J

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NON

- PRECEDENTIAL DECISION

- SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

MITCHELL RYAN BILLS

Appellant :

:

:

:

:

:

:

:

: IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 1160 WDA 2023

Appeal from the PCRA Order Entered August 29, 2023 In the Court of Common Pleas of Warren County Criminal Division at

No(s): CP

- 62

- CR

- 0000387

- 2021

BEFORE: OLSON, J., KING, J., and LANE, J.

MEMORANDUM BY LANE, J.: FILED: May 14, 2024

Mitchell Ryan Bills (“Bills”) appeals from the order denying his petition

for relief filed pursuant to the Post Conviction Relief Act (“PCRA”). 1

Additionally, Bills’ court

- appointed counsel, Tatiana E. Malys, Esq uire

(“Attorney Malys”) , has filed a motion to withdraw from representation and a

brief styled pursuant to Anders v. California , 386 U.S. 738 (1967)

. 2 We

grant A ttorney Malys ’ motion and affirm the PCRA court’s order

.

_________________ __________ ______ ____ _______

1 See 42 Pa.C.S.A. §§ 9541

- 9546.

2 Counsel petitioning to withdraw from PCRA representation must proceed not

under Anders but under Commonwealth v. Turner , 550 A.2d 213 (Pa. Super. 1988), and Commonwealth v. Finley , 550 A.2d 213 (Pa. Super. 1988) ( en banc ) (collectively, “ Turner / Finley ”). Although Anders and

Turner / Finley are close cousins, bearing similarities in that counsel is required to examine the record, present issues, and request permission to withdraw, there are also significant differences, as explained infra

. See

Commonwealth v. Wrecks

, 931 A.2d 717, 721

- 22 (Pa. Super. 2007).J

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In August 2021, Pennsylvania State Police Troopers Corey Knepp and

Joshua Tassone responded to a report from a property owner of a n unknown

male who had parked o n his property and appeared to be passed out in his

vehicle

, which was still running. The male

, later identifi ed as Bills , became

verbally combative as t he troopers approached the vehicle and tried to wake

him. Bills’ speech was thick and slurred, his eyes were bloodshot and glassy,

and there was an odor of alcohol coming from inside the vehicle. The troopers

informed Bills he was under arrest for driving under the influence (“DUI”)

.

Bills refused to comply with the instruction to exit his vehicle and kicked

Trooper Tassone. Trooper Tassone deployed his taser to gain control of Bills.

Bills continue d to kick and punch both troopers . Both troopers deployed their

tasers and ultimately had to tackle Bills to the ground

. Bills was arrested and

charged with numerous offenses following the incident.

On March 10, 2022

, with the assistance of Charles Ros en, Esquire (“plea

counsel”), Bills ple a d ed guilty to aggravated assault, DUI

, and summary

charges for careless driving and restrictions on alcoholic beverages. 3 The

Commonwealth nolle prossed six additional related charges. 4 The trial court

_________________ __________ ______ ____ _______

3 See 18 Pa.C.S.A. § 2702 (a)(3); 75 Pa.C.S.A. §§ 3802(a)(1)

, 3714(a)

, 3809(a).

4 Bills was also charged with an additional count of aggravated assault, as well

as simple assault, illegally operating a vehicle without ignition interlock with a

blood alcohol content above .025 , illegally operating a vehic le not equipped with ignition interlock, possession of a small amount of marijuana

, and

harassment.J

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-

scheduled the matter for sentencing and ordered a presentence investigation

report (“PSI”)

.

On May 20, 2022, the trial court conducted a sentencing hearing

. At the

hearing, Bills learned that there was a dis crepancy between the prior reco rd

score (“PRS”) that his plea counsel had calculated and the PRS provided in the

PSI. Whereas p lea counsel calculated Bills’ PRS as a three, the PSI indicated

that it was , in fact, a five , which increas ed the standard sentencing range

guidelines for the charges to which Bills plead ed guilty. The trial court gave

Bills and plea counsel time to discuss the implications of the correct PRS and

Bills did not indicate a desire to withdraw his plea. Thereafter, the trial court

imposed an aggregate sentence of thirty to sixty months in prison.

