Com. v. Cowan, K. ( 2020 )

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
KEYON BERTRAND COWAN :
:
Appellant : No. 389 MDA 2020
Appeal from the Judgment of Sentence Entered January 23, 2020,
in the Court of Common Pleas of Lancaster County,
Criminal Division at No(s): CP-36-CR-0003930-2019.
BEFORE: KUNSELMAN, J., McLAUGHLIN, J., and STRASSBURGER, J.*
MEMORANDUM BY KUNSELMAN, J.: FILED DECEMBER 01, 2020
Keyon Bertrand Cowan appeals from the judgment of sentence imposed
following the entry of his guilty pleas to possession of a small amount of
marijuana, possession of drug paraphernalia, turning movements and
required signals, and driving while operating privilege suspended.1
Additionally, Cowan’s appellate counsel has filed an application to withdraw
from representation and an accompanying brief pursuant to Anders v.
California, 386 U.S. 738, 744, (1967) (hereinafter the “Anders brief”). We
grant counsel’s application, and affirm the judgment of sentence.
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* Retired Senior Judge assigned to the Superior Court.
1 See 35 P.S. §§ 780-113(a)(31), (32); 75 Pa.C.S.A. §§ 3334(a), 1543(a).
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The relevant factual and procedural history are summarized as follows.
On June 25, 2019, Lancaster City police were conducting surveillance detail.
During the detail, police observed a silver Buick Regal make multiple turn
signal violations. They initiated a traffic stop. Cowan was the driver of the
vehicle. During the course of the stop, Cowan was found to be in possession
of a .9mm semi-automatic pistol, a clear plastic bag of marijuana, and a silver
marijuana grinder containing marijuana residue. Police also determined that
Cowan was operating the vehicle with a suspended driver’s license, and had a
prior conviction for driving with a suspended license. The Commonwealth
charged Cowan with multiple vehicle and drug offenses.2
On January 23, 2020, the trial court conducted a plea hearing at which
Cowan was represented by counsel. Prior to the hearing, Cowan had executed
a written guilty plea colloquy, which both Cowan and his counsel signed.
Cowan also signed a Guilty Plea slip listing the charges to which he was
pleading guilty, and a form entitled Acknowledgment of Post-Sentence
Procedures Following Guilty Plea, which advised him of his appellate rights
upon entering a guilty plea. During the hearing, Cowan admitted to the trial
court that he was in possession of marijuana and drug paraphernalia on the
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2 The Commonwealth also charged Cowan with firearms not to be carried
without a license. However, that charge was eventually nolle prossed, as it
was determined that Cowan had a valid license to carry the firearm. The
Commonwealth also nolle prossed two additional counts of turning movements
and required signals.
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date in question. The trial court conducted a brief colloquy on the record
before accepting Cowan’s guilty pleas to possession of a small amount of
marijuana, possession of drug paraphernalia, turning movements and
required signals, and driving while operating privilege suspended. At the
conclusion of the hearing, the trial court imposed costs of prosecution and
fines totaling $225. Cowan did not file a post-sentence motion.
Cowan thereafter filed a timely notice of appeal. The trial court ordered
Cowan to file a statement of errors complained of on appeal pursuant to
Pa.R.A.P. 1925(b). In response, Cowan’s appellate counsel3 filed a timely
statement of intent to file an Anders brief in lieu of a statement of errors
complained of on appeal. The trial court then filed a statement in lieu of a
Pa.R.A.P. 1925(a) opinion. In this court, Cowan’s appellate counsel filed an
application to withdraw from representation and an Anders brief. Cowan did
not retain independent counsel or file a pro se response to the Anders brief.
Before we may consider the issues raised in the Anders brief, we must
first consider counsel’s application to withdraw from representation. See
Commonwealth v. Garang, 9 A.3d 237, 240 (Pa. Super. 2010) (holding
that, when presented with an Anders brief, this Court may not review the
merits of the underlying issues without first passing on the request to
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3 In both the trial court and in this Court, Cowan received representation from
the Office of the Public Defender. However, a different public defender
represented Cowan at his plea hearing.
