Opinion
2445 EDA 2022 J-S23039-23
08-14-2023
COMMONWEALTH OF PENNSYLVANIA Appellee v. MAURICE MULLENS Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37
Appeal from the Judgment of Sentence Entered August 8, 2022 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0003269-2021
BEFORE: PANELLA, P.J., KUNSELMAN, J., and KING, J.
MEMORANDUM
KING, J.
Appellant, Maurice Mullens, appeals from the judgment of sentence entered in the Philadelphia County Court of Common Pleas, following his open guilty plea to burglary, criminal trespass, simple assault, and possessing an instrument of crime ("PIC"). We affirm and grant counsel's petition to withdraw.
18 Pa.C.S.A. §§ 3502; 3503; 2701; and 907, respectively.
In its opinion, the trial court set forth the relevant facts and procedural history of this case as follows:
On April 27, 2022, following jury selection and complete presentation of the Commonwealth's case, Appellant…elected to enter a plea of guilty to the charges for which he was on trial. Appellant entered an open guilty plea to the charges of burglary, criminal trespass, simple assault and [PIC].
Appellant executed a written colloquy and was given an oral colloquy by the court. The court found that Appellant entered a knowing and voluntary guilty plea to the charges and accepted the plea.
Sentencing was deferred to August 8, 2022, at which time Appellant was sentenced to 6½ - 20 years' incarceration on the burglary conviction, and concurrent sentences of 2½ - 5 years' incarceration on the PIC conviction, and 1-2 years' incarceration on the simple assault conviction. The criminal trespass conviction merged with the burglary for purposes of sentencing.
That same day counsel for Appellant filed a motion for reconsideration of sentence, which motion was denied on September 7, 2022. Appellant also filed a pro se motion to modify sentence, which the court disregarded because Appellant was represented by counsel, and the motion was duplicative of the motion for reconsideration filed by counsel.
A timely notice of appeal was filed on September 26, 2022.
After sentencing, trial counsel was permitted to withdraw and new counsel was appointed to represent Appellant on appeal.
Pursuant to Pa.R.A.P. 1925(b)(2) and (3), the court entered an order on November 14, 2022, directing the filing of a Statement of Errors Complained of on Appeal, not later than twenty-one (21) days after entry of the order.
On December 12, 2022, the court granted new counsel a thirty (30) day extension of time to file the Rule 1925(b) statement.
A Rule 1925[(c)(4) intent to file an Anders brief] statement was filed on December 30, 2022.(Trial Court Opinion, filed July 11, 2023, 1-2).
Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).
Preliminarily, appellate counsel seeks to withdraw representation pursuant to Anders and Commonwealth v. Santiago, 602 Pa. 159, 978 A.2d 349 (2009). Anders and Santiago require counsel to: 1) petition the Court for leave to withdraw, certifying that after a thorough review of the record, counsel has concluded the issues to be raised are wholly frivolous; 2) file a brief referring to anything in the record that might arguably support the appeal; and 3) furnish a copy of the brief to the appellant and advise him of his right to obtain new counsel or file a pro se brief to raise any additional points the appellant deems worthy of review. Santiago, supra at 173-79, 978 A.2d at 358-61. Substantial compliance with these requirements is sufficient. Commonwealth v. Wrecks, 934 A.2d 1287, 1290 (Pa.Super. 2007).
In Santiago, supra, our Supreme Court addressed the briefing requirements where court-appointed appellate counsel seeks to withdraw:
Neither Anders nor McClendon requires that counsel's brief provide an argument of any sort, let alone the type of argument that counsel develops in a merits brief. To repeat, what the brief must provide under Anders are references to anything in the record that might arguably support the appeal.
* * *
Under Anders, the right to counsel is vindicated by counsel's examination and assessment of the record and counsel's references to anything in the record that arguably supports the appeal.
Santiago, supra at 176, 177, 978 A.2d at 359, 360. Thus, the Court held:
[I]n the Anders brief that accompanies court-appointed counsel's petition to withdraw, counsel must: (1) provide a summary of the procedural history and facts, with citations to the record; (2) refer to anything in the record that counsel believes arguably supports the appeal; (3) set forth counsel's conclusion that the appeal is frivolous; and (4) state 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.Id. at 178-79, 978 A.2d at 361. After confirming that counsel has met the antecedent requirements to withdraw, this Court makes an independent review of the record to confirm that the appeal is wholly frivolous. Commonwealth v. Palm, 903 A.2d 1244, 1246 (Pa.Super. 2006). See also Commonwealth v. Dempster, 187 A.3d 266 (Pa.Super. 2018) (en banc).
