J-S20034-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
RANDY LEE ECK :
:
Appellant : No. 1514 WDA 2018
Appeal from the Judgment of Sentence Entered October 8, 2018
In the Court of Common Pleas of Erie County
Criminal Division at No(s): CP-25-CR-0000894-2018
BEFORE: GANTMAN, P.J.E., McLAUGHLIN, J., and MUSMANNO, J.
MEMORANDUM BY GANTMAN, P.J.E.: FILED MAY 03, 2019
Appellant, Randy Lee Eck, appeals from the judgment of sentence
entered in the Erie County Court of Common Pleas, following his open guilty
plea to recklessly endangering another person, driving while operating
privilege is suspended or revoked, and speeding in a school zone.1 We affirm.
In its opinion, the trial court fully and correctly set forth the relevant
facts and procedural history of this case. Therefore, we have no reason to
restate them. Procedurally, we add Appellant filed a pro se PCRA petition on
October 18, 2018. On October 22, 2018, Appellant’s plea counsel filed a notice
of appeal. On the same day, the court appointed PCRA counsel. On October
23, 2018, the court vacated its order appointing PCRA counsel and struck
____________________________________________
1 18 Pa.C.S.A. § 2705, 75 Pa.C.S.A. §§ 1543(a), 3365(b), respectively.
J-S20034-19
Appellant’s pro se PCRA petition without prejudice. The court also ordered
Appellant to file a concise statement of errors complained of on appeal per
Pa.R.A.P. 1925(b); Appellant timely complied on November 8, 2018.
Appellant raises the following issue for our review:
DID THE TRIAL COURT ERR WHEN IT DENIED APPELLANT’S
MOTION TO WITHDRAW GUILTY PLEA WITHOUT A
HEARING?
(Appellant’s Brief at 7).
A valid guilty plea must be knowingly, voluntarily and intelligently
entered. Commonwealth v. Pollard, 832 A.2d 517 (Pa.Super. 2003). 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 (Pa.Super. 2002). Specifically,
the court must affirmatively demonstrate a 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 (Pa.Super. 2003). This Court will
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. Muhammad, 794 A.2d 378
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J-S20034-19
(Pa.Super. 2002). Pennsylvania law presumes a defendant who entered a
guilty plea was aware of what he was doing and bears the burden of proving
otherwise. Pollard, supra. A defendant who decides to plead guilty is bound
by the statements he makes while under oath, “and he may not later assert
grounds for withdrawing the plea which contradict the statements he made at
his plea colloquy.” Id. at 523. “Our law does not require that a defendant be
totally pleased with the outcome of his decision to plead guilty, only that his
decision be voluntary, knowing and intelligent.” Id. at 524.
After a thorough review of the record, the briefs of the parties, the
applicable law, and the well-reasoned opinion of the Honorable John Garhart,
we conclude Appellant’s issue merits no relief. The trial court opinion
comprehensively discusses and properly disposes of the question presented.
(See Trial Court Opinion, filed December 4, 2018, at 2-3) (finding: rules of
criminal procedure do not require hearing on motion to withdraw guilty plea;
in his motion to withdraw his plea, Appellant failed to make averment of
innocence or claim that withdrawal of plea would promote fairness and justice;
parties did not raise question of Appellant’s competency at guilty plea hearing
or sentencing; Appellant signed “Statement of Understanding Rights,”
indicating he understood plea and its potential consequences; Appellant did
not indicate he lacked understanding during guilty plea or sentencing
colloquies). Accordingly, we affirm on the basis of the trial court opinion.
Judgment of sentence affirmed.
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J-S20034-19
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/3/2019
-4-
Circulated 04/17/2019 02:12 PM
COMMONWEALTH OF IN THE COURT OF COMMON PLEAS
PENNSYLVANIA OF ERIE COUNTY, PENNSYLVANIA
v. CRIMINAL DIVISION
RANDY LEE ECK No. 894 of2018
Appellant
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On October 22, 2018, Appellant filed a Notice of Appeal from this Co. .
