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[U] Commonwealth v. Painter

Superior Court of Pennsylvania

February 27, 2014



Appeal from the Judgment of Sentence December 5, 2012 in the Court of Common Pleas of Fulton County Criminal Division at Nos.: CP-29-CR-0000101-2012, CP-29-CR-0000174-2011, CP-29-CR-0000200-2009




Appellant, Robert Stanley Painter, Jr., appeals from the judgment of sentence imposed following his open guilty plea to one count each of theft by unlawful taking and perjury.[1] After careful review, we vacate and remand.

On March 13, 2009, the Commonwealth charged Appellant at docket number 200 of 2009 with multiple counts related to the alleged use of a shotgun to threaten and chase individuals from his parents' land in Needmore, Pennsylvania. Appellant fled and was arrested in Maryland for an unrelated parole violation.

On August 10, 2009, Maryland authorities released Appellant to Pennsylvania. Thereafter, Appellant posted bail and, when he did not appear for mandatory arraignment, Pennsylvania authorities issued a bench warrant for his arrest. On October 31, 2009, Maryland authorities again arrested Appellant and a Pennsylvania detainer was placed on him. On January 11, 2010, Maryland authorities returned Appellant to Pennsylvania. On January 13, 2010, Appellant again made bail and was put on electronic monitoring. Appellant fled on February 1, 2010 and as a result, on February 3, 2010, the Commonwealth charged Appellant with escape and theft of the monitoring device at docket number 174 of 2011.

On January 13, 2011, Maryland authorities arrested Appellant and notified the Pennsylvania State Police (PSP). Appellant remained incarcerated in Maryland on the Pennsylvania warrant until July 29, 2011, when Maryland authorities returned Appellant to Pennsylvania pursuant to the Interstate Agreement on Detainers (IAD) Act, 42 Pa.C.S.A. §§ 9101-08.

On October 6, 2011, Appellant filed pre-trial motions. At a November 29, 2011 hearing on the motions, Appellant denied facts related to his October 31, 2009 arrest in Maryland. The Commonwealth filed a perjury charge against Appellant at docket number 101 of 2012. On September 11, 2012, the court denied Appellant's pre-trial motions.

On September 25, 2012, Appellant pleaded guilty to one count each of theft by unlawful taking at number 174 of 2011 and perjury at number 101 of 2012. The remaining charges were nolle prossed. The court ordered that a pre-sentence investigation report (PSI) be prepared. On October 17, 2012, prior to sentencing, Appellant submitted a motion to withdraw his guilty plea. On December 5, 2012, Appellant filed an amended motion in which he asserted his innocence, and the court held a hearing on Appellant's motion that day. At the hearing, Appellant presented the testimony of Dr. Vasantha Kumar, who testified that Appellant had been improperly medicated for Parkinson's disease at the time that he entered his guilty plea, which could have caused hallucinations, confusion, dizziness, and amnesia. (See N.T. Hearing, 12/05/12, at 15-16, 21-22). The same day, the court denied Appellant's motion[2] and sentenced him to not less than eighteen nor more than sixty months' incarceration on the theft by unlawful taking charge, with a consecutive sentence of not less than thirty-six nor more than eight-four months' incarceration on the perjury charge. (See Sentencing Order, Docket Number 174-2011, 12/05/12, at 1; Sentencing Order, Docket Number 101-2012, 12/05/12, at 1). Appellant filed post-sentence motions on December 17, 2012. On March 19, 2013, the court denied Appellant's post-sentence motions. Appellant timely appealed.[3]

Appellant raises two questions for this Court's review:

[1.] Did the court err in denying Appellant's request to withdraw his pre-sentence guilty pleas when Appellant presented fair and just reasons and the Commonwealth did not present evidence that it would be prejudiced if the pleas were withdrawn?
[2.] Did the court err by not including time served by Appellant in foreign jurisdictions while being held on Pennsylvania detainers as part of the final sentencing orders?

(Appellant's Brief, at 3).

Appellant's first issue challenges the sentencing court's denial of his motion to withdraw his guilty plea. (See id. at 8-11). Specifically, Appellant argues that his "assertions of innocence, even after a full colloquy, provide a fair and just reason for withdrawal of his plea." (Id. at 10). We agree.

Our standard of review of this matter is well-settled:

[A] decision regarding whether to accept a defendant's presentence motion to withdraw a guilty plea is left to the discretion of the sentencing court. Pennsylvania Rule of Criminal Procedure 591 provides:
At 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.
There is no absolute right to withdraw a guilty plea. Nevertheless, prior to the imposition of sentence, a defendant should be permitted to withdraw his plea for "any fair and just reason, " provided there is no substantial prejudice to the Commonwealth.

