J-S22036-24

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

JOSE MONTANO 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1268 WDA 2023

Appeal from the Judgment of Sentence Entered October 11, 2023

In the Court of Common Pleas of Erie County Criminal Division at No(s): 

CP-25-CR-0001996-2020

BEFORE: PANELLA, P.J.E., LANE, J., and BENDER, P.J.E.

MEMORANDUM BY BENDER, P.J.E.: FILED: JULY 23, 2024

Appellant, Jose Montano, appeals from the trial court’s October 11, 2023 

aggregate judgment of sentence of 5 to 10 years’ incarceration, imposed after 

he pled guilty to several offenses, including possession of a firearm by a 

person prohibited (18 Pa.C.S. § 6105(a)(1)) and terroristic threats (18 Pa.C.S. 

§ 2706(a)(1)). On appeal, Appellant solely challenges the trial court’s denial 

of his presentence motion to withdraw his guilty plea. After careful review, 

we affirm.

The facts underlying Appellant’s convictions are not germane to our 

disposition of the issue he raises herein. The pertinent procedural history 

begins with Appellant’s entry of a guilty plea to the above stated charges on 

April 12, 2022. Prior to sentencing, Appellant filed a motion to withdraw his 

guilty plea on July 14, 2022. After conducting a hearing on the motion, the 
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trial court denied it on August 26, 2022, and sentencing was scheduled for 

September 21, 2022. 

Appellant twice failed to appear for his sentencing, and a bench warrant 

was issued. Ultimately, Appellant was detained and sentencing was scheduled 

for July 6, 2023. On June 23, 2023, Appellant’s current counsel, Anthony 

Rodriques, Esq., entered his appearance on Appellant’s behalf and filed 

another motion to withdraw Appellant’s guilty plea. In this motion, Appellant 

alleged “that a witness was unavailable when the trial was previously 

scheduled[,] but had become available in June of 2023[,]” and this witness 

“would contradict the Commonwealth’s theory of the case.” Trial Court 

Opinion and Order (TCOO), 9/29/23, at 2-3.

On September 7, 2023, the court conducted an evidentiary hearing on 

Appellant’s motion. “At the hearing, the defense called Janiya Wayne, who 

testified that the firearm involved in this matter belonged to her and further 

testified regarding her whereabouts and availability at various times.” Id. at 

3. On September 29, 2023, the trial court denied Appellant’s motion to 

withdraw his plea. He proceeded to sentencing on October 11, 2023, at which 

the court imposed the aggregate term set forth supra. Appellant filed a timely 

notice of appeal, and he complied with the trial court’s order to file a Pa.R.A.P. 

1925(b) concise statement of errors complained of on appeal. The trial court 

thereafter filed an opinion stating that it was relying on its prior decisions in 

this case, including its September 23, 2023 opinion and order denying 

Appellant’s motion to withdraw his guilty plea.
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Before addressing Appellant’s issue, we note that the brief filed by 

Attorney Rodriques fails to comply with the Pennsylvania Rules of Appellate 

Procedure. In particular, there is no Statement of Questions Involved 

(Pa.R.A.P. 2116) or Summary of Argument (Pa.R.A.P. 2118). Nevertheless, 

counsel does clearly raise in the brief the following, single issue: “Whether the 

trial court abused its discretion in denying [Appellant’s] presentence motion 

to withdraw his guilty plea notwithstanding [that Appellant] located a key 

witness whose whereabouts [were] unknow[n] at the time of the guilty plea.” 

Appellant’s Brief at 3 (unnumbered). As Attorney Rodriques follows that issue 

with a discussion – albeit brief – of Appellant’s claim, we will not dismiss this 

appeal based on Attorney Rodriques’s briefing errors, and will instead address 

the merits of Appellant’s claim.

Preliminarily, we recognize:

The following considerations govern the decision to grant or deny 

a presentence motion to withdraw a plea:

(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.”

Commonwealth v. Norton, ... 201 A.3d 112, 116 ([Pa.] 2019) 

(quoting Commonwealth v. Carrasquillo, ... 115 A.3d 1284, 

1292 ([Pa.] 2015)). A fair and just reason exists where the 

defendant makes claim of innocence that is at least plausible. 

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 
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plea would promote fairness and justice.” Norton, 201 A.3d at 

120-21 (quoting Carrasquillo, 115 A.3d at 1292). “[T]rial courts 

have discretion to assess the plausibility of claims of innocence.” 

Id. at 121.

We review that exercise of discretion as follows:

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. 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. 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. Absent an abuse of that 

discretion, an appellate court should not disturb a trial 

court’s ruling.

[...]

[I]t is important that appellate courts honor trial court’s 

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.”

Norton, 201 A.3d at 120, 121 (citations omitted).

Commonwealth v. Garcia, 280 A.3d 1019, 1023–24 (Pa. Super. 2022), 

appeal denied, 293 A.3d 566 (Pa. 2023).

