Com. v. Mitchell, A.

• Court: Superior Court of Pennsylvania
• Decided: April 14, 2025
• Docket: 1134 MDA 2024
• Status: Unpublished

Opinion

J-S10034-25

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37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. 1134 MDA 2024

Appeal from the Order Entered July 25, 2024 In the Court of Common Pleas of Luzerne County Criminal Division at No(s): CP-40-CR-0004779-2016

BEFORE: BOWES, J., OLSON, J., and SULLIVAN, J.

MEMORANDUM BY SULLIVAN, J.: FILED: APRIL 14, 2025

Anthony Lee Mitchell (“Mitchell”) appeals from the denial of his petition

for relief under the Post Conviction Relief Act. 1 PCRA counsel, Matthew P.

Kelly, Esquire (“Counsel”) has filed a petition to withdraw and a “no-merit”

brief pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and

Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc). We

affirm and grant Counsel’s petition to withdraw.

In May 2018, Mitchell pled guilty to unlawful contact with a minor as a

second-degree felony. In August 2018, the court imposed a prison sentence

of one to two years followed by two years of special probation. Mitchell served

his entire term of probation; however, on September 9, 2020, the court

revoked his probation for failing to complete sex offender treatment and

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1 See 42 Pa.C.S.A. §§ 9541-9546. J-S10034-25

imposed a sentence of one to four years of incarceration. See Order of Court,

9/9/20.

Mitchell filed a pro se PCRA petition in March 2022. An attorney was

appointed and represented Mitchell at an evidentiary hearing. The PCRA court

dismissed the petition as untimely filed. On appeal, this Court vacated the

order dismissing the petition as untimely and remanded the case to the PCRA

court because we could not conclude Mitchell had the benefit of meaningful

representation by PCRA counsel. See Commonwealth v. Mitchell, 315 A.3d

113 at *3 (Pa. Super. 2024) (unpublished memorandum).

On remand, the PCRA court appointed Counsel, who filed a supplemental

PCRA petition in July 2024. The court conducted an evidentiary hearing and

dismissed the petition as untimely filed. Mitchell appealed and the PCRA court

complied with Pa.R.A.P. 1925. Counsel has filed a petition to withdraw and a

no-merit brief in this Court. Mitchell has not filed a response.

Prior to addressing the merits of this appeal, we must first consider

Counsel’s petition to withdraw. In a PCRA matter, an application to withdraw

as counsel must comply with the Turner/Finley requirements:

Counsel petitioning to withdraw from PCRA representation must proceed . . . under Turner and Finley[ ] and must review the case zealously. Turner/Finley counsel must then submit a “no-merit” letter to the trial court, or brief on appeal to this Court, detailing the nature and extent of counsel’s diligent review of the case, listing the issues which petitioner wants to have reviewed, explaining why and how those issues lack merit, and requesting permission to withdraw.

Counsel must also send to the petitioner: (1) a copy of the “no[- ]merit” letter/brief; (2) a copy of counsel’s petition to withdraw;

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and (3) a statement advising petitioner of the right to proceed pro se or by new counsel.

Commonwealth v. Doty, 48 A.3d 451, 454 (Pa. Super. 2012) (citation and

brackets omitted). If this Court determines counsel has satisfied these

technical requirements, we then conduct our own review of the case and if we

agree the claims are without merit, we will permit counsel to withdraw and

deny relief. See id.

Here, Counsel has satisfied the above procedural requirements. Counsel

avers that he conscientiously examined the record, sets forth the factual and

procedural history of the case, lists the issues Mitchell wished to have

reviewed, concludes that the present appeal is without merit, and explains the

reasons for his conclusions. See Petition to Withdraw as Counsel, 12/17/24,

at 1; No-Merit Brief at 6-8. Counsel has also attached to his petition to

withdraw a copy of a letter advising Mitchell of his conclusions, his intent to

withdraw, and Mithcell’s right to proceed pro se or with new counsel. See

Petition to Withdraw, 12/7/24. Counsel’s letter indicates he attached copies

of his no-merit brief and petition to withdraw. See id. Thus, we proceed to

conduct an independent review of the record to determine if the appeal lacks

merit.

In his brief, Counsel identifies the following issues for review:

I. Whether [Mitchell’s] PCRA was timely filed pursuant to the exceptions listed in 42 Pa.C.S.A. § 9545 because he never received a copy of his original sentencing order until sometime in 2022[?]

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II. Whether [trial] counsel was ineffective in counseling [Mitchell] to admit to a probation violation for non-completion of the sex offender treatment program which was never ordered in the original sentencing order[?]

Turner/Finley Brief at 1.

Our standard of review of an order dismissing a PCRA petition does not

permit us to disturb a PCRA court’s ruling that is free of legal error. See

Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super. 2012). The PCRA

plainly states that to be eligible for relief a petitioner must be “currently

serving a sentence of imprisonment, probation or parole for the crime.” 42

Pa.C.S.A. § 9543(a)(1)(i) (emphasis added). See also Commonwealth v.

Tinsley, 200 A.3d 104, 107 (Pa. Super. 2018) (holding as soon as a petitioner

completes his sentence, he is ineligible for PCRA relief, regardless of whether

he was serving his sentence when he filed the petition); Commonwealth v.

Plunkett, 151 A.3d 1108, 1113 (Pa. Super. 2016) (same).

Counsel states Mitchell is no longer serving a sentence and is thus

ineligible for PCRA relief. See Counsel’s Turner/Finley Brief, 12/17/24, at 8.

Mitchell finished serving his sentence on September 9, 2024, at the

conclusion of his one-to-four-year sentence for violating the terms of his

probation. Because Mitchell is no longer serving a sentence, he is ineligible

for PCRA relief. See 42 Pa.C.S.A. §9543(a)(1)(i); Tinsley, 200 A.3d at 107;

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Plunkett, 151 A.3d at 1113. On that basis, we affirm the PCRA court’s order

dismissing Mitchell’s petition.2

Order affirmed. Petition to withdraw as counsel granted.

Judgment Entered.

Benjamin D. Kohler, Esq. Prothonotary

Date: 04/14/2025

2 Although the PCRA court cited other reasons for dismissing Mitchell’s petition, where the result is correct, we may affirm a decision on any proper ground even if not cited by the PCRA court. See Commonwealth v. Lehman, 275 A.3d 513, 520 n.5 (Pa. Super. 2022).

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