J-S23031-16


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                :     IN THE SUPERIOR COURT OF
                                            :          PENNSYLVANIA
                    v.                      :
                                            :
ROBERT WAYNE GAWNE                          :
                                            :
                          Appellant         :
                                            :     No. 2499 EDA 2015

              Appeal from the Judgment of Sentence March 2, 2015
     in the Court of Common Pleas of Northampton County Criminal Division
                       at No(s): CP-48-CR-0001521-2014

BEFORE: PANELLA, OTT, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                          FILED MAY 11, 2016

        Appellant, Robert Wayne Gawne, appeals from the judgment of

sentence entered in the Northampton County Court of Common Pleas

following the trial court’s denial of his post-sentence motion seeking the

withdrawal of his nolo contendere plea.1 He claims that he was denied the

opportunity to prove that his plea was improperly obtained due to his

intoxication and psychiatric issues. We affirm.



*
    Former Justice specially assigned to the Superior Court.
1
  We note that Appellant purported to appeal from the June 24, 2015 order
denying his post-sentence motion. However, the appeal properly lies from
the March 2, 2015 judgment of sentence, made final by the denial of his
post-sentence motion. See Commonwealth v. Kuykendall, 2 A.3d 559,
560 n.1 (Pa. Super. 2010).
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          We glean the pertinent facts from the trial court’s opinion and the

record.     Appellant was the driver of a tractor trailer when it collided, at a

high rate of speed, with a concrete barrier at an Interstate 78 toll booth in

Northampton County. After Appellant’s tractor trailer hit the barrier, it

landed on a Ford Taurus that was stopped at the toll booth. Both vehicles

burst into flames and the driver of the Ford Taurus, Daniel Murphy, was

killed.

          Although at first he claimed otherwise, upon being confronted with

video footage of the crash, Appellant provided a written statement admitting

that he must have fallen asleep as he was approaching the toll booth.

Further, an accident reconstruction, performed by Pennsylvania State

Trooper Dennis Simms, established that Appellant failed to stay in a single

lane as he approached the toll booth and was traveling at a speed of fifty-

seven to seventy-four miles per hour when he hit the concrete barrier.

Appellant was ultimately charged with homicide by vehicle, 2 involuntary

manslaughter,3 two counts of recklessly endangering another person,4




2
    75 Pa.C.S. § 3732(a).
3
    18 Pa.C.S. § 2504(a).
4
  18 Pa.C.S. § 2705. Appellant was charged with two counts of reckless
endangerment: one for the decedent, Danial Murphy, and one for the toll
collector on duty, Robert George.



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disregarding a traffic control device,5 driving on roadways laned for traffic,6

driving at an unsafe speed,7 careless driving,8 and reckless driving.9

        Appellant was scheduled for trial on March 2, 2015. After arriving over

fifty minutes late on that date, Appellant admitted that he had ingested two

Tylenol-with-codeine      tablets   about   an   hour   prior.    However,    upon

questioning from the trial court, Appellant indicated that he understood the

proceedings and could intelligently respond to questions.         N.T., 3/2/15, at

22-23.     Thus, the trial court concluded that any medication Appellant

ingested did not impair his ability to understand the proceedings and the

court proceeded with jury selection. Id.

        After jury selection was complete, but prior to the start of trial,

Appellant indicated that he wanted to forgo trial and was instead willing to

plead “no contest” to all charges. Id. at 25-26.

        In light of Appellant’s prior record score,10 the trial court stated that an

aggregate sentence of four-and-one-half to nine years’ imprisonment,




5
    75 Pa.C.S. § 3111(a).
6
    75 Pa.C.S. § 3309.
7
    75 Pa.C.S. § 3361.
8
    75 Pa.C.S. § 3714(a).
9
    75 Pa.C.S. § 3736(a).




