Com. v. Johnson, B. ( 2022 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
BASIL JOHNSON :
:
Appellant : No. 1627 EDA 2021
Appeal from the Judgment of Sentence Entered July 21, 2021
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0007094-2019
BEFORE: LAZARUS, J., KUNSELMAN, J., and STEVENS, P.J.E.*
MEMORANDUM BY LAZARUS, J.: FILED JUNE 1, 2022
Basil Johnson appeals from the judgment of sentence, imposed in the
Court of Common Pleas of Philadelphia County, after he entered an open guilty
plea to possession of firearm prohibited1 and receiving stolen property
(“RSP”).2 On appeal, Johnson challenges the trial court’s denial of his pre-
sentence motion to withdraw his plea. We affirm.
The following facts were presented as the basis for Johnson’s plea:
[O]n September 15, 2019, [at] approximately 8:15 p.m.,
Philadelphia police were in the area of Broad and Olney Streets []
in the city and county of Philadelphia. They [saw Johnson] lift up
his shirt and s[aw] what appeared to be the handle of a gun. They
came back to the area, exited their vehicle, and [Johnson] then
fled. During that pursuit[,] they observed [Johnson] discard the
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* Former Justice specially assigned to the Superior Court.
1 18 Pa.C.S.A. § 6105(a)(1).
2 Id. at 3925(a).
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firearm into a nearby bush. [Johnson] was later apprehended.
That firearm was recovered. A check was done on that firearm.
It was reported stolen under D.C. 1608016978. The owner of that
firearm does not know [Johnson and] did not give him permission
to have it. [Johnson] does have a previous conviction for
intimidation of a witness, which does make him ineligible[] to
carry a firearm.
N.T. Guilty Plea Hearing, 11/17/20, at 6-7.
In addition to the above offenses, Johnson was charged with possessing
a firearm without a license, carrying a firearm in public on the streets of
Philadelphia, and possession of a controlled substance. In exchange for
Johnson’s guilty plea, the Commonwealth agreed to nolle prosse those
charges and consented to Johnson’s release with sign-on bail and direct
supervision pending sentencing.3
Johnson entered his plea on November 17, 2020, after which the court
deferred sentencing until January 29, 2021 and ordered a pre-sentence
investigation (“PSI”). At Johnson’s request, sentencing was again deferred
until February 26, 2021, on which date the matter was continued due to a
court closure. On May 25, 2021, the court granted another defense
continuance and scheduled sentencing for June 25, 2021. On May 27, 2021,
Johnson was arrested and incarcerated on a charge of aggravated harassment
that arose during his prior incarceration. At the June 25, 2021 hearing date,
counsel orally moved to withdraw Johnson’s guilty plea. At the court’s
direction, counsel filed a written motion later that same day.
____________________________________________
3 Johnson was, in fact, released pending sentencing.
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On July 8, 2021, the court held a hearing on Johnson’s motion, at which
time Johnson asserted his innocence and argued that he had misunderstood
the terms of his plea agreement. Johnson testified as follows:
THE DEFENDANT: Okay. My case was ready. I got arrested
September 15th of 2019 and everything was ready by February
2020, February 6th. I believe you had a jury trial. And then
February 24th the officer—the arresting officer didn’t show up and
March came with the pandemic. The Court—everything got shut[
]down. I was in jail for 14 months and everything was ready, but
the pandemic affected everybody. And November 16th you said
another 30 days and I’m going to give you the ruling for the
[suppression] motion, and I wasn’t trying to hear nothing. They
were trying to tell me that this is not over.
He was saying at first I don’t want to leave, the violence, guns,
but then with a guilty verdict you were willing to let me go without
any house arrest, any restrictions. I come back, you plead guilty,
you go. I don’t know that this is still going on. I’m thinking, okay,
I’m getting time served or whatever. And then I came to the
conclusion, I told my lawyer, I said, I don’t think an innocent man
regardless of the situation, but I’m already on the street and I’m
coming to this, I don’t think an innocent man should ever plead
guilty under no circumstances. That’s why I wanted to recant my
guilty plea. I was under the impression, oh, well, we’re going to
take the motion off the table, you plead guilty, you go.
