J-S39035-13


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


COMMONWEALTH OF PENNSYLVANIA                :     IN THE SUPERIOR COURT OF
                                            :          PENNSYLVANIA
                                            :
                    v.                      :
                                            :
                                            :
WILLIAM CRAIG CARNELL                       :
                                            :           No. 1210 MDA 2012
                          Appellant         :

            Appeal from the Judgment of Sentence February 7, 2013
                In the Court of Common Pleas of Fulton County
               Criminal Division No(s).: CP-29-CR-0000065-2011


BEFORE: FORD ELLIOTT, P.J.E., PANELLA, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                   FILED SEPTEMBER 21, 2016

        The Pennsylvania Supreme Court has vacated this Court’s prior order

and remanded this matter for reconsideration in light of Commonwealth v.

Carrasquillo, 115 A.3d 1284 (Pa. 2015). See Commonwealth v. Carnell,

1210 MDA 2012 (Pa. Super. Jan. 15, 2014) (unpublished memorandum),

vacated and remanded, 123 A.3d 1063 (Pa. 2015).                Following remand,

Appellant asserts that the trial court abused its discretion by finding his

assertion of innocence did not establish a fair and just reason to withdraw

his no-contest plea before sentencing. We are constrained to affirm.

        A twenty-page affidavit of probable cause set forth the charges against

Appellant and his wife, Melissa Ann Carnell (“Co-defendant”). In November

*
    Former Justice specially assigned to the Superior Court.
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or December 2005, Appellant and Co-defendant became involved in the

financial affairs of Appellant’s mother, Margaret Carnell (“Peggy”).             Aff. of

Probable Cause, 3/29/11, at 12. In 2006, they obtained powers of attorney

for Peggy and Appellant’s brother, John, who is deaf and speech impaired

and requires the use of a wheelchair.         Id. at 1, 12.       Appellant and Co-

defendant moved Peggy and John from Peggy’s homestead to a doublewide

trailer on two-acres of land, both of which they purchased using Peggy’s

funds. Id. at 1-2.

       According   to   the    Commonwealth,      Appellant   and        Co-defendant

“proceeded to misappropriate Peggy’s and John’s assets so that by January

2008 Peggy was left with virtually no assets in banks, a $120,000.00

mortgage on a home that she no longer occupied, and more than

$43,000.00 in credit card debt.”        Id. at 12.    Appellant and Co-defendant

used Peggy’s assets for their personal benefit, including alleged purchases of

a backhoe, a boat, trailers for the backhoe and boat, a dump truck, and

land. Id. at 5-6, 13, 20. Appellant’s relatives also questioned his and Co-

defendant’s ability to take a vacation to Raystown Lake. Id. at 6.

       Co-defendant also obtained funds from the United Cerebral Palsy

Association for the installation of a wheelchair ramp and handicap bathtub

for John’s use.    Id. at 9.    Although Co-defendant ordered a bathtub and

certified that it was satisfactory, the tub was not paid for or installed. Id. at

8-9.     Co-defendant,    using   her    power   of   attorney,    and    even    after



                                        -2-
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relinquishing her power of attorney, endorsed and deposited John’s social

security disability checks into her and Appellant’s account. Id. at 17-18.

      In January 2008, Peggy’s daughter, Tena Booth, visited Peggy and

discovered her on the couch and John crying.      Id. at 6. Tena called 911.

Id.   Appellant arrived at the scene, told Tena that Peggy did not need

medical care, and later told the paramedics that he did not want them to

take her to the hospital.   Id.   Peggy was taken to the hospital where she

was diagnosed with a stroke.      Id. at 3.   John was also in poor physical

condition, and the toilet he was using was broken. Id. at 4, 7. In February

and March of 2009, Tena discovered that Appellant and Co-defendant had

mortgaged Peggy’s former home and were behind on taxes for that property

since 2007.    Id. at 6.    The Office of the Attorney General began an

investigation, which included a forensic audit and interviews of Appellant’s

relatives and other witnesses, including bank employees.

