J

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NON

- PRECEDENTIAL DECISION

- SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

BASIL JOHNSON

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

PENNSYLVANIA

No. 1627 EDA 2021
Appeal from the Judgment of Sentence Entered July 21, 2021 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP

- 51

- CR

- 0007094

- 2019

BEFORE: LAZARUS, J., KUNSELMAN, J., and STEVENS, P.J.E. *

MEMORANDUM BY LAZARUS, J.: FILED JUNE 1, 2022

Basil Johnson appeals from the judgment of sentence, imposed in the

Court of Common Pleas of Philadelphia County, after he entered an open guilty

plea to possession of firearm p rohibited 1 and receiving stolen property

(“RSP”)

. 2 On appeal, Johnson challenges the trial court’s denial of his pre
sentence motion to withdraw his plea. We affirm.

The following facts were presented as the basis for Johnson’s plea:

[O]n September 15, 2019, [at] approximately 8:15 p.m., Philadelphia police were in the area of Broad and Olney Streets [] in the city and county of Philadelphia. They [saw Johnson] lift up his shirt and s[aw] what appeared to be the handle of a gun. They came back to t he area, exited their vehicle, and [Johnson] then fled. During that pursuit[,] they observed [Johnson] discard the

_________________ __________ ______ ____ _______

* Former Justice specially assigned to the Superior Court.

1 18 Pa.C.S.A. § 6105(a)(1).

2 Id. at 3925(a).J

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firearm into a nearby bush. [Johnson] was later apprehended. That firearm was recovered. A check was done on that firearm. It was report ed stolen under D.C. 1608016978. The owner of that firearm does not know [Johnson and ] did not give him permission to have it. [Johnson] does have a previous conviction for intimidation of a witness, which does make him ineligible [] to carry a firearm.

N .T. Guilty Plea Hearing, 11/17/20, at 6

- 7.

In addition to the above offenses, Johnson was charged with possessing

a firearm without a license, carrying a firearm in public on the streets of

Philadelphia, and possession of a controlled substance. In excha nge for

Johnson’s guilty plea, the Commonwealth agreed to nolle prosse those

charges and consented to Johnson’s release with sign

- on bail and direct

supervision pending sentencing. 3

Johnson entered his plea on November 17, 2020, after which the court

deferred sentencing until January 29, 2021 and ordered a pre

- sentence

in vestigation (“PSI”) . At Johnson’s request, sentencing was again deferred

until February 26, 2021, on which date the matter was continued due to a

court closure. On May 25, 2021, the court granted another defense

continuance and scheduled sentencing for J une 25, 2021. On May 27, 2021 ,
Johnson was arrested and incarcerated on a charge of aggravated harassment

that arose during his prior incarceration . At the June 25, 2021 hearing date,

counsel orally moved to withdraw Johnson’s guilty plea. At the court ’s

direction, counsel filed a written motion later that same day.

_________________ __________ ______ ____ _______

3 Johnson was, in fact, released pending sentencing.J

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On July 8, 2021, the court held a hearing on Johnson’s motion, at which

time Johnson asserted his innocence and argued that he had misunderstood

the terms of his plea agreement . Johnson t estified as follows:

THE DEFENDANT: Okay. My case was ready. I got arrested September 15 th of 2019 and everything was ready by February 2020, February 6 th . I believe you had a jury trial. And then February 24 th the officer

— the arresting officer didn’ t show up and March came with the pandemic. The Court

— everything got shut[ ]down. I was in jail for 14 months and everything was ready, but the pandemic affected everybody. And November 16 th you said another 30 days and I ’ m going to give you the ruling for the [suppression] motion, and I wasn ’ t trying to hear nothing. They were trying to tell me that this is not over.
He was saying at first I don ’ t want to leave, the violence, guns, but then with a guilty verdict you were willing to let me go without any house arrest, any restrictions. I come back, you plead guilty, you go. I don ’ t know that this is still going on. I ’ m thinking, okay, I ’ m getting time served or whatever. And then I came to the conclusion, I told my lawyer, I said, I don ’ t think an innocent man regardless of the situation, but I ’ m already on the street and I ’ m coming to this, I don ’ t think an innocent man should ever plead guilty under no circumstances. That ’ s why I wanted to recant my guilty plea. I was under the impressi on, oh, well, we ’ re going to take the motion off the table, you plead guilty, you go.