I didn’t know this was still going to be going on. I was home. I
was working for seven months, seven months straight. I wasn’t
doing anything wrong. No rearrest, no police contact, nothing, no
dirty urines. I’m employed. Everything. I was out there doing
everything I was supposed to do. He’s texting me court dates I
had to come this day. I’m thinking that this is like time served,
you’re done. I didn’t know if he would let me go. He was saying
something about, no, it's too risky, he had a firearm and I’m just
scared of the public’s safety and everything else.
[DEFENSE COUNSEL]: You’re talking about the DA?
THE DEFENDANT: Yeah, the DA. Once he got that verdict, okay,
lift the house arrest, let’s go. I thought, okay, well, let him go, he
was free. I didn’t know if I was pleading guilty to continue. I
thought if I plead guilty then it was over, but then I’m like I don’t
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want to plead guilty even if it is time served or anything because
I’m innocent. I’m an innocent man. So I don’t believe that I
should have pled guilty in the first place.
N.T. Motion to Withdraw Hearing, 7/8/21, at 9-11.
The court denied Johnson’s motion and, on July 21, 2021, sentenced
him to 5 to 12 years’ incarceration for possession of firearm prohibited, with
a concurrent 5-year term of probation for RSP. Johnson filed a timely notice
of appeal, followed by a court-ordered Pa.R.A.P. 1925(b) concise statement
of errors complained of on appeal.
On appeal, Johnson claims that the court erred in denying his motion to
withdraw his plea because he professed his innocence, the Commonwealth
would not suffer prejudice as a result of withdrawal, and justice and fairness
demanded withdrawal. He further asserts that his plea was involuntary
because (1) he had been incarcerated for an extended period under COVID-
19 restrictions and the Commonwealth told him he could only be released if
he pled guilty and (2) he did not understand that he would be sentenced at a
later date because the Commonwealth told him he would be released
immediately if he pled guilty. See Brief of Appellant, at 3-4. Johnson is
entitled to no relief.
The decision to grant or deny a motion to withdraw a guilty plea
rests within the trial court’s discretion, and we will not disturb the
court’s decision on such motion unless the court abused that
discretion. Commonwealth v. Miller, 748 A.2d 733, 735 (Pa.
Super. 2000). An abuse of discretion is not a mere error in
judgment but, rather, involves bias, ill will, partiality, prejudice,
manifest unreasonableness, and/or misapplication of law.
Commonwealth v. King, 990 A.2d 1172, 1180 (Pa. Super.
2010). By contrast, a proper exercise of discretion conforms to
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the law and is based on the facts of record. Commonwealth v.
West, 937 A.2d 516, 521 (Pa. Super. 2007).
Commonwealth v. Gordy, 73 A.3d 620, 624 (Pa. Super. 2013).
A motion to withdraw a guilty plea prior to sentencing is governed by
Pennsylvania Rule of Criminal Procedure 591, which, in pertinent part,
provides 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).
[T]here 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.
Commonwealth v. Carrasquillo, 115 A.3d 1284, 1291-92 (Pa. 2015).
This Court has summarized the law on pre-sentence motions to
withdraw guilty pleas as follows:
The Carrasquillo Court, breaking with prior precedent, held that
a bare assertion of innocence is no longer a fair and just reason
permitting a pre-sentence withdrawal of a guilty plea. Instead, “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.” [Id.] at 1292. Our High Court
outlined that the correct 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.” Id. In that decision, our Supreme Court ruled that the
defendant had not offered a plausible innocence claim given that
it was rather bizarre—a “devil made me to it” claim of innocence—
and since the innocence claim was offered just prior to sentencing.
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Id. See also Commonwealth v. Hvizda,[ 116 A.3d 1103 (Pa.
2015)] (companion case to Carrasquillo).
Commonwealth v. Baez, 169 A.3d 35, 39-40 (Pa. Super. 2017).
Thus,
the Carrasquillo Court clearly established that trial courts have
the discretion to assess the plausibility of claims of innocence.
