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[U] Commonwealth v. Heppding

Superior Court of Pennsylvania

February 6, 2014



Appeal from the Order Entered January 22, 2013 In the Court of Common Pleas of Luzerne County Criminal Division No(s).: CP-40-CR-0003866-2011




The Commonwealth appeals from the order entered in the Luzerne County Court of Common Pleas that granted defendant-Appellee Adam M. Heppding's presentence motion to withdraw his guilty pleas. Finding no basis to exercise appellate jurisdiction, we quash.

On November 2, 2011, Appellee was charged by criminal complaint with two counts each of criminal trespass, theft by unlawful taking, and receiving stolen property.[1] Police Criminal Compl., 11/2/11, at 2-3. According to the Affidavit of Probable Cause, Appellee allegedly took scrap metal from the property of complainant on October 21 and 24, 2011, and was recorded by a trail camera during the October 24th incident. Aff. of Probable Cause, 11/2/11, at 1.

On July 11, 2012, the trial court convened a guilty plea hearing. Appellee agreed to plead guilty to two counts of theft by unlawful taking, graded as misdemeanors of the first degree, in exchange for which the Commonwealth agreed to withdraw the remaining charges. N.T., 7/11/12, at 2. There was no agreement as to sentence. Id. at 3. Following a colloquy by the trial court, Appellee entered his guilty pleas.

The trial court scheduled sentencing for September 7, 2012. On that date, Appellee requested a continuance, which the court granted. The court granted Appellee an additional continuance on October 25th. On November 14th, the trial court entered the following order:

AND NOW, this 14th day of November, 2012, upon consideration of the attached Motion, IT IS HEREBY ORDERED as follows:
1. The hearing scheduled in this matter for November 15, 2012 is hereby cancelled.
2. Pursuant to Pa.R.Crim.P. [ ]591, the Commonwealth is hereby given ten (10) days to respond.
3. A hearing is hereby scheduled in this matter on Monday, November 26, 2012 at 1:30 P.M.

Order, 11/14/12 (emphasis omitted). Attached to the order was a handwritten note from Appellee requesting that the court withdraw his guilty pleas.[2] The Commonwealth filed a response on November 19, 2012, asserting that Appellee failed to show fair and just reasons for withdrawing his pleas. The Commonwealth, however, did not allege that prejudice would result from the withdrawal of Appellee's pleas.

On November 26, 2012, Appellee failed to appear for the hearing on his motion to withdraw his pleas. The trial court entered an order to issue capias with a handwritten notation, "call rec'd deft in Buffalo, N.Y. — not in court." Issue/Lift Capias Form, 11/26/12. On January 22, 2013, the court convened a hearing at which time counsel for Appellee stated that Appellee was "asserting his innocence[.]" N.T., 1/22/13, at 3. Appellee, his counsel, and the court then discussed two other cases against him. Id. at 4. At the conclusion of this discussion, Appellee stated that he "definitely would like a trial date" in the instant matter. Id. at 6. The court stated "the record will reflect [Appellee] was permitted to withdraw his guilty plea [in this matter]." Id. at 7. The Commonwealth's counsel was present, but did not object or request that additional evidence be taken regarding the withdrawal of Appellee's guilty pleas.

The following day, Appellee filed a request for discovery. The Commonwealth did not respond, but, on February 21, 2013, filed a notice of appeal from the January 22nd order withdrawing Appellee's plea. The Commonwealth timely complied with the trial court's order to file a Pa.R.A.P. 1925(b) statement of errors complained of on appeal. On March 22, 2013, this Court entered an order to show cause why this appeal should not be quashed. The Commonwealth, on April 2, 2013, filed a response. This matter is now before this panel of the Court.

At the outset, we must determine whether the instant order is appealable. Because this question concerns appellate jurisdiction and involves issues of law, our standard of review is de novo, and our scope of review is plenary. Commonwealth v. Kennedy, 876 A.2d 939, 943 n.3 (Pa. 2005). Moreover, issues regarding jurisdiction may be addressed sua sponte. Commonwealth v. Allburn, 721 A.2d 363, 365 (Pa.Super. 1998).

