Commonwealth v. Norton, 201 A.3d 112 (2019)

Jan. 23, 2019 · Supreme Court of Pennsylvania · No. 53 MAP 2017

201 A.3d 112

COMMONWEALTH of Pennsylvania, Appellee
v.
Michael NORTON, Appellant

No. 53 MAP 2017

Supreme Court of Pennsylvania.

Argued: May 16, 2018
Decided: January 23, 2019

JUSTICE BAER

In Commonwealth v. Carrasquillo , 631 Pa. 692, 115 A.3d 1284 (2015), this Court dispelled the notion that a defendant's bare assertion of innocence requires a trial court to grant the defendant's presentence motion to withdraw his guilty plea. Instead, the Carrasquillo Court held that, in the context of such a motion, "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." Carrasquillo , 115 A.3d at 1292. In the matter sub judice , a trial court utilized this standard in denying a presentence motion to withdraw a plea of nolo contendere ,¹ and the Superior Court concluded that the trial court did not abuse its discretion in this regard. This Court granted allowance of appeal to assess whether the Superior Court erred by holding that the trial court properly exercised its discretion in applying the Carrasquillo standard. We hold that the Superior Court correctly concluded that the trial court acted within its discretion by denying the presentence motion to withdraw a plea of nolo contendere . Consequently, we affirm the Superior Court's judgment.

The relevant background underlying this matter can be summarized as follows. In December of 2012, a criminal complaint was filed against Appellant Michael Norton ("Appellant"), charging him with five counts of indecent assault and one count of corruption of minors. According to the complaint and the accompanying affidavit of probable cause, on at least five occasions from September of 2008 through April of 2012, Appellant sexually abused his paramour's granddaughter ("Victim"), born in September of 2004.

On February 27, 2013, a preliminary hearing occurred, where Victim and Corporal James Travis of the Pennsylvania State Police testified. Following that hearing, the magisterial district judge dismissed three counts of indecent assault but bound over for trial the remaining charges. The district judge's decision was based upon his observation that Victim testified specifically to only two alleged incidents of abuse. N.T., 10/15/2013, Exhibit 1, at 21.

On August 7, 2013, Appellant filed an omnibus pretrial motion in which he sought an order precluding the Commonwealth from presenting at trial evidence regarding sexual abuse Appellant allegedly inflicted upon his now-adult daughter ("Daughter") when Daughter was a child in the late 1980s and early 1990s. That evidence included a 1996 statement signed by Appellant in which he admitted to abusing Daughter sexually.² On October 15, 2013, the trial court held a hearing on Appellant's pretrial motion, at which Daughter testified regarding the abuse Appellant allegedly perpetrated upon her. The court ultimately denied Appellant's motion, concluding that the complained-of evidence was admissible as prior bad acts.

On November 7, 2014, trial was scheduled to commence for purposes of jury selection. However, on that date, the parties informed the trial court that they had reached an agreement. Specifically, Appellant agreed to plead nolo contendere to one count each of indecent assault and corruption of a minor in exchange for an aggregate term of imprisonment of two to six years. In the presence of the court, Appellant's attorney conducted a plea colloquy, which was supplemented by questioning by the district attorney regarding the fact that Appellant's plea would require him to be assessed for purposes of determining whether he should be classified as a sexually violent predator. The parties also submitted to the court Appellant's written plea colloquy.

The trial court accepted the plea agreement, ordered Appellant to be assessed by the Sexual Offenders Assessment Board ("SOAB"), and tentatively scheduled sentencing for February 13, 2015. However, on the Commonwealth's motion, sentencing was later rescheduled for May 7, 2015.

On March 23, 2015, Appellant filed a motion to withdraw his nolo contendere plea. In that motion, Appellant asserted his innocence and proclaimed that he could not live with himself for taking a plea under the circumstances. The trial court held a hearing concerning this motion on April 30, 2015. At that hearing, Appellant reiterated that he wanted to withdraw his plea because he was innocent of the crimes to which he pleaded nolo contendere and because he could not live with himself for entering his plea.

At that time, the prevailing law in the Commonwealth required a trial court to grant a presentence motion to withdraw a guilty plea when withdrawal of the plea was based upon a defendant's bare assertion of innocence. See, e.g. , Commonwealth v. Carrasquillo , 78 A.3d 1120 (Pa. Super. 2013) (en banc ), rev'd by Carrasquillo , supra . Consistent with this case law, the trial court granted Appellant's motion on May 29, 2015, and allowed him to withdraw his plea. However, in its order, the court noted that this Court had granted allowance of appeal to review the Superior Court's decisions in Carrasquillo and Commonwealth v. Hvizda , 82 A.3d 470 (Pa. Super. 2013) (unpublished memorandum), rev'd by Commonwealth v. Hvizda , 632 Pa. 3, 116 A.3d 1103 (2015), both of which involved the standard a trial court should apply when a defendant seeks to withdraw a guilty plea presentence based upon a claim of innocence.

On June 5, 2015, this Court decided Carrasquillo and Hvizda , employing Carrasquillo as the lead opinion. In examining whether a defendant's bare assertion of innocence requires a court to allow a defendant to withdraw a guilty plea presentence, the Carrasquillo Court observed that this Court's seminal decision in Commonwealth v. Forbes , 450 Pa. 185, 299 A.2d 268 (1973), reflects that: (1) "there is no absolute right to withdraw a guilty plea;" (2) "trial courts have discretion in determining whether a withdrawal request will be granted;" (3) "such discretion is to be administered liberally in favor of the accused;" and (4) "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." Carrasquillo , 115 A.3d at 1291-92 (citing Forbes , 299 A.2d at 271 ) (footnote omitted). The Carrasquillo Court further observed that the "perfunctory fashion in which these principles were applied to the circumstances presented in Forbes , as well as in the ensuing decision in [ Commonwealth v. Woods , 452 Pa. 546, 307 A.2d 880 (1973) ], also lent the impression that this Court had required acceptance of a bare assertion of innocence as a fair-and-just reason." Carrasquillo , 115 A.3d at 1292. Indeed, the Carrasquillo Court acknowledged the Superior Court's "legitimate perception of a per se rule arising from this Court's decisions[,]" such as Forbes . Id.

In setting out to clarify the law in this area, the Carrasquillo Court adopted the approach of other jurisdictions that require a defendant's claim of innocence to "be at least plausible to demonstrate, in and of itself, a fair and just reason for presentence withdrawal of a plea." Id. Stated more broadly, pursuant to this approach, "the proper 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 closing, the Court stated that the "policy of liberality remains extant but has its limits, consistent with the affordance of a degree of discretion to the common pleas courts."³ Id.

