Com. v. Mitchell, J.

• Court: Superior Court of Pennsylvania
• Decided: September 3, 2024
• Docket: 1191 WDA 2023
• Status: Unpublished

Opinion

J-S18024-24

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : JARVIS L. MITCHELL : : Appellant : No. 1191 WDA 2023

Appeal from the PCRA Order Entered August 23, 2023 In the Court of Common Pleas of Venango County Criminal Division at No(s): CP-61-CR-0000053-2019

BEFORE: PANELLA, P.J.E., McLAUGHLIN, J., and SULLIVAN, J.

MEMORANDUM BY McLAUGHLIN, J.: FILED: September 3, 2024

Jarvis L. Mitchell appeals from the order dismissing his Post Conviction

Relief Act (“PCRA”) petition. See 42 Pa.C.S.A. §§ 9541-9546. Mitchell’s

counsel has filed an Anders1 brief and a petition to withdraw as counsel. We

affirm the order dismissing Mitchell’s PCRA petition and grant counsel’s

petition to withdraw.

In January 2020, Mitchell entered a negotiated guilty plea to corrupt

organizations and drug delivery resulting in death.2 He was sentenced to an

aggregate term of imprisonment of 108 to 240 months. Mitchell did not file a

post-sentence motion or direct appeal.

____________________________________________

1 Anders v. California, 386 U.S. 738 (1967).

2 18 Pa.C.S.A. §§ 911(b)(3) and 2506(a), respectively. J-S18024-24

Mitchell filed a pro se PCRA petition in January 2021. Counsel was

appointed and subsequently filed a Turner/Finley3 no-merit letter and a

petition to withdraw as counsel.

In May 2023, the PCRA court issued a Rule 907 notice of intent to

dismiss the petition without a hearing, along with an accompanying opinion.

See Pa.R.Crim.P. 907(1). In its Rule 907 opinion, the court determined that

counsel’s Turner/Finley no-merit letter and petition to withdraw

substantially complied with the procedural requirements for withdrawing from

representation. See Rule 907 Opinion, 5/18/23, at 4. It then conducted an

independent review of the issues raised in Mitchell’s PCRA pro se petition and

determined that they were meritless. Id. at 4-15. The court granted counsel’s

request to withdraw as counsel. Order, 5/18/23.

Mitchell filed a pro se response to the court’s Rule 907 notice, and the

PCRA court subsequently dismissed Mitchell’s petition by order entered August

23, 2023. The court stated in its order that it had reviewed Mitchell’s pro se

response to its Rule 907 notice and concluded that Mitchell’s issues were

meritless. Order, 8/23/23, at 2. The order provided that Mitchell could “appeal

this [o]rder within thirty (30) days pursuant to Pa.R.A.P. 903 and is entitled

to counsel on appeal from his first PCRA petition.” Id. at 3.

3 Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v.

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

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On October 3, 2023, Mitchell filed a pro se notice of appeal.4 The PCRA

court scheduled a Grazier5 hearing for October 23, 2023. At the hearing,

Mitchell requested that counsel be appointed, and the court appointed counsel.

The court then issued a Pa.R.A.P. 1925(b) order, and, in lieu of a Rule 1925(b)

statement, counsel filed a statement of intent to file an Anders brief. See

Pa.R.A.P. 1925(c)(4). Counsel filed an Anders brief and a petition to withdraw

with this Court. Mitchell did not file a response to counsel’s petition to

withdraw.

Counsel raises the following issues in the Anders brief:

1. Was trial counsel ineffective for failing to argue that the Commonwealth erred in adding the drug delivery resulting in death charges after the preliminary hearing?

2. Was trial counsel ineffective in failing to argue that the evidence that bound over the charges in this case from the preliminary hearing based on inconsistent statements made by the Commonwealth’s witnesses and did his trial attorney err in failing to point out those discrepancies?

