Commonwealth of Pennsylvania, v. Terrell Williams

Commonwealth of Pennsylvania, v. Terrell Williams

Criminal Action-Law-Guilty Plea-Withdrawal Request Prior to Sentencing-Pa.R.Crim.P. Rule 591-Liberal Allowance-Discretion of the Court-Prejudice to the Commonwealth-Assertion of Innocence-Fair and Just Reason for Withdrawal-Information or Reasons Rendering Innocence at Least Plausible

Terrell Williams (“Defendant”) was charged with Simple Assault relating to alleged striking of another person.  On February 9, 2023, the claimant entered a guilty plea under a plea agreement calling for Defendant’s receipt of twenty-three (23) months’ probation.  When Defendant appeared for sentencing on April 5, 2023, he requested to withdraw his guilty plea prior to sentencing.  Following additional proceedings in which the Court determined that the Commonwealth would not suffer prejudice if Defendant were permitted to withdraw his guilty plea, the Commonwealth contested Defendant’s request to withdraw the guilty plea.  Before the Court is a determination of whether Defendant should be precluded from withdrawal of his guilty plea prior to sentencing in the absence of a showing of prejudice.

1.  Pa.R.Crim.P. Rule 591 provides that at any time before the imposition of sentence, the court may permit the withdrawal of a guilty plea.

2.  The Comment to Rule 591 indicates that the court should conduct an on-the-record colloquy to determine whether a fair and just reason to permit the withdrawal of the plea exists and that a request to withdraw a plea made before sentencing should be allowed liberally.

3.  During most of modern legal history, assertion of innocence was deemed to constitute a fair and just reason for permitting withdrawal of a guilty plea.

4.  A defendant does not have an automatic right to withdraw a guilty plea prior to sentencing.

5.  A trial court has discretion to grant or deny a presentence request to withdraw a guilty plea.

6.  The court must evaluate a presentence request to withdraw a guilty plea liberally in favor of the defendant.

7.  If the Commonwealth is able to establish prejudice flowing from the plea withdrawal, the withdrawal should not be permitted.

8.  If the Commonwealth does not establish prejudice, the court must consider whether a defendant has established whether a fair and just reason exists for the plea withdrawal.

9.  A proclamation of innocence can constitute a fair and just reason if it is accompanied with information or reasons that render the claim of innocence at least plausible.

10.  Plea withdrawal requests that are proffered promptly will be considered more favorably than those that are unreasonably delayed.

11.  Plea withdrawal requests proffered as part of a pattern of gamesmanship are to be viewed more skeptically than those proffered by a litigant who has acted reasonably during the litigation process.

12.  Since the Court determined that the Commonwealth will not be prejudiced by the withdrawal of the guilty plea, Defendant will be provided an opportunity to present information or reasons that render his claim of innocence plausible in support of his request to withdraw his guilty plea. 

L.C.C.C.P. No. CP-38-CR-0000398-2022, Opinion by Bradford H. Charles, Judge, August 24, 2023.

IN THE COURT OF COMMON PLEAS LEBANON COUNTY

PENNSYLVANIA

CRIMINAL DIVISION

COMMONWEALTH OF                                        : 

PENNSYLVANIA                                                    :                                                                                                                                                           :           NO. CP-38-CR-398-2022

            v.                                                                     :          

                                                                                    :

TERRELL WILLIAMS                                          :

ORDER OF COURT

AND NOW, this 24^th day of August, 2023, in accordance with the attached Opinion, a hearing is to be conducted on the 4^th day of October, 2023, at 3:00pm in Courtroom #3.  At this hearing the Court will receive any information, argument or evidence the Defendant wishes to present in support of his request to withdraw his plea of guilty.

A copy of this Order is to be provided to the District Attorney of Lebanon County and to the Defendant at the address he provided to this Court.

                                                                        BY THE COURT:

                                                                                                                         J.

