J-S51017-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA              :   IN THE SUPERIOR COURT OF
                                           :         PENNSYLVANIA
                    Appellee               :
                                           :
              v.                           :
                                           :
 EDWARD K. EISAMAN                         :
                                           :
                    Appellant              :         No. 491 MDA 2019

     Appeal from the Judgment of Sentence Entered February 26, 2019
              In the Court of Common Pleas of Dauphin County
           Criminal Division at No(s): CP-22-SA-0000079-2017


BEFORE: PANELLA, P.J., GANTMAN, P.J.E., and MUSMANNO, J.

MEMORANDUM BY GANTMAN, P.J.E.:                   FILED NOVEMBER 07, 2019

      Appellant, Edward K. Eisaman, appeals from the judgment of sentence

entered in the Dauphin County Court of Common Pleas, following his guilty

plea to driving without a license at 75 Pa.C.S.A. § 1501(a). We vacate and

remand.

      In its opinion, the trial court sets forth the relevant facts and procedural

history of this appeal as follows:

          On March 21, 2017, Appellant…appeared before Magisterial
          District Judge David H. Judy (“MDJ Judy”) and was found
          guilty of Driving while Operating Privilege is Suspended or
          Revoked (“Driving Under Suspension”) in violation of 75
          Pa.C.S.A. § 1543 (a). Shortly thereafter, on April 5, 2017,
          Appellant filed with the Dauphin County Court of Common
          Pleas a Notice of Appeal from his summary conviction. On
          September 18, 2017, Appellant, represented by privately-
          retained counsel, appeared before the undersigned for a
          Summary Appeal Hearing.        At said Hearing, Appellant
          withdrew his Summary Appeal, and, therefore, this [c]ourt
          upheld MDJ Judy’s finding of guilt as to the Driving Under
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          Suspension charge.[1]

          On November 23, 2018, Appellant filed a Nunc Pro Tunc
          Motion to Reinstate Summary Appeal (“Motion to
          Reinstate”). In the Motion to Reinstate, Appellant conceded
          that on January 25, 2017, at the time the underlying traffic
          stop allegedly occurred, his license had been suspended
          pursuant to an alleged February 7, 2013 violation of 75
          Pa.C.S.A. § 3310(a) (Following Too Closely). Appellant
          stated, however, that his Following Too Closely violation had
          since been vacated and replaced with a violation of 75
          Pa.C.S.A. § 3111 (Failure to Obey Traffic Control Devices).
          Appellant averred that the Failure to Obey Traffic Control
          Devices offense did not carry the same license suspension
          that resulted from the Following Too Closely violation.
          Therefore, Appellant argued that if the Following Too Closely
          violation had been vacated at the time of the January 25,
          2017 traffic stop, his license would not have been
          suspended at the time of said traffic stop. Consequently,
          Appellant requested that this [c]ourt reinstate his Summary
          Appeal at the instant docket so that he could defend against
          the charge of Driving Under Suspension.

          On December 18, 2018, this [c]ourt issued an Order
          granting Appellant’s Motion to Reinstate his Summary
          Appeal. On February 26, 2019, Appellant appeared for a
          second Summary Appeal Hearing…before the undersigned.

(Trial Court Opinion, filed May 23, 2019, at 1-2) (internal emphasis omitted).

       During the February 26, 2019 hearing, the Commonwealth amended

Appellant’s charge to driving without a license, 75 Pa.C.S.A. § 1501(a);

Appellant did not object to the amendment. After the court permitted the


____________________________________________


1 Appellant withdrew his appeal so he could resolve the February 7, 2013
previous traffic charge that would directly affect the traffic violation charged
in this case. Specifically, the February 7, 2013 violation that gave rise to the
enhanced penalty of a license suspension was vacated on September 27,
2018, which in turn called into question the current conviction for driving
under suspension.

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Commonwealth to amend the offense, the following exchange occurred:

        THE COURT:     Okay.   May we have [Appellant] sworn in,
        please?

                                 *    *    *

        THE COURT: Okay. [Appellant], you now are facing an
        amended citation, which is driving without a license, a
        second or subsequent offense. Do you understand that?

        [APPELLANT]: Yes, Your Honor.

        THE COURT:     To that charge how do you plead?

        [APPELLANT]: Guilty.

        THE COURT:     I think the statutory fine is now $1,000.

                                 *    *    *

        THE COURT: But that was the second or subsequent
        offense. Let’s take a look here, folks. They recently
        amended the statute.

(N.T. Summary Appeal Hearing, 2/26/19, at 3).      The Commonwealth then

read into the record the language of 75 Pa.C.S.A. § 6503(d), a recidivist

provision under the Motor Vehicle Code.

