Com. v. Waldron, E.

• Court: Superior Court of Pennsylvania
• Decided: November 10, 2020
• Docket: 328 EDA 2020
• Status: Unpublished

Opinion

J-A21025-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : ERIC WALDRON : : Appellant : No. 328 EDA 2020

Appeal from the Order Dated December 6, 2019 In the Court of Common Pleas of Monroe County Criminal Division at No(s): CP-45-CR-0001861-2018

BEFORE: LAZARUS, J., DUBOW, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY DUBOW, J.: FILED NOVEMBER 10, 2020

Appellant, Eric Waldron, appeals from the December 6, 2019 Judgment

of Sentence1 imposed in the Monroe County Court of Common Pleas after he

entered an open guilty plea to various drug and weapon charges. Upon

review, we affirm.

From approximately November 2016 to February 2018, Appellant and

his co-conspirators distributed heroin and methamphetamine throughout

Monroe County. On June 26, 2018, after gathering extensive evidence against

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1Appellant purports to appeal from the Order of December 17, 2019, which denied his Post-Sentence Motion. Appeal properly lies from his Judgment of Sentence entered December 6, 2019. Commonwealth v. Dreves, 839 A.2d 1122, 1125 n.1 (Pa. Super. 2003) (en banc). We have corrected the caption accordingly. J-A21025-20

Appellant, the Pennsylvania Office of the Attorney General filed a criminal

complaint charging him with thirteen offenses arising from his involvement in

this drug trafficking enterprise.

On September 2, 2018, Appellant posted bail on the Monroe County

charges, but he remained in the custody of the Lehigh County Correctional

Facility (“LCCF”) due to a pending detainer relating to a probation violation in

Lehigh County.

On March, 20, 2019, after a thorough oral colloquy in which Appellant

agreed to counsel’s recitation of the facts underlying the charges, Appellant

entered an open guilty plea to five of the thirteen charged crimes: one count

each of Corrupt Organizations, Dealing in Proceeds of Unlawful Activities,

Criminal Use of a Communication Facility, Sale or Transfer of Firearm, and two

counts of Possession with Intent to Deliver a Controlled Substance (“PWID”).2

After accepting Appellant’s guilty plea, the trial court ordered a pre-sentence

investigation report and scheduled a sentencing hearing, which the trial court

continued several times.

Over five months later, while still in detention, Appellant filed a Motion

to Withdraw Guilty Plea averring that the plea was not knowing, intelligent,

and voluntary, and asserting that he was “factually/actually innocent” of the

charges. Motion to Withdraw, filed 8/26/19, at ¶4, 5. At the same time,

218 Pa.C.S. §§ 911(b)(4), 5111(a)(1), 7512, 6111(c); and 35 Pa.C.S. § 780- 113(a)(30), respectively.

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Appellant’s counsel filed a Motion to Withdraw as Counsel. The court

scheduled a hearing on the Motions for September 26, 2019.

On September 6, 2019, Appellant’s counsel sent a letter to Appellant at

the LCCF notifying him of the hearing date. On or around September 9, 2019,

Lehigh County lifted Appellant’s detainer and released Appellant from the LCCF

prior to the scheduled Motions hearing.3

At the September 26, 2019 Motions hearing, Appellant failed to appear.

Appellant’s counsel informed the court that mail typically took one day to

arrive from his office to the LCCF and that Appellant had not contacted counsel

after his release from the LCCF.

The trial court found that Appellant had notice of the Motions hearing

and issued a bench warrant for Appellant. Appellant’s counsel did not object,

and did not present evidence or argument on Appellant’s Motion to Withdraw

Guilty Plea.

On November 6, 2019, law enforcement authorities brought Appellant

before the trial court on the bench warrant. During a brief hearing, the court

revoked Appellant’s bail, dissolved the bench warrant, and remanded

Appellant to the custody of Monroe County to await sentencing.

3 We note that Appellant’s counsel informed the court that he contacted Lehigh County and learned that Appellant was released from incarceration on September 9, 2019. N.T. Hearing, 9/26/19, at 3. However, at his sentencing hearing, Appellant informed the court that Lehigh County did not release him from incarceration until September 15, 2019. N.T. Sentencing, 12/6/19, at 3, 11. This discrepancy does not affect our disposition.