There are four types of orders over which this Court may exercise jurisdiction: "1) a final order or one certified by the trial court as final; 2) an interlocutory order as of right; 3) an interlocutory order by permission; or 4) a collateral order." Commonwealth v. Brister, 16 A.3d 530, 533 (Pa.Super. 2011) (citation omitted). Instantly, there is no dispute the court's order was not a final order nor one certified by the trial court as final. See Pa.R.A.P. 341. Additionally, it is clear that the Commonwealth did not seek permission to appeal. See Pa.R.A.P. 312, 1301-1323. Therefore, our present inquiry focuses on whether the trial court's order constitutes an interlocutory order from which an appeal arises as of right under Pa.R.A.P. 311, or a collateral order under Pa.R.A.P. 313.

Pa.R.A.P. 311 provides, in relevant part:

(a) General rule. An appeal may be taken as of right and without reference to Pa.R.A.P. 341(c) from:
* * *
(6) New trials. An order in a civil action or proceeding awarding a new trial, or an order in a criminal proceeding awarding a new trial where the defendant claims that the proper disposition of the matter would be an absolute discharge or where the Commonwealth claims that the lower court committed an error of law.
* * *
(8) Other cases. An order which is made appealable by statute or general rule.
* * *
(d) Commonwealth appeals in criminal cases. In a criminal case, under the circumstances provided by law, the Commonwealth may take an appeal as of right from an order that does not end the entire case where the Commonwealth certifies in the notice of appeal that the order will terminate or substantially handicap the prosecution.

Pa.R.A.P. 311(a)(6), (8), (d). We address each provision seriatim.

First, this Court has previously considered the "new trial" provision, which is currently promulgated in Pa.R.A.P. 311(a)(6), [3] with respect to an order granting a presentence motion withdrawal of a guilty plea. In Commonwealth v. Wise, 477 A.2d 552 (Pa.Super. 1984) (per curiam), the defendant filed a presentence motion to withdraw his plea asserting his innocence and proffering a defense. Id. at 553. The trial court granted the motion and ordered that the matter proceed to trial. Id. The Commonwealth filed a timely notice of appeal, but the defendant subsequently filed a motion in this Court to quash the appeal. Id.

The Wise Court preliminarily noted that Pa.R.A.P. 341 did not provide jurisdiction because an order granting a withdrawal of a guilty plea was not final. Id. The Court then considered the "new trial" provision of Rule 311, then numbered Rule 311(a)(5). Id. The Court acknowledged that orders granting a post-sentence motion to withdraw a plea were immediately appealable as orders granting a new trial. Id.; see also Commonwealth v. MacDougall, 841 A.2d 535, 534 (Pa.Super. 2003) (reiterating that order withdrawing plea post-sentence is "akin to the award of a new trial"); accord Commonwealth v. Lindey, 760 A.2d 416, 417-18 (Pa.Super. 2000) (concluding grant of appeal nunc pro tunc from conviction in magisterial district court was tantamount to order for new trial). However, we held that an order granting a defendant's presentence motion to withdraw a guilty plea did not constitute the grant of a new trial. Wise, 477 A.2d at 553. Therefore, the Wise Court quashed the appeal.[4] Id.

In light of Wise, we are constrained to conclude that an order granting a presentence motion to withdraw of a plea is not immediately appealable by the Commonwealth as an order granting a new trial.[5] Accordingly, Pa.R.A.P. 311(a)(6) does not permit jurisdiction over the Commonwealth's intended appeal. See Wise, 477 A.2d at 553.

Second, Pa.R.A.P. 311(a)(8) permits appellate jurisdiction over an order made appealable by statute or general rule. See Pa.R.A.P. 311(a)(8). Our review, however, reveals no statute, rule, or case law that permits an immediate Commonwealth appeal from an order granting a presentence motion to withdraw a plea.[6] Therefore, we conclude that Rule 311(a)(8) does not establish jurisdiction in this matter.

