Com. v. Melton, T.

J-S33045-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
TYHEEM MELTON :
:
Appellant : No. 3391 EDA 2019
Appeal from the Judgment of Sentence Entered November 23, 2016
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0006840-2015
BEFORE: DUBOW, J., MURRAY, J., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED AUGUST 03, 2020
Appellant Tyheem Melton appeals nunc pro tunc from the judgment of
sentence entered in the Court of Common Pleas of Philadelphia County on
November 23, 2016. Appellant’s counsel also has filed both a petition for
leave to withdraw as counsel and an accompanying brief pursuant to Anders
v. California, 386 U.S. 738 (1967) and Commonwealth v. Santiago, 978
A.2d 349 (Pa. 2009). Following our review, we remand with instructions and
deny counsel’s petition to withdraw.
The trial court set forth the procedural history and relevant facts herein
as follows:
On November 23, 2016, [Appellant] pled nolo contendere to
two counts of murder in the third degree (18 Pa.C.S. § 2502(c))
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* Former Justice specially assigned to the Superior Court.
J-S33045-20
and one count of possession of a firearm by prohibited person (18
Pa.C.S. 6105).[1] The plea was entered pursuant to a plea
agreement that provided that the [c]ourt's aggregate sentence
would be no lower than 20 to 40 years[’] incarceration, but did
not otherwise specify the sentence.[2] On that same day, the
[c]ourt sentenced [Appellant] to two concurrent terms of 20 to 40
years[’] incarceration for each murder charge and a consecutive
term of 5 to 10 years incarceration for possession of a firearm, for
an aggregate sentence of 25 to 50 years[’] incarceration.
[Appellant] was represented by Francis Carmen, Esquire, for his
nolo contendere plea and sentencing. No post-sentence motions
were filed and no direct appeal was taken.
On November 21, 2017, [Appellant] filed a timely pro se
petition under the Post Conviction Relief Act (“PCRA”) seeking
reinstatement of his rights to file post-sentence motions and an
appeal. Gary S. Server, Esquire was appointed to represent
[Appellant] on March 29, 2018. On May 29, 2018, Mr. Server filed
an amended PCRA petition ("Amended Petition''). On August 2,
2019, after reviewing the Amended Petition and the
Commonwealth's Motion to Dismiss, the [c]ourt denied
[Appellant’s] claim for reinstatement of his right to file a post-
sentence motion, but granted an evidentiary hearing on the claim
regarding trial counsel's failure to file a direct appeal. On October
25, 2019, following an evidentiary hearing, the [c]ourt granted
[Appellant’s] PCRA Petition in part, and reinstated his direct
appeal rights.
[Appellant] has now appealed from the judgment entered
by the PCRA [c]ourt on the grounds that: -“the PCRA [c]ourt erred
when it reinstated [Appellant’s] appellate rights nunc pro tunc
without also reinstating [Appellant’s] Post Sentence Motion right
to seek reconsideration of sentence where trial counsel was
ineffective for failing to file for reconsideration when the
[s]entencing [c]ourt had some discretion as to the length of the
sentence and where there was a substantial question as to the
sentence because it was unduly harsh and excessive under the
circumstances and contrary to the norms underlying the
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1 The remaining charges were dropped. See Written Nolo Contendere Plea
Colloquy at 1.
2 Specifically, a handwritten notation on the nolo contendere plea colloquy
form indicated that Appellant would be sentenced to “no less than 20 year
minimum specific min and max to Be set By Judge.” See Written Nolo
Contendere Plea Colloquy at 1.
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Sentencing Code.” [Appellant’s] 1925(b) Statement at ¶1. For the
reasons set forth below, [Appellant’s] claim is without merit and
the judgment of sentence should be affirmed.
FACTUAL BACKGROUND
The factual basis proffered by the Commonwealth for
defendant's nolo contendere plea established the following:
Around the time of the two homicides here at issue,
[Appellant] frequented the Corral Bar on Market Street in
Philadelphia, where he sold drugs from the back of the bar along
with three associates. N.T. 11/23/2016 at 14, 19-20. Also selling
drugs in that bar was Troy Wimberley, one of the decedents in
this case, who did his drug business in the front of the bar. N.T.
