Com. v. Willits, M.

• Court: Superior Court of Pennsylvania
• Decided: July 25, 2023
• Docket: 1657 MDA 2022
• Status: Unpublished

Opinion

J-S21045-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : MICHAEL WILLITS : : Appellant : No. 1657 MDA 2022

Appeal from the PCRA Order Entered October 28, 2022 In the Court of Common Pleas of Lycoming County Criminal Division at No(s): CP-41-CR-0000929-2017, CP-41-CR-0001286-2017

BEFORE: BOWES, J., NICHOLS, J., and PELLEGRINI, J.*

MEMORANDUM BY PELLEGRINI, J.: FILED: JULY 25, 2023

Michael Willits (Willits) seeks review of an order of the Court of Common

Pleas of Lycoming County (PCRA court) dismissing his petition for post-

conviction relief. After being convicted of several counts pursuant to a plea

and a jury trial, Willits was sentenced to an aggregate prison term of 6 to 15

years. Willits waived his right to a direct appeal and was appointed counsel

to assist him in presenting the claims in his PCRA petition. PCRA counsel

withdrew from representation, as did a replacement attorney. The PCRA court

dismissed the PCRA petition, finding that all Willits’ issues were either waived

or meritless. Willits now asserts over a dozen claims, pro se, arguing various

grounds of ineffective assistance of counsel and trial court error. We affirm.

____________________________________________

* Retired Senior Judge assigned to the Superior Court. J-S21045-23

I.

On October 22, 2018, following a jury trial, Willits was found guilty of

tampering with physical evidence; possession of marijuana; and possession

of drug paraphernalia. A week later, Willits entered into an “open” guilty plea

to additional counts of fleeing or attempting to elude law enforcement;

endangering the welfare of children (EWOC); possession of drug

paraphernalia; possession of marijuana; and various summary offenses. He

stated at the plea hearing that he understood the consequences of pleading

guilty, that his counsel at all stages of the proceedings had performed

adequately, and that his decision to enter a plea was knowing, intelligent and

voluntary. See Sentencing Hearing Transcript, 10/29/2021, at pp. 10-11.

Pursuant to a court order, Willits was examined by a psychiatrist to

determine if he suffered from any behavioral disorders that might justify a

more lenient sentence or the implementation of a treatment plan. See

Sentencing Court Order, 10/29/2018, at 2. On February 12, 2019, Willits was

sentenced to both cases to an aggregate prison term of 6 to 15 years. The

sentence as to each of his convictions was set to run consecutively.

The sentencing court indicated that it was imposing these terms after

considering the mental health evaluation, a pre-sentence report and the

determination that Willits qualified as a repeat felony offender under the

Pennsylvania sentencing code. See Sentencing Hearing Transcript,

2/12/2019, at pp. 23-29. Significantly, the sentencing court remarked that

-2- J-S21045-23

according to the mental health evaluation, Willits did not suffer from “a

significant serious mental illness,” and that his crimes, rather, resulted from

an impulsive personality and a difficult upbringing. See id. at pp. 23-24.

Willits timely filed a motion for reconsideration, asserting that the

sentence was unduly harsh and excessive in light of his acceptance of

responsibility for his crimes and rehabilitative needs. The sentencing court

denied the motion and Willits appealed with the aid of counsel.

In the 1925(b) statement filed on behalf of Willits, counsel asserted,

inter alia, that the sentence was excessive despite each individual sentence

being within the standard range because the court had abused its discretion

in determining that Willits was not amenable to a rehabilitation-based

sentence. Before any briefing was filed, Willits waived his right to counsel and

chose to represent himself on appeal. On November 20, 2019, this Court

dismissed Willits’ direct appeal for failure to file a brief.

On September 21, 2020, Willits timely filed (pro se) a petition for post-

conviction relief (PCRA petition). He was appointed PCRA counsel (Attorney

Trisha Jasper-Hoover) who, on November 23, 2020, filed a thorough “no-

merit” letter and a petition to withdraw from the case.1 On January 6, 2021,

1 The procedure for counsel’s withdrawal from representation in post- conviction proceedings are outlined in Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).

-3- J-S21045-23

Willits submitted a response to the no-merit letter, and on March 10, 2021,

he sought to have new counsel reappointed to represent him as to his claims

of ineffective assistance of counsel and trial court error at sentencing.

However, on September 16, 2021, Willits also moved for a Grazier2 hearing

to determine whether he would be permitted to represent himself.

The PCRA court granted the petition to withdraw filed by Attorney

Jasper-Hoover. In its opinion and order dated October 29, 2021, the PCRA

court determined that Willits’ ineffectiveness claims (as to the plea) lacked

merit as a matter of law because he had not articulated how counsel’s conduct

had caused him prejudice or what counsel should have done differently.