Commonwealth v. McClendon, 495 Pa. 467, 434 A.2d 1185 (1981).
Instantly, appellate counsel has filed a petition to withdraw. The petition states that counsel reviewed the trial court record and determined that the appeal is frivolous. Counsel also served a copy of the petition to Appellant, along with a letter advising him of his right to file a response to counsel's petition as either a pro se litigant, or through new counsel. Further, counsel filed an Anders brief which explains the facts and procedural history of the case and discusses the relevant law. Counsel's brief also cites to the record and explains counsel's conclusion that the appeal is wholly frivolous. Therefore, counsel has substantially complied with the requirements set forth in Anders and Santiago.
Counsel raises the following issue on Appellant's behalf:
Whether there are any issues of arguable merit that could be raised on appeal … and whether the appeal is wholly frivolous?(Anders Brief at 4).
Appellant has not responded to the Anders brief pro se or with newly-retained counsel.
In the Anders brief, Appellant alleges: (1) the court abused its sentencing discretion by imposing an excessive sentence; (2) the prosecutor committed misconduct by failing to produce certain witness statements; (3) trial counsel was ineffective for failing to object to certain witness testimony that was not in discovery; (4) trial counsel was ineffective for convincing Appellant to plead guilty; (5) trial counsel was ineffective in putting witnesses on the stand without police paperwork and appropriate discovery; (6) trial counsel was ineffective for failing to file pre-trial motions; (7) Appellant was wrongly arrested and overzealously prosecuted due to trial counsel's inexperience and prosecutorial misconduct; and (8) Appellant's guilty plea was invalid.
After a thorough review of the record, the briefs of the parties, the applicable law, and the well-reasoned trial court opinion, we conclude that Appellant's issues merit no relief. We agree with the analysis set forth in the trial court's opinion. (See Trial Court Opinion at 3-7).
Specifically, regarding Appellant's sentencing challenge, the court noted that it carefully considered the record and the sentencing guidelines. The court imposed a sentence within the applicable guideline range, without a deadly weapon enhancement. The court stated its reasons for sentencing on the record, at which time the court explained that it had considered the presentence investigation report, the guidelines, the mental health evaluation report, the victim impact testimony, Appellant's allocution, the arguments of counsel, and the circumstances of the offenses. Based upon the foregoing, the court maintained that its sentence was an appropriate exercise of the court's discretion. (See Trial Court Opinion at 3-5).
We note that prior to reaching the merits of a discretionary sentencing issue:
We conduct a four part analysis to determine: (1) whether appellant has filed a timely notice of appeal, see Pa.R.A.P. 902 and 903; (2) whether the issue was properly preserved at sentencing or in a motion to reconsider and modify sentence, see [Pa.R.Crim.P. 720]; (3) whether appellant's brief has a fatal defect, Pa.R.A.P. 2119(f); and (4) whether there is a substantial question that the sentence appealed from is not appropriate under the Sentencing Code, 42 Pa.C.S.A. § 9781(b).Commonwealth v. Evans, 901 A.2d 528, 533 (Pa.Super. 2006), appeal denied, 589 Pa. 727, 909 A.2d 303 (2006) (internal citations omitted). Here, Appellant filed a timely notice of appeal, preserved a challenge to the discretionary aspects of sentencing in a timely-filed post-sentence motion, and included the requisite Rule 2119(f) statement in his brief. Nevertheless, as counsel concedes in the Anders brief, Appellant has not presented a substantial question warranting our review. (See Anders Brief at 10-11). Even if Appellant had presented a substantial question for our review, however, we would accept the trial court's analysis concluding that the court did not abuse its sentencing discretion in this case.
Regarding Appellant's various claims of trial counsel's ineffectiveness, the court noted that such claims must be deferred until collateral review. (See id. at 6).
With respect to Appellant's assertions of prosecutorial misconduct, this claim fails because the Commonwealth was not in possession of any written statements that it allegedly failed to disclose to Appellant. The prosecutor confirmed that no witness statements were located. (See Trial Court Opinion at 6).
Before trial began, the prosecutor stated that it wanted to disclose to the court that the Commonwealth was not in possession of the complainants' written statements. The prosecutor confirmed that she reached out to the detectives and the detectives could not locate any written statements. The prosecutor informed defense counsel about this, and defense counsel accepted the prosecutor's representation. (See N.T. Trial/Guilty Plea, 4/27/22, at 4-5).