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2018 Sentencing Order. On November 8, 2018 Appellant filed a Statement ·m- Ma:rs ,J.·
Complained of on Appeal raising two issues: 1.) the lower court erred in refusing to allow the
Appellant a court hearing on his Motion to Withdraw Guilty Plea; and 2. the lower Court erred in
abusing its discretion in sentencing Mr. Eck to a[n] aggravated sentence. (Concise Statement,
filed November 8, 2018).
I. BACKGROUND FACTS
On February 20, 2018, Appellant, who had an outstanding warrant, eluded Erie County
Sheriffs, leading them on a high speed chase through a school zone, through a red light, passing
cars in no passing zones, and involving speeds of between 70 to 90 miles per hour.(Affidavit of
Probable Cause in support of Arrest Warrant, 2/26/18). Eventually, Appellant pulled over and
surrendered. Appellant was charged with eight counts including, inter alia, Recklessly
Endangering Another Person (REAP), Driving While Operating Privileges Suspended; Speeding
in a School Zone; and Disorderly Conduct.
On May 15, 2018, Appellant's court appointed trial counsel requested a competency
examination of Appellant. On May 31, 2018, the Pennsylvania Department of Human Services
issued a competency report following a competency evaluation of Appellant performed by Curtis
1
V. Mayemick, M.D., a psychiatrist. Dr. Mayemick's report finds that Appellant has told multiple
versions of the truth at different times and that this is "a reflection of his repeated acts of deceit;
it is not pathognomonic of dementia." Dr. Mayemick concludes as follows:
If he chooses, I believe he can recount his charges and demonstrate a complete
understanding of them. Likewise, I also believe that he is able to work with his
attorney and assist in his own defense, if he chooses to do so. In line with this, he
is also capable of withstanding all of the rigors associated with a trial.
In conclusion, I believe that Mr. Randy Eck is competent to move forward
with the charges which have been brought against him.
(May 31, 2018, Competency Evaluation submitted by Curtis V. Mayernik, M.D., p. 12).
On August 20 2018, Appellant pied guilty to REAP, Driving While Operating
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Privileges Revoked, and Speeding in a School Zone. The remainder of the charges were
withdrawn. On September 5, 2018, Appellant filed a counseled Motion to Withdraw Guilty Plea1
which was denied without a hearing on September 13, 2018. On October 8, 2018, Appellant was
sentenced to 4 to 12 months' confinement followed by one year of probation for (REAP) and 2
to 4 months' confinement for Driving While Operating Privileges Suspended, consecutive. No
further penalty was assessed for Speeding in a School Zone. During the Sentencing Colloquy
neither Appellant nor his counsel raised any issue concerning Appellant's understanding of the
charges or his sentence. On October 22, 2018, Appellant filed a timely Notice of Appeal and on
November 8, 2018 Appellant filed a Statement of Matters Complained of on Appeal.
II. ANALYSIS
1. Hearing on Motion to Withdraw Guilty Plea
Appellant first challenges this Court's failure to afford him a hearing on his Motion to
Withdraw Guilty Plea which was denied by this Court on September 13, 2018, without a hearing.
1
The Motion to Withdraw Plea stated only that "Defendant., .indicates that he did not understand why he
was pleading guilty, he did not understand the basis of the plea, did not understand the implications of
various sentences he may be subjected to with pleading guilty." (Motion to Withdraw Guilty Plea,
Paragraph 3, 9/5/18).