11/23/2016 at 20. In the weeks leading up to the homicides,
there were several confrontations between [Appellant] and
Wimberley, one of which led to Wimberley to swing at
[Appellant]. 11/23/2016 at 19-21. There were also several
confrontations between Herbie one at [Appellant’s] associates,
and Wimberley, including one during which Herbie fired a gun at
Wimberley, missing him. N. I. 11/23/2016 at 20.
On the evening of April 6, 2012, [Appellant] entered the bar,
and during a confrontation with Wimberley, pulled out a handgun
and fired at Wimberley multiple times. N.T. 11/12/2016 at 14,
22-23. Several of the bullets struck Wimberley, killing him. N.T.
11/23/2016 at 29. In addition, Crystal Shadding, who had the
misfortune of standing behind Wimberley at the time of the
attack, was struck by an errant bullet, killing her as well. N.T.
11/23/2016 at 20, 33.
Following the shootings, [Appellant] fled Philadelphia and
could not be located by the Fugitive Squad of the Homicide Unit
for several years. N.T. 11123/2016 at 30-31. He was found in
Tennessee in October of 2014 after being stopped for a traffic
violation. Id. During that traffic stop, [Appellant] gave several
false names. N.T. 11/23/2016 at 31. He was taken into custody
and returned to Philadelphia.
[Appellant] has a prior conviction for the crime of
aggravated assault from 1995, making, him ineligible to possess
a firearm on the day of the murders. N.T. 11/23/2016 at 31-32.
Trial Court Opinion, filed 1/30/10, at 1-3 (footnote omitted).
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On November 21, 2019, Appellant filed the instant appeal nunc pro
tunc.3 In an Order filed the next day, the trial court directed Appellant to file
a concise statement of the matters he intended to raise on appeal pursuant to
Pa.R.A.P. 1925(b). On December 9, 2019, Appellant filed his concise
statement.
On March 24, 2020, appointed counsel filed a petition seeking to
withdraw his representation and an Anders brief with this Court. Appellant
filed no further submissions thereafter either pro se or through privately-
retained counsel. Before reviewing the merits of this appeal, we first must
determine whether counsel has fulfilled the necessary procedural
requirements for withdrawing as counsel. Commonwealth v. Miller, 715
A.2d 1203, 1207 (Pa.Super. 1998).
To withdraw under Anders, court-appointed counsel must satisfy
certain technical requirements. First, counsel must “petition the court for
leave to withdraw stating that, after making a conscientious examination of
the record, counsel has determined that the appeal would be frivolous.”
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3 The term nunc pro tunc means “now for then.” See Black's Law Dictionary,
at 1069, (Sixth Edition 1990). It is “a phrase applied to acts allowed to be
done after the time when they should be done, with a retroactive effect, i.e.,
with the same effect as if regularly done.” Id. Thus, reinstatement of direct
appeal rights nunc pro tunc denotes that Appellant now has the same direct
appeal rights as he would have had in the beginning.
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Miller, 715 A.2d at 1207. Second, counsel must file an Anders brief, in which
he or she:
(1) provide[s] a summary of the procedural history and facts, with
citations to the record; (2) refer[s] to anything in the record that
counsel believes arguably supports the appeal; (3) set[s] forth
counsel’s conclusion that the appeal is frivolous; and (4) state[s]
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.
Santiago, supra, 978 A.2d at 361. Finally, counsel must furnish a copy of
the Anders brief to his or her client and advise the client “of [the client’s]
right to retain new counsel, proceed pro se or raise any additional points
worthy of this Court’s attention.” Commonwealth v. Woods, 939 A.2d 896,
898 (Pa.Super. 2007).
