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Commonwealth v. Gordy

Superior Court of Pennsylvania

July 19, 2013


Appeal from the Judgment of Sentence of November 14, 2012, in the Court of Common Pleas of Berks County, Criminal Division at No. CP-06-CR-0002916-2011




This case is a direct appeal from judgment of sentence. Appellant argues the court erred in denying his pre-sentence motion to withdraw his guilty pleas. He also contends the court abused its sentencing discretion. Finding the court was wrong to deny Appellant's request to withdraw his pleas, we vacate the judgment of sentence and remand with directions that the court order Appellant's pleas withdrawn and conduct proceedings as needed to resolve this case. Given our decision, we need not consider Appellant's sentencing claim.

The Commonwealth filed a criminal complaint against Appellant in 2011. The complaint listed numerous offenses that allegedly occurred in or around 2002 and 2003. The charges involved two minor complainants, approximately twelve and five years old at the time of the incidents.

On May 17, 2012, Appellant pled guilty to one count each of rape, rape of a child and simple assault, those counts having arisen from the aforesaid 2011 charges. Sentencing was scheduled for September 5, 2012.

On July 31, 2012, prior to his sentencing date, Appellant filed a motion to withdraw his pleas and, in that motion, alleged his innocence. The court held a hearing and later denied relief. Appellant was sentenced. Thereafter, he filed a post-sentence motion claiming it was error to deny his pre-sentence request to withdraw his pleas. He also sought sentence modification. The court denied his motion. Appellant filed this timely appeal.

A pre-sentence motion to withdraw a guilty plea should be liberally allowed and should be granted for any fair and just reason unless granting the motion would cause substantial prejudice to the Commonwealth. Commonwealth v. Katonka, 33 A.3d 44, 46-47 (Pa. Super. 2011). An assertion of innocence can constitute a fair and just reason for plea withdrawal. Id. In the context of a pre-sentence request for plea withdrawal, the term "prejudice" means that, due to events occurring after the entry of the plea, the Commonwealth's prosecution of its case is in a worse position that it would have been had the trial taken place as originally scheduled. Commonwealth v. Kirsch, 930 A.2d 1282, 1286 (Pa. Super 2007). Thus, prejudice is about the Commonwealth's ability to try its case, see id., not about the personal inconvenience to complainants unless that inconvenience somehow impairs the Commonwealth's prosecution.

The decision to grant or deny a motion to withdraw a guilty plea rests within the trial court's discretion, and we will not disturb the court's decision on such motion unless the court abused that discretion. Commonwealth v. Miller, 748 A.2d 733, 735 (Pa. Super. 2000). An abuse of discretion is not a mere error in judgment but, rather, involves bias, ill will, partiality, prejudice, manifest unreasonableness, and/or misapplication of law. Commonwealth v. King, 990 A.2d 1172, 1180 (Pa. Super. 2010). By contrast, a proper exercise of discretion conforms to the law and is based on the facts of record. Commonwealth v. West, 937 A.2d 516, 521 (Pa. Super. 2007).

Before he pled guilty, Appellant signed a plea document—specifically, a document entitled Statement Accompanying Defendant's Request to Enter a Guilty Plea ("Guilty Plea Statement")—indicating he agreed he could not withdraw his pleas unless the court rejected his plea agreement. There was no agreement to sentencing in this case. However, the parties apparently agreed that, in return for Appellant's guilty pleas, the Commonwealth would withdraw numerous charges. The Commonwealth did, in fact, withdraw numerous charges at some point before Appellant pled guilty.

At the plea hearing, the Commonwealth stated on the record its understanding that Appellant had agreed to give up his right to withdraw his pleas before sentencing in return for the Commonwealth having withdrawn various charges. The court acknowledged this waiver was part of the plea arrangement. Appellant did not dispute the Commonwealth's representation or the court's acknowledgement thereof.

The court, during the hearing on the motion to withdraw Appellant's pleas, relied on the aforesaid, purported waiver of Appellant's right to seek plea withdrawal. We find the purported waiver was a nullity. In Commonwealth v. Pardo, 35 A.3d 1222, 1224-25, 1230 (Pa. Super. 2011), the defendant agreed to plead guilty to various counts in exchange for other counts being dismissed. Before doing so, he executed a written provision waiving his right to withdraw his plea as long as the court accepted the plea agreement. There was no sentencing agreement. The trial court later denied his pre-sentence motion to withdraw his plea, citing, inter alia, the waiver provision. This Court opined on appeal:

The fact that Pardo signed a waiver indicating that he would not be permitted to withdraw his plea if the court accepted the plea agreement does not change our decision [to permit plea withdrawal] today. In fact, we find that such waiver provision, which prevents a defendant from the right to withdraw his plea prior to sentencing, flies in the face of the intent behind Rule 591, our Supreme Court's decision in [Commonwealth v. ] Forbes[, ...

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