Bills filed a post

- sentence motion to reconsider sentence , in which plea

counsel again explained his error in calculating Bills’ PRS. The motion further

averred that Bills wished to present mitigating factors on his aggr avated

assault charge ; however, plea counsel was unprepared to present such

evidence at the sentencing hearing due to his calculation error. The trial court

denied the motion

. Bills did not file a direct appeal.

On September 16, 2022, Bills filed the ins tant timely pro se petition, his

first. 5 The PCRA court appointed Attorney Malys who filed an amended

_________________ __________ ______ ____ _______

5 Bills had th i rty days in which to file an appeal in this Court. See Pa.R.A.P. 903(a) . As Bills opted not to do so, his judgment of sentence became fina l upon the expiration of time for filing an appeal on September 6, 2022

. See
(Footnote Continued Next Page)J

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petition. In the amended petition, Bills requested leave to withdraw his guilty

plea based on the ineffective assistance of plea counsel. Bills claime d that

plea counsel ignored evidence of a viable defense to the criminal charges and

incorrectly advised him regarding his sentencing exposure

. The PCRA court

conducted a n evidentiary hearing at which Bills and plea counsel testified.

Plea counsel explained that he made the aforementioned error in calculating

Bills’ PRS

. See N.T, 8/25/23, at 17. Plea counsel testified that he advised

Bills of his belief , based on the evidence, that Bills would be found gu ilty if he

proceed ed to trial

. See id . at 26. Bills testified that he was under personal

,

financial , and physical stress at the time he entered his plea. See id . at 75.

Bills indicated that he consult ed a different attorney to obtain a second opinion

when plea counsel informed him that he would withdraw if Bills chose to

proceed to trial. See id . at 83. Bills stated that he hop ed t he Commonwealth

would offer him a deal to plead guilty to a misdemeanor charge instead of a

felony due to his non

- violent history

. See id . at 80. At the conclusion of the

hearing, the PCRA cou rt denied Bills’ PCRA petition

. Bills filed a timely notice

of appeal, and both he and the PCRA court complied with Pa.R.A.P. 1925.

_________________ __________ ______ ____ _______

42 Pa.C.S.A. § 9545(b)(3) (providing that a judgment of sentence becomes final at the conclusion of direct review, including discretionary review in the Supreme Court of Pennsylv ania and the United State Supreme Court, or upon the expiration of time for seeking such review). Bills had one year from that date, or until September 6, 2023 , to file a timely PCRA petition. See 42

Pa.C.S.A. § 9545(b)(1) (providing that any petition shall be filed within one year of the date the judgment becomes final). Thus, Bills’ pro se petition,

filed on September 16, 2022 , was timely filed.J

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Attorney Malys noted her intent to file a Turner / Finley brief in the Rule

1925(b) statement. In this Court, Attorney Malys filed a motion to withdraw

from representation and a n accompanying brief styled pursuant to Anders

.

At the outset of our review, we note that this case does not implicate

Anders

. As explained above, Anders applies to direct appeals whereas

Turner / Finley applies to PCRA cases. This Court has explained the

differences between the requirements imposed by Anders and

Turner / Finley

, as follows:

Anders counsel is not p ermitted to withdraw unless the appeal is wholly frivolous, but Turner / Finley counsel is permitted to do so if the case lacks merit, even if it is not so anemic as to be deemed wholly frivolous. Also, Anders counsel must not argue against

the client ’ s interests while Turner / Finley counsel must do so, articulating why the client ’ s claims have no merit.

The heightened protection afforded to Ander s appellants as compared to Turner / Finley petitioners/appellants arises because

the right to counsel on direct appeal and the right to the direct appeal itself are constitutional ones. By comparison, a first

- time

PCRA petitioner ’ s right to counsel is born of rule, namely

Pa.R.Crim.P. 904(C), and that right does not spring from the

federal or state constitutions.

