J-S60044-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA               IN THE SUPERIOR COURT OF
                                                 PENNSYLVANIA


                  v.

KENNETH WANAMAKER JR.

                       Appellant                No. 1484 EDA 2015


         Appeal from the Judgment of Sentence April 17, 2015
         In the Court of Common Pleas of Northampton County
          Criminal Division at No(s): CP-48-CR-0001141-2015
_____________________________________________________________

COMMONWEALTH OF PENNSYLVANIA               IN THE SUPERIOR COURT OF
                                                 PENNSYLVANIA


                  v.

KENNETH WANAMAKER JR.

                       Appellant                No. 1493 EDA 2015


          Appeal from the Judgment of Sentence April 17, 2015
          In the Court of Common Pleas of Northampton County
           Criminal Division at No(s): CP-48-CR-0002466-2014


BEFORE: BENDER, P.J.E., LAZARUS, J., and OTT, J.

MEMORANDUM BY OTT, J.:                     FILED NOVEMBER 02, 2015

     Kenneth Wanamaker, Jr. appeals from the judgment of sentence

entered on April 17, 2015, in the Court of Common Pleas of Northampton

County, following his negotiated guilty plea to one count of recklessly
J-S60044-15



endangering another person (REAP) and one count of false swearing.1            In

this timely appeal, Wanamaker claims his plea was involuntary because he

was not properly apprised of the nature and elements of the charges against

him, and the court erred in denying his post-sentence request to withdraw

his plea.    Following a thorough review of the submissions by the parties,

relevant law, and the certified record, we affirm.

        We begin by noting that:

        When reviewing a trial court's denial of a motion to withdraw a
        plea of [guilty], we will not disturb the court's decision absent an
        abuse of discretion.

Commonwealth v. Lewis, 791 A.2d 1227, 1232 (Pa. Super. 1992)

(quotations and citation omitted).

        Additionally,

        An attempt to withdraw a plea of guilty after sentencing will only
        be granted where the defendant is able to show that his plea
        was the result of manifest injustice. Pa.R.Crim.P. 321;
        Commonwealth v. Refile, 353 Pa. Super. 190, 509 A.2d 400
        (1986), alloc. denied, 518 Pa. 655, 544 A.2d 1342 (1988). To
        establish manifest injustice, [a defendant] must show that his
        plea was involuntary or was given without knowledge of the
        charge. Commonwealth v. Fenton, 388 Pa. Super. 538, 566
        A.2d 260 (1989).

Commonwealth v. Holbrook, 629 A.2d 154, 158 (Pa. Super. 1993).

        The underlying facts of this case are quite detailed and have been

gleaned from a variety of documents found in the certified record.             On

____________________________________________


1
    18 Pa.C.S. §§ 2705 and 4903(a)(1), respectively.



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February 26, 2014, R.W., Wanamaker’s five-year old daughter, was taken to

see Dr. Ryan McGuire, DDS. The state of R.W.’s mouth was extreme. R.W.,

an otherwise healthy child, had 20 teeth, 16 of which needed some form of

treatment.     Findings of Fact (FF) #10.2        Ultimately, seven of R.W.’s teeth

were extracted; three root canals and five pulpectomies were performed. FF

#11. Three teeth were abscessed, two of those having nothing left of the

tooth except the root tip. FF #12. In two teeth, the infection had spread

outside of the tooth, leading to bone decay.            FF #13.     Dr. McGuire was

concerned the oral disease could lead to systemic infection, affecting other

organ systems. FF #9. In addition to the above problems, an expert report

authored by Dr. McGuire noted that upon her first visit, R.W. suffered from

severe early childhood caries3 and multiple draining abscesses were

visualized.    See Report, 11/24/2014, at 2.         The report noted that Jessica

Hoffman,4 who brought R.W. to the dentist, was informed of the serious

nature of the problems as well as the significant dangers if treatment was

not administered.       Id. at 2-3.     These risks included “disease progression,

pain, localized and systemic infections, loss of function (e.g., the inability to

chew,     speak   and    smile),    and    hospitalization   with   administration   of
____________________________________________


2
 All findings of fact are taken from the Opinion Sur Omnibus Pretrial
Motions, 2/5/2015, McFadden, J.
3
    Caries is the microbial destruction or necrosis of teeth.
4
    Hoffman is Wanamaker’s paramour and R.W.’s mother.



