J-A18040-16

*Former Justice specially assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

KENNY ROBERT SANDS,

Appellant No. 1829 MDA 2015

Appeal from the Judgment of Sentence September 9, 2015

In the Court of Common Pleas of Wyoming County

Criminal Division at No(s): CP-66-CR-0000146-2015

CP-66-CR-0000221-2014

CP-66-CR-0000356-2014

BEFORE: FORD ELLIOTT, P.J.E., BENDER, P.J.E., and STEVENS, P.J.E.1*

MEMORANDUM BY STEVENS, P.J.E.: FILED SEPTEMBER 07, 2016

Appellant Kenny Robert Sands appeals from the judgment of sentence 

entered in the Court of Common Pleas of Wyoming County on September 9, 

2015, following his open guilty plea to charges filed in three, separate 

dockets. After a careful review of the record, we vacate Appellant’s guilty 

plea to driving under the influence of alcohol (“DUI”),2vacate his judgment 

of sentence and remand for further proceedings.

The trial court summarized the relevant facts herein as follows:

A criminal information was filed against [Appellant] and 

docketed to 2014-CR-221 alleging that on March 15, 2014 

[Appellant] drove under the influence of alcohol in violation of 75 

____________________________________________

1 75 Pa.C.S.A. § 3802(c).
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Pa.C.S.A. 3802(a)(1) and 75 Pa.C.S.A. 3802(c) and drove on 

roadways laned for traffic in violation of 75 Pa.C.S.A. 3309(1). 

Thereafter, another criminal information was filed against 

[Appellant] and docketed to 2014-CR-356 alleging that on 

August 23, 2014 and September 2, 2014 Defendant (1) 

manufactured, delivered or possessed with the intent to deliver 

Methamphetamine, 35 Pa.C.S.A. 13(a)(30); (2) possessed a 

controlled substance, namely Methamphetamine, 35 Pa.C.S.A. 

13(a)(16); (3) possessed drug paraphernalia, namely an empty 

packet of Sudafed, a plastic pill grinder, several cans of Lye drain 

cleaner, several cans of starting fluid, several propane cylinders, 

a plastic container of suspected Ammonium Nitrate, for the 

purpose of introducing into the human body a controlled 

substance, namely Methamphetamine, 35 Pa.C.S.A. 113(a)(2); 

and (4) recklessly endangering another person, more specifically 

in throwing a hot liquid which splashed onto Raymond Fulton 

during the process of making Methamphetamine which resulted 

in the victim suffering burns requiring hospitalization, 18 

Pa.C.S.A. 2705. Thereafter, a third criminal information was filed 

against [Appellant] and docketed to 2014-CR-146 alleging that 

on September 13, 2014 [Appellant] committed (1) criminal 

conspiracy to commit/possessing red phosphorous, etc. with 

intent to manufacture controlled substance by possessing a drug 

product or combination of drug products containing ephedrine, 

pseudoephedrine, or their salts, isomer, or salts of isomers for 

the purpose of manufacturing Methamphetamine, 18 Pa.C.S.A. 

903(a)(1) and 35 Pa.C.S.A. 113.1(a)(3); (2) possession of 

controlled substance for possessing Methamphetamine, 35 

Pa.C.S.A. 113(a)(16); and (3) possession of drug paraphernalia 

by possessing a drain opener, two boxes of Claritin-D, a 

container of salt, a digital scale, Rexall cold packs, coffee filters, 

pill ouch containers, plastic baggies and a plastic tub containing 

mason jars, for the purpose of introducing into the human body 

a controlled substance, namely, Methamphetamine, 35 Pa.C.S.A. 

113(a)(32).

On August 24, 2015 [Appellant] appeared before this 

[c]ourt for a guilty plea as it pertains to docket 2014-CR-221, 

the driving under the influence offenses.[3] At the time of the 

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3 We note that an Order of Court filed on August 7, 2015, indicates Appellant 

“no longer wishes to proceed with the negotiated plea in the above matter” 

and that the case would remain on the trial list for August 24, 2015. See

(Footnote Continued Next Page)
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guilty plea, both the attorney for the Commonwealth and 

[Appellant’s] counsel indicated to the [c]ourt that they were 

unclear as to whether the charge of 75 Pa.C.S.A. 3802(c), tier 

III was [Appellant’s] first or second offense. H.T. 8/24/15, p. 4. 

