J-S30040-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

STANLEY ORLIN STIRES

                            Appellant                  No. 83 EDA 2015


           Appeal from the Judgment of Sentence November 13, 2014
             In the Court of Common Pleas of Northampton County
              Criminal Division at No(s): CP-48-CR-0001327-2014


BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., and JENKINS, J.

MEMORANDUM BY JENKINS, J.:                         FILED OCTOBER 14, 2015

        Appellant Stanley Orlin Stires appeals from the judgment of sentence

entered in the Northampton County Court of Common Pleas following his

conviction for selling or furnishing liquor or malt or brewed beverages to

minors.1    Upon review, we vacate the judgment of sentence, reverse the

order denying Appellant’s petition to withdraw his guilty plea, and remand

this case to the trial court.

        The trial court accurately sets forth some of the relevant facts and

procedural history as follows:

           On November 13, 2014, [Appellant] entered a guilty plea
           to one count of [s]elling or [f]urnishing [l]iquor or [m]alt
           or [b]rewed [b]everages to [m]inors (M3), 18 [Pa.C.S.] §
           6301.1(a). By pleading guilty, [Appellant] admitted to
____________________________________________


1
    18 Pa.C.S. § 6310.1(a).
J-S30040-15


          furnishing alcohol, i.e. Budweiser beer, to a minor on
          February 24, 2014. Prior to sentencing, this [c]ourt noted
          the standard guideline range of RS-2, and [Appellant’s]
          prior record score (PRS) of 2 based upon his prior
          convictions for DUI, manslaughter and receiving stolen
          property. This [c]ourt further noted that [Appellant] had
          been incarcerated for forty-two (42) days on the charges.
          [Appellant] was granted his right of allocution and made a
          statement to the Court on the record. Thereafter, this
          [c]ourt sentenced [Appellant] to a period of time served to
          three months[’] incarceration, followed by a consecutive
          period of nine (9) months[’] probation. On November 21,
          2014, [Appellant] filed a [m]otion to [w]ithdraw [g]uilty
          [p]lea wherein he asserted his plea was not knowing and
          voluntary and specifically that, he “pled guilty in exchange
          only for a ‘short tail’[”.]    We entered an [o]rder on
          November 25, 2014 denying [Appellant’s] motion.

Trial Court Opinion, filed January 27, 2015, at 1-2.

       On December 24, 2014, Appellant timely filed a notice of appeal.2,     3



On December 30, 2014, the court ordered Appellant to file a concise

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

and he timely complied on January 9, 2015.

       Appellant raises the following issues for review:

          WHETHER THE TRIAL COURT ABUSED ITS DISCRETION BY
          DENYING [APPELLANT’S] MOTION TO WITHDRAW GUILTY
          PLEA BASED ON THE TOTALITY OF THE CIRCUMSTANCES?


____________________________________________


2
 The trial court opinion states that Appellant’s notice of appeal was not filed
until January 9, 2015, however, the certified record reflects otherwise.
3
  The appeal was timely because it was filed within 30 days of the entry of
the order denying Appellant’s timely post sentence motion.             See
Commonwealth v. Green, 862 A.2d 613, 618 (Pa.Super.2004), appeal
denied, 882 A.2d 477 (Pa.2005); Pa.R.Crim.P. 720(A)(2)(a).



                                           -2-
J-S30040-15


         WHETHER THE [TRIAL COURT] ABUSED ITS DISCRETION
         BY   SENTENCING   APPELLANT   TO   A   MANIFESTLY
         UNREASONABLE SENTENCE [THAT] IS CONTRARY TO THE
         FUNDAMENTAL    NORMS     WHICH    UNDERLIE    THE
         SENTENCING PROCESS BECAUSE IT WAS BEYOND THE
         SENTENCING GUIDELINES, MANIFESTLY EXCESSIVE IN
         LIGHT OF THE CRIMINAL CONDUCT AT ISSUE IN THE
         CASE, INCONSISTENT WITH THE PROTECTION OF THE
         PUBLIC, AND THE SENTENCE WAS NOT CONSISTENT
         WITH THE REHABILITATIVE NEEDS OF APPELLANT?

Appellant’s Brief at 4.

      In his first issue, Appellant argues that, based on the totality of the

circumstances, his guilty plea was not knowing and voluntary. Appellant’s

Brief at 8. He claims that he did not know he was giving up his rights and

his presumption of innocence. Id. He contends that he did not knowingly

furnish the alcohol to the minor and therefore lacked the requisite intent for

a violation of 18 Pa.C.S. § 6310.1.     Id. at 8-9.   Appellant concludes the

court abused its discretion by denying his motion to withdraw his guilty plea,

and he is entitled to a jury trial. Id. at 9. We agree.