      On March 29, 2011, a criminal complaint was filed against Appellant

and Co-defendant. Appellant was charged with two felony counts of theft by

unlawful taking and one count of conspiracy.1 Appellant and Co-defendant

retained private counsel, Casey G. Shore, Esq., and waived their preliminary

hearings. The Commonwealth filed an information reciting the charges and



1
  The thefts were graded as felonies of the third degree. Co-defendant was
charged with an additional count of theft by failure to make required
disposition.



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alleging that the criminal activities occurred “on or about late 2005 to early

2008.” Information, 4/18/11, at 1.

       On July 12, 2011, Appellant and Co-defendant appeared before the

Honorable Carol L. Van Horn and orally requested a continuance to obtain

counsel.    Appellant asserted, “We just ain’t had the money to get an

attorney.” N.T., 7/12/11, at 2. Co-defendant explained that they could not

afford to continue to retain Attorney Shore and told the court, “We’d like to

hire a local attorney and have representation in order to come to a plea

agreement . . . .” Id. at 3.

       The Commonwealth did not oppose Appellant’s and Co-defendant’s

July 12, 2011 requests for a continuance.         Id. at 5.      The Commonwealth

represented that Appellant and Co-defendant “indicated at least that they

want   to   resolve   this   without   trial.”   Id.   at   4.     Additionally,   the

Commonwealth suggested Attorney Shore thought “it would be better if they

not retain him so they could put that money towards restitution in this

case.” Id. at 4. The trial court granted the continuance, but warned that

Appellant and Co-defendant or their counsel should be prepared to proceed

at the October trial term. Id. at 5.

       Appellant and Co-defendant failed to appear at a scheduled hearing on

October 11, 2011, and the trial court issued bench warrants.             On October

18, 2011, Appellant and Co-defendant appeared for a hearing before the




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Honorable Richard J. Walsh.2          At the beginning of the hearing, the

prosecutor averred that he met with Appellant and Co-defendant and they

executed waiver-of-counsel forms in his presence.3         The prosecutor also



2
  The trial court and the Commonwealth accepted Appellant’s and Co-
defendant’s explanation that they missed the October 11, 2011 hearing due
to an error in their calendar.
3
    The written waiver of counsel form was included in the record and read:

              1. I understand that I have the right to be
              represented by an attorney, and the right to have a
              free attorney appointed if I am indigent.

              2. I understand the nature of the charges against me
              and the elements of each of those charges.

              3. I am aware of the permissible range of sentences
              and/or fines for the offenses charged.

              4. I understand that if I waive my right to an
              attorney, I will still be bound by all the normal rules
              of procedure and that an attorney would be familiar
              with those rules.

              5. I understand that there are possible defenses to
              these charges that an attorney might be aware of,
              and if these defenses are not raised at trial they may
              be lost permanently.

              6. I understand that in addition to defenses I have
              many rights that, if not timely asserted may be lost
              permanently; and that if errors occur and are not
              timely objected to, or otherwise timely raised by me,
              these errors may be lost permanently.

           The Judge has explained all of these things to me, or they
           have been explained to me in the presence of the Judge.
           It is my desire to give up my rights to have an attorney



                                       -5-
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represented that Appellant and Co-defendant intended to enter nolo

contendere pleas to the charges against them. The prosecutor passed the

waiver-of-counsel and plea colloquy forms to the court, and the following

exchange ensued:

           The court: Okay, addressing [Appellant] and [Co-
        defendant], the Court is looking at documents entitled
        waiver of counsel pursuant to Pennsylvania Rule of
        Criminal Procedure 121, and I want to show it to both of
        you. It looks to me like we have got signatures from each
        of you at the bottom of these pages, is that correct [to
        Appellant]?

           [Appellant]: Yes.

           The court: [addressing Co-defendant]

           [Co-defendant]: Yes.

           The court: Did you have a chance to read through the
        documents?

           [Co-defendant]: Yes, we did.

           [Appellant]: Yes, Your Honor.

           The court: They explain your right to counsel and
        proceedings of this nature and I have been told by [the
        prosecutor] you are here today for the purpose of entering
        no contest pleas. Do you have any questions for the Court
        about your right to counsel in these proceedings or about
        anything you that read on these waivers?

