Commonwealth v. Elia, PICS Case No. 13-3408 (Pa. Super. Dec. 24, 2013) Wecht, J. (29 pages).

SUPERIOR COURT

The Legal Intelligencer

CRIMINAL LAW

Motion to Withdraw • Fair/Just Reasons • 42 Pa.C.S. §9718(a) • Gross Disproportionality of Sentence

Commonwealth v. Elia, PICS Case No. 13-3408 (Pa. Super. Dec. 24, 2013) Wecht, J. (29 pages).

Addressing issues of first impression, the Superior Court ruled that since defendant had presented multiple reasons in support of his desire to withdraw his plea, the trial court did not abuse its discretion in granting his motion to withdraw the plea or in denying his motion to withdraw the withdrawal of the plea, and that defendant failed to create an inference of gross disproportionality between the 10-year mandatory minimum sentence prescribed by 42 Pa.C.S. §9718(a) and his offenses. Affirmed.

Defendant was charged with involuntary deviate sexual intercourse (IDSI) with a child under the age of 16 and a number of related offenses. The trial court found him guilty of IDSI, statutory sexual assault, aggravated indecent assault, corruption of minors, indecent assault and unlawful contact with a minor.

After sentencing, defendant filed a pro se motion to withdraw his guilty plea and a motion for the appointment of new counsel. Following a hearing, the trial court denied the motion for new counsel, but granted defendant's request to withdraw his guilty plea. After the hearing, defense counsel petitioned to withdraw as counsel, which the trial court granted.

A new attorney was then appointed to represent defendant. Before trial, attorney moved to withdraw defendant's previous withdrawal of his guilty plea, seeking reinstatement of the terms of the initial plea. The trial court denied the motion.

On appeal, defendant argued that, in light of his assertion of ineffective plea counsel, the trial court should not have conducted the plea withdrawal hearing with plea counsel continuing to represent him. Defendant also argued that he did not actually assert his innocence; therefore, the trial court erred in determining that he presented a fair and just reason to permit him to withdraw his plea.

Defendant never raised the issue of whether the hearing should have gone forward at all due to a purported conflict of interest between himself and plea counsel, the court observed. Thus, defendant's claim that the trial court abused its discretion for holding the withdrawal hearing was waived.

The court also found that defendant had set forth fair and just reasons in support of his request to withdraw his guilty plea. While defendant never uttered the words, "I am innocent," he offered other reasons that the court found constituted fair and just reasons for withdrawing his plea.

First, defendant stated that he felt as if plea counsel had "bullied" him into taking the plea. Second, defendant clearly believed that the commonwealth's evidence was insufficient to convict him of the crimes to which he pled guilty. Thus, the trial court did not abuse its discretion either in granting defendant's motion to withdraw his plea or in denying his motion to withdraw the withdrawal of his guilty plea.