Com. v. Eaton, K. ( 2021 )

J-A24012-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
KADEEM EATON :
:
Appellant : No. 72 EDA 2021
Appeal from the Judgment of Sentence Entered March 5, 2019
In the Court of Common Pleas of Delaware County Criminal Division at
No(s): CP-23-CR-0002640-2017
BEFORE: LAZARUS, J., DUBOW, J., and PELLEGRINI, J.*
MEMORANDUM BY LAZARUS, J.: FILED DECEMBER 21, 2021
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,
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* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S.A. § 3701(a)(1)(ii).
2 Eaton’s notice of appeal indicates that he is appealing the trial court’s
November 20, 2020 order reinstating his direct appeal rights nunc pro tunc.
See Notice of Appeal, 12/18/20, at 1. On January 29, 2021, this Court issued
a Rule to Show Cause as to why Eaton’s appeal should not be quashed as
Eaton was not an aggrieved party in that order. Eaton filed a response, in
which he indicated that he did not intend to appeal from the November 20,
2020 order, but rather from the March 5, 2019, judgment of sentence. See
Response, 2/8/21, at 1. Eaton concedes that he attached the November 20,
2020 order as an exhibit to his notice of appeal, but contends that he is
nevertheless aggrieved from the March 5, 2019, judgment of sentence. Id.
(Footnote Continued Next Page)
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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.
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Because “failure of an appellant to take any step other than the timely filing
of a notice of appeal does not affect the validity of the appeal,” Pa.R.A.P. 902,
we decline to quash Eaton’s appeal. We have amended the caption to reflect
the order which Eaton seeks to have this Court review, his March 5, 2019,
judgment of sentence.
3 Anders v. California, 368 U.S. 738 (1967); Commonwealth v.
McClendon, 434 A.2d 1185 (Pa. 1981); Commonwealth v. Santiago, 978
A.2d 349 (Pa. 2009).
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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.
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4 42 Pa.C.S.A. §§ 9541-9546.
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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:
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(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
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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
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5 We observe that Attorney Galloway has not attached a copy of the Rule
1925(b) concise statement to his Anders Brief. See Pa.R.A.P. 2119(d)
(stating appellant shall attach copy of Rule 1925(b) concise statement to the
appellant brief). However, Attorney Galloway filed the Rule 1925(b) concise
statement in accordance with the trial court’s order. Attorney Galloway’s
omission is not a jurisdictional defect, and the Commonwealth has not
objected to this defect; thus, we decline to dismiss Eaton’s appeal on this
basis. See Pa.R.A.P. 2101 (stating that “if the defects are in the brief . . . of
the appellant and are substantial, the appeal or other matter may be quashed
or dismissed.”) (emphasis added). Moreover, Attorney Galloway has filed an
Anders brief and, as such, this Court has an independent obligation to review
the entire record to ascertain whether any non-frivolous issues are present.
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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.
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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 presumes a defendant who entered a guilty plea was aware
of what he was doing, and the defendant bears the burden of proving
otherwise.” Id. Moreover, “[a] written plea colloquy that is read, completed
and signed by the defendant and made part of the record may serve as the
defendant’s plea colloquy when supplemented by an oral, on-the-record
examination.” Commonwealth v. Morrison, 878 A.2d 102, 108 (Pa. Super.
2005) (citing Pa.R.Crim.P. 590, cmt.).
In its opinion, the trial court addressed Eaton’s claim as follows:
The record of the March 5, 2019[, guilty plea and sentencing
hearing] reveals the Commonwealth and [Eaton] entered into and
presented to the court a clear, succinct, and concise agreement.
* * *
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[Eaton] swore to tell the truth during the proceeding. [Eaton] was
colloquied by plea counsel and the court concerning the terms of
the guilty plea. During the colloquy, [Eaton] testified he
understood the terms of the negotiated guilty plea. [Eaton]
testified he had the opportunity to discuss[,] at length[,] the guilty
plea and have all of his questions answered by counsel.
Of paramount importance to the issue in this case, [Eaton] was
extensively colloquied concerning the knowing, voluntary, and
intelligent nature of his plea. [Eaton] testified he was not under
the influence of narcotics, drugs, alcohol, or any other substance,
and not suffering any physical, emotional, or mental problems
[that] could affect his ability to understand and prevent him from
knowing what he was doing in court and entering the guilty plea,
and no one coerced or forced [Eaton] to enter the plea, nor made
promises inducing [Eaton] to enter the plea. [Eaton] testified he
understood the trial rights he waived by entering the guilty plea,
including the right to pursue pretrial motions and specifically
outstanding motions. [Eaton] testified he understood the
elements of the charges against him and the maximum possible
penalties that could be assessed against him if he were convicted
following trial. [Eaton] testified he understood the plea might
affect his parole status and what the effect could be, and [Eaton]
testified he had no questions concerning this matter. [Eaton]
testified to having initialed and signed the Guilty Plea Statement.
