Com. v. Contreras, E.

• Court: Superior Court of Pennsylvania
• Decided: July 11, 2022
• Docket: 1144 MDA 2021
• Status: Unpublished

Opinion

J-S10027-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : ESDRI CONTRERAS : : Appellant : No. 1144 MDA 2021

Appeal from the Judgment of Sentence Entered April 9, 2021 In the Court of Common Pleas of Luzerne County Criminal Division at No(s): CP-40-CR-0001855-2019

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : ESDRI CONTRERAS : : Appellant : No. 1145 MDA 2021

Appeal from the Judgment of Sentence Entered April 9, 2021 In the Court of Common Pleas of Luzerne County Criminal Division at No(s): CP-40-CR-0002981-2019

BEFORE: MURRAY, J., McLAUGHLIN, J., and COLINS, J.*

MEMORANDUM BY McLAUGHLIN, J.: FILED: JULY 11, 2022

Esdri Contreras appeals from the judgment of sentence imposed

following his pleas of guilty to Possession of a Firearm Prohibited, Criminal

Trespass, and Simple Assault. Contreras argues the court abused its discretion

in denying one of his motions to withdraw his guilty pleas. We affirm.

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* Retired Senior Judge assigned to the Superior Court. J-S10027-22

At a hearing on February 10, 2020, Contreras pleaded guilty to offenses

arising during two distinct incidents prosecuted on two separate dockets. The

Commonwealth stated the terms of the plea agreements in open court, which

were as follows. See N.T., 2/10/20, at 2-3. On the first docket, Contreras

would plead guilty to Possession of a Firearm Prohibited1 (“the firearms

charge”). Id. In exchange, the Commonwealth would drop the remaining

charges on that docket.2 Id. In conjunction, the Commonwealth would amend

the second docket by downgrading the charges for Burglary and Aggravated

Assault3 to Criminal Trespass and Simple Assault4 (“the trespass/assault

charges”), to which Contreras would also plead guilty Id. at 3. The

Commonwealth additionally agreed to recommend concurrent sentences. Id.

The court conducted a colloquy during which Contreras agreed he “did

commit these offenses.” Id. at 5. Contreras also acknowledged that he signed

a written plea agreement for each docket. Id. at 4. Each listed the charges to

which he was pleading guilty, and the maximum penalties. On the agreement

for the trespass/assault charges, the original charges and gradings were

1 18 Pa.C.S.A. §§ 6105(a)(1)

2The Commonwealth had also charged Contreras on that docket with Firearms Not to be Carried Without a License, Duties at Stop Sign, and Driving While Operating Privilege Suspended or Revoked. 18 Pa.C.S.A. §§ 6106(a)(1), 3323(b), and 1543(a).

3 18 Pa.C.S.A. §§ 3502(a)(1)(i) and 2702(a)(3).

4 18 Pa.C.S.A. §§ 3503(a)(1)(ii) and 2701(a)(1).

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crossed out, and the new charges and gradings written next to them. See Plea

Agreement, filed 2/10/20, at 1.

The Commonwealth stated the factual basis for the firearms charge as

follows:

Your Honor, on May 16, 2019, the Defendant was stopped operating a vehicle by Officer Christopher [Conarty]. Officer [Conarty] observed a handgun in plain view on the driver’s side foot rest in the vehicle. These charges followed.

N.T., 2/10/20, at 7. Contreras agreed to plead guilty to those facts, and the

underlying facts supporting the trespass/assault charges, the specifics of

which are irrelevant to this appeal. Id. The court found Contreras was entering

the pleas knowingly and intelligently. Id. at 8.

The court scheduled sentencing for April 2020 but continued it to July

2020. Contreras failed to appear for his July sentencing hearing, and the court

revoked his bail. Contreras was apprehended in January 2021 and

incarcerated pending his sentencing. The court rescheduled sentencing for

March 2021 and continued it to April 2021.

A month prior to the sentencing hearing, Contreras filed motions to

withdraw his guilty pleas under each docket number. The court held a hearing

on the motions, at which Contreras told the court he wanted to withdraw his

plea to the firearms charge because he had believed he “pleaded to a deal

that would withdraw every other charge. . . . [T]he gun charge was going to

withdraw all the other charges.” N.T., 4/9/21, at 4-5. Defense counsel also

argued that Contreras had a reasonable defense to the firearms charge:

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If you look at the discovery, Your Honor, the gun has no owner. There are no prints on it. Certainly not his. There were three other people in the car. That was not put in the criminal complaint, but when I interviewed him in May, I found that there were three other people who took off.

I don’t think it’s unreasonable to say that somebody might have just thrown it and he took one for the team. So I think he does have a reasonable defense and if allowed to proceed, I think I can make something of it and get a detective on there and find those other three people.

I don’t think the Commonwealth is prejudice[d] in any way, shape or form. We have discovery. We can go to trial.

