Com. v. Eisaman, E.

J-S51017-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
EDWARD K. EISAMAN :
:
Appellant : No. 491 MDA 2019
Appeal from the Judgment of Sentence Entered February 26, 2019
In the Court of Common Pleas of Dauphin County
Criminal Division at No(s): CP-22-SA-0000079-2017
BEFORE: PANELLA, P.J., GANTMAN, P.J.E., and MUSMANNO, J.
MEMORANDUM BY GANTMAN, P.J.E.: FILED NOVEMBER 07, 2019
Appellant, Edward K. Eisaman, appeals from the judgment of sentence
entered in the Dauphin County Court of Common Pleas, following his guilty
plea to driving without a license at 75 Pa.C.S.A. § 1501(a). We vacate and
remand.
In its opinion, the trial court sets forth the relevant facts and procedural
history of this appeal as follows:
On March 21, 2017, Appellant…appeared before Magisterial
District Judge David H. Judy (“MDJ Judy”) and was found
guilty of Driving while Operating Privilege is Suspended or
Revoked (“Driving Under Suspension”) in violation of 75
Pa.C.S.A. § 1543 (a). Shortly thereafter, on April 5, 2017,
Appellant filed with the Dauphin County Court of Common
Pleas a Notice of Appeal from his summary conviction. On
September 18, 2017, Appellant, represented by privately-
retained counsel, appeared before the undersigned for a
Summary Appeal Hearing. At said Hearing, Appellant
withdrew his Summary Appeal, and, therefore, this [c]ourt
upheld MDJ Judy’s finding of guilt as to the Driving Under
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Suspension charge.[1]
On November 23, 2018, Appellant filed a Nunc Pro Tunc
Motion to Reinstate Summary Appeal (“Motion to
Reinstate”). In the Motion to Reinstate, Appellant conceded
that on January 25, 2017, at the time the underlying traffic
stop allegedly occurred, his license had been suspended
pursuant to an alleged February 7, 2013 violation of 75
Pa.C.S.A. § 3310(a) (Following Too Closely). Appellant
stated, however, that his Following Too Closely violation had
since been vacated and replaced with a violation of 75
Pa.C.S.A. § 3111 (Failure to Obey Traffic Control Devices).
Appellant averred that the Failure to Obey Traffic Control
Devices offense did not carry the same license suspension
that resulted from the Following Too Closely violation.
Therefore, Appellant argued that if the Following Too Closely
violation had been vacated at the time of the January 25,
2017 traffic stop, his license would not have been
suspended at the time of said traffic stop. Consequently,
Appellant requested that this [c]ourt reinstate his Summary
Appeal at the instant docket so that he could defend against
the charge of Driving Under Suspension.
On December 18, 2018, this [c]ourt issued an Order
granting Appellant’s Motion to Reinstate his Summary
Appeal. On February 26, 2019, Appellant appeared for a
second Summary Appeal Hearing…before the undersigned.
(Trial Court Opinion, filed May 23, 2019, at 1-2) (internal emphasis omitted).
During the February 26, 2019 hearing, the Commonwealth amended
Appellant’s charge to driving without a license, 75 Pa.C.S.A. § 1501(a);
Appellant did not object to the amendment. After the court permitted the
____________________________________________
1 Appellant withdrew his appeal so he could resolve the February 7, 2013
previous traffic charge that would directly affect the traffic violation charged
in this case. Specifically, the February 7, 2013 violation that gave rise to the
enhanced penalty of a license suspension was vacated on September 27,
2018, which in turn called into question the current conviction for driving
under suspension.
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Commonwealth to amend the offense, the following exchange occurred:
THE COURT: Okay. May we have [Appellant] sworn in,
please?
* * *
THE COURT: Okay. [Appellant], you now are facing an
amended citation, which is driving without a license, a
second or subsequent offense. Do you understand that?
[APPELLANT]: Yes, Your Honor.
THE COURT: To that charge how do you plead?
[APPELLANT]: Guilty.
THE COURT: I think the statutory fine is now $1,000.
* * *
THE COURT: But that was the second or subsequent
offense. Let’s take a look here, folks. They recently
amended the statute.
(N.T. Summary Appeal Hearing, 2/26/19, at 3). The Commonwealth then
read into the record the language of 75 Pa.C.S.A. § 6503(d), a recidivist
provision under the Motor Vehicle Code.
