Com. v. Campbell, K. ( 2022 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
KEVIN CAMPBELL :
:
Appellant : No. 1123 EDA 2021
Appeal from the Judgment of Sentence Entered March 24, 2021
In the Court of Common Pleas of Northampton County Criminal Division
at No(s): CP-48-CR-0003539-2019
BEFORE: PANELLA, P.J., LAZARUS, J., and DUBOW, J.
MEMORANDUM BY LAZARUS, J.: FILED FEBRUARY 2, 2022
Kevin Campbell appeals from the judgment of sentence,1 entered in the
Court of Common Pleas of Northampton County, following his guilty plea to
robbery,2 aggravated assault,3 possession of firearm prohibited,4 and
conspiracy.5 Additionally, Campbell’s counsel, Matthew J. Deschler, Esquire,
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1 Campbell purports to appeal from the order denying his omnibus pre-trial
motion. See Notice of Appeal, 5/19/21, at 2. In criminal cases, an appeal
properly lies from the judgment of sentence. See Commonwealth v.
Shamberger, 788 A.2d 408, 410 n.2 (Pa. Super. 2001) (en banc). We have
amended the caption accordingly.
2 18 Pa.C.S.A. § 3701(a)(1)(ii).
3 18 Pa.C.S.A. § 2702(a)(1).
4 18 Pa.C.S.A. § 6105(a)(1).
5 18 Pa.C.S.A. § 903.
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has filed an application to withdraw as counsel and an accompanying Anders6
brief. Upon review, we grant Attorney Deschler’s application to withdraw and
affirm Campbell’s judgment of sentence.
The following factual history was relied upon, at the guilty plea hearing,
as the basis of Campbell’s negotiated guilty plea:
[Campbell] and his co-defendant . . . agreed to rob the victim
Richard Fisher, on August 6th of 2019. [Campbell] and [his] co-
defendant [] drove from Greenville, North Carolina, to
Pennsylvania.
On August 7th, 2019, [Campbell and his] co-defendant entered
[Fisher]’s residence . . . under the guise of wanting to purchase
marijuana[.] Once inside the residence, [Campbell] displayed a
gun and demanded that [Fisher] give him money. During the
course of the robbery, [Campbell] shot [Fisher] in his leg[ and]
his co-defendant . . . attempted to physically restrain [Fisher]’s
girlfriend, Lois Connelly, to prevent her from leaving the
residence.
[Campbell] and [his] co-defendant [] took a safe containing
approximately $1,600[.00] in U[.]S[.] currency and also took
[the] marijuana. After the robbery, [Campbell and his co-
defendant] fled to New York. [Campbell] is a person prohibited
from possessing a firearm based on his prior burglary conviction.
N.T. Guilty Plea Hearing, 2/19/21, at 11-12.
Campbell was subsequently apprehended and, on, December 30, 2019,
the Commonwealth, via criminal information, charged Campbell with, inter
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6 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).
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alia,7 the above-mentioned offenses. On July 6, 2020, Campbell filed a
counseled omnibus pre-trial motion which included a motion to suppress
evidence alleging that the police had conducted an unconstitutional search of
his cell phone. On October 22, 2020, the trial court conducted a hearing on
Campbell’s omnibus pre-trial motion and, on December 15, 2020, denied the
motion.
On February 19, 2021,8 Campbell entered into a negotiated guilty plea
in which he agreed to plead guilty to the above-mentioned offenses, as well
as to a sentence of 6½ to 13 years in prison. On March 24, 2021, the trial
court sentenced Campbell in accordance with the plea agreement.
On March 25, 2021, while still represented by counsel, Campbell filed a
pro se petition pursuant to the Post Conviction Relief Act (PCRA). See 42
Pa.C.S.A. §§ 9541-9546. On March 30, 2021, the trial court dismissed
Campbell’s PCRA petition as premature, without prejudice, because Campbell
had not waived or exhausted his direct appeal rights.
Additionally on March 30, 2021, Campbell, while still represented by
counsel, filed a pro se post-sentence motion seeking a reduction in his
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7Campbell was charged with eight additional offenses related to the robbery
and assault of Fisher.