I didn ’ t know this was still going to be going on. I was home. I was working for seven months, seven months straight. I wasn ’ t doing anything wrong. No rearrest, no po lice contact, nothing, no dirty urines. I ’ m employed. Everything. I was out there doing everything I was supposed to do. He ’ s texting me court dates I had to come this day. I ’ m thinking that this is like time served, you ’ re done. I didn ’ t know if he would let me go. He was saying something about, no, it's too risky, he had a firearm and I ’ m just scared of the public ’ s safety and everything else.
[ DEFENSE COUNSEL] : You ’ re talking about the DA?

THE DEFENDANT: Yeah, the DA. Once he got that verdic t, okay, lift the house arrest, let ’ s go. I thought, okay, well, let him go, he was free. I didn ’ t know if I was pleading guilty to continue. I thought if I plead guilty then it was over, but then I ’ m like I don ’ tJ

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want to plead guilty even if it is time served or anything because I ’ m innocent. I ’ m an innocent man. So I don ’ t believe that I should have pled guilty in the first place.

N.T. Motion to Withdraw Hearing, 7/8/21, at 9

- 11.

The court denied Johnson’s motion and , on July 21, 2021, sentence d

him to 5 to 12 years’ incarceration for possession of firearm prohibited, with

a concurrent 5

- year term of probation for RSP. Johnson filed a timely notice

of appeal, followed by a court

- ordered Pa.R.A.P. 1925(b) concise statement

of errors complained of on a ppeal.

On appeal, Johnson claims that the court erred in denying his motion to

withdraw his plea because he professed his innocence, the Commonwealth

would not suffer prejudice as a result of withdrawal, and justice and fairness

demanded withdrawal. He f urther asserts that his plea was involuntary

because (1) he had been incarcerated for an extended period under COVID

19 restrictions and the Commonwealth told him he could only be released if

he pled guilty and (2) he did not understand that he would be se ntenced at a

later date because the Commonwealth told him he would be released

immediately if he pled guilty. See Brief of Appellant, at 3

- 4. Johnson is

entitled to no relief.

The decision to grant or deny a motion to withdraw a guilty plea rests within the trial court’s discretion, and we will not disturb the court’s decision on such motion unless the court abused that discretion. Commonwealth v. Miller , 748 A.2d 733, 735 (Pa. Super. 2000). An abuse of discretion is not a mere error in judgment but, rather, involves bias, ill will, partiality, prejudice, manifest unreasonableness, and/or misapplication of law. Commonwealth v. King , 990 A.2d 1172, 1180 (Pa. Super. 2010). By c ontrast, a proper exercise of discretion conforms toJ

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the law and is based on the facts of record. Commonwealth v. West , 937 A.2d 516, 521 (Pa. Super. 2007).
Commonwealth v. Gordy , 73 A.3d 620, 624 (Pa. Super. 2013).

A motion to withdraw a guilty plea pri or to sentencing is governed by

Pennsylvania Rule of Criminal Procedure 591, which , in pertinent part , provides that “[a]t any time before the imposition of sentence, the court may,

in its discretion, permit, upon motion of the defendant, or direct, sua sp onte , 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).

[T]here is no absolute right to withdraw a guilty plea; trial courts have discretion in determining whether a withdrawal reques t will be granted; such discretion is to be administered liberally in favor of the accused; and 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 Commonweal th.
Commonwealth v. Carrasquillo , 115 A.3d 1284, 1291

- 92 (Pa. 2015).

This Court has summarized the law on pre

- sentence motions to

withdraw guilty pleas as follows:

The Carrasquillo Court, breaking with prior precedent, held that a bare assertion of innoce nce is no longer a fair and just reason permitting a pre

- sentence withdrawal of a guilty plea. 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 .” [ Id. ] at 1292. Our High Court outlined that the correct 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 prom ote fairness and justice.” Id. In that decision, our Supreme Court ruled that the defendant had not offered a plausible innocence claim given that it was rather bizarre

— a “devil made me to it” claim of innocence

— and since the innocence claim was offered just prior to sentencing.J

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Id. See also Commonwealth v. Hvizda ,[ 116 A.3d 1103 (Pa. 2015)] (companion case to Carrasquillo ).

