Appeal from the Judgment of Sentence entered October 22, 2009, in the Court of Common Pleas, Westmoreland County, Criminal Division at No. CP-65-CR-0001110-2008
The opinion of the court was delivered by: Musmanno, J.:
BEFORE: STEVENS, P.J., FORD ELLIOTT, P.J.E., MUSMANNO, BENDER, GANTMAN, DONOHUE, ALLEN, LAZARUS and OLSON, JJ.
Paul Frank Katonka ("Katonka") appeals from the judgment of sentence entered following his guilty plea to various charges arising from the sexual abuse of his stepdaughter. We vacate the judgment of sentence and remand for further proceedings.
The Commonwealth charged Katonka with multiple crimes alleging improper sexual contact with his young stepdaughter. The conduct began when the child was eight years old in 2003 and continued until 2008. On September 29, 2008, Katonka reached a plea agreement with the Commonwealth. In exchange for his guilty plea, the Commonwealth agreed to recommend an aggregate sentence of ten to twenty years in prison followed by fifteen years of probation. In accordance with the agreement, Katonka tendered his guilty plea. The trial court deferred sentencing pending an evaluation by the Sexual Offenders Assessment Board. On February 16, 2009, before sentencing, Katonka filed a Motion to withdraw his guilty plea. Katonka did not assert his innocence in the written Motion. However, at the subsequent hearing on the Motion to withdraw the plea, Katonka asserted his innocence. Katonka reiterated his innocence at a second hearing. Following the second hearing, the trial court found Katonka's assertion of innocence to be incredible, and denied the Motion to withdraw the guilty plea. The trial court subsequently sentenced Katonka to a prison term of ten to twenty-five years, to be followed by fifteen years of probation. The trial court also found Katonka to be a sexually violent predator.
Katonka filed a timely Notice of appeal. The trial court ordered Katonka to file a Pennsylvania Rule of Appellate Procedure 1925(b) concise statement. Katonka filed a timely Concise Statement and the trial court issued an Opinion.*fn1 Initially, on appeal, a majority of a three-judge panel of this Court vacated the judgment of sentence and remanded the case for trial. The Honorable Paula Ott filed a dissenting Memorandum. The Commonwealth then filed an Application for reargument en banc, which was granted.
Katonka raises the following question for our en banc review: "Did the [trial] court err in denying [Katonka's] Motion to withdraw guilty plea[?]" Brief for Appellant at 3.
Katonka contends that the trial court erred in denying his Motion to withdraw the guilty plea prior to sentencing. Id. at 7. Katonka argues that the Motion should have been granted because he asserted his innocence, his plea was not knowing and voluntary, and he was unaware of possible exculpatory evidence that could be used in his defense. Id. at 7-8. Katonka asserts that the trial court erred in relying on the fact that he delayed asserting his innocence to deny his Motion. Id. at 8-10. Katonka further asserts that the trial court erred in discrediting his assertion of innocence as a basis for withdrawing the plea. Id. at 9-10.
We note 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 of a plea of guilty or nolo contendere and the substitution of a plea of not guilty." Pa.R.Crim.P. 591(A); see also Commonwealth v. Walker, 26 A.3d 525 (Pa. Super. 2011).
In its seminal decision in Commonwealth v. Forbes, 299 A.2d 268, 271 (Pa. 1973), the Supreme Court of Pennsylvania set forth the parameters for determining whether a request to withdraw a guilty plea, made prior to sentencing, should be granted. In Forbes, the appellant pled guilty to various crimes stemming from an assault, robbery, and murder of a victim. Id. at 269. At a subsequent hearing, prior to sentencing, the appellant stated that he wished to withdraw his guilty pleas because he did not "want to plead guilty to nothing [he] didn't do." Id. The appellant later abandoned this request, but it became clear that his decision was based upon defense counsel's threat to withdraw from the case. Id. at 270. The trial court nevertheless proceeded to sentence appellant to life in prison based upon a finding that appellant was guilty of first-degree murder. Id. On appeal, the appellant asserted that the trial court erred in denying his original request to withdraw his guilty plea, which was made prior to sentencing, once it became clear that he abandoned this request based on his counsel's coercion. Id.
The Forbes Court agreed and held that "although 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." Id. at 271. The Supreme Court then fashioned a test to apply in determining whether to grant a pre-sentence motion for withdrawal of a guilty plea: "the test to be applied by the trial courts is fairness and justice." Id. The Supreme Court held that the mere articulation of innocence was a "fair and just" reason for the pre-sentence withdrawal of a guilty plea unless the Commonwealth has demonstrated that it would be substantially prejudiced. Id. Applying these standards to the relevant facts, the Supreme Court determined that the appellant had provided a fair and just reason for withdrawing his plea and that the Commonwealth would not be prejudiced by the withdrawal. Id. at 272.
Subsequently, in Commonwealth v. Randolph, 718 A.2d 1242 (Pa. 1998), the Supreme Court of Pennsylvania re-affirmed the reasoning employed in Forbes and rejected an attempt by the trial court to assess the credibility of a defendant's declaration of innocence in the context of withdrawing a guilty plea before sentencing. The defendant in Randolph tendered his guilty plea and admitted the factual basis for the plea at the plea hearing. Randolph, 718 A.2d at 1242. However, on the date scheduled for sentencing, the defendant sought to withdraw his guilty plea, asserting that he was "not guilty." Id. at 1244. The trial court denied withdrawal of the plea, deeming the defendant's claim of innocence incredible:
I don't think that there's any valid case here to withdraw the plea. I remember on [the date of the guilty plea] that you were in good health. You admitted these things, and I - unless you have some other reason before I proceed with the sentencing. Is there any other reason? All right, I'm ...