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intravenous antibiotics.       Ms. Hoffman was also informed that there have

been several reported cases of death due to untreated dental decay.” Id. at

3. Surgical intervention for R.W. was scheduled for March, but cancelled by

her parents. A second visit in June, 2014, revealed disease progression. At

this time, the case was reported to the proper authorities.

        Wanamaker and Hoffman were both charged with endangering the

welfare of a child (EWOC) as a first-degree misdemeanor.               Given the

ongoing nature of neglect, the charge was amended to a third-degree felony.

A condition of Wanamaker’s bail was that he attend inpatient rehabilitation.5

However, the trial court became aware that Wanamaker might not have

fulfilled that obligation.     To investigate that possibility, a bail revocation

hearing was held. At that hearing, Wanamaker testified he had appeared at

the White Deer Run rehabilitation facility for inpatient treatment and had

paid for inpatient treatment. See N.T. Bail Revocation Hearing, 12/9/2014.

However, that testimony was demonstrably false.           At the end of the bail

revocation hearing, Wanamaker and the court were informed that the

Commonwealth would be investigating the feasibility of bringing perjury

charges based upon “the shear level of misrepresentations that have been

stated.” Id. at 58.      The certified record further reflects that sometime prior

to a February 20, 2015 pre-trial conference, each defendant was given an


____________________________________________


5
    This appears to be drug and/or alcohol rehabilitation.



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offer to plead to a single count of REAP, and both defendants had declined

the offer.      See N.T. Pre-Trial Conference, 2/20/2015, at 17.             At a

subsequent pre-trial conference held on March 19, 2015, Wanamaker

indicated he would accept the offer to pled to a single count of REAP, but

Hoffman would not.          See N.T. Pre-Trial Conference, 3/19/2015, at 8.

Another pre-trial conference was scheduled for April 17, 2015, at which time

Wanamaker accepted the plea offer, now also including an agreement to

plead guilty to false swearing.6        Following an oral colloquy, but no written

plea agreement, the plea was accepted by the trial court and Wanamaker

received an aggregate sentence of 38 days to 18 months’ incarceration to be

followed by months of probation.               Wanamaker was immediately paroled.

Five days later, Wanamaker filed a motion to withdraw his guilty plea,

claiming manifest injustice in that the nature of the charges was not

explained to him.7
____________________________________________


6
 The certified record does not indicate the disposition of the charges against
Hoffman.
7
    The elements of each crime Wanamaker pled guilty are:

        A person commits a misdemeanor of the second degree if he
        recklessly engages in conduct which places or may place another
        person in danger of death or serious bodily injury.

18 Pa.C.S. § 2705.

        (a) False swearing in official matters.--A person who makes a
        false statement under oath or equivalent affirmation, or swears
        or affirms the truth of such a statement previously made, when
(Footnote Continued Next Page)


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      We begin by noting,

      A guilty plea is not a ceremony of innocence, it is an occasion
      where one offers a confession of guilt. If a defendant voluntarily,
      knowingly, and intelligently wishes to acknowledge facts that in
      themselves constitute an offense, that acknowledgement is
      independent of the procedures of proving or refuting them. How
      they would be proved, what burdens accompany their proof,
      what privileges exist to avoid their proof, what safeguards exist
      to determine their accuracy, and under what rules they would be
      determined, by whom and how, are irrelevant. The defendant is
      before the court to acknowledge facts that he is instructed
      constitute a crime. He is not there to gauge the likelihood of
      their proof, nor to weigh them in the light of the available
      procedures for their proof. He is there to voluntarily say what he
      knows occurred, whether the Commonwealth would prove them
      or not, and that he will accept their legal meaning and their legal
      consequence.

Commonwealth v. Watson, 835 A.2d 786, 797 (Pa. Super. 2008), quoting

Commonwealth v. Anthony, 475 A.2d 1303, 1307-08 (Pa. 1984).

      “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.

Reid, 117 A.3d 777, 782 (Pa. Super. 2015).           Additionally, “even though


                       _______________________
(Footnote Continued)

      he does not believe the statement to be true is guilty of a
      misdemeanor of the second degree if:

          (1) the falsification occurs in an official proceeding.

18 Pa.C.S. § 4903(a)(1).




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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 his plea and that he knowingly and voluntarily decided to

enter the plea.” Commonwealth v. Fluharty, 632 A.2d 312, 315 (Pa.

