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[U] Commonwealth v. Bowersox

Superior Court of Pennsylvania

March 6, 2014

COMMONWEALTH OF PENNSYLVANIA Appellee
v.
RICKY L. BOWERSOX Appellant

NON-PRECEDENTIAL DECISION

Appeal from the Judgment of Sentence of January 31, 2013 In the Court of Common Pleas of Erie County Criminal Division at No: 3259 of 2011

BEFORE: BOWES, WECHT, and STABILE, JJ.

MEMORANDUM

STABILE, J.

Appellant, Ricky L. Bowersox (Bowersox), appeals the judgment of sentence entered January 31, 2013[1] by the Court of Common Pleas of Erie County. Bowersox challenges, inter alia, the denial of his pre-sentence motion to withdraw his nolo contendere plea.[2] Because we find the trial court erred in not allowing Bowersox to withdraw his plea, we vacate the judgment of sentence and remand for further proceedings.

The trial court summarized the factual and procedural background of the case as follows:

On July 17, 2012, the day of his scheduled jury trial, [Bowersox] appeared before the Honorable Michael Dunlavey and, representing himself, pled no contest to three counts of indecent assault (Counts 2, 3, and 4) and one count of endangering welfare of children (Count 6), all of which involved his victimization of his biological daughter. In exchange, the Commonwealth nolle prossed one count each of aggravated indecent assault (Count 1) and corruption of minors (Count 5).
On January 29, 2013, [Bowersox] filed a pro se Motion to Withdraw Plea. On January 31, 2013, before sentencing, this [c]ourt denied the motion. Immediately thereafter, this [c]ourt conducted a sexually violent predator ("SVP") hearing pursuant to Pennsylvania version of "Megan's Law". At the conclusion of the SVP hearing, this [c]ourt determined that [Bowersox] was a sexually violent predator. This [c]ourt further determined that [Bowersox] was subject to lifetime registration. The [c]ourt then proceeded to sentencing and imposed the following: 33 to 66 months' imprisonment at Count 2 (indecent assault); 33 to 66 months' incarceration at Count 3 (indecent assault), consecutive to Count 2; 33 to 66 months' incarceration at Count 4 (indecent assault), consecutive to Count 3; and 27 to 54 months' incarceration at Count 6 (endangering welfare of children), consecutive to Count 4.
On January 31, 2013, at [Bowersox]'s request, this [c]ourt appointed counsel to represent [Bowersox] on all post-sentence matters, including direct appeal.
On February 11, 2013, [Bowersox] filed a counseled Post-Sentencing Motion which included: (1) a motion to reconsider [Bowersox]'s pro se pre-sentence motion to withdraw his plea, (2) a post sentencing motion to withdraw his plea; and, (3) a motion for reconsideration/modification of sentence.

Trial Court Opinion, 4/8/13, at 1-2 (footnote and internal citations omitted).

The trial court denied Bowersox's post-sentence motions. This appeal followed. Both the trial court and Bowersox complied with Pa.R.A.P. 1925. On appeal, Bowersox raises the following issues:

I. Did the lower court err in denying [Bowersox]'s motion to withdraw his guilty plea prior to his sentencing?
II. Did the lower court err in denying [Bowersox]'s motion to withdraw his guilty plea following his sentencing hearing?
III. Did the lower court err in refusing to reconsider and modify the sentence imposed? Appellant's Brief at 1.

Because we conclude the trial court erred in not allowing Bowersox to withdraw his plea, we will only address the first issue, i.e., whether the trial court properly denied Bowersox's pre-sentence motion to withdraw his plea. In doing so, we are guided by the following principles:

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).

Commonwealth v. Gordy, 73 A.3d 620, 623-24 (Pa.Super. 2013).[3]

In denying Bowersox's pre-sentence motion to withdraw his plea, the trial court noted: "Here, [Bowersox] demonstrated a fair and just reason to withdraw his plea when he declared his innocence. However, … this [c]ourt properly concluded that the Commonwealth would suffer substantial prejudice if [Bowesox] were allowed to withdraw his plea." Trial Court Opinion, 4/8/13, at 3 (internal citation omitted). Specifically, the trial court found:

Prior to sentencing, the Commonwealth argued that it would be substantially prejudiced should [Bowersox] be allowed to withdraw his plea. [Prosecutor] noted that on the day of his scheduled trial, [Bowersox] – vacillating to the very end – pled no contest. [Prosecutor] also noted that the victim, who was present and ready to testify at that time, was traumatized over the incident and would be more traumatized if she had to return to court for another trial. [Prosecutor] also presented the testimony of the victim's mother who stated the victim was, and is, afraid of [Bowersox]; so much so that she was unable to attend the sentencing hearing. The victim continues counseling for the psychological issues associated with [Bowersox]'s actions. . . . . . . Had this [c]ourt allowed [Bowersox] to withdraw his plea, the victim would have been further harmed by being subjected to a trial after having every reason to believe that the matter was concluded. She is entitled to closure.

Trial Court Opinion, 4/8/13, at 3-4 (internal citations omitted).

We disagree. While we understand the pain and inconvenience to the victim in having to go through a trial when she had reasons to believe the matter was concluded, there is no finding, nor even an allegation, [4] that the Commonwealth would not be able to try the case at a later time. As such, the trial court abused its discretion in denying Bowersox's motion to withdraw his plea. See Gordy, supra.

The trial court's reliance on Commonwealth v. Carr, 543 A.2d 1232 (Pa.Super. 1988) and Commonwealth v. Dickter, 465 A.2d 1 (Pa.Super. 1983) is misplaced. In Carr, "our finding of substantial prejudice … rested almost exclusively upon the fact that the family members of the [victim] had become reluctant to testify." Commonwealth v. Carrasquillo, 78 A.3d 1120, 1130 (Pa.Super. 2013) (en banc).[5] As in Carrasquillo, "the Commonwealth has produced no evidence that [Bowersox]'s withdrawal of his guilty plea will precipitate an adverse change in the witnesses' availability or their respective willingness to testify." Id.

In Dickter, "we found substantial prejudice where a delay caused by a guilty plea withdrawal resulted in the reduced ability of young victims to testify." Id. at 1130. However,

the delay complained of in Dickter extended for four and one-half years, a significantly longer period of time than the approximately two years that have passed in the case before us. Further, the delay in Dickter was aggravated and prolonged by the defendant's "unlawful flight" overseas while on bail. We concluded that we could not "permit [the appellant] to prejudice the Commonwealth's position by his own illegal conduct." Here, the Commonwealth has offered no evidence or argument that any additional illegal conduct by Appellant has exacerbated the delay in this case.

Id. at 1131 (internal citations omitted).

Similarly, the delay here is much shorter than the delay in Dickter (six months as opposed to four years), and "the Commonwealth has offered no evidence or argument that any additional illegal conduct by [Bowersox] has exacerbated the delay in this case." Id.

In light of the foregoing, we conclude the trial court abused its discretion in denying Bowersox's pre-sentence motion to withdraw his no contest plea. Accordingly, we vacate the judgment of sentence and remand for further proceedings.

Judgment of sentence vacated. Case remanded for further proceedings. Jurisdiction relinquished.

Judgment Entered.


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