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representing the statutory maximum sentence, was intended.11            At first,

Appellant’s counsel suggested that Appellant might not be amenable to

plead to the statutory maximum sentence, but ultimately Appellant agreed

in both a written and oral nolo contendere plea colloquy. Id. at 28-30; 45-

47. Particularly pertinent here, Appellant also indicated in his written plea

colloquy “that he did not have a mental health history, the medication he

was taking did not affect his thinking or free will, and he had not imbibed

any narcotics or alcohol within the previous forty-eight hours.” Trial Ct. Op.

at 7.

        Further, during the trial court’s thorough oral plea colloquy, Appellant

stated that he understood and accepted his sentence, and that he was able

to understand the proceedings regardless of any medication he may have

taken:

           THE COURT: And, as I told you earlier, the agreement on
           sentencing-that the sentences for homicide by vehicle and
           recklessly endangering another person with respect to
           Robert George will run consecutive to each other which
           means they will be added one to the other for an

10
  Appellant had a prior record score of “RFEL” which is for offenders who
have previous convictions or adjudications for Felony 1 or Felony 2 offenses
which total six or more in the prior record. Trial Ct. Op., 10/8/15, at 5, n. 3.
11
   Prior to stating the intention to sentence Appellant to the statutory
maximum, the trial court reviewed the guideline calculations for each charge
and discussed that several charges would merge for sentencing purposes.
The court noted that for homicide by motor vehicle, a standard range
sentence would have been twenty-seven months to forty months’
imprisonment, and for reckless endangerment a standard range sentence
would, have been twelve to eighteen months’ imprisionment.



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       aggregate sentence of 4 and a half years to 9 years in a
       State Correctional Institution; do you understand that?

       [Appellant]: Yes, sir.

       THE COURT: And you agree to that sentence?

       [Appellant]: Yes, sir.

       [THE COURT]: As part of the sentencing agreement and
       discharging of the jury, you have also agreed that you will
       waive all rights to appeal this sentence directly to the
       Pennsylvania Superior Court and you will waive all rights to
       ask me for reconsideration of sentence once the sentence
       is imposed today; is that correct sir?

       [Appellant]: Yes, sir.

       THE COURT: Before approving or accepting your plea of
       nolo contendere I must be certain that your plea is
       knowing, intelligent and voluntary, that you know what
       rights you have and what rights you are giving up by
       pleading guilty and, finally, that it is your own decision.

       [Appellant]: Yes, sir.

       THE COURT: I will go over those rights with you now. If
       there’s anything you do not understand, please stop me. I
       will explain it further and, if necessary, give you an
       opportunity to discuss it with [your counsel]; do you
       understand that, sir?

       [Appellant]: Yes.

       THE COURT: First of all, are you under the care of any
       doctor for any type of mental or emotional disability?

       [Appellant]: None.

       THE COURT: Are you able to understand everything that I
       am saying today?

       MR. GAWNE: Yes.



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        THE COURT: Because I understand that there was some
        question earlier in the day, you said that you took two pills
        of Tylenol with codeine at 8:30 a.m. and you believe that
        those pills affected your ability to understand the
        proceeding today. You did say that earlier, correct?

        [Appellant]: Yes, sir.

        THE COURT: But based upon the answers that you
        provided me and the colloquy that we had, I determined
        that you are able to understand everything that I was
        saying at that point. So I will ask you now, sir, is there
        anything, anything, the medication that you took, anything
        that is preventing you from understanding what I am
        saying here today?

        [Appellant]: No, sir.

        THE COURT: You are able to understand everything that I
        am saying?

        [Appellant]: Yes, sir.

        THE COURT: You’re sure?

        [Appellant]: Positive.

        THE COURT: 100 percent?

        [Appellant]: 100 percent.

        THE COURT: There’s no doubt in your mind?

        [Appellant]: No.

N.T. at 47-50.

     Appellant further indicated that he understood the process of pleading

nolo contendere because he had done so previously in another criminal

matter. Id. at 51-52. Appellant’s trial counsel also opined that Appellant

understood the consequences of his plea.       Id. at 52-53.     Finding that


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Appellant’s nolo contendere plea was made knowingly, voluntarily, and

intelligently, the trial court accepted the plea and immediately sentenced

Appellant, who had waived his right to a pre-sentence investigation, as

agreed.

