Opinion
J-S12010-18 No. 1304 MDA 2017
03-13-2018
COMMONWEALTH OF PENNSYLVANIA v. JOSEPH ROBERT MARKLE Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence July 31, 2017
In the Court of Common Pleas of Bradford County Criminal Division at No(s): CP-08-CR-0000134-2017 BEFORE: LAZARUS, J., KUNSELMAN, J., and FORD ELLIOTT, P.J.E. MEMORANDUM BY LAZARUS, J.:
Joseph Robert Markle appeals from the judgment of sentence, entered in the Court of Common Pleas of Bradford County, following the denial of his pre-sentence motion to withdraw his guilty plea. After review, we affirm based on the Honorable Maureen T. Beirne's opinion.
Markle's appeal stems from the denial of his pre-sentence motion to withdraw guilty plea. Here, the trial court's denial of his motion acted to finalize the judgment of sentence for purposes of appeal. Therefore, we take the appeal from the judgment of sentence, not the order denying post sentence motion. See Commonwealth v. Chamberlain , 958 A.2d 395 (Pa. Super. 1995).
On January 24, 2017, Markle was charged with possession of contraband by an inmate, possession of a controlled substance, and possession of drug paraphernalia. On June 1, 2017, Markle pleaded guilty to possession of contraband by an inmate. Markle completed an extensive written plea colloquy with counsel, an oral colloquy with the court, was advised of the elements of the offense, and the statutory maximum sentence. At his plea hearing, Markle placed facts under oath and on the record to support the plea.
18 Pa.C.S.A. § 5123(a), 35 P.S. § 780-113(a)(16), and 35 P.S. § 780-113(a)(32), respectively.
Markle pleaded guilty to possession of a contraband by an inmate "for a sentence in the bottom end of the standard range." N.T. Guilty Plea Hearing, 6/1/17, at 1. --------
On July 5, 2017, Markle filed a letter to his counsel with the Clerk of Court's Office, in which he stated his desire to withdraw his plea because he believed there was ample evidence to suppress the charges. Counsel subsequently filed a pre-sentence motion to withdraw Markle's guilty plea based on an assertion of actual innocence, and the trial court held a hearing on July 31, 2017. The trial court denied Markle's motion, finding his claim of innocence implausible. The trial court subsequently sentenced Markle to 24 to 60 months' imprisonment.
Markle filed a timely post-sentence motion, which the trial court denied on August 9, 2017. This timely appeal follows. Both Markle and the trial court have complied with Pa.R.A.P. 1925. Markle raises one issue on appeal: "Did the trial court err in denying [Markle's] pre-sentence motion to withdraw his plea of guilty when he asserted a fair and just reason to withdraw the plea and the Commonwealth would not be prejudiced by such [withdrawal]?" Brief of Appellant, at 4.
"There is no absolute right to withdraw a guilty plea. Nevertheless, prior to the imposition of sentence, a defendant should be permitted to withdraw his plea for any fair and just reason, provided there is no substantial prejudice to the Commonwealth." Commonwealth v. Walker , 26 A.3d 525, 529 (Pa. Super. 2011) (citations and quotation marks omitted); see Commonwealth v. Randolph , 718 A.2d 1242 (Pa. 1998); Commonwealth v. Katonka , 33 A.3d 44 (Pa. Super. 2011) (en banc). An assertion of innocence has consistently been held to constitute a fair and just reason to withdraw a plea. Randolph , supra; Commonwealth v. Gordy , 73 A.3d 620 (Pa. Super. 2013). However, a bare assertion of innocence is no longer a fair and just reason permitting a pre-sentence withdrawal of a guilty plea; instead, a defendant's innocence claim must be at least plausible to demonstrate, in and of itself, a fair and just reason for pre-sentence withdrawal of the plea. Pa.R.Crim.P. 591(A). See Commonwealth v. Baez , 169 A3d 35, 39 (Pa. Super. 2017).
Here, the trial court found Markle's claim of innocence incredible and implausible. See Trial Court Opinion, 10/27/17, 3-7. During the hearing, Markle asserted that he did not understand the plea agreement, was coerced, and did not realize the length of a potential sentence; the trial court found these arguments to be incongruent with his claim of innocence. The trial court also considered Markle's July 5, 2017 letter to counsel, wherein he stated he believed the trial court should have suppressed evidence/charges against him, but not that he was innocent.
Markle failed to establish a plausible, fair and just reason for withdrawal of his guilty plea. Walker , supra ; Baez , supra. Therefore, after review of the record, the parties' briefs and relevant case law, we affirm based on Judge Beirne's well-reasoned opinion. In the event of further proceedings, we direct the parties to attach a copy of Judge Beirne's opinion.
Judgment of sentence affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 3/13/2018
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