                                                                        BRADFORD H. CHARLES

BHC/pmd

cc:       Court Administration

District Attorney

Terrell Williams// 1103 Lehman Street, Apt 1, Lebanon PA 17046-4608

IN THE COURT OF COMMON PLEAS LEBANON COUNTY

PENNSYLVANIA

CRIMINAL DIVISION

COMMONWEALTH OF                                        : 

PENNSYLVANIA                                                    :                                                                                                                                                           :           NO. CP-38-CR-398-2022

            v.                                                                     :          

                                                                                    :

TERRELL WILLIAMS                                          :

APPEARANCES

Nichole Eisenhart, Esquire                                      For Commonwealth of

DISTRICT ATTORNEY’s Office                          Pennsylvania

Terrell Williams                                                                    pro se

OPINION BY CHARLES, J., August 24, 2023

            This case implicates the question of whether and how a Defendant can proffer a pre-sentence request to withdraw his plea of guilty.  Relying upon a 2015 Pennsylvania Supreme Court case, the Commonwealth asserts that it is irrelevant whether or not it would suffer prejudice as a result of the plea withdrawal.  Relying upon a host of pre-2015 cases, the Defendant asserts that he has an automatic right to withdraw his plea at any time prior to sentencing so long as he simply says “I am innocent.”  Because we conclude that reality falls between the two polarized positions of the parties, we set forth this Opinion to articulate how this Court will handle pre-sentence motions to withdraw going forward. 

I.     FACTS

            On March 16, 2022, Terrell Williams (hereafter DEFENDANT) was charged with Simple Assault.  He was alleged to have attacked and punched another man, causing abrasions, swelling and pain. 

            DEFENDANT waived arraignment on April 27, 2022.  An attorney was appointed to represent him and the case was scheduled for the September 2022 term of Criminal Court.  On September 6, 2022, DEFENDANT sought and procured a continuance until the November term of Court.  On November 1, 2022, DEFENDANT sought and obtained another continuance request, this time until the February 2023 term of Court.  DEFENDANT signed both continuance requests.

            On January 31, 2023, DEFENDANT filed a Certificate of Trial Readiness.  The case was scheduled for trial on February 13, 2023. 

            On February 9, 2023, DEFENDANT entered a plea of guilty pursuant to a plea agreement that called for him to receive 23 months of probation.  Sentencing was scheduled for April 5, 2023. 

            On April 5, 2023, DEFENDANT appeared for sentencing.  He stated that he wanted to withdraw his plea.  We scheduled a hearing to determine whether the Commonwealth would suffer prejudice as a result of DEFENDANT’s plea withdrawal.  That hearing was scheduled for April 26, 2023.  On that date, we denied DEFENDANT’s request to withdraw his plea because the Commonwealth indicated it could not locate the victim of the offense and we concluded that a plea withdrawal would cause prejudice to the Commonwealth.  We scheduled sentencing for May 17, 2023. 

            Between April 26, 2023 and May 17, 2023, the Commonwealth located the victim.  Before sentencing commenced on May 17, 2023, the prosecutor advised the Court that she knew where the victim was located.  However, the prosecutor also indicated that she had not spoken with the victim “so I am not sure at this point if he is cooperative.”  The prosecutor stated “We may still be prejudiced, but given the short time frame involved in rescheduling this hearing, I haven’t been able to do what I wanted to do with respect to talking to him, locating him, those sorts of things.” (5-17-23 N.T. 3). 

            Following the above exchange, we conducted a Grazier Hearing because DEFENDANT insisted that he wanted to represent himself.  As a result of the colloquy we conducted, DEFENDANT’s attorney was excused from further representation of DEFENDANT. 

            We afforded the Commonwealth with thirty (30) additional days to investigate whether it would suffer prejudice.  DEFENDANT was incensed with our decision.  Nevertheless, we scheduled another hearing regarding withdrawal of the plea for June 21, 2023. 

            The parties appeared again on June 21, 2023.  At that time, the Commonwealth indicated that it had been able to contact the victim and the victim did recall the incident in question.  As a result, this Court determined that the Commonwealth would not suffer prejudice if DEFENDANT were permitted to withdraw his plea of guilty.  At that point, the prosecutor argued that DEFENDANT should not have a right to withdraw his plea simply by proclaiming innocence.  We ordered that briefs be filed regarding the Commonwealth’s legal argument.  The Commonwealth has filed a brief.  DEFENDANT filed nothing.  The issue of whether DEFENDANT should be permitted to withdraw his plea of guilty in the absence of prejudice is now before this Court for disposition.

II.    LEGAL PARADIGM

            A request to withdraw a plea of guilty is governed by Pa.R.Crim.P. 591, which states:

“Rule 591. Withdrawal of plea of guilty or nolo contendre

• 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 contendre and the substitution of a plea of not guilty.
• When a defendant moves for the withdrawal of a plea of guilty or nolo contendre, the attorney for the Commonwealth shall be given ten days to respond.”

The official comment to Rule 591 states that trial court “should conduct an on-the-record colloquy to determine whether a fair and just reason to permit the withdrawal of the plea exists.” Moreover, the comment also indicates that “a request to withdraw a plea made before sentencing should be liberally allowed.”  Citing Commonwealth v. Randolph, 718 A.2d 1242 (Pa. 1998). 

