Com. v. Moragne-El, B. (dissenting memorandum)

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J-S33018-17 NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA Appellee v. BRANDON WADE MORAGNE-EL Appellant : : : : : : : : : IN THE SUPERIOR COURT OF PENNSYLVANIA No. 1793 MDA 2016 Appeal from the Judgment of Sentence October 5, 2016 In the Court of Common Pleas of Franklin County Criminal Division at No(s): CP-28-CR-0002221-2014 BEFORE: BENDER, P.J.E., OTT, J., and STRASSBURGER, J.* DISSENTING MEMORANDUM BY STRASSBURGER, J.: FILED OCTOBER 27, 2017 Because the trial court erred in denying Moragne-El’s pre-sentence motion to withdraw his guilty plea, I respectfully dissent. When examining whether Moragne-El’s claim of innocence constituted a fair and just reason to withdraw his plea, both the Majority and the trial court err in focusing upon Moragne-El’s admissions of guilt at the plea hearing. See Majority Memorandum, at 10-11 (“Moragne-El offered no support for his claim of innocence, particularly in light of his comments at the guilty plea hearing.”); Trial Court Opinion, 10/3/2016, at 4 (determining Moragne-El’s “own words at time of his plea belie his claims of innocence”). This Court recently reaffirmed that “a defendant’s participation in a guilty plea may not be used to negate his later assertion of innocence when *Retired Senior Judge assigned to the Superior Court. J-S33018-17 seeking to withdraw.” Commonwealth v. Islas, 156 A.3d 1185, 1191 (Pa. Super. 2017) (citing Commonwealth v. Katonka, 33 A.3d 44, 49 (Pa. Court. 2011) (en banc), abrogated on other grounds, Commonwealth v. Carrasquillo, 115 A.3d 1284 (Pa. 2015)). “[B]ecause ‘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.’” Id. (quoting Katonka, 33 A.3d at 49). Using a defendant’s admissions of guilt against him when he seeks to withdraw his plea prior to sentencing based on a claim of innocence “would convert the liberal-allowance standard into a rule of automatic denial.” Id. Thus, when determining that Moragne-El’s claim of innocence was not plausible, the Majority and the trial court should not have relied upon the contradiction between Moragne-El’s acknowledgement of guilt at the plea colloquy and his later assertion of innocence when seeking to withdraw his plea. Furthermore, I believe Moragne-El presented a fair and just reason to withdraw his plea apart from his claim of innocence. When seeking to withdraw his plea, Moragne-El presented the following alternative grounds for withdrawal. Another reason that I’m withdrawing my plea is because to my knowledge me and my attorney – we didn’t talk about this, but to my knowledge I was under the assumption that because I’m not a violent person that I was RRRI eligible. As of last week [the assistant district attorney], he said something to the extent that I’m not RRRI eligible because I have a burglary conviction on my -2- J-S33018-17 record. This information is false. I don’t have any burglaries. I have a fourth degree attempted burglary in Maryland[,] which is equivalent to F-2 burglary in Pennsylvania[,] which doesn’t disqualify me from being RRRI eligible. I just wanted to note that for the record. N.T., 9/15/2016, at 2-3. The Majority summarily dismisses this reason without explanation. Majority Memorandum at 11 (stating Moragne-El’s “concerns regarding his eligibility for RRRI does not constitute a fair and just reason to withdraw his plea.”). However, this Court has recognized previously that “the failure to discuss or raise the issue of RRRI may also be a fair and just reason” to permit a plea withdrawal. Commonwealth v. Pardo, 435 A.3d 1222, 1224 n.4 (Pa. Super. 2011). The only mention of RRRI at the plea hearing was the assistant district attorney’s statement that Moragne-El was not RRRI eligible based upon his burglary conviction. N.T., 9/8/2016, at 4-5. Moragne-El was not questioned during his oral or written colloquy regarding RRRI eligibility; so there is no indication in the record whether Moragne-El understood the meaning of RRRI eligibility prior to pleading guilty.1 RRRI eligibility can significantly impact a sentence. Pardo, 435 A.3d at 1230 n. 12 (noting that participants “could Moragne-El’s counsel asserted at the sentencing hearing that “there was no anticipation that [Moragne-El] would be RRRI eligible” during plea negotiations. N.T., 10/5/2016, at 6. However, this statement does not indicate whether Moragne-El personally understood his RRRI eligibility before pleading guilty. Moreover, Moragne-El was not present during the sentencing hearing when counsel made this statement. 1 -3- J-S33018-17 potentially receive 16.6%–25% less of his ordered sentence”). Our Supreme Court has instructed the lower courts to allow liberally requests to withdraw a guilty plea prior to sentencing when there is no prejudice to the Commonwealth and the defendant has a fair and just reason to withdraw. Islas, 156 A.3d at 1187–88 (noting that the Court expressly reaffirmed the liberal-allowance standard for pre-sentence motions to withdraw in Carrasquillo). Therefore, in my view, Moragne-El presented a fair and just reason to withdraw his plea. Accordingly, I dissent. -4-

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