3. Was trial counsel ineffective in failing to argue that the Commonwealth violated the discovery standards set forth in Brady v. Maryland, 373 U.S. 83 (1963), by withholding pieces of evidence, including the ____________________________________________

4 Although Mitchell’s pro se notice of appeal is facially untimely, we decline to

quash. The trial court docket does not indicate service of the final order dismissing the PCRA petition on Mitchell. See Pa.R.Crim.P. 114(C)(2)(c). “Where the trial court docket in a criminal case does not indicate service on a party or the date of service, we will not quash the appeal or require further proceedings.” Commonwealth v. Midgley, 289 A.3d 1111, 1117 (Pa.Super. 2023). “Rather, we will treat the time in which to take an appeal as never having started to run and treat the appeal as timely.” Id.

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

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Commonwealth’s witness’ statements, criminal records, and plea agreements?

Anders Br. at 1-2.

We first point out that the proper filing in this case would be a

Turner/Finley no-merit letter or brief, rather than an Anders brief, as

counsel wishes to withdraw on an appeal denying PCRA relief. See

Commonwealth v. Widgins, 29 A.3d 816, 817 n.2 (Pa.Super. 2011).

However, “[b]ecause an Anders brief provides greater protection to a

defendant, this Court may accept an Anders brief in lieu of a Turner/Finley

letter.” Id. Thus, we analyze whether counsel’s brief meets Turner/Finley.

A Turner/Finley brief must: “(1) detail the nature and extent of

counsel’s review of the case; (2) list each issue the petitioner wishes to have

reviewed; and (3) explain counsel’s reasoning for concluding that the

petitioner’s issues are meritless.” Commonwealth v. Knecht, 219 A.3d 689,

691 (Pa.Super. 2019). Counsel also must contemporaneously send to the

petitioner a copy of the brief, a copy of counsel’s motion to withdraw, and a

statement advising the petitioner of the right to proceed pro se or with

privately retained counsel. Widgins, 29 A.3d at 818. If counsel satisfies the

technical requirements, this Court must conduct its own review of the merits

of the case. Commonwealth v. Wrecks, 931 A.2d 717, 721 (Pa.Super.

2007). If we agree with counsel that the claims are without merit, we will

allow counsel to withdraw and deny relief. Id.

Here, counsel has substantially complied with the requirements of

Turner/Finley. Counsel detailed her review of the record and concluded that

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Mitchell’s claims are meritless. She also provided the brief to Mitchell and

advised him of his right to retain new counsel or proceed pro se. Counsel

additionally provided Mitchell with a copy of the petition to withdraw. Thus,

we proceed to the issues counsel has identified.

On appeal from the denial or grant of relief under the PCRA, our review

is limited to determining “whether the PCRA court’s ruling is supported by the

record and free of legal error.” Commonwealth v. Presley, 193 A.3d 436,

442 (Pa.Super. 2018) (citation omitted).

Mitchell raises several claims of counsel’s ineffectiveness. “[C]ounsel is

presumed to be effective and the burden of demonstrating ineffectiveness

rests on appellant.” Commonwealth v. Rivera, 10 A.3d 1276, 1279

(Pa.Super. 2010). To obtain relief based on a claim of ineffectiveness, a

petitioner must establish: “(1) his underlying claim is of arguable merit; (2)

counsel had no reasonable basis for his action or inaction; and (3) the

petitioner suffered actual prejudice as a result.” Commonwealth v. Spotz,

84 A.3d 294, 311 (Pa. 2014). Prejudice in this context means that, “absent

counsel’s conduct, there is a reasonable probability the outcome of the

proceedings would have been different.” Commonwealth v. Velazquez, 216

A.3d 1146, 1149 (Pa.Super. 2019) (citation omitted). A failure to meet any of

these prongs bars a petitioner from obtaining relief. Commonwealth v.

Sneed, 45 A.3d 1096, 1106 (Pa. 2012).

