guilty plea. See id. at 788. Consequently, we vacate Appellant's judgment of sentence, reverse the trial court's order denying Appellant's motion to withdraw his guilty plea, and remand this matter to the trial court in order for that court to conduct further proceedings.
¶ 12 Judgment of sentence vacated. Order denying motion to withdraw guilty plea reversed. Case remanded. Jurisdiction relinquished.