            During most of modern jurisprudential history, assertion of innocence was deemed to constitute a “fair and just reason for permitting withdrawal of a guilty plea.”  See, Commonwealth v. Boofer, 375 A.2d 173 (Pa. Super. 1977); Commonwealth v. Iseley, 615 A.2d 408 (Pa. Super. 1992) and Commonwealth v. McCall, 467 A.2d 631 (Pa. Super. 1983) (Where no substantial prejudice is inflicted upon the Commonwealth as a result of a guilty plea withdrawal, the mere assertion of innocence is a fair and just reason for permitting the withdrawal of a guilty plea prior to sentencing.).  That said, a defendant’s contention that he possessed a possible defense did not necessarily rise to the level of constituting an “assertion of innocence” so as to justify withdrawal of a plea.  See, Commonwealth v. Kay, 478 A.2d 1366 (Pa. Super. 1984). 

            In 2015, Pennsylvania’s highest Court issued two Opinions regarding pre-trial plea withdrawals.  In Commonwealth v. Carrasquillo, 115 A.3d 1284 (Pa. 2015) the Court addressed a pre-trial request to withdraw a plea in the context of a case involving sexual assault of two underage victims.  At sentencing, the defendant proclaimed that the CIA had victimized him and that the anti-Christ lived within him.  He claimed that he did not commit the assault and had been framed.  He insisted that a polygraph test would prove his innocence.  The prosecutor responded to this outburst by claiming that the Commonwealth would suffer prejudice by forcing the children to testify, thereby re-opening “old wounds.”  The trial court reasoned that the defendant’s claim of innocence – premised in part upon his explanation that he had been framed by the CIA – was “implausible, insincere, and nothing more than an attempt to manipulate the justice system by introducing a belated competency-based defense.” (Id at page 1287).  The trial court denied the defendant’s request to withdraw his plea.  The Superior Court reversed, reasoning that any proclamation of innocence articulated before sentencing should be deemed a fair and just reason for a plea withdrawal.  It is in this context that the Pennsylvania Supreme Court ruled:

“There is no absolute right to withdraw a guilty plea; trial courts have discretion in determining whether a withdrawal request will be granted; such discretion is to be administered liberally in favor of the accused; and any demonstration by a defendant of a fair-and-just reason will suffice to support a grant, unless withdrawal would work substantial prejudice to the Commonwealth…

We are persuaded by the approach of other jurisdictions which require that a defendant’s innocence claim must be at least plausible to demonstrate, in and of itself, a fair and just reason for pre-sentence 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 page 1292.

Based upon this standard, the Supreme Court reversed the Superior Court and reinstated the judgment of sentence imposed by the trial court. 

            The reasoning of Carrasquillo was also applied by Pennsylvania’s Supreme Court on Commonwealth v. Hvizda, 116 A.3d 1103 (Pa. 2015).  In Hvizda, the defendant was charged with stabbing and killing his wife.  When he appeared for sentencing, he stated: “I am here to maintain my innocence in the charge of Murder in the First Degree.”  No evidence was proffered by the defendant in support of his bald proclamation of innocence.  The trial court denied the defendant’s Motion to Withdraw, stating that it had the ability to adjudge the sincerity of an innocence claim in determining whether the defendant possessed a “fair and just” reason for withdrawal of a plea.  The trial court also considered the fact that the defendant had confessed to the murder and that his “bald assertion of innocence was at best pretextual and an attempt to manipulate the system.” Id at page 1105.  Once again, the Superior Court vacated the trial court’s decision and remanded with instructions that the court accept the defendant’s plea withdrawal.  While the Supreme Court affirmed the liberal standard by which plea withdrawals should be assessed, it once again emphasized that there is no per se right to withdraw a plea based merely upon a proclamation of innocence.  Citing its reasoning in Carrasquillo, the Supreme Court again reversed the Superior Court and affirmed the trial court’s decision to deny the withdrawal motion.