After this Court issued its opinions in Carrasquillo and Hvizda , the Commonwealth, in the case at bar, timely filed in the trial court a motion for reconsideration of its order permitting Appellant to withdraw his plea of nolo contendere . In that motion, the Commonwealth highlighted that the court permitted Appellant to withdraw his plea based solely on an assertion of innocence and that Carrasquillo and Hvizda held that a bare assertion of innocence is not, in and of itself, a sufficient reason to require a court to grant a defendant's presentence request to withdraw a guilty plea.

On June 25, 2015, the trial court entertained argument on the Commonwealth's motion for reconsideration. For its part, the Commonwealth questioned the plausibility and sincerity of Appellant's assertion of innocence and suggested that Appellant simply was seeking to delay the prosecution and the consequences that awaited him. The Commonwealth posited that strong evidence of record indicates that Appellant's assertion of innocence was implausible and that fairness and justice did not require the court to allow Appellant to withdraw his plea.

Appellant's counsel, on the other hand, insisted that Appellant had always maintained his innocence, emphasizing that his nolo contendere plea did not equate to an admission of guilt to the crimes of which he was convicted. In this regard, Counsel also asserted that, when the SOAB interviewed Appellant to assess his sexual offender status, he "refused to participate, maintaining his innocence." N.T., 6/25/2015, at 7. Counsel further stated that, if permitted to withdraw his plea, Appellant intended to contest the Commonwealth's evidence at trial by attacking Victim's credibility, as she answered, "I don't remember," at least 15 times during the preliminary hearing. Id. at 8. Counsel also seemed to insinuate that he would again challenge at trial the admissibility of the prior-bad-acts evidence regarding his sexual abuse of Daughter.

On June 26, 2015, the trial court issued a speaking order granting the Commonwealth's motion for reconsideration and denying Appellant's motion to withdraw his plea. In so doing, the court applied the Carrasquillo standard and concluded that Appellant "did not make a colorable demonstration for withdrawal of his plea of nolo contend [e ]re that would promote fairness and justice." Trial Court Order, 6/26/2015, at 2-3. In support of this conclusion, the court observed that Appellant entered his negotiated plea on November 7, 2014, which notably was the day that the court and parties were set to pick a jury. Id. at 3. The court further reported that, shortly after entering his plea, Appellant signed a sexual offender colloquy, acknowledging his obligations to register as a sexual offender as required by Pennsylvania law.⁴ The court noted that, at the Commonwealth's request, it then scheduled sentencing for May 7, 2015.

The trial court continued by explaining that, in his motion to withdraw his plea, Appellant simply averred that "he was innocent and could not live with himself for taking a plea to offenses of which he is innocent." Id. at 4. Appellant made the same general claim at the April 30, 2015, hearing on his motion to withdraw, which the court determined "was the gist" of Appellant's reason for requesting withdrawal of his plea. Id.

Appellant filed a motion for reconsideration of the June 26th order, which was denied on August 4, 2015.⁵ On August 7, 2015, consistent with the parties' plea agreement, the trial court sentenced Appellant to an aggregate term of imprisonment of two to six years. During the sentencing hearing, the trial court also explained that, as a result of his convictions for indecent assault and corruption of a minor, Appellant was to be classified as a Tier III sexual offender pursuant to the Sexual Offender Registration and Notification Act, 42 Pa.C.S. §§ 9799.10 - 9799.42.

Appellant timely filed a notice of appeal, and the trial court directed him to comply with Pa.R.A.P. 1925(b). Appellant filed a concise statement of matters complained of on appeal. Therein, Appellant stated that he intended to raise four issues on appeal, all of which concerned the trial court's decision to deny his motion to withdraw his nolo contendere plea.

In its Pa.R.A.P. 1925(a) opinion, the trial court bolstered the analysis that it provided in its speaking order denying Appellant's motion to withdraw his plea. In relevant part, the court stated that it went to great lengths in the plea colloquy with Appellant to ensure that he entered his plea knowingly, voluntarily, and intelligently. Trial Court Opinion, 11/17/2015, at 6. The court explained that the plea colloquy was conducted in chambers while the prospective jury pool waited in the courtroom.

The trial court also explained that it initially granted Appellant's motion to withdraw his plea based upon the prevailing law at the time which suggested that a bare assertion of innocence warranted the withdrawal of a plea prior to sentencing. However, on the Commonwealth's motion, the court believed it prudent to reconsider its decision in light of this Court's opinion in Carrasquillo , id. at 6-7, which was decided eight days after the court permitted Appellant to withdraw his plea based upon his bare assertion of innocence. In this regard, the court reiterated its conclusion that Appellant failed to "demonstrate, under the facts of this case, that permitting withdrawal of his plea would promote fairness and justice." Id. at 7. The court opined that Appellant had ample time prior to his November 7, 2014, plea to consider and assert his innocence. Id.

Lastly, the trial court addressed Appellant's claim that he intended to contest the Commonwealth's evidence at trial. Id. at 8. Similar to its consideration of his assertion of innocence, the court found that Appellant had ample time to discover and inspect the Commonwealth's evidence well prior to his plea. The court stated, "It would be logical that [Appellant] and his counsel considered all of the evidence of the case, including the Commonwealth's evidence or lack thereof, in deciding whether to enter into the negotiated[ ] nolo contendere plea agreement with the Commonwealth." Id. The court concluded that any assertion of a desire to challenge the Commonwealth's evidence was not new to the case. Id. In other words, Appellant's two "primary claims, that he was innocent and that he sought to challenge the Commonwealth's evidence at trial, were not novel to the post-plea proceedings of this case." Id. The trial court, therefore, denied Appellant's motion to withdraw his nolo contendere plea because his bare assertion of innocence did not establish that withdrawal of the plea would promote fairness and justice.

On appeal to the Superior Court, Appellant posited that the trial court abused its discretion by denying his presentence motion to withdraw his plea of nolo contendere . In terms of the Carrasquillo standard, Appellant contrasted his claim of innocence with Carrasquillo's claims. Appellant argued that, unlike the circumstances presented in Carrasquillo , his protestation of innocence was plausible because he had maintained his innocence throughout the trial court proceedings. Appellant further argued that the record indicated that he was not attempting to delay his prosecution and that he offered a viable defense to the charges to which he pleaded, namely, he could challenge the sufficiency of the Commonwealth's evidence by undermining the credibility of the Commonwealth's witnesses, particularly that of Victim.

