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

v.

ERIC WALDRON

Appellant : : : : : : : : : IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 328 EDA 2020 Appeal from the Order Dated December 6 , 2019 In the Court of Common Pleas of Monroe County Criminal Division at

No(s): CP

- 45

- CR

- 0001861

- 2018

BEFORE: LAZARUS, J., DUBOW, J., and FORD ELLIOTT, P.J.E. MEMORANDUM BY DUBOW, J.: FILED NOVEMBER 10, 2020 Appellant, Eric Waldron, appeals from the December 6, 2019 Judgment of Sentence 1 imposed in the Monroe County Court of Common Pleas after he entered a n open guilty plea to various drug and weapon charges. Upon review, we affirm. From approximately November 2016 to February 2018, Appellant and his co

- conspirators distributed heroin and methamphetamine throughout Monroe County. On June 26, 2018, after gathering extensive evidence against

_________________ __________ ______ ____ _______ 1 Appellant purports to appeal from the Order of December 17, 2019, which denied his Post

- Sentence Motion. Appeal properly lies from his Judgment of Sentence entered December 6 , 2019. Commonwealth v. Dreves , 839 A.2d 1122, 1125 n.1 (Pa. Super

. 2003) ( en b anc )

. We have corrected the caption accordingly.J

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Appellant, the Pennsylvania Office of the At torney General filed a criminal complaint charging him with thirteen offenses arising from his involvement in this drug trafficking enterprise

. On September 2, 2018, Appellant posted bail on the Monroe County charges, but he remained in the custody of the Lehigh County Correctional Facility (“LCCF”) due to a pending detainer relating to a probation violation in Lehigh C ounty. On March, 20, 2019, after a thorough oral colloquy in which Appellant agreed to counsel’s recitation of the facts underlying the charges , Appellant entered a n open guilty plea to five of the thirteen charged crimes: one count each of Corrupt Organizations , Dealing in Proceeds of Unlawful Activities, Criminal Use of a Communication Facility, Sale or Transfer of Firearm , and two counts of Possession with Intent to Deliver a Controlled Substance (“PWID”)

. 2 After accepting Appellant’s guilty plea, the trial court ordered a pre

- sentence investigation report and scheduled a sentencing hearing , which the trial cou rt continued several times

. Over five months later , while still in detention, Appellant filed a Motion to Withdraw Guilty Plea averring that the plea was not knowing, intelligent, and voluntary , and asserting that he was “factually/actually innocent” of the charges. Motion to Withdraw, filed 8/26/19, at ¶4, 5. At the same time,

_________________ __________ ______ ____ _______ 2 18 Pa.C.S. § § 911(b)(4) , 5111(a)(1), 7512, 6111(c) ; and 35 Pa.C.S. § 780

- 113(a)(30 ), respectively.J

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Appellant’s counsel filed a Motion to Withdraw as Counsel. The court scheduled a hearing on the Motions for September 26, 2019. On September 6, 2019, Appellant’s counsel sent a letter to Appellant at the LCCF notifying him of the hearing date. On or around September 9, 2019 , Lehigh County lifted Appellant’s detainer and released Appellant from the LCCF prior to the scheduled Motions hearing. 3 At the September 26, 2019 Motions hearing , Appellant failed to appear

. Appellant’s co unsel informed the court that mail typically took one day to arrive from his office to the L CCF and that Appellant had not contacted counsel after his release from the LCCF. T he trial court found that Appellant had n otice of the Motions hearing and i ssue d a bench wa rrant for Appellant

. Appellant’s counsel did not object, and did not present evidence or argument on Appellant’s Motion to Withdraw Guilty Plea. On November 6, 2019, law enforcement authorities brought Appellant before the trial court on the bench warrant. During a brief hearing, t he court revoked Appellant’s bail, dissolved the bench warrant, and remanded Appellant to the custody of Monroe County to await sentencing.