           [Appellant]: No.



        represent me in this case and to proceed with this case
        without an attorney.

Waiver of Counsel Pursuant to Pa.R.Crim.P. 121, 10/18/11.



                                   -6-
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           [Co-defendant]: No, Your Honor.

            The court: Don’t want you to be bashful. I need you to
        understand certain things.       This is obviously a very
        important proceeding in your lives, and in a proceeding
        like this, having read this, you know that you have a right
        to a lawyer. You know that that means you can engage a
        lawyer on your own if you would you like to do that, and
        you know that if you assert to the Court that you can’t
        afford a lawyer and if the Court is convinced that you can’t
        afford a lawyer, and you want a lawyer, you would then
        have the right to court appointed counsel.          Do you
        understand those things?

           [Co-defendant]: Yes, Your Honor.

           [Appellant]: Yes, Your Honor.

           The court: Are both of you prepared to proceed today
        with entering pleas without the benefit of counsel
        representing you?

           [Co-defendant]: Yes.

           [Appellant]: Yes, Your Honor.

           The court: All right. The Court’s satisfied.

Id. at 4-5. The prosecutor thereafter conducted the plea colloquies with Co-

defendant and then Appellant.4 The court accepted the pleas and deferred

sentencing for the preparation of presentence investigation reports.

     At the sentencing hearing convened on November 29, 2011, the

following exchange occurred:



4
  During the plea colloquy with Appellant, the prosecutor noted that
Appellant indicated that he understood and could write English, but had
some difficulty reading. N.T., 10/18/11, at 18.



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          The court: I want to do this individually. Speaking first
       with [Appellant].

                               *    *     *

          [The court]. Do you understand you are here today for
       the purpose of having sentence imposed?

          [Appellant]. Yes, Your Honor.

          [The court]. Do you understand that at a proceeding in
       which you are here to be sentenced, you have the right to
       be represented by a lawyer?

          [Appellant]. Yes.

          [The court]. Do you understand you have that right?

          [Appellant]. Yes.

           [The court]. Do you also understand that if you would
       like a lawyer to represent you and can convince the Court
       that you cannot afford a lawyer, the Court will appoint a
       lawyer to represent you without any cost to you; do you
       understand that?

          [Appellant]. Yes.

          [The court]. Have you made any effort to obtain counsel
       to represent you here today?

          [Appellant]. No, Your Honor.

         [The court]. Do you have any questions for me about
       your right to counsel on these proceedings?

          [Appellant]. No, Your Honor.

          [The court]. No questions. Are you prepared to proceed
       today without the benefit of the Court assigning counsel or
       would you like the Court to assign counsel?

          [Appellant]. We would like to get counsel.



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           [The court]. What was that; you’d like to have counsel?

           [Appellant]. Yes.

           [The court]. Are you able to afford counsel?

           [Appellant]. No.

          [The court]. Tell me a little bit more about that. What’s
        your source of income?

           [Appellant]. I guess about $2,500.00 a month.

           [The court]. You have to speak up.

           [Appellant]. $2,500.00 a month.[5]

            [The court]. All right. This is pretty serious stuff, do you
        all know that?

           [Appellant]. I know that.

            [The court]. Is there some particular reason why before
        coming in here today you didn’t try to make some effort to
        get counsel or—I mean, when I asked you said you didn’t
        even try and I’m wondering, it’s not like someone told you
        it’s too expensive if you didn’t even try?

           [Appellant]. Yes. I really didn’t have the money.

           [The court]. All right.

           The court: [Co-defendant], let me speak with you. . . .

                                     *    *    *



5
  In the affidavit of probable cause, it was noted that in 2006, Appellant
received $28,729.02 in payroll payments, and obtained a worker’s
compensation payment of $9,347 for a 2002 claim. Aff. of Probable Cause
at 15. Peggy also sold Appellant and Co-defendant thirty acres of land in
2003.



                                         -9-
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          [The court]. Have you made any effort to obtain a
     lawyer at your own expense?

