Com. v. Mitchell, T.

Superior Court of Pennsylvania

Com. v. Mitchell, T.

DecidedDecember 16, 2022

Docket328 EDA 2022

StatusUnpublished

This text of Com. v. Mitchell, T. (Com. v. Mitchell, T.) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Com. v. Mitchell, T., (Pa. Ct. App. 2022).

Pincite

Opinion

J-S37035-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : TOBIAS MITCHELL : : Appellant : No. 328 EDA 2022

Appeal from the Judgment of Sentence Entered January 10, 2022 In the Court of Common Pleas of Monroe County Criminal Division at No(s): CP-45-CR-0002441-2020

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

MEMORANDUM BY OLSON, J.: FILED DECEMBER 16, 2022

Appellant, Tobias Mitchell, appeals from the judgment of sentence

entered on January 10, 2022. On this direct appeal, Appellant’s counsel has

filed both a petition for leave to withdraw as counsel and an accompanying

brief pursuant to Anders v. California, 386 U.S. 738 (1967) and

Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). We conclude that

Appellant’s counsel has complied with the procedural requirements necessary

to withdraw. Moreover, after independently reviewing the record, we conclude

that the instant appeal is wholly frivolous. We, therefore, grant counsel’s

petition for leave to withdraw and affirm Appellant’s judgment of sentence.

On January 13, 2021, the Commonwealth filed an information, which

charged Appellant with a number of crimes, including attempted homicide,

aggravated assault, simple assault, and possessing instruments of crime J-S37035-22

(“PIC”).1 On July 21, 2021, Appellant pleaded guilty to simple assault and

PIC and the trial court scheduled a sentencing hearing for a later date. See

N.T. Guilty Plea Hearing, 7/21/21, at 4-5.

Prior to the sentencing hearing, Appellant filed a motion to withdraw his

guilty plea. Appellant’s Motion to Withdraw Guilty Plea, 10/25/21, at 1-2. The

trial court scheduled a January 10, 2022 hearing on Appellant’s motion. See

Scheduling Order, 10/29/21, at 1. However, during the January 10, 2022

hearing on Appellant’s motion, Appellant orally withdrew his motion to

withdraw his guilty plea. See N.T. Sentencing Hearing, 1/10/22, at 10. As a

result, the trial court immediately proceeded to sentencing. Id. The trial

court sentenced Appellant to serve an aggregate term of 21 to 60 months in

prison for his convictions. N.T. Sentencing Hearing, 1/10/22, at 24-25.

Appellant did not file a post-sentence motion; however, Appellant filed

a timely notice of appeal from his judgment of sentence. On appeal,

Appellant’s counsel filed a petition for leave to withdraw and counsel

accompanied this petition with an Anders brief.

Before reviewing the merits of this appeal, this Court must first

determine whether counsel has fulfilled the necessary procedural

requirements for withdrawing as counsel. Commonwealth v. Miller, 715

A.2d 1203, 1207 (Pa. Super. 1998).

____________________________________________

1 18 Pa.C.S.A. §§ 901(a), 2702(a), 2701(a)(1), and 907, respectively.

-2- J-S37035-22

To withdraw under Anders, counsel must satisfy certain technical

requirements. First, counsel must “petition the court for leave to withdraw

stating that, after making a conscientious examination of the record, counsel

has determined that the appeal would be frivolous.” Miller, 715 A.2d at 1207.

Second, counsel must file an Anders brief, in which counsel:

(1) provide[s] a summary of the procedural history and facts, with citations to the record; (2) refer[s] to anything in the record that counsel believes arguably supports the appeal; (3) set[s] forth counsel’s conclusion that the appeal is frivolous; and (4) state[s] counsel’s reasons for concluding that the appeal is frivolous. Counsel should articulate the relevant facts of record, controlling case law, and/or statutes on point that have led to the conclusion that the appeal is frivolous.

Santiago, 978 A.2d at 361.

Finally, counsel must furnish a copy of the Anders brief to his or her

client and advise the client “of [the client’s] right to retain new counsel,

proceed pro se or raise any additional points worthy of this Court’s attention.”

Commonwealth v. Woods, 939 A.2d 896, 898 (Pa. Super. 2007).

If counsel meets all of the above obligations, “it then becomes the

responsibility of the reviewing court to make a full examination of the

proceedings and make an independent judgment to decide whether the appeal

is in fact wholly frivolous.” Santiago, 978 A.2d at 355 n.5; see also

Commonwealth v. Yorgey, 188 A.3d 1190, 1197 (Pa. Super. 2018) (en

banc) (holding that the Anders procedure requires this Court to review “the

entire record with consideration first of the issues raised by counsel. . . .

-3- J-S37035-22

[T]his review does not require this Court to act as counsel or otherwise

advocate on behalf of a party. Rather, it requires us only to conduct a review

of the record to ascertain if[,] on its face, there are non-frivolous issues that

counsel, intentionally or not, missed or misstated. We need not analyze those

issues of arguable merit; just identify them, deny the motion to withdraw, and

order counsel to analyze them”). It is only when all of the procedural and

substantive requirements are satisfied that counsel will be permitted to

withdraw.

In the case at bar, counsel complied with all of the above procedural

obligations. We must, therefore, review the entire record and analyze whether

this appeal is, in fact, wholly frivolous. Our analysis begins with the claims

raised in the Anders brief:

[1.] Did the trial court properly deny [Appellant’s] request to withdraw his guilty plea, when he had the motion withdrawn in open court?

[2.] Was [Appellant’s] plea knowingly and voluntarily entered into?

[3.] Should [Appellant’s] ineffective assistance of counsel claims be brought via a [Post Conviction Relief Act (“PCRA”)] petition and not on direct appeal?

Appellant’s Brief at 4 (some capitalization omitted).

Appellant’s first two claims on appeal contend that the trial court “erred

in not allowing him to withdraw his guilty plea,” as his “guilty plea was not

voluntarily entered into.” Appellant’s Brief at 9. These claims are waived, as

Appellant orally withdrew his motion to withdraw his guilty plea and, thus,

-4- J-S37035-22

Appellant did not provide the trial court with the opportunity to rule upon any

issue relating to his guilty plea. See N.T. Sentencing Hearing, 1/10/22, at 10

(in response to Appellant’s request to withdraw his motion to withdraw his

guilty plea, the trial court declared: “Okay. So then the Motion to Withdraw

is withdrawn. We’ll take the following order: AND NOW, this 10th day of

January, 2022, upon oral motion of counsel for [Appellant], [Appellant’s]

motion to withdraw guilty plea is withdrawn. By the Court”) (some

capitalization omitted); see also Pa.R.Crim.P. 720(B)(1)(a)(i); Pa.R.A.P.

302(a) (“[i]ssues not raised in the lower court are waived and cannot be raised

for the first time on appeal”); Commonwealth v. Lincoln, 72 A.3d 66,

609-610 (Pa. Super. 2013) (“[a] defendant wishing to challenge the

voluntariness of a guilty plea on direct appeal must either object during the

plea colloquy or file a motion to withdraw the plea within ten days of

sentencing. Failure to employ either measure results in waiver”) (citations

Free access — add to your briefcase to read the full text and ask questions with AI