Com. v. Mitchell, J. ( 2023 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JAMIR Q. MITCHELL :
:
Appellant : No. 2050 EDA 2022
Appeal from the Judgment of Sentence Entered May 4, 2022
In the Court of Common Pleas of Montgomery County Criminal Division
at No(s): CP-46-CR-0007049-2019
BEFORE: OLSON, J., McLAUGHLIN, J., and KING, J.
MEMORANDUM BY OLSON, J.: FILED AUGUST 9, 2023
Appellant, Jamir Q. Mitchell, appeals from the judgment of sentence
entered on May 4, 2022 in the Criminal Division of the Court of Common Pleas
of Montgomery County. We affirm.
Between April 2019 and August 2019, Appellant engaged in four
separate transactions during which he sold heroin and/or fentanyl to a
confidential informant in exchange for United States currency. Following his
arrest on October 25, 2019, law enforcement charged Appellant with four
counts of possession of a controlled substance with intent to deliver (PWID),
35 P.S. § 780-113(a)(30).
On February 2, 2022, Appellant entered an open guilty plea to all four
counts of PWID. The trial court accepted Appellant’s plea and ordered the
preparation of a pre-sentence investigation report (PSI) and a probation and
parole intervention report (PPI). On May 4, 2022, the trial court imposed an
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aggregate sentence of approximately five years and four months to 11 years’
incarceration.1 At Count 2 of the Commonwealth’s criminal information,
Appellant received a sentence of time-served (508 days) to three years in a
state prison. See Criminal Information, 2/2/22, at 1-2 (not paginated). At
Count 3, the court ordered Appellant to serve one and one-half to three years
in state prison, consecutive to the sentence imposed at Count 2. Id. At Count
4, the court ordered Appellant to serve one and one-half to three years in
state prison, consecutive to the sentence imposed at Count 3. Id. Finally, at
Count 1, Appellant received one to two years in state prison, consecutive to
the sentence imposed at Count 4. On May 14, 2022, Appellant sought to
modify his sentence, alleging that consecutive sentences inflicted an excessive
punishment and that the court failed to consider mitigating factors. The trial
court denied Appellant’s motion on June 15, 2022.
Trial counsel attempted to electronically file a notice of appeal on July
15, 2022. The submission was rejected, however, because the trial court’s
electronic docketing system required in-person filing for all notices of appeal
to this Court. Appellant’s Motion to Appeal Nunc Pro Tunc, 7/18/22, at 1-2
(not paginated). On July 18, 2022, counsel submitted a motion to appeal
nunc pro tunc, alleging that she was unaware that notices of appeal to this
Court needed to be filed in person. See Appellant’s Motion to Appeal Nunc
____________________________________________
1 At the time of sentencing in this matter, Appellant was awaiting sentencing
for additional crimes, including attempted robbery, PWID, and possession of
a firearm with an altered serial number. Appellant committed these offenses
while free on bail in this case. See N.T. Sentencing Hearing, 5/4/22, at 34.
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Pro Tunc, 7/18/22, at 2. The trial court granted the motion on July 27, 2022
and allowed 30 days within which to lodge an appeal from Appellant’s
judgment of sentence. Counsel filed a notice of appeal on August 12, 2022.
Trial counsel was then permitted to withdraw on August 16, 2022 and current
appellate counsel was appointed. The trial court, on August 30, 2022, directed
Appellant to file a concise statement of errors complained of on appeal within
21 days pursuant to Pa.R.A.P. 1925(b). Appellant complied on September 19,
2022 and the trial court issued its opinion on September 26, 2022.
Appellant’s brief raises the following question for our review.
Was the aggregate sentence [Appellant] received manifestly
excessive and unreasonable so as to constitute an abuse of
discretion by the sentencing court because the court sentenced
[Appellant] to four consecutive sentences on four separate
charges [without considering mitigating factors raised by trial
counsel at sentencing and identified in the PSI and PPI
evaluation]?
Appellant’s Brief at 8.
Preliminarily, we consider whether we have jurisdiction in this matter.
Jurisdiction vests in this Court with a timely appeal of a final order.