Counsel further indicated that they would "straighten that out at 

sentencing". H.T. 8/24/14 [sic], p. 5. An offer of proof was given 

by the Commonwealth which stated that on:

March 15th of last year, in Meshoppen Township, 

Wyoming County, Pennsylvania, [Appellant] did drive 

or operate a motor vehicle on a public roadway after 

imbibing a sufficient amount of alcohol such that his 

BAC or blood alcohol level was .246 percent within two 

hours of driving and this [was][Appellant’s] first or 

second offense.

H.T. 8/24/15, p. 14. Thereafter, this Court instructed [Appellant] 

as follows:

[Appellant], understand that if you were to plead not 

guilty and proceed to trial, the Commonwealth would 

need to prove beyond a reasonable doubt the elements 

of the offense [with which] you were charged. In this 

case, it's driving under the influence of alcohol, the 

elements being that you did drive or operated or were 

in the physical control of the movement of a vehicle 

after you imbibed a sufficient amount of alcohol such 

that the concentration in your blood or breath was .16 

or higher within two hours after you've drive, [sic] 

operated or been in the actual physical control of the 

movement of a vehicle. Based upon the pre-sentence 

report, it could be a tier III first offense, which is an 

ungraded misdemeanor. It has a mandatory minimum 

of seventy-two hours in prison, a maximum of six 

months in prison, a fine of not less than $1,000.00 nor 

more than $5,000.00, mandatory drug and alcohol 

treatment, and a twelve month license suspension. If 

this is your second offense, that would be tier III 

second, misdemeanor of the first degree, it's 

(Footnote Continued) _______________________

Order of Court, filed 8/7/15. The specific terms of that negotiated plea are 

not otherwise indicated in the certified record. 
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punishable by a maximum of five years in prison, a 

mandatory minimum of ninety days of prison, a fine of 

not less than $1,500.00 nor more than $10,000.00, 

mandatory drug and alcohol treatment, an eighteen 

month license suspension and a twelve month ignition 

interlock.

(emphasis added). H.T. 8/24/15, pp. 14-[1]5. The [c]ourt asked 

[Appellant] if he understood that the charge may be a tier III 

second offense, which has more severe penalties than a first 

offense and [Appellant] indicated that he did, in fact, 

understand. [Appellant] had previously pleaded guilty in cases 

2014-CR-356 and 2014-CR-146.[4] A sentencing date on all three 

dockets was scheduled and held on September 9, 2015.

Prior to sentencing [Appellant], the Commonwealth made 

an oral motion to amend the criminal information to a second 

offense DUI. H.T. 9/9/15, p. 11.[5] An objection was raised by 

[Appellant]. Id. This Court granted the Commonwealth's motion 

because Defendant had been instructed on both a first and 

second offense DUI during his guilty plea Id. Defendant was then

sentenced as follows:

2014-CR-356: Possession of a Controlled 

Substance, an ungraded felony:

Pay the cost of prosecution, pay a fine in the amount of 

$500.00, and restitution in the amount of $458.23 and 

be remanded to the Department of Corrections for 

confinement in a state institution for a period of not 

less than eighteen (18) months nor more than sixty 

(60) months and stand committed until the same is

complied with. It was further ordered that [Appellant] 

shall obtain a drug and alcohol evaluation and shall 

follow any recommended treatment plans until 

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4 Appellant does not challenge the validity of those pleas herein. 

5

Immediately prior to the Commonwealth’s motion, counsel for Appellant 

argued his belief the DUI charge should be sentenced as a first offense as it 

had been charged in the criminal information as a first offense. Rather than 

seek to withdraw Appellant’s guilty plea, counsel indicated her belief that 

“that would be most likely be an issue to be dealt with upon appeal because 

he is well aware that at the time of his guilty plea, that he was instructed it 

could be a first or second offense.” N.T. Sentencing, 9/9/15, at 7-8. 
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satisfactorily discharged and to submit himself for 

withdrawal of a sample for DNA analysis as required by 

law prior to his release from incarceration. [Appellant] 

was given credit for prior confinement in the amount of 

361 days.

