Com. v. Mixell, M.

• Court: Superior Court of Pennsylvania
• Decided: November 12, 2025
• Docket: 1868 MDA 2024
• Status: Unpublished

Opinion

J-A24025-25

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : MARSHALL CLYDE MIXELL : : Appellant : No. 1868 MDA 2024

Appeal from the Judgment of Sentence Entered December 2, 2024 In the Court of Common Pleas of Cumberland County Criminal Division at No(s): CP-21-CR-0002268-2023

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : MARSHALL CLYDE MIXELL : : Appellant : No. 1869 MDA 2024

Appeal from the Judgment of Sentence Entered December 2, 2024 In the Court of Common Pleas of Cumberland County Criminal Division at No(s): CP-21-CR-0000334-2024

BEFORE: DUBOW, J., KUNSELMAN, J., and BECK, J.

MEMORANDUM BY DUBOW, J.: FILED: NOVEMBER 12, 2025

In this consolidated appeal, Appellant, Marshall Clyde Mixell, appeals

from the December 2, 2024 judgment of sentence entered in the Cumberland

County Court of Common Pleas following the entry of his negotiated guilty

pleas to Involuntary Deviate Sexual Intercourse (“IDSI”), Aggravated

Indecent Assault, and two counts of Endangering the Welfare of Children J-A24025-25

(“EWOC”).1 Appellant challenges the trial court’s denial of his motion to

withdraw his guilty pleas and the sufficiency of the evidence supporting his

designation as a Sexually Violent Predator (“SVP”). Following review, we

conclude that Appellant’s issues have no merit. However, we sua sponte

vacate the judgment of sentence and remand for resentencing because the

court imposed an illegal sentence on one count of EWOC.

The relevant facts and procedural history are as follows. On June 18,

2024, Appellant entered negotiated guilty pleas at Dockets No. 2268-2023

and 334-2024. At Docket No. 2268-2023, Appellant pled guilty to one count

each of IDSI and EWOC, and admitted that between May 2012 and November

2019 he sexually assaulted his stepdaughter, A.W.P.N., who was under the

age of 13. At Docket No. 334-2024, Appellant pled guilty to one count each

of Aggravated Indecent Assault and EWOC, and admitted that on one occasion

in June 2023, he sexually assaulted his foster daughter, S.L.S., who was 17

years old at the time. The court ordered the Sexual Offender Assessment

Board (“SOAB”) to perform an assessment to determine whether Appellant

met the criteria of an SVP.

On November 26, 2024, Appellant filed a motion to withdraw his guilty

pleas at both dockets. On December 2, 2024, the court held a hearing on

Appellant’s motion. At the hearing, Appellant claimed that he was innocent,

did not have enough time to consider the plea offers, and did not understand

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1 18 Pa.C.S. §§ 3123(b), 3125(a)(7) and 4304(a)(1), respectively.

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the potential length of incarceration. Appellant then asked if there would be

any way to change his SVP designation, “because I just want to stress to you

that this was like an isolated incident[.]” N.T. Mot. Hr’g and Sent’g, 12/2/24,

at 12.

The court denied Appellant’s motion to withdraw his guilty pleas and

proceeded to conduct the SVP hearing. In support of his conclusion that

Appellant fit the criteria of an SVP and suffered from pedophilic disorder, the

SOAB expert, Dr. Robert Stein, noted that Appellant’s crimes involved multiple

victims, “hands-on” offenses, and that A.W.P.N. was seven or eight years old

when the sexual contact started. At the conclusion of the hearing, the trial

court found that Appellant was an SVP and imposed an aggregate sentence of

10 to 20 years of incarceration followed by 5 years of probation, as negotiated

by the parties. The court directed the sentences on all counts to run

concurrently.

Specifically, at Docket No. 2268-2023, the trial court sentenced

Appellant to 10 to 20 years of incarceration followed by 5 years of probation

for IDSI, and 1 to 2 years of incarceration for EWOC. At Docket No. 334-

2024, the court sentenced Appellant to 5 to 10 years of incarceration followed

by 5 years of probation for Aggravated Indecent Assault, and 1 to 2 years of

incarceration for EWOC. The court graded both counts of EWOC as felonies of

the third degree. See 18 Pa.C.S. § 4304(b)(1).

