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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA           :    IN THE SUPERIOR COURT OF
                                       :          PENNSYLVANIA
                    v.                 :
                                       :
JERRELL WILLIAMS,                      :         No. 899 EDA 2015
                                       :
                         Appellant     :


          Appeal from the Judgment of Sentence, November 12, 2014,
             in the Court of Common Pleas of Philadelphia County
               Criminal Division at No. CP-51-CR-0009274-2014


BEFORE: FORD ELLIOTT, P.J.E., BENDER, P.J.E., AND MUSMANNO, J.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                 FILED MAY 10, 2016

        Jerrell Williams appeals from the November 12, 2014 judgment of

sentence in the Court of Common Pleas of Philadelphia County following his

conviction of possession of a controlled substance with intent to deliver.1

(“PWID”) We vacate and remand.

        The Commonwealth charged appellant with PWID and knowing and

intentional possession of a controlled substance2 on May 16, 2014.      On

November 12, 2014, appellant and the Commonwealth entered a negotiated

plea agreement. Appellant agreed to plead guilty to one count of PWID, and

the Commonwealth agreed to nolle prosse the simple possession charge.



1
    35 P.S. § 780-113(a)(30).
2
    35 P.S. § 780-113(a)(16).
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The trial court accepted the plea deal and sentenced appellant to the

negotiated sentence of 6-23 months’ imprisonment followed by 3 years’

probation.     Appellant received credit for time served and was paroled

immediately.

      On November 19, 2014, appellant filed a post-sentence motion which

was denied by operation of law on March 19, 2015, pursuant to

Pa.R.Crim.P. 720(B)(3)(a).     On March 27, 2015, appellant filed a notice of

appeal.      The trial court did not order appellant to produce a concise

statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b),

and the trial court did not issue an opinion pursuant to Pa.R.A.P. 1925(a).

      Appellant raises the following issue on appeal:

              Did not the lower court err by failing to allow
              appellant to withdraw his guilty plea where the plea
              was not knowing, intelligent, or voluntary as
              evidenced by the deficient, two-question guilty plea
              colloquy?

Appellant’s brief at 3.

      When considering post-sentence motions for the withdrawal of a guilty

plea, we are held to the following standard:

              “[P]ost-sentence motions for withdrawal are subject
              to higher scrutiny since courts strive to discourage
              entry of guilty pleas as sentence-testing devices.”
              [Commonwealth v. Flick, 802 A.2d 620, 623
              (Pa.Super. 2002).] A defendant must demonstrate
              that manifest injustice would result if the court were
              to deny his post-sentence motion to withdraw a
              guilty plea. Id., citing Commonwealth v. Gunter,
              565 Pa. 79, 771 A.2d 767 (2001); [Commonwealth
              v. Kirsch, 930 A.2d 1282, 1284 (Pa.Super. 2007)].


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           “Manifest injustice may be established if the plea was
           not    tendered     knowingly,    intelligently,   and
           voluntarily.” Commonwealth v. Hodges, 789 A.2d
           764, 765 (Pa.Super. 2002), citing Commonwealth
           v. Persinger, 532 Pa. 317, 615 A.2d 1305 (1992).
           In determining whether a plea is valid, the court
           must examine the totality of circumstances
           surrounding the plea.           Commonwealth v.
           Flanagan, 578 Pa. 587, 854 A.2d 489, 500 (2004).
           A deficient plea does not per se establish prejudice
           on the order of manifest injustice. Commonwealth
           v. Carter, 540 Pa. 135, 656 A.2d 463 (1995);
           Commonwealth v. Yager, 454 Pa.Super. 428, 685
           A.2d 1000 (1996), appeal denied, 549 Pa. 716,
           701 A.2d 577 (1997).

Commonwealth v. Broaden, 980 A.2d 124, 129 (Pa.Super. 2009), appeal

denied, 992 A.2d 885 (Pa. 2010).