     The trial court opinion continues:

        Because of Appellant’s extensive driving record,1 and
        because the instant matter involved a second or subsequent
        Driving Without a License conviction, this [c]ourt sentenced
        Appellant [on February 26, 2019,] to a $1,000 fine and
        [thirty (30) to ninety (90) days’] incarceration in Dauphin
        County Prison.

           1 While it appears that the Commonwealth failed to
           have Appellant’s Certified Driving Record entered into
           the official record, said Driving Record was shown to
           the [c]ourt and discussed at a sidebar conference with

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           the [c]ourt in the presence of both parties’ attorneys
           before Appellant entered his guilty plea.          The
           Appellant’s said driving record was notably rife with
           numerous moving traffic violations, as well as
           numerous prior convictions for Driving While Under
           Suspension, plus at least one (1) prior conviction for
           Driving Without A License (75 Pa.C.S.A. § 1501(a)).

(Trial Court Opinion at 2) (internal footnote omitted). Immediately following

sentencing, Appellant objected on the record as follows:

        [DEFENSE COUNSEL]: Your Honor, our deal wasn’t based
        on a 30-day sentence.

                                 *    *       *

        [DEFENSE COUNSEL]: When           I   talked   to        the   District
        Attorney—

        THE COURT:               Whoa. Whoa. You can’t make a
        deal with regards to a sentence without the [c]ourt being
        apprised of it and going along with it. And you never, ever
        said anything about that when you came up here. So,
        [c]ounsel, that is your error.

        [DEFENSE COUNSEL]: Your Honor, I have never entered
        into a deal with anyone that included prison time.

        THE COURT:              Well, you just did, right now.

        [DEFENSE COUNSEL]: I was not aware—

        THE COURT:            If you didn't check the statute,
        [c]ounsel, shame on you.

        [DEFENSE COUNSEL]: I did, Your Honor.

        THE COURT:                Well, then you would have known
        that that was part of it.

        [DEFENSE COUNSEL]: Your Honor—

        THE COURT:              I    am    not    going     to     debate    it

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        anymore. …

(N.T. Summary Appeal Hearing at 6).

     On March 12, 2019, Appellant filed a motion for reconsideration of

sentence, requesting a more lenient sentence. Appellant filed a timely notice

of appeal on March 27, 2019. The court ordered Appellant on March 28, 2019,

to file a concise statement of errors complained of on appeal per Pa.R.A.P.

1925(b). That same day, the court denied Appellant’s reconsideration motion.

Appellant timely filed a concise statement on April 17, 2019.

     Appellant raises the following issues for our review:

        WHETHER THE COURT ERRED IN THAT IT DID NOT ADVISE
        [APPELLANT] OF THE EXISTENCE AND APPLICABILITY OF
        THE RECIDIVIST STATUTE, NAMELY 75 PA.C.S.[A.] § 6503,
        PRIOR TO ACCEPTING HIS GUILTY PLEA TO A CHARGE OF
        75 PA.C.S.[A.] § 1501(A) (DRIVING WITHOUT A
        LICENSE)[?]

        WHETHER THE COURT ERRED IN THAT IT FAILED TO GIVE
        [APPELLANT] THE OPTION TO WITHDRAW HIS GUILTY PLEA
        AND PROCEED TO TRIAL AFTER IT IMPOSED A HARSHER
        SENTENCE THAN THE ONE NEGOTIATED BETWEEN THE
        COMMONWEALTH AND [APPELLANT][?]

        WHETHER THE COURT’S SENTENCE OF THIRTY (30) TO
        NINETY (90) DAYS’ INCARCERATION WAS A MANIFEST
        ABUSE OF DISCRETION AND WAS CONTRARY TO THE
        FUNDAMENTAL     NORMS    WHICH     UNDERLIE   THE
        SENTENCING PROCESS FOR A TRAFFIC VIOLATION THAT IS
        A SUMMARY OFFENSE, AND AS SUCH, THE COURT ERRED
        IN ISSUING SUCH A SENTENCE[?]

        WHETHER THE COURT ERRED DURING SENTENCING IN
        FAILING TO ADVISE [APPELLANT] OF THE RIGHT TO APPEAL
        AND THE TIME LIMITS WITHIN WHICH TO EXERCISE THAT
        RIGHT, THE RIGHT TO PROCEED IN FORMA PAUPERIS AND
        WITH APPOINTED COUNSEL TO THE EXTENT PROVIDED IN

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         PA.R.CRIM.P. 122(A), AND OF THE QUALIFIED RIGHT TO
         BAIL UNDER PA.R.CRIM.P. 521(B)[?]

