Appeal from the Judgment of Sentence October 17, 2012 In the Court of Common Pleas of Lackawanna County Criminal Division at No(s): CP-35-CR-0000562-2012, CP-35-CR-0000573-2012
BEFORE: BOWES, WECHT, and PLATT, [*] JJ.
Raymond G. Unangst maintains that the trial court improperly denied his written presentence motion to withdraw his guilty pleas. We conclude that Appellant, who unequivocally claimed that he was innocent of the offenses in his motion, presented a fair and just reason to withdraw his guilty plea. Given that the Commonwealth has made no assertion that withdrawal would prejudice it, we vacate the judgment of sentence and remand with instructions that the trial court permit Appellant to withdraw the guilty plea entered in these two cases.
The present appeal concerns two lower court criminal actions. At number CP-35-CR-0000562-2012, Appellant was charged with theft by unlawful taking after he allegedly stole truck parts worth approximately $4, 000 on October 27, 2011, from a scrap metal pile located at 70 Cottage Street, Carbondale. The affidavit of probable cause filed in that case described the business at that location as a truck yard. There were witnesses to this theft, which also was filmed by a surveillance camera.
At CP-35-CR-0000573-2012, Appellant was charged with reckless endangerment, attempted theft, and trespass graded as a summary offense based upon the following events, which were also videotaped. On November 4, 2011, the owner of 70 Cottage Street, Al Tuzze and his son, Joseph Tuzze, observed Appellant drive a mini-van into the truck yard and place scrap metal into that vehicle. The Tuzzes approached Appellant and made him remove the metal. While Appellant was returning the stolen items, Al and Joseph Tuzze stood in front of Appellant's vehicle and called the police. Appellant entered the van and drove directly toward the two men, who had to push each other from the path of the oncoming vehicle to avoid being struck.
On May 21, 2012, Appellant entered a guilty plea at criminal action number CP-35-CR-0000573-2012, to the three charges contained in that information. On June 6, 2012, Appellant entered a guilty plea to attempted theft at the other criminal action involving the October 27, 2011 incident. On August 30, 2012, prior to sentencing, Appellant filed a written petition to withdraw his guilty pleas, and referenced both lower court docket numbers in the caption. Therein, Appellant set forth the procedural history for both cases and indicated that while he may have been trespassing on the Tuzze property, he had not stolen anything or committed any of the charged acts. In that document, Appellant also averred, "Defendant asserts his innocence in all matters and desires to proceed to trial." Petition to Withdraw Guilty Plea, 8/30/12, at ¶ 21. The Commonwealth filed a response noting the inconsistency between the admission to trespassing and the blanket assertion of innocence to all charges, but it failed to assert that it would be prejudiced by the withdrawal.
On September 4, 2012, the court entered an order with respect to the petition that, "A Hearing on the Defendant's Petition is to be held on the 3rdday of Oct. 2012, at 9:30 o'clock a.m. in Courtroom Number 5 of this Courthouse." Order of Court, 9/4/12, at 1.
On October 3, 2012, Appellant petitioned to renew the presentence motion to withdraw and asked the trial court to lift a capias, which is a writ of arrest, that it had issued. Appellant indicated in his petition that he appeared at the October 3, 2012 hearing fifteen minutes late, that his August 30, 2012 petition already was denied when he arrived, and that he was arrested based upon a capias due to his failure to timely reach the courtroom.
Appellant appeared before the court on October 17, 2012. When the court announced that the hearing would concern sentencing, Appellant responded that he was under the impression that he was present "for a hearing on my motion to lift a capias and to renew the petition to withdraw my guilty plea[s.]" N.T., 10/17/12, at 2. The trial court stated that both the motion to lift the capias and the motion to withdraw his guilty pleas were denied.
Appellant, who had a prior record score of four, had no corrections to the presentence report. Additionally, Appellant admitted to the presentence investigator that he had taken scrap metal from the truck yard but that he "didn't think it was a big deal to take a piece of metal." Id. at 10. Appellant received a total sentence of two to five years incarceration, and a fine was imposed on the summary trespass offense.
In this timely appeal, Appellant requests two forms of relief. He asserts that he is entitled to a hearing pursuant to Pa.R.Crim.P. 591 so that he can establish that he presented a fair and just reason for withdrawing his guilty pleas, and he also maintains that he should have been permitted to withdraw his guilty pleas. The trial court ruled that Appellant waived his right to a hearing by failing to timely appear on October 3, 2012, and we concur with that ruling. However, we believe that Appellant's presentence petition to withdraw the guilty pleas, on its face, presented a fair and just reason for withdrawal and agree with Appellant's position that the "lower court erred in denying the Appellant's motion to withdraw his guilty pleas[.]" Appellant's brief at 4.
Our standard of review in the present context is as follows:
[A] decision regarding whether to accept a defendant's pre-sentence motion to withdraw a guilty plea is left to the discretion of the sentencing court. ...