Commonwealth v. Green, 862 A.2d 613, 615 (Pa. Super. 2004) (en banc).
In most criminal cases, the time for filing an appeal is 30 days from the
judgment of sentence unless a defendant files a timely post-sentence motion.
See Green, supra at 618. In the latter event, the period for filing an appeal
is tolled and a defendant may appeal within 30 days of the denial of the
post-sentence motion. See Pa.R.Crim.P. 720(2)(a).
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The trial court sentenced Appellant on May 4, 2022. A timely
post-sentence motion followed on May 14, 2022,2 which the trial court denied
on June 15, 2022. Appellant’s notice of appeal was therefore due no later
than July 15, 2022.
Appellant did not file an appeal before the deadline. Instead, as
explained above, counsel attempted to electronically transmit a notice of
appeal on July 15, 2022, but the submission was rejected by the trial court’s
docketing system because it was not filed in person. Counsel undertook
prompt remedial action, however, and submitted a motion to file an appeal
nunc pro tunc on July 18, 2022, the next weekday. Counsel’s motion alleged
that she was unaware that notices of appeal to this Court needed to be filed
in person. The trial court granted leave to appeal nunc pro tunc on July 27,
2022 and Appellant complied with the court’s directive to file any notice of
appeal within 30 days.
The trial court’s July 27, 2022 order expressly granted Appellant’s
request to file a notice of appeal nunc pro tunc. By that time, however, the
30-day direct appeal period had expired, and the court no longer retained
jurisdiction over this matter. Under these circumstances, the remedy of
granting nunc pro tunc relief to reinstate a direct appeal is, technically, a
procedural misstep.
____________________________________________
2 May 14, 2022 was a Saturday but Appellant’s motion to modify his sentence
was electronically filed.
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Once a criminal judgment becomes final, Pennsylvania law channels all
claims for state collateral relief through the Post Conviction Relief Act (PCRA),
42 Pa.C.S.A. §§ 9541-9546. See Commonwealth v. Ahlborn, 699 A.2d
718, 721 (Pa. 1997). Thus, if a post-conviction claim is cognizable under the
PCRA, common law and statutory remedies now subsumed by the PCRA are
no longer available to the defendant. See Commonwealth v. Peterkin, 722
A.2d 638, 640-641 (Pa. 1998) (statutory writ of habeas corpus was not
available where petitioner's claims were cognizable under the PCRA).
Moreover, where the PCRA applies, the trial court no longer retains residual
common law or statutory authority to restore direct appeal rights except under
the strictures of the PCRA. See Commonwealth v. Hall, 771 A.3d 1232, 96
(Pa. 2001) (trial court’s conclusion that an extra-PCRA path exists to restore
direct appeal rights nunc pro tunc is contrary to both explicit language of PCRA
as well as Supreme Court jurisprudence). We therefore examine the
reinstatement of Appellant’s direct appeal rights under applicable PCRA
standards.
A post-conviction filing that seeks restoration of direct appeal rights
nunc pro tunc, and which is premised upon the ineffective assistance of
counsel, presents a claim that is cognizable under the PCRA. See id. at 97.
To overcome the presumption that counsel was effective, a “petitioner must
establish that: (1) the underlying substantive claim has arguable merit; (2)
counsel did not have a reasonable basis for his or her act or omission; and (3)
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the petitioner suffered prejudice as a result of counsel's deficient performance,
that is, a reasonable probability that but for counsel's act or omission, the
outcome of the proceeding would have been different.” Commonwealth v.
Wholaver, 177 A.3d 136, 144 (Pa. 2018). Jurisdiction to entertain a PCRA
claim is tied to the filing of a timely petition and “[i]n circumstances in which
no timely direct appeal is filed relative to a judgment of sentence, and direct
review is therefore unavailable, the [PCRA’s] one-year [limitations] period []
commences upon the actual expiration of the time period allowed for seeking
direct review, as specified in the PCRA.” Commonwealth v. Ballance, 203
A.3d 1027, 1031 (Pa. Super. 2019); see also 42 Pa.C.S.A. § 9545(b)(3).