The Commonwealth insisted that the trial court properly applied Carrasquillo . In so doing, the Commonwealth highlighted that, in seeking to withdraw his plea of nolo contendere , Appellant merely asserted his innocence without making any specific, colorable demonstration that the withdrawal of that plea would promote fairness and justice. In terms of Appellant's declared trial-defense strategy, the Commonwealth suggested that any defense predicated on attacking Victim's credibility should have been readily apparent to Appellant and his counsel following the preliminary hearing; yet, despite this seemingly obvious knowledge, Appellant nonetheless chose to plead nolo contendere . Thus, in the Commonwealth's view, the trial court acted within its discretion by denying Appellant's presentence motion to withdraw his plea.

The Superior Court ultimately affirmed Appellant's judgment of sentence in an unpublished memorandum. Commonwealth v. Norton , 2017 WL 1113289 (Pa. Super filed March 23, 2017). After reiterating the substance of this Court's opinion in Carrasquillo , the Superior Court stated that it could discern no abuse of discretion in the trial court's decision to deny Appellant's presentence motion to withdraw his plea of nolo contendere . Indeed, the intermediate court concluded that the record supported the trial court's determination that Appellant failed to make a "colorable demonstration, under the circumstances, such that permitting withdrawal of the plea would promote fairness and justice." Norton , 2017 WL 1113289, at *3 (quoting Carrasquillo , 115 A.3d at 1292 ) (emphasis removed). In support of this conclusion, the Superior Court observed, inter alia , that, despite having possessed ample opportunity during the nearly two-year period between his arrest and his plea "to examine and weigh the evidence in this case, including the Commonwealth's evidence or lack thereof, in deciding whether to assert his innocence or [ ] a viable defense to the charges at trial[,]" Appellant failed to do so. Id.

Senior Judge Fitzgerald filed a dissenting memorandum. In the dissent's view, the trial court erroneously failed to address the quality of Appellant's assertion of innocence and conflated the liberal standard for assessing a presentence motion to withdraw a guilty plea with the more stringent standard that governs a defendant's post-sentence request to withdraw such a plea.⁶ In sum, the dissent concluded that "the trial court erred in its application of Carrasquillo and that Appellant's assertion of innocence, in conjunction with his proffered defense based on the credibility of the complainant, establishes fair and just reason for withdrawing his plea." Id. at *7.

Appellant filed a petition for allowance of appeal, which we granted to address the following issue, as phrased by Appellant:

Whether a defendant's assertion of innocence based on the sufficiency of the evidence and his inability to reconcile entering a plea when he maintained his innocence well before the time of his sentencing and when the Commonwealth made no argument of prejudice, is sufficient to establish a fair and just reason for withdrawing his plea of nolo contendere ?

Commonwealth v. Norton , 642 Pa. 611, 170 A.3d 1059 (2017).

In his brief to this Court, Appellant simply reiterates, with minor augmentation, the arguments that he presented to the Superior Court regarding the alleged errors made by the trial court. Indeed, the "Argument" portion of Appellant's brief fails to acknowledge the rationale that the Superior Court offered in support of its decision to affirm Appellant's judgment of sentence, let alone assign any error to that rationale. In response, the Commonwealth similarly renews its contention that the trial court acted within its discretion by denying Appellant's motion to withdraw his plea.

Reduced to its essence, the question Appellant poses to this Court requires us to examine whether the Superior Court properly determined that the trial court acted within its discretion by denying Appellant's presentence motion to withdraw his plea of nolo contendere pursuant to this Court's decision in Carrasquillo . Thus, it is helpful to begin our analysis with a brief review of the well-settled law regarding trial court discretion.

"When a [trial] court comes to a conclusion through the exercise of its discretion, there is a heavy burden [on the appellant] to show that this discretion has been abused." Commonwealth v. Eichinger , 591 Pa. 1, 915 A.2d 1122, 1140 (2007) (citation omitted). An appellant cannot meet this burden by simply persuading an appellate court that it may have reached a different conclusion than that reached by the trial court; rather, to overcome this heavy burden, the appellant must demonstrate that the trial court actually abused its discretionary power. Id. "An abuse of discretion will not be found based on a mere error of judgment, but rather exists where the [trial] court has reached a conclusion which overrides or misapplies the law, or where the judgment exercised is manifestly unreasonable, or the result of partiality, prejudice, bias or ill-will." Id. Absent an abuse of that discretion, an appellate court should not disturb a trial court's ruling. Id.

With these standards in mind, we reiterate that the Carrasquillo Court overruled a relatively long line of precedent which, understandably but mistakenly, required trial courts to grant presentence motions to withdraw guilty pleas based upon defendants' bare assertions of innocence. As noted above, Carrasquillo held that, when a defendant files a presentence motion to withdraw a guilty plea based upon a claim of innocence, the "innocence claim must be at least plausible to demonstrate, in and of itself, a fair and just reason for presentence withdrawal of a plea." Carrasquillo , 115 A.3d at 1292. Stated more broadly, "the proper 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. While the Carrasquillo Court acknowledged that the "policy of liberality remains extant," the Court explained that this policy "has its limits, consistent with the affordance of a degree of discretion to the common pleas courts." Id. ; see also Pa.R.Crim.P. 591(A) (explaining 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[ ]").

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.

To be clear, when a trial court is faced with a presentence motion to withdraw a guilty plea, the court's discretion is not unfettered. As this Court has often explained, "[t]he term 'discretion' imports the exercise of judgment, wisdom and skill so as to reach a dispassionate conclusion, within the framework of the law, and is not exercised for the purpose of giving effect to the will of the judge." Commonwealth v. Widmer , 560 Pa. 308, 744 A.2d 745, 753 (2000) (citation omitted). Thus, a court's discretion in ruling on a presentence motion to withdraw a guilty plea must be informed by the law, which, for example, requires courts to grant these motions liberally, Carrasquillo , supra , and to make credibility determinations that are supported by the record, see Commonwealth v. Myers , 554 Pa. 569, 722 A.2d 649, 652 (1998) (explaining that, "when appellate review involves the trial court's findings of fact and credibility determinations, those findings are binding on the reviewing court if they find support in the record"). Moreover, while an appellate court should not substitute its judgment for that of a trial court that ruled on a presentence motion to withdraw a guilty plea, the appellate court is tasked with the important role of assessing the propriety of the trial court's exercise of its discretion. See Widmer , 744 A.2d at 753 ("The propriety of the exercise of discretion in such an instance may be assessed by the appellate process when it is apparent that there was an abuse of that discretion.").

