Appeal from the Judgment of Sentence May 10, 2005 In the Court of Common Pleas of Philadelphia County Criminal at No(s): 0401-0083.
The opinion of the court was delivered by: Stevens. J.
BEFORE: STEVENS, McCAFFERY*fn1, and KELLY, JJ.
¶ 1 This is an appeal from the judgment of sentence entered in the Court of Common Pleas of Philadelphia County after the Court denied Appellant's pre-sentence motion to withdraw his guilty plea. At issue is whether a defendant provides a "fair and just reason" to withdraw his plea prior to sentencing whenever he asserts his innocence. We hold such an assertion does not divest a judge of discretion to weigh its sincerity according to the totality of circumstances known to the judge, and to deny the motion where, as here, the motion is founded not upon a sincere assertion, but upon a desire to delay sentencing in one case in order to obtain a favorable sentence in another.
¶ 2 On January 13, 2005, Appellant entered a plea of guilty*fn2 to one count of burglary, and three pleas of no contest to two other burglary charges and a charge of theft of an automobile. At the first scheduled sentencing hearing of April 15, 2005, Appellant moved to continue sentencing approximately 30 to 45 days until after such time he was to enter a guilty plea and receive sentence in federal court. Continuing sentence in the present case would, Appellant explained, prevent this conviction from being factored into his federal prior record score and thus significantly reduce his federal sentence.
The Commonwealth objected and the court expressed its concern with permitting what would be a six month lapse between plea and sentence in a case involving violence to victims. N.T. 4/15/05 at 5-7. The court also noted additional hardships a continuance would cause, including replacement of the prosecutor scheduled for maternity leave, and the administrative difficulties of coordinating judicial personnel now that the judge had been reassigned to the civil program. N.T. at 7. Nevertheless, the court indicated it would continue the case until the following month, at which time it would proceed with sentencing. N.T. at 8.
¶ 3 At that point, the court addressed an entry in Appellant's presentence investigation report stating that Appellant would consider withdrawing his plea if his state sentence were to precede his federal sentence. Defense counsel confirmed Appellant held this intention. N.T. at 8. The trial court asked Appellant if it was his desire to withdraw his plea, to which Appellant replied under oath:
[APPELLANT]: The only reason I was wondering about my plea, if I got sentenced today, it would effect [sic] my Federal sentencing and if that was to happen, yes.
N.T. at 9. After an exchange between the court and counsel only reinforced the defense approach to Appellant's plea, the court responded:
THE COURT: Let's cut to the chase here. Mr. Tennison, do you want to withdraw your plea or don't you? If you do, I have to know why.
[APPELLANT]: It's a possibility, Your Honor.
THE COURT: What do you mean it's a possibility? Either you are or you aren't.
[APPELLANT]: There are still things that I am learning about my case as far as evidence and other things, that have really persuaded me to look at different things. I did take a plea agreement because of the sentencing issues and stuff like that, because it would have worked to my advantage, and I know that I'm not guilty or however I may want to approach it, then, you know, I would like to-
THE COURT: How do you want to approach it? That is what ...