Commonwealth v. Unangst, 71 A.3d 1017, 1019-20 (Pa.Super. 2013) (citations and most quotation marks omitted). "An assertion of innocence [is] a fair and just reason for seeking withdrawal of a guilty plea." Commonwealth v. Kirsch, 930 A.2d 1282, 1284 (Pa.Super. 2007), appeal denied, 945 A.2d 168 (Pa. 2008) (citation omitted); see also Commonwealth v. Gordy, 73 A.3d 620, 624 (Pa.Super. 2013); Unangst, supra at 1021.

Here, the trial court denied Appellant's motion to withdraw his guilty plea on the bases of Commonwealth v. Tennison, 969 A.2d 572 (Pa.Super. 2009), appeal denied, 982 A.2d 510 (Pa. 2009), and Commonwealth v. Katonka, 33 A.3d 44 (Pa.Super. 2011) (en banc), and its credibility determination that Appellant's testimony was incredible. (See N.T. Hearing, 12/05/12, at 62-63). We are constrained to conclude that the court abused its discretion in denying Appellant's motion.

In Tennison, supra, at sentencing, the defendant moved for a continuance, and, when the trial court asked whether the defendant wanted to withdraw his guilty plea, he responded that his concern was whether any sentence imposed that day would impact a federal sentence he would be receiving later. See Tennison, supra at 574. The sentencing hearing was postponed and, at the rescheduled sentencing hearing, the defendant moved to withdraw his guilty plea on the ground that the "sentencing in his federal case was still pending." Id. at 575. He also stated that his guilty plea was premised on his previous assumption that that the sentence in the federal matter would be imposed prior to the Pennsylvania sentence. See id. at 574. When the Commonwealth contested the withdrawal, noting that the defendant had never claimed his innocence, the defendant stated that he had always maintained his innocence to the most significant charges at issue. See id. at 575. The court denied the motion to withdraw and a panel of this Court affirmed, stating:

Appellant's conditional assertion of innocence-invoked at the prospect of being sentenced, withdrawn at the prospect of receiving yet another continuance-was anything but clear. Indeed, no sooner would the assertion be made than it would be completely contradicted by statements admitting guilt should sentencing be deferred until resolution of the federal case.

Id. at 577.

However, here, Appellant unequivocally asserted his innocence in his amended pre-sentence motion to withdraw his guilty plea and in his hearing testimony. (See Amended Motion to Withdraw Guilty Plea, 12/05/12, at unnumbered page 3 ¶ 14; N.T. Hearing, 12/05/12, at 40). In fact, at the hearing of this matter, the following exchange occurred on direct examination:

Q Do you believe now that if you had not been on those medications [for Parkinson's disease] you would not have made a decision to plead guilty on September 25th of this year?
A I've never had no intention of ever pleading guilty in this court.
Q Then why did you do it?
A I don't remember.
Q Do you believe now that after you have had time to reflect on the case and the charges against you that you are innocent of those charges?
A Absolutely.
Q And are you ascertaining [sic] your innocence here before this [c]ourt?
A 100 percent.

(N.T. Hearing, 12/05/12, at 40). Based on the foregoing, we conclude that the circumstances surrounding Appellant's assertion of innocence are distinguishable from the "conditional assertion of innocence" advanced by the defendant in Tennison, supra.

Additionally, in Katonka, supra, a panel of this Court reversed a trial court's denial of an appellant's pre-sentence motion to withdraw his guilty plea. In Katonka, the appellant filed a written motion in which he did not assert his innocence. See Katonka, supra at 48. At the motion hearing, the appellant asserted his innocence to the charges for the first time. See id. The trial court denied the appellant's motion on the basis of Tennison, and on its finding that the appellant's failure to raise the issue of innocence until the hearing made his assertion unbelievable. See id. at 49.

This Court observed that the trial court erred in resolving the matter by focusing on whether the appellant's assertion of innocence was credible. See id. at 49 (concluding that the trial court abused its discretion by "rendering a credibility determination as to the defendant's actual innocence") (citation omitted). Instead, the Court concluded: "[A]s the record reflects that [the appellant] twice clearly asserted his innocence without condition, . . . there was a 'fair and just' reason for withdrawal of the plea." Id. at 50.