Turning to the circumstances of this case, in support of his presentence motion to withdraw his plea of nolo contendere , Appellant asserted in the trial court that: (1) he is innocent; (2) he cannot live with himself for taking a plea; and (3) he wants to test the Commonwealth's evidence at trial. Simply put, the last two assertions add nothing to the first. Appellant's contention that he could not live with himself for entering his plea is self-serving makeweight and does not add any substantive support to the plausibility of his claim of innocence. Appellant's desire to test the Commonwealth's evidence at trial is equally non-substantive. Generally speaking, trials are always proceedings in which the parties test each other's evidence, and Appellant's belated wish for a trial fails to bolster his claim of innocence, particularly in light of the fact that any vulnerability in the Commonwealth's evidence, specifically Victim's testimony, was well known to Appellant prior to him entering his plea. In other words, for all intents and purposes, the reality is that Appellant solely asserted his innocence in an attempt to withdraw his plea presentence.

The trial court was intimately familiar with this case, having observed Appellant throughout the various trial court proceedings. Additionally, the court demonstrated a studied understanding of the law in this area. For example, the trial court appropriately assessed the plausibility of Appellant's contentions supporting withdrawal of his plea when it considered the timing and entry of the nolo contendere plea, which occurred in chambers while a prospective jury pool waited in the courtroom. The trial court also properly factored into its exercise of discretion Appellant's knowledge of his available defenses when he pleaded and then inexplicably waited four months to file his motion to withdraw his plea.

After the trial court assessed the nature of the claim Appellant offered in support of his motion to withdraw his plea, the court reasonably determined that, like the defendant in Hvizda , Appellant simply was presenting a bare assertion of innocence. Consequently, the court denied his presentence motion to withdraw his guilty plea. As the Superior Court determined, the clear standard articulated in Carrasquillo establishes that the trial court acted within its discretion when it denied Appellant's motion on the basis that his bare assertion of innocence was not, in and of itself, a sufficient reason to require the court to grant Appellant's presentence motion to withdraw his nolo contendere plea. See Hvizda , 116 A.3d 1103 (applying the holding in Carrasquillo and concluding that the trial court did not err by denying Hvizda's presentence motion to withdraw his guilty plea, which was premised on a bare assertion of innocence).

For these reasons, we hold that the Superior Court correctly determined that the trial court did not abuse its discretion by denying Appellant's motion to withdraw his plea.⁷ We, therefore, affirm the judgment of the Superior Court, which affirmed Appellant's judgment of sentence.

Chief Justice Saylor and Justices Todd, Dougherty and Mundy join the opinion.

Chief Justice Saylor files a concurring opinion in which Justices Todd and Dougherty join.

Justice Donohue files a dissenting opinion in which Justice Wecht joins.

1 "Nolo contendere " is a Latin phrase which means, "I do not wish to contend[.]" Nolo Contendere Definition, Black's Law Dictionary (10^th ed. 2014), available at Westlaw. When a defendant enters a plea of nolo contendere , he technically does not admit guilt. See id. (defining "nolo plea"). However, for purposes of a criminal case, a plea of nolo contendere is equivalent to a plea of guilty. Eisenberg v. Com., Dep't of Pub. Welfare , 512 Pa. 181, 516 A.2d 333, 335 (1986).

2 Appellant attached this statement to his omnibus pretrial motion. The statement is dated March 1, 1996, and appears to have been given to New York investigators.

3 Regarding the application of these principles to the circumstances in Carrasquillo , Carrasquillo pleaded guilty to several sexual offenses. At Carrasquillo's plea colloquy, the Commonwealth proffered evidence, including his inculpatory statements to police and DNA evidence linking him to the crimes. Carrasquillo , 115 A.3d at 1285. During the sentencing hearing but before he received his sentence, Carrasquillo sought to withdraw his plea by claiming his innocence; however, his explanation of his innocence included bizarre references, such as statements that the CIA had victimized him by seeking to employ him as an assassin abroad. Id. at 1286. The trial court denied Carrasquillo's motion to withdraw his plea and sentenced him. Carrasquillo appealed to the Superior Court, which reversed the trial court on the basis of case law that held that a defendant's bare assertion of innocence requires a trial court to grant the defendant's presentence motion to withdraw his guilty plea. Id. at 1287-88.

Upon further appeal to this Court, we clarified the law in this area, as discussed supra , and applied that law to Carrasquillo's circumstances. The Court concluded that the trial court acted within its discretion by denying Carrasquillo's presentence motion to withdraw his guilty plea because Carrasquillo's claim of innocence was implausible in light of, inter alia , the bizarre nature of his statements during his plea colloquy and the strength of the Commonwealth's case against him. Id. at 1291-93.

As to Hvizda , Hvizda pleaded guilty to first-degree murder and possession of an instrument of crime. 116 A.3d at 1104. He later sought to withdraw that plea based upon a bare assertion of innocence. The trial court denied the motion, concluding that the claim of innocence was pretextual and an attempt to manipulate the system. Id. at 1104-05. The Superior Court reversed and stated that the trial court should have accepted Hvizda's claim of innocence and allowed him to withdraw his plea. On appeal to this Court, we explained that the Carrasquillo Court "determined that a bare assertion of innocence-such as [Hzivda] provided as the basis for withdrawing his guilty plea-is not, in and of itself a sufficient reason to require a court to grant such a request."Id. at 1107. The Court, therefore, concluded that the trial court did not err by denying Hzvida's presentence motion to withdraw his guilty plea. Id.

4 The trial court did not explain why it noted this fact, though it appears to have been aimed simply at giving a full timeline of the events that led up to Appellant filing his motion to withdraw his nolo contendere plea.

5 The trial court apparently held a hearing on Appellant's motion for reconsideration, but there is no transcript of that hearing in the certified record.

6 Stated succinctly, "the standard for post-sentence withdrawal is a stringent one, requiring the defendant to establish manifest injustice." Hvizda , 116 A.3d at 1106.

7 The Dissent expresses concern that we are: (1) creating a per se rule that "it is not a fair and just reason to withdraw a plea where the withdrawal is based on a factually supported argument that the Commonwealth does not have sufficient evidence to convict[,]" Dissenting Opinion at 123; (2) suggesting that, as a matter of law, "if facts are discovered post-plea, a motion to withdraw may be viewed more favorably[,]" id. at 124; and (3) somehow "imbuing trial courts with unfettered discretion in granting or denying motions to withdraw[,]" id. at 124; see id. at 125 (asserting that "the Majority's opinion is so amorphous in its statement of the law that it can be read to say that a trial court, having the opportunity to observe the defendant, can, in its discretion, convert any reason for withdrawal into a 'bare assertion of innocence' and deny the motion").

