J-A25001-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA 

Appellant

v.

KEVIN ROBERT CAMPBELL

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 700 MDA 2020

Appeal from the Order Entered March 9, 2020

In the Court of Common Pleas of Clinton County Criminal Division at 

No(s): CP-18-CR-0000372-2019

BEFORE: BOWES, J., OLSON, J., and KING, J.

MEMORANDUM BY BOWES, J.: FILED FEBRUARY 08, 2021

The Commonwealth appeals from the March 9, 2020 order granting 

Kevin Robert Campbell’s pre-sentence oral motion to withdraw his guilty plea. 

For the following reasons, we vacate the order and remand for further 

proceedings consistent with this memorandum.

The Commonwealth alleged that on June 6, 2019, Appellee sent several 

text messages to Tracy Yost, attempting to intimidate her into withdrawing a 

Protection from Abuse (PFA) order that she had obtained against him. 

Appellee also tried to convince Ms. Yost to transfer her vehicle to his 

possession. As a result, Appellee was arrested and charged with witness 

intimidation and related charges. 

Minutes before Appellee’s trial was scheduled to begin, he decided that 

he wanted to plead guilty. In exchange for Appellee’s open guilty plea to 

intimidating a witness, the Commonwealth agreed to change the grading on 
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the charge from a third-degree felony to a second-degree misdemeanor. The 

remaining charges were withdrawn. After Appellee completed a written and 

oral colloquy, the trial court accepted his guilty plea. Sentencing was deferred 

pending preparation of a pre-sentence investigation report (“PSI”).

On March 9, 2020, the parties appeared for sentencing and, after a brief 

recess to review two recent addendums to the PSI,1trial counsel indicated 

that Appellee wished to withdraw his guilty plea. The trial court began to ask 

why, asking whether Appellee “claims he’s innocent, or --- [?]” N.T. 

Sentencing Hearing, 3/9/20, at 4. However, before the trial court could finish 

its question, trial counsel replied “I believe so. Yes, Your Honor.” Id. There 

was no further development of Appellee’s assertion of possible innocence

through his attorney. Instead, the trial court proceeded directly into a 

colloquy of Appellee, ensuring that his decision to seek withdrawal of his guilty 

plea was voluntarily, intelligently, and knowingly made. Id. at 4-7.

The Commonwealth objected to the plea withdrawal, asserting that the 

timing of it, coinciding with Appellee’s review of the PSI addendum, meant

that Appellee’s assertion of innocence was merely pretextual. Id. at 7-8. In 

its view, Appellee was asking to withdraw his plea because he did not like the 

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1 The addendums were necessary to correct an error in the time credit that 

Appellee had accumulated. The pre-sentence investigation report (“PSI”), 

recommended a sentence of 194 days to twenty-three months of 

incarceration. Originally, the report indicated that Appellant had 194 days of 

credit and should be paroled immediately. This was incorrect. Appellant was 

only entitled to eighteen days of credit. Thus, if the trial court followed the 

probation office’s corrected recommendation, Appellant would be subjected to 

additional jail time. 
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probation department’s sentence recommendation, not because he believed 

he was actually innocent. Id. at 8. However, the Commonwealth did not 

assert that it would be prejudiced by the withdrawal. The trial court overruled 

the Commonwealth’s objection, and permitted Appellee to withdraw the plea. 

On March 18, 2020, the Commonwealth filed a motion for reconsideration. A 

hearing on the motion originally was scheduled for April 27, 2020. However, 

our Supreme Court declared a judicial emergency as a result of the COVID-19 

pandemic and the courts were shut down. As a result, the hearing on the 

Commonwealth’s motion for reconsideration was continued several times, 

before finally being cancelled after the Commonwealth filed the instant 

appeal.

2

 Both the Commonwealth and the trial court have complied with the 

mandates of Pa.R.A.P. 1925.

The Commonwealth raises the following issue for our review:

Did the trial court abuse its discretion in granting [Appellee]’s 

motion to withdraw his plea after [Appellee] had entered an open 

plea to a misdemeanor of the second degree, then at sentencing 

sought to withdraw the plea upon learning that a sentence of 

incarceration was recommended in the pre-sentence investigation 

report and supplemental memoranda, then later made a bare 

assertion of innocence, thereby failing to provide a fair and just 

reason for withdrawing said plea.