Super. 1993). Finally,

      [t]o determine a defendant's actual knowledge of the
      implications and rights associated with a guilty plea, a court is
      free to consider the totality of the circumstances surrounding the
      plea. The concept of examining the totality of the circumstances
      surrounding a plea in order to determine whether a plea was
      voluntarily, knowingly, and intelligently entered, is well
      established. See, e.g. Commonwealth v. Schultz, 505 Pa.
      188, 192, 477 A.2d 1328, 13330 (1984), (on direct appeal from
      denial of a motion to withdraw a guilty plea, this Court held that,
      in determining whether a guilty plea has been voluntarily,
      knowingly and intelligently entered, courts look to the totality of
      the circumstances surrounding the plea). Indeed, as the law
      makes clear, a trial court may consider a wide array of relevant
      evidence under this standard in order to determine the validity
      of a claim and plea agreement including, but not limited to,
      transcripts    from      other      proceedings,     off-the-record
      communications with counsel, and written plea agreements.

Commonwealth v. Allen, 732 A.2d 582, 588-89 (Pa. 1999).

      Wanamaker claims herein that his plea was invalid because he was not

made aware of the elements of the crimes to which he pled guilty. If true,

this would represent a failure to meet the first area of the guilty plea

colloquy.   See Reid, supra.      Facially, Wanamaker is correct.      However,

even though the oral colloquy does not delve into the nature of the two

crimes to which he pled guilty, Wanamaker’s knowledge of these crimes is



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amply demonstrated by examination of the totality of the circumstances and

our review of the certified record.

       First, the underlying facts supporting guilt to both crimes were set

forth, sparingly, in open court and agreed to by Wanamaker.                See N.T.

Guilty Plea, 4/17/2015, at 6-7.8 However, far more detailed accounts of the

failure to provide appropriate medical care to his daughter are found

throughout the certified record and were the subject of contention between

Wanamaker and the Commonwealth. See e.g. Motion to Quash, 11/7/2014,

including    verification   signed    by       Wanamaker,   11/6/2014.   Accordingly,

Wanamaker was clearly aware of the actions, and failures to act, that

supported EWOC.

       Second, the guilty plea colloquy demonstrates that Wanamaker knew

that the charges he was pleading guilty to represented lesser charges than

the EWOC (F3) and perjury charges he originally faced.9             See N.T. Guilty

Plea, 4/17/2015, at 2-4.           Wanamaker also acknowledged he had fully

discussed possible defenses and strategies to the lesser charges. In

____________________________________________


8
 Specifically, Wanamaker was informed: “February 25, 2014, the Defendant
had failed to provide adequate medical attention for his daughter, thereby
causing serious dental decay which endangered her health and welfare to a
serious degree.” In addition, “The Defendant did appear in an official
proceeding under oath making statements that he believes to be false.”
9
 The only difference between perjury and false swearing is that it must be a
material misstatement to support perjury.




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acknowledging this, Wanamaker thanked not only his counsel, but the

County as well. Id. at 5-6. Logically, Wanamaker could not have discussed

defenses and strategies to crimes he knew nothing about.               Additionally,

there would be no reason to thank the prosecution if he had not understood

the nature of the plea he had accepted.

       Third, the record reveals that at least twice prior to the April 17, 2015,

guilty plea, Wanamaker considered pleading guilty to REAP. See N.T. Pre-

Trial Conference, 2/20/2015; 3/19/2015. At the March 19, 2015, pre-trial

conference, Wanamaker indicated he would accept the offer to plead guilty

to REAP.10 Wanamaker’s current contention would have us believe that he

was contemplating the offer to plead guilty to REAP for at least two months,

was willing to accept the plea one month before he did, but did not

comprehend the nature of the charge despite his sworn statement at the

guilty plea that he had discussed defenses and strategies with his counsel.

       Because     the    certified   record   supports   the   determination   that

Wanamaker was fully aware of the nature of the crimes to which he was

pleading, the trial court committed no abuse of discretion in denying him

leave to withdraw his guilty plea post-sentence.




____________________________________________


10
  At that time, the plea offer from the Commonwealth was contingent upon
both defendants accepting the offers. Hoffman was unwilling at that time,
so Wanamaker’s plea was not accepted.



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      Although the oral guilty plea colloquy was incomplete and no written

guilty plea colloquy was executed, we are affirming judgment of sentence

and denying Wanamaker relief. But for the record of the extensive pre-trial

litigation of central issues in this matter, and evidence of continuing plea

agreement negotiations in the months prior to the entry of the guilty plea,

we would have been constrained to allow the withdrawal of this guilty plea.

      We urge the trial court, the Commonwealth and defense counsel to

make use of a written guilty plea colloquy form and to conduct a complete

oral guilty plea colloquy.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/2/2015




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