Opinion
J-A04045-17 No. 361 EDA 2016
05-30-2017
COMMONWEALTH OF PENNSYLVANIA, Appellee v. JOHNATHAN JERMAIN CORREA, Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence December 21, 2015 in the Court of Common Pleas of Monroe County
Criminal Division at No.: CP-45-CR-0001815-2014 BEFORE: SHOGAN, J., SOLANO, J., and PLATT, J. MEMORANDUM BY PLATT, J.:
Retired Senior Judge assigned to the Superior Court.
Appellant, Johnathan Jermain Correa, appeals from the judgment of sentence imposed based on his negotiated guilty plea to theft by unlawful taking and a weapons offense. Specifically, he challenges the denial of his motion to withdraw his guilty plea and the order denying reconsideration of the denial. We affirm.
In his notice of appeal, Appellant purports to appeal from the order denying his motion to withdraw guilty plea and the denial of his motion for reconsideration. ( See Notice of Appeal, 1/29/16). However, in a criminal context, an appeal properly lies from the judgment of sentence. See Commonwealth v. Dreves , 839 A.2d 1122, 1125 n.1 (Pa. Super. 2003) (en banc) (in a criminal action, appeal properly lies from the judgment of sentence made final by the denial of a post-sentence motion).
We derive the facts of this case from the trial court's Rule 1925(a) opinion, ( see Opinion Pursuant to Pa.R.A.P. 1925(a), 5/04/16), and our independent review of the certified record.
The trial court filed an earlier Rule 1925(a) opinion. ( See Trial Court Opinion, 3/04/16, 1-3). That opinion was directed principally to the failure of Appellant's counsel to file a timely Rule 1925(b) statement of errors. Counsel filed a late statement, without a separate court-directed memorandum of law. The trial court accepted it, albeit with misgivings, to avoid further delay, and incorporated its earlier Rule 1925(a) opinion into the later one. ( See Trial Ct. Op., 5/04/16, at 7).
On July 14, 2014, Appellant robbed three male victims at gunpoint, and fired a shot when they initially resisted. ( See id. at 1, 3). The victims reported the robbery by Appellant to the local security force, Pocono Country Place Security, who notified the Pocono Mountain Regional Police Department. After questioning the victims individually, and obtaining consistent responses, they arrested Appellant and charged him with robbery, possession of a firearm by person prohibited, carrying a firearm without a license, possession of a weapon, terroristic threats, theft by unlawful taking, and simple assault.
The Commonwealth's hypothesis was that the incident was a "drug deal gone bad." (N.T. Hearing, 11/10/15, at 11). Appellant does not deny a drug deal, but maintained, through counsel, and three months after his initial claim of innocence, that the victims went to another (unnamed) drug seller who robbed them, and they blamed Appellant because they were not so afraid of him. ( See N.T. Hearing, 9/15/15, at 3).
On January 28, 2015, Appellant entered a negotiated guilty plea (filed on January 29), to reduced charges of prohibited offensive weapons and theft by unlawful taking.
Pertinent to the history of this case, a few weeks later, while out on bail, Appellant was arrested on an unrelated charge of possession with intent to distribute heroin, a charge he did not contest. Appellant's counsel requested that sentencing in this case be delayed so that he could be sentenced on both sets of charges at the same time. The court granted the continuance.
At the continued sentencing hearing, on June 16, 2015, Appellant, for the first time, made an oral motion to withdraw his plea in this case. ( See Trial Ct. Op., 5/04/15, at 4). This was almost five months after the guilty plea. Counsel would later explain that Appellant, (for reasons never made clear on the record), had an expectation of a time-served sentence. When he realized from the recommendation in the pre-sentence investigation report (PSI) that he was facing a materially longer sentence, he decided to claim innocence and make an oral motion to withdraw his guilty plea.
The PSI, while mentioned, is not included in the certified record before us.
