allowing defendant to withdraw guilty plea where, despite rambling and outlandish statements, defendant asserted his actual innocence by declaring, “[he] didn’t commit this crime”
How later courts described this case
- allowing defendant to withdraw guilty plea where, despite rambling and outlandish statements, defendant asserted his actual innocence by declaring, “[he] didn’t commit this crime”
Written by the judges who cited it.
The opinion
DISSENTING OPINION BY
MUNDY, J.:
I respectfully dissent from the learned Majority’s decision to vacate the judgment of sentence and remand this case for trial. In my view, the trial court did not abuse its discretion in denying Appellant’s motion to withdraw his guilty plea before sentencing.
As the Majority aptly notes, in Pennsylvania “[tjhere is no absolute right to withdraw a guilty plea.” Commonwealth v. Unangst, 71 A.3d 1017, 1020 (Pa.Super.2013) (citation omitted). “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.” Id. (internal quotation marks and citation omitted). Additionally, it is axiomatic that “[a]n assertion of innocence can constitute a fair and just reason for plea withdrawal.” Commonwealth v. Gordy, 73 A.3d 620, 624 (Pa.Super.2013).
In this case, Appellant made the following statements at sentencing in connection with his desire to withdraw his guilty plea.
I don’t even know how to start this. It’s a lot more to this than what people think, you know, and I took this plea even though I didn’t want to take it and just to save [the victim] pain and suffering, you know. But when I sit here and I look at everything and I see [the victim’s] family sit here and everybody in the world badgering me and constantly saying, oh this, that, you are the bad guy, you know, I was letting you know I will never get a fair trial here, and the reason why I took my plea as well. But I know my story wouldn’t stick and nobody here would believe my story either unless they had a polyester graph [sic] and lie detector, then maybe the truth would come to light. And I want the [c]ourt to know that it wasn’t on record, you know.
In 2002 I was locked up and an event occurred, and in this event the Antichrist came out of me. It may sound crazy, but what happened was the CIA came to me and tried to cover it up and I have been attacked several times ever since this event happened. It happened while the serpent was present by the boat. The Antichrist, he came out of me, and ever since then this has been happening I’ve been attacked. I’m not talking about just this event. They knew I was going to leave, you know, and then now I’ve got immigration I’m dealing with. They keep coming to me, giving me offers to go to China and stuff like that to assassinate the president over there, stuff like that. And regardless, I know one thing for sure, they also gave me a polyester graph [sic], a lie detector test that would prove my innocence.
But why am I going to fight a case if I’ve been framed by the system? How am I going to fight a case? There’s nowhere to act. I guarantee that if I have a polyester graph [sic] that everything, every word I said right now would not come out a lie, because I didn’t commit this crime.
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I have proof, too, of my allegations. If a full investigation is done, my allegations, if my attorney is willing to do a full investigation, I guarantee I have some proof too. And for fair — if you all do decide to grant this withdrawal for a fair trial, I ask Your Honor if I can — because they sentence me like this is a capital case anyway, like I murdered *1133 somebody. To prove my innocence, along with her investigation to my allegations to prove that, and if she’s willing to hopefully. If you could grant a polyester [sic] lie detector test too with that.
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I’m innocent. I got proof if there was an investigation done. Guarantee you if you give me a lie detector [test] it would prove that. If not, you go ahead and give me life. You give me life right now. It doesn’t matter.
N.T., 11/30/10, at 122-124, 130, 133 (emphases added). The Majority concludes from this that Appellant unambiguously asserted his innocence which provided a fair and just reason to withdraw his guilty plea. Majority Opinion at 1128.
In Commonwealth v. Walker, 26 A.3d 525 (Pa.Super.2011), appeal denied, 615 Pa. 756 , 40 A.3d 121 (2012), this Court was also faced with the trial court’s denial of a pre-sentence motion to withdraw a guilty plea. In Walker , the defendant pled guilty but mentally ill to one count of aggravated harassment by a prisoner and two counts of aggravated assault. Id. at 526 . However, prior to sentencing, Walker filed a motion to withdraw his plea. Id. at 527 . The following exchange took place at the hearing.
