Commonwealth v. Eaton

270 A.3d 1152 (Table)

COMMONWEALTH of Pennsylvania

v.Kadeem EATON, Appellant

No. 72 EDA 2021

Superior Court of Pennsylvania.

Filed December 21, 2021

MEMORANDUM BY LAZARUS, J.:

Kadeem Eaton appeals nunc pro tunc from the judgment of sentence, entered in the Court of Common Pleas of Delaware County, following his guilty plea to robbery.^{1 ,2} Additionally, Eaton's counsel, Scott D. Galloway, Esquire, has filed an application to withdraw as counsel, and an accompanying Anders³ brief. Upon review, we grant Attorney Galloway's application to withdraw and affirm Eaton's judgment of sentence.

The trial court summarized the factual history as follows:

[On April 6, 2017, Eaton] entered the Family Dollar [in] Delaware County, [ ] pointed a gun at [an] employee[,] Toneneillia Decoteau, and demanded she open the safe. When [ ] Decoteau advised [Eaton] she did not know the code and could not open the safe, [Eaton] jumped over the counter and dumped the cash drawer ([containing] $201.00) into a bag strapped over his shoulder, and stole 6 cartons of Newport cigarettes and 28 packs of Newport cigarettes (valued over $705.00). [Eaton], driving a dark blue Nissan Maxima ..., exited the parking lot at the same time police were arriving[.] [Eaton] immediately turned off the headlights and drove over a curb and sped down Yarnall Street. At the intersection of 7th Street and Yarnall Street[,] [Eaton]’s vehicle struck a parked vehicle, at which time he placed the car in reverse and fled at a high rate of speed through at least two red traffic signals [before] eventually crashing into a building at 1027 West 7th Street[,] causing the airbags to deploy. Ignoring the commands of the police, [Eaton] exited the vehicle and began to run from the scene. After a short chase, police apprehended [Eaton], who was arrested and transported to Chester Police headquarters. At the scene, investigators found "a brown Sig Sauer MPX .177 Caliber Airsoft Rifle[,]" a black bag containing Newport [c]igarettes, and a cash register till containing US currency.

Trial Court Opinion, 4/20/21, at 1-2 (citations omitted).

Eaton was subsequently charged with, inter alia , robbery. On March 5, 2019, Eaton entered into a negotiated guilty plea in which he agreed to plead guilty to robbery and a sentence of five to fifteen years in prison. In exchange, the Commonwealth agreed to withdraw the remaining charges. On the same day, the trial court sentenced Eaton in accordance with the negotiated guilty plea to an aggregate term of five to fifteen years in prison.

On March 13, 2019, Eaton filed a motion to withdraw his guilty plea, claiming that he was innocent and did not enter into the plea agreement knowingly, voluntarily, or intelligently. The trial court denied Eaton's motion, and on June 4, 2019, Eaton filed a pro se notice of appeal which this Court quashed as untimely filed. See Order, 2/18/20, at 1.

On March 4, 2020, Eaton filed a pro se petition pursuant to the Post Conviction Relief Act (PCRA).⁴ The PCRA court appointed Attorney Galloway as Eaton's counsel. Attorney Galloway filed an amended petition, which requested that Eaton's direct appeal rights be reinstated nunc pro tunc , because Eaton's prior counsel had failed to file a direct appeal upon Eaton's request. On November 20, 2020, the PCRA court granted Eaton's PCRA petition, and reinstated his direct appeal rights nunc pro tunc .

Subsequently, Eaton filed a nunc pro tunc notice of appeal and a court-ordered Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal. Attorney Galloway subsequently filed with this Court an application to withdraw as counsel and a brief pursuant to Anders . Eaton did not file a pro se brief, nor did he retain alternate counsel for this appeal.

Before addressing Eaton's issue on appeal, we must determine whether Attorney Galloway has complied with the dictates of Anders and its progeny in petitioning to withdraw from representation. See Commonwealth v. Mitchell , 986 A.2d 1241, 1244 n.2 (Pa. Super. 2009) (stating that "[w]hen presented with an Anders brief, this Court may not review the merits of the underlying issues without first passing on the request to withdraw"). Pursuant to Anders , when counsel believes that an appeal is frivolous and wishes to withdraw from representation, he or she must:

(1) petition the court for leave to withdraw stating that after making a conscientious examination of the record and interviewing the defendant, counsel has determined the appeal would be frivolous, (2) file a brief referring to any issues in the record of arguable merit, and (3) furnish a copy of the brief to defendant and advise him of his right to retain new counsel or to raise any additional points that he deems worthy of the court's attention. The determination of whether the appeal is frivolous remains with the court.