The trial court opinion continues:
Because of Appellant’s extensive driving record,1 and
because the instant matter involved a second or subsequent
Driving Without a License conviction, this [c]ourt sentenced
Appellant [on February 26, 2019,] to a $1,000 fine and
[thirty (30) to ninety (90) days’] incarceration in Dauphin
County Prison.
1 While it appears that the Commonwealth failed to
have Appellant’s Certified Driving Record entered into
the official record, said Driving Record was shown to
the [c]ourt and discussed at a sidebar conference with
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the [c]ourt in the presence of both parties’ attorneys
before Appellant entered his guilty plea. The
Appellant’s said driving record was notably rife with
numerous moving traffic violations, as well as
numerous prior convictions for Driving While Under
Suspension, plus at least one (1) prior conviction for
Driving Without A License (75 Pa.C.S.A. § 1501(a)).
(Trial Court Opinion at 2) (internal footnote omitted). Immediately following
sentencing, Appellant objected on the record as follows:
[DEFENSE COUNSEL]: Your Honor, our deal wasn’t based
on a 30-day sentence.
* * *
[DEFENSE COUNSEL]: When I talked to the District
Attorney—
THE COURT: Whoa. Whoa. You can’t make a
deal with regards to a sentence without the [c]ourt being
apprised of it and going along with it. And you never, ever
said anything about that when you came up here. So,
[c]ounsel, that is your error.
[DEFENSE COUNSEL]: Your Honor, I have never entered
into a deal with anyone that included prison time.
THE COURT: Well, you just did, right now.
[DEFENSE COUNSEL]: I was not aware—
THE COURT: If you didn't check the statute,
[c]ounsel, shame on you.
[DEFENSE COUNSEL]: I did, Your Honor.
THE COURT: Well, then you would have known
that that was part of it.
[DEFENSE COUNSEL]: Your Honor—
THE COURT: I am not going to debate it
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anymore. …
(N.T. Summary Appeal Hearing at 6).
On March 12, 2019, Appellant filed a motion for reconsideration of
sentence, requesting a more lenient sentence. Appellant filed a timely notice
of appeal on March 27, 2019. The court ordered Appellant on March 28, 2019,
to file a concise statement of errors complained of on appeal per Pa.R.A.P.
1925(b). That same day, the court denied Appellant’s reconsideration motion.
Appellant timely filed a concise statement on April 17, 2019.
Appellant raises the following issues for our review:
WHETHER THE COURT ERRED IN THAT IT DID NOT ADVISE
[APPELLANT] OF THE EXISTENCE AND APPLICABILITY OF
THE RECIDIVIST STATUTE, NAMELY 75 PA.C.S.[A.] § 6503,
PRIOR TO ACCEPTING HIS GUILTY PLEA TO A CHARGE OF
75 PA.C.S.[A.] § 1501(A) (DRIVING WITHOUT A
LICENSE)[?]
WHETHER THE COURT ERRED IN THAT IT FAILED TO GIVE
[APPELLANT] THE OPTION TO WITHDRAW HIS GUILTY PLEA
AND PROCEED TO TRIAL AFTER IT IMPOSED A HARSHER
SENTENCE THAN THE ONE NEGOTIATED BETWEEN THE
COMMONWEALTH AND [APPELLANT][?]
WHETHER THE COURT’S SENTENCE OF THIRTY (30) TO
NINETY (90) DAYS’ INCARCERATION WAS A MANIFEST
ABUSE OF DISCRETION AND WAS CONTRARY TO THE
FUNDAMENTAL NORMS WHICH UNDERLIE THE
SENTENCING PROCESS FOR A TRAFFIC VIOLATION THAT IS
A SUMMARY OFFENSE, AND AS SUCH, THE COURT ERRED
IN ISSUING SUCH A SENTENCE[?]
WHETHER THE COURT ERRED DURING SENTENCING IN
FAILING TO ADVISE [APPELLANT] OF THE RIGHT TO APPEAL
AND THE TIME LIMITS WITHIN WHICH TO EXERCISE THAT
RIGHT, THE RIGHT TO PROCEED IN FORMA PAUPERIS AND
WITH APPOINTED COUNSEL TO THE EXTENT PROVIDED IN
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PA.R.CRIM.P. 122(A), AND OF THE QUALIFIED RIGHT TO
BAIL UNDER PA.R.CRIM.P. 521(B)[?]