            [Co-defendant]. Yes, Your Honor. I did make inquiries
     to different law offices and received quotes for an amount.

           [The court]. Received quotes for today?

          [Co-defendant]. Yes.     And, that was $2,500.00 which
        we don’t have.

           [The court]. How many offices did you call?

           [Co-defendant]. Four or five.

           [The court]. Do you remember who they were?

           [Co-defendant]. I can get them for you. I have them all
        written down.

           [The court]. Do you remember any of them?

          [Co-defendant]. There was one, Abums. It was a funny
        name, in Chambersburg.

           [The court]. Abom and Kutulakis?

           [Co-defendant]. Yes.

           [The court]. Anybody else?

          [Co-defendant].    Not   that—I   can’t   remember   their
        names.

          [The court]. All right. Do you have any questions for
        me about your right to counsel?

           [Co-defendant]. We feel that we need representation
        for this. . . .

N.T., 11/29/11, at 2-5.




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        The Commonwealth asserted that it “fel[t] it’s been a little bit jerked

around by the defendant[s].” Id. at 8. The prosecutor noted that Appellant

and Co-defendant “appeared to be comfortable with their decision not to

have an attorney” when they entered their pleas on October 18, 2011. Id.

at 7.    He also represented that he met Co-defendant “about two or three

weeks ago” regarding restitution and “there was no mention of the desire to

retain counsel.”    Id.   at 7-8.   He noted, “I’m not sure whether it be the

recommendation of the presentence report or whether that’s motivating

[Appellant and Co-defendant] at this point.” Id. at 8.

        The trial court asked Appellant whether he was surprised by the

recommendations of the probation department. Id. at 9. Appellant replied,

“Yes[.]” Id. The court concluded:

          If nothing else, the Court believes, on the basis of their
          pleas, that we don’t have any good reason to believe
          anything that they say based on the charges and based
          upon their pleas. On the other hand, the Court is looking
          down the pike and what we’ll be facing if there’s a request
          for counsel and we go through a sentencing proceeding, in
          which they are facing, at least one of them, very, very
          substantial time without the appointment of counsel. And,
          I’m not so sure that I want to go through a sentencing
          proceeding in which they don’t have someone advocating
          on their behalf.

             Number 1, given that the sentence urged are [sic]
          serious and also given that the recommendations,
          especially in the case of [Co-defendant] with respect to
          counts 1 and 4, and with [Appellant] with respect to
          counts 1 and 3, the recommendations are at the highest
          end of the standard range.      You know, we’ve got a
          standard range that runs from to 9 to 16 months and
          we’ve got recommendations for 16 months. It would seem


                                      - 11 -
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        that if they had advocates, advocates might strongly
        consider to the Court that we ought to consider something
        other than the high end of the standard range.

           The Court is also in the unfortunate circumstance, when
        I have two defendants standing in front of me saying that
        they want counsel to be able to proceed with their case. I
        think the Court’s in an awkward position that we can’t
        proceed without giving them counsel.

                                *     *      *

        . . . I just want to make sure that there is no light—I want
        to make sure that there’s no situation in which [Appellant
        and Co-defendant] could make the case if they stood
        before the Court indicating before we sent them up state,
        which is the way it looks now, based on the
        recommendations. But, before we did that, that they
        asked for counsel and the Court to appoint counsel. Given
        that it may ultimately fall on the tax payers of Fulton
        County, as much as it has already, the Court is still
        inclined to appoint counsel. Whether they can afford it or
        not at this point, and we don’t have time to get into
        proceedings about how much money they all make.

Id. at 10-12.

     The trial court entered an order appointing present counsel to

represent Appellant. The court, however, indicated that it had “the distinct

impression that [Appellant and Co-defendant have] waffled on their intention

to hire counsel or their desire to have counsel.” Order, 11/29/11. The court

rescheduled sentencing for December 22, 2011, and directed Appellant to

reimburse the county if it was determined he was able to afford counsel. Id.