2014-CR-146: Possession of a Controlled 

Substance, an ungraded misdemeanor:

Pay the cost of prosecution, pay a fine in the amount of 

$500.00, and be remanded to the Department of 

Corrections for confinement in a state institution for a 

period of not less than six (6) months nor more than 

twelve (12) months and stand committed until the 

same is complied with. It was further ordered that this 

sentence shall be served consecutive to the sentence 

imposed by the Court in docket 2014-CR-356.

2014-CR-221: DUI tier III, second offense, BAC 

.264 percent, a misdemeanor of the first degree:

Pay the cost of prosecution, pay a fine in the amount of 

$1,500.00 and be remanded to the Department of 

Corrections for confinement in a state institution for a 

period of not less than twelve (12) months nor more 

than twenty four (24) months and stand committed 

until the same is complied with. It was further ordered 

that [Appellant] shall obtain a drug and alcohol 

evaluation and shall follow all recommended treatment 

plans until satisfactorily discharged. It was further 

ordered that upon eventual restoration of [Appellant’s] 

operating privileges by the Pennsylvania Department of 

Transportation that he shall be subject to the 

requirements of Act 42 Ps-PSA 7001, et seq. The 

sentence shall be served consecutive to the sentence 

imposed by the [c]ourt for docket 2014-CR-146. It was 

further ordered that [Appellant] shall not be eligible for 

an RRI minimum sentence due to his past criminal 

record. Total aggregate sentence in the matter, thirty 

six (36) months to ninety (90) months in a state 

correctional facility.
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H.T. 9/9/15, pp. 12 -5.[6]

Trial Court Opinion, filed 12/9/15, at 1-4. 

On September 21, 2015, Appellant filed a timely “Post-Sentence 

Motion for Reconsideration of Sentence,” and the trial court denied the 

motion that day. In his post-sentence motion, Appellant argued, inter alia, 

that while he had been sentenced on the DUI charge as a tier III second 

offense, it should have been treated as a first offense as it originally had 

been charged at the time he entered his guilty plea. Appellant further 

averred the offense occurred prior to December 26, 2014, the effective date 

of the amendment to 75 Pa.C.S.A. § 3806(b) pertaining to the counting of 

prior DUI offenses for mandatory sentencing purposes; thus, he reasoned 

that the trial court’s permitting the Commonwealth to amend the criminal 

information at sentencing resulted in a sentence which violated his rights 

under the ex post facto clause of the constitution of the United States. See

Post-Sentence Motion for Reconsideration of Sentence at 1-3. 

On October 16, 2015, Appellant filed a timely notice of appeal and 

following the trial court’s Order of October 26, 2015, pursuant to Pa.R.A.P. 

1925(b), he filed his statement of errors complained of on appeal on 

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6

In its Order of Court entered on November 18, 2015, the trial court 

ordered that its sentencing order of September 9, 2015, should be amended 

to read “[t]otal aggregate sentence in this matter is thirty-six (36) months 

to ninety-six (96) months in a state correctional facility” and that it shall 

remain in full force an effect in all other respects. 
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November 16, 2015.7 On December 9, 2015, the trial court issued its 

Opinion pursuant to Pa.R.A.P. 1925(a). 

In his brief, Appellant presents the following issues for this Court’s 

review: 

ISSUE 1: 

Whether enactment of 2014 Pa.ALS 189, 2014 Pa.Laws 

189, 2013 Pa.SB 1239, 2014 Pa.ALS 189, 2014 Pa.Laws 189, 

2013 Pa.SB 1239 resulted in an illegal sentence and unlawful 

denial of a right to a jury trial where the relevant offense was 

committed prior to enactment, such that [Appellant] was subject 

to constitutional deprivations by the Commonwealth, including 

the lack of available option for jury trial on 2014-CR-221 

because the criminal information was amended to a Second 

Offense DUI only after guilty plea and on the day of sentencing. 

[Appellant] was not entitled to jury trial on First Offense DUI 

pursuant to Commonwealth v. Kerry, 2006 PA Super 233, 906 

A.2d 1237, 1239-40 (Pa.Super. 2006). See also: 

Commonwealth v. Spence, 2015 Pa.Super. Unpub.LEXIS 4568, 

*1 (Pa.Super.Ct. 2015). 