Mitchell first claims that his plea counsel was ineffective for causing him

to enter an unknowing plea. See PCRA Petition, filed 1/26/21, at 6-7. He

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further claims that his prior PCRA counsel was ineffective for failing to raise

plea counsel’s effectiveness regarding this issue. See Mitchell’s Pro Se

Response in Opposition to the Court’s [Rule] 907 Notice, filed 8/3/23. at 6-7.6

“[C]laims of counsel’s ineffectiveness in connection with a guilty plea

will provide a basis for relief only if the ineffectiveness caused an involuntary

or unknowing plea.” Commonwealth v. Yager, 685 A.2d 1000, 1004

(Pa.Super. 1996) (en banc). The “voluntariness of [the] plea depends on

whether counsel’s advice was within the range of competence demanded of

attorneys in criminal cases.” Commonwealth v. Lynch, 820 A.2d 728, 733

(Pa.Super. 2003) (quoting Commonwealth v. Hickman, 799 A.2d 136, 141

(Pa.Super. 2002)) (alteration in original). “The law does not require that

appellant be pleased with the outcome of his decision to enter a plea of

guilty[.]” Commonwealth v. Diaz, 913 A.2d 871, 873 (Pa.Super. 2006)

(citation omitted). “All that is required is that [appellant’s] decision to plead

guilty be knowingly, voluntarily and intelligently made.” Id. (citation omitted).

Before accepting a plea, the trial court must conduct an on-the-record

inquiry to determine whether the plea is voluntarily and knowingly tendered.

Commonwealth v. Hodges, 789 A.2d 764, 765 (Pa.Super. 2002) (citing

Pa.R.Crim.P. 590). The court must develop a record that affirmatively shows

that the defendant understands: (1) the nature of the charges to which the ____________________________________________

6 Although counsel’s Anders brief does not list the issue of counsel’s ineffectiveness as to the voluntariness of Mitchell’s guilty plea in the Statement of Questions Presented for Review, counsel addressed this issue within the brief. See Anders Br. at 4.

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defendant is pleading guilty; (2) the factual basis for the plea; (3) the right to

a jury trial; (4) the presumption of innocence; (5) the permissible ranges of

potential sentences and fines; and (6) that the court is not bound by the terms

of the agreement unless it accepts it. Commonwealth v. Kelley, 136 A.3d

1007, 1013 (Pa.Super. 2016). In deciding whether a guilty plea was knowing,

intelligent, and voluntary, a court should consider the totality of the

circumstances surrounding the entry of the plea. Commonwealth v. Allen,

732 A.2d 582, 588-89 (Pa. 1999). Additionally, a defendant who elects to

plead guilty is required to answer all questions during the plea colloquy

truthfully and may not later assert grounds for withdrawing the plea that

contradict the defendant’s statements during the colloquy. Commonwealth

v. Pollard, 832 A.2d 517, 523 (Pa.Super. 2003).

Here, the PCRA court determined that Mitchell’s plea was made

knowingly, voluntarily, and intelligently. See Rule 907 Op. at 7. The record

supports its conclusion. Prior to entering his guilty plea, Mitchell watched a

court video explaining his legal rights. The video stated that by pleading guilty,

a defendant gives up certain rights, including the right to a jury trial, the right

to file pre-trial motions, the right to object to the authenticity and accuracy of

any reports, and the right to raise any defenses. N.T. Plea Hearing, 1/10/20,

at 16-17. The court also explained that if Mitchell entered a guilty plea, any

grounds for appeal would be limited to the following: the court lacked

jurisdiction; the plea was not voluntary; the sentence was illegal; and counsel

was ineffective. Id. at 19-20.

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After the video concluded, the court asked Mitchell whether he watched

the video and understood his legal rights, and he replied, “Yes, sir.” Id. at 24.

The court then explained the nature of the charges to which Mitchell was

pleading guilty and his range of potential sentence and fines. Id. at 24, 28.

Mitchell responded that he understood the terms of the plea agreement and

his possible sentence. Id. at 24-25. He also agreed to the Commonwealth’s

recitation of the factual basis for the plea. Id. at 25-27. The court further

colloquied Mitchell, and Mitchell acknowledged that he was presumed

innocent, he had adequate time to discuss the plea with his attorney, he had

a right to a jury trial, and his decision to plead guilty was not the result of any

threats or promises:

THE COURT: Now, has anyone threatened you or used any force or other intimidation in any manner to induce you to plead guilty?