(Appellant’s Brief at 4).

      In his first and second issues, Appellant argues the Commonwealth, the

charging officer, and Appellant reached an agreement to change the original

charge (driving while operating privilege is suspended or revoked) to drivers

required to be licensed and Appellant would plead guilty to the latter offense.

Appellant avers the amended charge was supposed to carry a fine but no

license suspension. Appellant contends the trial court accepted his guilty plea

without first advising him that the court would raise and apply the recidivist

statute in Appellant’s case and sentence him to a term of imprisonment under

75 Pa.C.S.A. § 6503. Only after Appellant entered a guilty plea to driving

without a license, did the court introduce the recidivist statute to impose a

sentence of incarceration.   Appellant states the court should have advised

Appellant of the recidivist penalty before the court accepted his plea.

Appellant also maintains the court failed to give him any opportunity to

withdraw his plea and go to trial.        As presented, Appellant essentially

challenges the validity of his guilty plea. Appellant concludes this Court should

vacate the judgment of sentence and guilty plea and remand for a summary

appeal hearing on the original charge, driving while operating privileges are

suspended or revoked. We agree.

      “Generally, a plea of guilty amounts to a waiver of all defects and

defenses except those concerning the jurisdiction of the court, the legality of

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the sentence, and the validity of the guilty plea.”       Commonwealth v.

Morrison, 173 A.3d 286, 290 (Pa.Super. 2017); Commonwealth v. Main,

6 A.3d 1026 (Pa.Super. 2010) (stating same). By entering a guilty plea the

defendant routinely waives an array of constitutional and appellate rights,

including a direct challenge to the sufficiency of the evidence, which is a non-

jurisdictional issue.    See generally Commonwealth v. Lincoln, 72 A.3d

606, 610 (Pa.Super. 2013), appeal denied, 624 Pa. 688, 87 A.3d 319 (2014).

      Instead, the defendant must focus his complaint on the validity of the

plea proceedings; to test the voluntariness of his guilty plea on direct appeal

the defendant must either object during the plea colloquy or file a motion to

withdraw the plea before sentencing or within ten days of sentencing. See

id. See also Pa.R.Crim.P. 591 (allowing for application to withdraw plea upon

written or oral motion of defendant at or before sentencing); Pa.R.Crim.P. 720

(allowing for post-sentence challenge to guilty plea and recommending that

challenge be presented in post-sentence motion, if not previously raised).

Absent extraordinary circumstances, the failure to employ either measure

results in waiver.      Commonwealth v. Tareila, 895 A.2d 1266, 1270 n.3

(Pa.Super. 2006).

      If the defendant properly preserved his opposition to the validity of the

plea process, courts evaluate “the adequacy of the plea colloquy and the

voluntariness of the resulting plea by examining the totality of the

circumstances surrounding the entry of that plea.”        Commonwealth v.


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Muhammad, 794 A.2d 378, 383-84 (Pa.Super. 2002). A guilty plea will be

deemed valid if that examination demonstrates the defendant had a full

understanding of the nature and consequences of his plea such that he

knowingly    and   intelligently   entered   the   plea   of   his   own    accord.

Commonwealth v. Rush, 909 A.2d 805, 808 (Pa.Super. 2006). A defendant

is not required to “be pleased with the outcome of his decision to enter a plea

of guilty[; a]ll that is required is that his decision to plead guilty be knowingly,

voluntarily and intelligently made.”     Commonwealth v. Moser, 921 A.2d

526, 528-29 (Pa.Super. 2007).

      A guilty plea will be deemed valid if the totality of the circumstances

surrounding the plea shows that the defendant had a full understanding of the

nature and consequences of his plea such that he knowingly and intelligently

entered the plea of his own accord. Commonwealth v. Fluharty, 632 A.2d

312, 314-15 (Pa.Super. 1993). A defendant is presumed to be aware of what

he is doing when he enters a guilty plea, and the defendant bears the burden

to prove otherwise.       Commonwealth v. Pollard, 832 A.2d 517, 523

(Pa.Super. 2003). Mere disappointment in the sentence does not constitute

the necessary “manifest injustice” to render the defendant’s guilty plea

involuntary. Id. at 522. See also Commonwealth v. Kelly, 5 A.3d 370,

377 (Pa.Super. 2010), appeal denied, 613 Pa. 643, 32 A.3d 1276 (2011)

(reiterating principle that courts discourage entry of plea as sentence-testing

device).