ISSUE 2: 

____________________________________________

7 We note that Appellant’s statement of errors complained of on appeal 

pursuant to Pa.R.A.P. 1925 spans six pages and includes a relatively lengthy 

and unnecessary recitation of facts which largely mirrors that which he 

presented in his post-sentence motion. Pa.R.A.P. 1925 provides that a 

concise statement shall “concisely identify each ruling or error that the 

appellant intends to challenge with sufficient detail to identify all pertinent 

issues for the judge.” Pa.R.A.P. 1925(b)(4)(ii). In addition, “[t]he 

statement should not be redundant or provide lengthy explanations as to 

any error.” Pa.R.A.P. 1925(b)(4)(iv). In the future, counsel is advised to be 

mindful of these provisions when drafting a concise statement of errors 

complained of on appeal.
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Whether the application of Article I, Section 17 of the 

Pennsylvania Constitution, which prohibits ex post facto laws and 

the Constitution of the Unites States also prohibiting ex post 

facto laws, renders the post-guilty plea amendment of the 

information illegal and thus the sentences issued in 2014-CR356; 2015-CR-1436; 2014-CR-221 illegal. 

Brief of Appellant at 4-5. 

Brief of Appellant at 4-5. 

Pa.R.Crim.P. 591(A) provides that at any time before a defendant’s 

sentence is imposed the trial court may, in its discretion, permit either upon 

motion of the defendant or direct sua sponte the withdrawal of a plea of 

guilty or nolo contendere and the substitution of a plea of not guilty. 

Pa.R.Crim.P. 591(A). See also Commonwealth v. Unangst, 71 A.3d 

1017, 1020 (Pa.Super. 2013). After a sentence has been entered, a guilty 

plea may be withdrawn only if there is a manifest injustice requiring its 

withdrawal; manifest injustice is established where a defendant did not enter 

his plea knowingly or voluntarily. Commonwealth v. Lenhoff, 796 A.2d 

338, 341 (Pa.Super. 2002). A defendant who pleads guilty waives all claims

except lack of jurisdiction, validity of the plea and legality of the sentence. 

Commonwealth v. Tareila, 895 A.2d 1266, 1267 (Pa.Super. 2006). 

Appellant’s argument in support of his claim he should be permitted to 

withdraw his guilty plea centers around the premise that the “11th hour postguilty plea amendment to the criminal information is constitutionally invalid.” 

Brief of Appellant at 8. This allegation implicates both the validity of his 

guilty plea and the legality of his sentence. 
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Initially, we note that in order to preserve an issue related to the 

guilty plea, an appellant must either “object[ ] at the sentence colloquy or 

otherwise rais[e] the issue at the sentencing hearing or through a postsentence motion.” Commonwealth v. Tareila, 895 A.2d 1266, 1270 (Pa. 

Super. 2006) (citation omitted). Where an appellant fails to challenge his 

guilty plea in the trial court, he may not do so on appeal. Commonwealth 

v. Watson, 835 A.2d 786, 791 (Pa.Super. 2003). Herein, while counsel did 

not specifically phrase his challenge in terms of his guilty plea in his postsentence motion, in response to the trial court’s allowing the Commonwealth 

to amend the criminal information at the sentencing hearing, defense 

counsel objected on the basis that Appellant had already entered a plea. 

N.T. Hearing, 9/9/15, at 11. As such, we find he has preserved a challenge 

to his guilty plea for our review. 

The law in this Commonwealth is clear that manifest injustice occurs 

when a plea of guilty is entered either involuntarily or without knowledge of 

the offense charged. Commonwealth v. Campbell, 455 A.2d 126, 128 

(Pa.Super. 1983). To be knowingly and intelligently entered, a guilty plea 

must be preceded by a colloquy which demonstrates that the accused is fully 

cognizant of the nature and elements of the offense charged. 

Commonwealth v. Moser, 921 A.2d 526, 529 (Pa.Super. 2007). The 

accused must also be informed accurately of the permissible range of the 

sentence which may be imposed for the charged offense. Failure to satisfy 
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those requirements will, in most cases, require that a defendant be 

permitted to withdraw a plea of guilty. Commonwealth v. Kulp, 476 Pa. 

