J-S03032-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :         PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    SEAN MEIKLE,                               :
                                               :
                       Appellant               :      No. 1374 EDA 2018

            Appeal from the Judgment of Sentence October 3, 2017
             in the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0006086-2014

BEFORE: BENDER, P.J.E., OLSON, J., and MUSMANNO, J.

MEMORANDUM BY MUSMANNO, J.:                             FILED MARCH 15, 2019

        Sean Meikle (“Meikle”) appeals from the judgment of sentence imposed

following his plea of guilty to the charges of firearms not to be carried without

a license, carrying firearms on public streets or public property in Philadelphia,

possession of an instrument of crime, terroristic threats, simple assault, and

recklessly endangering another person.1 We vacate and remand.

        On February 17, 2017, Meikle entered an open guilty plea to the above-

described charges, related to his assault of a young woman. The trial court

deferred sentencing and ordered a pre-sentence investigation report.

Subsequently, the trial court sentenced Meikle to an aggregate term of 11 to

22 years in prison. Thereafter, Meikle filed post-sentence Motions, requesting

reconsideration of his sentence and the withdrawal of his guilty plea. The trial

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1   See 18 Pa.C.S.A. §§ 6106(a)(1), 6108, 907(a), 2706(a)(1), 2701(a), 2705.
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court denied both Motions. Meikle filed a timely Notice of Appeal and a court-

ordered Pa.R.A.P. 1925(b) Concise Statement of matters complained of on

appeal.

      On appeal, Meikle raises the following questions for our review:

      1. Did not the [trial] court err in denying [Meikle’s] [M]otion to
      withdraw his guilty plea[,] where there is no evidence that
      [Meikle] was informed of the maximum permissible punishment,
      and[,] in fact[,] was misinformed in the written guilty plea
      colloquy?

      2. Did not the [trial] court err in sentencing [Meikle] to an
      aggregate sentence over three times the guideline sentencing
      range without discussing any rationale for its sentence other than
      the severity of the offense?

Brief for Appellant at 4.

      In his first claim, Meikle alleges that the trial court erred in denying his

Post-sentence Motion to withdraw his guilty plea. See id. at 14-17. Meikle

argues that his plea was invalid because it was not entered into knowingly,

intelligently, and voluntarily. Id. at 14-15. Meikle claims that the trial court’s

oral guilty plea colloquy was insufficient to apprise Meikle of his rights, inform

him of the maximum sentence he was facing, or determine whether Meikle

was entering a knowing, intelligent, and voluntary plea. Id. at 15, 16-17.

             It is well-settled that the decision whether to permit a
      defendant to withdraw a guilty plea is within the sound discretion
      of the trial court[,] … [and] we review a trial court’s order denying
      a motion to withdraw a guilty plea for an abuse of discretion.
      Although no absolute right to withdraw a guilty plea exists in
      Pennsylvania, the standard applied differs depending on whether
      the defendant seeks to withdraw the plea before or after
      sentencing. When a defendant seeks to withdraw a plea after
      sentencing, he must demonstrate prejudice on the order of

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     manifest injustice. … Thus, post-sentence motions for withdrawal
     are subject to higher scrutiny[,] since the courts strive to
     discourage the entry of guilty pleas as sentence-testing devices.

            Manifest injustice occurs when the plea is not tendered
     knowingly, intelligently, voluntarily, and understandingly. In
     determining whether a plea is valid, the court must examine the
     totality of circumstances surrounding the 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. Hart, 174 A.3d 660, 664-65 (Pa. Super. 2017) (citations,

quotation marks and parentheticals omitted).

     To ensure that a plea is voluntary, knowing, and intelligent,

     Rule 590 of the Pennsylvania Rules of Criminal Procedure requires
     that a trial court conduct a separate inquiry of the defendant
     before accepting a guilty plea. … As the Comment to Rule 590
     provides, at a minimum, the trial court should ask questions to
     elicit the following information:

     (1) Does the defendant understand the nature of the charges to
     which he or she is pleading guilty or nolo contendere?

     (2) Is there a factual basis for the plea?

     (3) Does the defendant understand that he or she has the right to
     trial by jury?

     (4) Does the defendant understand that he or she is presumed
     innocent until found guilty?

     (5) Is the defendant aware of the permissible range or sentences
     and/or fines for the offenses charged?