            Since 2015, our Supreme Court has reaffirmed the premise that trial courts have discretion when confronting a pre-trial request to withdraw a plea.  In Commonwealth v. Norton, 201 A.3d 112 (Pa. 2019), the Supreme Court stated: “We reiterate that the Carrasquillo court overruled a relatively long line of precedent which, understandably but mistakenly, required trial courts to grant pre-sentence motions to withdraw guilty pleas based upon defendants’ bare assertions of innocence.” Id at page 120.  The Court emphasized that innocence claims “must be at least plausible to demonstrate, in and of itself, a fair and just reason for pre-sentence withdrawal of a plea.”  That said, the Court in Norton recognized that a trial court’s discretion “is not unfettered.”  The Court stated: “A court’s discretion in ruling on a pre-sentence motion to withdraw a guilty plea must be informed by the law, which, for example, requires courts to grant these motions liberally, and to make credibility determinations that are supported by the record.” Id at page 121. 

As to the facts before it, the Court in Norton rejected a request to withdraw a plea wherein the defendant proclaimed he was innocent and that he “cannot live with himself for taking a plea”. The Court declared that the defendant’s belated wish for a trial fails to bolster his claim of innocence, particularly in light of the fact that any vulnerability in the Commonwealth’s evidence, specifically victim’s testimony, was well known to Appellant prior to him entering his plea.” Id at page 121.  Due in part to the fact that the trial court considered the fact that the defendant had full knowledge of his available defenses when he entered a plea of guilty, the Court affirmed the lower court’s denial of the defendant’s plea of guilty. 

Notwithstanding the ruling outlined above, five Justices of the Supreme Court wrote separately to affirm the liberality with which plea withdrawal requests should be considered.  Two Justices cited language in the case of Commonwealth v. Islas, 156 A.3d 1185, 1190 (Pa. Super. 2017) – “Nothing in Carrasquillo suggests that the court intended the pendulum to swing fully in the other direction – from automatic grants to automatic denials of pre-sentence motions to withdraw.” 

            As can be imagined, the above legal paradigm has resulted in seemingly inconsistent results.  For example, in Commonwealth v. Islas, 156 A.3d 1185 (Pa. Super. 2017), the Court determined that a defendant should be entitled to withdraw his plea of guilty where his motion to withdraw was proffered just one month after the plea was entered and, in addition to maintaining innocence, he proffered evidence that the alleged victim had a motive to fabricate a statement.  Similarly, in Commonwealth v. Garcia, 280 A.3d. 1019 (Pa. Super. 2022), the Court permitted a withdrawal where the defendant proclaimed innocence and presented additional information that the victim had permitted him to stay at her house even after a PFA Order had been entered against him.  The Court determined that the defendant proffered more than a mere “makeweight” assertion of innocence.  On the other hand, in Commonwealth v. Blango, the Court affirmed a denial of a pre-trial motion to withdraw that was proffered after the Commonwealth published a pre-trial sentencing memorandum in which it recommended 35-70 years in prison.  The Court determined that the Defendant’s withdrawal was motivated by potential of a lengthy prison sentence instead of by a claim of actual innocence. 

            The recent Pennsylvania Superior Court decision of Commonwealth v. McLendon, 293 A.3d. 658 (Pa. Super. 2023) is also relevant.  In McClendon, the defendant was observed to have a “contentious relationship” with his own attorney.  While represented, the defendant plead guilty to a charge of Aggravated Assault in return for dismissal by the Commonwealth of numerous other charges.  On the day of his scheduled sentencing hearing, the defendant filed a pro se motion to withdraw his plea of guilty.  The court delayed sentencing as a result and set forth to determine whether the defendant still wished to be represented by counsel and whether he still wished to plead guilty.^[1]  Ultimately, the trial court denied the defendant’s pro se request to withdraw his plea.

            Citing Commonwealth v. Garcia, supra, the Court in McLendon articulated the following standard for pre-sentence plea withdrawal requests:

“[T]he standard for pre-sentence plea withdrawal is a very liberal one, governed by the following considerations:

• There is no absolute right to withdraw a guilty plea;
• Trial courts have discretion in determining whether a withdrawal request will be granted;
• Such discretion is to be administered liberally in favor of the accused; and
• Any demonstration by a defendant of a fair-and-just reason will suffice to support a grant, unless withdrawal would work substantial prejudice to the Commonwealth.”

Id at page 663.

The Court in McClendon once again emphasized that prior to sentencing, “the courts should show solicitude for a defendant who wishes to undue a waiver of all Constitutional rights that surround the right to a trial – perhaps the most devastating waiver possible under our Constitution.” Id at page 663.  The Superior Court quoted extensively the defendant’s guilty plea colloquy, during which he acknowledged that he committed the crime in question.  The Court also described at length all of the tactics employed by the defendant to delay his case and self-sabotage his relationship with court-appointed counsel.  The Court concluded:

“[A]s we will discuss regarding Appellant’s second assertion of error, Appellant’s disagreements with counsel and dilatory behavior persisted throughout the trial court proceeding.  His vague assertions of dissatisfaction with counsel at his guilty plea colloquy, detailed above, are just one example.  We discern no abuse of discretion in the trial court’s denial of Appellant’s motion to withdraw his guilty plea.”