Further, the court deemed any challenge to the validity of Appellant's guilty plea waived for failing to move to withdraw the plea in the trial court either before or after sentencing. Moreover, had Appellant sought to withdraw his guilty plea, under the circumstances of this case-where Appellant pled guilty after the Commonwealth had already presented its entire case at trial- doing so would have substantially prejudiced the Commonwealth. (See id.)
The court also explained that Appellant could not raise any claims of error regarding pre-trial or trial proceedings based on Appellant's decision to plead guilty, which limited the challenges he could pursue on appeal. Appellant acknowledged as much in his written and oral plea colloquies. (Id. at 7).
Upon an independent review of the record, we agree with counsel's assessment that the appeal is frivolous. See Dempster, supra; Palm, supra. Accordingly, we affirm based on the trial court's opinion and grant counsel's petition to withdraw.
We note that on page 7 of the trial court's opinion at footnote 5, there is a small citation error. The correct citation is Commonwealth v. Flood, 627 A.2d 1193, 1198 (Pa.Super. 1993).
Judgment of sentence affirmed; counsel's petition to withdraw is granted.
Judgment Entered.
(Pa. Super. Dkt. No. 2560 EDA 2022)
CAMPBELL, J.
PROCEDURAL HISTORY
On April 27, 2022, following jury selection and complete presentation of the Commonwealth's case, Appellant Maurice Mullins elected to enter a plea of guilty to the charges for which he was on trial. NT 4/27/22, 153. Appellant entered an open guilty plea to the charges of burglary, criminal trespass, simple assault and possession of an instrument of a crime. NT 4/27/22,154.
Appellant executed a written colloquy and was given an oral colloquy by the court. The court found that Appellant entered a knowing and voluntary guilty plea to the charges and accepted the plea. NT 4/27/22, 154-169.
Sentencing was deferred to August 8, 2022, at which time Appellant was sentenced to 6 14 - 20 years incarceration on the burglary conviction, and concurrent sentences of 2/4-5 years incarceration on the PIC conviction, and 1-2 years incarceration on the simple assault conviction. The criminal trespass conviction merged with the burglary for purposes of sentencing.
That same day counsel for Appellant filed a motion for reconsideration of sentence, which motion was denied on September 7,2022. Appellant also filed apro se motion to modify sentence, which the court disregarded because Appellant was represented by counsel, and the motion was duplicative of the motion for reconsideration filed by counsel.
A timely notice of appeal was filed on September 26, 2022.
After sentencing, trial counsel was permitted to withdraw and new counsel was appointed to represent Appellant on appeal.
Pursuant to Pa.R.A.P. 1925(b)(2) and (3), the court entered an order on November 14, 2022, directing the filing of a Statement of Errors Complained of on Appeal, not later than twenty-one (21) days after entry of the order.
On December 12, 2022, the court granted new counsel a thirty (30) extension of time to file the Rule 1925(b) statement.
A Rule 1925(b) statement was filed on December 30, 2022.
DISCUSSION
Appellant raises eight (8) issues in his Rule 1925(b) statement, which the court will reorder and reframe in an attempt to provide clarity: 1) abuse of sentencing discretion; 2) prosecutorial misconduct in failing to produce witness statements; 3) ineffectiveness of trial counsel in: a) failing to object to testimony of a witness not disclosed in discovery; b) failing to "dissect" police reports and present a compelling case to the jury; c) failure to object to witnesses as to who discovery was not provided, appropriately challenging or agreeing with said witnesses; d) failure to file a pretrial motion requested by Appellant (subject unstated); 4) wrongful arrest, prosecution and sentencing based upon trial counsel inexperience and prosecutorial misconduct; and 5) Appellant entitled to withdraw his guilty plea.
A. The Sentences Imposed Reflect A Proper Exercise Of The Court Discretion.
Pennsylvania's Sentencing Guidelines are merely advisory. "They set forth a series of recommendations that based on the type of crime, the defendant's criminal history, and the existence of any aggravating or mitigating factors, suggest a range of minimum sentences... [T]he range is merely a suggestion." Commonwealth v. Yuhasz, 923 A.2d 1111, 1119 (Pa. 2007).
As the Supreme Court elaborated:
[T]he guidelines have no binding effect, create no presumption in sentencing, and do not predominate over other sentencing factors- they are advisory guideposts that are valuable, may provide an essential starting point, and that must be respected and considered; they recommend, however, rather than require a particular sentence.Commonwealth v. Walls, 926 A.2d 957, 964-965 (Pa. 2007). "There is no abuse of discretion unless the sentence is manifestly excessive so as to inflict too severe a punishment." Commonwealth v. Mouzon, 571 Pa. 419, 431, 812 A.2d 617, 624-625 (Pa. 2002).
