Com. v. Elia, J. (concurring)

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J-A21024-13 2013 PA Super 323 COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellee : : v. : : JAMES ANTHONY ELIA, : : Appellant : No. 1518 EDA 2012 Appeal from the Judgment of Sentence Entered April 25, 2012, In the Court of Common Pleas of Montgomery County, Criminal Division, at No. CP-46-CR-0009201-2010. BEFORE: SHOGAN, WECHT and COLVILLE*, JJ. CONCURRING OPINION BY SHOGAN, J.: FILED DECEMBER 24, 2013 The learned majority presents a thorough and thoughtful analysis of the issues raised in this appeal. However, this Court has previously held that the bald assertion of innocence does not per se constitute a fair and just reason for allowing a defendant to withdraw his guilty plea. Commonwealth v. Cole, 564 A.2d 203, 206 (Pa. Super. 1989) (en banc). Instead, a trial court should consider the totality of the circumstances. Id. at 208 (Judge McEwen, Concurring Opinion). Similarly, I conclude that a defendant s bald contention that the evidence is insufficient does not constitute a fair and just reason to permit the withdrawal of a guilty plea. Thus, I respectfully disagree with the majority that this contention constituted a fair and just reason to permit Appellant to withdraw his plea in __________________ *Retired Senior Judge assigned to the Superior Court. J-A21024-13 this case. See Majority Opinion at 14. Instead, I would rely upon Appellant s specific assertion that he was not guilty, through the uncontested statement of his plea counsel, in concluding that this issue lacks merit on direct appeal. See Commonwealth v. Johnson, 961 A.2d 877 (Pa. Super. 2008) (stating that counsel represent their clients and their admissions are prima facie the admissions of their clients). Furthermore, I would decline to address the voluntariness of the withdrawal because this argument was not presented by Appellant. In all other respects, I join the majority s opinion. -2-

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