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2 The Commonwealth’s notice of appeal was filed on May 8, 2020. While 

normally the deadline for the Commonwealth to appeal would have been April 

8, 2020, our Supreme Court’s April 28, 2020 Emergency Order of Statewide 

Judicial Administration extended the filing deadline to May 11, 2020. We 

further note that the Commonwealth’s notice of appeal included the necessary 

certification that the March 9, 2020 order “substantially handicap[ed] the 

prosecution.” Pa.R.A.P. 311(d).
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Commonwealth’s brief at 7.

We review a trial court’s ruling on a pre-sentence motion to withdraw a 

guilty plea for an abuse of discretion. Commonwealth v. Elia, 83 A.3d 254, 

261 (Pa.Super. 2013). 

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 

discretion, an appellate court should not disturb a trial court’s 

ruling.

Commonwealth v. Norton, 201 A.3d 112, 120 (Pa. 2019) (citations 

omitted).

“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 plea 

of not guilty.” Pa.R.Crim.P. 591(A). Our Supreme Court has long directed 

that such discretion should be exercised liberally in a defendants’ favor, so 

long as a “fair-and-just reason” is offered, and withdrawal would not 

substantially prejudice the Commonwealth. Commonwealth v. Forbes, 299 

A.2d 268, 271 (Pa. 1973) (emphasis in original). 
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In Commonwealth v. Carrasquillo, 115 A.3d 1284 (Pa. 2015), our 

Supreme Court provided further guidance as to what qualifies as a “fair-andjust reason” in the context of innocence assertions. While the Court reaffirmed 

the Forbes liberal-allowance standard, it felt the need to correct the widely 

spread misconception that “a bare assertion of innocence” qualified as “a fairand-just reason” to withdraw a guilty plea. Id. at 1292. Rejecting this per 

se approach, our Supreme Court explicitly held that “a bare assertion of 

innocence is not, in and of itself, a sufficient reason” to grant a defendant’s 

motion to withdraw a guilty plea. Id. at 1285. Instead,

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. 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. at 1292 (internal citation omitted). Thus, Carrasquillo established that 

trial courts possess discretion to assess the plausibility of a defendant’s claim 

of innocence. In doing so, “both the timing and the nature of the innocence 

claim, along with the relationship of that claim to the strength of the 

government’s evidence, are relevant.” Commonwealth v. Islas, 156 A.3d 

1185, 1190 (Pa.Super. 2017). 

In applying the foregoing principles to this case, we agree with the 

Commonwealth and conclude that the trial court applied the incorrect standard 

for assessing assertions of innocence in pre-sentence guilty plea withdrawal 
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cases. Rather than following Carrasquillo’s requirement, the trial court 

accepted a bare assertion of innocence as the grounds for withdrawal, which 

caused it to cut off any further assessment at the sentencing hearing. As a 

consequence, Appellee did not raise any facts or support any specific 

circumstances which could have provided a basis for the court to find a sincere 

or colorable claim of innocence. This is problematic because our Supreme 

Court has repeatedly stated that a bare assertion of innocence is insufficient 

to justify pre-trial withdrawal of a plea. See Carrasquillo, supra; Norton, 

supra.

Given the trial court’s misapplication of the law, and the sparse factual 

record development as a result, we find that a remand for further development 

of the record is needed. Accordingly, we vacate the trial court’s order granting 

Appellee withdrawal of his guilty plea and remand for a new hearing on the 

motion to withdraw Appellee’s guilty plea. At the evidentiary hearing, Appellee 

will have the opportunity to substantiate his bare assertion of innocence so 

that it may rise to the level of a “colorable” or “plausible” claim of innocence. 

See Carrasquillo, supra. In return, the Commonwealth will have the option 

to rebut the same, in order to assist the trial court with the proper credibility 

determination. 

Order vacated. Case remanded. Jurisdiction relinquished. 
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 02/08/2021