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HomeMy WebLinkAboutCP-21-CR-2744-2004 COMMONWEALTH IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. CHARGE: (2) INDECENT ASSAULT WESLEY ALLEN FRY OTN: H841423-2 CP-21-CR-2744-2004 IN RE: OPINION PURSUANT TO P A. R.A.P. 1925 OLER, 1. May 31, 2005 In this criminal case, m which the Defendant was originally charged with corruption of minors, a misdemeanor of the first degree, and indecent assault, a misdemeanor of the second degree, 1 the Defendant pled nolo contendere to the charge of indecent assault and was sentenced to 23 months probation on March 7, 2005. The Defendant subsequently filed a motion to withdraw his plea,2 which was denied by the court after a hearing on the matter. The Defendant filed an appeal from the denial of the motion to the Pennsylvania Superior Court.3 The basis of the Defendant's appeal has been expressed as follows: [The court] abused [its] discretion in not allowing Defendant to withdraw his nolo contendere plea after sentence, since that decision will result in manifest injustice to the Defendant since Defendant claims to be innocent, testified that he entered the plea only to satisfy or protect family members, quickly sought to withdraw his plea, and the Commonwealth presented no evidence that prejudice would occur if the request was granted. 4 This opinion in support of the denial of the motion to withdraw the Defendant's no contest plea is written pursuant to Pennsylvania Rule of Appellate Procedure 1925(a). 1 Information, filed December 10,2004. 2 See Motion To Withdraw No Contest Plea, filed March 17,2005. 3 See Notice of Appeal, filed April 5, 2005. 4 See Concise Statement of Matters Complained of on Appeal, filed April 19, 2005. STATEMENT OF FACTS Defendant Wesley Allen Fry entered a plea of nolo contendere to a charge of indecent assault upon his stepdaughter on March 7, 2005. The District Attorney recited the facts alleged as follows: [D]uring the summer of 2003, the juvenile, a 15-year-old-girl with the initials CES was living in the residence of Mr. Fry, she is the daughter of Mr. Fry's wife, so step-daughter. At the time the mother and Mr. Fry were in a fight, the mother was not there, it was just Mr. Fry and the juvenile. Mr. Fry had been drinking at the time and had walked in on the juvenile when she was on the computer and touched her back, attempted to kiss her and attempted to go underneath her shirt. 5 In a written Nolo Contendere Colloquy plea form the Defendant acknowledged that he "underst[ood] the nature of the charge(s) against [him],,,6 that he "want[ed] to plead nolo contendere" 7 and that "by pleading nolo contendere [he was] admitting to the Court that the Commonwealth ha[ d] sufficient evidence against [him] to prove [him] guilty in a trial. ,,8 In exchange for pleading "no contest to Count 2 Indecent Assault, graded as a misdemeanor of the second degree, carrying a maximum fine of $5,000 and/or 2 years incarceration," the Commonwealth agreed to accept a sentence of probation.9 The record of the hearing indicates that the Defendant desired to enter a plea of no contest and was informed of the significance of this plea. THE COURT: Mr. Fry, you have heard the statements of the district attorney as to what is alleged to have happened. When you plead no contest, while you are not affirmatively 5 NT. 2, Transcript of Proceeding, March 7, 2005 (hereinafter NT. ~. 6 Nolo Contendere Colloquy Question 9(a). 7 Nolo Contendere Colloquy Question 15. 8 Nolo Contendere Colloquy Question 6. The Nolo Contendere Colloquy plea form provided detailed information regarding the rights the Defendant was giving up by pleading nolo contendere, such as the right to a trial by jury, the right to assert a defense, and a limitation on the right to appeal. 9 NT. 2, 4. 2 admitting those facts alleged, you are conceding that the Commonwealth could prove you guilty beyond a reasonable doubt based on them. Do you understand that? THE DEFENDANT: Yes, sir. THE COURT: Do you understand the penalties applicable to the offense as indicated by [the District Attorney]? THE DEFENDANT: Yes, [y]our Honor. THE COURT: Do you have any questions regarding any of the information contained in the nolo contendere colloquy plea form that you signed? THE DEFENDANT: No, [y]our Honor. THE COURT: Knowing everything we discussed, is it your desire to enter a plea of no contest to Count 2 to Indecent Assault? THE DEFENDANT: Yes, [y]our Honor. 10 The Defendant requested immediate sentencing and waived a presentence investigation report. 11 The court sentenced the Defendant to 23 months of probation, payment of the costs of prosecution, and DNA testing, based on the plea agreement between the Commonwealth and the Defendant. 12 After the plea and sentence, the Defendant spoke with a probation officer regarding the terms of his probation. 13 The Defendant subsequently informed his wife of his plea, sentence, and terms of probation. 14 The Defendant's wife became upset, according to the Defendant, because "she t[ ook] it as a guilty plea.,,15 After an argument with his wife, in which she threatened to throw him out of the house because of his plea, the Defendant, according to his testimony, called his attorney to withdraw his plea.16 The Defendant also claims that as a result of 10 NT. 2-3. 11 NT. 3. 12 NT. 4, Order of Court, March 7,2005, Amended Order of Court, March 7, 2005. 13 NT. 9, 12, Transcript of Proceeding, March 29,2005 (hereinafter NT. Hearing~. 14 NT. Hearing 9, 13. 15 NT. Hearing 9, 13. 16 NT. Hearing 6. 