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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NON-PRECEDENTIAL DECISION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 ...

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