2011 PA Super 223
COMMONWEALTH OF PENNSYLVANIA,
PAUL FRANK KATONKA,
: IN THE SUPERIOR COURT OF
No. 1957 WDA 2009
Appeal from the Judgment of Sentence entered October 22, 2009,
in the Court of Common Pleas, Westmoreland County,
Criminal Division at No. CP-65-CR-0001110-2008
STEVENS, P.J., FORD ELLIOTT, P.J.E., MUSMANNO, BENDER,
GANTMAN, DONOHUE, ALLEN, LAZARUS and OLSON, JJ.
OPINION BY MUSMANNO, J.:
Filed: October 19, 2011
Paul Frank Katonka (“Katonka”) appeals from the judgment of
sentence entered following his guilty plea to various charges arising from the
sexual abuse of his stepdaughter. We vacate the judgment of sentence and
remand for further proceedings.
The Commonwealth charged Katonka with multiple crimes alleging
improper sexual contact with his young stepdaughter.
The conduct began
when the child was eight years old in 2003 and continued until 2008. On
September 29, 2008, Katonka reached a plea agreement with the
Commonwealth. In exchange for his guilty plea, the Commonwealth agreed
to recommend an aggregate sentence of ten to twenty years in prison
followed by fifteen years of probation. In accordance with the agreement,
Katonka tendered his guilty plea.
The trial court deferred sentencing
pending an evaluation by the Sexual Offenders Assessment Board.
On February 16, 2009, before sentencing, Katonka filed a Motion to
withdraw his guilty plea. Katonka did not assert his innocence in the written
Motion. However, at the subsequent hearing on the Motion to withdraw the
plea, Katonka asserted his innocence. Katonka reiterated his innocence at a
Following the second hearing, the trial court found
Katonka’s assertion of innocence to be incredible, and denied the Motion to
withdraw the guilty plea. The trial court subsequently sentenced Katonka to
a prison term of ten to twenty-five years, to be followed by fifteen years of
The trial court also found Katonka to be a sexually violent
Katonka filed a timely Notice of appeal.
The trial court ordered
Katonka to file a Pennsylvania Rule of Appellate Procedure 1925(b) concise
Katonka filed a timely Concise Statement and the trial court
issued an Opinion.1 Initially, on appeal, a majority of a three-judge panel of
this Court vacated the judgment of sentence and remanded the case for
The Honorable Paula Ott filed a dissenting Memorandum.
We note that the Commonwealth asserts that Katonka’s issue on appeal is
waived because his Concise Statement was too vague.
Brief for the
Commonwealth at 10-11. Upon our review of Katonka’s Concise Statement,
we disagree with the Commonwealth’s assertion and conclude that Katonka
properly preserved the claim on appeal.
Commonwealth then filed an Application for reargument en banc, which was
Katonka raises the following question for our en banc review: “Did the
[trial] court err in denying [Katonka’s] Motion to withdraw guilty plea[?]”
Brief for Appellant at 3.
Katonka contends that the trial court erred in denying his Motion to
withdraw the guilty plea prior to sentencing. Id. at 7. Katonka argues that
the Motion should have been granted because he asserted his innocence, his
plea was not knowing and voluntary, and he was unaware of possible
exculpatory evidence that could be used in his defense. Id. at 7-8. Katonka
asserts that the trial court erred in relying on the fact that he delayed
asserting his innocence to deny his Motion. Id. at 8-10. Katonka further
asserts that the trial court erred in discrediting his assertion of innocence as
a basis for withdrawing the plea. Id. at 9-10.
We note that “[a]t 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 contendere and the
substitution of a plea of not guilty.”
Pa.R.Crim.P. 591(A); see also
Commonwealth v. Walker, 26 A.3d 525 (Pa. Super. 2011).
In its seminal decision in Commonwealth v. Forbes, 299 A.2d 268,
271 (Pa. 1973), the Supreme Court of Pennsylvania set forth the parameters
for determining whether a request to withdraw a guilty plea, made prior to
sentencing, should be granted.
In Forbes, the appellant pled guilty to
various crimes stemming from an assault, robbery, and murder of a victim.
Id. at 269.
At a subsequent hearing, prior to sentencing, the appellant
stated that he wished to withdraw his guilty pleas because he did not “want
to plead guilty to nothing [he] didn’t do.”
The appellant later
abandoned this request, but it became clear that his decision was based
upon defense counsel’s threat to withdraw from the case. Id. at 270. The
trial court nevertheless proceeded to sentence appellant to life in prison
based upon a finding that appellant was guilty of first-degree murder. Id.
On appeal, the appellant asserted that the trial court erred in denying his
original request to withdraw his guilty plea, which was made prior to
sentencing, once it became clear that he abandoned this request based on
his counsel’s coercion. Id.