     The trial court, upon Appellant’s request, continued the sentencing

hearing to February 7, 2012.     On January 24, 2012, Appellant filed a

counseled motion to withdraw his plea. Appellant asserted he had a tenth


                                    - 12 -
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grade education, did not manage his own finances, and “lacked the

sophistication necessary to understand the complex financial allegations

used in support of the charges against him.”        Appellant Mot. to Withdraw

Nolo Contendere Plea Prior to Sentence, 1/24/12, at 2 (unpaginated).           He

also averred that he did not receive discovery before entering his plea and

following counsel’s review of the evidence, he wished to contest the charges

and proceed to trial. Id. at 2-3. Appellant asserted that the withdrawal of

his plea would not prejudice the Commonwealth. Id. at 3. Appellant did not

assert actual innocence in his written motion.

      The Commonwealth filed an answer on February 2, 2012, asserting (1)

Appellant’s   plea   was   knowing,    voluntary,   and   intelligent,   (2)   the

recommendation for prison sentences was the only reason he requested

counsel, and (3) the Commonwealth would suffer prejudice based on the

delay resulting from the difficulties in scheduling trial.     Commonwealth’s

Answer to Appellant’s Mot. to Withdraw, 2/2/12, at 1-3. The Commonwealth

noted Appellant did not assert his innocence. Id. at 2.

      On February 7, 2012, the trial court convened a hearing on Appellant’s

motion to withdraw his plea.6 Appellant stated that he knew more about his

case than when he entered his plea.            N.T. Mot. to Withdraw Plea &

6
   Immediately before convening the hearing on Appellant’s motion to
withdraw his plea, the trial court sentenced Co-defendant to nine to forty-
eight months’ imprisonment followed by two consecutive eighty-four month
probationary terms. There is no indication that Co-defendant sought to
withdraw her plea.



                                      - 13 -
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Sentencing, 2/7/12, at 8.         When asked by the court what additional

knowledge he acquired, he replied, “I’m just—I’m innocent.”        Id.   When

asked on direct examination if he was claiming his “actual innocence to the

charges[,]” Appellant responded, “Yes.” Id. at 9.

      The Commonwealth responded that Appellant showed no hesitation

when waiving his right to counsel and entering his pleas, but “there was a

sudden hesitation” after seeing the sentencing recommendation of the

Probation Department.      Id. at 6.     The Commonwealth cross-examined

Appellant as follows:

             [Commonwealth]: In taking the position that you are
         taking today, sir, are you in any way, shape or form
         influenced by what the recommendation was of the
         Probation Department? They are recommending you go to
         prison, you understand that?

            [Appellant]: Right.

            [Commonwealth]: Is that influencing your position
         today?

            [Appellant]: Yes I guess.

Id. at 11. The prosecutor concluded, “I believe this is totally [a] reaction to

what the recommendation was of the Probation Department and simply

stated, your Honor, the Commonwealth does feel it’s [sic] been prejudiced.”

Id.

      The Commonwealth further argued that but for Appellant’s vacillations,

it “would have tried [him] in July of 2011 or August[, and] the case would

have been much stronger because both defendants would have been at the


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defense table.”   Id. at 7.    The Commonwealth noted, “Another year,

memories fade . . . .” Id.

      The trial court found that Appellant’s assertion of innocence was

insincere because (1) Appellant was afforded the opportunity to obtain

counsel, (2) the court conducted a waiver-of-counsel and plea colloquy

before Appellant entered his plea; (3) Appellant did not hesitate when

entering his plea; (4) Appellant made no efforts to secure counsel before the

first scheduled sentencing hearing; and (5) Appellant was dissatisfied with

the Probation Department’s sentencing recommendation. Id. at 11-15; see

also Order, 6/5/12, at 3-4.     The court thus concluded that Appellant’s

assertion of innocence was “a manipulation” of the judicial system, which did

not establish fair and just reason to withdraw his plea. The court entered an

order denying Appellant’s motion to withdraw his plea and immediately

proceeded to sentencing, ordering him to serve nine to forty-eight months’

imprisonment and a concurrent eighty-four months’ probation. The court set

a RRRI7 minimum sentence of six months and twenty-two days. The court

also ordered that Appellant be jointly and severally responsible for $180,000

in restitution.

