Opinion
16 MDA 2023 J-S24023-23
08-14-2023
COMMONWEALTH OF PENNSYLVANIA v. ROMELL DEVINE MCMILLIAN Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37
Appeal from the PCRA Order Entered December 7, 2022 In the Court of Common Pleas of Dauphin County Criminal Division at No(s): CP-22-CR-0005731-2019
BEFORE: BENDER, P.J.E., LAZARUS, J., and STEVENS, P.J.E. [*]
MEMORANDUM
LAZARUS, J.
Romell Devine McMillian appeals from the order, entered in the Court of Common Pleas of Dauphin County, denying his petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. McMillian's counsel, Wendy J.F. Grella, Esquire, has filed an application to withdraw as counsel and an accompanying Anders brief. Upon review, we affirm the PCRA court's order and grant Attorney Grella's application to withdraw.
The PCRA court granted in part and denied in part McMillian's PCRA petition. During its review, the PCRA court discovered that it had erroneously failed to credit McMillian 10 months for time served. See PCRA Court Opinion, 10/24/22, at 6. Accordingly, the PCRA Court corrected this error and granted McMillian 10 months of time credit. See PCRA Order, 10/24/22, at 1.
Anders v. California, 368 U.S. 738 (1967); Commonwealth v. McClendon, 434 A.2d 1185 (Pa. 1981); Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). As we discuss infra, the proper framework for counsel to withdraw on a collateral appeal is set forth by Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
The PCRA court summarized the facts of this case as follows:
On October 11, 2019, probation officers saw the petitioner walking with Ty'ante Gibson. The Harrisburg officer[s] had seen [McMillian] on North Summit where Mr. Gibson lived. [McMillian] was being supervised by [Probation Officer] Robbins. The [officers] attempted to contact [McMillian] from their [vehicle]. [McMillian] then ran . . . through several streets and blocks. It appeared as though he was attempting to hold onto something in his waistband. [McMillian] was finally detained after a foot chase in the rear of 58 North 12th Street. [McMillian] had a Mercedes key on him at the time. . . . A firearm was located in [a nearby] yard along [McMillian's] flight path. [The officers later located and searched the Mercedes.]PCRA Court Opinion, 10/24/22, at 1-2.
On January 27, 2021, McMillian entered into a negotiated guilty plea, in which he agreed to plead guilty to one count each of person not to possess a firearm, carrying a firearm without a license, and tampering with evidence. In exchange, the Commonwealth agreed to withdraw the charge of possession of drug paraphernalia, and also agreed to a negotiated sentence of one and one-half to three years in prison and a concurrent three years of probation. The trial court accepted McMillian's plea, deferred sentencing, and ordered the preparation of a pre-sentence investigation (PSI) report.
Id. at § 6106(a)(1).
Id. at § 4910(1).
The agreed-upon sentence was within the mitigated range.
On March 24, 2021, the trial court conducted a sentencing hearing, at which it imposed the negotiated sentence, plus an additional two years of probation, resulting in an aggregate one and one-half to three years in prison and a concurrent five years of probation. McMillian did not file a post-sentence motion or a direct appeal.
On March 14, 2022, McMillian filed a pro se motion challenging his plea counsel's effectiveness. The trial court treated this motion as a timely PCRA and appointed Amanda Batz, Esquire, to represent McMillian. Attorney Batz filed an amended PCRA petition on June 23, 2022. On October 24, 2022, the trial court issued an opinion and notice of its intent to dismiss McMillian's PCRA pursuant to Pa.R.Crim.P. 907. Additionally, as noted supra, the PCRA court issued an order granting partial relief to the extent that the trial court had erroneously failed to award 10 months of time served. Ultimately, on December 7, 2022, the PCRA court dismissed McMillian's PCRA.
McMillian filed a timely notice of appeal and a court-ordered Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal. Attorney Grella subsequently filed with this Court an application to withdraw as counsel and a brief pursuant to Anders. McMillian did not file a pro se brief, nor did he retain alternate counsel for this appeal.
After Attorney Batz filed the timely notice of appeal, Attorney Batz filed a motion to withdraw from representation as she had left private practice. See PCRA Court Opinion, 4/26/23, at 1. The PCRA court granted Attorney Batz's motion, and appointed Attorney Grella to file a new Rule 1925(b) statement, and to represent McMillian on appeal. Id.