(Appellant’s Brief at 4).
In his first and second issues, Appellant argues the Commonwealth, the
charging officer, and Appellant reached an agreement to change the original
charge (driving while operating privilege is suspended or revoked) to drivers
required to be licensed and Appellant would plead guilty to the latter offense.
Appellant avers the amended charge was supposed to carry a fine but no
license suspension. Appellant contends the trial court accepted his guilty plea
without first advising him that the court would raise and apply the recidivist
statute in Appellant’s case and sentence him to a term of imprisonment under
75 Pa.C.S.A. § 6503. Only after Appellant entered a guilty plea to driving
without a license, did the court introduce the recidivist statute to impose a
sentence of incarceration. Appellant states the court should have advised
Appellant of the recidivist penalty before the court accepted his plea.
Appellant also maintains the court failed to give him any opportunity to
withdraw his plea and go to trial. As presented, Appellant essentially
challenges the validity of his guilty plea. Appellant concludes this Court should
vacate the judgment of sentence and guilty plea and remand for a summary
appeal hearing on the original charge, driving while operating privileges are
suspended or revoked. We agree.
“Generally, a plea of guilty amounts to a waiver of all defects and
defenses except those concerning the jurisdiction of the court, the legality of
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the sentence, and the validity of the guilty plea.” Commonwealth v.
Morrison, 173 A.3d 286, 290 (Pa.Super. 2017); Commonwealth v. Main,
6 A.3d 1026 (Pa.Super. 2010) (stating same). By entering a guilty plea the
defendant routinely waives an array of constitutional and appellate rights,
including a direct challenge to the sufficiency of the evidence, which is a non-
jurisdictional issue. See generally Commonwealth v. Lincoln, 72 A.3d
606, 610 (Pa.Super. 2013), appeal denied, 624 Pa. 688, 87 A.3d 319 (2014).
Instead, the defendant must focus his complaint on the validity of the
plea proceedings; to test the voluntariness of his guilty plea on direct appeal
the defendant must either object during the plea colloquy or file a motion to
withdraw the plea before sentencing or within ten days of sentencing. See
id. See also Pa.R.Crim.P. 591 (allowing for application to withdraw plea upon
written or oral motion of defendant at or before sentencing); Pa.R.Crim.P. 720
(allowing for post-sentence challenge to guilty plea and recommending that
challenge be presented in post-sentence motion, if not previously raised).
Absent extraordinary circumstances, the failure to employ either measure
results in waiver. Commonwealth v. Tareila, 895 A.2d 1266, 1270 n.3
(Pa.Super. 2006).
If the defendant properly preserved his opposition to the validity of the
plea process, courts 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.” Commonwealth v.
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Muhammad, 794 A.2d 378, 383-84 (Pa.Super. 2002). A guilty plea will be
deemed valid if that examination demonstrates the defendant had a full
understanding of the nature and consequences of his plea such that he
knowingly and intelligently entered the plea of his own accord.
Commonwealth v. Rush, 909 A.2d 805, 808 (Pa.Super. 2006). A defendant
is not required to “be pleased with the outcome of his decision to enter a plea
of guilty[; a]ll that is required is that his decision to plead guilty be knowingly,
voluntarily and intelligently made.” Commonwealth v. Moser, 921 A.2d
526, 528-29 (Pa.Super. 2007).
A guilty plea will be deemed valid if the totality of the circumstances
surrounding the plea shows that the defendant had a full understanding of the
nature and consequences of his plea such that he knowingly and intelligently
entered the plea of his own accord. Commonwealth v. Fluharty, 632 A.2d
312, 314-15 (Pa.Super. 1993). A defendant is presumed to be aware of what
he is doing when he enters a guilty plea, and the defendant bears the burden
to prove otherwise. Commonwealth v. Pollard, 832 A.2d 517, 523
(Pa.Super. 2003). Mere disappointment in the sentence does not constitute
the necessary “manifest injustice” to render the defendant’s guilty plea
involuntary. Id. at 522. See also Commonwealth v. Kelly, 5 A.3d 370,
377 (Pa.Super. 2010), appeal denied, 613 Pa. 643, 32 A.3d 1276 (2011)
(reiterating principle that courts discourage entry of plea as sentence-testing
device).
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The Pennsylvania Rules of Criminal Procedure mandate that 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. Commonwealth v. Hodges, 789 A.2d 764, 765 (Pa.Super.