2
We first notethat Pa.R.Crim.P., Rule 591 does not require a hearing on a Motion to Withdraw a
Guilty Plea. Moreover, Appellant's Motion to Withdraw Guilty Plea failed to make any
averment of innocence, let alone a plausible assertion of innocence or a demonstration that doing
so would promote fairness and justice. Commonwealth v. Carrasquillo, 115 A.3d 1284, 1292
(Pa. 2015)(there is no per se rule regarding pre-sentence request to withdraw a plea, and bare
assertion of innocence is not a sufficient reason to require a court to grant such request). The
Pennsylvania Supreme Court has clarified that "a defendant's innocence claim must be at least
plausible to demonstrate, in and of itself, a fair and just reason for presentence withdrawal of a
plea." Id. The proper inquiry on consideration of such a withdrawal motion is whether the /
accused has made some colorable demonstration, under the circumstances, such that permitting
withdrawal of the plea would promote fairness and justice. Commonwealth v. Davis, 191 A.3d
883 (Pa. Super. 2018). This Court was justified in exercising its discretion to deny Appellant's
Motion to Withdraw Guilty Plea without a hearing since there was no claim that Appellant was
innocent and no claim that the withdrawal of the plea would promote fairness andjustice.2
2. Abuse of Discretion in Sentencing
Sentencing is a matter vested in the sound discretion of the sentencing judge, and
a sentence will not be disturbed on appeal absent a manifest abuse of discretion.
In this context, an abuse of discretion is not shown merely by an error in
2
We note that prior to the entry of Defendant's plea this Court obtained a competency evaluation
concluding that Appellant was, in fact, competent. This Court relied on and accepted the competency
evaluation submitted on May 31, 2018, which states that, "Ifhe chooses, I believe [Appellant] can recount
his charges and demonstrate a complete understanding of them. Likewise, I also believe that he is able to
work with his attorney and assist in his own defense ... " (May 31, 2018, Competency Evaluation
submitted by Curtis V. Mayernik, M.D., p. 12).The competency report concludes, "Mr. Randy Eck is
competent to move forward with the charges which have been brought against him." Id. Although this
Court did not issue a formal finding of competency, it accepted and Dr. Mayernik's report and proceeded
on the basis of Appellant's competency, without objection by Appellant, his counsel or the
Commonwealth. Neither Appellant, nor Appellant's counsel, nor the Commonwealth raised the question
of Appellant'scompetency during Appellant's plea or sentencing. Appellant signed a "Statement of
Understanding Rights" indicating that he understood the plea and its potential consequences. Appellant
did not indicate to the court in any fashion that he lacked understanding during either the plea or
sentencing colloquies. N.T. Plea, 8/20/18, N.T. Sentencing, 10/8/18).
3
.«.
judgment. Rather, the appellant must establish, by reference to the record, that
the sentencing court ignored or misapplied the law, exercised its judgment for
reasons of partiality, prejudice, bias or ill will, or arrived at a manifestly
unreasonable decision.
Commonwealth v. Rodda, 723 A.2d 212, 214 (Pa.Super. 1999) (en bane) (internal quotations and
citations omitted).
Where the sentencing court has the benefit of a pre-sentence report, the law presumes that
the court was aware of the relevant information regarding the appellant's character and weighed
those considerations along with the mitigating statutory factors delineated in the Sentencing
Code. Commonwealth v. Cruz-Centeno, 668 A.2d 536, 545 (Pa.Super. 1995)(quotation and
citations omitted). Having been fully informed by the pre-sentence report, the sentencing court's
discretion should not be disturbed. Id
Here, Judge Garhart considered the following: (1) pre-sentence investigative report; (2)
Pennsylvania Sentencing Code and all its factors; (3) the Pennsylvania Sentencing Guidelines;
(4) statements by Appellant and counsel; (5)Appellant's age, background and rehabilitative
needs; (8) the nature, circumstances, and seriousness of the offense; and, (9) protection of the
community. (N.T. Sentencing, 10/8/18, pp. 17-20). The sentence was tailored to Appellant's
individual situation and the reasons for the sentence imposed were clearly set forth on the record.
Any lesser sentence would have depreciated the nature of the offense. Appellant's sentence was
within the statutory limits and not manifestly excessive, there was no sentencing error.
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III. CONCLUSION
Based on the above, this Court respectfully requests that Appellant's judgment of
sentence be affirmed. The Clerk of Court is hereby directed to submit the record to the
Pennsylvania Superior Court for its review.
/
cc: District Attorney's Office ·/·
John Bonanti, Esq. V
Randy Lee Eck ·/
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