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withdraw). Pursuant to Anders, when counsel believes an appeal is frivolous
and wishes to withdraw from representation, counsel must do the following:
(1) petition the court for leave to withdraw stating that after
making a conscientious examination of the record, counsel has
determined the appeal would be frivolous; (2) file a brief referring
to any issues that might arguably support the appeal, but which
does not resemble a no-merit letter; and (3) furnish a copy of the
brief to the defendant and advise him of his right to retain new
counsel, proceed pro se, or raise any additional points he deems
worthy of this Court’s attention.
Commonwealth v. Edwards, 906 A.2d 1225, 1227 (Pa. Super. 2006)
(citation omitted). In Commonwealth v. Santiago, 978 A.2d 349 (Pa.
2009), our Supreme Court addressed the second requirement of Anders, i.e.,
the contents of an Anders brief, and required that the brief
(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. Once counsel has satisfied the Anders
requirements, it is then this Court’s responsibility “to conduct a simple review
of the record to ascertain if there appear 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).
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Here, appellate counsel has complied with each of the requirements of
Anders. Counsel indicated that he conscientiously examined the record and
determined that an appeal would be frivolous. Further, counsel’s Anders brief
comports with the requirements set forth by our Supreme Court in Santiago.
Finally, the record includes a copy of the letter that counsel sent to Cowan
stating counsel’s intention to seek permission to withdraw, and advising
Cowan of his immediate right to proceed pro se or retain alternate counsel
and file additional claims. Accordingly, counsel has complied with the
procedural requirements for withdrawing from representation, and we will
conduct an independent review to determine whether Cowan’s appeal is wholly
frivolous.
In the Anders Brief, counsel raises the following issues:
1. Was Cowan’s guilty plea entered knowingly, voluntarily, and
intelligently?
2. Did the trial court impose an illegal sentence?
3. Did plea counsel render ineffective assistance to Cowan?
Anders Brief at 8-11.4
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4 In the Anders brief, counsel framed the sole issue for our determination as
whether he should be permitted to withdraw from representation on the basis
of frivolity; however, the brief’s argument section identifies three discrete
issues that Cowan wished to raise and explains why counsel concluded the
issues were frivolous. Thus, we have identified the issues discussed by
counsel in the brief.
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The first issue raised in the Anders brief concerns the validity of
Cowan’s guilty plea, and whether it was entered knowingly, voluntarily, and
intelligently. When determining whether a defendant has entered into a guilty
plea knowingly, voluntarily, and intelligently, the trial court should consider
the oral and written plea colloquy and off-the-record communications between
the defendant and counsel. Commonwealth v. Allen, 732 A.2d 582, 588-
89 (Pa. 1999). During a guilty plea, the trial court must conduct an inquiry
with a defendant on the record which addresses the following: (1) does the
defendant understand the nature of the charges; (2) is there a factual basis
for the plea; (3) does the defendant understand his right to a jury trial; (4)
does the defendant understand he is presumed innocent until proven guilty;
(5) is the defendant aware of the permissible range of sentences; and (6) is
the defendant aware the judge is not bound by the terms of any plea
agreement. See Commonwealth v. Muhammad, 794 A.2d 378, 383 (Pa.
Super. 2002); see also Commonwealth v. Hallock, 722 A.2d 180, 182 (Pa.
Super. 1998); Pa.R.Crim.P. 590 Comment. The express purpose for
conducting this colloquy is to ensure a defendant understands the nature of
the charges to which he is pleading guilty and the rights he is waiving by
pleading guilty. Commonwealth v. Carter, 656 A.2d 463, 465 (Pa. 1995).