_________________ __________ ______ ____ _______ 3 We note that Appellant’s counsel informed the court that he contacted Lehigh County and learned that Appellant was released from incarceration on September 9, 2019. N.T. Hearing, 9/26/19, at 3. However, at his sentencing hearing, Appellant informed the c ourt that Lehigh County did not release him from incarceration until September 15, 2019. N.T. Sentencing, 12/6/19, at 3, 11. This discrepancy does not affect our disposition.J

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On December 6, 2019, Appellant appeared before the court for sentencing. At the beginning of the hearing, A ppellant renewed his request to withdraw his guilty plea

. T he trial court denied Appellant’s Motion based on Appellant’s f ailure to appear at the scheduled hearing, and sentenced Appellant to an aggregate term of 60 to 120 months’ incarceration. Appellant filed a Post

- Sentence Motion requesting reconsideration of his Motion to Withdraw Guilty Plea

. O n December 17, 2019 , the court denied the Post

Sentence Motion, granted counsel’s Motion to Withdraw , and appointed new counsel to represent Appellant. Appellant timely appealed. Both Appellant and the trial court complied with Pa.R.A.P. 1925. Appellant raises a sole issue for our review: Whether the trial court erred in denying Appellant’s pre

- sentence request to withdraw his guilty plea? Appellant’s Br. at 4. Appellant avers that the trial court abused its discretion when it denied his pre

- sentence Motion to Withdraw Guil ty Plea. Appellant’s Br. at 4. He argues that the trial court erred in denying his Motion because his assertion that he did not enter a knowing, intelligent, and voluntary plea , as well as his claim of innocence , provided fair and just reason for permitting him to withdraw his plea. Id . at 28. Appe l lant also contends that the trial court erred when it did not give him an opportunity to present testimony on his
Motion because , even though Appellant failed to atte nd the Motions hearing,J

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“it is not clear from the record that Appellant was notified of the hearing.” Id

. at 28

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. For the following reason, we conclude the trial court did not err or abuse its discretion in denying Appellant’s Motion. This Court review s the denial of a request to withdraw a guilty plea for an abuse of discretion. Commonwealth v. Davis , 191 A.3d 883, 889 (Pa. Super. 2018). An abuse of discretion is more than an error in judgment; this Court will not find an abuse of discretion unless th e trial court’s judgment was manifestly unreasonable, or was the result of partiality, bias, or ill will. Commonwealth v. Gordy , 73 A.3d 620, 624 (Pa. Super. 2013). There is no absolute right to withdraw a guilty plea

. Commonwealth

v. Carrasquillo , 115 A.3d 1284, 1291 (Pa. 2015 ). “Pennsylvania law
presumes a defendant who entered a guilty plea was aware of what he was doing, and the defendant bears the burden of proving otherwise .” Commonwealth v. Hart , 17 4 A.3d 660, 665 (Pa. Super. 2017) (citation omitted). The trial court has the discretion to determine whether to grant a pre - sentence wi thdrawal request

. Carrasquillo , supra at 1291

- 92. See Pa.R.Crim.P. 591(A) (“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.”). The Pennsy lvania Supreme Court has directed that courts should administer s uch discretion liberally, and grant withdrawal of a guilty pleaJ

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where: (1) the accused has made some “colorable demonstration” that permitting withdrawal of the plea would promote fairness an d justice; and (2) the Commonwealth will not be substantially prejudiced in bringing the case to trial. Carrasquillo , supra at 1292

. The determination of whether the plea withdrawal would permit fairness and justice is based on the totality of the
circum stances known to the trial court

. Commonwealth v. Tennison , 969
A. 2d 572, 573 (Pa. Super. 2009). It is well settled that “ a bare assertion of innocence is not, in and of itself, a sufficient reason to require a court to grant such a request. ” Carrasquillo , supra at 1285. Importantly , appellate courts must “ honor t rial 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 de fendants have made sincere and colorable claims that permitting withdrawal of their pleas would promote fairness and justice. ” Commonwealth v. Norton , 201 A.3d 112, 121 ( Pa. 2019)

. Instantly, it was Appellant ’s burden to present evidence in order to make a colorable demonstration that withdrawal of his plea would promote fairness and justice. He has failed to do so. The trial court granted Appellant a hearing on his Motion, and Appellant failed to appear and failed to present any evidence on the Motion. Thus, it was not an abuse of discretion for the trial
court to deny Appellant’s pre - sentence Motion to Withdraw Guilty Plea

.J

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Moreover, Appellant has waived any argument that he did not receive proper notice of the scheduled Motion s hearing. During the September 26, 2019 Motion s hearing, the trial court made a finding that Appellant received proper notice and counsel failed to object. Accordingly, this argument has not been preserved for our review. See Pa.R.A.P. 302 (“ Issues not raised in the lower court are waived and cannot be raised for the first time on appeal. ”)
In conclusion, t he trial court did not abuse its discretion when it denied Appellant’s pre

- sentence Motion to Withdraw Guilty Plea where Appellant failed to appear at the scheduled hearing, and failed to present any evidence
to demonstrate a fair and just reason for withdrawing his plea. Judgmen t of Sentence a ffirmed. Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 11/10/2020