Respectfully, we are not creating any per se rules regarding what constitutes a fair and just reason to withdraw a guilty plea presentence. To the contrary, we believe that this opinion makes clear that trial courts must decide on a case-by-case basis whether a defendant, moving to withdraw a guilty plea presentence, has presented a fair and just reason to support such a motion. Indeed, one of Carrasquillo 's lessons is that trial courts should not deny or grant presentence motions to withdraw guilty pleas based upon any particular factor, such as a defendant's bare assertion of innocence or, as the dissent seems to suggest, a desire to pursue a standard defense strategy seeking to discredit the Commonwealth's evidence. Rather, when ruling on a presentence motion to withdraw a guilty plea, a court should carefully exercise its discretion in accordance with the law. While we believe that this opinion adequately explains the concept of trial court discretion in this context, supra at 120-22, we are confident that trial courts are well-aware of the boundaries of their discretion, as myriad of their rulings turn on the exercise of this time-honored legal standard. If, through the proper exercise of this discretion, a trial court concludes that a defendant merely has made an assertion of innocence in support his motion to withdraw his plea, then the court has the authority to deny the motion. Carrasquillo , supra .

CHIEF JUSTICE SAYLOR, Concurring

I join the majority opinion. Nevertheless, I also agree with several of the points crystallized by the dissent. In particular, I agree with Justice Donohue that the decisions that I authored in Commonwealth v. Carrasquillo , 631 Pa. 692, 115 A.3d 1284 (2015), and Commonwealth v. Hvizda , 632 Pa. 3, 116 A.3d 1103 (2015), should not be taken as diminishing the liberal-allowance standard pertaining to pre-sentence plea withdrawals. Cf. Commonwealth v. Islas , 156 A.3d 1185, 1190 (Pa. Super. 2017) ("[N]othing in Carrasquillo suggests that the Court intended the pendulum to swing fully in the other direction -- from automatic grants to automatic denials of pre-sentence motions to withdraw."). I also have some concerns about the tension inherent in attempting to enforce the requirement of liberal allowance via the application of the high threshold imposed by an abuse-of-discretion standard.

Nevertheless, the discretionary framework is embedded in the applicable Rule of Criminal Procedure. See Pa.R.Crim.P. 591(A). Moreover, I am persuaded by the additional considerations delineated by the majority -- including the entry of Appellant's plea on the day of trial, the subsequent four-month delay prior to the attempted withdrawal, the common pleas court's affordance of a hearing to permit Appellant to bolster his innocence claim, and the strength of the government's case including evidence of an admission by Appellant that he had sexually abused his biological daughter over a prolonged period. These circumstances, in my view, bear on the fairness and justness of Appellant's explanation for the withdrawal, and ultimately, I am unable to discern an abuse of discretion in the court's refusal to permit it.

Justices Todd and Dougherty join this concurring opinion.

JUSTICE DONOHUE, Dissenting

In Commonwealth v. Carrasquillo , 631 Pa. 692, 115 A.3d 1284 (2015), this Court held that a defendant seeking to withdraw his guilty plea prior to sentencing, based on a claim of innocence, must show that his claim of innocence is "at least plausible to demonstrate, in and of itself, a fair and just reason" for withdrawal. Id. at 1292. To provide guidance on this new standard, in the present case we granted allocatur to address:

Whether a defendant's assertion of innocence based on the sufficiency of the evidence and his inability to reconcile entering a plea when he maintained his innocence well before sentencing and when the Commonwealth made no argument of prejudice, is sufficient to establish a fair and just reason for withdrawing his plea of nolo contendere?

Commonwealth v. Norton , 642 Pa. 611, 170 A.3d 1059 (2017) (per curiam).

Although the Majority never squarely addresses the issue that we agreed to hear, the Majority apparently has decided that it is not a fair and just reason to withdraw a plea where the withdrawal is based on a factually supported argument that the Commonwealth does not have sufficient evidence to convict. The Majority seems to suggest that if the facts are discovered post-plea, a motion to withdraw may be viewed more favorably. Majority Op. at 121-22. In so concluding, the Majority blesses the rationale of the trial court, which denied Norton's motion because his two "primary claims that he was innocent and that he sought to challenge the Commonwealth's evidence at trial, were not novel to the post-plea proceedings of this case." Majority Op. at 118-19 (citing Trial Court Opinion, 11/17/2015, at 8).

If the Majority's opinion is interpreted to mean that sufficiency of the evidence arguments will only be viewed as "at least plausible" if the facts giving rise to the challenge post-date the entry of a plea, then the Majority has overruled Carrasquillo 's continued embrace of the liberal grant of presentencing withdrawal motions, as few, if any, defendants will be able to meet this standard. For the reasons discussed herein, it is my view that this standard is antithetical to the guiding principle that motions to withdraw should be liberally granted and to the rationale for liberality in this area, i.e., to protect the right to trial by jury.¹ Contrary to the Majority, I would hold that the trial court misapplied the law of liberality that governs pre-sentence motions to withdraw, and for that reason, I believe reversal is required.

If my reading of the Majority's opinion gives credit to announcing this post-plea evidence requirement as a standard to apply in deciding motions to withdraw pleas when that was not intended, then I am equally concerned that the Majority is imbuing trial courts with unfettered discretion in granting or denying motions to withdraw. As the Majority correctly states, an abuse of discretion will not be found based, inter alia, on a mere error of judgment, but rather exists where the trial court has reached a conclusion which overrides or misapplies the law. Majority Op. at 118, 121.² The purpose of our grant of allowance of appeal in this case was to determine what is the substantive "law" to be followed by trial courts in deciding whether a fair and just reason has been advanced to support a motion to withdraw a guilty plea. For example, as articulated in our grant of allowance of appeal, is it a fair and just reason to withdraw if it is plausibly argued that the Commonwealth does not have sufficient evidence to convict?³ In my view, testing the plausibility of a guilty plea withdrawal against the sufficiency of the Commonwealth's evidence is consistent with the policy of liberality re-announced in Carrasquillo and embedded in our criminal justice system.

The Majority's opinion is so amorphous in its statement of the law that it can be read to say that a trial court, having had the opportunity to observe the defendant, can, in its discretion, convert any reason for withdrawal into a "bare assertion of innocence" and deny the motion. If this is the "legal standard," then no decision of a trial court can ever be overruled because the "law" is whatever the trial court's view of fairness and justice is under the circumstances. Such discretion is essentially unreviewable. Unfortunately, other than blessing a trial court's exercise of discretion, the Majority does not articulate any standard against which these motions must be decided.