      Ten days later, on March 12, 2015, Appellant filed a motion to

withdraw his nolo contendere plea, alleging that his use of codeine precluded

him from entering a “voluntary, knowing, and intelligent” plea. Further, on

April 16, 2015, Appellant filed a supplemental motion, which included claims

that he had ingested benzodiazepine tablets and alcohol within twelve hours

before entering his plea.   Appellant also claimed that a prior, undisclosed

psychiatric history affected his ability to tender a knowing, voluntary, and

intelligent plea.    Appellant requested an evidentiary hearing to present

evidence, not of record, regarding his claims. On June 24, 2015, the trial

court denied both Appellant’s request for a hearing and his request to

withdraw his plea.

      Appellant filed a notice of appeal and a timely Pa.R.A.P. 1925(b)

statement.    The trial court filed a responsive Pa.R.A.P 1925(a) opinion.

Appellant presents two issues for review:12

          Whether [Appellant’s] pleas were knowing, intelligent, and
          voluntary where he pled to the entire information including
          summary offenses, accepted the statutory maximum

12
   As discussed below, Appellant failed to raise his first issue in his Rule
1925(b) statement. Further, Appellant raises two issues in his Rule 1925(b)
statement that he has abandoned in his appellate brief.



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         prison terms to run consecutively,          and   waived   all
         meaningful avenues of review[?]

         Whether the totality of the circumstances dictate that a
         hearing should have been convened to address the factual
         matters raised by [Appellant’s] petition not currently of
         record[?]

Appellant’s Brief at 4.

      For his first issue, Appellant argues that the trial court erred by

denying his petition to withdraw his nolo contendere plea where his

“extensive psychiatric background” and the cocktail of “benzodiazepine,

opiates and alcohol” in his system would have rendered him “incapable of

making a plea knowingly, intelligently, and voluntarily.” Id. at 10. Further,

he contends that his willingness to accept a maximum sentence, outside of

the standard range, indicates that he was not in his “right mind” when he

plead nolo contendere.    Id. at 13. No relief is due.

       We begin by noting, “[a]ppellate review of a nolo contendere plea is

treated in the same fashion as is a guilty plea.” Commonwealth v.

Jackson, 569 A.2d 964, 965 n.1 (Pa. Super. 1990) (citation omitted).      In

the context of the withdrawal of a guilty plea or nolo contendere plea, we

consider the following:

         Withdrawal of a guilty plea after sentencing will only be
         permitted in this Commonwealth upon a showing of
         prejudice amounting to manifest injustice. Such a rule
         prevents potential abuse of the plea as a sentence testing
         device. A plea rises to the level of manifest injustice when
         it is entered into involuntarily, without understanding the
         nature of the charges, without knowledge of the factual
         basis of the charges, because of threats or coercion,


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         because the prosecutor did not recommend a plea-
         bargained sentence, because the bargained-for sentence
         was not imposed, or because an accused proclaims his
         innocence. An on-the-record inquiry is required to insure
         that the accused understands the crimes with which he is
         charged and the rights which are waived.

Id. at 966 (citations omitted).

      The comment to Pennsylvania Rule of Criminal Procedure 590 provides

the following specific areas of inquiry for an on-the-record plea colloquy:

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

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

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

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

         (5)   Is the defendant aware of the permissible ranges of
               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?


Pa.R.Crim.P. 590 cmt.

      Our Court has specifically held that the mere fact that a defendant was

under the influence of a controlled substance at the time of his plea does not

entitle him to withdraw such plea after sentencing. See Jackson, 569 A.2d

at 966 (holding that although defendant was under the influence of

medication at the time of his nolo contendere plea, he was not permitted to



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withdraw his plea where he responded to all plea colloquy questions

appropriately and thus demonstrated his understanding of the proceedings);

Commonwealth v. Hazen, 462 A.2d 732, 735 (Pa. Super. 1983) (holding

that the defendant, who was under the influence of a tranquilizing drug at

the time of his guilty plea, was not entitled to withdraw his plea where

defendant’s counsel opined that he was competent and trial court found that

he cogently participated in a lengthy plea colloquy).