Commonwealth v. Baez , 169 A.3d 35, 39

- 40 (Pa. Super. 2017). Thus,

the Carrasquillo Court clearly established that trial courts ha ve the discretion to assess the plausibility of claims of innocence. Consistent with the well

- established standards governing trial court discretion, it is important that appellate courts honor trial 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 defendants have made sincere and colorable claims that permitting withdrawal of their pl eas would promote fairness and justice.

Commonwealth v. Norton , 201 A.3d 112, 121 ( Pa. 2019)

. Here, the trial court did not abuse its discretion in concluding that

Johnson’s “cursory assertion of innocence is . . . clearly dubious and merits no

relief.” Trial Court Opinion, 9/24/21, at 7. Johnson waited for over seven

months after entering his guilty plea to move to withdraw and he did so on
the date scheduled for sentencing. In seeking to withdraw, Johnson ma de no
specific, colorable demonstration that the withdrawal of his plea would

promote fairness and justice ; rather , he presented nothing more than a bare

assertion of innocence. Cf. Commonwealth v. Islas , 156 A.3d 1185, 1191

(Pa. Super. 2017) (withdrawal appropriate where defendant testified: he d id

not engage in charged conduct; he maintained his innocence when

interviewed by law enforcement; had the conduct occurred as alleged, it would

have been witnessed by other people at the time; victim had motive to

fabricate charges; victim had delayed in reporting first incident; and defendantJ

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was of good character, had no criminal record, and had never received similar

complaint in the many years he had been working in the field ).

Moreover, Johnson’s claim that he “misunderstood” the terms of his plea

ag reement is belied by the record. As the trial court notes in its opinion:

Here, the record plainly contradicts [Johnson’s] claim that his pleas were involuntary/unknowing because he believed he was pleading guilty in exchange for a sentence of time [ ] serv ed and no further incarceration. [Johnson] affirmed during his plea colloquy that he understood the charges to which he was pleading guilty; understood his right to a jury trial; understood that he was presumed innocent; understood that the Commonwealth b ore the burden of proving its case beyond a reasonable doubt; and understood that after pleading guilty he could potentially be sentenced to a maximum term of thirty (30) years' incarceration . [Johnson] also confirmed that he reviewed and executed a writte n plea colloquy form with his counsel. After the colloquy and recitation of facts, this Court accepted [Johnson’s] pleas, ordered a [PSI] , and deferred [Johnson’s] sentencing until January 29, 2021. The district attorney then advised the c ourt that the C ommonwealth consented to [Johnson’s] release “ on sign

- on bail ” pending his sentence. This c ourt specifically advised [Johnson] that “ we will see you [,] Mr. Johnson [,] on January 29th. ”
[Johnson] received the benefit of his plea deal and was released on bail pending his sentencing hearing, which was continued several times but ultimately scheduled for June 25, 2021. By then, seven (7) months after pleading guilty and being released on bail, [John son] had been arrested and incarcerated on charges of aggravated harassment, and he filed a motion to withdraw his guilty pleas in this case.
The transcripts contain no statements from the Commonwealth, the c ourt, or defense counsel that remotely support [ Johnson’s] purported understanding of his plea deal. The record [,] rather [,] reflects that [,] in exchange for [Johnson’s] guilty pleas, the Commonwealth agreed (1) to nolle prosse multiple charges; and (2) to consent to [Johnson’s] release from prison wit h sign

- on bail and direct supervision pending sentence. The record also confirms [Johnson’s] understanding that he faced aJ

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maximum potential sentence of thirty (30) years ’ incarceration in exchange for pleading guilty, and that his sentencing would be def erred pending the [PSI]

. Accordingly, [Johnson’s] alleged belief that he would face no further sentence in exchange for pleading guilty simply lacks credibility and merits no relief.
Trial Court Opinion, 9/24/21, at 5

- 6 (unnecessary capitalization and citations

to record omitted ; emphasis added ). The record fully supports the trial court’s

findings. See N.T. Guilty Plea Hearing, 11/17/20, at 3

- 9; Written Plea

Colloquy, 11/17/20.

In sum, Johnson ’s bare assertion of innocence fails to establish a fair

and just reason for pre

- sentence withdrawal of his guilty plea, Carrasquillo ,

supra , and his claim of a “misunderstanding” is entirely belied by the record.

Accordingly, he is entitled to no relief.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 6/01/2022