8 We observe that, throughout this case, Campbell filed multiple, additional
pro se pre-trial motions. The trial court did not rule on these motions prior to
Campbell’s negotiated guilty plea. These motions were forwarded to
Campbell’s trial counsel pursuant to Commonwealth v. Jette, 23 A.3d 1032(Pa. 2011).
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sentence. On April 16, 2021, Campbell’s trial counsel filed a motion to
withdraw from representation, in which he stated that Campbell had not
requested he file a post-sentence motion, and Campbell wished to raise
ineffective assistance of counsel claims against trial counsel. The trial court,
on May 3, 2021, issued an order denying Campbell’s pro se post-sentence
motion.
On May 5, 2021, the trial court conducted a hearing on trial counsel’s
motion to withdraw.9 Additionally, Campbell, still represented by the same
counsel, filed a second pro se PCRA petition. Further, on the same day, the
trial court granted trial counsel’s motion to withdraw and appointed conflict
counsel to represent Campbell.10 Subsequently, on May 10, 2021, the trial
court again denied Campbell’s PCRA petition as premature, without prejudice,
and determined that Campbell had not yet waived or exhausted his direct
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9 At this hearing, trial counsel and the trial court concluded that Campbell’s
time to file a timely notice of appeal had expired. See N.T. Motion to Withdraw
Hearing, 5/5/21, at 2-4. The trial court asked Campbell if he would like his
direct appeal rights reinstated, to which Campbell replied, “I would like to do
that.” Id. at 5.
10 There are two separate orders appointing two separate attorneys to
represent Campbell. In the first order, on May 5, 2021, the trial court
appointed Brian Monahan, Esquire. See Order, 5/5/21. At some point shortly
thereafter, Attorney Monahan filed a motion to withdraw, which the trial court
granted on May 10, 2021. See Order, 5/10/21. Then, on the same day, the
trial court appointed Talia Mazza, Esquire, to represent Campbell. Id. Shortly
thereafter, Attorney Mazza went on maternity leave, and Attorney Deschler
entered his appearance on behalf of Campbell.
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appeal rights. On May 11, 2021, the trial court issued an order, in which it
reinstated Campbell’s direct appeal rights nunc pro tunc.
On May 24, 2021, Campbell filed a counseled notice of appeal, nunc pro
tunc. Attorney Deschler then filed a Pa.R.A.P. 1925(c)(4) statement of intent
to file an Anders brief on appeal.
Before addressing Campbell’s issues on appeal, we must determine
whether we have jurisdiction over Campbell’s appeal.11 “In order to perfect a
timely appeal, a defendant must file a notice of appeal within 30 days of the
imposition of his sentence, unless he files a timely post-sentence motion
within 10 days of sentencing, thereby tolling that 30-day window.”
Leatherby, 116 A.3d at 78 (citing Pa.R.A.P. 903 and Pa.R.Crim.P. 720(A)).
Instantly, Campbell, while represented by counsel, was sentenced on
March 24, 2021. Then, on March 25, 2021, Campbell filed a premature PCRA
petition, which the trial court properly dismissed. Next, while still represented
by counsel, on March 30, 2021, within the 10-day period to file a post-
sentence motion, Campbell filed a pro se post-sentence motion.
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11As discussed infra, we conclude that Campbell’s direct appeal rights had not
expired at the time he filed his notice of appeal on May 24, 2021. See
Commonwealth v. Leatherby, 116 A.3d 73, 78-79 (Pa. Super. 2015).
Therefore, we note that the trial court lacked the authority to reinstate
Campbell’s direct appeal rights nunc pro tunc. Nevertheless, this does not
impede our review, because Campbell’s notice of appeal was still timely filed,
before June 2, 2021, and is properly before this Court.
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Generally, pro se filings from a represented defendant are legal nullities
and will not toll the appeal period. See Commonwealth v. Ali, 10 A.3d 282,
293 (Pa. 2010). Additionally, we observe hybrid representation is not
permitted in this Commonwealth. Commonwealth v. Williams, 151 A.3d
621, 623 (Pa. Super. 2016).
Nevertheless, this Court has previously determined that an appellant
shall not “be precluded from appellate review based on what was, in effect,
an administrative breakdown on the part of the trial court.” Leatherby, 116
A.3d at 79; see also id. (defendant’s pro se filing while represented by
counsel “does not offend considerations of hybrid representation”).