      On February 16, 2012, Appellant filed a timely post-sentence motion

challenging the denial of his presentence motion to withdraw his plea. The


7
   See 61 Pa.C.S. §§ 4501-4512 (relating to recidivism risk reduction
incentive).



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trial court denied Appellant’s post-sentence motion by an order docketed on

June 5, 2012.

      Appellant filed a timely appeal and complied with the trial court’s order

to submit a Pa.R.A.P. 1925(b) statement.             The court filed a responsive

Pa.R.A.P. 1925(a) opinion further explaining its decision to find Appellant’s

assertion of innocence insincere.

         First, at the hearing on the motion to withdraw, Appellant
         admitted on the record that the Probation Department’s
         sentence recommendation influenced his decision to
         withdraw his plea. Second, the history of this case is one
         of delay and obfuscation.       Third, the record belies
         Appellant’s claim that he knew more about the case after
         he pleaded nolo contendere. As the Attorney for the
         Commonwealth stated on the record, Appellant and [Co-
         defendant] had no hesitation pleading no contest at the
         time they entered the pleas. Rather, it was only after he
         saw the sentencing recommendations that Appellant
         [wavered]. We similarly found Appellant’s claim that he
         was a mere country rube—and did not understand the
         charges against him—unavailing. Under the totality of the
         circumstances, the Court determined that Appellant’s
         assertion of innocence was not credible.

                                    *     *      *

         . . . Appellant attempts to dispute the evidence against
         him with other evidence that is not properly before the
         Court. It is not proper for us to weigh evidence of guilt or
         innocence in determining a motion to withdraw a plea.
         Rather, we believe that we were restricted to the evidence
         regarding the validity of the plea itself—not the whole
         case. We similarly will not address Appellant’s alleged
         illiteracy—a claim that overstates the record.

Trial Ct. Op., 7/27/12, at 6-7 (record citations and footnote omitted).




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        This Court, in our previous memorandum, concluded Appellant’s

assertion of innocence constituted a fair and just reason to withdraw his

plea.    Carnell, 1210 MDA 2012 at 15.          We vacated the judgment of

sentence and remanded the case for the trial court to determine whether

prejudice would result from the withdrawal of Appellant’s plea. Id. at 17.

        The Pennsylvania Supreme Court subsequently decided Carrasquillo

and clarified the standards governing a presentence withdrawal of a plea.

The Carrasquillo Court reaffirmed the precept that

          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.

Carrasquillo, 115 A.3d at 1291-92 (citation and footnote omitted).

        The Carrasquillo Court specifically rejected the perception of a per se

or bright-line rule that 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. The Court reasoned,

          [W]e 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 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



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         but has its limits, consistent with the affordance of a
         degree of discretion to the common pleas courts.

Id. at 1292.

      The Carrasquillo Court found that the facts before it “illustrate[d]

why the existing per se approach to innocence claims [wa]s unsatisfactory.”

Id. First, the defendant’s assertion “was first made in sentencing allocution,

after the close of the evidentiary record.”   Id.   Second, the defendant did

not “request to reopen the record for an orderly presentation in support of”

his claims.    Id. at 1293.   Third, “the bizarre statements made by [the

defendant] in association with his declaration of innocence undermined its

plausibility, particularly in light of the Commonwealth’s strong evidentiary

proffer at the plea hearing.”8 Id. Thus, the Court found no basis to disturb


8
  The Carrasquillo Court summarized the defendant’s request to withdraw
his plea as follows:

         [The defendant] explained in allocution that he had pled
         guilty to spare [the minor victim] suffering, and he
         therefore expressed surprise at his portrayal during the
         sentencing hearing. [The defendant] also stated that he
         had entered his plea because, absent a polygraph
         examination, his account would not have been believed
         and he would not have received a fair trial. He continued
         to discuss scenarios unrelated to the sexual assault of [the
         victim], in which the CIA purportedly had victimized him
         by seeking to employ him as an assassin abroad, and
         where a serpent assertedly appeared and “[t]he Antichrist,
         he came out of me[.]” Claiming that he did not commit
         the assault . . . and had been framed, [the defendant]
         insisted that a polygraph test would prove his innocence
         and asked to withdraw his guilty plea.