Id. at 5-6.

The court denied the motions. It found Contreras “knew exactly what

[he was] doing at the time of the guilty plea” and stated, “It’s clear that he

knew what he was doing and he wants to withdraw [on] the day of his

sentencing.” Id. at 4, 6.5 The court sentenced Contreras to an aggregate

sentence of 60 to 120 months’ incarceration, with the sentence for each of the

three convictions running concurrently. Contreras filed post-sentence

motions, which the court denied.

5 The court also stated the following.

I went through a lengthy colloquy with you where I questioned you about both cases. I have the transcript. You knew exactly what you were pleading to. You accepted the plea agreement you answered all of my questions. You knew exactly what you were pleading to on both cases. In the colloquy, I have it on record that you answered it. You knew exactly you were pleading to the gun charge.

N.T., 4/9/21, at 3-4.

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Contreras appealed and asks us to decide the following: “Did the trial

court err and/or abuse its discretion in refusing to grant [Contreras’s] pre-

sentence request to withdraw his plea?” Contreras’s Br. at 2.

Although Contreras filed a motion to withdraw his guilty pleas on both

dockets, and filed a notice of appeal on both dockets, he restricts his argument

to the withdrawal of his guilty plea on the firearms charge.6 He first argues

that he should be permitted to withdraw his plea because the Commonwealth

“did not proffer a record of a strong case against” him. Id. at 19. He points

out that this is a constructive possession case, and there was no fingerprint

or DNA evidence or other proof he owned the firearm, and he made no

inculpatory statements to the police. And, although he acknowledges it is not

included in the Commonwealth’s discovery, he asserts there had been three

passengers with him when he was pulled over, who could have planted the

firearm on him. Contreras posits his challenge to the strength of the

Commonwealth’s evidence amounts to a plausible claim of innocence.

Second, Contreras argues, without elaboration, that he should be

permitted to withdraw his plea on the firearms charge because he believed

the Commonwealth was going to drop the trespass/assault charges as a result.

6 He adds in a footnote that if we grant relief on the firearms charge, we would likely have to grant similar relief on the trespass/assault charges, as the plea agreements and sentences are interconnected. See Contreras’s Br. at 19. We therefore will not quash the appeal from the judgment of sentence on the trespass/assault charges.

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Finally, Contreras argues the length of time between his guilty plea and

the filing of his withdrawal motion should not be held against him, as trial

court proceedings were not held on a regular basis “during the majority of

2020,” due to the coronavirus pandemic protocols, and he filed the motion a

full month before his sentencing hearing. Id. at 16. He also argues the

Commonwealth would not be prejudiced by a plea withdrawal, “since their

witness, a law enforcement officer, was not claimed to have disappeared or

become unavailable.” Id. at 17. Contreras asserts that the law provides that

plea withdrawals should be liberally allowed and distinguishes the facts of his

case from those of Commonwealth v. Carrasquillo, 115 A.3d 1284 (Pa.

2015) and Commonwealth v. Norton, 201 A.3d 112 (Pa. 2019), in which

the Supreme Court sanctioned the trial court’s denial of the defendant’s

motion to withdraw a pre-sentence guilty plea.7

The decision to allow a defendant to withdraw a pre-sentence guilty plea

is left to the discretion of the trial court, and the appellant bears the heavy

burden on appeal to establish an abuse of that discretion. Norton, 201 A.3d

at 116, 120.8 “An abuse of discretion will not be found based on a mere error

of judgment, but rather exists where the [trial] court has reached a conclusion

7 The Commonwealth has not filed a brief.

8 See also Pa.R.Crim.P. 591(A) (“At 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”) (emphasis added).

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which overrides or misapplies the law, or where the judgment exercised is

manifestly unreasonable, or the result of partiality, prejudice, bias or ill-will.”

Id. at 120 (quoting Commonwealth v. Eichinger, 915 A.2d 1122, 1140 (Pa.

2007)).

A trial court should exercise its discretion on a request for a pre-

sentence plea withdrawal “liberally in favor of the accused,” and grant the

request if the defendant demonstrates a “fair-and-just reason . . . unless

withdrawal would work substantial prejudice to the Commonwealth.” Id.

(quoting Carrasquillo, 115 A.3d at 1291-92). However, when a defendant

requests to withdraw his guilty plea because he is innocent, his claim “must

be at least plausible to demonstrate, in and of itself, a fair and just reason for

presentence withdrawal of a plea.” Norton, 201 A.3d at 120 (quoting

Carrasquillo, 115 A.3d at 1292). Trial courts are charged with “assess[ing]

the credibility of claims of innocence and measur[ing], under the

circumstances, whether defendants have made sincere and colorable claims

that permitting withdrawal of their pleas would promote fairness and justice.”

Id. at 121.