Moreover:
The sentencing court is given broad discretion in determining whether a sentence is manifestly excessive because the sentencing judge is in the "best position to measure factors such as the nature of the crime, the defendant's character and the defendant's display of remorse, defiance, or indifference." Commonwealth v. Andrews, 720 A.2d 764, 768 (Pa. Super. 1998) (quoting Commonwealth v. Ellis, 700 A.2d 948, 958 (Pa. Super. 1988)). In order to find that a trial court imposed an "unreasonable" sentence, we must determine that the sentencing court imposed the sentence irrationally and that the court was "not guided by sound judgment." Commonwealth v. Walls, 592 Pa. 557, 564, 926 A.2d 957, 961 (2007).Commonwealth v. Riggs, 63 A.3d 780, 786 (Pa. Super. Ct. 2012)
Here, the court carefully considered the record before it and the guidelines. The parties agreed that the offense gravity score was 9, and that Appellant's prior record score was RFEL, yielding a guideline range of 60 to 72 month, plus or minus 12. With a deadly weapon enhancement, the guidelines were 78-90, plus or minus 12. NT 8/8/22, 5-6. The sentence imposed fell within the applicable guideline range, without the deadly weapon enhancement.
In sentencing Appellant, the Court stated:
This Court's considered the presentence report, the sentencing guidelines form, the mental health evaluation report, the victim impact testimony, the defendant's allocution, the arguments of both counsel, the particular circumstances of the offense, which, of course, include what's been marked today as C-l, which we also saw during the course of the trial.
There's a lot from Mr. Mullens' history and the particular facts of the case from which to note both aggravating and mitigating circumstances. In these particular circumstances, the guidelines do not overrepresent the defendant's criminality particularly since his convictions from 2015 forward had been more related to this type of conduct than the convictions prior.
This Court also notes some of the criminal history that did not result in conviction that is somewhat recent as relevant even though they're not convictions and he's not considered guilty as such, it does confirm a pattern of invasive conduct that confirms the threat that the defendant poses to society. His record is long, going back to his juvenile days, and I won't go over it again because the Commonwealth did a pretty good job of summarizing that.
As mitigating factors, unsurprisingly, the defendant hailed from a somewhat tragic personal history with an early exposure to and use of narcotics, including PCP, without much treatment to address it throughout his life.
His father was killed by gunshots; his younger brother was killed also when he was in custody. And as terrible as these things are, unfortunately, they're not that unusual but that's not to diminish the impact that it would have had on this defendant.
His anxiety and post-traumatic stress disorder has been a common threat throughout his life, not recently, and that has been also largely unaddressed. It tends to give some credence to the argument that counsel makes regarding the particular circumstances of this offense where Mr. Mullens almost comically says, Come and get me, in a funny voice to police and the passive way in which he was acting during that time. He's lucky that police were reasonable at the time and we're here addressing his criminal matter as opposed to him just being killed or badly injured.
This Court also notes as a mitigating factor that Mr. Mullens required special classes due to learning disabilities, although the mental health report recognizes and it's easy for this Court to note that he's of at least average intelligence.
This Court also notes as a mitigating factor his physical condition, as its been compromised from the 2018 accident injuries, as well as him being diabetic.
We'll note that the diet in the state prison system is something that is likely to make that condition worse.
This Court also notes that the defendant's age, at 48 years old, although it doesn't mitigate in the way that we're used to thinking about it because he hasn't been getting better, he has been getting worse.
But I note it in the sense that he does not have as much time as others may, you know, to live past a sentence.
This Court also credits the defendant's words of remorse, and also finds that they relate to his mental health condition.
Notwithstanding these mitigating factors, there's an obligation and a desire by this Court to protect society from this type of invasion which has been ongoing. And this Court also finds that given the defendant's -- all of the conditions that I have just described, for as long as he's been doing it, any rehabilitation would require substantial confinement in any event. So the following sentence attempts to reconcile all of these factors.NT 8/8/22, 27-31.
The offense itself was not a routine burglary. The facts adduced at trial and to which Appellant admitted in pleading guilty were as follows:
[0]n January 4, 2021, at 1856 Brunner Street, this defendant, Mr. Maurice Mullins, approached Ms. Chikia Lewis and Michelle Admiral as well as [Ms. Lewis'] three-year-old child []. He offered to help them in. They refused, at which time he lifted up the stroller, pushed Ms. Michelle Admiral into the door, forced himself into the home through the threshold without permission or without being invited into this place against the will of Ms. Michelle Admiral who was attempting to keep him out and block him.