[MITCHELL]: No, sir.

THE COURT: Now, have you had enough time to discuss your case with your attorney?

[MITCHELL]: Yes, sir.

THE COURT: And after discussing the case with your attorney, are you satisfied the guilty plea that you are offering is in your best interest?

***

THE COURT: You understand you have an absolute right to have a trial by jury?

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THE COURT: And do you understand that you have an abs - -- or you are presumed innocent until found guilty?

THE COURT: Do you understand that by pleading guilty you give up your presumption of innocence and your right to have a trial[?]

THE COURT: Do you understand by pleading guilty you give up your right to have the Commonwealth prove your guilt beyond a reasonable doubt?

THE COURT: Do you understand that by pleading guilty you give up your right to raise any possible defenses you may have to the charges?

THE COURT: All right. Do you enter this plea of your own choice?

THE COURT: Do you have any questions you desire to ask about anything I’ve said to you or about anything at all?

THE COURT: All right. The Court finds the plea is intelligently, voluntarily, and understandingly tendered. The plea is accepted.

Id. at 28-30.7

Because there is no evidence in the record that Mitchell entered an

involuntary, unknowing, or unintelligent plea, his ineffectiveness claim against

plea counsel lacks arguable merit. As such, Mitchell’s ineffectiveness claim ____________________________________________

7 Mitchell also signed a written Plea Agreement Form. See Rule 907 Op., Ex.

A; N.T. at 24.

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against plea counsel fails. See Commonwealth v. Spotz, 896 A.2d 1191,

1210 (Pa. 2006) (stating “[c]ounsel will not be deemed ineffective for failing

to raise a meritless claim”). Because Mitchell’s underlying argument that plea

counsel was ineffective lacks merit, his layered claim regarding first PCRA

counsel’s ineffectiveness for failing to pursue the issue must also fail. See

Commonwealth v. Chmiel, 30 A.3d 1111, 1128 (Pa. 2011) (concluding that

if a petitioner cannot prove the underlying claim of trial counsel’s

ineffectiveness, then petitioner’s derivative claim of subsequent counsel’s

ineffectiveness fails).

Mitchell’s remaining three claims are as follows: trial counsel was

ineffective for failing to argue that the Commonwealth erred in adding the

drug delivery resulting in death charges after the preliminary hearing; trial

counsel was ineffective in failing to argue that the evidence that bound over

the charges from the preliminary hearing was based on inconsistent

statements made by the Commonwealth’s witnesses; and trial counsel was

ineffective in failing to argue that a Brady violation occurred. See Anders Br.

at 1-2.

Mitchell waived the claims underlying these ineffectiveness claims when

he entered a guilty plea. See Commonwealth v. Stradley, 50 A.3d 769, 771

(Pa.Super. 2012) (stating “when a defendant enters a guilty plea, he or she

waives all defects and defenses except those concerning the validity of the

plea, the jurisdiction of the trial court, and the legality of the sentence

imposed”); see also Commonwealth v. Jones, 929 A.2d 205, 212 (Pa.

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2007) (observing that [“[a] plea of guilty constitutes a waiver of all

nonjurisdictional defects and defenses”) (citation omitted). The court informed

Mitchell at the plea hearing that by pleading guilty, he was waiving his rights

to file pre-trial motions or raise any defenses, and that any appeal would be

limited to specific grounds. See N.T. at 16-17, 19-20. Thus, Mitchell’s

remaining claims fail.

After conducting our independent review, we agree with PCRA counsel

that there is no basis for relief for Micthell. Accordingly, we affirm the PCRA

court’s dismissal of Mitchell’s petition, and we grant counsel’s petition to

Petition to withdraw as counsel granted. Order affirmed.

DATE: 9/3/2024

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