Com. v. Wanamaker, K.

J-S60044-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
KENNETH WANAMAKER JR.
Appellant No. 1484 EDA 2015
Appeal from the Judgment of Sentence April 17, 2015
In the Court of Common Pleas of Northampton County
Criminal Division at No(s): CP-48-CR-0001141-2015
_____________________________________________________________
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
KENNETH WANAMAKER JR.
Appellant No. 1493 EDA 2015
Appeal from the Judgment of Sentence April 17, 2015
In the Court of Common Pleas of Northampton County
Criminal Division at No(s): CP-48-CR-0002466-2014
BEFORE: BENDER, P.J.E., LAZARUS, J., and OTT, J.
MEMORANDUM BY OTT, J.: FILED NOVEMBER 02, 2015
Kenneth Wanamaker, Jr. appeals from the judgment of sentence
entered on April 17, 2015, in the Court of Common Pleas of Northampton
County, following his negotiated guilty plea to one count of recklessly
J-S60044-15
endangering another person (REAP) and one count of false swearing.1 In
this timely appeal, Wanamaker claims his plea was involuntary because he
was not properly apprised of the nature and elements of the charges against
him, and the court erred in denying his post-sentence request to withdraw
his plea. Following a thorough review of the submissions by the parties,
relevant law, and the certified record, we affirm.
We begin by noting that:
When reviewing a trial court's denial of a motion to withdraw a
plea of [guilty], we will not disturb the court's decision absent an
abuse of discretion.
Commonwealth v. Lewis, 791 A.2d 1227, 1232 (Pa. Super. 1992)
(quotations and citation omitted).
Additionally,
An attempt to withdraw a plea of guilty after sentencing will only
be granted where the defendant is able to show that his plea
was the result of manifest injustice. Pa.R.Crim.P. 321;
Commonwealth v. Refile, 353 Pa. Super. 190, 509 A.2d 400(1986), alloc. denied, 518 Pa. 655, 544 A.2d 1342 (1988). To
establish manifest injustice, [a defendant] must show that his
plea was involuntary or was given without knowledge of the
charge. Commonwealth v. Fenton, 388 Pa. Super. 538, 566
A.2d 260 (1989).
Commonwealth v. Holbrook, 629 A.2d 154, 158 (Pa. Super. 1993).
The underlying facts of this case are quite detailed and have been
gleaned from a variety of documents found in the certified record. On
____________________________________________
1
18 Pa.C.S. §§ 2705 and 4903(a)(1), respectively.
-2-
J-S60044-15
February 26, 2014, R.W., Wanamaker’s five-year old daughter, was taken to
see Dr. Ryan McGuire, DDS. The state of R.W.’s mouth was extreme. R.W.,
an otherwise healthy child, had 20 teeth, 16 of which needed some form of
treatment. Findings of Fact (FF) #10.2 Ultimately, seven of R.W.’s teeth
were extracted; three root canals and five pulpectomies were performed. FF
#11. Three teeth were abscessed, two of those having nothing left of the
tooth except the root tip. FF #12. In two teeth, the infection had spread
outside of the tooth, leading to bone decay. FF #13. Dr. McGuire was
concerned the oral disease could lead to systemic infection, affecting other
organ systems. FF #9. In addition to the above problems, an expert report
authored by Dr. McGuire noted that upon her first visit, R.W. suffered from
severe early childhood caries3 and multiple draining abscesses were
visualized. See Report, 11/24/2014, at 2. The report noted that Jessica
Hoffman,4 who brought R.W. to the dentist, was informed of the serious
nature of the problems as well as the significant dangers if treatment was
not administered. Id. at 2-3. These risks included “disease progression,
pain, localized and systemic infections, loss of function (e.g., the inability to
chew, speak and smile), and hospitalization with administration of
____________________________________________
2
All findings of fact are taken from the Opinion Sur Omnibus Pretrial
Motions, 2/5/2015, McFadden, J.
3
Caries is the microbial destruction or necrosis of teeth.
4
Hoffman is Wanamaker’s paramour and R.W.’s mother.
-3-
J-S60044-15
intravenous antibiotics. Ms. Hoffman was also informed that there have
been several reported cases of death due to untreated dental decay.” Id. at
3. Surgical intervention for R.W. was scheduled for March, but cancelled by
her parents. A second visit in June, 2014, revealed disease progression. At
this time, the case was reported to the proper authorities.
Wanamaker and Hoffman were both charged with endangering the
welfare of a child (EWOC) as a first-degree misdemeanor. Given the
ongoing nature of neglect, the charge was amended to a third-degree felony.