358, 361, 382 A.2d 1209, 1211 (1978). 

Our Supreme Court and this Court have examined the impact of the 

dissemination of inaccurate information regarding sentencing possibilities 

upon the validity of a guilty plea. See Commonwealth v. Persinger, 532 

Pa. 317, 615 A.2d 1305 (1992); Commonwealth v. Carter, 540 Pa. 135, 

656 A.2d 463 (1995); Commonwealth v. Hodges, 789 A.2d 764 

(Pa.Super. 2002); Commonwealth v. Lenhoff, 796 A.2d 338, 341 

(Pa.Super. 2002). Specifically, in Commonwealth v. Barbosa, 819 A.2d 

81 (Pa.Super. 2003) this Court held that if a defendant had been unaware of 

or misled about the penalty to which he was subject, he must be permitted 

to withdraw his guilty plea if the lack of knowledge or mistaken belief was 

material to his decision to enter the plea. Such a determination is both fact 

and case specific. Id. at 83. 

Herein, the totality of Appellant’s written guilty plea colloquy filed on 

August 24, 2015, reads as follows:

AND NOW, August 24, 2015, comes [Appellant] being arraigned, 

and pleads Guilty to: 

Driving Under the Influence of Alcohol 75 Pa.C.S.A. 3802(c) M, 

Tier III .246 First Offense

OR

Driving Under the Influence of Alcohol 75 Pa.C.S.A. 3802(c) M-1, 

Tier III .246 Second Offense
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[Appellant] enters this plea, knowingly, intelligently and 

voluntarily.

Guilty Plea, filed 8/24/15 (emphasis in original). Despite the fact a 

statement that he entered his plea “knowingly intelligently and voluntarily” 

appears immediately above his signature, this single-page colloquy nowhere 

indicates Appellant had been aware of the various rights to which he was 

entitled or any attendant benefits of his pleading guilty. Moreover, there is 

no indication that the necessary conditions had been satisfied such that his 

offense may have been deemed a second one. As such, Appellant’s 

signature following the aforementioned language establishes only that he 

was informed on August 24, 2015, he was pleading guilty to a violation of 75 

Pa.C.S.A. 3802(c) whose grading was uncertain.

In addition, it is undisputed that Appellant tendered a plea of guilty on 

the record at the guilty plea hearing to a crime that had been charged in the 

initial criminal information as a first offense DUI, even though the trial court 

informed him his offense, hypothetically, could be graded at some 

unspecified time as either a first or second offense. Importantly, the trial 

court specified that “[based] upon the pre-sentence report, it could be a tier 

III first offense, which is an ungraded misdemeanor.” N.T. Hearing, 

8/24/15, at 14. After informing Appellant of the applicable mandatory 

minimum and maximum sentence for a first offense, the trial court 

proceeded to instruct Appellant as to the possible penalties “[i]f this is [his] 
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second offense.” Id. at 14-15 (emphasis added). Even though at the 

conclusion of the hearing the trial court indicated the PSI report had not 

been completed, its earlier words reasonably could have led Appellant to 

believe his DUI charge would be deemed a first offense thereunder 

especially in light of the fact that the order of August 7, 2015, indicates 

there at one time was a negotiated plea deal which may or may not have 

accounted for this charge as being considered a first offense. 

In light of the foregoing, both the written guilty plea and oral colloquy 

of August 24, 2015, establish merely Appellant’s awareness that his offense 

would be either a tier III first offense or a tier III second offense for 

sentencing purposes and the mandatory minimum sentences applicable to 

each; however, such knowledge is critical to informing Appellant's decision 

to plead guilty. Thus, at the time he pled guilty to DUI, Appellant had only 

an abstract appreciation of the crime with which he had been charged and 

the possible range of sentences the trial court may impose, for the trial court 

permitted the Commonwealth to amend the criminal information to make 

Appellant’s DUI a second offense only moments before it imposed its 

sentence. Hence, we find the plea negotiations were tainted at the outset 

due to counsels’ and the trial court’s incertitude regarding the severity of the 

charge to which Appellant was entering his plea. In this regard, this Court 

has observed that: 

A knowing and voluntary guilty plea must provide the 

opportunity to a defendant to assess his chances of obtaining a 
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reduced sentence as opposed to going to trial. A defendant may 

well take his chances at trial rather than entering a guilty plea if 

he is made aware that entering a guilty plea will require 

imposition of a ... mandatory minimum sentence by the court.

