Commonwealth v. Greene

1

COMMONWEALTH OF PENNSYLVANIA v. KEVIN HANEEFAH GREENE Appellant

No. 531 WDA 2022

No. J-S42040-22

Superior Court of Pennsylvania

March 8, 2023

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

Appeal from the Judgment of Sentence Entered December 28, 2021 In the Court of Common Pleas of Cambria County Criminal Division at No(s): CP-11-CR-0000846-2021.

Joseph D. Seletyn, Esq.

BEFORE: BOWES, J., OLSON, J., and COLINS, J.^[*]

MEMORANDUM

COLINS, J.

Appellant Kevin Haneefah Greene, appeals from the judgment of sentence of 4 to 24 months' incarceration imposed after he pled guilty to flight to avoid apprehension.^[1] For the reasons set forth below, we are compelled to vacate and remand with instructions to permit Appellant to withdraw his guilty plea.

Appellant was charged on August 3, 2021 with burglary, flight to avoid apprehension and other offenses arising out of an August 1 2021 burglary of a home and a police chase that ensued. On December 14, 2021, Appellant entered a negotiated plea of guilty to flight to avoid apprehension under a plea agreement that provided that the Commonwealth would nolle pros all of the other charges and recommend a sentence in the mitigated range with immediate parole. N.T. Guilty Plea at 2-4. At this plea hearing, the trial court questioned Appellant concerning his understanding of his plea and the voluntariness of his plea, but neither the Commonwealth nor the trial court elicited the factual basis for the plea or put on the record any evidence supporting the charge to which Appellant pled guilty. Id. at 2-5. At the plea hearing, the trial court scheduled Appellant's sentencing for December 28, 2021. Id. at 4.

On December 21, 2021, before he was sentenced, Appellant filed a motion to withdraw his guilty plea. On December 28, 2021, the trial court heard argument and statements from Appellant and his counsel concerning the motion to withdraw his guilty plea. N.T. Sentencing at 2-9. Appellant stated that he wished to withdraw his guilty plea because

[O]n the day when I [pled guilty] I was going through symptoms of COVID-19 and I was on quarantine restrictions for having COVID. And at the time I was on medication. And then also on top of that, when my lawyer explained it to me, for now, he's saying to the lowest grade of felony offense, but at the time he only said the lowest grade offense, which would be a misdemeanor 3. So that's where misunderstanding, miscommunication became involved.

So that's why I just wanted to take the plea back and I don't want that plea because I feel for one, it's an unintelligent plea for me to take based on me not even committing this crime, when it was explained automatic parole, I thought that meant that when I get sentenced, that I was able to go home and automatically be back on parole.

Then it was confusing because, it's like all right you got transferred back to New Jersey [for a parole violation in that state]. And like, it was just confusing to me. It was confusing to me and, honestly, I would not have volunteered to take that plea if I had a better understanding and knew exactly like what I was getting myself into.

Id. at 6-7. Appellant further stated: "I did not commit this crime and I feel like you're forcing me to take this plea when I just told you that I do not want this plea." Id. at 9. In addition, Appellant's counsel stated that Appellant was contending that the GPS evidence that the Commonwealth contended placed him at the scene was inaccurate and that this created a factual issue and stated that Appellant had not received the Commonwealth's video evidence at the time that he pled guilty. Id. at 5-6. The Commonwealth did not introduce or proffer any evidence of Appellant's guilt in response to the motion to withdraw the plea or argue against the motion. Id. at 2-9.

The trial court denied Appellant's motion to withdraw his guilty plea. N.T. Sentencing at 7-8; Trial Court Order, 12/28/21. The trial court then sentenced Appellant in accordance with the plea agreement to 4 to 24 months with credit for time served and immediate parole. N.T. Sentencing at 9-10. Appellant filed a timely post-sentence motion asserting that the denial of his pre-sentence motion to withdraw his guilty plea was error and making a post sentence motion to withdraw his plea. The trial court denied Appellant's post sentence motion on April 11, 2022. Trial Court Order, 4/11/22. This timely appeal followed.

Appellant presents the following two issues for our review:

1. Whether the Court abused its discretion in denying the Appellant's Motion to Withdraw Guilty Plea prior to sentencing by Order dated December 28, 2021?

2. Whether the Court abused its discretion in denying the Appellant's Post-Sentence Motion to Withdraw Guilty Plea by Order dated April 11, 2022?

