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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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


                                     -2-
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.


                                     -3-
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
                      1\



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.




                                                 4
      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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