3 entering the no contest plea he spent 11 days m the Chambersburg Hospital Psychological Ward. 17 On March 17, 2005, the Defendant filed a Motion To Withdraw No Contest Plea asserting that "he [was] innocent of the charges and [had] entered his plea in fear of the consequences of possible conviction and to avoid the requirement that family members testify."18 On March 29, 2005 the court held a hearing on the merits of the Defendant's Motion To Withdraw No Contest Plea. At the hearing, the Defendant denied assaulting his step-daughter.19 The Defendant admitted that he knew at the time of the plea that he was pleading no contest20 and stated that he "[had] a problem with the sentence, but [could] abide by the sentence,,21 inasmuch as he had known what the sentence would be prior to entering his plea.22 The Defendant testified in addition: Q: SO basically, let's be frank here, it is after you talked with your wife that you want to withdraw the plea? A: Yes-excuse me, after I was with [the probation officer], my wife had come down to see where I was to pick me up or whatever, to meet me, and that is when I told her and I went back down and told him that now she is really mad, whatever, because she takes it as a guilty plea. Q: SO basically, you get into a fight with the wife, ... and she is upset at the fact that you did this and that is why you want to withdraw the plea? A: Yes.23 DISCUSSION According to Rule 720(B)(1)(a) of the Pennsylvania Rules of Criminal Procedure "[t]he defendant in a court case shall have the right to make a post-sentence motion. All 17 NT. Hearing 5. 18 Motion To Withdraw No Contest Plea, March 17,2005. 19 N. T. Hearing 5. 20 NT. Hearing 8. 21 NT. Hearing 10. 22 NT. Hearing 10. 23 N.T. Hearing 9. 4 requests for relief from the trial court shall be stated with specificity and particularity, and shall be consolidated in the post-sentence motion, which may include: (i) a motion challenging the validity of a plea of guilty or nolo contendere, or the denial of a motion to withdraw a plea of guilty or nolo contendere...." In order to withdraw a nolo contendere plea after sentencing a defendant must show "manifest injustice, which may be established if the plea was not voluntarily or knowingly entered." Commonwealth v. Leidig, 2004 PA Super. 167, ,-r5, 850 A.2d 743, 745 (2004) (citations omitted); Commonwealth v. Boatwright, 404 Pa. Super 75, 83, 590 A.2d 15, 19 (1991) (also stating that, in terms of its effect upon a case, a plea of nolo contendere is treated the same as a guilty plea); Commonwealth v. Brown, 451 Pa. Super. 514, 519, 680 A.2d 884, 887 (1996); Commonwealth v. Myers, 434 Pa. Super. 221,225, 642 A.2d 1103, 1104 (1994). On March 7, 2005 the Defendant acknowledged through a written and an oral colloquy that he understood the charges against him, that he wanted to plead no contest, and that he understood that by pleading nolo contendere he would be sentenced to probation. At the hearing on the motion to withdraw his plea the Defendant acknowledged that he knew at the time of the plea that he was pleading no contest to the charge of indecent assault.24 The Defendant also acknowledged at the hearing to withdraw his plea that he knew at the time of the plea that he would receive probation as a result of his plea. Only after being sentenced and informing his wife of the terms of his probation did the Defendant decide that he wanted to change his plea. The proceedings on March 7, 2005 and on March 17, 2005, including the written Nolo Contendere Colloquy plea form, show that the Defendant knowingly, intelligently, and voluntarily entered his plea. In Commonwealth v. West, 250 Pa. Super. 557, 564, 378 A.2d 1289, 1292 (1977), the Pennsylvania Superior Court cautioned against the proposition that "a defendant should be permitted to withdraw his plea simply because he has changed his mind regarding whether the plea agreement is satisfactory." In Commonwealth v. Lewis, 708 24 NT. Hearing 8. 5 A.2d 497, 503 (Pa. Super. 1998), the Superior Court stated that disappointment was not a sufficient ground to withdraw a plea. The Court in Commonwealth v. Yager, 454 Pa. Super. 428, 436-437, 685 A.2d 1000, 1004 (1996) (citations omitted), noted that, "[t]he law does not require that appellant be pleased with the outcome of his decision to enter a plea...: 'All that is required is that [the defendant's] decision to plead... be knowingly, voluntarily, and intelligently made. ", Disappointment of the Defendant's wife is clearly not sufficient grounds to allow the Defendant to withdraw his nolo contendere plea. The Defendant alleges that, after pleading no contest, he spent 11 days in the Chambersburg Hospital Psychological Ward. In Commonwealth v. Jackson, 390 Pa. Super. 639, 643, 569 A.2d 964, 966 (1990), the defendant was not allowed to withdraw his nolo contendere plea after sentencing even though he was taking "potentially mind- altering" medication at the time of entering his plea. The Superior Court held that the defendant was able to follow and understand the proceedings and that, therefore, the defendant had not proven that a manifest injustice had occurred with respect to the plea. Id. at 644. The same is true for the Defendant in this case. The Defendant was able to understand the charge against him, complete an oral and written nolo contendere plea colloquy, and voluntarily enter a plea of no contest. The Defendant's subsequent stay in a psychological ward had no proven effect on the validity his plea. Finally, the Defendant claims that the Commonwealth did not establish that any prejudice to it would be occasioned by withdrawal of the plea. Prejudice to the Commonwealth may be a factor for evaluating the validity of a pre-sentence motion to withdraw a plea. See Commonwealth v. Carr, 375 Pa. Super. 168, 171, 543 A.2d 1232, 1233 (1988). In this post-sentence matter, the issue is whether a denial of the withdrawal would constitute manifest injustice. 6 For all of the foregoing reasons, it is believed that the denial of the Defendant's Motion To Withdraw No Contest Plea appealed from was properly entered. BY THE COURT, 1. Wesley Oler, Jr., 1. Jaime M. Keating, Esquire Chief Deputy District Attorney H. Anthony Adams, Esquire Assistant Public Defender 7