If counsel meets all of the above obligations, “it then becomes the
responsibility of the reviewing court to make a full examination of the
proceedings and make an independent judgment to decide whether the appeal
is in fact wholly frivolous.” Santiago, 978 A.2d at 355 n. 5; see also
Commonwealth v. Yorgey, 188 A.3d 1190, 1197 (Pa.Super. 2018) (en
banc) (holding that the Anders procedure requires this Court to review “the
entire record with consideration first of the issues raised by counsel. ... [T]his
review does not require this Court to act as counsel or otherwise advocate on
behalf of a party. Rather, it requires us only to conduct a review of the record
to ascertain if[,] on its face, there are non-frivolous issues that counsel,
intentionally or not, missed or misstated. We need not analyze those issues
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of arguable merit; just identify them, deny the motion to withdraw, and order
counsel to analyze them”). It is only when all of the procedural and
substantive requirements are satisfied that counsel will be permitted to
withdraw.
Herein, counsel contemporaneously filed his petition to withdraw as
counsel and Anders brief. His brief and petition substantially comply with the
technical requirements of Anders and Santiago. Moreover, counsel has
provided this Court with a copy of the letter he sent to Appellant advising him
of his right to retain new counsel, proceed further with his case pro se, and
raise any points that he deems worthy of this Court’s attention. See
Commonwealth v. Millisock, 873 A.2d 748 (Pa.Super. 2005). Therefore,
we must review the entire record and analyze whether this appeal is, in fact,
wholly frivolous.
Our review begins with the claims Appellant raises in his Anders brief:
THE GLOBAL QUESTION
Whether there is anything in the record that might arguably
support the appeal that obviates a conclusion that the appeal is
frivolous?
SPECIFIC AREAS OF INQUIRY
Whether the PCRA [c]ourt erred when it reinstated the Appellant's
direct appeal rights nunc pro tunc without also reinstating the
Appellant's right to seek reconsideration of sentence where trial
counsel was ineffective for failing to file for reconsideration when
the [s]entencing [c]ourt had some discretion as to the length of
the sentence and where there was a substantial question as to the
sentence because it was unduly harsh and excessive under the
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circumstances and contrary to the norms underlying the
Sentencing Code?
Anders brief at 6.
At the outset, we recognize that where the PCRA court reinstates direct
appeal rights nunc pro tunc based on counsel's ineffectiveness, a defendant is
not automatically entitled to reinstatement of his post-sentence rights nunc
pro tunc as well. Commonwealth v. Liston, 602 Pa. 10, 977 A.2d 1089
(2009). Nevertheless, a PCRA court can reinstate a defendant's post-sentence
rights nunc pro tunc if the defendant successfully pleads and proves he or she
had been deprived of the right to file and litigate post-sentence motions as a
result of ineffective assistance of counsel. Id. at 19 n.9, 977 A.2d at 1094 n.9
(noting counsel may be deemed ineffective for failing to file post-sentence
motions when claim requires preservation in trial court for purposes of
appellate review). Compare Commonwealth v. Fransen, 986 A.2d 154
(Pa.Super. 2009) (holding PCRA petitioner who obtains reinstatement of direct
appeal rights nunc pro tunc is not entitled to reinstatement of post-sentence
rights nunc pro tunc unless he requested that relief with PCRA court;
appellant's claim that he was entitled to file post-sentence motions and to
have benefit of evidentiary hearing warranted no relief where appellant did
not plead or prove in PCRA petition that he was deprived of right to file post-
sentence motions).
Instantly, in Appellant's pro se PCRA petition and counseled amended
PCRA petition, Appellant expressly sought reinstatement of his post-sentence
motion rights nunc pro tunc. Specifically, Appellant argued trial counsel had
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been ineffective for failing to present medical evidence procured by the
Defender’s Association social worker in support of the argument he deserved
a fully concurrent sentence. In addition, he claimed counsel ignored his timely
requests to file both a petition for reconsideration of sentence and for
withdrawal of his guilty plea. See Petition Under the Post Conviction Relief Act
at 1-2. Although the Commonwealth opposed reinstating Appellant's post-
sentence motion rights nunc pro tunc, it indicated that it did not oppose an
evidentiary hearing to determine whether he was entitled to the reinstatement
of his direct appeal rights only. See Commonwealth’s Motion to Dismiss at 5-
6.