The Forbes Court agreed and held that “although there is no
absolute right to withdraw a guilty plea, properly received by the trial court,
it is clear that a request made before sentencing … should be liberally
allowed.” Id. at 271. The Supreme Court then fashioned a test to apply in
determining whether to grant a pre-sentence motion for withdrawal of a
guilty plea: “the test to be applied by the trial courts is fairness and justice.”
Id. The Supreme Court held that the mere articulation of innocence was a
“fair and just” reason for the pre-sentence withdrawal of a guilty plea unless
the Commonwealth has demonstrated that it would be substantially
Applying these standards to the relevant facts, the
Supreme Court determined that the appellant had provided a fair and just
reason for withdrawing his plea and that the Commonwealth would not be
prejudiced by the withdrawal. Id. at 272.
Subsequently, in Commonwealth v. Randolph, 718 A.2d 1242 (Pa.
1998), the Supreme Court of Pennsylvania re-affirmed the reasoning
employed in Forbes and rejected an attempt by the trial court to assess the
credibility of a defendant’s declaration of innocence in the context of
withdrawing a guilty plea before sentencing.
The defendant in Randolph
tendered his guilty plea and admitted the factual basis for the plea at the
Randolph, 718 A.2d at 1242.
However, on the date
scheduled for sentencing, the defendant sought to withdraw his guilty plea,
asserting that he was “not guilty.”
Id. at 1244.
The trial court denied
withdrawal of the plea, deeming the defendant’s claim of innocence
I don’t think that there’s any valid case here to withdraw
the plea. I remember on [the date of the guilty plea] that
you were in good health. You admitted these things, and
I – unless you have some other reason before I proceed
with the sentencing. Is there any other reason? All right,
I’m denying the motion to withdraw the guilty plea and
we’ll proceed to sentencing.
This Court, while acknowledging the Supreme Court’s holding in
Forbes, affirmed and concluded that the defendant “should not be permitted
to withdraw his guilty pleas by stating ‘I am not guilty of some of the crimes’
when his plea is supported by an extensive colloquy where he expressly
Randolph, 718 A.2d at 1244.
On appeal, the Supreme
Court rejected this Court’s attempt to avoid the application of Forbes:
Initially, we note that the Superior Court, under the guise
of distinguishing this matter from Forbes, found
significant [the defendant’s] admission that he was not
innocent of all the crimes alleged against him. The
Superior Court concluded that such a statement does not
amount to a declaration of innocence.
We find this
rationale to be spurious, given [the defendant’s]
unequivocal testimony at the initial hearing before the
trial court that he was seeking to withdraw his pleas
because he was “not guilty.” Moreover, even if [the
defendant] had not made this initial declaration, given the
liberal standard articulated in Forbes and the lack of
prejudice to the Commonwealth, [the defendant’s]
admission that he was not innocent of all the crimes
charged should not have defeated his requested
withdrawal. The Superior Court attempted to apply a
new standard whereby participation in a plea colloquy
results in a defendant’s waiver of the rights established
by this Court pursuant to Forbes.
Randolph, 718 A.2d at 1244-45 (citation omitted); see also id. at 1245
(admonishing this Court that it was obligated to follow the standards set
forth in Forbes). The Randolph Court concluded that the defendant offered
a fair and just reason for withdrawing his guilty plea by making a clear
assertion of innocence, and that the Commonwealth would not suffer
prejudice as a result of the withdrawal of the guilty plea. Id. at 1244.
Recently, in Commonwealth v. Tennison, 969 A.2d 572, 577 (Pa.
Super. 2009), this Court recognized the holdings in Forbes and Randolph
regarding the withdrawal of a guilty plea, and held that a judge may weigh
the totality of the circumstances in determining the sincerity of a defendant’s
assertion of innocence prior to sentencing. In Tennison, the defendant pled
guilty to certain charges, but sought to avoid the impact of the state guilty
plea on his sentence in an outstanding federal case. Tennison, 969 A.2d at
The defendant requested a continuance so that his Pennsylvania
convictions would not be factored into his federal sentence.
when asked whether he wished to withdraw his plea, the defendant gave the
following reply, under oath: “The only reason I was wondering about my
plea, if I got sentenced today, it would [a]ffect my Federal sentencing and if
that was to happen, yes.”
The trial court ultimately continued the
sentencing hearing. Id. at 575.