Although the Majority purports to recognize that a trial court's exercise of discretion is cabined by the application of a substantive legal standard, see Majority Op. at 122, n.7, its decision is untethered to any standard. For example, at no point does the Majority reconcile the denial of the motion to withdraw with the level of liberality required in deciding such motions. Further, if the Majority suggests that a "fair and just reason" is the substantive legal standard, this suggestion ignores the fact that in Carrasquillo , this Court began to craft the parameters for a cognizable claim of innocence as a "fair and just reason" for withdrawal. Our grant of allowance in this case was intended to further define the contours of a claim of innocence that is "at least plausible."

A bedrock principle of American criminal jurisprudence is that an accused is presumed innocent under the law unless and until the government is able to prove his guilt beyond a reasonable doubt. See In re Winship , 397 U.S. 358, 363-64, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). Thus, when a defendant chooses to enter a guilty plea rather than proceed to trial, the law seeks to ensure that he does so knowingly, intelligently and voluntarily, with the fullest understanding that he is waiving this fundamental right, among many others. See generally Santobello v. New York , 404 U.S. 257, 264, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971) (Douglas, J., concurring) (describing a guilty plea as "a serious and sobering occasion inasmuch as it constitutes a waiver of the fundamental rights to a jury trial, to confront one's accusers, to present witnesses in one's defense, to remain silent, and to be convicted of proof beyond all reasonable doubt"). A guilty plea is considered a defendant's consent that judgment of conviction may be entered without a trial. Commonwealth v. Starr , 301 A.2d at 594. Once the court accepts a plea, the defendant's presumption of innocence is forfeited and all that remains is the imposition of a sentence. See Commonwealth v. Jones, 546 Pa. 161, 683 A.2d 1181, 1202-03 (1996) (observing that the presumption of innocence no longer applies during the penalty phase of a criminal proceeding).

Nonetheless, even a defendant who knowingly and voluntarily swears that he is guilty may seek to withdraw his plea and proceed to trial. See Commonwealth v. Santos , 450 Pa. 492, 301 A.2d 829, 830 (1973). Consistent with our jurisprudence, Rule 591 of the Pennsylvania Rules of Criminal Procedure, relating to presentence plea withdrawals, provides: "[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." Id. Citing this Court's decisions in Commonwealth v. Forbes , 450 Pa. 185, 299 A.2d 268 (1973), and Commonwealth v. Randolph, 553 Pa. 224, 718 A.2d 1242 (1998), the official comment to Rule 591 notes that "after the Commonwealth has had an opportunity to respond, a request to withdraw a plea made before sentencing should be liberally allowed." Pa. R. Crim. P. 591, Comment.

In Forbes , we explained that "although there is no absolute right to withdraw a guilty plea, properly received by the trial court, it is clear that a request made before sentencing ... should be liberally allowed." Forbes , 299 A.2d at 271. A liberal rule allowing withdrawal of a plea prior to sentencing helps to ensure that a defendant is not denied the fundamental right to trial by jury unless he unequivocally relinquishes it. Id. Accordingly, we indicated that "any fair and just reason" could serve as a basis for granting a presentence withdrawal motion "unless the prosecution has been substantially prejudiced." Id. (citing ABA Standards Relating to Pleas of Guilty § 2.1(b) (Approved Draft, 1968) ). Based on the facts in Forbes , we held that a defendant's post-plea, pre-sentencing bare assertion of innocence - "I don't want to plead guilty to nothing I didn't do" - constituted such a "fair and just reason" for withdrawal. Id. at 272.

Carrasquillo modified Forbes . In Carrasquillo , we recognized that the "per se approach" to innocence claims had become untenable, but expressly retained Forbes' "policy of liberality." Carrasquillo , 115 A.3d at 1292. The Carrasquillo court's requirement of plausibility of the assertion of innocence must be given definition by reference to the facts of the case because this Court did not otherwise shed light on the concept of plausibility. In Carrasquillo , the defendant was accused of sexually assaulting two girls. He made inculpatory statements at the time of arrest and subsequently entered open guilty pleas after being informed of the constitutional rights he would waive by so doing. Id. at 1285-86. At his plea colloquy, the Commonwealth proffered a range of evidence against him, including his own statements, victim identification testimony, video surveillance recordings of the defendant in the vicinity of the victims, and DNA and fingerprint evidence linking him to the rape of one of the victims. Id. at 1285.

At his sentencing hearing several months later, the Commonwealth read into the record a report prepared by the Sexual Offenders Assessment Board ("SOAB") characterizing the defendant as a sexually violent predator and a cruel assailant motivated by rage and anger. Id. at 1286. Family members of one of the victims testified to the trauma defendant had inflicted. Id. Following the presentation of this testimony, the defendant sought to withdraw his guilty plea. Id. In furtherance of his request, he made a series of outlandish remarks asserting, for example, that "the Antichrist, he came out of me," and that the CIA had victimized him by seeking to employ him as an assassin. Id. He insisted that he had been framed and that a polygraph test would prove his innocence. The sentencing court denied his motion to withdraw. Id. at 1287.

Citing Forbes, a divided en banc panel of the Superior Court reversed, finding defendant's claim of innocence controlling despite his "fantastical" assertions. Carrasquillo , 78 A.3d at 1126. The Superior Court held that "our law does not (contrary to the Commonwealth's suggestion) require some quantum of 'rational support' as a prerequisite for a plea withdrawal." Id.

On appeal, this Court reversed, deciding in essence that some quantum of "rational support" is a prerequisite for a pre-sentence plea withdrawal. We clarified that, broadly speaking, "the proper 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." Carrasquillo , 115 A.3d at 1292. Specifically, when a defendant asserts his innocence as a basis for withdrawing his guilty plea, as in Carrasquillo , his "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. Finally, we explained that "the policy of liberality remains extant but has its limits, consistent with the affordance of a degree of discretion to the common pleas courts." Id.

Applying this standard to the unique facts in Carrasquillo , we held that the "bizarre statements" that accompanied Carrasquillo's assertion of innocence "wholly undermined its plausibility," particularly because the Commonwealth's evidentiary proffer at the plea hearing was strong. Id. at 1293. We also observed that Carrasquillo had waited until his sentencing hearing to seek withdrawal. Id. at 1292-93. This delay, and the concomitant failure to advance a written motion to withdraw while the record was still open, weighed against granting his request. Id.