     (6) Is the defendant aware that the judge is not bound by the
     terms of any plea agreement tendered unless the judge accepts
     such agreement?

Hart, 174 A.3d at 667-68 (citations omitted). “Inquiry into the above six

areas is mandatory.” Commonwealth v. Ingold, 823 A.2d 917, 921 (Pa.


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Super. 2003), disapproved of on other grounds by Commonwealth v.

O’Berg, 880 A.2d 597 (Pa. 2005). “The purpose of [Rule 590] is to insure

that the defendant fully understands the nature of the crimes to which he or

she is pleading guilty and the rights that are being waived by the plea.”

Commonwealth v. Carter, 656 A.2d 463, 465 (Pa. 1995).

       The Comment to Rule 590 further states that “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. [However,]

[t]his written colloquy would have to be supplemented by some on-

the-record oral examination.” Pa.R.Crim.P. 590, cmt. (emphasis added).

       Here, Meikle completed a written guilty plea colloquy that included the

following admissions relevant to the instant appeal:

       I can read and write English.

       I have never seen a doctor or been in a hospital for any mental
       problems – I can understand what is going on.

       I am not under the influence of drugs or alcohol.

       I have not taken any medicine in the last week.

       THE CHARGES
       I admit I committed the crime(s) of VUFA 6106A1 F3, VUFA 6108
       M1, PIC M1, terroristic threats M1, SA[] M2, REAP M2,[2] and I
       want to plead guilty. My lawyer told me what the elements of the
       crime(s) are that the District Attorney must prove to convict me.
____________________________________________


2Underlined text represents blanks in the colloquy form that were filled in by
hand.




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       I know I can go to jail for up to 22.5[3] years and be fined
       $50[,]000 for the crimes I committed.

       NO PROMISES OR THREATS
       Nobody promised me anything or threatened me or forced me to
       plead guilty. I, myself, have decided to plead guilty. I know what
       I say today is final.

       PLEA BARGAIN OR AGREEMENT

       ….

       There is no plea bargain of any kind, except that the District
       Attorney promised to:

       ….

       Drop the charges of Agg Assault F1[.]

       Nobody else promised me anything if I plead guilty.

       I know if the judge does not agree with the plea bargain or
       agreement, I can withdraw my guilty plea and have a trial before
       a judge and jury or before a judge alone.

       RIGHTS AT TRIAL
       I do not have to plead guilty, even if I committed the crimes. I
       have an absolute right to plead not guilty and have a trial. I can
       have a jury trial or, if I give up my jury trial rights, I can have a
       trial by a judge alone. When I plead guilty, I give up my right to
       have a trial. If I went to trial, I would have all the rights listed
       below plus others.

       I am presumed to be innocent. That means that I start out
       innocent – and stay innocent unless the District Attorney proves I
       committed the crime(s). I do not have to prove anything.

       To convict me, the District Attorney must prove more than that I
       probably committed the crimes. The District Attorney has to
       prove me guilty “beyond a reasonable doubt[.]” A reasonable
____________________________________________


3This blank contains an illegible, scribbled-out number. “22.5” is written
underneath the blank.

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     doubt is the kind of doubt which would cause a normal, reasonable
     person to hesitate or halt or refuse to take any action at all in
     something very important to them.

     I have the right to remain silent. Nobody can make me testify or
     talk about the case. No one can hold it against me if I remain
     silent. However, if I want to, I can testify (tell my story) at the
     trial. Also, I may call other people who will be my witnesses and
     testify for me. If I plead guilty, I give up this right.

     I give up many important rights if I plead guilty. For example, if
     I do not plead guilty and have a trial, all the witnesses for the
     District Attorney must come to court and testify under oath. My
     lawyer may cross-examine them. My lawyer can ask them
     questions to see if they are telling the truth and if what they say
     is correct. I give up this right to confront and cross[-]examine
     witnesses and many other rights if I plead guilty. The witnesses
     do not have to come in to Court – the District Attorney just reads
     to the judge a summary of what happened.

     ….

     SATISFIED WITH MY LAWYER
     I am satisfied with the advice and service I received from my
     lawyer. My lawyer spent enough time on my case and I had
     enough time to talk with my lawyer about the case. My lawyer
     left the final decision to me and I decided myself to plead guilty.