We note that the mere desire to avoid incarceration is not a fair and just reason to withdraw a guilty plea. See Commonwealth v. Holcomb , 322 A.2d 726, 727 (Pa. Super. 1974).
There followed a series of continuances, most admittedly occasioned by Appellant's numerous failures to appear. ( See Appellant's Brief, at 18) ("[I]t is freely acknowledged that the Appellant was often absent or late from proceedings[.]"). The court continued the hearing until August 25, 2015. The hearing on August 25 was continued due to defense counsel's vacation. When Appellant failed to appear, the trial court issued bench warrants and continued the hearings.
Notably, Appellant failed to appear on September 15, 2015, the date the court had set to rule on Appellant's motion to withdraw and, if it was denied, to proceed immediately with sentencing. The trial court concluded that Appellant was sentence-testing. ( See N.T. Hearing, 9/15/15, at 5). Finally, when Appellant failed to appear on December 1, 2015, the court denied his motion to withdraw his guilty plea.
The court also denied counsel's motion for reconsideration.
On December 21, 2015, the court sentenced Appellant to an aggregate term of not less than twenty nor more than forty-eight months of incarceration in a state correctional institution. On January 7, 2016, the court denied Appellant's motion to reconsider. The court also denied Appellant's included motion to certify this case for interlocutory appeal. This appeal followed.
Appellant presents two questions on appeal:
A. Did the trial court err and abuse its discretion by refusing to allow [Appellant] to withdraw his guilty plea where he expressed his innocence and the Commonwealth failed to establish prejudice from the withdraw [sic] of such plea?(Appellant's Brief, at 8) (unnecessary capitalization omitted).
B. Did the trial court err and abuse its discretion by sentencing Appellant regarding this matter where the Appellant had requested an interlocutory appeal on the issue, and where such sentence meant that [Appellant] would suffer prejudice by being incarcerated rather than at liberty while on appeal?
Appellant first argues that an express claim of innocence entitles him to withdraw his guilty plea. We disagree.
The questions raised in this appeal are matters of law; our standard of review is de novo; and our scope of review is plenary. See Commonwealth v. Carrasquillo , 115 A.3d 1284, 1291 (Pa. 2015).
Preliminarily, we recognize that "[a]t any time before the imposition of sentence, the court may, in its discretion, permit, upon motion of the defendant, or direct, sua sponte, the withdrawal of a plea of guilty or nolo contendere and the substitution of a plea of not guilty." Pa.R.Crim.P 591(A).
However, "a bare assertion of innocence is not, in and of itself, a sufficient reason to require a court to grant [a presentence motion to withdraw a guilty plea]." Carrasquillo , supra at 1285.
[T]rial 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.Id. at 1291-92 (citation omitted). Nevertheless,
The admonition of [ Commonwealth v. Forbes , 299 A.2d 268, 271 (Pa. 1973)] [and its progeny] that a presentence request to withdraw a guilty plea be "construed liberally" in favor of the accused, is not a direction to blithely ignore the obvious, or to heedlessly abandon reason")(McEwen, J., concurring); id. at 339, 564 A.2d at 208 (Kelly, J., concurring) (cautioning that treating a claim of innocence as a per se basis for withdrawal would require that "a disingenuous incantation . . . by judicial alchemy would become magic words with which to evade the legitimate requirement of 'just cause' for withdrawal").Id. at 1289-90 (quoting Commonwealth v. Cole , 564 A.2d 203 (Pa. Super. 1989)).
" See generally Thomas P. Reilly, Note, Now I'm Guilty, Now I'm Not: The Automatic Right to Pre-Sentence Guilty Plea Withdrawals in Pennsylvania Since Commonwealth v . Forbes , 59 Vill. L. Rev. 305, 320-30 & nn. 85-138 (2014) (collecting cases) (offering a comparison between Pennsylvania cases governing presentence plea withdrawal with those of other jurisdictions)." Carrasquillo , supra at 1290 n.6.