Upon leaving, a struggle ensued between Ms. Michelle Admiral and this defendant. Ms. Michelle Admiral did grab a knife to which this defendant struggled with her to get it, resulting in Ms. Michelle Admiral being - having serval cuts to her hand, as well as her back hitting the ban[]ister during one of the tussles.
... Ms. Michelle Admiral and Chikia Lewis ran up the steps, locked themselves in the front bedroom where they were able to call police. 39th District officers responded to the scene where they came across the complainants screaming out the window for help.
Once they arrived and went into the house, they saw this defendant, Mr. Maurice Mullins, with a knife, continuously saying, Come and get me. And after brief standoff with police, this defendant was eventually apprehended outside in the alleyway behind the house after fleeing through the back. And he was arrested and brought into custody.NT 4/27/22, 165-166.
Moreover, the impact on the victims' lives was significant, leaving them with ongoing fear, anxiety, and feeling unsafe in their own home. NT 8/8/22, 11-13.
Under all the circumstances, the sentences imposed were just, warranted, and an appropriate exercise of the court's discretion.
B. None Of Appellant's Other Claims Are Cognizable On This Appeal.
With the exception of the foregoing abuse of sentencing discretion claim, none of Appellant's claims are cognizable in this appeal. Specifically: there is no or insufficient record upon which to address the ineffectiveness of counsel claims 3(a)-(d), which must be raised collaterally under the Post-Conviction Relief Act, after exhaustion of this direct appeal; the prosecutorial misconduct claims (2 and 4) were not preserved and the record is inadequate to address the claims; having failed to file a timely motion to withdraw his guilty plea, either before or after the deferred sentencing, Appellant has waived this claim, and there is no record upon which the court can assess the merits of such a claim, were it not waived. Moreover, Appellant's claims as to trial proceedings are waived by his guilty plea, which he acknowledged during his written and oral guilty plea colloquies.
Absent exceptions not presented here, "claims of ineffective assistance of counsel are to be deferred to PCRA review; trial courts should not entertain claims of ineffectiveness upon post-verdict motions; and such claims should not be reviewed upon direct appeal." Commonwealth v. Holmes, 79 A.3d 562, 576 (Pa. 2013). See also Commonwealth v. Myers, No. 342 EDA 2022, 2022 WL 17973624 (Pa. Super. Dec. 28, 2022).
As to the absence of witness statements, the record establishes that the Commonwealth was not in possession of any such written statements, that the prosecutor made inquiry of the police and none were located. Counsel and the court were so advised, and no objection was raised. NT 4/27/22, 4-6.
Had Appellant moved to withdraw his plea post-sentence, he would have faced a very high hurdle. Post-sentence motions for withdrawal are subjected to higher scrutiny "since courts strive to discourage entry of guilty pleas as sentence testing devices." Commonwealth v. Flick, 802 A.2d 620, 623 (Pa. Super. 2002). Therefore, to withdraw a guilty plea after the imposition of sentence, a defendant must make a showing of prejudice which resulted in a "manifest injustice." Id., at 383. Moreover, withdrawal of the plea under the circumstances presented here - decision to plead after the Commonwealth had presented its entire case to the jury ~ constitutes substantial prejudice to the Commonwealth. See Commonwealth v. Cole, 564 A.2d 203, 206 (Pa. Super. 1989); Commonwealth v. Carelli, 454 A.2d 1020, 1023 (Pa. Super. 1982).
Appellant was specifically informed of this requirement in his written guilty plea colloquy. Even though he did file his own pro se post-sentence motion by posting it from the Philadelphia County Prison on August 10, 2022 (received by the Clerk August 17, 2022), the sole subject he raised was the same as that filed by his counsel: reconsideration of sentence. Appellant did not seek to withdraw his guilty plea.
"After an accused enters a guilty plea, appellate rights are limited to challenges to the validity of the plea, the legality of the sentence imposed, or the trial court's jurisdiction," Commonwealth v. Flood, 566, 627 A.2d 1193, 1198 (Pa. Super. 1993) (plea entered during trial, after Commonwealth permitted to reopen case to present rebuttal evidence).
"[A] defendant who elects to plead guilty has a duty to answer questions truthfully. We [cannot] permit a defendant to postpone the final disposition of his case by lying to the court and later alleging that his lies were induced by the prompting of counsel." Commonwealth v. Pollard, 832 A.2d 517, 523-24 (Pa. Super. 2003) (citations omitted).
CONCLUSION
For the foregoing reasons, the judgments of sentence should be affirmed.