           As discussed above, to establish manifest injustice,
           Appellant must show that his plea was entered in an
           involuntary, unknowing, or unintelligent manner.
           [Commonwealth v. Stork, 737 A.2d 789, 790
           (Pa.Super. 1999).] To ascertain whether Appellant
           acted in such manner, we must examine the guilty
           plea colloquy. The colloquy must inquire into the
           following areas: “(1) the nature of the charges;
           (2) the factual basis of the plea; (3) the right to trial
           by jury; (4) the presumption of innocence; (5) the
           permissible range of sentences; and (6) the judge's
           authority to depart from any recommended
           sentence.” Commonwealth v. Burkholder, 719
           A.2d 346, 349 n. 5 (Pa.Super. 1998) (citation
           omitted). This Court evaluates the adequacy of the
           guilty plea colloquy and the voluntariness of the
           resulting plea by examining the totality of the
           circumstances surrounding the entry of that plea.
           Commonwealth v. Lewis, 708 A.2d 497, 501
           (Pa.Super. 1998).

Commonwealth v. Muhammad, 794 A.2d 378, 383-384 (Pa.Super. 2002).




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      The comment to Rule 590 of the Pennsylvania Rules of Criminal

Procedure states:

            It is advisable that the judge conduct the
            examination     of   the  defendant.        However,
            paragraph (A) does not prevent defense counsel or
            the attorney for the Commonwealth from conducting
            part or all of the examination of the defendant, as
            permitted by the judge.[3] In addition, nothing in
            the rule 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. Its use would not, of course, change
            any other requirements of law, including these rules,
            regarding the prerequisites of a valid guilty plea or
            plea of nolo contendere.

Pa.R.Crim.P. 590, Comment (emphasis added).

      In the instant appeal, the record reflects that the following constituted

the entire oral plea colloquy:

            THE COURT: Mr. Williams -- (inaudible).

            THE DEFENDANT: Yes, she did.

            THE COURT: Do you understand it?

            THE DEFENDANT: Yes, I do, sir.

            THE COURT: Let me hear the facts . . .




3
   Paragraph (A) requires        that   all   pleas   be   taken   in   open   court.
Pa.R.Crim.P. 590(A).


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Notes of testimony, 11/12/15 at 3.4

      The oral colloquy conducted by the trial court does not meet the

minimum requirements set forth by Rule 590. While the written guilty plea

colloquy does cover the six factors as enumerated above by Burkholder,

during the oral colloquy, the trial court only addressed one of the

six factors--the factual basis for the plea.5    At no point during the oral

colloquy did the trial court ascertain on the record whether appellant’s plea

was “understanding and voluntary” pursuant to Rule 590. Moreover, during

the oral colloquy, the trial court did not determine whether appellant was

aware of the nature of the charges against him, that he was giving up his

right to a trial by jury, that he was giving up the presumption of innocence,

and that he was aware of the maximum penalties for the crimes to which

appellant was pleading guilty.

      We, therefore, find that the record fails to support the conclusion that

appellant’s guilty plea was knowing, intelligent, and voluntary, and as a

result, a manifest injustice occurred in this case. Accordingly, we vacate the


4
   The Commonwealth speculates that the inaudible question was a
confirmation by the court that appellant’s attorney “had reviewed the written
plea colloquy with him,” to which he replied, “Yes, she did.”
(Commonwealth’s brief at 7 n.1.) Such speculation, even if founded, does
not support the conclusion that appellant’s guilty plea was knowing,
intelligent, and voluntary.
5
  We note that while the trial court failed to address its ability to reject any
negotiated sentence during the oral colloquy, this factor is not an issue in
this appeal because the trial court accepted appellant’s negotiated plea
agreement, and sentenced him accordingly.


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judgment of sentence and remand this case to the trial court for further

proceedings.

      Judgment of sentence vacated.      Case remanded.      Jurisdiction

relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 5/10/2016




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