      As a prefatory matter, we note that the trial court found Appellant’s

first issue to be waived due to his failure to include it in his Rule 1925(b)

statement.    We agree.      It is axiomatic that issues not included in a

petitoner’s Rule 1925(b) statement are waived.      Pa.R.A.P. 1925(b)(4)(vii);

Commonwealth v. Dozier, 99 A.3d 106, 110 (Pa. Super.), appeal denied,

104 A.3d 523 (Pa. 2014) (petitioner’s issues waived for failure to present

them in his Rule 1925(b) statement). Accordingly, Appellant’s first issue on

appeal is waived.

      However, we note that the trial court determined that even had

Appellant included his first issue in his 1925(b) statement, it would have

failed for lack of merit.   Once again, we agree.   Appellant argues that his

nolo contendere plea was not knowingly, intelligently, or voluntarily entered

because he was under the influence of medication and alcohol at the time of

his plea. However, Appellant’s intelligent and coherent answers during the

trial court’s thorough plea colloquy belie that contention.   In both Jackson



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and Hazen, this Court concluded that when a defendant appropriately and

coherently participates in an oral plea colloquy, his plea will be considered to

be knowing, voluntary, and intelligent, even if the petitioner is under the

influence of a substance at the time.    Jackson, 569 A.2d at 966; Hazen,

462 A.2d at 735. Likewise, we instantly conclude that Appellant knowingly,

voluntarily, and intelligently entered into his nolo contendere plea because

he appropriately participated in his plea colloquy and his own trial counsel

opined that he was competent.         Thus, the trial court properly denied

Appellant’s motion to withdraw his plea post-sentencing.

      In his second issue, Appellant avers that the trial court erred by

denying his request for an evidentiary hearing regarding his petition to

withdraw his nolo contendere plea.      Specifically, Appellant asserts that he

would have presented evidence of his “extensive psychiatric background”

and diminished capacity due to the influence of controlled substances.

Appellant’s Brief at 8-10. Our review reveals no basis to disturb the trial

court’s ruling.

      It is well settled that defendants are bound by their responses during

an on-the-record plea colloquy:

         Once a defendant has entered a plea of guilty, it is
         presumed that he was aware of what he was doing, and
         the burden of proving involuntariness is upon him.
         Therefore, 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. A defendant is bound by the statements


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         he makes during his plea colloquy, and may not
         assert grounds for withdrawing the plea that
         contradict statements made when he pled.

Commonwealth v. Stork, 737 A.2d 789, 790-91 (Pa. Super. 1999)

(quotation marks and citations omitted) (emphasis added) (holding that a

hearing on petitioner’s post-sentence motion to withdraw his plea of nolo

contendere was not necessary where facts, not of record, alleged by

petitioner contradicted his own assertions made in his plea colloquy).

      In regards to hearings on post-sentence motions, Pennsylvania Rule of

Criminal Procedure 720 provides that the trial court shall “determine

whether a hearing or argument on the motion is required.”         Pa.R.Crim.P.

720(B)(2)(b). Thus, the decision to grant a hearing on a motion to withdraw

a nolo contendere plea is left to the discretion of the trial court. Id. at 791.

Also, this Court has held that while a hearing should be granted in

“borderline cases,” not every claim that a plea was improperly induced

requires a hearing. Id.

      Instantly, during his plea colloquy, Appellant stated that he could

understand “100 percent” of the proceeding, regardless of any medication he

may have taken. He also indicated that he was not under a doctor’s care for

any mental or emotional disability.    Appellant is bound by his statements

during his plea colloquy and cannot present evidence in contradiction thereof

in a bid to withdraw his plea. See id. at 790. Accordingly, any evidence

Appellant could have presented to the contrary was inapposite and the trial



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court did not abuse its discretion by declining to grant Appellant’s request for

an evidentiary hearing to present such evidence and his second issue on

appeal also must fail.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 5/11/2016




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