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COMMONWEALTH PENNSYLVANIA v. CHARLES CARR (06/28/88)

filed: June 28, 1988.

COMMONWEALTH OF PENNSYLVANIA
v.
CHARLES CARR, APPELLANT (TWO CASES)



Appeal from the Judgment of Sentence entered March 11, 1987 in the Court of Common Pleas of Philadelphia County, Criminal Division, Nos. 385 and 390 May Term 1986. Appeal from the Order entered April 28, 1987 in the Court of Common Pleas of Philadelphia County, Criminal Division, Nos. 385 and 390 May Term 1986.

COUNSEL

Samuel C. Stretton, West Chester, for appellant.

Deborah Fleisher, Assistant District Attorney, Philadelphia, for Com., appellee.

Beck, Kelly and Johnson, JJ.

Author: Kelly

[ 375 Pa. Super. Page 170]

Appellant, Charles Carr, appeals from judgment of sentence entered following acceptance of a nolo contendere plea to charges of corruption of the morals of a minor and

[ 375 Pa. Super. Page 171]

    involuntary deviate sexual intercourse relating to the sodomization of appellant's five year old grandson. Appellant contends that the trial court erred in failing to grant his motion to withdraw his plea. Appellant also seeks review of the discretionary aspects of sentence.

I.

Upon review of the record, the briefs of the parties and the opinion of the learned trial court, we find no merit in appellant's contention that the trial court abused its discretion in denying appellant's eleventh hour petition to withdraw his plea.

When a defendant moves to withdraw his plea prior to sentence, he need only show a fair and just reason for the withdrawal and a lack of substantial prejudice to the Commonwealth. See Commonwealth v. Anthony, 504 Pa. 551, 475 A.2d 1303 (1984). After sentencing, a defendant must show manifest injustice in order to be permitted to withdraw his plea. Commonwealth v. Schultz, 505 Pa. 188, 477 A.2d 1328 (1984). At the outset of the sentencing hearing on March 11, 1987, appellant moved to withdraw his plea. (N.T. 3/11/87 at 2). As sentence had not been imposed, we find that the pre-sentence standard applies.

While a written motion must be filed within 10 days to challenge the denial of a motion to withdraw a plea, Pa.R.Crim.P. 321(a), a written motion is not a prerequisite to a valid exercise of the trial court's discretion to permit or direct the withdrawal of a plea under Pa.R.Crim.P. 320. See e.g. Commonwealth v. Whittall, 304 Pa. Super. 258, 450 A.2d 669 (1982) (plea withdrawn following an assertion of innocence by the defendant despite the absence of a written motion). See also Pa.R.Crim.P. 9020 (all motions must be made in writing except, inter alia, when made in open court during a trial or hearing). Consequently, we do not adopt the trial court's alternate reasoning that the ...


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