Pa.R.A.P. 311(d) sets forth the final basis for exercising jurisdiction under Rule 311. Under this provision, the Commonwealth may take an immediate appeal "under circumstances provided by law" and with a certification by the Commonwealth that the subject order "will terminate or substantially handicap the prosecution." Pa.R.A.P. 311(d).

The Commonwealth's "certification is required as a means of preventing frivolous appeal and appeals intended solely for delay." Brister, 16 A.3d at 533-34 (citation omitted). Pa.R.A.P. 904(e) provides, "When the Commonwealth takes an appeal pursuant to Rule 311(d), the notice of appeal shall include a certification by counsel that the order will terminate or substantially handicap the prosecution." Pa.R.A.P. 904(e) (emphasis added). The Commonwealth's failure to include a certification with its notice of appeal is a fatal defect that cannot be cured by representations in an appellate brief. Commonwealth v. Knoeppel, 788 A.2d 404, 407 (Pa.Super. 2001).

Instantly, the Commonwealth did not certify that the order would substantially handicap the prosecution when filing its notice of appeal. See id. The Commonwealth, for the first time in its brief to this Court, suggested that we exercise jurisdiction under Pa.R.A.P. 311(d). Commonwealth's Brief at 1. This attempt to cure the defect in the filing of its notice of appeal is insufficient for this Court to exercise our jurisdiction. See Brister, 16 A.3d at 533-34; Knoeppel, 788 A.2d at 407. Thus, we find no basis in Rule 311 to exercise jurisdiction over the Commonwealth's intended appeal.

We next consider whether appellate jurisdiction is proper under the collateral order doctrine. Pa.R.A.P. 313 defines a collateral order as "an order separable from and collateral to the main cause of action where the right involved is too important to be denied review and the question presented is such that if review is postponed until final judgment in the case, the claim will be irreparably lost." Pa.R.A.P. 313(b). To be "separable" from the main cause of action, the order must be capable of review without consideration of the main issue in the case. Commonwealth v. Shearer, 882 A.2d 462, 468 (Pa. 2005). The claim at issue must also be one that is "lost forever if appellate review is delayed until final judgment in the case." Id. at 469. Lastly, the claim must also implicate "'rights deeply rooted in public policy going beyond the particular litigation at hand.'" Id. (citation omitted).

The present order granting presentence withdrawal of Appellee's guilty pleas is "separable" from the main cause of action, i.e., Appellee's guilt or innocence. Moreover, a claim that the trial court erred in granting withdrawal of the plea would be irreparably lost if the matter proceeded to trial. Accordingly, we turn to the importance of the public policies at issue in this intended appeal.[7]

We recognize that the Commonwealth has an interest in the finality of a guilty plea. See generally Kotz, 601 A.2d at 814 (noting that "a plea of guilty is the equivalent of a conviction by the verdict of a jury."). However, when establishing the standards for reviewing a presentence request to withdraw a plea, the Pennsylvania Supreme Court considered the Commonwealth's interests in finality, the constitutional rights of a defendant, and the interests in the efficient administration of criminal justice. See Commonwealth v. Forbes, 299 A.2d 268, 270-71 (Pa.Super. 1973) (holding that "[i]f the trial court finds 'any fair and just reason', withdrawal of the plea before sentence should be freely permitted unless the prosecution has been 'substantially prejudiced.'"). The resulting Forbes standard for the presentence withdrawal of a plea is a liberal one and favors a defendant's assertion of innocence, so long as the Commonwealth does not suffer substantial prejudice. Id.; see also Commonwealth v. Carrasquillo, 78 A.3d 1120, 1124-25 (Pa.Super. 2013) (en banc). Given the Pennsylvania Supreme Court's balancing of the public policies involved in a presentence withdrawal of a plea, we conclude that the Commonwealth's claims do not involve an interest in the finality of a plea that is so deeply rooted as to permit review under the collateral order doctrine.

Accordingly, having found no basis to exercise jurisdiction over this interlocutory appeal, we must quash.

Appeal quashed.

Judgment Entered.

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