At a subsequent hearing, the defendant moved to withdraw his guilty
plea, “as sentencing in his federal case was still pending.”
defendant claimed that his plea was involuntary because it was induced by
the assumption that he would be sentenced in the federal case prior to being
sentenced in the state case and that the trial court could eliminate the
involuntary nature of the plea if it would continue the case until after the
federal sentence was imposed. Id. When the Commonwealth objected to
the motion to withdraw because it was not based upon a claim of innocence,
the defendant added that he had always maintained his innocence of the
most serious charges. Id. The trial court ultimately denied the motion to
withdraw, holding that the defendant’s claim of innocence was not credible,
and that the defendant is “trying to get the best possible deal.” Id.
On appeal, this Court affirmed:
Dispositive in both Forbes and Randolph was that the
defendant made a clear assertion of innocence prior to
sentencing, such that it qualified as a fair and just reason
permitting the pre-sentence withdrawal of the guilty plea.
In contrast, [the defendant’s instant] conditional
assertion of innocence—invoked at the prospect of
receiving yet another continuance—was anything but
clear. Indeed, no sooner would the assertion be made
than it would be completely contradicted by statements
admitting guilt should sentencing be deferred until
resolution of the federal case….
Tennison, 969 A.2d at 577; see also id. (stating that while a clear
assertion of innocence constitutes a “fair and just reason,” a conditional and
contradictory assertion of innocence does not).
Thus, this Court held that
the denial of a motion to withdraw a guilty plea “is proper where the
evidence before the court belies the reason offered.”
Id. at 578.
Significantly, however, the panel limited its holding to the specific facts of
that case. Id.
Here, following his entry of the guilty plea, but prior to sentencing,
Katonka filed a Motion to withdraw the plea.
In the Motion, Katonka
asserted that he did not have a full understanding of his guilty plea, and that
his counsel did not discuss various defenses, including attacking the
credibility of the victim. Motion to Withdraw Guilty Plea, 2/18/09. Katonka
did not assert his innocence in the written Motion.
At the subsequent hearing on the Motion, Katonka indicated that he
had discovered exculpatory evidence, specifically that he previously was
unaware of a doctor’s report that could contradict the victim’s allegations
and therefore form a basis for challenging the victim’s credibility.
3/19/09, at 23-25, 27-28. Katonka further stated that he did not pay
attention to the court’s colloquy prior to entering his guilty plea. Id. at 3839. The District Attorney then pointed out that Katonka had not asserted his
innocence to the charges.
Id. at 50.
At this point, Katonka asserted his
The trial court held a second hearing on April 30, 2009,
wherein Katonka reiterated his innocence. N.T., 4/30/09, at 7.
The trial court rejected Katonka’s Motion to withdraw his guilty plea
and proceeded to sentencing. See Trial Court Opinion, 9/22/09, at 5-6, 7-9;
N.T., 4/30/09, at 44-45, 52. The trial court found that Katonka’s assertion
of innocence was incredible as Katonka had stated that he understood all of
the charges and had supplied a detailed confession to the crimes. See Trial
Court Opinion, 9/22/09, at 5, 8; see also N.T., 4/30/09, at 11-15. The trial
court also pointed out that Katonka did not raise his assertion of innocence
in the written Motion and only made the assertion after the District Attorney
pointed out this failure. See Trial Court Opinion, 9/22/09, at 4, 9; see also
N.T., 3/19/09, at 50.
The trial court further found that Katonka’s other
stated reasons for withdrawing the plea were unbelievable and that Katonka
only attempted to withdraw the plea because of his unhappiness with the
See Trial Court Opinion, 9/22/09, at 5-6, 8-9.
The trial court
relies, inter alia, upon the reasoning in Tennison to support its finding. See
Trial Court Opinion, 9/22/09, at 7-8.
Here, unlike the circumstances in Tennison, Katonka specifically
asserted that he was innocent of the crimes and this assertion was neither
contradictory nor conditioned on some other event. See N.T., 4/30/09, at
7; N.T., 3/19/09, at 50; see also Tennison, 969 A.2d at 577. The fact that
Katonka first asserted his innocence only after being prompted by the
District Attorney is of no moment as Katonka asserted his innocence prior to
sentencing on two separate occasions without condition, the second without
any prompting from the District Attorney.
See N.T., 4/30/09, at 7; N.T.,
3/19/09, at 50; see also Commonwealth v. Kirsch, 930 A.2d 1282, 1285
(Pa. Super. 2007) (holding that a “bold assertion of innocence” is not
required and that a mere assertion of innocence constitutes a fair and just
reason for withdrawing the plea). Additionally, contrary to the trial court’s
reasoning regarding Katonka’s failure to raise his assertion of innocence in
his written Motion, there is no requisite time or manner in which the
assertion must be made prior to sentencing.
See Pa.R.Crim.P. 591, cmt.
