Commonwealth v. Dunlap

Full title: COMMONWEALTH OF PENNSYLVANIA v. TOMMIE SENECA DUNLAP Appellant

Court: Superior Court of Pennsylvania

Date published: Jan 9, 2024

479 WDA 2023 (Pa. Super. Ct. Jan. 9, 2024)

Opinion

479 WDA 2023 J-S46030-23

01-09-2024

COMMONWEALTH OF PENNSYLVANIA v. TOMMIE SENECA DUNLAP Appellant

MURRAY, J.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

Appeal from the Judgment of Sentence Entered February 24, 2022 In the Court of Common Pleas of Erie County Criminal Division at CP-25-CR-0001813-2020

BEFORE: DUBOW, J., MURRAY, J., and SULLIVAN, J.

MEMORANDUM

MURRAY, J.

Tommie Seneca Dunlap (Appellant) appeals from the judgment of sentence imposed after he pled guilty to two counts of possession with intent to deliver a controlled substance (PWID), 35 P.S. § 780-113(a)(30). We affirm.

The trial court explained:

[Appellant] pled guilty to two felony charges on November 1, 2022, which was the same date that he was scheduled to appear for a jury trial. Jury selection was set to commence on that morning but [Appellant] decided to enter a plea. An extensive plea colloquy was conducted at that time by this [c]ourt.

Trial Court Opinion, 4/12/23, at 1 (unnumbered). During the colloquy, the Commonwealth summarized the evidence it would have presented at trial:

Trooper [Joseph] Neden… would have testified to his information that led up to [the] search warrant at [Appellant's] residence on June 25[,] 2020; [he] would have testified to all the items that were seized in [Appellant's] bedroom, as well as the

china cabinet on the first floor[,] and that the lab reports showed there was [approximately 25] grams of cocaine, over 20 grams of methamphetamine… almost $6,000 in cash, as well as fentanyl, marijuana, a plate with residue, as well as a razor blade[,] and then several cutting agents that were also found in the china cabinet.

Trooper John Casey would have testified that he used his drug detection dog, Senna, to search the residence, as well as [Appellant's] vehicle. The dog did alert at the china cabinet, as well as in [Appellant's] bedroom, as well as a Bentley, where all those items were seized.

And then Trooper John Matson would have testified as an expert in narcotics[,] that [Appellant] did possess the cocaine and the methamphetamine that was seized with the intent to deliver, and that is based on his review of the lab report, the police reports, as well as all the evidence seized in this case.

N.T., 11/1/22, at 20-21.¹

1 The criminal complaint averred that Appellant admitted to police that he lived at the residence and "is a user of cocaine and will deal cocaine to earn money to support his habit." Police Criminal Complaint, 6/25/20, at 5 (unnumbered).

The Commonwealth asked Appellant to confirm his understanding that the evidence "would have been shown at trial and that you're entering your guilty plea today for those reasons?" Id. at 21. Appellant responded under oath, "I'm taking responsibility for it." Id. The trial court accepted the plea and scheduled sentencing. Id. at 32.

On January 18, 2022,

[j]ust prior to sentencing, [Appellant] provided the [c]ourt with a hand[-]written letter indicating that he wished to withdraw his plea. He was still represented by counsel at that time but had not requested that counsel file a formal motion to withdraw the plea. The sentencing proceeding was continued so that the Motion could be reviewed and ruled upon.

Trial Court Opinion, 4/12/23, at 1 (unnumbered). In his motion, Appellant stated he "still maintains his innocence," that he "only [pled] guilty out of fear and panic that he was threatened to have his bond revoked," and his defense counsel was ineffective and failed to prepare a defense in his case. Motion to Withdraw Guilty Plea, 1/18/22, at 2.

On February 24, 2022, the trial court

conducted a hearing on the Motion[, giving Appellant] the opportunity to explain why he should be able to withdraw his plea and [] the Commonwealth a chance to respond…. [T]he [c]ourt discussed with [Appellant] the fact that he waited until the time of sentencing to attempt to withdraw his plea and that he had not provided any specific reason or sufficient basis to justify allowing his plea to be withdrawn, especially a plea that was entered while a jury was waiting to be selected.² The [c]ourt determined that [Appellant] had engaged in a pattern of delay, and further noted that at the time of the plea, he had testified under oath that he was pleading guilty voluntarily and yet was now asserting that he was innocent. The [c]ourt ruled that [Appellant] would not be able to withdraw his plea, partly because of his previous sworn statements that he was guilty of the charges. The [c]ourt also determined that there was no actual plausible demonstration of innocence. The [c]ourt denied his Motion and proceeded to sentencing.

Trial Court Opinion, 4/12/23, at 2 (unnumbered).

2 When the trial court asked if Appellant had anything to supplement his written motion, he reiterated "ineffective counseling," but ultimately stated that he relied on the grounds set forth in the motion. N.T., 2/24/23, at 9-10. The trial court found Appellant had "not alleged anything that makes me think this [motion to withdraw plea is] anything other than … an attempt to delay these proceedings." Id. at 19.

The trial court sentenced Appellant to 27 to 60 months in prison, followed by 5 years of probation for PWID (cocaine), and a concurrent prison 27 to 60 months followed by 5 years of probation for PWID (methamphetamine). No timely post-sentence motion or direct appeal followed.

On March 31, 2022, Appellant filed a pro se motion which the trial court treated as a Post Conviction Relief Act (PCRA) petition. The trial court appointed counsel and, following an evidentiary hearing, reinstated Appellant's right to file a post-sentence motion and appeal. Appellant then filed a nunc pro tunc post-sentence motion claiming, inter alia, that he should have been permitted to withdraw his plea. The trial court denied the motion, and Appellant timely appealed. Appellant and the trial court have complied with Pa.R.A.P. 1925.

