Com. v. Mitchell, A.

• Court: Superior Court of Pennsylvania
• Decided: February 28, 2024
• Docket: 1153 MDA 2022
• Status: Unpublished

Opinion

J-S27041-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : ANTHONY LEE MITCHELL : : Appellant : No. 1153 MDA 2022

Appeal from the PCRA Order Entered August 9, 2022 In the Court of Common Pleas of Luzerne County Criminal Division at No(s): CP-40-CR-0004779-2016

BEFORE: BENDER, P.J.E., BOWES, J., and SULLIVAN, J.

MEMORANDUM BY SULLIVAN, J.: FILED FEBRUARY 28, 2024

Anthony Lee Mitchell (“Mitchell”) appeals pro se from the order granting

in part and dismissing in part the petition he filed pursuant to the Post

Conviction Relief Act (“PCRA”).1 Additionally, Mitchell has filed three

applications for remand or relief. We vacate the order, remand this matter

for further proceedings consistent with this decision, and dismiss Mitchell’s

applications as moot.

We summarize the factual history and procedural history of this appeal

from the record. Mitchell pleaded guilty to unlawful contact of a minor, graded

as a second-degree felony, and in August 2018, the trial court sentenced him

to one to two years of imprisonment to be followed by two years of probation.

Mitchell apparently completed the maximum term of his imprisonment and

was released on probation in August 2020. Several days later, the ____________________________________________

1 See 42 Pa.C.S.A. §§ 9541-9546. J-S27041-23

Commonwealth took Mitchell into custody and filed a petition to revoke his

probation, alleging that he failed to secure an approved residence and

participate in a recommended sexual offender treatment class while in prison.2

On September 9, 2020, the trial court held a violation of probation (“VOP”)

hearing, revoked Mitchell’s probation, and resentenced him to one to four

years of imprisonment (“the VOP sentence”). Mitchell did not file a motion to

modify, or an appeal from, the VOP sentence.

In March 2022, the PCRA court received Mitchell’s pro se “Motion for Jail

Credit and/or Petition for Post Conviction Collateral Relief” (“the March 2022

petition”). Mitchell’s Pro Se Petition, 3/8/22. Therein, Mitchell claimed that

the trial court failed to award him credit for the two years he served in prison

on his original sentence and the thirty days in August and September 2022 he

spent in custody before the imposition of the VOP sentence. See id. at ¶ 11.

He also asserted his claim for sentencing credit fell within an exception to the

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2 While Mitchell was serving his sentence, the trial court, in November 2018,

granted a request by the Pennsylvania Board of Probation and Parole (“the Board”) to modify the terms of Mitchell’s probation or parole to include additional special sexual offender conditions. Mitchell apparently signed a form acknowledging the modified conditions. However, it is unclear from the record whether the trial court held a hearing to consider the Board’s request to modify the terms of Mitchell’s probation or parole. See Commonwealth v. Dell, 305 A.3d 613, 615 (Pa. Super. 2023) (holding that when more than thirty days have passed after sentencing, increases in the conditions of a probationary sentence are subject to 42 Pa.C.S.A. § 9771).

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PCRA time bar because he did not receive a copy of the VOP sentencing order.

See id. at ¶¶ 12-15.3

James W. Barr, Esquire (“Attorney Barr”) entered a limited appearance

on behalf of Mitchell to “prepare and present a parole petition or similar

document.” See Entry of Appearance, 3/25/22 (some capitalization omitted).

The PCRA court also appointed separate PCRA counsel (“appointed PCRA

counsel”). Appointed PCRA counsel moved to withdraw after discovering

Attorney Barr’s entry of appearance and apparently confirming with Attorney

Barr that Attorney Barr would act as Mitchell’s PCRA counsel. See Motion to

Withdraw, 6/28/22, at ¶¶ 2-3. The court granted appointed PCRA counsel

leave to withdraw, noting that Attorney Barr had entered an appearance for

Mitchell. See Order 6/29/22, at 1. The Commonwealth filed an answer to the

March 2022 petition and asserted Mitchell failed to timely file the petition

pursuant to the PCRA.4 Attorney Barr did not file an amended PCRA petition

or a written response to the Commonwealth’s answer. ____________________________________________

3 As discussed below, the March 2022 petition must be regarded as a PCRA

petition, Mitchell’s first following the VOP sentence.

