J-S42023-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O. P. 65.37 COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v. DANIEL JOSEPH HOOPSICK, JR. Appellant No. 1816 WDA 2013

Appeal from the Judgment of Sentence October 23, 2013 In the Court of Common Pleas of Erie County Criminal Division at No(s): CP-25-CR-0000648-2013
BEFORE: PANELLA, J., JENKINS, J., and MUSMANNO, J. MEMORANDUM BY JENKINS, J.: FILED AUGUST 04, 2014 Daniel Joseph Hoopsick, Jr. (“Appellant”) appeals from the judgment of sentence entered following his nolo contendere plea. After careful review, we vacate the judgment of sentence and remand the matt er for further proceedings. The facts and procedural history may be summarized as fo llows. On July 10, 2013, Appellant entered a plea of nolo contendere to one count each of sexual assault, 1 endangering the welfare of children, 2 and corruption of minors 3 based on allegations that he forced a minor female vi ctim to

____________________________________________
1 18 Pa.C.S. § 3124.1.

2 18 Pa.C.S. § 4304.

3 18 Pa.C.S. § 6301.J-S42023-14

- 2 -

perform oral sex on him in December of the previous ye ar. Prior to sentencing, Appellant filed a Motion to Withdraw Nolo Contendere Plea and Continue Until January 2014 Trial Term (“Motion to Withdraw Plea”) to which the Commonwealth filed a response. On October 23, 201 3, the trial court conducted a hearing and denied the Motion to Withdraw Plea. The trial court then sentenced Appellant to an aggregate term of 66 t o 180 months of incarceration as follows: 54 to 120 months of incarcerati on on the sexual assault conviction, 12 to 60 months of incarceration on th e endangering welfare of children conviction to be served consecutively to the sexual assault conviction, and 12 to 60 months of incarceration on the corruption of minors conviction to be served concurrently to the endan gering the welfare of children conviction. Appellant timely appealed. Appellant raises the following questions for our revi ew: [1.] Did the lower court improperly deny defense counse l’s request for the appointment of conflict counsel[] in vio lation of [Appellant’s] 6 th Amendment right to counsel? [2.] Did the lower court err in failing to permit Ap pellant to withdraw his plea, as his plea was not knowing and volu ntary? [3.] Did the lower cour[t] abuse its discretion when it deemed [Appellant] a sexually violent predator, as there was insufficient evidence to support such a finding? Appellant’s Brief, p. 2 (all capitals removed). We address Appellant’s second claim first, as it is disposi tive. Appellant argues that the trial court erred when it d id not allow him toJ-S42023-14

- 3 -

withdraw his plea of nolo contendere prior to sentencing. See Appellant’s Brief, pp. 4-6. We agree. “[I]n terms of its effect upon a case, a plea of nolo contendere is treated the same as a guilty plea.” Commonwealth v. Miller , 748 A.2d 733, 735 (Pa.Super.2000). The Pennsylvania Rules of Criminal Procedure allow the withdrawal of a nolo contendere plea as follows: At any time before the imposition of sentence, the cou rt 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). We review a trial court’s denia l of a motion to withdraw a guilty plea for an abuse of discretion. Miller , 748 A.2d at 735. Although there is no absolute right to withdraw a gui lty plea, this Court has repeatedly stated that “[a] pre-sentence motion to withdraw a guilty plea should be liberally allowed and should be grante d for any fair and just reason unless granting the motion would cause substantial prejudice to the Commonwealth.” Commonwealth v. Gordy , 73 A.3d 620, 623-24 (Pa.Super.2013) (citing Miller , 748 A.2d at 735) (internal citations omitted). As the Court has further explained: An assertion of innocence can constitute a fair and just r eason for plea withdrawal. In the context of a pre-sentence request for plea withdrawal, the term “prejudice” means that, due to events occurring after the entry of the plea, the Commonweal th’s prosecution of its case is in a worse position that it wou ld have been had the trial taken place as originally scheduled . Thus, prejudice is about the Commonwealth’s ability to try its case, not about the personal inconvenience to complainants unless t hatJ-S42023-14