Id at page 666.

Sifting through all of the above, these are the conclusions we reach regarding pre-sentence motions to withdraw a plea of guilty:

• A defendant does not have an automatic right to withdraw a plea of guilty prior to sentencing;
• A trial court has the discretion to either grant or deny a pre-sentence request to withdraw a plea;
• Because trial by jury is a fundamental Constitutional right, a court must evaluate a plea withdrawal request liberally in favor of a defendant;
• Prejudice to the Commonwealth is always a factor that must be considered when a plea withdrawal request is made.^[2]  If a plea withdrawal is proffered, the court must provide the Commonwealth with time to ascertain whether prejudice exists.  If the Commonwealth can establish prejudice flowing from the plea withdrawal, the withdrawal should not be permitted.
• If the Commonwealth does not establish prejudice, the court should consider whether a defendant has established whether a “fair and just reason” exists for the plea withdrawal.  A proclamation of innocence can be a “fair and just reason” if it is accompanied with information or reasons that render the claim of innocence “at least plausible.”
• The timing of a request to withdraw a plea is relevant.  Generally speaking, plea withdrawal requests that are proffered promptly will be more favorably considered than those that are unreasonably delayed.
• Plea withdrawal requests that are proffered as part of a pattern of gamesmanship by a defendant are to be viewed more skeptically than those that are proffered by someone who has acted reasonably during the litigation process. 

            In this case, we did provide the Commonwealth with an opportunity to establish prejudice.  To its credit, the District Attorney’s Office volunteered that it was able to locate the victim and that he remembered the events in question.  Because of this, the Court was able to conclude that the Commonwealth did not suffer prejudice. 

            Because we were so focused upon the issue of prejudice and the Commonwealth’s argument that lack of prejudice was immaterial, we have not yet afforded DEFENDANT with an opportunity to present information or evidence in support of his “I am innocent” claim.  At this point, all we have on the record is one or two statements DEFENDANT made in passing to the effect that “I did not do this.”  We have nothing more.  Out of fairness, we will afford DEFENDANT with an opportunity to provide whatever other information he has in support of his motion for plea withdrawal.  A hearing to receive this information will be scheduled as promptly as possible. 

III.   CONCLUSION

             Our analysis of DEFENDANT’s motion to withdraw his plea is not yet complete.  However, the process we have employed to analyze DEFENDANT’s plea withdrawal request is one that we will be using going forward.  That process is:

• When a request for withdrawal of a plea is proffered prior to sentencing, we will afford the Commonwealth at least ten (10) days to investigate whether it suffered prejudice as required in Pa.R.Crim.P 591.
• At a hearing regarding the plea withdrawal, we will hear information from the Commonwealth regarding the issue of prejudice.  If no prejudice is established, we will also hear any information or argument the defendant wishes to proffer to corroborate his/her claim that a fair and just reason exists for the plea withdrawal.  If the defendant proffers innocence as a reason, we will hear additional information or argument to support the notion that he/her claim of innocence is “at least plausible”.^[3]  We will then consider everything before rendering a decision about whether the defendant should or should not be permitted to withdraw his/her plea.

In this case, the second prong of the above process has taken longer than it will in the future given the request of the Court for legal briefs.  In this case, we have already conducted a hearing at which we determined the Commonwealth did not suffer prejudice.  Now, the only remaining issue is whether DEFENDANT is willing or able to provide additional information in support of his proclamation of innocence.  Once we afford DEFENDANT with the opportunity to provide such information, we will render a prompt decision consistent with the law outlined in this Opinion.

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[1] Without conducting a waiver of counsel colloquy pursuant to Pa.R.Crim.P. 121, the trial court heard the defendant’s argument regarding withdrawal of his plea.

[2] If this were not the case, §§ (B) of Rule 591 would be meaningless, and we will not presume that the Supreme Court promulgated a meaningless Rule.  Because of the existence of §§ (B), we will always ask the Commonwealth to undertake a prejudice analysis when a defendant proffers a request to withdraw a plea. Moreover, we will give the Commonwealth time to conduct its investigation regarding prejudice.

[3] Our Appellate Courts have never defined the term “at least plausible.”  We have to trust that, like the United States Supreme Court’s definition of pornography, we will “know it when we see it.”