Instantly, the record before us reveals a plethora of pro se motions and
petitions filed prior to, and after, Campbell’s negotiated plea. Importantly,
trial counsel took no action even after Campbell’s pro se filings. Rather, trial
counsel filed a motion to withdraw from representation and, on May 5, 2021,
the trial court granted trial counsel’s motion to withdraw. Additionally, we
observe that at the hearing on trial counsel’s motion to withdraw, trial counsel
stated he was aware that Campbell had filed a pro se post-sentence motion,
but admitted he did not file a post-sentence motion. See N.T. Motion to
Withdraw Hearing, 5/5/21, at 2, 5-7.
Based upon our review of the record, we find that trial counsel
effectively abandoned Campbell and, therefore, Campbell’s timely pro se post-
sentence motion tolled the 30-day appeal period. See Leatherby, 116 A.3d
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at 78-79. Further, the trial court did not deny Campbell’s pro se post-sentence
motion until May 3, 2021, and, thus, Campbell was required to file his notice
of appeal by June 2, 2021. Accordingly, Campbell’s May 24, 2021, notice of
appeal was timely filed and we have jurisdiction over this appeal.
Next, we must determine whether Attorney Deschler has complied with
the dictates of Anders and its progeny in petitioning to withdraw from
representation. See Commonwealth v. Mitchell, 986 A.2d 1241, 1244 n.2
(Pa. Super. 2009) (stating that “[w]hen presented with an Anders brief, this
Court may not review the merits of the underlying issues without first passing
on the request to withdraw”). Pursuant to Anders, when counsel believes
that an appeal is frivolous and wishes to withdraw from representation, he or
she must:
(1) petition the court for leave to withdraw stating that after
making a conscientious examination of the record and
interviewing the defendant, counsel has determined the appeal
would be frivolous, (2) file a brief referring to any issues in the
record of arguable merit, and (3) furnish a copy of the brief to
defendant and advise him of his right to retain new counsel or to
raise any additional points that he deems worthy of the court’s
attention. The determination of whether the appeal is frivolous
remains with the court.
Commonwealth v. Burwell, 42 A.3d 1077, 1083 (Pa. Super. 2012) (citation
omitted).
Additionally, the Pennsylvania Supreme Court has explained that a
proper Anders brief must:
(1) provide a summary of the procedural history and facts, with
citations to the record; (2) refer to anything in the record that
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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.
Santiago, 978 A.2d at 361.
After determining that counsel has satisfied the technical requirements
of Anders and Santiago, this Court must then “conduct a simple review of
the record to ascertain if there appears on its face to be arguably meritorious
issues that counsel, intentionally or not, missed or misstated.”
Commonwealth v. Dempster, 187 A.3d 266, 272 (Pa. Super. 2018) (en
banc).
Instantly, our review of counsel’s Anders brief and application to
withdraw reveals that Attorney Deschler has substantially complied with each
of the technical requirements of Anders/Santiago. See Commonwealth v.
Wrecks, 934 A.2d 1287, 1290 (Pa. Super. 2007) (stating counsel must
substantially comply with requirements of Anders). Attorney Deschler
indicates that he has made a conscientious examination of the record and
determined that an appeal would be frivolous. The record further reflects that
counsel has furnished a copy of the Anders brief to Campbell, advised
Campbell of his right to retain new counsel or proceed pro se, or raise any
additional points that he deems worthy of this Court’s attention. Additionally,
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the Anders brief substantially complies with the requirements of Santiago.12
As Attorney Deschler has substantially complied with all of the requirements
for withdrawing from representation, we will examine the record and make an
independent determination of whether Campbell’s appeal is, in fact, wholly
frivolous.
In the Anders brief, counsel presents for our review the following claims
on Campbell’s behalf:
Campbell raises claims of ineffectiveness against [trial counsel],
specifically that [trial counsel] failed to utilize exculpatory
evidence, failed to show that a North Carolina police officer
perjured himself while testifying about the alleged illegal search
of Campbell’s cell phone, and failed to argue that Campbell was
deficiently Mirandized.[13]
Anders Brief, at 6 (emphasis and footnote added).