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On December 6, 2019, Appellant appeared before the court for

sentencing. At the beginning of the hearing, Appellant renewed his request

to withdraw his guilty plea. The trial court denied Appellant’s Motion based

on Appellant’s failure to appear at the scheduled hearing, and sentenced

Appellant to an aggregate term of 60 to 120 months’ incarceration. Appellant

filed a Post-Sentence Motion requesting reconsideration of his Motion to

Withdraw Guilty Plea. On December 17, 2019, the court denied the Post-

Sentence Motion, granted counsel’s Motion to Withdraw, and appointed new

counsel to represent Appellant.

Appellant timely appealed. Both Appellant and the trial court complied

with Pa.R.A.P. 1925.

Appellant raises a sole issue for our review:

Whether the trial court erred in denying Appellant’s pre-sentence request to withdraw his guilty plea?

Appellant’s Br. at 4.

Appellant avers that the trial court abused its discretion when it denied

his pre-sentence Motion to Withdraw Guilty Plea. Appellant’s Br. at 4. He

argues that the trial court erred in denying his Motion because his assertion

that he did not enter a knowing, intelligent, and voluntary plea, as well as his

claim of innocence, provided fair and just reason for permitting him to

withdraw his plea. Id. at 28. Appellant also contends that the trial court

erred when it did not give him an opportunity to present testimony on his

Motion because, even though Appellant failed to attend the Motions hearing,

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“it is not clear from the record that Appellant was notified of the hearing.” Id.

at 28-29. For the following reason, we conclude the trial court did not err or

abuse its discretion in denying Appellant’s Motion.

This Court reviews the denial of a request to withdraw a guilty plea for

an abuse of discretion. Commonwealth v. Davis, 191 A.3d 883, 889 (Pa.

Super. 2018). An abuse of discretion is more than an error in judgment; this

Court will not find an abuse of discretion unless the trial court’s judgment was

manifestly unreasonable, or was the result of partiality, bias, or ill will.

Commonwealth v. Gordy, 73 A.3d 620, 624 (Pa. Super. 2013).

There is no absolute right to withdraw a guilty plea. Commonwealth

v. Carrasquillo, 115 A.3d 1284, 1291 (Pa. 2015). “Pennsylvania law

presumes a defendant who entered a guilty plea was aware of what he was

doing, and the defendant bears the burden of proving otherwise.”

Commonwealth v. Hart, 174 A.3d 660, 665 (Pa. Super. 2017) (citation

omitted). The trial court has the discretion to determine whether to grant a

pre-sentence withdrawal request. Carrasquillo, supra at 1291-92. See

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.”).

The Pennsylvania Supreme Court has directed that courts should

administer such discretion liberally, and grant withdrawal of a guilty plea

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where: (1) the accused has made some “colorable demonstration” that

permitting withdrawal of the plea would promote fairness and justice; and (2)

the Commonwealth will not be substantially prejudiced in bringing the case to

trial. Carrasquillo, supra at 1292. The determination of whether the plea

withdrawal would permit fairness and justice is based on the totality of the

circumstances known to the trial court. Commonwealth v. Tennison, 969

A.2d 572, 573 (Pa. Super. 2009). It is well settled that “a bare assertion of

innocence is not, in and of itself, a sufficient reason to require a court to grant

such a request.” Carrasquillo, supra at 1285.

Importantly, appellate courts must “honor trial courts’ discretion in

these matters, as trial courts are in the unique position to assess the credibility

of claims of innocence and measure, under the circumstances, whether

defendants have made sincere and colorable claims that permitting withdrawal

of their pleas would promote fairness and justice.” Commonwealth v.

Norton, 201 A.3d 112, 121 (Pa. 2019).

Instantly, it was Appellant’s burden to present evidence in order to make

a colorable demonstration that withdrawal of his plea would promote fairness

and justice. He has failed to do so. The trial court granted Appellant a hearing

on his Motion, and Appellant failed to appear and failed to present any

evidence on the Motion. Thus, it was not an abuse of discretion for the trial

court to deny Appellant’s pre-sentence Motion to Withdraw Guilty Plea.

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Moreover, Appellant has waived any argument that he did not receive

proper notice of the scheduled Motions hearing. During the September 26,

2019 Motions hearing, the trial court made a finding that Appellant received

proper notice and counsel failed to object. Accordingly, this argument has not

been preserved for our review. See Pa.R.A.P. 302 (“Issues not raised in the

lower court are waived and cannot be raised for the first time on appeal.”)

In conclusion, the trial court did not abuse its discretion when it denied

Appellant’s pre-sentence Motion to Withdraw Guilty Plea where Appellant

failed to appear at the scheduled hearing, and failed to present any evidence

to demonstrate a fair and just reason for withdrawing his plea.

Judgment of Sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 11/10/2020

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