      This Court’s scope of review of a trial court’s ruling on a motion to

withdraw a plea is to review the record of the plea and any post-sentence

proceeding.    See Commonwealth v. Moser, 921 A.2d 526, 528-530

(Pa.Super.2007). Our standard of review is whether the trial court abused

its discretion. Id. at 530.

      “[T]he law does not require that [the defendant] be pleased with the

outcome of his decision to enter a plea of guilty: All that is required is that

[his] decision to plead guilty be knowingly, voluntarily, and intelligently

                                     -3-
J-S30040-15


made.”      Commonwealth v. Willis, 68 A.3d 997, 1002 (Pa.Super.2013)

(quoting     Commonwealth        v.    Anderson,     995   A.2d   1184,      1192

(Pa.Super.2010) (alterations in original)).        A guilty plea colloquy must

“affirmatively     demonstrate   the   defendant   understood   what   the   plea

connoted and its consequences.” Id. (quoting Commonwealth v. Lewis,

708 A.2d 497, 501 (Pa.Super.1998)). No absolute right to withdraw a plea

exists.    Commonwealth v. Flick, 802 A.2d 620, 623 (Pa.Super.2002).

After a defendant enters a guilty plea, “it is presumed that he was aware of

what he was doing, and the burden of proving involuntariness is upon him.”

Commonwealth v. Bedell, 954 A.2d 1209, 1212 (Pa.Super.2008).

      The standard for withdrawal of a guilty plea after the imposition of

sentence is much higher than the standard applicable to a pre-sentence

motion to withdraw.        Commonwealth v. Byrne, 833 A.2d 729, 737

(Pa.Super.2003).      A defendant must demonstrate that manifest injustice

would result if the court were to deny his post-sentence motion to withdraw

the plea.    Id.   “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); see also Pa.R.Crim.P.

590(a)(3).       “[D]isappointment by a defendant in the sentence actually

imposed does not represent manifest injustice.”       Byrne, 833 A.2d at 737

(citation omitted).




                                       -4-
J-S30040-15


      For a guilty plea to be constitutionally valid, the defendant must

knowingly, intelligently, and voluntarily enter the plea; otherwise, a manifest

injustice has occurred. See Hodges, supra; Commonwealth v. Fluharty,

632 A.2d 312, 314 (Pa.Super.1993) (“In order for a guilty plea to be

constitutionally valid, the guilty plea colloquy must affirmatively show that

the defendant understood what the plea connoted and its consequences.”).

“Determining whether a defendant understood the connotations of his plea

and its consequences requires an examination of the totality of the

circumstances surrounding the plea.” Moser, 921 A.2d at 529.

      “A valid plea colloquy must delve into six areas: 1) the nature of the

charges, 2) the factual basis of the plea, 3) the right to a jury trial, 4) the

presumption of innocence, 5) the sentencing ranges, and 6) the plea court’s

power to deviate from any recommended sentence.”            Commonwealth v.

Morrison, 878 A.2d 102, 107 (Pa.Super.2005), appeal denied, 887 A.2d

1241 (Pa.2005); Comment to Pa.R.Crim.P. 590(A)(2).                A written plea

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

of   the   record   may   serve   as   the   defendant’s   plea   colloquy   when

supplemented by an oral, on-the-record examination. Morrison, 878 A.2d

at 108 (citing Comment to Pa.R.Crim.P. 590). Even if “there is an omission

or defect in the guilty plea colloquy, a plea of guilty will not be deemed

invalid if the circumstances surrounding the entry of the plea disclose that

the defendant had a full understanding of the nature and consequences of


                                       -5-
J-S30040-15


his plea and that he knowingly and voluntarily decided to enter the plea.”

Fluharty, 632 A.2d at 315.      The entry of a negotiated plea is a “strong

indicator” of the voluntariness of the plea.    Commonwealth v. Meyers,

642 A.2d 1103, 1106 (Pa.Super.1994). Further, “where the record clearly

demonstrates that a guilty plea colloquy was conducted, during which it

became evident that the defendant understood the nature of the charges

against him, the voluntariness of the plea is established.” Moser, 921 A.2d

at 529.