Trial counsel explained in the motion to file a notice of appeal nunc pro
tunc that she failed to initiate a timely direct appeal because she was unaware
of local electronic filing procedures. Counsel could not have had a reasonable
basis for this oversight and Pennsylvania courts have held that the failure to
file a requested appeal automatically results in a finding of prejudice. See
Commonwealth v. Bennett, 930 A.2d 1264, 1273 (Pa. 2007) (observing
that the failure of counsel to file a requested appeal “is the functional
equivalent of having no counsel at all,” which “requires a finding of
prejudice”) (emphasis added). Also, Appellant’s request for reinstatement of
his direct appeal rights was timely presented under the PCRA since counsel
requested leave to file a notice of appeal nunc pro tunc the next weekday after
the period for seeking direct review expired. Hence, the trial court properly
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reinstated Appellant’s right to file a direct appeal because trial counsel was
ineffective and Appellant presented his claim in a timely manner.3
In his sole issue, Appellant raises a challenge to the discretionary
aspects of his sentence, claiming that his aggregate sentence was excessive.
An appellant is not entitled to the review of challenges to the
discretionary aspects of a sentence as of right. Rather, an
appellant challenging the discretionary aspects of his sentence
must invoke this Court's jurisdiction. We determine whether the
appellant has invoked our jurisdiction by considering the following
four factors:
(1) Whether appellant has filed a timely notice of appeal; (2)
whether the issue was properly preserved at sentencing or in a
motion to reconsider and modify sentence; (3) whether
appellant's brief has a fatal defect; and (4) whether there is a
substantial question that the sentenced appealed from is not
appropriate under the Sentencing Code.
Commonwealth v. Lucky, 229 A.3d 657, 663-64 (Pa. Super. 2020) (internal
quotation marks omitted).
Here, Appellant (1) filed a timely appeal, (2) preserved his challenge in
a post-sentence motion, and (3) included a concise statement under Pa.R.A.P.
2119(f) in his brief. The only issue remaining is whether he raised a substantial
question that the sentence is improper under the Sentencing Code.
____________________________________________
3 Ordinarily, the Commonwealth has a right to respond to a petition for
collateral relief. Here, however, Appellant’s request for reinstatement of his
direct appeal rights was clearly meritorious and the Commonwealth has not
objected. Thus, we will overlook this procedural irregularity under the current
circumstances.
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The determination of what constitutes a substantial question must be
evaluated on a case-by-case basis. A substantial question exists only when
the appellant advances a colorable argument that the sentencing judge's
actions were either inconsistent with a specific provision of the Sentencing
Code or contrary to the fundamental norms which underlie the sentencing
process. Commonwealth v. Ali, 197 A.3d 742, 760 (Pa. Super. 2018)
(internal citations and quotations omitted).
In his Rule 2119(f) statement, Appellant claims that the trial court
imposed an excessive sentence by failing to adequately consider, on the
record, his mitigating circumstances and by imposing an excessive aggregate
sentence comprised of unnecessary consecutive punishments. We have held
that an appellant's “challenge to the imposition of his consecutive sentences
as unduly excessive, together with his claim that the court failed to consider
his rehabilitative needs and mitigating factors upon fashioning its sentence,
presents a substantial question” for review. See Commonwealth v. Swope,
123 A.3d 333, 340 (Pa. Super. 2015) (citation omitted). We therefore turn to
the merits of Appellant’s sentencing challenge.
Appellant, who was 22 at the time of sentencing, argues that the trial
court did not adequately consider mitigating factors on the record at
sentencing. In support, he summarizes the mitigating evidence about his
background that he presented at the sentencing hearing, either through the
arguments of counsel or the contents of the PSI or PPI reports. These factors
included an absentee father, his mother’s drug addiction, sexual abuse at the
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hands of his mother’s boyfriend, a childhood marked by chaotic and
dysfunctional familial relationships and unstable housing conditions, various
mental health issues, and Appellant’s personal addiction to gambling and
opioids. See Appellant’s Brief at 17-18. Despite these factors, Appellant
maintains that, at the sentencing hearing, the trial court improperly chose to
focus on his continued involvement with criminal activity during the lead-up
to his sentencing hearing, including his arrest for PWID, possession of a
firearm with an altered serial number, and attempted robbery. Appellant also
objects to the imposition of consecutive sentences on his four separate PWID
offenses.