Here, Appellant’s entire argument that the court should have granted 

his presentence motion to withdraw his plea is the following:

The trial court abused its discretion in denying [Appellant’s] 

presentence motion to withdraw guilty plea. The motion to 
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withdraw the guilty plea was based on the then unavailability of a 

key witness when the guilty plea was entered. [Appellant] learned 

of the witness’ location after the guilty plea but before sentencing. 

The witness testified at a hearing on the motion to withdraw guilty 

plea, on September 7, 2023.

The witness testified that she was not in Pennsylvania when 

[Appellant] pled guilty at said hearing. Upon the court’s 

examination, the witness further testified that she was residing in 

Jackson, Mississippi[,] at the time of the plea. 

The state has not alleged that it would be substantially prejudiced 

by [Appellant’s] withdrawal of his guilty plea. Where a defendant 

requests to withdraw his guilty plea before he is sentenced, the 

trial court has discretion to grant the withdrawal and that 

discretion is to be liberally exercised to permit withdrawal of the 

plea if two conditions are present: 1) the defendant demonstrates 

a fair and just reason for withdrawing the plea and 2) it is not 

shown that withdrawal of the plea would cause substantial 

prejudice to the Commonwealth. ... Carrasquillo, 115 A.3d [at] 

1291-92.... The witness ... was unavailable at [the] time of the 

guilty plea. The witness had moved to Mississippi and [Appellant] 

was unaware of the witness’ location. Element #1 as outlined in 

Carrasquillo, is met. Regarding element #2, the state has not 

alleged that it would have been prejudiced had the motion to 

withdraw guilty plea been granted. Element #2 is satisfied.

Pa.R.Crim.P. 320 provides that “[a]t any time before sentence, 

the court may, in its discretion, permit or direct a plea of guilty to 

be withdrawn and a plea of not guilty substituted.” Under this 

[r]ule, “[i]f the court finds ‘any just reason,’ withdrawal of the plea 

should be freely permitted, unless the prosecution has been 

‘substantially prejudiced.’” Commonwealth v. Middleton, ...473 

A.2d 1358, 1359 ([Pa.] 1984) [(citation omitted)]. The newly 

available key witness, offering exculpatory evidence, is a just 

reason to withdraw a guilty plea.

Appellant’s Brief at 4-5 (unnumbered; citations to the record omitted).

No relief is due. Initially, although Appellant fails to name the nowavailable witness, we are aware from the record and the trial court’s opinion 

that the witness he is referring to is Janiyah Wayne, who is the mother of 
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Appellant’s children. See TCOO at 4. Additionally, although Appellant does 

not specify what ‘exculpatory evidence’ Ms. Wayne would offer, her testimony 

indicates that she is claiming that the gun, which Appellant was charged with 

possessing, belongs to her. 

We agree with the trial court that Ms. Wayne’s testimony, even if 

believed by the fact-finder, would not be exculpatory and, thus, it does not 

demonstrate that Appellant’s claim of innocence is plausible. Namely, the 

recitation of facts at the guilty plea proceeding indicate that two eyewitnesses, 

who were in a car following a vehicle driven by Appellant, saw Appellant 

brandish “a black firearm into the air in an open convertible towards their 

direction....” N.T. Plea, 4/12/22, at 8. When police arrived, Appellant admitted 

that he had “a weapon in the vehicle..., and [he] gave them consent to retrieve 

that weapon from the vehicle, which was retrieved [from] under the driver’s 

seat.” Id. at 9. As the trial court correctly observes, even crediting Ms. 

Wayne’s testimony that she is the owner of the firearm brandished by 

Appellant, which she is licensed to carry, that “does not provide a specific 

defense to any of the charges to which [Appellant] pled[,] including persons 

not to possess a firearm.” TCOO at 9 (unnecessary capitalization omitted). A 

person may be convicted of that offense if, inter alia, they “possess, use, 

control, sell, transfer or manufacture ... a firearm in this Commonwealth.” 18 

Pa.C.S. § 6105(a)(1) (emphasis added). Clearly, Appellant possessed the

firearm when he brandished it and pointed it towards two individuals. Thus, 

Ms. Wayne’s testimony that she is the lawful owner of the gun is not 
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exculpatory, and does not demonstrate that Appellant’s claim of innocence is 

plausible.

Moreover, the trial court set forth a detailed discussion of why it found

Ms. Wayne’s testimony about her alleged unavailability at the time of trial to 

be vague, contradictory, and incredible. See TCOO at 5-7. The record 

supports the court’s credibility determination, and Appellant does not respond 

to the court’s analysis in any way. He also does not respond to the court’s 

conclusion that “there is nothing to indicate that she could not have made 

contact with [Appellant], his family, his friends, or anyone in the legal system 

regarding her knowledge and/or involvement in this case” prior to Appellant’s 

entering his plea. Id. at 6. Thus, even if Ms. Wayne’s testimony would be 

helpful to the defense in some way, Appellant has failed to demonstrate that 

she was unavailable at the time he chose to enter his plea. Accordingly, 

Appellant has not established that, under these circumstances, withdrawing 

his plea would promote fairness and justice.

Judgment of sentence affirmed.

DATE: 07/23/2024