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the trial court’s discretion to refuse the attempted withdrawal of the plea.

Id.

        On October 14, 2015, the Pennsylvania Supreme Court vacated our

prior   decision   and   remanded   for   further   consideration   in   light   of

Carrasquillo.      Carnell, 123 A.3d at 1063.           This Court requested

supplemental briefs.9

        Appellant, in his brief following remand, presents the following

questions for review.

          Did the trial court err when it denied Appellant’s pre-
          sentence motion to withdraw nolo contendere plea when
          [Appellant]     asserted   actual   innocence and    the
          Commonwealth failed to demonstrate substantial prejudice
          would result if the motion was granted?

          Was there an abuse of discretion when the trial court
          denied Appellant’s post-sentence motion despite evidence
          supporting Appellant’s claim of actual innocence?

          Did the trial court err by denying Appellant’s right to
          effective assistance of counsel as guaranteed by the
          Constitutions of the United States and Pennsylvania?

Appellant’s Supp. Brief at 8.

        Appellant, in his first two arguments, reiterates that the trial court

erred in rejecting his assertion of innocence, id. at 16-22, and with the

appointment of counsel before sentencing, he was able to discover possible

Carrasquillo, 115 A.3d at 1286 (record citations omitted).
9
  This Court granted the Commonwealth’s two motions for extension of time
to file its appellee’s brief. We deny the Commonwealth’s third motion for
extension of time to file its brief.



                                     - 19 -
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weaknesses in the Commonwealth’s case against him.         Id. at 22-23.   He

thus suggests that Carrasquillo is distinguishable because in that case, “the

defendant’s statements . . . in association with his declaration of innocence

undermine[d] its plausibility, particularly, in light of the Commonwealth’s

strong evidentiary proffer at the plea hearing.”    Id. at 12.    In his third

argument, he contends that the trial court improperly prevented his counsel

from providing effective assistance. Id. at 30.     Appellant, however, does

not challenge the trial court’s acceptance of his waiver of counsel

immediately before pleading nolo contendere and appears to concede that

his waiver of counsel was voluntary. Id. at 32. We now affirm.

      “A trial court’s decision regarding whether to permit a guilty plea to

be withdrawn should not be upset absent an abuse of discretion. An abuse

of discretion exists when a defendant shows any ‘fair and just’ reason for

withdrawing his plea absent ‘substantial prejudice’ to the Commonwealth.”

Commonwealth v. Pardo, 35 A.3d 1222, 1227 (Pa. Super. 2011) (citations

omitted). As noted above, Carrasquillo clarified that “a bare assertion of

innocence is not, in and of itself, a sufficient reason to require a court to

grant such a request.” Carrasquillo, 115 A.3d at 1285. The “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.”      Id. at 1292.

Moreover, several factors may support a trial court’s refusal to permit

withdrawal, including the timing of the request, the orderly presentation of



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evidence in support of the request, and the quality of the claim of innocence.

See id. at 1292-93.

       It is axiomatic that an appellate court must defer to the credibility

determinations of the finder of fact. See In re R.J.T., 9 A.3d 1179, 1190

(Pa.    2010)   (discussing     challenges    to   dependency   proceedings);

Commonwealth v. Myers, 722 A.2d 649, 651-52 (Pa. 1998) (discussing

challenge to application of former mandatory minimum sentence provision

and collecting cases); Commonwealth v. Brown, 648 A.2d 1177, 1190-91

(Pa. 1994) (discussing challenges to the weight of the evidence).

         [Q]uestions of credibility and conflicts in the evidence
         presented are for the trial court to resolve, not our
         appellate courts. . . . As long as sufficient evidence exists
         in the record which is adequate to support the finding
         found by the trial court, as factfinder, we are precluded
         from overturning that finding and must affirm, thereby
         paying the proper deference due to the factfinder who
         heard the witnesses testify and was in the sole position to
         observe the demeanor of the witnesses and assess their
         credibility.

