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
BEFORE: ALLEN, LAZARUS, and FITZGERALD, [*] JJ.
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. 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. 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. ...