This timely appeal followed. Appellant and the trial court complied with

Pa.R.A.P. 1925.

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Appellant raises the following issues for our review:

1. Whether the trial court erred in denying Appellant’s motion to withdraw his guilty plea where Appellant testified that the facts alleged were not true?

2. Whether the trial court erred in finding Appellant to be a[n] [SVP]?

Appellant’s Br. at 7.

In his first issue, Appellant argues that the trial court erred in denying

his motion to withdraw his guilty pleas “as Appellant made a plausible claim

of innocence.” Id. at 32. Appellant compares this case to Commonwealth

v. Islas, 156 A.3d 1185 (Pa. Super. 2017), where this Court permitted the

appellant to withdraw his guilty plea after finding that he had presented a

plausible claim of innocence. Appellant’s Br. at 33. Appellant avers that, as

in Islas, nothing about the Commonwealth’s evidence wholly undermined the

plausibility of his assertion of innocence. Id. at 36.

We review the denial of a pre-sentence motion to withdraw a guilty plea

for an abuse of discretion. Commonwealth v. Norton, 201 A.3d 112, 120

(Pa. 2019). There is no absolute right to withdraw a guilty plea.

Commonwealth v. Carrasquillo, 115 A.3d 1284, 1291 (Pa. 2015). For

instance, “a bare assertion of innocence is not, in and of itself, a sufficient

reason to require a court to grant” a pre-sentence motion to withdraw a guilty

plea. Id. at 1285. Instead, “a defendant’s innocence claim must be at least

plausible” to justify withdrawal. Id. at 1292. In considering a motion to

withdraw a guilty plea, the court should inquire “whether the accused has

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made some colorable demonstration, under the circumstances, such that

permitting withdrawal of the plea would promote fairness and justice.” Id.

The trial court found that Appellant “failed to demonstrate the existence

of a fair and just reason supporting the withdrawal of his guilty pleas[.]” Trial

Ct. Op., 2/10/25, at 10. The trial court found it significant that Appellant

admitted guilt on two separate occasions on the record: once during his guilty

pleas and once at the hearing on his motion to withdraw his guilty pleas when

he stated that the abuse “was like an isolated incident.” Id.

Our review of the record indicates that the trial court did not abuse its

discretion in denying Appellant’s motion as Appellant did not make more than

a bare assertion of innocence. While Appellant analogizes this case to Islas,

the Islas court made a highly fact-specific determination about the plausibility

of the appellant’s claim based on specific portions of his testimony. Islas,

156 A.3d at 1190. Here, to support his assertion of innocence, Appellant

testified only that he had wanted to present evidence from his home security

camera until his attorney informed him the video would be inadmissible in

court. Mot. Hr’g and Sent’g at 8-9. The trial court did not err in determining

that this testimony did not amount to a plausible demonstration of innocence.

Appellant’s claim, thus, merits no relief.

Appellant next argues that “[t]he trial court erred in designating

Appellant as a[n] [SVP] as the criteria testified to by Dr. Stein did not support

this designation.” Appellant’s Br. at 39. Appellant claims that Dr. Stein

mischaracterized Appellant’s conduct as predatory behavior and the

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Commonwealth failed to prove that Appellant suffered from a mental

abnormality or personality disorder. Id. Specifically, Appellant takes issue

with Dr. Stein’s testimony that the single act committed against S.L.S. was

sufficient to establish victimization, argues that only 3 of the 15 criteria

assessed by Dr. Stein supported his conclusion of Appellant’s risk to reoffend,

and challenges Dr. Stein’s diagnosis of pedophilic disorder. Id. at 39-47.

“A challenge to a trial court’s SVP designation presents a challenge to

the sufficiency of the evidence for which our standard of review is de novo and

our scope of review is plenary.” Commonwealth v. Aumick, 297 A.3d 770,

776 (Pa. Super. 2023) (en banc). We review the record in a “light most

favorable to the Commonwealth” as verdict winner. Id. We will reverse a

court’s SVP determination “only if the Commonwealth has not presented clear

and convincing evidence that each element of the statute has been satisfied.”