On October 25, 2019, a hearing was held on Appellant’s PCRA petition
at which time Appellant testified that he had requested both personally and
through a family member that counsel file an appeal for an “[a]djustment of
sentence.” Appellant said when he asked counsel to file such documents in
the courtroom immediately following the sentencing hearing, counsel replied
“OK.” N.T., 10/25/19, at 7-11. Trial counsel testified he could not remember
whether he had been asked to file a post-sentence motion or a direct appeal,
and conceded he could be mistaken about whether Appellant had asked him
to do so in the courtroom following sentencing. Id. at 17-20.
At the conclusion of the hearing, the PCRA court noted that because
Appellant testified under oath he had requested that counsel file a motion for
reconsideration of sentence and a direct appeal, and counsel indicated he
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could not recall whether Appellant, in fact, did so, the court would reinstate
both Appellant’s right to file a post-sentence motion and a direct appeal.
However, after further reasoning that Appellant had not pled any grounds for
the reconsideration of his sentence in the Amended PCRA petition or shown
prejudice therein, the PCRA court restored only Appellant’s direct appeal
rights. Following our review of the record, we find this was in error.
Consistent with Liston and Fransen, supra, Appellant pled in both his
pro se and counseled, Amended PCRA petition and indicated at the ensuing
hearing that he had been deprived of the right to file and litigate post-sentence
motions and a notice of appeal as a result of ineffective assistance of counsel.
See Liston, supra; Fransen, supra. Appellant's PCRA petition and testimony
made clear he wanted to challenge the validity of his pleas and the
discretionary aspects of his sentence, both of which require preservation in
post-sentence motions. See Commonwealth v. Lincoln, 72 A.3d 606
(Pa.Super. 2013), appeal denied, 624 Pa. 688, 87 A.3d 319 (2014) (holding
defendant failed to preserve challenge to validity of guilty plea where he did
not object during plea colloquy or file post-sentence motion to withdraw plea);
Commonwealth v. Griffin, 65 A.3d 932 (Pa.Super. 2013), appeal denied,
621 Pa. 682, 76 A.3d 538 (2013) (explaining objections to discretionary
aspects of sentence are waived if they are not raised at sentencing hearing or
in timely filed post-sentence motion). See also Pa.R.Crim.P. 720(A)(1),
(B)(1)(a)(i), (v) (stating post-sentence motion challenging validity of plea of
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guilty or nolo contendere and/or motion to modify sentence shall be filed no
later than 10 days after imposition of sentence).
Consequently, the PCRA court’s reasoning to the contrary, restoration
of Appellant's direct appeal rights nunc pro tunc without restoration of his
post-sentence motion rights nunc pro tunc, in this case, was essentially an
empty gesture. In light of Appellant's stated intent to challenge the validity
of his plea and the discretionary aspects of sentencing, the PCRA court should
have restored Appellant's post-sentencing rights as well. See Liston, supra;
Fransen, supra. See also Commonwealth v. Rivera, 154 A.3d 370
(Pa.Super. 2017) (en banc), appeal denied, 642 Pa. 121, 169 A.3d 1072
(2017) (affirming PCRA court's reinstatement of appellant's post-sentence
motion and direct appeal rights nunc pro tunc based on counsel's
ineffectiveness for failing to consult with appellant about whether he wanted
to file direct appeal; PCRA court properly restored Appellant's post-sentencing
rights nunc pro tunc because one issue appellant wanted to raise, regarding
withdrawal of his guilty plea, required preservation in trial court).
Accordingly, we remand the matter to the trial court to reinstate
Appellant's post-sentence and direct appeal rights nunc pro tunc to provide
Appellant with an opportunity to litigate in post-sentence motions those issues
requiring preservation in the trial court. Given our disposition, we deny
counsel's petition to withdraw.
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Case remanded with instructions. Counsel’s petition to withdraw denied.
Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/3/20
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