2002) (citing Pa.R.Crim.P. 590). Specifically, the court must affirmatively
demonstrate the defendant understands: (1) the nature of the charges to
which he is pleading guilty; (2) the factual basis for the plea; (3) his right to
trial by jury; (4) the presumption of innocence; (5) the permissible ranges of
sentences and fines possible; and (6) that the judge is not bound by the terms
of the agreement unless he accepts the agreement. Commonwealth v.
Watson, 835 A.2d 786, 796-97 (Pa.Super. 2003). “Before accepting a plea
of guilty, the trial court must satisfy itself that there is a factual basis for the
plea. A factual basis for the plea is universally required.” Commonwealth
v. Stenhouse, 788 A.2d 383, 384 (Pa.Super. 2001), appeal denied, 569 Pa.
705, 805 A.2d 523 (2002) (internal citations and quotation marks omitted).
[W]hile the [Pennsylvania Supreme] Court has admonished
that a complete failure to inquire into any one of the six,
mandatory subjects generally requires reversal, ...in
determining the availability of a remedy in the event of a
deficient colloquy, it has in more recent cases moved to a
more general assessment of the knowing, voluntary, and
intelligent character of the plea, considered on the totality
of the circumstances.
Commonwealth v. Flanagan, 578 Pa. 587, 606, 854 A.2d 489, 500 (2004)
(internal citations omitted) (holding, under totality of circumstances,
defendant entered unknowing guilty plea, where trial court failed to adduce
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factual basis for plea during plea colloquy). Nevertheless, our Supreme Court
has explained it expects “compliance with the six, straightforward and
relatively modest requirements that set the baseline for a valid guilty plea
colloquy.” Id. at 612, 854 A.2d at 504.
Additionally, “nothing in [Rule 590] would preclude the use of a written
colloquy that is read, completed, signed by the defendant, and made part of
the record of the plea proceedings. This written colloquy would have to be
supplemented by some on-the-record oral examination.” Pa.R.Crim.P. 590
Comment. See also Rush, supra (holding defendant entered guilty plea
knowingly and voluntarily where he acknowledged in written colloquy that he
understood his rights to trial by jury and presumption of innocence, and he
confirmed during court’s oral examination that he signed written colloquy and
understood its contents).
On the other hand, “A defendant obviously cannot be expected to plead
intelligently without understanding the consequences of his plea. In order to
understand the consequences of his plea it is clear that a defendant must be
informed of the maximum punishment that might be imposed for his conduct.”
Commonwealth v. Persinger, 532 Pa. 317, 323, 612 A.2d 1305, 1308
(1992). See also Hodges, supra at 765 (explaining Rule 590 requires
defendant understand maximum sentence court may impose should
defendant enter guilty plea). Where a defendant’s entry of a guilty plea
implicates the application of a penalty enhancing recidivist statute,
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Pennsylvania law requires that the defendant receive notice of the possible
application of the recidivist provision before the court accepts the defendant’s
plea. Commonwealth v. Reagan, 502 A.2d 702, 707 (Pa.Super. 1985) (en
banc).
When a defendant pleads guilty rather than proceeds to
trial, however, the defendant must be advised of the
recidivist statute prior to entering his guilty plea. There is
no dispute that a plea entered without knowledge of not only
the maximum penalty which could be imposed, but also the
minimum penalty which must be imposed, would not be a
valid plea. … Therefore, although notice of the recidivist
penalty is not required prior to trial, it is required prior to a
guilty plea.
Id.
Section 1501 of the Motor Vehicle Code prohibits driving without a
license and provides penalties for doing so as follows:
§ 1501. Drivers required to be licensed
(a) General rule.—No person, except those expressly
exempted, shall drive any motor vehicle upon a highway or
public property in this Commonwealth unless the person has
a driver’s license valid under the provisions of this chapter.
* * *
(d) Penalty.—Any person violating subsection (a) is
guilty of a summary offense and shall, upon conviction, be
sentenced to pay a fine of $200, except that, if the person
charged furnishes satisfactory proof of having held a driver’s
license valid on the last day of the preceding driver’s license
period and no more than one year has elapsed from the last
date for renewal, the fine shall be $25. …
75 Pa.C.S.A. § 1501(a), (d). Under Section 1501(d), an individual convicted
of driving without a license in violation of Section 1501(a) is subject to a fine
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of either $25.00 or $200.00; there is no incarceration penalty. 75 Pa.C.S.A.