Id. at 776–77 (citation omitted).

An SVP is an “individual who has committed a sexually violent offense

under the laws of this Commonwealth . . . who is determined to be a[n] [SVP]

under Section 9799.24 due to a mental abnormality or personality disorder

that makes the individual likely to engage in predatory sexually violent

offenses.” 42 Pa.C.S. § 9799.12. As our Supreme Court has made clear, this

Court is limited to “simply assessing the legal sufficiency of the proof

respecting SVP status accepted by the trial court[.]” Commonwealth v.

Meals, 912 A.2d 213, 214 (Pa. 2005). Our role as an appellate court does

not permit us to re-evaluate, on appeal, the merits of that diagnosis. Id. at

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223-24. The diagnosis itself is evidence, and any attack on the underlying

merits of the opinion goes to “the weight, and not the sufficiency, of the

expert’s evidence.” Id. at 224.

The trial court found that “Dr. Stein testified to a reasonable degree of

professional certainty that Appellant suffered from a pedophilic disorder, that

he was following a sexually deviant pattern, and that he was an individual who

had a mental abnormality or personality disorder that made him likely to

engage in predatory sexually violent offenses.” Trial Ct. Op. at 19. The court

concluded that there was, therefore, “clear and convincing evidence

supporting Appellant’s SVP designation[.]” Id. at 20.

Our careful review of the record demonstrates that, viewed in the light

most favorable to the Commonwealth, there is sufficient evidence to support

Appellant’s SVP designation. Appellant’s challenges to the underlying merits

of the expert opinion go to the weight, and not the sufficiency, of the expert’s

evidence and we decline to re-evaluate the merits of Dr. Stein’s diagnosis.

See Meals, 912 A.2d at 214. Appellant’s argument is, therefore, without

merit.

Although Appellant does not raise the issue on appeal, we next address

the illegality of Appellant’s sentence imposed at Docket No. 334-2024 on one

count of EWOC, which the trial court graded as a felony of the third degree.

An offense of EWOC “constitutes a misdemeanor of the first degree[,]”

but “if the actor engaged in a course of conduct of [EWOC], the offense

constitutes a felony of the third degree.” 18 Pa.C.S. § 4304(b)(1)(i)-(ii). The

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issue of whether the trial court properly graded an EWOC charge goes to the

legality of the underlying sentence and is, therefore, a non-waivable matter.

Commonwealth v. Popow, 844 A.2d 13, 17 (Pa. Super. 2004). Where the

criminal information charges EWOC as a felony in the third degree but fails to

include any language alleging a course of conduct, then the charge should

properly be graded as a first-degree misdemeanor. Id. A course of conduct

necessitates abuse of a child which spans “days, weeks or months,” rather

than minutes or hours. Id.

Here, the trial court concedes that “the facts as established in the

criminal information and during Appellant’s guilty plea demonstrated that

Appellant had sexual contact with S.L.S. on one occasion for less than one

hour” and “[a]t no point during the guilty plea were any facts established

regarding a course of conduct[.]” Trial Ct. Op. at 21.

Based on our review of the record, we conclude that the trial court

should have graded the EWOC charge at Docket No. 334-2024 as a

misdemeanor of the first degree, rather than a felony, because Appellant pled

guilty to one incident of sexual abuse that lasted minutes.2 Accordingly, we

vacate the judgment of sentence and remand for resentencing.3

2The trial court properly graded the second count of EWOC at Docket No. 2268-2023 as a felony because Appellant’s abuse of A.W.P.N. spanned years. 3 Resentencing will not alter Appellant’s aggregate sentence if the trial court

again orders sentences on all counts to run concurrently.

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Judgment of sentence vacated. Case remanded for resentencing.

Jurisdiction relinquished.

Judgment Entered.

Benjamin D. Kohler, Esq. Prothonotary

Date: 11/12/2025

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