[Appellant]: Good afternoon, Your Hon- or. I really do think that [the Commonwealth has] sufficient evidence to prove my innocence, and I have not been involved in any drugs or alcohol — and that I believe that the [Commonwealth] has a tape of a video camera to prove that I’m innocent.
[The Court]: Where do you have that basis from?
[Appellant]: Because on the unit that I’m housed on — that I’m housed in — one of these incidents that happened, there’s cameras on this unit and they point directly to the officer’s equipment, to have those cameras monitored, and the evidence would be on the camera.
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[The Commonwealth]: It’s my understanding, there is no videotape. We have no videotape in our file. In all of the documentation that we have, there is absolutely no mention of a video. And it’s my understanding that even if there had been at the time, from 2005, being that we’re now almost in 2008, I’m sure it has been taped over or has been recorded as is customary with surveillance.
Id. at 527-528 (brackets in original). The trial court denied Appellant’s motion to withdraw his guilty plea, and this Court affirmed, concluding that Appellant had not shown a fair and just reason to withdraw his plea.
[A]s in [Commonwealth v. Iseley, 419 Pa.Super. 364 , 615 A.2d 408 (1992), appeal denied, 534 Pa. 653 , 627 A.2d 730 (1993) ], here, Appellant offered “dubious grounds” for withdrawing his plea. At the hearing on his motion to withdraw, Appellant merely speculated that the Commonwealth possessed a videotape that would exonerate him. However, he was unable to produce the videotape or even describe what it would depict, other than evidence “to prove that [he’s] innocent.” N.T. Hearing, 10/17/07. Not only was this basis for withdrawing his plea questionable, but we also conclude that it did not constitute a “clear” assertion of innocence. At no point did Appellant expressly state that he did not commit the offense of aggravated assault. Accordingly, we conclude that the court did not abuse its discretion in determining that no “fair and just” reason existed to permit Appellant to withdraw his guilty but mentally ill plea.
Id. at 530-531 (emphasis added).
Similarly, in Commonwealth v. Tennison, 969 A.2d 572 (Pa.Super.2009), appeal *1134 denied, 603 Pa. 681 , 982 A.2d 510 (2009), the defendant pled guilty to one count of burglary and pled no contest to two additional burglary charges as well as one count of theft of an automobile. Id. at 573. However, in the presentence report, there was “an entry ... stating that -Appellant would consider withdrawing his plea if his state sentence were to precede his federal sentence.” Id. at 574. At the sentencing hearing, the following exchange took place.
[APPELLANT]: The only reason I was wondering about my plea, if I got sentenced today, it would effect [sic] my Federal sentencing and if that was to happen, yes.
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THE COURT: Let’s cut to the chase here. Mr. Tennison, do you want to withdraw your plea or don’t you? If you do, I have to know why.
[APPELLANT]: It’s a possibility, Your Honor.
THE COURT: What do you mean it’s a possibility? Either you are or you aren’t.
[APPELLANT]: There are still things that I am learning about my case as far as evidence and other things, that have really persuaded me to look at different things. I did take a plea agreement because of the sentencing issues and stuff like that, because it would have worked to my advantage, and I know that I’m not guilty or however I may want to approach it, then, you know, I would like to—
THE COURT: How do you want to approach it? That is what I want to know.
[APPELLANT]: As my assertion of not guilty.
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THE COURT: I just want to understand the issue. If you can make — if you can resolve the Federal problem, then you’re guilty to these charges. If you don’t resolve the Federal problem, then you’re going to say you are not guilty of these charges.
[DEFENSE COUNSEL]: That is not at all what I am saying, Judge, and I think that [sic] unfair to pose it in those terms.... What I am saying is that there would be no motion to vacate a guilty plea in the event that this issue is resolved before May 5th. That’s really as far as I need to go, I think, at this time.
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THE COURT: Any comment, counselor [addressed to the prosecutor],
[PROSECUTOR]: There has to be a fair and just reason, for instance the assertion of innocence. It sounds to me as though the only issue is [“]how good of a deal can I get[”] as to whether or not he is going to plead guilty, which has nothing to do with guilt or innocence.
[DEFENSE COUNSEL]: I think it does. And as the Judge knows, there is [sic] a number of times when people enter guilty pleas for other reasons other than belief in their guilt, and they are valid reasons and they are accepted judicial reasons.