As stated above, Attorney Grella has filed an Anders brief with this Court. We remind counsel that Turner/Finley is the proper framework for withdrawing from PCRA representation, which is distinct from Anders. See Commonwealth v. Wrecks, 931 A.2d 717, 721-22 (Pa. Super. 2007). Nevertheless "because an Anders brief provides greater protection to the defendant, we may accept an Anders brief in lieu of a Turner/Finley [no-merit] letter." Commonwealth v. Fusselman, 866 A.2d 1109, 1111 n.3 (Pa. Super. 2004); see also Wrecks, 931 A.2d at 721-22 (explaining similarities and differences between Anders and Turner/Finley requirements).
Next, before addressing McMillian's issues on appeal, we must determine whether Attorney Grella has complied with the dictates of Turner/Finley and its progeny in petitioning to withdraw from representation. See Commonwealth v. Muzzy, 141 A.3d 509, 510 (Pa. Super. 2016) ("prior to addressing the merits of the appeal, we must review counsel's compliance with the procedural requirements for withdrawing as counsel"). Pursuant to Turner/Finley, independent review of the record by competent counsel is required before withdrawal on collateral appeal is permitted. See Commonwealth v. Pitts, 981 A.2d 875, 876 n.1 (Pa. 2009) (overruled on other grounds by Commonwealth v. Bradley, 261 A.3d 381, 401 (Pa. 2021)). Our independent review requires proof of a "no-merit" letter by PCRA counsel detailing the nature and extent of review, a list of all issues the petitioner wished to have reviewed, PCRA counsel's explanation of why each of petitioner's issues was meritless, an independent review of the record by the PCRA court, and the agreement of the PCRA court that the PCRA petition is meritless. See id.
Further, PCRA counsel must send a copy of the "no-merit" letter to the petitioner, along with a copy of the petition to withdraw, and inform the petitioner of the right to proceed pro se or retain new counsel. See Wrecks, 931 A.2d at 721. Substantial compliance with the requirements to withdraw as counsel will satisfy the Turner/Finley criteria. See Commonwealth v. Karanicolas, 836 A.2d 940, 947 (Pa. Super. 2003). If the brief meets these requirements, we then conduct an independent review of the petitioner's issues. See Muzzy, 141 A.3d at 511.
Instantly, our review of counsel's Anders brief and application to withdraw reveals that Attorney Grella has substantially complied with each of the technical requirements of Turner/Finley. See Karanicolas, supra. Attorney Grella indicates that she has made a conscientious examination of the record and determined that an appeal would be meritless. Attorney Grella also indicates that she has reviewed each of McMillian's issues and determined they are meritless. The record further reflects that Attorney Grella has furnished a copy of the Anders brief to McMillian and advised McMillian of his right to retain new counsel, proceed pro se, or raise any additional points that he deems worthy of this Court's attention. As Attorney Grella has complied with all of the technical requirements for withdrawing from representation, we will examine the record and make an independent determination of whether McMillian's appeal is meritless.
McMillian has not raised any additional issues with this Court.
In the Anders brief, Attorney Grella raises one issue. Attorney Grella argues that McMillian's plea counsel rendered ineffective assistance of counsel by failing to file a post-sentence motion challenging the trial court's imposition of a five-year probation sentence in excess of the agreed upon three-year probation sentence. Anders Brief, at 11-15 (unpaginated).
We review an order [dismissing] a petition under the PCRA in the light most favorable to the prevailing party at the PCRA level. This review is limited to the findings of the PCRA court and the evidence of record. We will not disturb a PCRA court's ruling if it is supported by evidence of record and is free of legal error. This Court may affirm a PCRA court's decision on any grounds if the record supports it. We grant great deference to the factual findings of the PCRA court and will not disturb those findings unless they have no support in the record. However, we afford no such deference to its legal conclusions. Further, where the petitioner raises questions of law, our standard of review is de novo and our scope of review is plenary.Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super. 2012) (citations omitted).
Any PCRA petition "shall be filed within one year of the date the judgment becomes final." 42 Pa.C.S.A. § 9545(b)(1). A judgment of sentence becomes final "at the conclusion of direct review, including discretionary review in the Supreme Court of the United States and the Supreme Court of Pennsylvania, or at the expiration of time for seeking review." Id. at § 9545(b)(3). The PCRA's timeliness requirements are jurisdictional in nature, and a court may not address the merits of the issues raised if the PCRA petition was not timely filed. Commonwealth v. Albrecht, 994 A.2d 1091, 1093 (Pa. 2010).
As noted above, McMillian's judgment of sentence was entered on March 24, 2021. McMillian did not file a notice of appeal and, consequently, his judgment of sentence became final on April 23, 2021. See 42 Pa.C.S.A. § 9545(b)(3). Thus, McMillian had until April 25, 2022 to file a timely PCRA petition. See id. at § 9545(b)(1). McMillian's pro se PCRA petition, filed on March 14, 2022, is timely, and we may address his claim.
