Withdrawal of nolo contendere plea; sufficiency of assertion of innocence

Commonwealth v. Norton, 2017 WL 1113289 (Pa. Super. 2017) allocatur granted Sept. 19, 2017, appeal docket 53 MAP 2017 (Majority) (Dissent)


Appellant received an aggregate sentence of two to six years’ imprisonment imposed after he pled nolo contendere to indecent assault and corruption of minors, arising from the sexual abuse of a female child at his home between September 2008 and April 2012. The Commonwealth informed appellant that it intended to introduce evidence that he sexually abused his biological daughter in New York between 1985 and 1990, including a handwritten statement admitting that abuse. The trial court denied appellant’s request to preclude the evidence as evidence of prior bad acts.

On November 7, 2014, the day of jury selection, appellant entered into a negotiated nolo contendere plea, which the trial court found appellant entered into voluntarily, knowingly and intelligently. However, on March 23, 2015, appellant filed a Motion to Withdraw Nolo Contendere Plea, based solely on his declaration that he maintained his innocence and could not live with himself taking a plea of nolo contendere.

The trial court granted appellant’s motion based on the applicable standard at the time for nolo contendere withdrawals, but cautioned in its order that two cases before the Pennsylvania Supreme Court at that time, Commonwealth v. Carrasquillo, 115 A.3d 1284 (Pa. 2015) and Commonwealth v. Hvizda, 116 A.3d 1103 (Pa. 2015), were expected to clarify the nolo contendere withdrawal standard. Two days after the Pennsylvania Supreme Court issued its opinion in Carrasquillo, the Commonwealth filed a Motion for Reconsideration of the Order Allowing Withdrawal of Plea, based on clarifications made in Carrasquillo.

Upon consideration of the Pennsylvania Supreme Court’s clarifications in Carrasquillo and Hvizda, the trial court granted the Commonwealth’s Motion for Reconsideration finding that appellant’s two primary arguments, (1) he is innocent and (2) he intended to contest the Commonwealth’s lack of evidence at trial were not novel and reasoned that “both of these assertions were certainly known to [appellant] prior to entry of his negotiated plea and would assuredly have been considered by him and counsel in deciding to accept the plea of nolo contendere.”

Appellant then filed a Motion for Reconsideration, which was denied by the trial court. On August 7, 2015, appellant was sentenced to two to six years’ imprisonment for indecent assault and corruption of minors in accordance with his initial nolo contendere plea.

Appellant appealed to the Superior Court, stating the issue as:

Whether the trial court abused its discretion by granting, then denying [a]ppellant’s pre-trial motion to withdraw nolo contendere plea when [a]ppellant maintained his innocence throughout the pendency of the matter and [a]ppellant’s counsel expressed issues which would have given rise to a defense[?]

The Superior court set forth the applicable abuse of discretion standard of review, explaining “[a]n abuse of discretion exists when a defendant shows any fair and just reasons for withdrawing his plea absent substantial prejudice to the Commonwealth.” The Superior Court then explained the Pennsylvania Supreme Court’s recent updates to the nolo contendere withdrawal standard:

In Carrasquillo, our supreme court clarified that, in the pre-sentence guilty plea withdrawal context, “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.”  Carrasquillo, 115 A.3d at 1292 (citations omitted). The Carrasquillo court rejected the per se approach to innocence claims, holding that “a bare assertion of innocence is not, in and of itself, a sufficient reason to require a court to grant such a request.” Id. at 1285. Rather, the trial court retains a degree of discretion in determining whether the defendant’s innocence claim “is plausible to demonstrate, in and of itself, a fair and just reason for presentence withdrawal of a plea.” Id. at 1292; see also Hvizda, 116 A.3d at 1107.

Relying on Carrasquillo, the trial court noted that appellant’s “mere proclamation of innocence, in and of itself,” was an insufficient basis to allow withdrawal of his nolo contendere plea.

Superior Court affirmed the trial court, finding no abuse of discretion when the trial court denied appellant’s pre-sentence motion to withdraw his nolo contendere plea upon the Commonwealth’s Motion for Reconsideration. In so holding, the Superior Court found “the record supports the trial court’s determination that appellant failed to make a ‘colorable demonstration, under the circumstances, such that permitting withdrawal of the plea would promote fairness and justice’ in accordance with the Pennsylvania Supreme Court’s standard set forth in Carrasquillo.”

Judge Fitzgerald dissented, disagreeing with the majority that Carrasquillo “stands for the proposition that an assertion of innocence alone is insufficient reason for withdrawing a plea before sentencing.” Instead, the dissent argues that Carrasquillo merely affirmed the status quo when evaluating the assertion of innocence and whether the assertion constitutes fair and just reasons to withdraw a plea and that the Carrasquillo court also maintained the distinction between “[t]he policy of liberality” applicable to presentence plea withdrawals and the higher scrutiny of post-sentence withdrawals under the manifest injustice standard.”

Based on this reading of Carrasquillo, the dissent noted that the trial court did not question the quality of appellant’s claim and whether the “assertion of innocence was incredible, implausible, or insincere… bizarre or outlandish… or that Appellant was attempting to manipulate the justice system,” distinguishing appellant’s claim from the “bare assertion of innocence” found in Carrasquillo. Based on the trial court’s failure to determine the quality of appellant’s assertion of innocence and the Commonwealth failure to show that a withdrawal would result in prejudice, the dissent concluded, under the circumstances of this case, that appellant was entitled to relief, calling for reversal of the order denying appellant’s pre-sentence request to withdraw.

The Supreme Court issued a per curiam order granting allocatur to determine the issue presented by the petitioner:

Whether a defendant’s assertion of innocence based on the sufficiency of the evidence and his inability to reconcile entering a plea when he maintained his innocence well before the time of his sentencing and when the Commonwealth made no argument of prejudice, is sufficient to establish a fair and just reason for withdrawing his plea of nolo contendere?

For more information, contact Kevin McKeon or Dennis Whitaker.