We decided Hvizda as a companion case to Carrasquillo . In Hvizda , the defendant pled guilty to first-degree murder and possession of an instrument of crime after surrendering himself to police and confessing to the stabbing of his estranged wife immediately following the incident in question. Commonwealth v. Hvizda , 632 Pa. 3, 116 A.3d 1103, 1104 (2015). Two months later, at his sentencing hearing, he told the court: "I'm here to maintain my innocence in the charge of murder in the first degree." Id. His counsel explained that his client's "fair and just reason" in support of his motion to withdraw his plea was "that he maintains his innocence" as to the charges. Id. At a hearing on the motion, the Commonwealth presented a tape recording of the defendant's telephone conversations from prison during which he again confessed to the crime but stated that he wished to go to trial to "get some of the story out." Id. The trial court denied the motion, calling his "bald assertion of innocence ... at best pretextual and an attempt to manipulate the system." Id. at 1105. The Superior Court reversed and the Commonwealth appealed. Citing our holding in Carrasquillo , we reiterated that Hvizda's "bare assertion of innocence ... is not, in and of itself a sufficient reason to require a court to grant" a withdrawal request. Id. at 1107.

Carrasquillo and Hvizda informed us that a "claim of innocence," standing alone, is not sufficient to satisfy the Forbes ' "fair and just reason" basis for withdrawal.⁴ Instead, the defendant must show that his claim of innocence is "at least plausible" by making a "colorable demonstration" that granting his motion "would promote fairness and justice." Carrasquillo , 115 A.3d at 1292. Neither outlandish statements unrelated to the crime nor an unsupported claim about the potential outcome of polygraph testing will convert a bare assertion of innocence into an assertion of innocence that is "at least plausible." See id. Given their unique facts, however, neither Carrasquillo nor Hvizda , provided guidance regarding what sort of demonstration is necessary and sufficient to show plausibility and, as stated, this Court did not further explain the standard. However, it is clear that in both cases, the Commonwealth's evidence to convict was strong and neither defendant had articulated a legally cognizable defense. Indeed, the claims of innocence in both cases were implausible.

When a defendant seeks to withdraw a guilty (or nolo contendere) plea, he is asking the court to reinstate his trial rights and to cloak him, again, with the presumption of innocence. We have for decades recognized that motions to withdraw a plea should be liberally granted so that a citizen's right to trial by jury is promoted, a principle that we reaffirmed in Carrasquillo . Id. In my view, if a defendant presents a defense strategy which, when weighed against the strength of the Commonwealth's evidence, could plausibly lead a jury to conclude that the Commonwealth has failed to prove guilt beyond a reasonable doubt, a fair and just reason exists to permit the withdrawal of a guilty plea.⁵

Applying this test to the facts of the case before us, in my view Norton's assertion of innocence is "at least plausible." Although Norton sought to withdraw his plea because he "cannot not live with himself taking a plea [of nolo contendere] to charges that he is innocent of," his innocence claim is not bare. To the contrary, if permitted to go to trial, Norton (through counsel) indicated that he would attempt to sow doubt as to the sufficiency of the Commonwealth's evidence against him by challenging the strength of the victim's testimony. Specifically, he highlighted the extent to which her testimony at the preliminary hearing was riddled with "I don't remember" responses to questions about the alleged incidents.⁶ Norton also previewed that he would again challenge the admission of "prior bad acts" evidence, including testimony from his daughter that he abused her many years prior to the charge at issue as well as evidence that he confessed to that prior abuse.⁷

It is conceivable that the defense strategy Norton set forth during his withdrawal hearing could ultimately lead to his acquittal. The Rule 404(b) evidence was significant to the Commonwealth's case. A successful challenge to the ruling on its admissibility reduces the Commonwealth's case against Norton to the victim's testimony based on a demonstrably poor memory. Even the Commonwealth concedes that challenging the victim's ability to testify was a "readily apparent" defense and suggests that it would be an even stronger one if Norton succeeded in excluding the 404(b) testimony.⁸ See Commonwealth's Brief at 11. The fact that Norton was aware of this information prior to his plea should be of no consequence if the goal is to protect a defendant's right to trial by jury advanced by liberal grants of motions to withdraw.

The plausibility of Norton's claim of innocence stands in stark contrast to the implausible claims made by the defendants in Carrasquillo and Hvizda . Neither Carrasquillo nor Hvizda proffered a defense strategy when making their claims of innocence. In addition, the Commonwealth's evidence against each of these defendants was multi-faceted and substantial. See Carrasquillo , 115 A.3d at 1292-97 ; Hvizda , 116 A.3d at 1104-07. Finally, Norton did not wait until his sentencing hearing to seek withdrawal of his plea. His motion to withdraw was filed six weeks prior to his scheduled sentencing hearing and only four months after entering his plea.⁹ Moreover, he filed a proper motion to withdraw in which he asserted his innocence and, on the record, made a colorable demonstration that his claim was plausible. In contrast to those made in Carrasquillo and Hvizda , neither the content of Norton's motion nor its timing reflects any effort to delay or manipulate the system.¹⁰ No bright line rules should be drawn regarding the point at which a motion to withdraw will be considered manipulative, especially because Rule 591 plainly gives the trial court discretion to grant these motions at any point before the imposition of a sentence.

In sum, in light of our announced continued adherence to the policy of liberally granting motions to withdraw guilty/nolo contendere pleas, I would conclude that Norton established a fair and just reason for allowing the withdrawal of his plea. Norton's claim of innocence was supported by a defense strategy which, when weighed against the Commonwealth's evidence, could plausibly result in Norton's acquittal at trial. As such, I would reverse the decision of the trial court.

For the foregoing reasons, I respectfully dissent.

Justice Wecht joins this dissenting opinion.

1 In contrast to the liberal policy allowing plea withdrawal prior to sentencing, a far more stringent "manifest injustice" standard applies to post-sentence motions to withdraw. The rationale behind this distinction is a desire to discourage the use of plea withdrawals as a device for sentence previewing. Whereas a presentence motion to withdraw typically occurs before the defendant has an indication of how he will be sentenced, that is not the case for a post-sentence motion which could therefore invite abuse if granted liberally. Commonwealth v. Starr , 450 Pa. 485, 301 A.2d 592, 594 (1973).

If the Majority Opinion is read to require post-plea evidence to support a pre-sentence motion to withdraw, it functionally erases the distinction between the policy of liberality intended for pre-sentence motions to withdraw and the higher level of scrutiny intended for post-sentence motions, rendering the former as difficult to obtain as the latter.

