Commonwealth v. Norton

• Decision Date: 23 January 2019
• Docket Number: No. 53 MAP 2017,53 MAP 2017
• Citation: 201 A.3d 112
• Parties: COMMONWEALTH of Pennsylvania, Appellee v. Michael NORTON, Appellant
• Court: Pennsylvania Supreme Court

201 A.3d 112

COMMONWEALTH of Pennsylvania, Appellee

v.Michael NORTON, Appellant

No. 53 MAP 2017

Supreme Court of Pennsylvania.

Argued: May 16, 2018

Decided: January 23, 2019

OPINION

JUSTICE BAER

In Commonwealth v. Carrasquillo , 631 Pa. 692, 115 A.3d 1284 (2015), this Court dispelled the notion that a defendant's bare assertion of innocence requires a trial court to grant the defendant's presentence motion to withdraw his guilty plea. Instead, the Carrasquillo Court held that, in the context of such a motion, "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." Carrasquillo , 115 A.3d at 1292. In the matter sub judice , a trial court utilized this standard in denying a presentence motion to withdraw a plea of nolo contendere ,¹ and the Superior Court concluded that the trial court did not abuse its discretion in this regard. This Court granted allowance of appeal to assess whether the Superior Court erred by holding that the trial court properly exercised its discretion in applying the Carrasquillo standard. We hold that the Superior Court correctly concluded that the trial court acted within its discretion by denying the presentence motion to withdraw a plea of nolo contendere . Consequently, we affirm the Superior Court's judgment.

The relevant background underlying this matter can be summarized as follows. In December of 2012, a criminal complaint was filed against Appellant Michael Norton ("Appellant"), charging him with five counts of indecent assault and one count of corruption of minors. According to the complaint and the accompanying affidavit of probable cause, on at least five occasions from September of 2008 through April of 2012, Appellant sexually abused his paramour's granddaughter ("Victim"), born in September of 2004.

On February 27, 2013, a preliminary hearing occurred, where Victim and Corporal James Travis of the Pennsylvania State Police testified. Following that hearing, the magisterial district judge dismissed three counts of indecent assault but bound over for trial the remaining charges. The district judge's decision was based upon his observation that Victim testified specifically to only two alleged incidents of abuse. N.T., 10/15/2013, Exhibit 1, at 21.

On August 7, 2013, Appellant filed an omnibus pretrial motion in which he sought an order precluding the Commonwealth from presenting at trial evidence regarding sexual abuse Appellant allegedly inflicted upon his now-adult daughter ("Daughter") when Daughter was a child in the late 1980s and early 1990s. That evidence included a 1996 statement signed by Appellant in which he admitted to abusing Daughter sexually.² On October 15, 2013, the trial court held a hearing on Appellant's pretrial motion, at which Daughter testified regarding the abuse Appellant allegedly perpetrated upon her. The court ultimately denied Appellant's motion, concluding that the complained-of evidence was admissible as prior bad acts.

On November 7, 2014, trial was scheduled to commence for purposes of jury selection. However, on that date, the parties informed the trial court that they had reached an agreement. Specifically, Appellant agreed to plead nolo contendere to one count each of indecent assault and corruption of a minor in exchange for an aggregate term of imprisonment of two to six years. In the presence of the court, Appellant's attorney conducted a plea colloquy, which was supplemented by questioning by the district attorney regarding the fact that Appellant's plea would require him to be assessed for purposes of determining whether he should be classified as a sexually violent predator. The parties also submitted to the court Appellant's written plea colloquy.

The trial court accepted the plea agreement, ordered Appellant to be assessed by the Sexual Offenders Assessment Board ("SOAB"), and tentatively scheduled sentencing for February 13, 2015. However, on the Commonwealth's motion, sentencing was later rescheduled for May 7, 2015.

On March 23, 2015, Appellant filed a motion to withdraw his nolo contendere plea. In that motion, Appellant asserted his innocence and proclaimed that he could not live with himself for taking a plea under the circumstances. The trial court held a hearing concerning this motion on April 30, 2015. At that hearing, Appellant reiterated that he wanted to withdraw his plea because he was innocent of the crimes to which he pleaded nolo contendere and because he could not live with himself for entering his plea.