      Here, Appellant pled guilty to the following crime:

          § 6310.1. Selling or furnishing liquor or malt or
          brewed beverages to minors

          (a) Offense defined.--Except as provided in subsection
          (b), a person commits a misdemeanor of the third degree
          if he intentionally and knowingly sells or intentionally
          and knowingly furnishes, or purchases with the intent to
          sell or furnish, any liquor or malt or brewed beverages to a
          person who is less than 21 years of age.

18 Pa.C.S. § 6310.1 (emphasis added).

      The record does not demonstrate that a guilty plea colloquy was

conducted.    Because the court denied Appellant’s request for a hearing

regarding his guilty plea, there are no post-trial transcripts to review. Thus,

we examine the guilty plea and sentencing transcripts, which provide:

          [DEFENSE ATTORNEY]:           This is [Appellant], who is
          pleading guilty to furnishing alcohol to a minor.

          THE COURT: Alright. Do you have the guidelines sheet?

          [PROSECUTOR]: Yes, Your Honor.

                                     -6-
J-S30040-15



       [DEFENSE ATTORNEY]:       What day did you come in –
       October the 6th?

       [APPELLANT]: 2nd.

       [DEFENSE ATTORNEY]: So he does have --

       [APPELLANT]: Forty-two now.

       [DEFENSE ATTORNEY]: Forty-two days in.

       THE COURT: The guidelines are RS to two on these
       charges. He has forty-two days?

       [DEFENSE ATTORNEY]: Forty-two days in.

       THE COURT: Okay. [Appellant], you wish to plead guilty
       to furnishing five eight-ounce cans of Budweiser beer to a
       minor on February 24th, 2014?

       [DEFENSE ATTORNEY]: I don’t think that he is going to
       admit to the five cans because they were in his house.
       However, this is based on also several statements and
       video that there was alcohol. He doesn’t know how many
       she actually took.

       THE COURT:    So the quantity is in question, not the act
       itself?

       [DEFENSE ATTORNEY]: Correct.

       THE COURT: Is that correct?

       THE DEFENDANT: Yeah.

       THE COURT: The prior record score is two, [Prosecutor]?

       [PROSECUTOR]: Yes, Your Honor.

       THE COURT: And what is that attributable to?

       MR. CASOLA: Two DUI’s, a manslaughter, and receiving
       stolen property.

                                 -7-
J-S30040-15



         [DEFENSE ATTORNEY]: It’s a manslaughter from 1977.

         THE COURT: Okay. [Appellant], is there anything that
         you wish to say to me, sir, before I proceed with this
         matter?

         [APPELLANT]: Yes, Your Honor. I am going to be much
         more aware in my surroundings and who is into my beer.

         THE COURT: I’m sorry?

         [APPELLANT]: I am going to be much more careful of my
         surroundings and who is drinking my beer. I didn’t know
         it, I just wasn’t aware of the fact that how much she
         drank. I didn’t know she was a minor.

         [DEFENSE ATTORNEY]:       There were friends over that
         brought the eighteen-year-old.

         THE COURT: If there is nothing further, we’ll accept the
         defendant’s plea.       We’ll sentence him to a period of
         incarceration of time served to a maximum of three
         months, followed by a period of supervision of nine
         months. And, the costs associated with these proceedings.
         I’ll file his post-sentence information.

N.T., November 13, 2014, at 2-4.

      Regarding its decision to deny Appellant’s petition to withdraw his

guilty plea, the trial court reasoned:

         Here, [Appellant] argued that his plea was not knowingly
         and voluntarily tendered in that, he only pled guilty in
         exchange for a “short tail” in reference to sentencing. As
         the record belied [Appellant’s] claim, we denied his post-
         sentence motion. No agreements were made with respect
         to sentencing by the Commonwealth and, this was not a
         negotiated plea.     Rather, [Appellant] knowingly and
         voluntarily admitted on the record to the act of furnishing
         alcohol to an 18-year-old female in violation of the statute.
         Based upon the totality of the circumstances, there is


                                         -8-
J-S30040-15


          simply no basis upon which to warrant a withdrawal of
          [Appellant’s] plea.

Trial Court Opinion at 4 (citations to the record omitted) (emphasis added).

       Nothing in the record indicates Appellant entered into the guilty plea

knowingly, voluntarily, and intelligently.4      Appellant did not receive, initial,

____________________________________________


4
   The Commonwealth contends Appellant failed to preserve this issue
because he did not elaborate on why his guilty plea was not knowingly,
intelligently, and voluntarily entered. Commonwealth’s Brief at 8-9. The
Commonwealth argues Appellant only preserved a claim that his plea was
involuntary due to his belief that he would receive a “short tail” on his
sentence, and that he has abandoned his “short tail” claim on appeal. Id.
Although the petition to withdraw the plea, the Rule 1925(b) statement, and
the brief were poorly drafted, they manage to convey Appellant’s claim that
he did not enter into the guilty plea knowingly, intelligently, and voluntarily,
a claim of manifest injustice. See Hodges, supra.