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12 We observe that Attorney Deschler has not attached a copy of the Rule
1925(c)(4) intent to file an Anders brief, nor a copy of the Rule 1925(a) trial
court opinion. See Pa.R.A.P. 2111(b)-(d) (requiring copy of Rule 1925(c)(4)
statement and “any opinions” from trial court be appended to appellant brief).
However, Attorney Deschler filed the Rule 1925(c)(4) statement in accordance
with the trial court’s order, and this Court has received a copy of the trial
court’s Rule 1925(a) opinion. Additionally, Attorney Deschler’s omissions are
not a jurisdictional defect, and the Commonwealth has not objected to this
defect; thus, we decline to dismiss Campbell’s appeal on this basis. See
Pa.R.A.P. 2101 (stating that “if the defects are in the brief . . . of the appellant
and are substantial, the appeal or other matter may be quashed or
dismissed”) (emphasis added). Moreover, Attorney Deschler has filed an
Anders brief and, as such, this Court has an independent obligation to review
the entire record to ascertain whether any non-frivolous issues are present.
13 See Miranda v. Arizona, 384 U.S. 436 (1966).
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Initially, it is a general rule that defendants should defer ineffective
assistance of counsel claims until collateral review. See Commonwealth v.
Holmes, 79 A.3d 562, 563-64 (Pa. 2013). However, ineffective assistance of
counsel claims may be reviewed on direct appeal if (1) the ineffective
assistance of counsel claim is apparent from the record and meritorious to the
extent that immediate consideration best serves the interests of justice; or
(2) there is good cause shown, and the defendant waives his right to file a
future PCRA petition. See id.14
“An example of ‘good cause’ would be where the defendant is serving a
sentence so short as to be deprived of an opportunity to seek collateral review
of his or her conviction.” Commonwealth v. Radecki, 180 A.3d 441, 472
(Pa. Super. 2018); see also 42 Pa.C.S.A. § 9543(a)(1)(i). Additionally, in
raising ineffective assistance on direct appeal, the defendant must have an
accompanying PCRA waiver that “makes clear and certain that any further
collateral attack is subject to the PCRA’s time-bar restrictions as detailed in
Section 9545(b).” See Radecki, 180 A.3d at 472; see also Holmes, at 579
(“[T]he accompanying PCRA waiver must embrace more than exhaustion of
the defendant’s first PCRA petition, but instead must make clear that any
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14 Our Supreme Court recently expanded a PCRA petitioner’s methods to raise
claims of PCRA counsel ineffectiveness. See Commonwealth v. Bradley,
261 A.3d 381, 401 (Pa. 2021) (PCRA petitioner may raise claims of PCRA
counsel’s ineffectiveness at first opportunity, even on appeal). However,
Campbell has not yet had the opportunity to file a timely PCRA petition and,
thus, that holding has no impact on the instant case.
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further collateral attack is subject to the time-bar restrictions of Section
9545(b).”) (emphasis omitted).
Instantly, Campbell did not file an accompanying PCRA waiver as
required in Holmes and Radecki. Additionally, Campbell is serving a state
sentence of 6½ to 13 years in prison and, thus, he has ample time to pursue
his claims of ineffective assistance of counsel under the PCRA. See Radecki,
180 A.3d at 472; 42 Pa.C.S.A. § 9543(a)(1)(i). Moreover, we observe that
Campbell’s claims appear to challenge trial counsel’s effectiveness at the
omnibus pre-trial motion hearing; however, Campbell subsequently entered
into a negotiated plea agreement, which necessarily waives any challenges he
had to the denial of his omnibus pre-trial motion. See Commonwealth v.
Andrews, 158 A.3d 1260, 1265 (Pa. Super. 2017) (“A plea of guilty
constitutes a waiver of all non[-]jurisdictional defects and defenses” and
“waives the right to challenge anything but the legality of [the] sentence and
the validity of [the] plea.” (quotation and citation omitted)). We conclude that
Campbell’s claims of ineffective assistance of counsel are not reviewable on
direct appeal. See Holmes, supra.
Finally, our independent review of the record discloses no other
“arguably meritorious issues that counsel, intentionally or not, missed or
misstated.” Dempster, 187 A.3d at 272. As such, we agree Campbell’s
appeal is wholly frivolous. We grant Attorney Deschler’s application to
withdraw, and affirm the judgment of sentence.
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Judgment of sentence affirmed. Application to withdraw granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/02/2022
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