     FACTS OF MY CASE AND ELEMENTS OF THE CRIME(S)
     The facts of the case have been read to me. The crimes and
     elements of the crime(s) have been explained to me. I committed
     the crime(s), and that is why I am pleading guilty.

     GIVING UP DEFENSES
     If I plead guilty, I am giving up the right to defend my case. I
     cannot come back to court later and say that I was not guilty.
     Once I plead guilty, I can no longer complain that I was innocent
     and did not commit the crime.

     I HAVE READ ALL OF THE ABOVE, OR MY LAWYER READ IT
      TO ME. I UNDERSTAND IT. MY ANSWERS ARE ALL TRUE
                        AND CORRECT.




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Written Guilty Plea Colloquy, 2/17/17, at 1-3 (footnotes added).        Meikle’s

name is handwritten, both printed and signed, at the bottom of page three.

      At the plea hearing, the trial court conducted the following oral colloquy:

      THE COURT: How old are you?

      THE DEFENDANT: 26.

      THE COURT: How far did you go in school?

      THE DEFENDANT: Tenth grade.

      THE COURT: Read, write, understand English?

      THE DEFENDANT: Yes, sir.

      THE COURT: Are you under the influence of drugs or alcohol
      today?

      THE DEFENDANT: No, sir.

      THE COURT: Suffering from any mental illness today?

      THE DEFENDANT: No, sir.

      THE COURT: Satisfied with your attorney?

      THE DEFENDANT: Yes.

N.T., 2/17/17, at 4. The Commonwealth subsequently provided the facts of

the case, and asked Meikle to verbalize his guilty plea. Meikle stated that he

pled guilty, after which the trial court scheduled sentencing and concluded the

hearing.   At no point were the charges to which Meikle pled guilty, or the

maximum sentence, discussed during the plea hearing.

      The record reveals that the trial court failed to elicit any of the

information required by Pa.R.Crim.P. 590. Indeed, the trial court did not ask

Meikle any questions regarding whether Meikle understood the charges

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against him or his right to a trial. See Ingold, 823 A.2d at 921 (finding that

the defendant’s plea was not knowingly, intelligently, and voluntarily entered

where “it is immediately apparent that the trial court did not inquire into the

six areas set forth in Pa.R.Crim.P. 590.”).

      Additionally, Meikle was never informed, on the record, of the charges

to which he was pleading guilty, or the maximum punishment his guilty plea

carries. See Commonwealth v. Persinger, 615 A.2d 1305, 1308 (Pa. 1992)

(stating that “a defendant obviously cannot be expected to plead intelligently

… [without being] informed of the maximum punishment that might be

imposed for his conduct.”); see also Commonwealth v. Flick, 802 A.2d 620,

624 (Pa. Super. 2002) (stating that although the defendant signed a written

colloquy, which contained the charges filed against the defendant and the

maximum sentence, and the defendant verbally acknowledged in open court

that he had read and understood the charges and maximum punishment, the

defendant’s guilty plea was unknowing because the trial court did not “explain

the nature of the charges against [the defendant,] nor discuss the elements

of the offenses.”).

      Although the charges and maximum sentence appear on the first page

of the written colloquy, the trial court did not inquire as to whether Meikle

read or understood the written colloquy, or whether his attorney explained the

colloquy to him. Moreover, the charges are handwritten in barely legible legal

abbreviations, the meaning of which would not be obvious to a layperson.


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Similarly, the maximum sentence that was noted on the written colloquy was

changed, and the record does not reflect that Meikle acknowledged the

change.      Furthermore, even if we concluded that the written colloquy

sufficiently informed Meikle of his charges and the maximum punishment it

carried, it was not supplemented by an on-the-record examination as required

by Pa.R.Crim.P. 590, cmt.

        In examining the totality of the circumstances surrounding the entry of

Meikle’s guilty plea, we conclude that his plea was not knowing, intelligent,

and voluntary. Accordingly, the trial court abused its discretion in denying

Meikle’s post-sentence Motion to withdraw his guilty plea. We vacate Meikle’s

judgment of sentence, permit Meikle to withdraw his plea, and remand the

case for further proceedings.4

        Judgment of sentence vacated. Case remanded for further proceedings.

Superior Court jurisdiction relinquished.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/15/19


____________________________________________


4   In light of our holding, we need not address Meikle’s second issue on appeal.

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