J-S61004-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

ANTONIO ALBERT GENTILE

                            Appellant                 No. 899 WDA 2015


              Appeal from the Judgment of Sentence May 4, 2015
              In the Court of Common Pleas of Washington County
              Criminal Division at No(s): CP-63-CR-0000915-2014


BEFORE: PANELLA, J., LAZARUS, J., and MUSMANNO, J.

MEMORANDUM BY PANELLA, J.                      FILED SEPTEMBER 21, 2016

       Appellant, Antonio Albert Gentile, appeals from the judgment of

sentence entered after he pled guilty to one count of aggravated indecent

assault and one count of simple assault. Gentile contends that the trial court

erred in failing to grant his post-sentence motion to withdraw his guilty plea

due to omissions in the court’s oral guilty plea colloquy. After careful review,

we affirm.1


____________________________________________


1
  We note with reproval the Commonwealth’s failure either to file a brief in
response to the instant appeal or otherwise inform this Court that it did not
intend to file a response to the arguments raised in Gentile’s brief. We are
therefore constrained to remind the Commonwealth that an appellee is
required to file a brief that at minimum must contain “a summary of
argument and the complete argument for the appellee.” Commonwealth
v. Pappas, 845 A.2d 829, 835 (Pa. Super. 2004) (citing Pa.R.A.P. 2112).
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       In March 2014, the Pennsylvania State Police filed a complaint

charging Gentile with committing aggravated indecent assault and simple

assault. After a preliminary hearing, the charges were bound over for trial in

the court of common pleas. On the eve of trial, Gentile entered a plea of

guilty to the charges in exchange for a negotiated sentence. The trial court

sentenced Gentile to an aggregate term of imprisonment of two to four

years.2

       After sentencing, Gentile hired new counsel and filed a nunc pro tunc

motion to withdraw his guilty plea. The trial court denied the motion after a

hearing. This timely appeal followed.

       On appeal, Gentile presents two arguments that the trial court erred in

refusing to allow him to withdraw his guilty plea. “Our law is clear that, to be

valid, a guilty plea must be knowingly, voluntarily, and intelligently entered.”

Commonwealth v. Pollard, 832 A.2d 517, 522 (Pa. Super. 2003) (citation

omitted). “There is no absolute right to withdraw a guilty plea, and the

decision as to whether to allow a defendant to do so is a matter within the

sound discretion of the trial court.” Id. (citation omitted).

       A trial court can only grant a post-sentence motion to withdraw a

guilty plea upon a showing of prejudice that amounts to “manifest injustice.”

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


2
  The trial court also sentenced Gentile on several other unrelated matters,
including revocation of probationary sentences.



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(citation omitted). “A plea rises to the level of manifest injustice when it was

entered into involuntarily, unknowingly, or unintelligently.” Id. (citation

omitted).

      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. This
      determination is to be made by examining the totality of the
      circumstances surrounding the entry of the plea. 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 his plea and
      that he knowingly and voluntarily decided to enter the plea.

Commonwealth v. Rush, 909 A.2d 805, 808 (Pa. Super. 2006) (citation

omitted). “Our law presumes that a defendant who enters a guilty plea was

aware of what he was doing. He bears the burden of proving otherwise.” Id.

(citation omitted). This Court cannot overturn a trial court’s order denying a

motion to withdraw a guilty plea absent an abuse of discretion. See

Commonwealth v. Mobley, 581 A.2d 949, 952 (Pa. Super. 1990).

      Gentile first focuses on the trial court’s failure to provide a factual

description of the Commonwealth’s charges during the oral colloquy. In

support, he cites to, among other precedent, Commonwealth v. Tabb, 383

A.2d 849 (Pa. 1978), for the proposition that such a defect in an oral guilty

plea colloquy is enough to warrant withdrawal of the plea.

      However, Tabb is no longer an accurate statement of the law

regarding withdrawal of guilty pleas. See Commonwealth v. Schulz, 477

A.2d 1328, 1330 (Pa. 1984) (noting that previous precedent utilizing a per


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se approach had been supplanted by a totality of the circumstances

analysis). As noted above, Gentile bore the burden of establishing that his

plea was not knowing or voluntary in order to qualify for withdrawal of his

guilty plea.

      After reviewing the record before us, we cannot conclude that the trial

court abused its discretion in denying Gentile relief. Gentile completed a

written plea colloquy that detailed the rights he was surrendering.

Furthermore, he has not identified any specific aspect of the charges against

him that he did not understand, or that had an impact on his decision to

plead guilty. Cf. Commonwealth v. Flanagan, 854 A.2d 489 (Pa. 2004)

(trial court erred in refusing withdrawal of guilty plea due to failure to

elucidate the impact of the varying stories of co-defendants upon the issue

of accomplice liability). Under these circumstances, the trial court was

entitled to conclude that Gentile had failed to carry his burden of

establishing that his guilty plea was unknowing or involuntary.

      In his second argument, Gentile contends that the trial court erred in

failing to advise him of his post-sentence rights when sentencing him.

However, our review of the record indicates that the trial court implicitly

granted Gentile relief on this claim, as it held a hearing on his untimely post-

sentence motion and addressed the motion on its merits. We therefore

conclude that Gentile is entitled to no relief on this claim.

      Judgment of sentence affirmed. Jurisdiction relinquished.


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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/21/2016




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