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      The Pennsylvania Rules of Criminal Procedure mandate that pleas be

taken in open court and require the court to conduct an on-the-record colloquy

to ascertain whether a defendant is aware of his rights and the consequences

of his plea.   Commonwealth v. Hodges, 789 A.2d 764, 765 (Pa.Super.

2002) (citing Pa.R.Crim.P. 590).      Specifically, the court must affirmatively

demonstrate the defendant understands: (1) the nature of the charges to

which he is pleading guilty; (2) the factual basis for the plea; (3) his right to

trial by jury; (4) the presumption of innocence; (5) the permissible ranges of

sentences and fines possible; and (6) that the judge is not bound by the terms

of the agreement unless he accepts the agreement.            Commonwealth v.

Watson, 835 A.2d 786, 796-97 (Pa.Super. 2003). “Before accepting a plea

of guilty, the trial court must satisfy itself that there is a factual basis for the

plea. A factual basis for the plea is universally required.” Commonwealth

v. Stenhouse, 788 A.2d 383, 384 (Pa.Super. 2001), appeal denied, 569 Pa.

705, 805 A.2d 523 (2002) (internal citations and quotation marks omitted).

         [W]hile the [Pennsylvania Supreme] Court has admonished
         that a complete failure to inquire into any one of the six,
         mandatory subjects generally requires reversal, ...in
         determining the availability of a remedy in the event of a
         deficient colloquy, it has in more recent cases moved to a
         more general assessment of the knowing, voluntary, and
         intelligent character of the plea, considered on the totality
         of the circumstances.

Commonwealth v. Flanagan, 578 Pa. 587, 606, 854 A.2d 489, 500 (2004)

(internal citations omitted) (holding, under totality of circumstances,

defendant entered unknowing guilty plea, where trial court failed to adduce

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factual basis for plea during plea colloquy). Nevertheless, our Supreme Court

has explained it expects “compliance with the six, straightforward and

relatively modest requirements that set the baseline for a valid guilty plea

colloquy.” Id. at 612, 854 A.2d at 504.

     Additionally, “nothing in [Rule 590] would preclude the use of a written

colloquy that is read, completed, signed by the defendant, and made part of

the record of the plea proceedings. This written colloquy would have to be

supplemented by some on-the-record oral examination.” Pa.R.Crim.P. 590

Comment.     See also Rush, supra (holding defendant entered guilty plea

knowingly and voluntarily where he acknowledged in written colloquy that he

understood his rights to trial by jury and presumption of innocence, and he

confirmed during court’s oral examination that he signed written colloquy and

understood its contents).

     On the other hand, “A defendant obviously cannot be expected to plead

intelligently without understanding the consequences of his plea. In order to

understand the consequences of his plea it is clear that a defendant must be

informed of the maximum punishment that might be imposed for his conduct.”

Commonwealth v. Persinger, 532 Pa. 317, 323, 612 A.2d 1305, 1308

(1992).   See also Hodges, supra at 765 (explaining Rule 590 requires

defendant    understand     maximum         sentence    court   may   impose     should

defendant enter guilty plea).         Where a defendant’s entry of a guilty plea

implicates   the   application   of    a    penalty    enhancing   recidivist   statute,


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Pennsylvania law requires that the defendant receive notice of the possible

application of the recidivist provision before the court accepts the defendant’s

plea. Commonwealth v. Reagan, 502 A.2d 702, 707 (Pa.Super. 1985) (en

banc).

         When a defendant pleads guilty rather than proceeds to
         trial, however, the defendant must be advised of the
         recidivist statute prior to entering his guilty plea. There is
         no dispute that a plea entered without knowledge of not only
         the maximum penalty which could be imposed, but also the
         minimum penalty which must be imposed, would not be a
         valid plea. … Therefore, although notice of the recidivist
         penalty is not required prior to trial, it is required prior to a
         guilty plea.

Id.

      Section 1501 of the Motor Vehicle Code prohibits driving without a

license and provides penalties for doing so as follows:

         § 1501. Drivers required to be licensed

         (a) General rule.—No person, except those expressly
         exempted, shall drive any motor vehicle upon a highway or
         public property in this Commonwealth unless the person has
         a driver’s license valid under the provisions of this chapter.

                                   *     *      *

         (d) Penalty.—Any person violating subsection (a) is
         guilty of a summary offense and shall, upon conviction, be
         sentenced to pay a fine of $200, except that, if the person
         charged furnishes satisfactory proof of having held a driver’s
         license valid on the last day of the preceding driver’s license
         period and no more than one year has elapsed from the last
         date for renewal, the fine shall be $25. …

75 Pa.C.S.A. § 1501(a), (d). Under Section 1501(d), an individual convicted

of driving without a license in violation of Section 1501(a) is subject to a fine

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of either $25.00 or $200.00; there is no incarceration penalty. 75 Pa.C.S.A.

