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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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 fiftyseven to seventy-four miles per hour when he hit the concrete barrier. 

Appellant was ultimately charged with homicide by vehicle,2involuntary 

manslaughter,3two 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,7careless driving,8and 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 pleabargained 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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