Appellant’s petition to withdraw guilty plea states:

       4. [Appellant] desires to withdraw his guilty plea on the belief
       that he plead guilty in only in exchange for a ‘short tail’
       5. Thus, he believes that his guilty plea was not knowing and
       voluntary.

Appellant’s Petition for Motion to Withdraw Guilty Plea and Reconsideration
of Sentence, filed November 21, 2014.

Appellant’s concise statement states:

          4. The [c]ourt abused its discretion by denying Appellant’s
          [m]otion to withdraw his guilty plea.

Appellant’s Pa.R.A.P. 1925(b) statement.

Although Appellant fails to define “short tail” and does not use the term
again, our Supreme Court has held that “once a defendant alleges that his
guilty plea is not voluntary, ‘our rules [require] that the constitutional
validity of the plea be demonstrated on the record.’” Commonwealth v.
(Footnote Continued Next Page)


                                           -9-
J-S30040-15


or sign a written colloquy. The court did not conduct an oral, on-the-record
                       _______________________
(Footnote Continued)

Edwards, 410 A.2d 841, 842 (Pa.Super.1979) (quoting Commonwealth v.
Jasper, 372 A.2d 395 (Pa.1976)). In Edwards, this Court found, over the
Commonwealth’s objections, that the appellant had preserved his issue in
his petition to withdraw his guilty plea when he asserted “broadly that he
had not entered the plea voluntarily and intelligently, [and] did not
specifically set forth the circumstances allegedly rendering the plea invalid.”
Id.

Here, the court failed to conduct a colloquy, failed to demonstrate the
constitutional validity of the plea on the record, and failed to apprise
Appellant of any of his constitutional rights.        Further, the trial court
addressed Appellant’s claim that, based on the totality of the circumstances,
his plea was not valid in its Pa.R.A.P. 1925(a) Opinion:

      [Appellant] knowingly and voluntarily admitted on the record to
      the act of furnishing alcohol to an 18-year-old female in violation
      of the statute.         Based upon the totality of the
      circumstances, there is simply no basis upon which to
      warrant a withdrawal of [Appellant’s] plea.

Trial Court Opinion at 4 (emphasis added).

In this case, where the court failed to demonstrate the constitutional validity
of the plea when Appellant first alleged his guilty plea was not voluntary,
and where the trial court addressed his claim in its Pa.R.A.P. 1925(a) opinion
by stating that, based on the totality of the circumstances, there was no
basis upon which to warrant a withdraw of Appellant’s guilty plea, we find
Appellant has preserved his claim of manifest injustice by asserting he did
not enter into the guilty plea knowingly and voluntarily in his motion to
withdraw the guilty plea. See Edwards, supra; see also Commonwealth
v. Broaden, 980 A.2d 124, 128 (Pa.Super.2009) (Appellant preserved issue
that guilty plea was not knowing and voluntary where he only asserted in
Pa.R.A.P. 1925(b) statement: “whether the sentencing court abused its
discretion in not granting Appellant’s post-sentence motion to withdraw his
guilty plea.”); Commonwealth v. Pantalion, 957 A.2d 1267, 1274
(Pa.Super.2008) (“Although Appellant presented to the trial court a different
basis for withdrawing her guilty plea, the alleged error in the grading of her
forgery offense implicates both the legality of Appellant’s sentence and the
validity of her guilty plea. Therefore, we will address her grading claim on
appeal.”)



                                           - 10 -
J-S30040-15


colloquy apprising Appellant of the nature of the charges to which he was

pleading guilty, that he was giving up his right to a jury trial, his

presumption of innocence, or the permissible range of sentences and fines

possible for his charge.       Further, neither the court nor counsel provided a

complete factual basis of the plea because they failed to articulate how

Appellant employed the requisite intent for his conviction.      Thus, the trial

court abused its discretion in denying Appellant’s petition to withdraw his

guilty plea.5

        Order denying petition to withdraw guilty plea reversed. Judgment of

sentence vacated.        Case remanded for proceedings consistent with this

memorandum. Jurisdiction relinquished.


        President Judge Emeritus Ford Elliott joins the memorandum.

        President Judge Gantman files a concurring memorandum.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/14/2015




____________________________________________


5
    We need not address Appellant’s other claim.



                                          - 11 -