§ 1501(d). Section 6503, a recidivist provision in the Motor Vehicle Code, sets

forth enhanced penalties for repeat violations of certain provisions of the

Vehicle Code, including Section 1501(a). Section 6503 provides, in relevant

part, as follows:

         § 6503. Subsequent convictions of certain offenses

                                  *     *      *

         (b) Driving without a license.—Every person convicted
         of a second or subsequent violation of section 1501(a)
         (relating to drivers required to be licensed) within seven
         years of the date of commission of the offense preceding the
         offense for which sentence is to be imposed shall be
         sentenced to pay a fine of not less than $200 nor more
         than $1,000 or to imprisonment for not more than six
         months, or both.

75 Pa.C.S.A. § 6503(b) (emphasis added).           Under Section 6503(b), an

individual who violates Section 1501(a) within seven years of his last Section

1501(a) violation is subject to a penalty of: (i) a fine in the minimum amount

of $200.00 and maximum amount of $1,000.00; (ii) a term of incarceration

not to exceed six months; or (iii) both a fine in an amount of at least $200.00

and at most $1,000.00, and up to six months’ incarceration.             Id.   In

comparison to Section 1501(d), Section 6503(b) permits the sentencing court

to impose an increased fine and/or a term of incarceration upon a repeat

violator of Section 1501(a). 75 Pa.C.S.A. §§ 1501(a), (d), 6503(d). See also

Commonwealth v. Soboleski, 617 A.2d 1309, 1313 (Pa.Super. 1992),

appeal denied, 535 Pa. 661, 634 A.2d 224 (1993) (explaining Section 6503

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constitutes penalty enhancing recidivist provision; defendant must be made

aware of potential application of recidivist provision before entering guilty

plea, pursuant to Reagan, supra; but declining to apply Reagan where

defendant’s sentence under Section 6503 arose following a trial conviction,

not after a guilty plea).

      Instantly, Appellant’s past driving record is not part of the certified

record, but he does not dispute his driving record included a previous

conviction for driving without a license per Section 1501(a). On February 26,

2019, after the court permitted the Commonwealth to amend the sole charge

against Appellant to driving without a license per Section 1501(a), Appellant

entered a guilty plea to that offense.        The court then requested the

Commonwealth to read into the record the applicable recidivist statute; the

Commonwealth complied and recited Section 6503(d).           During the same

hearing, the court applied Section 6503(d) to sentence Appellant to 30 to 90

days’ incarceration, plus a fine in the amount of $1,000.00.          Appellant

objected on the record to the proceedings and sentence on the grounds that

he was not informed he would be subject to a term of incarceration if he

entered the guilty plea.

      The record demonstrates the trial court failed to conduct a proper plea

colloquy during the February 26, 2019 hearing.          Specifically, Appellant

received no notice he would face an enhanced penalty under Section 6503(d),

in the form of an increased fine and/or incarceration, before the court accepted


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his guilty plea to driving without a license. See Persinger, supra; Reagan,

supra; Soboleski, supra.        The court also failed to ensure Appellant

understood: the nature of the driving without a license charge; the factual

basis of his plea; his right to a jury trial; the presumption of innocence; and

that the court was not bound by the terms of any plea agreement.          See

Flanagan, supra; Persinger, supra.           The only question the court asked

Appellant was whether he wished to enter a guilty plea to the amended offense

of driving without a license. See Hodges, supra. Also, the record contains

no written guilty plea colloquy.   Thus, we conclude Appellant’s guilty plea

process was fatally flawed. See Flanagan, supra. When Appellant objected,

the court declined to entertain any argument, swiftly concluded the hearing,

and effectively precluded him from objecting to the process further or moving

to withdraw his plea. See Commonwealth v. Marizzaldi, 814 A.2d 249,

252 (Pa.Super. 2002) (explaining Pa.R.Crim.P. 720(D) barred defendant from

filing post-sentence motions, where defendant was convicted of summary

offense and received incarceration sentence). The best resolution of this case

is to restore the parties to their respective positions before the February 26,

2019 hearing. Accordingly, we vacate the judgment of sentence and remand

for a summary appeal hearing on the original charge. Due to our disposition,

we decline to address Appellant’s remaining issues on appeal.

      Judgment of sentence vacated; case remanded with instructions.

Jurisdiction is relinquished.


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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/07/2019




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