4 It is well settled that under the PCRA, any petition must be filed within one

year of the date on which the judgment of sentence becomes final. See 42 Pa.C.S.A. § 9545(b)(1). A judgment of sentence becomes final at the conclusion of direct review, including discretionary review in the Supreme Court of the United States and the Supreme Court of Pennsylvania, or at the expiration of time for seeking the review. See 42 Pa.C.S.A. § 9545(b)(3). The PCRA’s timeliness requirements are jurisdictional in nature, and a court may not address the merits of the issues raised if the PCRA petition was not timely filed. See Commonwealth v. Albrecht, 994 A.2d 1091, 1093 (Pa. (Footnote Continued Next Page)

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Attorney Barr appeared at hearing, at which Mitchell participated by

video. Attorney Barr referenced, without any additional argument or

comment, the Commonwealth’s answer that the March 2022 petition was

untimely and highlighted Mitchell’s pro se assertions that he did not receive a

copy of VOP sentencing order. See N.T., 8/9/22, at 2-3. Attorney Barr also

argued that the Commonwealth agreed to partial relief in the form of thirty

days credit, and the Commonwealth conceded that point. See id. at 4.

The PCRA court determined that the March 2022 petition was untimely

filed and Mitchell should have known at the time of sentencing that the court

failed to award credit on the VOP sentence. See id. at 3. Despite its findings

that it lacked jurisdiction to grant relief under the PCRA, the court elected to

award Mitchell thirty days of credit toward the VOP sentence. See id. at 5-6.

The court entered an order memorializing its rulings on August 9, 2022.5

Mitchell timely filed a pro se notice of appeal.

A convoluted series of procedures ensued, during which Mitchell filed,

or attempted to file, at least five Pa.R.A.P. 1925(b) statements, either through

2010). Here, the VOP sentence became final on October 9, 2020, when he did not take a direct appeal, and Mitchell thus had until October 11, 2021 to file a facially timely PCRA petition. See 42 Pa.C.S.A. § 9545(b)(1), (3); see also 1 Pa.C.S.A. § 1908. However, Mitchell filed the March 2022 petition nearly five months late. Therefore, Mitchell’s March 2022 petition was facially untimely, and Mitchell bore the burden of pleading and proving one of three exceptions set forth under 42 Pa.C.S.A. § 9545(b)(1). See Commonwealth v. Taylor, 65 A.3d 462, 468 (Pa. Super. 2013).

5 The clerk of the court separately docketed the August 9, 2022 order as dismissing Mitchell’s PCRA petition and granting a motion for jail credit.

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counsel or pro se, and which culminated in the PCRA court holding a Grazier

hearing,6 permitting Mitchell to proceed pro se in this appeal, but denying

Mitchell’s request to file another amended pro se Rule 1925(b) statement.

See Order, 1/19/23, at 1; Order 4/19/23, at 1. Mitchell has filed an

appellant’s brief, a supplemental brief, and three applications for remand or

relief.7

Before addressing Mitchell’s appellate issues, we note that the March

2022 petition, which Mitchell filed pro se, challenged the VOP sentence and

raised a cognizable claim under the PCRA. See Commonwealth v. Fowler,

930 A.2d 586, 592, 595 (Pa. Super. 2007) (noting that challenges to VOP

proceedings and the failure to award sentencing credits are cognizable under

the PCRA). Moreover, this was Mitchell’s first such petition, and he therefore

had a rule-based right to counsel. See Commonwealth v. Bates, 272 A.3d

6 See Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).

7 In his appellant’s brief, Mitchell sought reinstatement of his right to appeal

the VOP sentence, asserted that the March 2022 petition should have been regarded as timely filed under the PCRA, and Attorney Barr was ineffective. See Mitchell’s Brief at 4. In his supplemental appellant’s brief, Mitchell asserted the PCRA court erred in refusing to allow him leave to file an amended Rule 1925(b) statement. See Mitchell’s Supplemental Brief at 1.

Mitchell’s applications before this panel include: (1) requests for remand to supplement the record, allow him to file an amended Rule 1925(b) statement, and have counsel appointed, see Application for Remand, 5/5/23, at 15-16; (2) a request to have the matter submitted without an appellee’s brief or to direct service of the appellee’s brief, see Application for Relief, 7/20/23, at ¶¶ 12-13; and (3) a request to file a reply brief, see Application for Relief, 8/7/23, at ¶ 8.

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984, 988 (Pa. Super. 2022); see also Pa.R.Crim.P. 904(C). That right to

counsel applied even if the underlying PCRA petition was facially untimely.