A condition of Wanamaker’s bail was that he attend inpatient rehabilitation.5
However, the trial court became aware that Wanamaker might not have
fulfilled that obligation. To investigate that possibility, a bail revocation
hearing was held. At that hearing, Wanamaker testified he had appeared at
the White Deer Run rehabilitation facility for inpatient treatment and had
paid for inpatient treatment. See N.T. Bail Revocation Hearing, 12/9/2014.
However, that testimony was demonstrably false. At the end of the bail
revocation hearing, Wanamaker and the court were informed that the
Commonwealth would be investigating the feasibility of bringing perjury
charges based upon “the shear level of misrepresentations that have been
stated.” Id. at 58. The certified record further reflects that sometime prior
to a February 20, 2015 pre-trial conference, each defendant was given an
____________________________________________
5
This appears to be drug and/or alcohol rehabilitation.
-4-
J-S60044-15
offer to plead to a single count of REAP, and both defendants had declined
the offer. See N.T. Pre-Trial Conference, 2/20/2015, at 17. At a
subsequent pre-trial conference held on March 19, 2015, Wanamaker
indicated he would accept the offer to pled to a single count of REAP, but
Hoffman would not. See N.T. Pre-Trial Conference, 3/19/2015, at 8.
Another pre-trial conference was scheduled for April 17, 2015, at which time
Wanamaker accepted the plea offer, now also including an agreement to
plead guilty to false swearing.6 Following an oral colloquy, but no written
plea agreement, the plea was accepted by the trial court and Wanamaker
received an aggregate sentence of 38 days to 18 months’ incarceration to be
followed by months of probation. Wanamaker was immediately paroled.
Five days later, Wanamaker filed a motion to withdraw his guilty plea,
claiming manifest injustice in that the nature of the charges was not
explained to him.7
____________________________________________
6
The certified record does not indicate the disposition of the charges against
Hoffman.
7
The elements of each crime Wanamaker pled guilty are:
A person commits a misdemeanor of the second degree if he
recklessly engages in conduct which places or may place another
person in danger of death or serious bodily injury.
18 Pa.C.S. § 2705.
(a) False swearing in official matters.--A person who makes a
false statement under oath or equivalent affirmation, or swears
or affirms the truth of such a statement previously made, when
(Footnote Continued Next Page)
-5-
J-S60044-15
We begin by noting,
A guilty plea is not a ceremony of innocence, it is an occasion
where one offers a confession of guilt. If a defendant voluntarily,
knowingly, and intelligently wishes to acknowledge facts that in
themselves constitute an offense, that acknowledgement is
independent of the procedures of proving or refuting them. How
they would be proved, what burdens accompany their proof,
what privileges exist to avoid their proof, what safeguards exist
to determine their accuracy, and under what rules they would be
determined, by whom and how, are irrelevant. The defendant is
before the court to acknowledge facts that he is instructed
constitute a crime. He is not there to gauge the likelihood of
their proof, nor to weigh them in the light of the available
procedures for their proof. He is there to voluntarily say what he
knows occurred, whether the Commonwealth would prove them
or not, and that he will accept their legal meaning and their legal
consequence.
Commonwealth v. Watson, 835 A.2d 786, 797 (Pa. Super. 2008), quoting
Commonwealth v. Anthony, 475 A.2d 1303, 1307-08 (Pa. 1984).
“A valid plea colloquy must delve into six areas: 1) the nature of the
charges, 2) the factual basis of the plea, 3) the right to a jury trial, 4) the
presumption of innocence, 5) the sentencing ranges, and 6) the plea court's
power to deviate from any recommended sentence.” Commonwealth v.
Reid, 117 A.3d 777, 782 (Pa. Super. 2015). Additionally, “even though
_______________________
(Footnote Continued)
he does not believe the statement to be true is guilty of a
misdemeanor of the second degree if:
(1) the falsification occurs in an official proceeding.
18 Pa.C.S. § 4903(a)(1).
-6-
J-S60044-15
there is an omission or defect in the guilty plea colloquy, a plea of guilty will
not be deemed invalid if the circumstances surrounding the entry of the plea
disclose that the defendant had a full understanding of the nature and
consequences of his plea and that he knowingly and voluntarily decided to
enter the plea.” Commonwealth v. Fluharty, 632 A.2d 312, 315 (Pa.