Likewise, here, Appellant "clearly asserted his innocence" in both the written motion and in his hearing testimony. Id.; (see also Amended Motion to Withdraw Guilty Plea, 12/05/12, at unnumbered page 3 ¶ 14; N.T. Hearing, 12/05/12, at 2-3). Accordingly, we conclude that the court misapplied the laws and abused its discretion in finding that Appellant did not offer a fair and just reason to withdraw his guilty plea.[4] See Unangst, supra at 1019-21; Katonka, supra at 49-50.

However, having concluded that Appellant asserted a fair and just reason to withdraw his guilty plea, we must next turn to the question of whether the Commonwealth established that it would suffer substantial prejudice if the plea were withdrawn. See Unangst, supra at 1020-21.

"[I]t is clear that, in this Commonwealth, if a defendant asserts his innocence as a basis for withdrawal of a guilty plea before being sentenced, that request must be granted unless the Commonwealth would be prejudiced." Id. at 1021 (citations omitted). "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." Gordy, supra at 624 (citing Kirsch, supra at 1286).

Here, our review of the record provided to this Court reveals that the Commonwealth did not assert prejudice at any time during the proceedings in the trial court. (See Commonwealth's Answer to Motion to Withdraw Guilty Plea, 10/29/12, at unnumbered pages 1-2; N.T. Hearing, 12/05/12, at 1-63). Likewise, the court did not make a prejudice finding. (See N.T. Hearing, 12/05/12, at 62-63; Order, 12/11/12). Accordingly, we conclude that the trial court misapplied the law and abused its discretion when it denied Appellant's pre-trial motion to withdraw his guilty plea and we vacate Appellant's judgment of sentence. See Unangst, supra at 1023 (vacating judgment of sentence and remanding where Commonwealth failed to raise allegation of prejudice).

Moreover, we conclude that the Commonwealth's argument to this Court that it will be prejudiced by the withdrawal of Appellant's guilty plea because the IAD precludes it from bringing Appellant to trial lacks merit. (See Commonwealth's Brief, at 10-12).

We observe:

The IAD is an agreement between forty-eight states, the District of Columbia, Puerto Rico, the Virgin Islands, and the United States, that establishes procedures for the transfer of prisoners incarcerated in one jurisdiction to the temporary custody of another jurisdiction which has lodged a detainer against a prisoner. . . . [A] detainer is merely a means of informing the custodial jurisdiction that there are outstanding charges pending in another jurisdiction and a request to hold the prisoner for the requesting state or notify the requesting state of the prisoner's imminent release. The IAD is remedial legislation intended to curb previous abuses and alleviate problems associated with prisoners' uncertainty resulting from unresolved charges pending in another jurisdiction. Accordingly, the stated purpose of the IAD is to "encourage the expeditious and orderly disposition of such charges and determination of the proper status of any and all detainers based on untried indictments, informations or complaints." 42 Pa.C.S.[A.] § 9101, Article I.

Commonwealth v. Montione, 720 A.2d 738, 740 (Pa. 1998), cert. denied, 526 U.S. 1098 (1999) (case citations omitted). Here, Appellant could hardly be heard to complain that his trial is less than expeditious, or that he has been abused by any delay, where he caused it by pleading guilty to the charges, and then withdrawing that plea. Cf. Commonwealth v. Montione, 673 A.2d 923, 926 (Pa.Super. 1996, affirmed, 720 A.2d 738 (Pa. 1998), cert. denied, 526 U.S. 1098 (1999) (citing cases for proposition that appellant is not entitled to discharge under the IAD for delay that he caused). Accordingly, having a trial on the merits of this case would not thwart the IAD's purpose, even if it requires that Appellant be returned from Maryland.

Additionally, we note that, pursuant to Article IV of the IAD, "[i]f the requesting State returns the prisoner to the sending state without having tried him, . . . all charges against the prisoner will be dismissed with prejudice, absent good cause shown." Commonwealth v. Williams, 896 A.2d 523, 536 (Pa. 2006), cert. denied, 549 U.S. 1213 (2007) (citation omitted). Here, Appellant created the reason why the Commonwealth requires his return from Maryland for trial. Therefore, we conclude that there is good cause for the delay that actually is attributable to Appellant's conduct, not the Commonwealth's, and dismissal of the charges against him will not be required. See id.; see also Montione, supra, 720 A.2d 738, 741; Gilbert v. State, 982 N.E.2d 1087, 1089 (Ind. App. 2013)[5] (observing that "most jurisdictions have held the IAD's anti-shuffling provision is not violated when a defendant is transferred back to the state of origin after pleading guilty but prior to sentencing.") (citing Painter v. State, 848 A.2d 692, 703 (Md.App. 2004)).[6]

Judgment of sentence vacated. Case remanded. Jurisdiction relinquished.

Judgment Entered.

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