Myers, 722 A.2d at 651-52 (citation omitted).

         [A]ppellate courts . . . are not in a position to make the
         close calls based on fact-specific determinations. Not only
         are our trial judges observing the parties during the
         hearing, but usually, as in this case, they have presided
         over several other hearings with the same parties and
         have a longitudinal understanding of the case . . . . Even
         if an appellate court would have made a different
         conclusion based on the cold record, we are not in a
         position to reweigh the evidence and the credibility
         determinations of the trial court.

In re R.J.T., 9 A.3d at 1190.



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      Instantly, there is some support for the trial court’s conclusion that

Appellant was attempting to manipulate the judicial system and delay the

prosecution.   Appellant did not request counsel until he reviewed the

sentencing recommendation of the probation department and immediately

before the scheduled sentencing hearing.       Cf. Carrasquillo, 115 A.3d at

1292 (noting that timing of a claim of innocence is a factor in assessing the

fair and just basis for the requested withdrawal of a plea).         Moreover,

Appellant conceded that his requests for counsel and withdrawal of his plea

were due, in part, to the sentencing recommendation set forth by the

probation department. Although Appellant attempts to raise plausible bases

for his claim of innocence based on (1) additional evidence, (2) the

allegations against him, and (3) his assertion of Co-defendant’s undue

influence over him, an appellate court will generally defer to the trial court’s

weighing of the evidence.10 See In re R.J.T., 9 A.3d at 1190.

      However, this case raises considerations beyond the proper weighing

and deference to a mere claim of innocence, namely, Appellant’s right to

effective counsel and his waiver of his right to counsel.

            Both the right to counsel and the right to self-
         representation are guaranteed by the Sixth Amendment to
         the United States Constitution and by Article I, Section
         Nine of the Pennsylvania Constitution.     Deprivation of

10
   We note that the trial court refused to consider Appellant’s assertion of
innocence or review the allegations against him. In light of Carrasquillo, it
appears that a court may do so, at least when rejecting a claim of
innocence.



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        these rights can never be harmless. The constitutional
        right to counsel may be waived, but this waiver is valid
        only if made with knowledge and intelligence.

           In order to make a knowing and intelligent waiver, the
        individual must be aware of both the nature of the right
        and the risks and consequences of forfeiting it. Moreover,

           the presumption must always be against the waiver
           of a constitutional right. Nor can waiver be presumed
           where the record is silent. The record must show, or
           there must be an allegation and evidence which
           shows, that an accused was offered counsel but
           intelligently and understandingly rejected the offer.

        Thus, for this Court “to uphold such a waiver, the record
        must clearly demonstrate an informed relinquishment of a
        known right.”

Commonwealth v. Houtz, 856 A.2d 119, 122 (Pa. Super. 2004) (quotation

marks and citations omitted); see also Commonwealth v. Payson, 723

A.2d 695 (Pa. Super. 1999).          The acceptance of a plea from an

unrepresented party should be approached with special care, and we are

mindful that Appellant asserted his inability to pay for counsel prior to

waiving his right to counsel and pleading no contest.

     Appellant, however, does not challenge the trial court’s colloquy

regarding his waiver of counsel or the voluntary, knowing, and intelligent

nature of his waiver of counsel. Moreover, he does not question the colloquy

regarding his decision to plead guilty.   Rather, he contends the trial court

denied him the right to effective counsel because the court did not consider

his counseled motion to withdraw his plea.




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      This claim is meritless. The trial court clearly considered the motion to

withdraw and denied it on its merits.    Although Appellant may have been

entitled to relief based on his assertion of innocence before the Carrasquillo

decision, Carrasquillo made clear that the trial court retains the discretion

to consider whether Appellant’s assertion of innocence is a fair and just

reason to withdraw his plea given the policy that presentence requests

should be liberally granted.    Thus, we conclude that Appellant has not

demonstrated an abuse of discretion or error of law by the trial court when it

denied his presentence motion to withdraw his plea.

      Judgment of sentence affirmed.11

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/21/2016




11
  The Commonwealth’s third motion for extension of time to file its brief is
denied.



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