Wrecks

, 931 A.2d at 722 (citations omitted).

Because an Anders brief provides greater protection to a defendant,

this Court may accept an Anders brief in lieu of a Turner / Finley “ no merit ”

letter. See Commonwealth v. Widgins

, 29 A.3d 816, 817 n.2 (Pa. Super.

2011). However, prior to addressing the merits of the issues raised for our

review, we must assess whether counsel ’ s filings satisfy the technical

requirements of Turner / Finley

. See Commonwealth v. Muzzy

, 141 A.3dJ

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509, 510 (Pa. Super. 2016) ( holding that “ 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 befo re 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) (abandoning Pitts ’s approach as the sole procedure for

challenging PCRA counsel ’ s effectiveness). In Pitts , our Supreme Court

explained that such independent review requires proof of:

1. A “ no

- merit ” letter by PC[R]A counsel detailing the nature and

extent of [counsel’s] review ;

2. The “ no

- merit ” letter by PC[R]A c ounsel listing each issue the petitioner wished to have reviewed;

3. The PC[R]A counsel’s “explanation,” in the “no

- merit” letter, of why the petitioner’s issues were meritless;

4. The PC[R]A court conducting its own independent review of the record; and

5. The PC[R]A court agreeing with counsel that the petition was meritless

.

Id

. (citation and brackets omitted). Further, counsel must also 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 to retain

new counsel. See Wrecks

, 931 A.2d at 721. Substantial compliance with

the requirements to withdraw as counsel will satisfy the Turner / FinleyJ

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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.

Our review discloses that Attorney Malys has substantially complied with

the above requireme nts. In the Anders brief, Attorney Malys detailed the

nature and extent of h er review of the case, listed each issue that Bills wishe d

to have reviewed, and explained counsel ’ s reasoning for concluding that each

of the issues are meritless. See Anders Br ief at 5

- 6, 13

- 17. Attorney Malys

has provided this Court with a copy of a letter dated November 24, 2023

, that

s he sent to Bills informing him of her belief that the appeal was frivolous. See

Letter, 11 /2 4 /2 3

, at unnumbered 1. Attorney Malys also advised Bills of his

rights to retain replacement counsel or proceed pro se

. Id

. The letter does

not indicate that a copy of the petition to withdraw or a copy of the Anders

brief was attached to the letter. Id

. However, the petition to withdraw and

the Anders brief both contain a certificate of service which indicates that a

copy of the document was sent to Bills on January 16, 2024

. See Mo tion to

Withdraw, 1 / 17 /2 4

, at 4 ; see also Anders Brief, 1 / 17 /2 4

, at 21

. Thus, we

conclude that Attorney Malys has substantially complied with the requirements

necessary to withdraw as counsel. See Karanicolas

, 836 A.2d at 947. We

now independently review Bills’ claims to ascertain whether they entitle him

to relief.J

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In the A nders brief, Attorney Malys listed the issues that Bills wished

to raise, as follows:

I. Whether the denial of the PCRA relief was merited when Attorney Rosen failed to obtain taser documents as part of discovery, even t[h]ough . . . Bills asked Attorney Rose n to see the taser documents prior to entering a plea.

II. Whether the denial of the PCRA relief was merited when Attorney Rosen failed to inform . . . Bills of the correct [PRS] and the standard ranges applicable at his sentencing, and by doing so affect[ed] . . . Bills’ possibility of entering a plea knowingly and intelligently.

Anders Brief at 6 (unnecessary capitalization omitted).

Our standard of review of an order dismissing a PCRA petition is well

settled:

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. Further, 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.

Commonwealth v. Ford , 44 A.3d 1190, 1194 (Pa. Super. 2012) (citations

omitted).