Further, the PCRA court explained that claims of trial court error are not

cognizable under the PCRA. The PCRA court, therefore, notified Willits of its

intention to dismiss his claims pertaining to trial court error and discretionary

aspects of his sentence.

As to Willits’ claims of ineffective PCRA counsel and sentencing counsel,

the PCRA court again appointed counsel (Attorney Julian Allatt) to represent

him. A PCRA hearing and a Grazier hearing were scheduled for March 29,

2022. At the hearing, Attorney Allatt indicated to the PCRA court that after

discussing the case with Willits, he did not believe there were any meritorious

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

-4- J-S21045-23

issues to be raised on his behalf and, as a result, no amended PCRA petition

was filed. See Hearing Transcript, 3/29/2022, at pp. 12-13.

When Willits renewed his request to proceed pro se, the PCRA court

conducted a colloquy to make sure Willits was waiving the right to counsel

voluntarily. However, it became evident that Willits wanted counsel to present

his claims. The PCRA court explained that appointed PCRA counsel only had

the option of filing an amended PCRA petition or a Turner/Finley letter giving

the reasons why there are no issues of arguable merit to raise. Willits’ request

to proceed pro se was denied and Attorney Allatt was directed to file either a

Turner/Finley no-merit letter or an amended PCRA petition. See id. at pp.

26-27. Immediately after the hearing, Attorney Allatt filed a motion to

withdraw from representation, attaching a Turner/Finley no-merit letter and

a copy was furnished to Willits.

Upon receiving counsel’s no-merit letter and after reviewing the record,

the PCRA court determined that Willits had failed to raise any meritorious

issues in his PCRA petition and that his petition should be dismissed. The

PCRA court also adopted the earlier opinion and order in which Willits was

notified of the PCRA court’s intention to dismiss his claims on waiver grounds.

See PCRA Court Opinion and Order, 10/5/2022, at 1-9; PCRA Court Opinion

and Order, 10/29/2021, at 1-11.

Counsel’s motion to withdraw was granted and Willits was advised that

his PCRA petition would be dismissed pursuant to Pennsylvania Rule of

-5- J-S21045-23

Criminal Procedure 907. The PCRA petition was dismissed on October 28,

2022, and on November 28, 2022, Willits filed a timely pro se notice of appeal

of the order of dismissal. In both his 1925(b) statement and appellate brief,

Willits raised 15 claims (and within many of them several sub-claims) which

he contends entitle him to PCRA relief. The PCRA court entered a 1925(a)

opinion requesting that its order be affirmed based on the reasoning of its

prior opinions. See PCRA 1925(a) Opinion, 1/23/2023, at 1-2.

From what we can glean, Willits asserts error on the part of the

sentencing court, plea/sentencing counsel and both of his PCRA counsel. We

have condensed these claims as follows:

(a) The sentencing court erred in relying on the mental health evaluation in violation of Willits’ privacy rights, but also erred in declining to impose a sentence reflective of his rehabilitative needs.

(b) The sentencing court erred by allowing Willits to enter an involuntary plea; sentencing him more harshly due to the decision to go to trial on some of the counts; and by not appointing a third attorney to represent him in the PCRA proceedings, forcing him to proceed pro se.

(c) Sentencing counsel was ineffective in misadvising him to accept guilty pleas as to unrelated offenses for which he was innocent; advising him to plead guilty to offenses that were improperly graded; by failing to advise him of his right to seek return of his seized vehicle; and by depriving him of the ability to participate in preparation of his post-sentence motion and direct appeal.

(d) PCRA counsel were ineffective in ignoring the above errors and by withdrawing from the case without fully stating the reasons why Willits’ claims lacked merit in their Turner/Finley letters.

-6- J-S21045-23

Although we may quash or dismiss an appeal if an appellant’s brief does

not substantially conform to our procedural rules, we will nevertheless attempt

to discern Willits’ claims and give the reasons why no relief is due.

II.

When reviewing an order denying a PCRA petition, the standard of

review is “whether the findings of the PCRA court are supported by the record

and are free from legal error.” Commonwealth v. Ligons, 601 Pa. 103 (Pa.

2009). The reviewing court is bound by the lower court’s credibility

determinations. Id.

When a petitioner alleges a claim of ineffective assistance of counsel, it

must be established that counsel’s act or omission “so undermined the truth-

determining process that no reliable adjudication of guilt or innocence could

have taken place.” 42 Pa. C.S. §9543(a)(2)(ii). Counsel is presumed to have

been effective. See Commonwealth v. Cooper, 941 A.2d 655, 664 (Pa.

2007). This presumption may only be overcome if the petitioner can plead

and prove by a preponderance of the evidence that (1) that the underlying

substantive claim has arguable merit; (2) that counsel had no reasonable

basis for the disputed conduct; and (3) that the petitioner was prejudiced by

the alleged ineffectiveness. To establish the prejudice prong, the petitioner

must show that there is “a reasonable probability that but for counsel’s action

or inaction, the outcome of the proceeding would have been different.” Id.