(stating that while a withdrawal motion should be filed in writing before the
date of the sentencing hearing, nothing in this rule precludes a defendant
from making an oral and on-the-record motion to withdraw a plea at a
hearing prior to the imposition of sentence).
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Further, to the extent
Katonka’s Motion to withdraw his plea was denied merely because he first
enunciated alternate bases for his request, we reject this finding. Forbes
and its progeny do not impose a requirement that a defendant may only
raise a single basis, ostensibly an assertion of innocence, in a request to
withdraw a guilty plea.
In this case, the trial court undertook the same type of analysis
condemned by the Supreme Court in Randolph, i.e., rendering a credibility
determination as to the defendant’s actual innocence. See Randolph, 718
A.2d at 1244. Indeed, by pointing to Katonka’s statements during his plea
colloquy as a basis to conclude his assertion of innocence was incredible and
not a fair and just reason for pre-sentence plea withdrawal, the trial court
misapplied the relevant law. It is well-noted that “since it is necessary for a
criminal defendant to acknowledge his guilt during a guilty plea colloquy
prior to the court’s acceptance of a plea, such an incongruity will necessarily
be present in all cases where an assertion of innocence is the basis for
withdrawing a guilty plea.” Kirsch, 930 A.2d at 1286; see also Randolph,
718 A.2d at 1244-45. Thus, participation in a plea colloquy does not prevent
a defendant from later seeking to withdraw a plea based upon an assertion
See Kirsh, 930 A.2d at 1286 (stating that “it is clear that
acknowledging guilt at the plea colloquy does not prevent the later
withdrawal upon a later inconsistent assertion of innocence.”).
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Relatedly, evidence in this case, including Katonka’s confessions to the
police, is not relevant in determining whether his assertion of innocence was
credible. See id. Katonka’s confessions are not decisive as to his guilt or
innocence and do not bear upon his assertion of innocence in a presentencing motion to withdraw a guilty plea.
See Commonwealth v.
Wright, 14 A.3d 798, 816 (Pa. 2011) (noting that “even if a confession has
properly been admitted into evidence at trial, a finder of fact is still not
compelled to believe the matters contained in the confession and to
automatically return a verdict of guilty, since the confession is not decisive
of the issue of the defendant’s guilt or innocence.”).2
Accordingly, as the
record reflects that Katonka twice clearly asserted his innocence without
condition, under Forbes and Randolph, there was a “fair and just” reason
for withdrawal of the plea.
We note that the trial court cites to Commonwealth v. Mosley, 423 A.2d
427 (Pa. Super. 1980), for the proposition that Katonka’s assertion of
innocence was not believable. See Trial Court Opinion, 9/22/09, at 7. In
Mosley, the defendant asserted his innocence in a petition to reconsider
after the trial court had initially denied his motion to withdraw a guilty plea
based on the assertion that his counsel had coerced him into entering the
plea. Mosley, 423 A.2d at 428. The trial court accepted defendant’s
assertion of innocence and allowed him to withdraw his plea. Id. On
appeal, this Court found defendant’s assertion to be incredible in light of the
fact that the trial court had already rejected his initial reasoning for
withdrawal and pointed out that defendant had not asserted his innocence.
Id. at 429. This Court further found that the Commonwealth would have
been prejudiced by the defendant’s withdrawal of the plea. Id. at 429-30.
We conclude that the relevant reasoning in Mosley is inapplicable to this
case as the trial court did not reject Katonka’s Motion to withdraw until after
he had asserted his innocence. Further, as noted above, the Randolph
Court explicitly stated that the trial court may not render a credibility
determination as to the defendant’s claims of innocence.
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Because we have determined Katonka raised a “fair and just” reason
for withdrawal, we must next determine whether the Commonwealth would
be prejudiced by withdrawal of the plea.
Here, the trial court rejected
Katonka’s reasons for attempting to withdraw his guilty plea, but did not
make a determination as to whether the Commonwealth would be prejudiced
by a withdrawal of the guilty plea. Further, neither party has developed an
argument related to the prejudice suffered by the Commonwealth.
the record is incomplete and we must remand the case to the trial court with
instructions to hold an evidentiary hearing to make a determination as to
whether the Commonwealth would be prejudiced by Katonka’s withdrawal of
his guilty plea. Based upon the foregoing, we are constrained to vacate the
judgment of sentence and remand for further proceedings.3
Judgment of sentence vacated.
Case remanded for evidentiary
hearing. Superior Court jurisdiction relinquished.
Following the evidentiary hearing, if the trial court finds prejudice, it should
deny the Motion to withdraw the guilty plea and impose sentence. If the
court finds no prejudice to the Commonwealth, the Motion to withdraw the
guilty plea should be granted pursuant to Forbes and Randolph.
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