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HomeMy WebLinkAboutCP-21-CR-0820-2006 COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : vs. : CP-21-CR-0820-2006 : ALEXANDER GALINDO : IN RE: OPINION PURSUANT TO RULE 1925 In this appeal, the issue is whether the court abused its discretion in denying the defendant’s petition to withdraw his guilty plea. On September 13, 2006, the defendant, Alexander Galindo, pled guilty to aggravated indecent assault involving a six-year-old female child. He was directed to appear for sentencing on December 19, 2006. Sentencing was continued due to the defendant’s desire to hire private counsel. Thereafter, the defendant’s sentencing was continued several more times for reasons which do not appear of record in the case. When he finally appeared for sentencing on July 10, 2007, the defendant made an oral motion to withdraw his guilty plea. He was given the opportunity to file a written motion and the case was continued for one week. On July 12, 2007, private counsel, Susan Pickford, was permitted to withdraw from the case due to a recently discovered conflict of interest. The public defender was appointed to represent the defendant. Because, however, the defendant wished to again hire private counsel, the hearing on his motion to withdraw his guilty plea was continued. On August 3, 2007, a hearing was held on the motion to withdraw guilty plea. During the hearing, the Commonwealth argued that permitting the defendant to withdraw his guilty plea would prejudice the Commonwealth because, among other things, they could no longer locate C-21-CR-0820-2006 the victim and her mother. Defendant’s counsel, Charles Mackin, Esquire, asserted that he had information to the effect that the victim and her mother were living somewhere in Lebanon County. On September 13, 2007, we denied the defendant’s motion and directed him to appear for sentencing on October 2, 2007. On that date, he was sentenced to three to six years in a state correctional institution and was given credit for time served since March 23, 2006. This sentence was in accordance with the earlier plea agreement between the parties. Both the victim and her mother were present in the courtroom on the date of sentencing. The now well-established test for the withdrawal of a guilty plea prior to sentencing was first set out in Com. v. Forbes, 299 A.2d 268 (Pa. 1973). Specifically, the defendant should be permitted to withdraw his plea for “any fair and just reason … unless the prosecution has suffered substantial prejudice.” Id. at 271. In some cases, a defendant’s assertion of innocence may constitute a fair and just reason for withdrawal of a guilty plea prior to sentencing. Com. v. Cole, 564 A.2d 203, 205 (Pa.Super. 1989). There is also authority, however, that a defendant may not assert grounds for withdrawing a guilty plea that contradicts statements made at the time of the plea. See Com. v. Barnes, 687 A.2d 1163, 1167 (Pa.Super. 1996). In this case, the defendant was unequivocal in his agreement with the district attorney concerning the facts of this case and he made a clear admission of guilt. At the hearing on his motion to withdraw his guilty plea, the defendant asserted his innocence but offered no explanation, whatsoever, for his previous indication to the court that he had committed the offense. He makes no suggestion that his guilty plea was not knowingly and voluntarily entered. In other words, other than 2 C-21-CR-0820-2006 contradicting his admission at the guilty plea, the defendant puts forth no fair or just reason suggesting that his guilty plea ought to be withdrawn. In any event, we are satisfied that substantial prejudice will result to the Commonwealth in the event that the defendant’s guilty plea is withdrawn. In Com. v. Cole, 564 A.2d 203 (Pa.Super. 1989), the Superior Court dealt with a situation where the defendant had entered a guilty plea only after it became apparent that the Commonwealth was able to produce a key witness. The defendant, in seeking to withdraw his guilty plea, appeared to be gambling on the Commonwealth’s ability to produce the witness again. That is very much our sense of what is happening in the matter sub judice. As noted in Cole, a criminal defendant ought not to “be permitted to play fast and loose with the guilty plea process in order to delay prosecution or jeopardize the Commonwealth’s ability to prove guilt.” 564 A.2d at 206. In this case, the child victim is under the direct control of her mother, the defendant’s wife, Wanda Galindo. A review of the record reveals that Wanda was not at all helpful during the investigation of this case. She sought to dissuade the nurse from examining her daughter after the alleged sexual assault. (N.T. 8/3/2077, pp. 23-24) She did not cooperate with the investigating police officers and stated that she did not want the defendant to go to jail. Id. at 27. The defendant filed a motion to withdraw his plea ten months after pleading guilty. During this time, the prosecution lost track of the victim and her mother and was unable to locate them for the plea withdrawal hearing. During the sentencing hearing, the victim and her mother happened to be present in the courtroom obviously aware that they were not there for the trial of the case. The presence of the victim and her mother could only have been arranged by the 3 C-21-CR-0820-2006 defendant who we suspect knows that the victim will not testify against him. In Com. v. Cole, supra, the court described the withdrawal of the defendant’s guilty plea, under the circumstances 1 of that case, as a “mockery of the guilty plea hearing process.” The same could be said here. August , 2008 ______________________________ Kevin A. Hess, J. Michelle Sibert, Esquire Chief Deputy District Attorney Arla Waller, Esquire Assistant Public Defender :rlm 1 The defendant also lodged a request to withdraw his guilty plea post-sentence. Because the standard for withdrawal of the plea is even stricter at this stage, it is unnecessary to review that matter in light of the disposition of his presentence motion. 4