When considering the plausibility of the defendant’s claim of innocence,

the court may consider the timing of the defendant’s request and his previous

knowledge of his available defenses. Id. at 121-22; see also

Commonwealth v. Davis, 191 A.3d 883, 890-91 (Pa.Super. 2018) (finding

defendant’s assertion of innocence not plausible where defendant did not

assert innocence until two years after he had entered his guilty plea). While

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the strength of the government’s evidence is another relevant consideration,

see Commonwealth v. Islas, 156 A.3d 1185, 1190 (Pa.Super. 2017), a

defendant’s desire to test the Commonwealth’s evidence does not bolster a

claim of innocence, particularly where the defendant was aware of the

evidence prior to entering his plea. Norton, 201 A.3d at 121-22; see also id.

at 122 n.7 (stating trial court should not grant pre-sentence plea withdraw

motion based on defendant’s “desire to pursue a standard defense strategy

seeking to discredit the Commonwealth’s evidence”).

Erroneous advice from counsel which renders a guilty plea unknowing,

involuntary, or unintelligent may also constitute a fair and just reason for

withdrawing the plea. See Commonwealth v. Elia, 83 A.3d 254, 264

(Pa.Super. 2013); Commonwealth v. Pardo, 35 A.3d 1222, 1230 (Pa.Super.

2011). However, a defendant’s claim that he did not understand the terms of

the plea agreement or the consequences of the plea can be belied by the

defendant’s statements under oath or in a written guilty plea colloquy. See

Commonwealth v. Culsoir, 209 A.3d 433, 438-39 (Pa.Super. 2019);

Commonwealth v. Davis, 191 A.3d 883, 889 (Pa.Super. 2018).

Here, the court observed that Contreras had been colloquied and had

entered his guilty pleas in accordance with Rule of Criminal Procedure 590.

The court also stated that the Commonwealth had proffered a sufficient factual

basis to establish Contreras’s guilt, Contreras was advised of the maximum

possible sentences, and he had signed written plea agreements. Trial Court

Opinion, filed October 13, 2021, at 3 (unpaginated). The court found that

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Contreras “was aware of and understood the terms and conditions of both plea

agreements” and that his pleas “were knowingly, voluntarily and intelligently

entered.” Id. The court further observed that Contreras filed his motions to

withdraw his guilty pleas more than a year after he entered them. Id. The

court also found that while Contreras’s written motion on the firearms charge

challenged the Commonwealth’s evidence, it did not make overt allegations of

his innocence. Id. The court concluded Contreras “made no colorable

demonstration, under the circumstances, that permitting withdrawal of his

guilty pleas would promote fairness and justice,” and his motions “were

nothing more than an attempt to delay the imposition of justice.” Id. at 4.

The court did not abuse its discretion in denying the motion. Although

the Commonwealth made no proffer of evidence against Contreras aside from

the testimony of the arresting officer, Contreras’s proposed defense against

the Commonwealth’s constructive possession case was tenuous. The officer

found the firearm in the driver’s side footrest of the vehicle that Contreras was

driving, and Contreras presented no testimony or other evidence at the

hearing on the motion to support his assertion that there had been passengers

in the car at the time of his arrest. His mere desire to challenge the

Commonwealth’s evidence is insufficient to support a plausible claim of

innocence. Norton, 201 A.3d at 121-22.

While the strength of the Commonwealth’s case goes to the plausibility

of Contreras’s claim of innocence, so does the timing of his withdrawal

request. Id. Although Contreras claims he delayed in moving to withdraw his

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guilty plea because the court was backlogged in 2020 due to pandemic

restrictions, he does not explain how infrequent court hearings during that

time prevented him from filing the motion. Moreover, he did not make this

argument to the court below. See Pa.R.A.P. 302(a) (matters not raised before

the trial court are waived). Furthermore, this excuse ignores the fact that

Contreras absconded during the latter half of 2020 and did not file his motion

until he was incarcerated and awaiting his rescheduled sentencing hearing.

The timing of the motion supports the court’s conclusion that it was “an

attempt to delay the imposition of justice.” Trial Ct. Op. at 4.

Finally, the court did not find credible Contreras’s allegation that he

believed pleading guilty on the firearms charge would result in a dismissal of

the trespass/assault charges. The court’s conclusion is supported by the

record, including by Contreras’s on-the-record agreement to the factual basis

for the trespass/assault charges, his entry of a plea of guilty to those charges,

and his signing of the written colloquy listing those charges. Culsoir, 209 A.3d

at 438-39; Davis, 191 A.3d at 889. Contreras did not carry his heavy burden

to show the court abused its discretion in finding that he “made no colorable

demonstration, under the circumstances, that permitting withdrawal of his

guilty pleas would promote fairness and justice.” Trial Ct. Op. at 4.

Judgment of sentence affirmed.

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 07/11/2022

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