Section 9721 of the Sentencing Code offers the following guidance in
the context of a sentencing determination:
[T]he sentence imposed should call for confinement that is
consistent with the protection of the public, the gravity of the
offense as it relates to the impact on the life of the victim and on
the community, and the rehabilitative needs of the defendant.
42 Pa.C.S.A. § 9721(b).
Furthermore,
Section 9781(c) specifically defines three instances in which the
appellate courts should vacate a sentence and remand: (1) the
sentencing court applied the guidelines erroneously; (2) the
sentence falls within the guidelines, but is “clearly unreasonable”
based on the circumstances of the case; and (3) the sentence falls
outside of the guidelines and is “unreasonable.” 42 Pa.C.S.A.
§ 9781(c). Under 42 Pa.C.S.A. § 9781(d), the appellate courts
must review the record and consider the nature and circumstances
of the offense, the sentencing court's observations of the
defendant, the findings that formed the basis of the sentence, and
the sentencing guidelines. The weighing of factors under 42
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Pa.C.S.A. § 9721(b) is exclusively for the sentencing court, and
an appellate court may not substitute its own weighing of those
factors. The primary consideration, therefore, is whether the
court imposed an individualized sentence, and whether the
sentence was nonetheless unreasonable for sentences falling
outside the guidelines, or clearly unreasonable for sentences
falling within the guidelines, pursuant to 42 Pa.C.S.A. § 9781(c).
Commonwealth v. Bricker, 41 A.3d 872, 875-876 (Pa. Super. 2012)
(citations omitted).
When imposing sentence, a court is required to consider the
circumstances of the offense and the character of the defendant.
In considering these factors, the court should refer to the
defendant's prior criminal record, age, personal characteristics
and potential for rehabilitation. Where pre-sentence reports exist,
we shall . . . presume that the sentencing judge was aware of
relevant information regarding the defendant's character and
weighed those considerations along with mitigating statutory
factors.
Commonwealth v. Antidormi, 84 A.3d 736, 761 (Pa. Super. 2014)
(quotation marks and quotation omitted).
We also note that the “imposition of consecutive rather than
concurrent sentences lies within the sound discretion of the
sentencing court.” Commonwealth v. Zirkle, 107 A.3d 127, 133
(Pa. Super. 2013) (citation omitted). It is well-accepted that “in
imposing a sentence, the trial [court] may determine whether,
given the facts of a particular case, a sentence should run
consecutive to or concurrent with another sentence being
imposed.”
Commonwealth v. Wright, 832 A.2d 1104, 1107 (Pa. Super. 2003).
Finally, “[w]here, as here, the sentencing court has the benefit of
reviewing a pre-sentence investigation report, we can assume the
sentencing court was aware of relevant information regarding the
defendant's character and weighed those considerations along
with mitigating statutory factors.”
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Commonwealth v. Rhoades, 8 A.3d 912, 919 (Pa. Super. 2010) (internal
quotation marks and citation omitted).
After careful review, we conclude that the trial court did not abuse its
discretion in imposing its sentence in this case. The transcript of Appellant’s
sentencing hearing reflects that the court reviewed, understood, and
considered Appellant’s mitigating factors as presented in the PSI and PPI
reports, and as presented by trial counsel during argument. Contrary to
Appellant’s claim, the trial court was well informed of Appellant’s mitigation
evidence and personal background when it formulated an individualized
punishment that reflected the circumstances of the instant offenses,
Appellant’s character and mitigating factors, and the prospects for
rehabilitation. Considering that information, the trial court imposed four
standard range sentences and directed that they be served consecutively to
reflect the seriousness of four distinct criminal acts. Although the trial court
remarked about Appellant’s continued involvement in criminal activity, it did
so only to consider the potential danger Appellant continued to pose to the
public despite the pendency of charges in this case. As a result, we do not
find that the trial court abused its discretion by imposing an excessive
sentence in this matter.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/09/2023
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