J-S42010-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

CHARLES LEE CAROTHERS, JR.,

Appellant No. 1388 MDA 2016

Appeal from the Judgment of Sentence July 26, 2016

In the Court of Common Pleas of Cumberland County

Criminal Division at No(s): CP-21-CR-0002405-2015

BEFORE: OLSON, J., MOULTON, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY OLSON, J.: FILED AUGUST 25, 2017

Appellant, Charles Lee Carothers, Jr., appeals from the judgment of 

sentence entered on July 26, 2016. We affirm. 

The factual background of this case is as follows. On May 2, 2015, 

Appellant was stopped by Officer Michael Reibsane of the Middlesex 

Township Police Department. Officer Reibsane suspected that Appellant was 

driving under the influence of alcohol and placed him under arrest. 

Appellant was read the DL-26 implied consent form and declined to provide 

a blood sample. 

The procedural history of this case is as follows. On November 16, 

2015, the Commonwealth charged Appellant via criminal information with 
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two counts of driving under the influence – general impairment (“DUI”),1

fleeing police,2and speeding.3 On March 24, 2016, Appellant pled guilty to 

DUI and recklessly endangering another person.4 

On June 27, 2016, Appellant moved to withdraw his guilty plea. The 

trial court conducted an evidentiary hearing and, on July 26, 2016, denied 

the motion. That same day, the trial court sentenced Appellant to an 

aggregate term of six to twelve months’ imprisonment followed by 18 

months’ probation. This timely appeal followed.5 

Appellant presents two issues for our review:

1. Did the [trial] court abuse its discretion when it denied the 

withdrawal of Appellant’s guilty plea prior to sentencing where 

Appellant had practical reasons for wishing to withdraw?

2. Had the [trial] court not abused its discretion in denying the 

withdrawal of Appellant’s guilty plea, would Appellant have been 

able to file pretrial motions to dismiss the DUI charges pursuant 

to Birchfield v. North Dakota[, 136 S.Ct. 2160 (2016)?]

 

1 75 Pa.C.S.A. § 3802(a)(1). Appellant was charged with one count of DUI 

and one count of DUI with refusal for the same conduct. This Court 

disapproves of this charging practice and has provided guidance on how the 

Commonwealth should handle these situations. See generally 

Commonwealth v. Farrow, 2017 WL 3185316 (Pa. Super. July 27, 2017).

2 75 Pa.C.S.A. § 3733(a).

3 75 Pa.C.S.A. § 3362(a)(3).

4 18 Pa.C.S.A. § 2705.

5 On August 26, 2016, the trial court ordered Appellant to file a concise 

statement of errors complained of on appeal (“concise statement”). See

Pa.R.A.P. 1925(b). On September 15, 2016, Appellant filed his concise 

statement. On October 19, 2016, the trial court issued its Rule 1925(a) 

opinion. Both of Appellant’s issues were included in his concise statement. 
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Appellant’s Brief at 6 (complete capitalization and emphasis omitted). 

In his first issue, Appellant argues that the trial court erred in denying 

his motion to withdraw his guilty plea. “We review a trial court's ruling on a 

pre-sentence motion to withdraw a guilty plea for an abuse of discretion.” 

Commonwealth v. Islas, 156 A.3d 1185, 1187 (Pa. Super. 2017) (citation 

omitted). Pennsylvania Rule of Criminal Procedure 591(A) provides that, “At 

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).

“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.” Commonwealth v. Kpou, 153 A.3d 1020, 

1022 (Pa. Super. 2016) (internal alteration, ellipsis, and citation omitted). 

“[I]n determining whether to grant a presentence motion for withdrawal of a 

guilty plea, the test to be applied by the trial courts is fairness and justice.” 

Commonwealth v. Elia, 83 A.3d 254, 262 (Pa. Super. 2013) (internal 

quotation marks and citation omitted). Therefore, if the defendant provides 

a fair and just reason for wishing to withdraw his or her plea, the trial court 

should grant it unless it would substantially prejudice the Commonwealth. 

Commonwealth v. Carrasquillo, 115 A.3d 1284, 1287 (Pa. 2015) (citation 

omitted).
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Appellant argues that the fair and just reason for permitting the 

withdrawal of his guilty plea was that it was affecting his ability to find a job. 