McMillian's claim challenges the effectiveness of his trial counsel. To prevail on a claim of ineffective assistance of counsel under the PCRA, a petitioner must plead and prove, by a preponderance of the evidence, that counsel's ineffectiveness "so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place." 42 Pa.C.S.A. § 9543(a)(2)(ii). Specifically,
[t]o be entitled to relief on an ineffectiveness claim, a PCRA petitioner must establish: (1) the underlying claim has arguable merit; (2) no reasonable basis existed for counsel's action or failure to act; and (3) he suffered prejudice as a result of counsel's error, with prejudice measured by whether there is a reasonable probability the result of the proceeding would have been different. Commonwealth v. Chmiel, [] 30 A.3d 1111, 1127 ([Pa.] 2011) (employing ineffective assistance of counsel test from
Commonwealth v. Pierce, [] 527 A.2d 973, 975-76 ([Pa.] 1987)). Counsel is presumed to have rendered effective assistance. Additionally, counsel cannot be deemed ineffective for failing to raise a meritless claim. Finally, because a PCRA petitioner must establish all the Pierce prongs to be entitled to relief, we are not required to analyze the elements of an ineffectiveness claim in any specific order; thus, if a claim fails under any required element, we may dismiss the claim on that basis.Commonwealth v. Treiber, 121 A.3d 435, 445 (Pa. 2015) (footnote and some citations omitted).
Counsel's failure to file a post-sentence motion, even if requested to do so, is not per se ineffectiveness. Commonwealth v. Reaves, 923 A.2d 1119 (Pa. 2007) (concluding PCRA petitioner was required to establish actual prejudice where counsel's alleged deficiency stemmed from failure to file post-sentence motion). Thus, a petitioner bears the burden of pleading and proving that trial counsel's failure to file a post-sentence motion prejudiced him. See Commonwealth v. Liston, 977 A.2d 1089 (Pa. 2009). Additionally, trial counsel cannot be found ineffective for failing to file a post-sentence motion that a petitioner never requested. See Commonwealth v. Velasquez, 563 A.2d 1273, 1275 (Pa. Super. 1989) (counsel cannot "be deemed ineffective for failing to do what he was not requested to do," and appellant failed to demonstrate he requested motion).
Instantly, McMillian's claim rests upon the argument that his guilty plea counsel should have filed a post-sentence motion challenging the trial court's imposition of a five-year probation sentence instead of the negotiated three-year probation sentence. See Anders Brief, at 11-15.
McMillian has provided no proof that he ever requested that plea counsel file a post-sentence motion. See Velasquez, supra. Indeed, McMillian's pro se PCRA petition, Attorney Batz's supplemental PCRA petition, and Attorney Grella's Anders Brief present no documentation, affidavit, or testimony that McMillian ever requested plea counsel filed a post-sentence motion. See PCRA Petition, 3/14/22, at 1-2 (alleging ineffective assistance of plea counsel); Supplemental PCRA Petition, 6/23/22, at 1-11 (unpaginated); Anders Brief, at 11-15; see also Velasquez, supra. Accordingly, McMillian's claim fails, and he is entitled to no relief. Chmiel, supra.
Moreover, even if McMillian had requested counsel file a post-sentence motion, he would be unable to demonstrate that he was prejudiced by counsel's failure. See Liston, supra. Instantly, the trial court only deviated from the negotiated sentence by adding two years to McMillian's probationary term. See N.T. Sentencing Hearing, 3/24/21, at 7-9. Indeed, despite this deviation, McMillian's sentence was still below a standard-range guideline sentence, within the mitigated range. Id. Additionally, in accordance with our law, the trial court afforded McMillian the option to withdraw his guilty plea when the trial court deviated from the negotiated sentence, but McMillian declined to withdraw his guilty plea. See N.T. Guilty Plea Hearing, 1/27/21, at 5-8, 10; N.T. Sentencing Hearing, 3/24/21, at 1-9; see also Commonwealth v. Tann, 79 A.3d 1130, 1133 (Pa. Super. 2013) (defendant sentenced in excess of negotiated sentence may withdraw guilty plea). Accordingly, McMillian would be unable to demonstrate that he was prejudiced by counsel's failure to file a motion challenging the trial court's sentence. See Liston, supra.
Order affirmed. Application to withdraw granted.
Judgment Entered.
[*] Former Justice specially assigned to the Superior Court.