§ 1501(d). Section 6503, a recidivist provision in the Motor Vehicle Code, sets
forth enhanced penalties for repeat violations of certain provisions of the
Vehicle Code, including Section 1501(a). Section 6503 provides, in relevant
part, as follows:
§ 6503. Subsequent convictions of certain offenses
* * *
(b) Driving without a license.—Every person convicted
of a second or subsequent violation of section 1501(a)
(relating to drivers required to be licensed) within seven
years of the date of commission of the offense preceding the
offense for which sentence is to be imposed shall be
sentenced to pay a fine of not less than $200 nor more
than $1,000 or to imprisonment for not more than six
months, or both.
75 Pa.C.S.A. § 6503(b) (emphasis added). Under Section 6503(b), an
individual who violates Section 1501(a) within seven years of his last Section
1501(a) violation is subject to a penalty of: (i) a fine in the minimum amount
of $200.00 and maximum amount of $1,000.00; (ii) a term of incarceration
not to exceed six months; or (iii) both a fine in an amount of at least $200.00
and at most $1,000.00, and up to six months’ incarceration. Id. In
comparison to Section 1501(d), Section 6503(b) permits the sentencing court
to impose an increased fine and/or a term of incarceration upon a repeat
violator of Section 1501(a). 75 Pa.C.S.A. §§ 1501(a), (d), 6503(d). See also
Commonwealth v. Soboleski, 617 A.2d 1309, 1313 (Pa.Super. 1992),
appeal denied, 535 Pa. 661, 634 A.2d 224 (1993) (explaining Section 6503
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constitutes penalty enhancing recidivist provision; defendant must be made
aware of potential application of recidivist provision before entering guilty
plea, pursuant to Reagan, supra; but declining to apply Reagan where
defendant’s sentence under Section 6503 arose following a trial conviction,
not after a guilty plea).
Instantly, Appellant’s past driving record is not part of the certified
record, but he does not dispute his driving record included a previous
conviction for driving without a license per Section 1501(a). On February 26,
2019, after the court permitted the Commonwealth to amend the sole charge
against Appellant to driving without a license per Section 1501(a), Appellant
entered a guilty plea to that offense. The court then requested the
Commonwealth to read into the record the applicable recidivist statute; the
Commonwealth complied and recited Section 6503(d). During the same
hearing, the court applied Section 6503(d) to sentence Appellant to 30 to 90
days’ incarceration, plus a fine in the amount of $1,000.00. Appellant
objected on the record to the proceedings and sentence on the grounds that
he was not informed he would be subject to a term of incarceration if he
entered the guilty plea.
The record demonstrates the trial court failed to conduct a proper plea
colloquy during the February 26, 2019 hearing. Specifically, Appellant
received no notice he would face an enhanced penalty under Section 6503(d),
in the form of an increased fine and/or incarceration, before the court accepted
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his guilty plea to driving without a license. See Persinger, supra; Reagan,
supra; Soboleski, supra. The court also failed to ensure Appellant
understood: the nature of the driving without a license charge; the factual
basis of his plea; his right to a jury trial; the presumption of innocence; and
that the court was not bound by the terms of any plea agreement. See
Flanagan, supra; Persinger, supra. The only question the court asked
Appellant was whether he wished to enter a guilty plea to the amended offense
of driving without a license. See Hodges, supra. Also, the record contains
no written guilty plea colloquy. Thus, we conclude Appellant’s guilty plea
process was fatally flawed. See Flanagan, supra. When Appellant objected,
the court declined to entertain any argument, swiftly concluded the hearing,
and effectively precluded him from objecting to the process further or moving
to withdraw his plea. See Commonwealth v. Marizzaldi, 814 A.2d 249,
252 (Pa.Super. 2002) (explaining Pa.R.Crim.P. 720(D) barred defendant from
filing post-sentence motions, where defendant was convicted of summary
offense and received incarceration sentence). The best resolution of this case
is to restore the parties to their respective positions before the February 26,
2019 hearing. Accordingly, we vacate the judgment of sentence and remand
for a summary appeal hearing on the original charge. Due to our disposition,
we decline to address Appellant’s remaining issues on appeal.
Judgment of sentence vacated; case remanded with instructions.
Jurisdiction is relinquished.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/07/2019
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