J-S29009-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                       IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                            Appellee

                       v.

THOMAS BART GIBSON

                            Appellant                  No. 1119 WDA 2014


            Appeal from the Judgment of Sentence January 27, 2014
              In the Court of Common Pleas of Allegheny County
              Criminal Division at No(s): CP-02-CR-0014833-2013


BEFORE: PANELLA, J., MUNDY, J., and STRASSBURGER, J.*

MEMORANDUM BY PANELLA, J.                                FILED JULY 14, 2015

        Appellant, Thomas Bart Gibson, appeals from the judgment of

sentence entered January 27, 2014, by the Honorable Joseph K. Williams,

III, in the Court of Common Pleas of Allegheny County. After careful review,

we affirm in part, vacate in part, and remand for further proceedings.

        On January 27, 2014, Gibson entered a guilty plea to tampering with

or fabricating physical evidence1 and driving while operating privilege is

suspended or revoked.2          Following a guilty plea hearing, the trial court

sentenced Gibson on the tampering charge to 30 to 60 days’ confinement,

with immediate parole, followed by one-year probation. The court imposed

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
    18 Pa.C.S.A. § 4910(1).
2
    75 Pa.C.S.A. § 1543(a).
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a $200.00 fine at the “1543” offense. N.T., Guilty Plea Hearing, 1/27/14 at

4.

      On appeal, Gibson raises the following issue for our review.

      Did the trial court abuse its discretion when it denied Mr.
      Gibson’s post-sentence motion requesting to withdraw his guilty
      plea at CC 2013-14833, as it was not knowingly, voluntarily, and
      intelligently made?

Appellant’s Brief at 5 (unnecessary capitalization omitted).

      We note that,

         [p]ost-sentence motions for withdrawal are subject to
         higher scrutiny since courts strive to discourage entry of
         guilty pleas as sentence-testing devices. A defendant
         must demonstrate that manifest injustice would result if
         the court were to deny his post-sentence motion to
         withdraw a guilty plea. Manifest injustice may be
         established if the plea was not tendered knowingly,
         intelligently, and voluntarily. In determining whether a
         plea is valid, the court must examine the totality of
         circumstances surrounding the plea. A deficient plea does
         not per se establish prejudice on the order of manifest
         injustice.

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

(internal quotes and citations omitted).

            To be valid, a guilty plea must be knowingly, voluntarily
      and intelligently entered. [A] manifest injustice occurs when a
      plea is not tendered knowingly, intelligently, voluntarily, and
      understandingly. The Pennsylvania Rules of Criminal Procedure
      mandate 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. Under [Pa.R.Crim.P.]Rule 590, the court should confirm,
      inter alia, that a defendant understands: (1) the nature of the
      charges to which he is pleading guilty; (2) the factual basis for
      the plea; (3) he is giving up his right to trial by jury; (4) and the
      presumption of innocence; (5) he is aware of the permissible

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      ranges of sentences and fines possible; and (6) the court is not
      bound by the terms of the agreement unless the court accepts
      the plea. The reviewing Court will 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. Pennsylvania law presumes a defendant who
      entered a guilty plea was aware of what he was doing, and the
      defendant bears the burden of proving otherwise.

Commonwealth v. Prendes, 97 A.3d 337, 352 (Pa. Super. 2014), appeal

denied, 105 A.3d 736 (Pa. 2014) (internal quotes and citations omitted).

      Instantly, Gibson’s challenge to the voluntariness of his guilty plea is

narrow, in that he alleges only that “he was unaware that his guilty plea

included a plea to Driving While Operating Privilege Suspended or Revoked.”

Appellant’s Brief at 14.     Our review of the record supports Gibson’s

assertion.

      We note with great concern that, although the assistant district

attorney notified the lower court at the outset of the guilty plea hearing that

Gibson was pleading to “Tampering and driving with a suspended license,”

Guilty Plea Hearing, 1/27/14 at 3, there was no explanation of the elements

of these crimes.      Consequently, there is no indication that Gibson

understood the nature of the charges to which he was pleading guilty.

Moreover, this initial statement by the prosecutor constitutes the only time

in the entire guilty plea hearing that the charges were referred to specifically

by name, and not section number. We further note that our review of the

written guilty plea form answered and signed by Gibson does not indicate

the crimes to which Gibson is pleading guilty, nor does the written colloquy



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query whether counsel explained the elements of the offenses to him. See

Guilty Plea Explanation of Defendants Rights, 1/27/14.

       When evaluated against the six mandatory areas of inquiry that must

be conducted during a guilty plea hearing as set forth in Pa.R.Crim.P. Rule

590, discussed below, the colloquy in the instant case was clearly deficient.

The trial court simply failed to inform Gibson of the nature of the charges

against him or explain the elements of those crimes, and there is no

evidence to suggest that Gibson was otherwise provided this necessary

information.3 As the totality of the circumstances here suggests that Gibson

was inadequately informed of the specific crimes to which he was pleading

guilty, such that his plea was rendered unknowingly entered, we conclude

that the trial court’s refusal to grant Gibson’s post-sentence motion to

withdraw his plea resulted in manifest injustice.   See Commonwealth v.
____________________________________________


3
  The trial court maintains that the factual summary provided by the
Commonwealth was sufficient to alert Gibson that his plea included an
admission of guilt to the crime of driving while operating license is
suspended. We disagree.

   At the hearing, the Commonwealth advised the court that “the defendant’s
license was suspended at the time” he was observed “exiting a vehicle”
immediately prior to his arrest. Plea Hearing, 1/27/14 at 9. However, the
Commonwealth notably did not establish that Gibson was observed driving a
motor vehicle prior to his arrest. See 75 Pa.C.S.A. § 1543(a) (“[A]ny
person who drives a motor vehicle on any highway or trafficway of this
Commonwealth after the commencement of a suspension, revocation or
cancellation of the operating privilege and before the operating privilege has
been restored is guilty of a summary offense and shall, upon conviction, be
sentenced to pay a fine of $200.”).




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Flick, 802 A.2d 620 (Pa. Super. 2002) (finding guilty plea colloquy

inadequate where trial court did not discuss the nature of the charges or

explain elements of the offenses); cf. Commonwealth v. Morrison, 878

A.2d 102 (Pa. Super. 2005) (en banc), appeal denied, 887 A.2d 1241 (Pa.

2005) (where appellant admitted in written guilty plea colloquy that he was

advised   of   offenses   as   outlined    in   the   information,   totality   of    the

circumstances established appellant was informed of the nature and

elements of the charges against him).

      Accordingly, we vacate Gibson’s judgment of sentence in part and

remand for further proceedings. As Gibson challenges his guilty plea only as

it pertains to the offense of driving while operating privilege is suspended,

we affirm his judgment of sentence for tampering with or fabricating physical

evidence. On remand, Gibson shall be permitted to withdraw his guilty plea

to the offense of driving while operating privilege is suspended.

      Judgment of sentence affirmed in part and vacated in part.                     Case

remanded for further proceedings consistent with this memorandum.

Jurisdiction relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary




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Date: 7/14/2015




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