. . . [A] conditional statement regarding the potential 

applicability of mandatory sentencing provisions to Appellant's 

sentence is not sufficient to remedy the Commonwealth's failure 

to fully inform Appellant, prior to his guilty plea, that the 

mandatory minimum sentencing provision was being invoked in 

his case. Accordingly, Appellant's guilty plea was deficient.

Commonwealth v. Broaden, 980 A.2d 124, 130 (Pa.Super. 2009) 

(citations and footnote omitted). 

In its opinion, the trial court explains it had granted the 

Commonwealth’s motion to amend the criminal information “because 

[Appellant] had been instructed on both a first and second offense DUI 

during the guilty plea” and was made aware that the criminal information 

“could be” so amended. Trial Court Opinion, filed 12/9/15, at 3, 7. The 

court concludes that because Appellant had been instructed on the both a 

first and second offense DUI during his guilty plea, the plea was proper. Id. 

In doing so, the trial court conflates Appellant’s being conditionally 

instructed as to both a first and second offense with a voluntary and 

knowing plea to a second offense DUI. However, the issue of whether the 

DUI had been Appellant’s first or second offense was crucial, for the former 

charge is an ungraded misdemeanor and the latter constitutes a 

misdemeanor of the first degree. As such, the penalties for each crime 

vastly differ. Indeed, the trial court further indicates that based on “new 

information” revealed after the probation department’s investigation that 
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Appellant had a prior DUI out-of-state conviction, it permitted the 

Commonwealth to amend the criminal information at the time of 

sentencing.8 Trial Court Opinion, filed 12/9/15, at 6. Its own admission 

that it relied upon information not available at the time of Appellant’s guilty 

plea when permitting the Commonwealth to amend the criminal information, 

over objection, is further evidence of the lack of certainty among Appellant, 

counsel and the trial court when Appellant entered his plea to a DUI offense 

on August 24, 2015. 

For the foregoing reasons, we vacate Appellant’s guilty plea to the DUI 

charge only. However, because Appellant had pled guilty in two other 

matters for which he was sentenced consecutively along with his DUI case 

and vacating Appellant’s guilty plea and resultant sentence for DUI may 

____________________________________________

8 Both the trial court and the Commonwealth at times erroneously reference 

the procedural posture of the instant matter. For one, the trial court states 

that “following [A]ppellant’s trial, but prior to sentencing, a probation 

department investigation revealed that [A]ppellant had a prior DUI 

conviction from out of state.” Trial Court Opinion, filed 12/9/15, at 6. In 

addition, while Appellant objected to the amendment of the criminal 

information on the basis that he had entered a guilty plea, the 

Commonwealth responded that he had not yet been convicted, a position the 

trial court seemed to credit. N.T. Hearing, 9/9/15, at 11. This observation 

ignored the fact that when accepted and entered by a court, a plea of guilty 

is the equivalent of a conviction following trial because a “plea is more than 

an admission of past conduct; it is the defendant's consent that judgment of 

conviction may be entered without a trial-a waiver of his right to trial before 

a jury or a judge” Brady v. United States, 397 U.S. 742, 748, 90 S.Ct. 

1463, 1468–69, 25 L.Ed.2d 747 (1970). 
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upset the overall sentencing scheme, we vacate the entire judgment of 

sentence and remand for resentencing on the remaining charges and to 

permit Appellant to withdraw his guilty plea and proceed to trial on the DUI 

charge. See Commonwealth v. Conaway, 105 A.3d 755, 765 (Pa.Super. 

2014).9

Guilty plea to DUI vacated. Judgment of sentence vacated. Case 

remanded for further proceedings. Jurisdiction relinquished.

P.J.E. Bender joins the memorandum.

P.J.E. Ford Elliott notes dissent.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 9/7/2016

____________________________________________

9 Because we have vacated his guilty plea and judgment of sentence and 

remanded for further proceedings, we express no opinion as to whether 

Appellant’s DUI offense should be graded as a tier III, first or second 

offense.