At that time, the prevailing law in the Commonwealth required a trial court to grant a presentence motion to withdraw a guilty plea when withdrawal of the plea was based upon a defendant's bare assertion of innocence. See, e.g. , Commonwealth v. Carrasquillo , 78 A.3d 1120 (Pa. Super. 2013) (en banc ), rev'd by Carrasquillo , supra . Consistent with this case law, the trial court granted Appellant's motion on May 29, 2015, and allowed him to withdraw his plea. However, in its order, the court noted that this Court had granted allowance of appeal to review the Superior Court's decisions in Carrasquillo and Commonwealth v. Hvizda , 82 A.3d 470 (Pa. Super. 2013) (unpublished memorandum), rev'd by Commonwealth v. Hvizda , 632 Pa. 3, 116 A.3d 1103 (2015), both of which involved the standard a trial court should apply when a defendant seeks to withdraw a guilty plea presentence based upon a claim of innocence.

On June 5, 2015, this Court decided Carrasquillo and Hvizda , employing Carrasquillo as the lead opinion. In examining whether a defendant's bare assertion of innocence requires a court to allow a defendant to withdraw a guilty plea presentence, the Carrasquillo Court observed that this Court's seminal decision in Commonwealth v. Forbes , 450 Pa. 185, 299 A.2d 268 (1973), reflects that: (1) "there is no absolute right to withdraw a guilty plea;" (2) "trial courts have discretion in determining whether a withdrawal request will be granted;" (3) "such discretion is to be administered liberally in favor of the accused;" and (4) "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." Carrasquillo , 115 A.3d at 1291-92 (citing Forbes , 299 A.2d at 271 ) (footnote omitted). The Carrasquillo Court further observed that the "perfunctory fashion in which these principles were applied to the circumstances presented in Forbes , as well as in the ensuing decision in [ Commonwealth v. Woods , 452 Pa. 546, 307 A.2d 880 (1973) ], also lent the impression that this Court had required acceptance of a bare assertion of innocence as a fair-and-just reason." Carrasquillo , 115 A.3d at 1292. Indeed, the Carrasquillo Court acknowledged the Superior Court's "legitimate perception of a per se rule arising from this Court's decisions[,]" such as Forbes . Id.

In setting out to clarify the law in this area, the Carrasquillo Court adopted the approach of other jurisdictions that require a defendant's claim of innocence to "be at least plausible to demonstrate, in and of itself, a fair and just reason for presentence withdrawal of a plea." Id. Stated more broadly, pursuant to this approach, "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." Id. In closing, the Court stated that the "policy of liberality remains extant but has its limits, consistent with the affordance of a degree of discretion to the common pleas courts."³ Id.

After this Court issued its opinions in Carrasquillo and Hvizda , the Commonwealth, in the case at bar, timely filed in the trial court a motion for reconsideration of its order permitting Appellant to withdraw his plea of nolo contendere . In that motion, the Commonwealth highlighted that the court permitted Appellant to withdraw his plea based solely on an assertion of innocence and that Carrasquillo and Hvizda held that a bare assertion of innocence is not, in and of itself, a sufficient reason to require a court to grant a defendant's presentence request to withdraw a guilty plea.

On June 25, 2015, the trial court entertained argument on the Commonwealth's motion for reconsideration. For its part, the Commonwealth questioned the plausibility and sincerity of Appellant's assertion of innocence and suggested that Appellant simply was seeking to delay the prosecution and the consequences that awaited him. The Commonwealth posited that strong evidence of record indicates that Appellant's assertion of innocence was implausible and that fairness and justice did not require the court to allow Appellant to withdraw his plea.

Appellant's counsel, on the other hand, insisted that Appellant had always maintained his innocence, emphasizing that his nolo contendere plea did not equate to an admission of guilt to the crimes of which he was convicted. In this regard, Counsel also asserted that, when the SOAB interviewed Appellant to assess his sexual offender status, he "refused to participate, maintaining his innocence." N.T., 6/25/2015, at 7. Counsel further stated that, if permitted to withdraw his plea, Appellant intended to contest the Commonwealth's evidence at trial by attacking Victim's credibility, as she answered, "I don't remember," at least 15 times during the preliminary hearing. Id. at 8. Counsel also seemed to insinuate that he would again challenge at trial the admissibility of the prior-bad-acts evidence regarding his sexual abuse of Daughter.

On June 26, 2015, the trial court issued a speaking order granting the Commonwealth's motion for reconsideration and denying Appellant's motion to withdraw his plea. In so doing, the court applied the Carrasquillo standard and concluded that Appellant "did not make a colorable demonstration for withdrawal...