A two-month gap between a defendant's guilty plea to rape charges and his subsequent assertion of innocence did not prejudice the state and prevent withdrawal of the plea, the Superior Court has ruled.

The unanimous three-judge panel concluded that a two-month delay in prosecuting the defendant, Talvis Henry Gordy, had not diminished his alleged victims' abilities to testify. The judges in the case pointed to case law tolerating far longer time lapses, including "nine or 10 years."

In so holding, the panel reversed a Berks County Court of Common Pleas judge who had reasoned that the two-month period exacerbated the complaining witnesses' abilities to testify, denying Gordy's request to withdraw his guilty plea.

The frontline appeals court vacated Gordy's judgment of sentence and instructed the trial court on remand to withdraw his guilty plea.

"The [trial] court's opinion proves too much: If it is assumed that complainants' memories faded during the nine or 10 years after the alleged incidents, it is hard to contend seriously that two or more months would have added any significant, negative effect on those memories," Senior Judge Robert E. Colville wrote in a 17-page opinion for the unanimous panel in Commonwealth v. Gordy. "Indeed, the lapse of nine or 10 years suggests that two more months would be an insignificant period of time."

The trial court cited Commonwealth v. Dickter and Commonwealth v. Carr as instances of rape cases in which the court had denied requests for plea withdrawals on the basis of prejudice because of time delays.

However, Colville, along with Superior Court Judges Christine L. Donohue and David N. Wecht, decided neither case applied. They said the delay was "significantly more" time in Dickter because more than four years had passed and Carr involved a much younger victim whose memory may have had a greater likelihood of being affected than the victims in Gordy, whose ages are 22 and 14.

In addition, the panel determined the trial court's claim that the victims might not be available or willing to cooperate with proceedings if the case went to trial was "based on speculation."

"During the hearing on [Gordy's] motion to withdraw his pleas, the commonwealth specifically advised the court that the younger complainant and the younger complainant's mother were in the courtroom," Colville said. "Though not conclusive, this comment by the commonwealth tended to show the commonwealth had continuing access to, and cooperation from, at least one of the complainants."

The trial court also cited the case of Commonwealth v. Iseley, in which the defendant had withdrawn his guilty plea multiple times, as an example where the defendant's claim of innocence was not sufficient for withdrawal of a guilty plea. However, the panel decided the cases were not comparable because Gordy had only attempted to withdraw his plea one time.

According to the opinion, the trial court commented at Gordy's motion to withdraw his pleas that the victims were being mistreated by the legal system and should not be made to testify in front of a jury because Gordy had decided to "change his mind."

But the panel disagreed, opining that admitting guilt at a plea hearing does not deny a defendant the opportunity to alter his or her plea.

Colville wrote that the trial court appeared to not have believed Gordy's innocence, but he added the trial court's role was not to make credibility judgments.

"To whatever extent the court made and relied on this credibility determination in rejecting appellant's motion, doing so was a misapplication of law," Colville opined. "That is, a credibility determination as to innocence is not a proper basis for rejecting a pre-sentence request to withdraw a plea."

According to the opinion, the state charged Gordy in 2011 with a number of crimes related to two minor complainants, stemming from alleged events in 2002 and 2003, when the complainants were 5 and 12 years old.

In May 2012, Gordy pled guilty to one count each of rape, rape of a child and simple assault, according to Berks County Assistant District Attorney Alisa Rebecca Hobart, who represented the state in the case. She declined comment on the Superior Court's ruling.

Before Gordy's sentencing date, Colville said, Gordy moved to withdraw his pleas. The court denied his motion and sentenced him to 15 to 65 years for rape and assault charges. Elizabeth Ebner of the Berks County Public Defender's Office, who represented Gordy at his appeal, could not be reached for comment.

Kelly Flynn can be contacted at 215-557-2440 or kflynn@alm.com.

(Copies of the 17-page opinion in Commonwealth v. Gordy, PICS No. 13-2295, are available from Pennsylvania Law Weekly. Please call the Pennsylvania Instant Case Service at 800-276-PICS to order or for information.)