The questioning of a defendant may be conducted by the judge, an
attorney for either party, or by written colloquy. Commonwealth v. Harris,
589 A.2d 264, 265 (Pa. Super. 1991). If the written colloquy is used, it must
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be completed and signed by the defendant and made part of the record. Id.It must also be supplemented by some oral explanation. Id.In the Anders brief, counsel indicates that Cowan wished to challenge
his guilty plea because he did not realize that, by pleading guilty to the
possessory charges filed against him, he would lose his license to carry a
firearm. Counsel indicates that he reviewed the notes of testimony from the
guilty plea hearing and determined that there was a factual basis for the guilty
plea, and that it was entered knowingly, voluntarily, and intelligently by
Cowan. Counsel points out that Cowan completed and signed a written guilty
plea colloquy. Counsel further points out that Cowan responded affirmatively
when asked by the trial court if he possessed marijuana and drug
paraphernalia on the date in question. Counsel additionally notes that the
trial court confirmed that Cowan had reviewed the guilty plea colloquy with
counsel and that he signed the guilty plea colloquy. Counsel indicates that
the trial court also conducted a brief colloquy on the record to confirm that
Cowan fully understood his rights, and that it was his decision to plead guilty.
Finally, counsel notes that Cowan signed the Guilty Plea slip, indicating that
he understood he was entering a plea of guilty to the charges. For these
reasons, counsel submits that Cowan’s challenge to his guilty plea is wholly
frivolous.
Our review of the record discloses that Cowan completed a written guilty
plea colloquy covering all necessary topics for a valid plea colloquy. The
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written colloquy indicated the nature of the charges against Cowan, and
specified the maximum fines and penalties associated with each offense.
Guilty Plea Colloquy, 1/23/20, at 2. Cowan indicated that he had reviewed
with his counsel a sentencing guidelines worksheet prepared by the district
attorney. Id. at 2. Cowan indicated that he understood his right to a jury
trial, and that he is presumed innocent until proven guilty. Id. at 1. Cowan
further indicated that he understood that the trial judge would not be bound
by the terms of any plea agreement. Id. Cowan also signed a Guilty Plea slip
indicating the charges to which he was pleading guilty, and an
Acknowledgment of Post Sentence Procedures Following Guilty Plea, which
advised him of his appellate rights.
Our review further confirms that the trial court conducted a brief
colloquy on the record wherein Cowan admitted that he was in possession of
marijuana and paraphernalia on the date in question. N.T., 1/23/20, at 3.
The trial court informed Cowan that the maximum sentences and fines that
could be imposed for the charges of possession of a small amount of marijuana
and possession of drug paraphernalia were one year and one month in prison,
and $3,000 in fines. Id. at 3.5 In response, Cowan indicated that he
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5 The written guilty plea colloquy indicates that the maximum aggregate
sentence that the trial court could impose for all four charges pending against
Cowan was one year and seven months in prison, and the maximum fines for
all four charges totaled $4,025.00. See Written Guilty Plea Colloquy, 1/23/20,
at 2.
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understood the penalties and fines that could be imposed by the court for the
possessory offenses. Id. At the hearing, defense counsel informed the court
that Cowan had a previous conviction for driving while operating privileges
suspended, but noted that there was no mandatory jail time for that offense.
Id. at 4. The trial court inquired whether Cowan had reviewed all of his rights
with his counsel, and whether it was his signature on the written guilty plea
colloquy and appellate rights form. Id. Cowan answered in the affirmative
to each of the trial court’s questions. Id. The trial court then asked Cowan if
he had any questions regarding his rights, and Cowan responded in the
negative. Id. at 3-4.
Based on our review of the record, we find no basis to conclude that
Cowan’s guilty pleas were entered unknowingly, involuntarily, or
unintelligently. That the written and oral colloquies did not specifically advise
Cowan that he would lose his license to carry a firearm as a result of his guilty
pleas to the possessory drug charges is not a basis for relief. As our Supreme
Court has explained, a defendant’s lack of knowledge of collateral
consequences of the entry of a guilty plea does not undermine the validity of
the plea. See Commonwealth v. Abraham, 62 A.3d 343, 350 (Pa. 2012);
see also Commonwealth v. Barndt, 74 A.3d 185, 193 (Pa. Super. 2013)
(holding that collateral consequences are irrelevant to the determination of
whether a guilty plea was entered voluntarily or knowingly); Commonwealth
v. Brown, 680 A.2d 884, 887 (Pa. Super. 1996) (holding that the appellate
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courts of the Commonwealth consistently have ruled that a defendant’s lack
of knowledge of collateral consequences to the entry of a guilty plea does not
render a plea unknowing or involuntary).