Appellant presents a single question: whether the trial court "committed legal error and abused its discretion in denying [his] petition for leave to withdraw his guilty pleas made prior to sentencing." Appellant's Brief at 3 (capitalization modified).

We review a trial court's ruling on a pre-sentence motion to withdraw a guilty plea for an abuse of discretion. Commonwealth v. Islas, 156 A.3d 1185, 1187 (Pa. Super. 2017). Pre-sentence withdrawal of a guilty plea is governed by Pennsylvania Rule of Criminal Procedure 591(A):

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.

Pa.R.Crim.P. 591(A). The official comment to Rule 591 states, "After the attorney for the Commonwealth has had an opportunity to respond, a request to withdraw a plea made before sentencing should be liberally allowed." Id., Cmt.

[I]n determining whether to grant a pre-sentence motion for withdrawal of a guilty plea, the test to be applied by the trial courts is fairness and justice. If the trial court finds any "fair and just reason," withdrawal of the plea before sentence should be freely permitted, unless the prosecution has been "substantially prejudiced."

Commonwealth v. Forbes, 299 A.2d 268, 271 (Pa. 1973) (citations omitted).

In Commonwealth v. Carrasquillo, 115 A.3d 1284 (Pa. 2015), our Supreme Court provided guidance regarding a court's proper exercise of discretion in ruling on presentence motions to withdraw a plea. While affirming the "liberal allowance" standard, the Court acknowledged that its previous application of that standard had "lent the [false] impression that [the] Court had required acceptance of a bare assertion of innocence as a fair-and-just-reason" for withdrawal, and led to a "legitimate perception of a per se rule" arising from the Court's prior decisions. Id. at 1292. The Carrasquillo Court clarified that "a bare assertion of innocence is not, in and of itself, a sufficient reason to require a court to grant" a presentence motion to withdraw. Id. at 1285. Rather,

a defendant's innocence claim must be at least plausible to demonstrate, in and of itself, a fair and just reason for presentence withdrawal of a plea. More broadly, the proper

inquiry on consideration of such a withdrawal motion is whether the accused has made some colorable demonstration, under the circumstances, such that permitting withdrawal of the plea would promote fairness and justice. The policy of liberality remains extant but has its limits, consistent with the affordance of a degree of discretion to the common pleas courts.

Id. at 1292. The Carrasquillo Court established a trial court's discretion to assess the plausibility of an innocence claim, stating that "both the timing and the nature of the innocence claim, along with the relationship of that claim to the strength of the government's evidence, are relevant." See Islas, 156 A.3d at 1191.

Consistent with the well-established standards governing trial court discretion, it is important that appellate courts honor trial courts' discretion in these matters, as trial courts are in the unique position to assess the credibility of claims of innocence and measure, under the circumstances, whether defendants have made sincere and colorable claims that permitting withdrawal of their pleas would promote fairness and justice.

Commonwealth v. Norton, 201 A.3d 112, 121 (Pa. 2019).

Here, Appellant argues the trial court

secured the proper facts and engaged in substantive review of the facts, but [its] ultimate decision fail[ed] to reflect adherence to what was disclosed to the [trial c]ourt and fail[ed] to conform to the permissive legal standard of Pennsylvania as to withdrawal of [presentence] guilty pleas.

Appellant's Brief at 7. He maintains the trial court should not have "engaged in a qualitative evaluation of [A]ppellant's profession of innocence." Id. Rather, the trial court should have deferred to Appellant's "profession of innocence as a cognizable fair and just reason" to allow withdrawal of his plea. Id. Appellant asserts that if the trial court's decision "is permitted to stand," it would be "tantamount to holding that all guilty pleas are inviolate and irreversible…." Id. at 8.

The Commonwealth counters that the trial court properly determined that, under the circumstances, "Appellant's bald assertion of innocence did not constitute a plausible innocence claim and thus was not a fair and just reason for presentence withdrawal of his plea." Commonwealth's Brief at 1.

While Appellant seems to argue that the trial court improperly weighed the facts underlying his claim of innocence, he fails to cite anything in the record to support his claim. Appellant does not address the factors relevant to the trial court's assessment of his claim, such as "the timing and the nature of the innocence claim" and "the relationship of that claim to the strength of the government's evidence." Islas at 1191. Appellant also fails to reconcile his argument with the Supreme Court's pronouncement that trial courts have discretion "to assess the credibility of claims of innocence…." Norton, 201 A.3d at 121. Indeed, Appellant fails to cite any recent caselaw and invokes the "well-settled Forbes standard," Appellant's Brief at 8 (citing Commonwealth v. Forbes, 299 A.2d 268 (Pa. 1973)), without acknowledging that Carrasquillo and its progeny have impacted the application of Forbes. In sum, Appellant provides no basis for disturbing the trial court's exercise of discretion and his issue does not merit relief.³

3 Appellant additionally argues that the Commonwealth failed to demonstrate prejudice from the withdrawal of the plea. Appellant's Brief at 8. The trial court observed that "there may be minimal prejudice to the Commonwealth." N.T., 2/24/22, at 19; see also id. at 14, 16-17 (discussing whether Commonwealth witnesses remained available). However, the trial court's ruling was based on its determination that Appellant failed to demonstrate a fair and just reason for withdrawing his plea. See Trial Court Opinion, 4/12/23, at 2 (unnumbered). The trial court never reached the second prong of the Forbes test, under which substantial prejudice to the Commonwealth can warrant the denial of a withdrawal motion even after the defendant has shown a fair and just reason. See Forbes at 271.

Judgment of sentence affirmed.

Judgment Entered.