Com. v. Pete, A.

Superior Court of Pennsylvania

Com. v. Pete, A.

DecidedOctober 4, 2017

Docket1223 WDA 2016

StatusUnpublished

This text of Com. v. Pete, A. (Com. v. Pete, A.) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Com. v. Pete, A., (Pa. Ct. App. 2017).

Pincite

Opinion

J-S28020-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

ANTHONY JIMEE PETE

Appellant No. 1223 WDA 2016

Appeal from the Judgment of Sentence March 16, 2015 In the Court of Common Pleas of Butler County Criminal Division at No(s): CP-10-CR-0001994-2013

BEFORE: OLSON, J., MOULTON, J., and STRASSBURGER, J.*

MEMORANDUM BY MOULTON, J.: FILED OCTOBER 04, 2017

Anthony Jimee Pete appeals from the March 16, 2015 judgment of

sentence entered in the Butler County Court of Common Pleas following his

guilty plea for statutory sexual assault, 18 Pa.C.S. § 3122.1(b). We affirm.

The trial court set forth the history of this case:

[O]n September 17, 2014, [Pete] entered a guilty plea to statutory sexual assault. On January 21, 2015, the time set for sentencing, [Pete] informed the Court that he wished to withdraw his guilty plea. A hearing was scheduled on March 16, 2015, during which [Pete]’s testimony and argument by the parties w[ere] presented to the Court. The Court denied the motion to withdraw guilty plea and proceeded to sentence [Pete] on that date.[1] On March 15, 2016, [Pete] filed a pro se Motion for Post Conviction Collateral Relief. On March [22], 2016, ____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1 The court sentenced Pete to 42 to 144 months’ incarceration. J-S28020-17

the Court appointed PCRA counsel. On July 20, 2016, PCRA counsel filed an Amended Petition for Post-Conviction Relief requesting that [Pete]’s right to file a direct appeal from his judgment of sentence be reinstated nunc pro tunc. The Commonwealth consented to the reinstatement of [Pete]’s direct appellate rights. On July 22, 2016, the Court granted the relief and [Pete]’s right to file a direct appeal from his judgment of sentence was reinstated nunc pro tunc. On August 16, 2016, [Pete] filed [his] Notice of Appeal Nunc Pro Tunc.

1925(a) Opinion, 10/20/16, at 1.

Pete raises the following issue on appeal: “Whether the trial court

erred in denying [his] pre-sentence Motion to Withdraw Guilty Plea[.]”

Pete’s Br. at 5. Pete’s argument, however, is two-fold. First, Pete claims

that the trial court should have allowed him to withdraw his guilty plea

because he presented a fair and just reason for doing so. Second, Pete

claims that his guilty plea was not knowing, voluntary, and intelligent.2

I. Pre-Sentence Motion to Withdraw

“We review a trial court’s ruling on a pre-sentence motion to withdraw

a guilty plea for an abuse of discretion.” Commonwealth v. Islas, 156

A.3d 1185, 1187 (Pa.Super. 2017).

Pennsylvania Rule of Criminal Procedure 591(A) states 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 ____________________________________________

2 Pete argues that there was a fair and just reason to withdraw his guilty plea because it was not knowingly, voluntarily and intelligently entered. However, any argument that he did not knowingly, voluntarily, and intelligently enter a plea attacks the validity of the plea itself.

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of a plea of guilty or nolo contendere and the substitution of a plea of not

guilty.” Pa.R.Crim.P. 591(A). The Pennsylvania Supreme Court has

explained that while “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.” Commonwealth v. Forbes,

299 A.2d 268, 271 (Pa. 1973) (emphasis in original). Further, “[i]f the trial

court finds ‘any fair and just reason[,’] withdrawal of the plea before

sentence should be freely permitted, unless the prosecution has been

‘substantially prejudiced.’” Id.

To determine whether a defendant has presented a “fair and just

reason,” we must employ the standards set forth by our Supreme Court in

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

by this Court in Islas:

First, the Court [in Carrasquillo] squarely rejected a per se approach in which any presentence motion to withdraw a guilty plea based on a claim of innocence must be granted. Second, nothing in Carrasquillo suggests that the Court intended the pendulum to swing fully in the other direction — from automatic grants to automatic denials of pre-sentence motions to withdraw. Indeed, the Court expressly reaffirmed the liberal-allowance language in Forbes, which continues to stand in sharp contrast to the “manifest injustice” standard for post-sentence motions to withdraw. Third, the Court directed trial courts to distinguish between “mere, bare, or non-colorable” assertions of innocence on the one hand and those that are “at least plausible” on the other. Fourth, as trial courts undertake the task of making that distinction, both the timing and the nature of the innocence claim, along with the relationship of that claim to the strength of the government’s evidence, are relevant. In addition, in his

-3- J-S28020-17

concurring opinion in Carrasquillo, then-Justice Stevens added that trial courts assessing the credibility of an accused’s assertion of innocence should also consider any “ulterior or illicit motive” for the motion to withdraw. Carrasquillo, 115 A.3d at 1293 (Stevens, J., concurring); accord Commonwealh v. Tennison, 969 A.2d 572, 573 (Pa.Super. 2009).

Islas, 156 A.3d at 1190-91 (internal footnote omitted).

Pete first contends that the trial court should have allowed him to

withdraw his plea because he asserted his innocence at the hearing on his

motion to withdraw. During the hearing, Pete stated that he was innocent,

that he did not understand the implications of Megan’s Law,3 and that he

had felt it would be better to take the plea at the time. N.T., 3/16/15, at 5. 4

During the hearing on his motion to withdraw, Pete stated:

____________________________________________

3Pete does not argue in his brief that he did not understand the implication of Megan’s Law; thus, he has abandoned this claim on appeal.

4Additionally, in his brief, Pete raises an additional claim that he had a defense of mistake of age. Pete argues that during the hearing “there was no discernible exploration into how [Pete] could be innocent of the crimes with which he was charged . . . . There was no questioning as to whether [Pete] had a viable defense to the charge.” Pete’s Br. at 18.

We note that Pete did not raise this claim at the hearing on the motion to withdraw. To the extent Pete is claiming that plea counsel was ineffective in not questioning him regarding possible defenses, we note that claims of ineffectiveness of counsel cannot be raised on direct appeal absent exceptional circumstances not present in this case. See Commonwealth v. Holmes, 79 A.3d 562, 576 (Pa. 2013) (holding that absent exceptional circumstances, “claims of ineffective assistance of counsel are to be deferred to PCRA review; trial courts should not entertain claims of ineffectiveness upon post-verdict motions; and such claims should not be reviewed upon direct appeal”).

-4- J-S28020-17

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