“[T]the distinction between a direct and collateral consequence of a
guilty plea . . . [is] the distinction between a criminal penalty and a civil
requirement over which a sentencing judge has no control.” Commonwealth
v. Abraham, 62 A.3d 343, 350 (Pa. 2012) (quoting Commonwealth v.
Leidig, 956 A.2d 399, 404 (2008)). Importantly, “the collateral consequences
of pleading guilty include loss of the right to vote, enlist in the armed services,
own a firearm, hold a fishing license, inherit property, or practice a particular
profession.” Id. at 350 n.8 (emphasis added); see also Commonwealth v.
Duffey, 639 A.2d 1174, 1176 (Pa. 1994).
As the loss of Cowan’s license to own a firearm was a collateral
consequence of his guilty pleas over which the trial court had no control, his
ignorance of this consequence has no bearing on the validity of his pleas.
Thus, we agree with counsel that this issue is wholly frivolous.
The second issue raised in the Anders brief concerns the legality of
Cowan’s sentence. Counsel indicates that, upon Cowan’s arrest for the
charges in question, Cowan spent ten days less than two months in jail, until
he posted bail. Counsel notes that Cowan had a prior record score of zero.
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Counsel maintains that he reviewed Cowan’s sentence, and finds no basis to
challenge its legality.6
Based on the record before us, we agree with counsel’s conclusion that
any challenge to the legality of Cowan’s sentence would be frivolous. Although
the trial court could have sentenced Cowan to more than one and one-half
years in prison for his offenses, the court imposed no incarceration. The trial
court could have imposed fines up to $4,025; however, the trial court merely
assessed Cowan with the costs of prosecution and imposed fines on two of his
offenses totaling $225.00. Given these considerations, we discern no basis to
challenge the legality of the sentence imposed. Accordingly, we agree with
counsel that any such challenge would be frivolous.
The final issue raised in the Anders brief concerns Cowan’s belief that
his plea counsel was ineffective for failing to advise him that a collateral
consequence of his guilty pleas to possession of a small amount of marijuana
and possession of drug paraphernalia would be the loss of his license to carry
a firearm. Counsel concluded that this issue was frivolous because claims of
ineffective assistance of counsel are generally not reviewed on direct appeal,
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6 We observe that Cowan did not preserve any challenge to the discretionary
aspects of his sentence at the time of sentencing or in a post-sentence motion.
See Commonwealth v. McAfee, 849 A.2d 270, 275 (Pa. Super. 2004)
(holding that a challenge to the discretionary aspects of a sentence must be
raised in a post-sentence motion or during the sentencing proceedings, and
absent such efforts, any such challenge is waived). Thus, any challenge to
the discretionary aspects of Cowan’s sentence could not be pursued in this
direct appeal.
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and are to be deferred to collateral review under the Post Conviction Relief Act
(“PCRA”).
“[A]s a general rule, a petitioner should wait to raise claims of ineffective
assistance of trial counsel until collateral review.” Commonwealth v. Grant,
813 A.2d 726, 738 (Pa. 2002). Our Supreme Court has recognized two very
limited exceptions to the general rule: (1) in extraordinary circumstances
where claims of trial counsel’s ineffectiveness are apparent from the record
and immediate consideration best serves the interests of justice and/or; (2)
where there is good cause shown and review of the claim is preceded by a
waiver of the right to seek collateral review. Commonwealth v. Holmes, 79
A.3d 562, 563-64 (Pa. 2013). More recently, our Supreme Court also adopted
a third exception, which requires “trial courts to address claims challenging
trial counsel’s performance where the defendant is statutorily precluded from
obtaining subsequent PCRA review.” Commonwealth v. Delgros, 183 A.3d
352, 361 (Pa. 2018) (holding that that where a defendant is statutorily
ineligible for PCRA review as a result of a sentence that imposed only a fine,
due process requires that an exception be made to the general rule barring
review of collateral claims on direct review).
Here, the first two exceptions to the general deferral rule do not apply.