In both of his issues , Bills claims that plea counsel was ineffective

. “A

criminal defendant has the right to eff ective counsel during a plea process as

well as during trial

. A defendant is permitted to withdraw his guilty plea under

the PCRA if ineffective assistance of counsel caused the defendant to enter an

involuntary plea of guilt y .” Commonwealth v. Rathfon

, 899 A.2d 365, 369J

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(Pa. Super. 2006) (citation s omitted). “The voluntariness of the plea depends

on whether counsel’s advice was within the range of competence demanded

o f attorneys in criminal cases.” Id . (citation omitted). Counsel is presumed

effectiv e and the person claiming ineffectiveness must prove otherwise. See

Commonwealth v. Koehler , 36 A.3d 121, 178 (Pa. 2012). To succeed on a

claim of ineffective assistance of counsel, a petitioner must plead and prove

three things: “(1) that the underlying issue has arguable merit; (2) counsel’s

actions lacked an objective reasonable basis; and (3) actual prejudice resulted

from counsel’s act or failure to act.” Commonwealth v. Stultz , 114 A.3d

865, 880 (Pa. Super. 2015) (citation omitted). If the petitio ner fails to meet

any one of these prongs, the ineffectiveness claim fails. See id

.

In the Anders brief, Attorney Malys explains that the first issue that

Bills wished to raise is that plea counsel was ineffective for failing to obtain

taser documents as part of discovery despite Bills’ request to see the taser

documentation prior to entering his negotiated plea. Bills wished to see the

taser documentation because he thought it mi ght contain favorable evidence

.

Bills claims that plea counsel refused to request the taser documents because,

in plea counsel’s opinion, the evidence of Bills’ guilt was overwhelming and

any attempt to deny his guilt at trial would be contradicted by th e two state

troopers

. Bills testified at the evidentiary hearing that he would rather have

entered a no contest plea, but felt pressured to enter his guilty plea becauseJ

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plea counsel informed him that he would not represent Bills if he wished to

proceed t o a trial of the matter.

Attorney Malys indicates her belief that this issue is frivolous because,

at the time of the evidentiary hearing, all of Bills’ concerns regarding his plea,

and whether it was made knowingly and intelligently, were addressed thr ough

testimony and argument. Attorney Malys notes that, at the evidentiary

hearing, the PCRA court refused to allow the troopers to testify about the taser

documents because Bills waived the right to additional discovery when he

entered his guilty plea. Additionally, Attorney Malys explains that plea counsel

testified at the evidentiary hearing that Bills was colloquized prior to entering

his guilty plea and at his sentencing, and on both occasions confirmed that he

was informed about all of the rights he would be giving up if he entered a

guilty plea. In Attorney Malys’ estimation, the record in the case is clear that

Bills waived any additional rights he might have had regarding discovery when

he entered his guilty plea.

The PCRA court considered Bill s’ first issue and determined that it lacked

merit. The court reasoned :

This court opines that [Bills’] underlying claim has no arguable merit as his plea did not include conduct that occurred after the taser was deployed. Thus, documentation of the tase r deployment after the officer has been punched is not relevant in any way to the aggravated assault charge. [Plea] counsel effectively advised [Bills] that taser evidence in this case would

not address his conduct BEFORE the taser was fully deployed.

PCR A Court Opinion, 11/22/23, at 5 (emphasis in original)

.J

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Viewing the record in the light most favorable to the Commonwealth,

we conclude that the PCRA court’s determination is supported by the record

and legally sound

. The record reflect s that Bills was both driving while

intoxicated and physically combative with the troopers before they first

deployed their tasers. Bills has failed to show that the taser documentation

would have been of any evidentiary value, let alone of relevance, to the

cri minal charges pending against him. To be sure, the taser documentation

would not provide any exculpatory evidence to aid in his defense. Thus, Bills

cannot show that his claim is of arguable merit

. Moreover, given the

overwhelming evidence of Bills’ gui lt and the number of charges that were

nolle prossed as part of the plea agreement that plea counsel was able to

negotiate on Bills’ behalf, he has failed to demonstrate that plea counsel had

no reasonable basis for recommending that Bills enter a negotiat ed plea.