See Commonwealth v. Perez, 799 A.2d 848, 851-52 (Pa. Super. 2002).

The right to counsel requires more than the mere designation of an

attorney as PCRA counsel. See id. at 852. The petitioner is entitled to the

effective assistance of counsel. See Commonwealth v. Bradley, 261 A.3d

381, 391 (Pa. 2021). PCRA counsel has clear duties with respect to a pro se

PCRA petition and must either (1) amend the pro se petition and present the

petitioner’s claims in acceptable legal terms or (2) certify that the claims lack

merit by complying with the procedures for withdrawing from representation.

See Commonwealth v. Cherry, 155 A.3d 1080, 1083 (Pa. Super. 2017).

“The guidance and representation of an attorney during collateral review

ensures that meritorious legal issues are recognized and addressed, and that

meritless claims are abandoned.” See Bradley, 261 A.3d at 391.

Following our review of the record, we are not convinced that the PCRA

court afforded Mitchell the full benefit of his right to PCRA counsel. After

Mitchell filed the March 2022 petition pro se, Attorney Barr entered an

appearance but expressly stated that the scope of his representation was

limited to seeking parole or related matters. See Entry of Appearance,

3/25/22. The PCRA court attempted to appoint separate PCRA counsel but

ultimately did not do so because Attorney Barr had entered an appearance.

The record, however, is devoid of any meaningful inquiry into the actual scope

of Attorney Barr’s private representation. Even if Attorney Barr represented

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Mitchell as PCRA counsel, he took no action to amend the March 2022 petition

or respond to the Commonwealth’s answer, and he merely appeared at a

hearing on Mitchell’s behalf. At that hearing, Attorney Barr only recited

Mitchell’s pro se attempts to avoid the PCRA time bar and did not substantively

address the timeliness of the March 2022 petition, any possible exceptions to

the PCRA time bar, or any other claims Mitchell might have intended to raise

in the PCRA proceeding. See N.T., 8/9/22, at 2-4.

Based on this record, we cannot conclude that Mitchell had the benefit

of meaningful representation for the litigation of a first PCRA petition. See

Perez, 799 A.2d at 851-53; see also Cherry, 155 A.3d at 1083. Rather,

consistent with his limited entry of appearance, Attorney Barr only discussed

issues related to Mitchell’s parole from the VOP sentence. Attorney Barr did

not meaningfully consider the timeliness of Mitchell’s PCRA petition or certify

to the court that he believed there were no meritorious timeliness exceptions

or issues for review. Therefore, we vacate the PCRA court’s order and remand

for the court to determine whether Mitchell is indigent and the court should

appoint new PCRA counsel. See Perez, 799 A.2d at 851-53; Pa.R.Crim.P.

904(C). If appointed by the court or obtained by Mitchell, new PCRA counsel

shall consider all PCRA claims Mitchell intends to raise with respect to his

September 2020 VOP sentence, but as threshold matter, counsel must

consider whether Mitchell can state a PCRA time-bar exception to invoke the

PCRA court’s jurisdiction to consider his claims. See Perez, 799 A.2d at 853

(noting that “counsel appointed to assist an indigent petitioner on an

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apparently untimely PCRA petition must at least investigate whether the

petition is indeed untimely, and if so, whether the petition fits one of the

exceptions to the PCRA’s timeliness provisions”). PCRA counsel shall

thereafter present the petitioner’s intended claims in acceptable legal terms

or certify that the claims lack merit by complying with the procedures for

withdrawing from representation. See Cherry, 155 A.3d at 1083.8 If,

following a Grazier hearing, the court determines Mitchell intends to proceed

pro se, it shall afford Mitchell an opportunity to set forth his arguments

concerning the timeliness of his petition and his PCRA claims. In light of our

disposition, we need not address the merits of Mitchell’s several applications

for relief and deny them as moot.

Order vacated. Case remanded with instructions. All outstanding

applications denied as moot. Jurisdiction relinquished.

8 We also note that it appears that the window for Mitchell’s eligibility to litigate

PCRA claims from the VOP sentence is dwindling as he will likely not be serving his VOP sentence after September 2024. See 42 Pa.C.S.A. § 9543(a)(1)(i) (stating that to be eligible for PCRA relief, a petitioner must be currently serving a sentence of imprisonment, probation, or parole for a crime). Accordingly, we direct the PCRA court to expedite this matter for further consideration upon remand.

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Judgment Entered.

Benjamin D. Kohler, Esq. Prothonotary

Date: 02/28/2024

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