If the petitioner fails to meet any prong, the case may be dismissed without

-7- J-S21045-23

determining whether the remaining prongs are met. See Commonwealth v.

Natividad, 938 A.2d 310, 322 (Pa. 2007).

Following the dismissal of a PCRA petition, a petitioner may “raise claims

of PCRA counsel’s ineffectiveness at the first opportunity to do so, even if on

appeal.” Commonwealth v. Bradley, 261 A.3d 381 (Pa. 2021). Counsel is

not deemed “ineffective in failing to assert a baseless claim, it is only when

the claim, which has been forgone, is of arguable merit that inquiry must be

made into basis for counsel’s decision not to pursue the matter.”

Commonwealth v. Hubbard, 472 Pa. 259 (Pa. 1977).

Moreover, a petitioner is not eligible for relief as to claims that have

been previously litigated or waived. See 42 Pa.C.S. § 9543(a)(3). An issue

is deemed finally litigated for purposes of the PCRA if the “highest appellate

court in which the petitioner could have had review as a matter of right has

ruled on the merits of the issue.” 42 Pa.C.S. § 9544(a)(2). An allegation is

deemed waived “if the petitioner could have raised it but failed to do so before

trial, at trial, during unitary review, [or] on appeal[.]” 42 Pa.C.S. § 9544(b).

Here, all of Willits’ claims are waived and meritless. The errors Willits

attributes directly to the sentencing court are not cognizable grounds for relief

under the PCRA; such claims were also waived because they could have been

raised on direct appeal. See Commonwealth v. Spotz, 19 A.3d 244, 270

(Pa. 2011) (“Appellant’s claim of trial court error . . . is both waived and not

-8- J-S21045-23

cognizable under the PCRA because it could have been raised on direct

appeal.”).3

The purported ineffectiveness claims as to the sentencing counsel were

likewise waived and without merit. Counsel filed a 1925(b) statement of

issues and timely commenced a direct appeal on Willits’ behalf. This gave

Willits the opportunity to raise his present claims regarding the asserted

violations of privacy, sentencing errors, the voluntariness of the plea and

issues concerning discretionary aspects of his sentence. Since these issues

could have been raised on direct appeal, they are not cognizable claims for

relief under the PCRA, and the PCRA court did not err in making that

determination.

The record, in particular the transcript of the plea hearing, also refutes

Willits’ claims that counsel was ineffective at the plea and sentencing stages

of his case. During the plea colloquy, Willits stated under oath that counsel

had been effective, that he understood he would be giving up rights as a result

of entering a plea, and that he understood the nature of the offenses he was

3 We also note that Willits’ claim concerning the sentencing court’s use of a

mental health evaluation is well outside the ambit of the PCRA. Much of the asserted prejudice of the purported error seems to be that it violated Willits’ privacy rights. In addition to being a claim that could have been raised on direct appeal, Willits is not eligible for relief under the PCRA because it was not shown, much less alleged, that the evaluation had any effect on the outcome of the proceedings. See Commonwealth v. Cooper, 941 A.2d 655, 664 (Pa. 2007). In fact, one of Willits’ claims is that the sentencing court erred in not utilizing the examination to determine that he needs mental health treatment.

-9- J-S21045-23

pleading guilty to. A PCRA petitioner is bound by sworn statements and

cannot assert grounds for withdrawing a guilty plea which contradict them.

See Commonwealth v. Willis, 68 A.3d 997, 1009 (Pa. Super. 2013).

Next, Willits’ claims of ineffective PCRA counsel are without merit. The

reasons why are given in counsels’ respective Turner/Finley no-merit letters,

as well as the PCRA court’s written opinions. Rather than reiterate the content

of those filings, all of which are already included in the record, we adopt their

rationale here.

Finally, to the extent that we have not addressed a specific ground that

Willits has attempted to raise, we find that any such issue is waived. Pro se

status confers no special benefit upon a PCRA petitioner, and where non-

compliance with the rules impedes meaningful judicial review, the appeal may

be dismissed. See Commonwealth v. Lyons, 833 A.2d 245, 252 (Pa. Super.

2003). Likewise, this Court may decline to consider issues raised in a brief

when the corresponding arguments are not sufficiently developed. See

Commonwealth v. Miller, 721 A.2d 1121, 1124 (Pa. Super. 1998).

Willits’ brief is missing several sections required by the Pennsylvania

Rules of Appellate Procedure. See Pa.R.A.P. 2101. The brief is also

disorganized and largely incoherent. Thus, finding that Willits has failed to

assert any meritorious issues in this appeal, the order on review must stand.

- 10 - J-S21045-23

Order affirmed.

Judge Nichols joins the memorandum.

Judge Bowes concurs in the result.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 07/25/2023

- 11 -