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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 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). 
J-S29009-15 

- 2 - 

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 
J-S29009-15 

- 3 - 

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 
J-S29009-15 

- 4 - 

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.”). 
J-S29009-15 

- 5 - 

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 
J-S29009-15 

- 6 - 

Date: 7/14/2015