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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee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, 20 14 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 ju dgment of sentence entered January 27, 2014, by the Honorable Joseph K. Williams, III, in the Court of Common Pleas of Allegheny Coun ty. After careful review, we affirm in part, vacate in part, and remand for f urther proceedings. On January 27, 2014, Gibson entered a guilty plea to tampering with or fabricating physical evidence 1 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 6 0 days’ confinement, with immediate parole, followed by one-year probati on. The court imposed

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* Retired Senior Judge assigned to the Superior Cour t. 1 18 Pa.C.S.A. § 4910(1). 2 75 Pa.C.S.A. § 1543(a).J-S29009-15

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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 o ur review.

Did the trial court abuse its discretion when it de nied Mr. Gibson’s post-sentence motion requesting to withdra w his guilty plea at CC 2013-14833, as it was not knowingly, vol untarily, 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 e ntry of guilty pleas as sentence-testing devices. A defenda nt must demonstrate that manifest injustice would resu lt 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 whet her a plea is valid, the court must examine the totality of circumstances surrounding the plea. A deficient ple a 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, volun tarily and intelligently entered. [A] manifest injustice o ccurs when a plea is not tendered knowingly, intelligently, volu ntarily, and understandingly. The Pennsylvania Rules of Criminal Procedure mandate pleas be taken in open court and require th e court to conduct an on-the-record colloquy to ascertain whet her a defendant is aware of his rights and the consequenc es of his plea. Under [Pa.R.Crim.P.]Rule 590, the court shoul d confirm, inter alia, that a defendant understands: (1) the nature of th e charges to which he is pleading guilty; (2) the fac tual 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 pe rmissibleJ-S29009-15

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ranges of sentences and fines possible; and (6) the court is not bound by the terms of the agreement unless the cour t accepts the plea. The reviewing Court will evaluate the ade quacy of the plea colloquy and the voluntariness of the resultin g plea by examining the totality of the circumstances surroun ding the entry of that plea. Pennsylvania law presumes a def endant who entered a guilty plea was aware of what he was doin g, 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 cita tions omitted). Instantly, Gibson’s challenge to the voluntariness of his guilty plea is narrow, in that he alleges only that “he was unawar e that his guilty plea included a plea to Driving While Operating Privileg e 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 assis tant 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 exp lanation of the elements of these crimes. Consequently, there is no indicat ion that Gibson understood the nature of the charges to which he wa s 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 t hat our review of the written guilty plea form answered and signed by Gib son does not indicate the crimes to which Gibson is pleading guilty, nor does the written colloquyJ-S29009-15

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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 fo rth in Pa.R.Crim.P. Rule 590, discussed below, the colloquy in the instant c ase was clearly deficient. The trial court simply failed to inform Gibson of t he nature of the charges against him or explain the elements of those crimes , and there is no evidence to suggest that Gibson was otherwise provi ded this necessary information. 3 As the totality of the circumstances here suggest s 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 po st-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 hi s plea included an admission of guilt to the crime of driving while op erating license is suspended. We disagree. At the hearing, the Commonwealth advised the cou rt that “the defendant’s license was suspended at the time” he was observed “exiting a vehicle” immediately prior to his arrest. Plea Hearing, 1/2 7/14 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 sh all, upon conviction, be sentenced to pay a fine of $200.”).J-S29009-15

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Flick , 802 A.2d 620 (Pa. Super. 2002) (finding guilty pl ea colloquy inadequate where trial court did not discuss the na ture 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 p lea 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 sentenc e in part and remand for further proceedings. As Gibson challeng es his guilty plea only as it pertains to the offense of driving while operati ng privilege is suspended, we affirm his judgment of sentence for tampering wi th 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 th is memorandum. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq. ProthonotaryJ-S29009-15

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Date: 7/14/2015