Id. at 574-575 (some brackets and emphasis in original). This Court concluded that the trial court properly held that Tennison had not shown a fair and just reason to warrant the withdrawal of his plea. 1
*1135 Dispositive in both [Commonwealth v. Forbes, 450 Pa. 185 , 299 A.2d 268 (1973) ] and [Commonwealth v. Randolph, 553 Pa. 224 , 718 A.2d 1242 (1998) ] was that the defendant made a clear assertion of innocence prior to sentencing, such that it qualified as a fair and just reason permitting the pre-sentence withdrawal of the guilty plea. In contrast, 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. Defense counsel himself conceded at the hearing of May 10, 2005 that he doubted his ability to represent Appellant on the assertion of innocence at a later date if the court granted Appellant’s requested motion for continuance.
Id. at 577-578 (emphases added).
I believe Walker and Tennison should guide our resolution of this case. .As noted above, Appellant made no less than five requests for the trial court to order a polygraph examination. See N.T., 11/30/10, at 122-124,130, 133. In my view, the record reveals that Appellant only wished to withdraw his guilty plea if he could undergo a polygraph examination and if a “full investigation” was conducted. See id. The Majority repeatedly emphasizes that Appellant used the words “I didn’t commit this crime.” Id. at 124; see also Majority Opinion at 1123, 1126. While I certainly agree that Appellant did say these words, that cannot be the end of our inquiry. Rather than look at those five words in isolation, I would review the entire exchange, to understand them in proper context. In looking at all of Appellant’s statements to the trial court, it becomes evident that Appellant only wanted to assert his innocence and withdraw his guilty plea if he could undergo such an examination. Our cases treat this as a conditional withdrawal of a guilty plea, which is not a fair and just reason to do so. Compare Walker, supra at 527 (the defendant stating “I believe that the [Commonwealth] has a tape of a video camera to prove that I’m innocent[ ]”), with N.T., 11/30/10, at 123 (Appellant stating, “I guarantee that if I have a polyester graph [sic ] that everything, every word I said right now would not come out a lie, because I didn’t commit this crime[ ]”). In my view, there is no meaningful distinction between a lack of hypothetical videotape evidence and a lack of hypothetical polygraph evidence.
The Majority concludes, “Appellant’s plea was not conditioned upon a polygraph test. Rather, Appellant maintained that such a test would verify his innocence.” Majority Opinion at 1126 (internal citation omitted). In light of the entire record, I respectfully disagree, as the record forecloses that conclusion. I repeat the following excerpt of Appellant’s statement, which in my view is the most telling of his intentions.
I’m innocent. I got proof if there was an investigation done. Guarantee you if you give me a lie detector [test] it would prove that. If not, you go ahead and give me life. You give me life right now. It doesn’t matter.
*1136 N.T., 11/30/10, at 133 (emphasis added). This statement alone reveals that Appellant asserted his innocence only if the trial court would order a lie detector test. “If not,” Appellant clearly wanted the trial court to impose sentence, which it did. Id. This is far from a “clear” assertion of innocence, as the Majority claims. See Majority Opinion at 1127. Based on all of these considerations, I conclude that Appellant did not provide a fair and just reason for the withdrawal of his guilty plea. See Gordy, supra; Walker, supra; Tennison, supra.
Based on the foregoing, I conclude that the trial court did not abuse its discretion when it denied Appellant’s motion to withdraw his guilty plea. Accordingly, I would affirm the November 30, 2010 judgment of sentence. I respectfully dissent.
. As the Majority points out, in Commonwealth v. Katonka, 33 A.3d 44 (Pa.Super.2011) (en banc ), this Court noted that the Tennison Court "limited its holding to the specific facts of that case.” Id. at 48; see also Tennison, supra at 578 . However, in Katonka , this Court nevertheless accepted Tennison's legal *1135 proposition that a conditional assertion of innocence is not a fair and just reason to permit withdrawal of a guilty plea. See Katonka, supra at 49 (concluding, "[hjere, unlike the circumstances in Tennison , Katonka specifically asserted that he was innocent of the crimes and this assertion was neither contradictory nor conditioned on some other event[]”) (emphasis added).