Consistent with the well-established standards governing trial
court discretion, it is important that appellate courts honor trial
courts’ discretion in these matters, as trial courts are in the unique
position to assess the credibility of claims of innocence and
measure, under the circumstances, whether defendants have
made sincere and colorable claims that permitting withdrawal of
their pleas would promote fairness and justice.
Commonwealth v. Norton, 201 A.3d 112, 121 (Pa. 2019).
Here, the trial court did not abuse its discretion in concluding that
Johnson’s “cursory assertion of innocence is . . . clearly dubious and merits no
relief.” Trial Court Opinion, 9/24/21, at 7. Johnson waited for over seven
months after entering his guilty plea to move to withdraw and he did so on
the date scheduled for sentencing. In seeking to withdraw, Johnson made no
specific, colorable demonstration that the withdrawal of his plea would
promote fairness and justice; rather, he presented nothing more than a bare
assertion of innocence. Cf. Commonwealth v. Islas, 156 A.3d 1185, 1191
(Pa. Super. 2017) (withdrawal appropriate where defendant testified: he did
not engage in charged conduct; he maintained his innocence when
interviewed by law enforcement; had the conduct occurred as alleged, it would
have been witnessed by other people at the time; victim had motive to
fabricate charges; victim had delayed in reporting first incident; and defendant
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was of good character, had no criminal record, and had never received similar
complaint in the many years he had been working in the field).
Moreover, Johnson’s claim that he “misunderstood” the terms of his plea
agreement is belied by the record. As the trial court notes in its opinion:
Here, the record plainly contradicts [Johnson’s] claim that his
pleas were involuntary/unknowing because he believed he was
pleading guilty in exchange for a sentence of time[ ]served and
no further incarceration. [Johnson] affirmed during his plea
colloquy that he understood the charges to which he was pleading
guilty; understood his right to a jury trial; understood that he was
presumed innocent; understood that the Commonwealth bore the
burden of proving its case beyond a reasonable doubt; and
understood that after pleading guilty he could potentially
be sentenced to a maximum term of thirty (30) years'
incarceration. [Johnson] also confirmed that he reviewed and
executed a written plea colloquy form with his counsel. After the
colloquy and recitation of facts, this Court accepted [Johnson’s]
pleas, ordered a [PSI], and deferred [Johnson’s] sentencing until
January 29, 2021. The district attorney then advised the court
that the Commonwealth consented to [Johnson’s] release “on
sign-on bail” pending his sentence. This court specifically advised
[Johnson] that “we will see you[,] Mr. Johnson[,] on January
29th.”
[Johnson] received the benefit of his plea deal and was released
on bail pending his sentencing hearing, which was continued
several times but ultimately scheduled for June 25, 2021. By
then, seven (7) months after pleading guilty and being released
on bail, [Johnson] had been arrested and incarcerated on charges
of aggravated harassment, and he filed a motion to withdraw his
guilty pleas in this case.
The transcripts contain no statements from the Commonwealth,
the court, or defense counsel that remotely support [Johnson’s]
purported understanding of his plea deal. The record[,] rather[,]
reflects that[,] in exchange for [Johnson’s] guilty pleas, the
Commonwealth agreed (1) to nolle prosse multiple charges; and
(2) to consent to [Johnson’s] release from prison with sign-on bail
and direct supervision pending sentence. The record also
confirms [Johnson’s] understanding that he faced a
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maximum potential sentence of thirty (30) years’
incarceration in exchange for pleading guilty, and that his
sentencing would be deferred pending the [PSI].
Accordingly, [Johnson’s] alleged belief that he would face no
further sentence in exchange for pleading guilty simply lacks
credibility and merits no relief.
Trial Court Opinion, 9/24/21, at 5-6 (unnecessary capitalization and citations
to record omitted; emphasis added). The record fully supports the trial court’s
findings. See N.T. Guilty Plea Hearing, 11/17/20, at 3-9; Written Plea
Colloquy, 11/17/20.
In sum, Johnson’s bare assertion of innocence fails to establish a fair
and just reason for pre-sentence withdrawal of his guilty plea, Carrasquillo,
supra, and his claim of a “misunderstanding” is entirely belied by the record.
Accordingly, he is entitled to no relief.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/01/2022
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