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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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 fifty-
seven to seventy-four miles per hour when he hit the concrete barrier.
Appellant was ultimately charged with homicide by vehicle, 2 involuntary
manslaughter,3 two 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,7 careless driving,8 and 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 plea-
bargained 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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