Plea counsel’s ineffectiveness is not apparent from the record, and Cowan
never executed a waiver of his PCRA rights. With respect to the third
exception, Cowan is not eligible for PCRA relief because his sentence consisted
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of only fines and costs. See 42 Pa.C.S.A. § 9543(a)(1)(i) (stating that to be
eligible for PCRA relief, the petitioner must, in part, “plead and prove by a
preponderance of the evidence that the petitioner has been convicted of a
crime under the laws of this Commonwealth and is at the time relief is granted
. . . currently serving a sentence of imprisonment, probation or parole for the
crime”). Thus, the third exception may apply in this case.
However, the three exceptions to the general deferral rule contemplate
the allowance of trial court discretion to entertain ineffectiveness claims prior
to collateral review when an exception applies. See Delgros, 183 A.3d at
360-61; see also Holmes, 79 A.3d at 576 (stating, “unitary review effectively
advances a PCRA attack to the post-verdict stage”). Thus, it is for trial court,
in the first instance, to decide ineffectiveness claims in those limited instances
in which an exception applies.
Notably, in Delgros, the defendant was convicted of receiving stolen
property, but was not sentenced to any term of imprisonment, probation, or
parole. Instead, the trial court imposed a fine and ordered him to pay
restitution. 183 A.3d at 345. The defendant obtained new counsel and filed
a post-sentence motion challenging, inter alia, trial counsel’s infectiveness.
Id. The trial court declined to review the ineffectiveness claims under the
Grant general deferral rule, and on direct appeal, this Court affirmed on the
basis that neither of the Holmes exceptions applied. Our Supreme Court
vacated the judgment of sentence and remanded for the trial court to consider
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the ineffectiveness claims raised in the defendant’s post-sentence motion. Id.
at 363. In so doing, the Court adopted the third exception to the Grant
general deferral rule, requiring trial courts to address claims challenging trial
counsel’s performance where the defendant is statutorily precluded from
obtaining subsequent PCRA review. Id. at 361.
Here, unlike in Delgros, Cowan did not raise a claim of plea counsel
ineffectiveness before the trial court. We have found no authority allowing for
appellate review of an ineffectiveness claim when the defendant has failed to
raise it before the trial court in the first instance. See Pa.R.A.P. 302(a)
(providing that issues not raised in the lower court are waived and cannot be
raised for the first time on appeal). Rather, our Supreme Court has repeatedly
emphasized the importance of allowing meaningful consideration of an
ineffectiveness claim by the trial court prior to appellate review. In Grant, in
which our Supreme Court announced the general deferral rule, the Court
observed that appellate review is impractical without an adequate record in
the court below. See Delgros, 183 A.3d 360-61. We therefore conclude
that, in the instant case, any claim of plea counsel’s ineffectiveness is waived,
and cannot be addressed by this Court.7
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7 Even if Cowan had preserved his ineffectiveness claim, he would not be
entitled to relief. The appellate courts of this Commonwealth have
consistently held that plea counsel is not constitutionally ineffective for failing
to advise a defendant of the collateral consequences of a guilty plea.
Commonwealth v. Abraham, 62 A.3d 343, 350 (Pa. 2012) (citing
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Finally, as required by Anders, we have independently reviewed the
record in order to determine whether there are any non-frivolous issues
present in this case. Our independent review of the record discloses no other
non-frivolous issues that Cowan could raise that his appellate counsel
overlooked. See Dempster, supra. Having concluded that there are no
meritorious issues, we grant counsel’s application to withdraw and affirm
Cowan’s judgment of sentence.
Application to withdraw granted. Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/1/2020
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Commonwealth v. Frometa, 555 A.2d 92, 93 (Pa. 1989) (noting that
defense counsel need only advise a criminal defendant of the direct
consequences of pleading guilty)). As explained above, the loss of the right
to own a firearm is a collateral consequence of pleading guilty. See
Abraham, 62 A.3d at 350 n.8. Thus, Cowan’s plea counsel was not ineffective
for failing to advise Cowan that, by pleading guilty to the possessory drug
charges, he would lose his license to carry a firearm.
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