Accordingly, based on our independent review, it is clear that Bill cannot

satisfy all three prongs of the test for ineffectiveness

. Therefore

, we conclude

that Bills’ first issue is meritless

.

In the Anders brief, Attorney Malys explains that the second issue that

Bills wished to raise is that plea counsel was ineffective for failing to inform

him of his correct PRS . Attorney Malys explains that, at sentencing, plea

counsel requested a time

- served sentence based on a PRS of 3. The mistake

in plea counsel’s PRS calculation prompted a discussion on the record about

the mis calculation as well as the correct calculation of Bills’ PRS of 5. Bills

claims that, due to plea counsel’s mistake, he failed to inform Bills of theJ

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correct standard range sentences applicable to his guilty pleas, and thereby

affected the basis of his plea.

Attorney Malys indicates her belief that this issue is frivolous because

the PCRA court concluded that plea coun sel’s mistake regarding the PRS

calculation was dealt with properly at the time of sentencing. Attorney Malys

explains that, w hile still on the record at the sentencing hearing , Bills was

informed of the correct P RS and the correct standard range sentence s

applicable to the charges to which he had pled guilty

. Attorney Malys points

out that t he PCRA court concluded that

, but for the mistake made by plea

counsel, the result of the sentencing would not have changed because a PRS

is what it is. Anders Brief at 16

- 17 (citing N.T., 8 / 25 / 23 , at 96).

The PCRA court considered Bills’ second issue and determined that it

lacked merit . The court reasoned :

In the instant case the court did consider that [Bills] had a [PRS] of five and that counsel had informed him that his [PRS] was three. When counsel received the [PSI], he acknowledged he was in error and that changed the standard range from nine to 16

months to 21 to 27 months. [ Plea counsel ] argued at time of

sentence and in the motion to reconsider that [Bills] had not been in trouble for [ten] years and had mental health issues that could

be attributed to hi s violent response to the officers. [Bills] also was permitted to address the court [,] as well [,] and the cour t properly sentence [d] [him] within the standard range based upon

the facts and circumstances of this case. All of those statements were addressed at the time of sentencing. The court gave [ plea counsel] an opportunity to discuss the mistake in the calcu lation prior to sentencing so that [Bills] was aware of the changes in sentencing guidelines. At no time did [plea] counsel or [Bills] suggest that he wanted to withdraw his plea based upon the discovery that his [PRS] was a five rather than a three. Counsel was in error but he properly advised [Bills] of the correct priorJ

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record score prior to sentencing. . . . [Bills] appeared to acknowledge that his prior criminal history was factually accurate at the time of sentencing and the court properly se ntenced him within the standard range.

PCRA Court Opinion, 11/22/23, at 8

- 9 (unnecessary capitalization omitted).

Viewing the record in the light most favorable to the Commonwealth,

we conclude that the PCRA court’s determination is supported by evidence of

record and is free of legal error

. The sentencing record reflects that the PCRA

court accurately described plea counsel’s mistake and ensured that Bills knew

his correct PRS and the increased standard range sentences which would apply

before Bills was sentenced

. See N.T., 5/20/22, at 11 . The sentencing record

further reflects that, when informed of the correct PRS and increased

penalties, Bills voiced no indication that this information altered his desire to

plead guilty or that he wished to withdraw his guilty pleas. Given that Bills

was informed of counsel’s mistake and provided with accurate information

prior to being sentenced , and made no indication that he wished to withdraw

his guilty plea

, Bills has not shown that he suffered prejudice from c ounsel’s

miscalculation of his PRS. Accordingly, based on our independent review, Bills

cannot satisfy all three prongs of the ineffectiveness test. Therefore, his

second issue is meritless

.

Having found no merit to Bill’s issues, we grant counsel ’ s moti on to

withdraw and affirm the PCRA court’s order d enying Bills’ petition.

Motion to withdraw granted. Order affirmed.J

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5/14/2024