Appellant's Brief at 4. We review the denial of both pre-sentence and post-sentence motions to withdraw a guilty plea for abuse of discretion. Commonwealth v. Hart, 174 A.3d 660, 664 (Pa. Super. 2017); Commonwealth v. Baez, 169 A.3d 35, 39 (Pa. Super. 2017). We conclude that the trial court abused its discretion in denying Appellant's pre-sentence motion to withdraw his guilty plea and therefore do not address Appellant's second issue.

Where a defendant requests to withdraw his guilty plea before he is sentenced, the trial court has discretion to grant the withdrawal and that discretion is to be liberally exercised to permit withdrawal of the plea if two conditions are present: 1) the defendant demonstrates a fair and just reason for withdrawing the plea and 2) it is not shown that withdrawal of the plea would cause substantial prejudice to the Commonwealth. Commonwealth v. Carrasquillo, 115 A.3d 1284, 1291-92 (Pa. 2015); Baez, 169 A.3d at 39; Commonwealth v. Islas, 156 A.3d 1185, 1188 (Pa. Super. 2017); see also Pa.R.Crim.P. 591(A) ("At any time before the imposition of sentence, the court may, in its discretion, permit, upon motion of the defendant, … the withdrawal of a plea of guilty or nolo contendere and the substitution of a plea of not guilty"). Because there was no showing in this case that withdrawal of Appellant's guilty plea would have prejudiced the Commonwealth, the sole issue with respect to Appellant's pre-sentence motion to withdraw his guilty plea is whether Appellant satisfied the requirement that he demonstrate a fair and just reason for withdrawing the plea.

Appellant argues that his assertions of innocence, duress, and misunderstanding concerning his plea demonstrated a fair and just reason for withdrawing his guilty plea. Appellant's claims of duress and misunderstanding of his plea cannot provide a fair and just reason to allow withdrawal of the plea because they are contradicted by the record.

At the plea hearing and in the written colloquy that Appellant signed before pleading guilty, Appellant represented that he was pleading guilty voluntarily and of his own free will, that he had no physical or mental illness that affected his ability to understand or affected the voluntariness of his plea, and that he was not taking any medication that affected his thinking or his free will. N.T. Guilty Plea at 4; Written Guilty Plea Colloquy at 3, 9. In addition, the trial court found from its observations of Appellant at the plea hearing that Appellant did not appear distressed. Trial Court Opinion at 3, 5.

It was made clear to Appellant, at both the plea hearing and in his written colloquy, that he was pleading guilty to a third-degree felony, not a misdemeanor, and Appellant acknowledged that he understood that he was pleading guilty to a third-degree felony. N.T. Guilty Plea at 2; Written Guilty Plea Colloquy at 1. The record is also clear that Appellant was advised and acknowledged that he understood that he was subject to possible incarceration in New Jersey as a result of his guilty plea and that immediate parole from the offense to which he was pleading would not mean immediate freedom. N.T. Guilty Plea at 3-4. A defendant is bound by the statements that he made during his plea colloquy and cannot assert challenges to his plea that contradict his statements when he entered the plea. Commonwealth v. Jamison, 284 A.3d 501, 506 (Pa. Super. 2022); Commonwealth v. Jabbie, 200 A.3d 500, 506-07 (Pa. Super. 2018); Commonwealth v. Muhammad, 794 A.2d 378, 384 (Pa. Super. 2002). The trial court therefore did not abuse its discretion in rejecting these grounds for withdrawal of Appellant's plea.

In contrast, Appellant's claim of innocence was not contradicted by the record and was a sufficient ground for withdrawal of his plea. A plausible claim of innocence, supported by some facts or explanation, constitutes a fair and just reason for pre-sentence withdrawal of a guilty plea. Commonwealth v. Garcia, 280 A.3d 1019, 1023, 1025-27 (Pa. Super. 2022); Islas, 156 A.3d at 1191-92. A bare assertion by the defendant that he is innocent without any indication of any supporting basis for that claim, however, does not automatically satisfy the requirement that the defendant show a fair and just reason for withdrawal of the plea. Commonwealth v. Norton, 201 A.3d 112, 120-23 (Pa. 2019); Commonwealth v. Hvizda, 116 A.3d 1103, 1107 (Pa. 2015); Carrasquillo, 115 A.3d at 1292-93; Baez, 169 A.3d at 39-41.

In determining whether the defendant's claim of innocence is sufficiently plausible to constitute a fair and just reason for withdrawal of his plea, the strength of the Commonwealth's case in relation to the nature of the defendant's claim of innocence should be considered. Garcia, 280 A.3d at 1027; Islas, 156 A.3d at 1190. Whether the plea was entered well in advance of trial or on the eve of trial, whether the defendant knew the evidence against him when he entered the plea, and whether ...