[Eaton] responded in a manner to all questions from the court and
plea counsel during the colloquy demonstrating his understanding
of his decision to enter the negotiated guilty plea and the potential
consequences of the plea. The Affidavit of Probable Cause served
as the factual basis for the plea.
Based upon the colloquies and [Eaton]’s testimony, th[e] court
found [Eaton]’s plea to be knowing, voluntary, and intelligent, and
accepted [Eaton’s] plea. Th[e] court imposed judgment of
sentence upon [Eaton] in accordance with the terms of the
negotiated guilty plea and as set forth by the . . . Commonwealth
and accepted by [Eaton].
* * *
[Eaton] testified he understood the requirements for filing a post
sentence motion and appeal. [Eaton] testified he read,
understood, and agreed with the information contained in the
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Statement of Post Sentence Rights. [Eaton] also testified he had
no questions of the court or his [plea counsel] concerning post-
sentence rights as contained in the documents. In addition, plea
counsel reiterated [Eaton]’s post sentence and appeal rights, and
[Eaton] affirmed under oath that he understood those rights.
Finally, [Eaton] testified to having initialed and signed the
Statement of Post Sentence Rights. [Eaton] testified his initials
and signatures on the Guilty Plea Statement and the Statement of
Post Sentence Rights indicate he read, understood, and agreed
with everything contained in the documents.
Trial Court Opinion, 4/20/21, at 7-10 (citations omitted).
Our review of the record confirms the trial court’s reasoning and
determinations. Indeed, with regards to Eaton’s written guilty plea statement
and statement of post-sentence rights, we observe that Eaton’s initials appear
handwritten next to each line, as well as at the bottom of each page. See
Guilty Plea Statement, 3/5/19, at 1-4; Statement of Post-Sentence Rights,
3/5/19, at 1-2; see also N.T. Guilty Plea and Sentencing Hearing, 3/5/19, at
10, 12 (wherein Eaton testified his initials appear next to each line and at
bottom of each page). Additionally, at the guilty plea and sentencing hearing,
Eaton testified that he had reviewed the entire written guilty plea statement
with his trial counsel, and understood each line. See N.T. Guilty Plea and
Sentencing Hearing, 3/5/19, at 9-12. Eaton’s trial counsel, likewise, stated
that he had reviewed the entire form with Eaton and that Eaton had no
questions. Id. at 11-12. Moreover, the trial court conducted a lengthy on-
the-record colloquy in which Eaton fully participated. Id. at 5-14. During the
on-the-record colloquy, the trial court referenced Eaton’s written guilty plea
colloquy and asked several times if Eaton signed and understood the colloquy.
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Id. at 11-12. Eaton then stipulated to the factual summary provided in the
affidavit of probable cause. Id. at 12. Thus, the trial court accepted Eaton’s
plea as knowing, intelligent, and voluntary. Id. at 12-13. Thereafter, Eaton
waived a pre-sentence investigation report and immediately proceeded to
sentencing. Id. at 13. Furthermore, the Commonwealth fully complied with
the terms of the plea agreement, and the trial court sentenced Eaton in
accordance with the agreement. Id. at 12-14.
Thus, we are satisfied that the totality of the circumstances reflects that
Eaton understood the nature of the charges brought against him, the
maximum possible sentence, that he is presumed innocent until found guilty
of the offenses, and that the trial court was not bound by the terms of the
plea agreement unless the trial court accepted his plea agreement. Because
the record establishes that Eaton entered into the guilty plea knowingly,
intelligently, and voluntarily, Eaton’s challenge to the validity of his negotiated
guilty plea is wholly frivolous. See Fluharty, supra; see also Kpou, supra.
Finally, our independent review of the record discloses no other
“arguably meritorious issues that counsel, intentionally or not, missed or
misstated.” Dempster, 187 A.3d at 272. As such, we grant Attorney
Galloway’s application to withdraw, and affirm the judgment of sentence.
Judgment of sentence affirmed. Application to withdraw granted.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/21/2021
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