"We will disturb a trial court's decision on a request to withdraw a guilty plea only if we conclude that the trial court abused its discretion." Commonwealth v. Gordy , 73 A.3d 620, 624 (Pa. Super. 2013), appeal denied, 87 A.3d 318 (Pa. 2014).
At issue is whether a defendant provides a "fair and just reason" to withdraw his plea prior to sentencing whenever he asserts his innocence. We hold such an assertion does not divest a judge of discretion to weigh its sincerity according to the totality of circumstances known to the judge, and to deny the motion where, as here, the motion is founded not upon a sincere assertion, but upon a desire to delay sentencing in one case in order to obtain a favorable sentence in another.Commonwealth v. Tennison , 969 A.2d 572, 573 (Pa. Super. 2009), appeal denied, 982 A.2d 510 (Pa. 2009).
"On issues of credibility . . . an appellate court defers to the findings of the trial judge, who has had the opportunity to observe the proceedings and demeanor of the witnesses." Commonwealth v. Cunningham , 805 A.2d 566, 572 (Pa. Super. 2002), appeal denied, 820 A.2d 703 (Pa. 2003) (citation omitted).
Here, on independent review, we discern no basis on which to disturb the discretion of the trial court in denying Appellant's motion to withdraw. The trial court found that Appellant sought to withdraw his guilty plea, five months after he entered it, after being informed of the sentence recommendation in the PSI. The trial court determined that Appellant was sentence-testing. ( See N.T. Hearing, 9/15/15, at 5). The trial court did not find Appellant's claim of innocence to be credible. ( See Trial Ct. Op., 5/04/16, at 14-15). We defer to the creditability findings of the trial court. See Cunningham , supra at 572. Furthermore, the trial court concluded that Appellant was attempting to "game the system." (Trial Ct. Op., 5/04/16, at 15).
[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.Carrasquillo , supra at 1292 (one citation omitted).
Because we decide that the trial court properly exercised its discretion in denying the motion to withdraw Appellant's guilty plea, we need not decide Appellant's companion claim that the Commonwealth failed to establish prejudice, and we decline to do so. Appellant's first claim does not merit relief.
Appellant's second claim challenges the denial of his request for an interlocutory appeal. ( See Appellant's Brief, at 22-23). He claims he suffered prejudice by being incarcerated instead of at liberty on appeal. Appellant's clam is undeveloped and frivolous. It also lacks merit.
First, Appellant's claim is woefully undeveloped. In an abbreviated argument of less than half a page, aside from a cursory initial reference to the Rules of Criminal Procedure generally, Appellant cites no pertinent authority whatsoever.
To the extent an argument can be discerned at all, Appellant asserts procedural prejudice. ( See id.). Appellant claims he was sentenced "without counsel present." ( Id. at 22). This is misleading and disingenuous. Attorney Saurman was not present, but another lawyer from his law firm, Scott M. Amori, Esq., was.
In any event, Appellant's claim of loss of liberty is unsupported by the facts and therefore frivolous. After his uncontested guilty plea to the drug charges already mentioned, the court sentenced him to a term of not less that sixteen nor more than thirty-six months of incarceration in a state correctional institution. ( See Trial Ct. Op., 5/04/16, at 16).
Finally, Appellant's claim lacks merit. Procedurally, as noted by the trial court, ( see id. at 10), Appellant failed to petition for permission to appeal the trial court's denial of certification, as required by Pennsylvania Rule of Appellate Procedure 1311.
We decline to quash this appeal, as suggested by the trial court. We recognize that counsel filed his statement of errors late. However, when counsel has filed an untimely Rule 1925(b) statement and the trial court has addressed those issues, we need not remand and may address the merits of the issues presented. See Commonwealth v. Thompson , 39 A.3d 335, 340 (Pa. Super. 2012). --------
Judgment of sentence affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 5/30/2017