2 The question of whether an abuse of discretion standard applies to our review of presentence motions to withdraw pleas is not before us. I agree with the Concurrence, however, that there is a tension inherent in reviewing the trial court's decision for abuse of discretion. See Concurring Op. at 123. As discussed herein, motions to withdraw guilty pleas prior to sentencing are to be liberally granted. By contrast, "when a trial court comes to a conclusion through the exercise of its discretion, there is a heavy burden [on the appellant] to show that this discretion has been abused." Commonwealth v. Eichinger , 591 Pa. 1, 915 A.2d 1122, 1139 (2007) (citation omitted). Such a high threshold strikes me as ill-fitted to enforcing a policy of liberality. However, Pa.R.Crim.P. 591 recognizes that trial courts have discretion in deciding such motions.

3 An example from a well-travelled area of law is illustrative of the application of a legal standard in the context of assessing whether a trial court abused its discretion. The admission of evidence is solely within the discretion of the trial court, and a trial court's evidentiary rulings will be reversed on appeal only if the trial court abused its discretion. In making an evidentiary ruling, however, a trial court's discretion is cabined by the legal test it is required to apply. See e.g., Commonwealth v. Woodard , 634 Pa. 162, 129 A.3d 480, 494 (2015) (ruling on admissibility of photograph of homicide victim requires trial court to examine whether photograph is inflammatory and, if not, whether it is relevant and can assist the jury in understanding the facts of the case); see also, e.g. Pa.R.E. 403 (providing that "the court may exclude evidence if its probative value is outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence"). The trial court, of course, exercises its discretion in applying these substantive legal standards to a case, but discretion is not itself the governing legal standard. See id.

In reviewing a trial court's evidentiary ruling, the appellate court may disturb the order of the trial court only where there has been an error or misapplication of law or a clear or manifest abuse of discretion. Id. Plainly, this standard of review contemplates the existence of substantive law which the trial court is required to apply.

4 Pursuant to Rule 591 and Forbes , it remains true that "any fair and just reason" may provide the basis for withdrawal, so long as the Commonwealth would not be substantially prejudiced. See Forbes , 299 A.2d at 271 (emphasis added). Withdrawing a plea does not require an assertion of innocence, per se. Carrasquillo merely provides that when an assertion of innocence is the accused's rationale for wanting to withdraw his plea, he must make a colorable demonstration as to the plausibility of that assertion.

5 Independent of any claim of innocence, the trial court may also consider the timing of defendant's motion to withdraw. Certainly, even under Forbes and its progeny, where a bare assertion of innocence established a fair and just reason for withdrawal, evidence that the timing of the motion to withdraw established a defendant's attempt to manipulate the criminal justice system could nonetheless result in the denial of the motion to withdraw. Additionally, trial courts must consider whether granting the motion to withdraw would substantially prejudice the Commonwealth if the Commonwealth so claims.

6 Norton was charged with five counts of indecent assault and one count of corruption of a minor. The criminal complaint alleged that he sexually abused his paramour's minor granddaughter beginning when she was three or four years old. At a preliminary hearing on February 27, 2013, the alleged victim testified that the abuse occurred between September 2008 and April 2012. Specifically, she stated that the abuse occurred more than one time and "a lot" but she could not remember whether it occurred more than two times. In light of this testimony, the magisterial district judge dismissed three counts of indecent assault, but held over the remaining charges.

7 In his motion in limine, Norton argued that the alleged prior incidents occurred approximately eighteen years before the incidents alleged in the instant matter, making the former far too remote in time to be admissible pursuant to Pennsylvania Rule of Evidence 404(b). See Defendant's Brief in Support of Omnibus Pretrial Motion, 11/5/2013, at 2-3 (citing cases for the proposition that evidence of an independent crime is only admissible if it allegedly occurred "at or about the same time of the criminal act in question" and "not far apart in time" from charged incident). He further argued that the remoteness in time of the 404(b) evidence weighed most heavily against admission when, as here, there were significant differences between the prior act and the charged act. Id. at 2-4 (setting forth the various distinctions between the two alleged incidents and urging that the absence of "striking similarities between the cases" makes the 404(b) testimony inadmissible).

In apparent agreement with my proposed approach, the Concurrence engages in an assessment of the strength of the Commonwealth's evidence but joins the Majority nonetheless, in part because it views the Commonwealth's evidence against Norton as strong (even, I gather, when weighed against Norton's proffered defense strategy). See Concurring Op. at 123. In this regard, the Concurrence suggests that the evidence that Norton confessed to abusing his own daughter many years prior to the alleged abuse in the instant matter is particularly weighty. See id. at 123. As noted, Norton's proffered defense strategy involves a continued challenge to the admission of prior bad act evidence, which includes his confession. In light of the foregoing discussion about the law governing admissibility under Rule 404(b), as well as the policy of liberality governing motions to withdraw, I do not agree with the Concurrence that the Commonwealth's evidence is strong when weighed against Norton's proposed defense strategy. It also bears noting that the Commonwealth argued in its brief opposing Norton's motion in limine that it would seek to introduce the confession "depending on the nature of the defense and whether Norton testifies." Commonwealth's Opposition Brief at 3. Furthermore, the trial court reasoned, anomalously, that because the Commonwealth had no evidence other than the uncorroborated testimony of the victim, it would allow the introduction of prior bad acts. Order, 12/4/2013, at 6.

8 Norton signaled that his defense strategy at trial would also involve contesting a statement in the affidavit of probable cause, attributed to the victim, that Norton's pubic hair was black. See Norton's Brief at 23. Notably, with or without this particular point, Norton's proffered defense strategy is plausible.

9 In addition, on April 5, 2015, four weeks prior to the scheduled sentencing hearing, Norton refused to participate in an interview by the SOAB, again maintaining his innocence. Hearing, 6/25/2015, at 7. The Majority observes that the trial court relied upon Norton's acknowledgement to the SOAB that Pennsylvania law required him to register as a sex offender. Majority Op. at 117-18 (discussing Trial Court Opinion, 11/17/2015, at 3). Neither the Majority nor the trial court, however, has explained how this point in any way supports the denial of Norton's motion to withdraw his plea, since it constituted nothing more than a recognition of current Pennsylvania law, and the record here clearly reflects that the extent of Norton's participation in the SOAB proceedings was to refuse to participate in the interview - with no acknowledgement of any guilt for the remaining criminal charges against him. Hearing, 6/25/2015, at 4, 7. The Commonwealth has not suggested to the contrary.

10 As to a different timing issue, the Majority blesses the trial court's reference to the fact that Norton entered into the plea shortly before jury selection. Majority Op. at 121-22. Given that an offer of a plea is not within the control of the defendant and this record is devoid of any evidence as to when the plea offer was made, any reliance on this factor should be totally discounted.