Specifically, Appellant avers that he was applying for jobs as a commercial 

truck driver and that his guilty plea prevented him from being hired. We 

conclude that the trial court reasonably concluded that Appellant’s DUI 

conviction was not affecting his ability to find a new job.

Appellant was convicted of 19 offenses between 1994 and 2011. See

Commonwealth v. Carothers, CP-21-CR-0003145-2010 (attempt to 

possess with intent to deliver a controlled substance); Commonwealth v. 

Carothers, CP-21-CR-0002437-2007 (simple assault); Commonwealth v. 

Carothers, CP-22-CR-0004115-2006 (escape, resisting arrest, simple 

assault, and criminal mischief); Commonwealth v. Carothers, CP-21-CR0000051-2002 (resisting arrest); Commonwealth v. Carothers, CP-21-

CR-0001427-2000 (theft by unlawful taking and criminal trespassing); 

Commonwealth v. Carothers, CP-21-CR-0001854-1999 (making 

terroristic threats); Commonwealth v. Carothers, CP-21-CR-0000284-

1999 (theft by deception); Commonwealth v. Carothers, CP-21-CR0001237-1998 (possession with intent to deliver a controlled substance);6

Commonwealth v. Carothers, CP-21-CR-0001470-1996 (possession with 

intent to deliver a controlled substance); Commonwealth v. Carothers, 

 

6 Appellant also sought to withdraw his guilty plea in that case. The trial 

court denied that motion and this Court affirmed. Commonwealth v. 

Carothers, 697 MDA 1999 (Pa. Super. Feb. 8, 2000) (unpublished 

memorandum).
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CP-21-CR-0001449-1996 (conspiracy to possess with intent to deliver a 

controlled substance); Commonwealth v. Carothers, CP-21-CR-0002129-

1995 (theft by deception); Commonwealth v. Carothers, CP-21-CR0002128-1995 (possession with intent to deliver a controlled substance); 

Commonwealth v. Carothers, CP-21-CR-0001797-1994 (retaliation 

against a witness); Commonwealth v. Carothers, CP-21-CR-0001210-

1994 (harassment); and Commonwealth v. Carothers, CP-21-CR0000374-1994 (harassment). The trial court found that these convictions 

were the reason that Appellant was unable to secure a truck driving job.

We ascertain no abuse of discretion in this finding. As noted above, 

the trial court held an evidentiary hearing on Appellant’s motion to withdraw. 

At that hearing, Appellant only presented his own testimony. He did not 

present the testimony of any potential employers nor did he present any 

documentary evidence. Thus, the only evidence Appellant offered was his 

own self-serving testimony regarding why he was unable to secure a truck 

driving job. Appellant’s prior convictions were for very serious offenses. In 

addition to multiple drug offenses, Appellant was previously convicted of 

multiple theft offenses, resisting arrest, and escape. The trial court 

reasonably found that these serious convictions were the reason Appellant 

was having difficulty securing a job as a truck driver. 

Appellant argues that this case is analogous to Islas, in which this 

Court found that information received from new defense counsel regarding 
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defenses available to him at trial was a fair and just reason for permitting 

withdrawal. This argument is without merit for two reasons. First, in this 

case the alleged new legal information available to Appellant was regarding 

the collateral consequences of his conviction. Specifically, Appellant alleges 

that he only learned that his DUI conviction would appear on a background 

check after he pled guilty. On the other hand, in Islas the new legal 

information affected the guilt portion of a potential trial. Second, and more 

importantly, as noted above, the trial court reasonably found that the effect 

of his present guilty plea on his ability to find a truck driving job is nonexistent. As such, Appellant failed to show a fair and just reason for 

withdrawing his guilty plea and the trial court’s denial of his motion to 

withdraw his guilty plea was not manifestly unreasonable. Cf. 

Commonwealth v. Biesecker, 161 A.3d 321, 329 (Pa. Super. 2017) 

(citation omitted) (“An abuse of discretion is not merely an error of 

judgment, but is rather the overriding or misapplication of the law, or the 

exercise of judgment that is manifestly unreasonable, or the result of bias, 

prejudice, ill-will or partiality, as shown by the evidence of record.”). As we 

conclude the trial court did not err by denying Appellant’s motion to 

withdraw his guilty plea, we need not address his second issue which is 

conditioned upon the trial court having abused its discretion in denying his 

motion to withdraw his guilty plea. Accordingly, we affirm his judgment of 

sentence. 
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Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 8/25/2017