Commonwealth v. Burwell , 42 A.3d 1077, 1083 (Pa. Super. 2012) (citation omitted).

Additionally, the Pennsylvania Supreme Court has explained that a proper Anders brief must:

(1) provide a summary of the procedural history and facts, with citations to the record; (2) refer to anything in the record that counsel believes arguably supports the appeal; (3) set forth counsel's conclusion that the appeal is frivolous; and (4) state counsel's reasons for concluding that the appeal is frivolous. Counsel should articulate the relevant facts of record, controlling case law, and/or statutes on point that have led to the conclusion that the appeal is frivolous.

Santiago , 978 A.2d at 361.

After determining that counsel has satisfied the technical requirements of Anders and Santiago , this Court must then "conduct a simple review of the record to ascertain if there appears on its face to be arguably meritorious issues that counsel, intentionally or not, missed or misstated." Commonwealth v. Dempster , 187 A.3d 266, 272 (Pa. Super. 2018) (en banc ).

Instantly, our review of counsel's Anders brief and application to withdraw reveals that Attorney Galloway has substantially complied with each of the technical requirements of Anders /Santiago . See Commonwealth v. Wrecks , 934 A.2d 1287, 1290 (Pa. Super. 2007) (stating that counsel must substantially comply with the requirements of Anders ). Attorney Galloway indicates that he has made a conscientious examination of the record and determined that an appeal would be frivolous. The record further reflects that counsel has furnished a copy of the Anders brief to Eaton, advised Eaton of his right to retain new counsel or proceed pro se , or raise any additional points that he deems worthy of this Court's attention. Additionally, the Anders brief substantially complies with the requirements of Santiago .⁵ As Attorney Galloway has complied with all of the requirements for withdrawing from representation, we will examine the record and make an independent determination of whether Eaton's appeal is, in fact, wholly frivolous.

In the Anders brief, Attorney Galloway presents the following issue for our review: "Was the guilty plea entered by [Eaton] in this matter knowingly, voluntarily, and intelligently made?" Anders Brief at 4.

The decision of whether to permit a defendant to withdraw a guilty plea is within the sound discretion of the trial court. Commonwealth v. Unangst , 71 A.3d 1017, 1019 (Pa. Super. 2013) (citations and quotations omitted); see also Commonwealth v. Broaden , 980 A.2d 124, 128 (Pa. Super. 2009) (appellate courts review trial court's order denying a motion to withdraw guilty plea for abuse of discretion).

There is no absolute right to withdraw a guilty plea. Commonwealth v. Forbes , 299 A.2d 268, 271 (Pa. 1973). When a defendant seeks to withdraw a guilty plea after sentencing, he "must demonstrate prejudice on the order of manifest injustice." Commonwealth v. Yeomans , 24 A.3d 1044, 1046 (Pa. Super. 2011) ; see also Commonwealth v. Hart , 174 A.3d 660, 664 (Pa. Super. 2017) (explaining that "post-sentence motions for withdrawal are subject to higher scrutiny since the courts strive to discourage the entry of guilty pleas as sentence-testing devices[ ]") (citations and quotation marks omitted).

To ensure that a plea is voluntary, knowing, and intelligent,

Rule 590 of the Pennsylvania Rules of Criminal Procedure requires that a trial court conduct a separate inquiry of the defendant before accepting a guilty plea. ... As the Comment to Rule 590 provides[,] at a minimum, the trial court should ask questions to elicit the following information:

(1) Does the defendant understand the nature of the charges to which he or she is pleading guilty or nolo contendere ?

(2) Is there a factual basis for the plea?

(3) Does the defendant understand that he or she has a right to a trial by jury?

(4) Does the defendant understand that he or she is presumed innocent until found guilty?

(5) Is the defendant aware of the permissible range of sentencing 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?

Hart , 174 A.3d at 667-68 (citations omitted). "Inquiry into the above six areas is mandatory." Commonwealth v. Ingold , 823 A.2d 917, 921 (Pa. Super. 2003). "The purpose of [ Rule 590 ] is to ensure that the defendant fully understands the nature of the crimes to which he or she is pleading guilty and the rights that are being waived by the plea." Commonwealth v. Carter , 656 A.2d 463, 465 (Pa. 1995).

In determining whether a plea is valid, the court must examine the totality of the circumstances surrounding the plea. Commonwealth v. Kpou , 153 A.3d 1020, 1023 (Pa. Super. 2016). "A guilty plea 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). "Pennsylvania law...