- 4 -

inconvenience somehow impairs the Commonwealth’s prosecution. Gordy , 73 A.3d at 624 (internal citations omitted). The f act that a witness later becomes a reluctant witness does not demonstrate tha t substantial prejudice has inured to the Commonwealth to permit de nial of pre-sentence withdrawal of a guilty plea. See Commonwealth v. Kirsch , 930 A.2d 1282, 1286-88 (Pa.Super.2007). Here, Appellant filed his Motion to Withdraw Plea p rior to sentencing. In support of his request, Appellant claimed actual in nocence both in his motion and at the hearing on the motion. See Motion to Withdraw Plea, p. 1 (“Motion to Withdraw Plea”); N.T. 10/23/2013, p. 4. Appellant’s claim of actual innocence constituted a fair and just reason for the trial court to permit the pre-sentence withdrawal of Appellant’s guil ty plea. 4 See Gordy , supra . At the hearing on the Motion to Withdraw Plea, the Commonwealth offered the testimony of Stacie Pedersen, the victim’s ca seworker from the Erie County Office of Children and Youth. See N.T. 10/23/2013, pp. 6-10. Ms. Pedersen explained that, prior to Appellant’s nolo contendere plea, the

____________________________________________
4 We note that Appellant’s claim of actual innocence do es not contradict his previous plea. See Commonwealth v. Boyd , 292 A.2d 434, 435 (Pa.Super.1972) (noting that a plea of nolo contende re is not an express admission of guilt, but instead is a waiver of trial and an authorization for the court to treat the defendant as if he were guilty for the purpose of the case).J-S42023-14

- 5 -

victim exhibited an elevated level of anxiety, decrea sed concentration, difficulties in school, behavioral outbursts, aggressive be haviors, and bedwetting. Id. at 8. Ms. Pedersen testified that these behaviors decre ased significantly after the victim learned of the plea and believed the matter to be resolved. Id. at 7. However, Ms. Pedersen opined that the victim’s anxiety and negative behaviors would return and possib ly increase if the victim learned that she would have to testify in a tri al. Id. at 8. Based on the Motion to Withdraw Plea and the hearing testimon y, the trial court denied the motion, explaining that (1) Appellant ha d presented a fair and just reason for the withdrawal of his plea, but (2) “t here would be a significant impact upon the child victim if that plea w ere withdrawn.” N.T. 10/23/2013, p. 17. This was error. The victim’s pre-plea anxiety is akin to anxiety exper ienced by witnesses in criminal cases every day in this Commonwealth and amounts to her personal inconvenience. That the victim’s mental sta te had improved after learning of the plea is immaterial. Appellant ’s request to withdraw his nolo contendere plea would have returned the Commonwealth to exactl y where it had been prior to the plea: in a situation where the Commonwealth needed to prove its case using the testimony of a relucta nt witness. 5 As

____________________________________________
5 We further note that the “significant impact upon the child” feared by the trial court was entirely speculative. Even if proven, the witness’s increased reluctance to testify attendant to learning Appellant had withdrawn his plea (Footnote Continued Next Page)J-S42023-14

- 6 -

such, the Commonwealth would not have experienced “subst antial prejudice” had the trial court allowed Appellant to w ithdraw his plea prior to sentencing. See Gordy, supra ; see also Kirsch , 930 A.2d at 1288 (having to prove its case following withdrawal of a plea is not prejudice to the Commonwealth). Accordingly, the trial court abused its discretion in denying the pre-sentencing Motion to Withdraw Plea. Because our determination of Appellant’s second issue is di spositive to the matter, we need not examine his remaining claims

. Judgment of sentence vacated. Order denying the Motio n to Withdraw Plea reversed. Case remanded for further proceedings consistent with this decision. Jurisdiction relinquished. Judge Panella notes dissent.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 8/4/2014

(Footnote Continued) _______________________ would not have demonstrated substantial prejudice to t he Commonwealth. See Gordy , supra .J-S42023-14

- 7 -