Super. 1993). Finally,
[t]o determine a defendant's actual knowledge of the
implications and rights associated with a guilty plea, a court is
free to consider the totality of the circumstances surrounding the
plea. The concept of examining the totality of the circumstances
surrounding a plea in order to determine whether a plea was
voluntarily, knowingly, and intelligently entered, is well
established. See, e.g. Commonwealth v. Schultz, 505 Pa.
188, 192, 477 A.2d 1328, 13330 (1984), (on direct appeal from
denial of a motion to withdraw a guilty plea, this Court held that,
in determining whether a guilty plea has been voluntarily,
knowingly and intelligently entered, courts look to the totality of
the circumstances surrounding the plea). Indeed, as the law
makes clear, a trial court may consider a wide array of relevant
evidence under this standard in order to determine the validity
of a claim and plea agreement including, but not limited to,
transcripts from other proceedings, off-the-record
communications with counsel, and written plea agreements.
Commonwealth v. Allen, 732 A.2d 582, 588-89 (Pa. 1999).
Wanamaker claims herein that his plea was invalid because he was not
made aware of the elements of the crimes to which he pled guilty. If true,
this would represent a failure to meet the first area of the guilty plea
colloquy. See Reid, supra. Facially, Wanamaker is correct. However,
even though the oral colloquy does not delve into the nature of the two
crimes to which he pled guilty, Wanamaker’s knowledge of these crimes is
-7-
J-S60044-15
amply demonstrated by examination of the totality of the circumstances and
our review of the certified record.
First, the underlying facts supporting guilt to both crimes were set
forth, sparingly, in open court and agreed to by Wanamaker. See N.T.
Guilty Plea, 4/17/2015, at 6-7.8 However, far more detailed accounts of the
failure to provide appropriate medical care to his daughter are found
throughout the certified record and were the subject of contention between
Wanamaker and the Commonwealth. See e.g. Motion to Quash, 11/7/2014,
including verification signed by Wanamaker, 11/6/2014. Accordingly,
Wanamaker was clearly aware of the actions, and failures to act, that
supported EWOC.
Second, the guilty plea colloquy demonstrates that Wanamaker knew
that the charges he was pleading guilty to represented lesser charges than
the EWOC (F3) and perjury charges he originally faced.9 See N.T. Guilty
Plea, 4/17/2015, at 2-4. Wanamaker also acknowledged he had fully
discussed possible defenses and strategies to the lesser charges. In
____________________________________________
8
Specifically, Wanamaker was informed: “February 25, 2014, the Defendant
had failed to provide adequate medical attention for his daughter, thereby
causing serious dental decay which endangered her health and welfare to a
serious degree.” In addition, “The Defendant did appear in an official
proceeding under oath making statements that he believes to be false.”
9
The only difference between perjury and false swearing is that it must be a
material misstatement to support perjury.
-8-
J-S60044-15
acknowledging this, Wanamaker thanked not only his counsel, but the
County as well. Id. at 5-6. Logically, Wanamaker could not have discussed
defenses and strategies to crimes he knew nothing about. Additionally,
there would be no reason to thank the prosecution if he had not understood
the nature of the plea he had accepted.
Third, the record reveals that at least twice prior to the April 17, 2015,
guilty plea, Wanamaker considered pleading guilty to REAP. See N.T. Pre-
Trial Conference, 2/20/2015; 3/19/2015. At the March 19, 2015, pre-trial
conference, Wanamaker indicated he would accept the offer to plead guilty
to REAP.10 Wanamaker’s current contention would have us believe that he
was contemplating the offer to plead guilty to REAP for at least two months,
was willing to accept the plea one month before he did, but did not
comprehend the nature of the charge despite his sworn statement at the
guilty plea that he had discussed defenses and strategies with his counsel.
Because the certified record supports the determination that
Wanamaker was fully aware of the nature of the crimes to which he was
pleading, the trial court committed no abuse of discretion in denying him
leave to withdraw his guilty plea post-sentence.
____________________________________________
10
At that time, the plea offer from the Commonwealth was contingent upon
both defendants accepting the offers. Hoffman was unwilling at that time,
so Wanamaker’s plea was not accepted.
-9-
J-S60044-15
Although the oral guilty plea colloquy was incomplete and no written
guilty plea colloquy was executed, we are affirming judgment of sentence
and denying Wanamaker relief. But for the record of the extensive pre-trial
litigation of central issues in this matter, and evidence of continuing plea
agreement negotiations in the months prior to the entry of the guilty plea,
we would have been constrained to allow the withdrawal of this guilty plea.
We urge the trial court, the Commonwealth and defense counsel to
make use of a written guilty plea colloquy form and to conduct a complete
oral guilty plea colloquy.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/2/2015
- 10 -