                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-25-2007

USA v. Bell
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-1391




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Recommended Citation
"USA v. Bell" (2007). 2007 Decisions. Paper 1066.
http://digitalcommons.law.villanova.edu/thirdcircuit_2007/1066


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                                                           NOT PECEDENTIAL

   UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT




                      UNITED STATES OF AMERICA



                            DERRICK H. BELL,
                                        Ap~ellant


              On Appeal from the United States District Court
                   for the Middle District of Pennsylvania
                           (D.C. No. 03-cr-00161)
              District Judge: Honorable Christopher C. Conner



                  Submitted Under Third Circuit LAR 34.1
                              March 9,2007

Before: SLOVITER and AMBRO, Circuit Judges, and POLLAK,' District Judge

                            (Filed: May 25,2007)


                                  OPINION




              Hon. Louis H. Pollak, Senior Judge, United States District
              *
       Court for the Eastern District of Pennsylvania, sitting by
       designation.
POLLAK, District Judge.

       Pursuant to a plea agreement, Derrick Bell pled guilty in the United States District

Court for the Middle District of Pennsylvania to a one-count information charging him

with distribution of, and possession with intent to distribute, crack cocaine from a time

unknown through January 23,2003, in violation of 21 U.S.C.      5 841(a)(l).   The District

Court exercised jurisdiction over the matter pursuant to 18 U.S.C. 5 323 1. Judge Comer

sentenced Bell to a 170-month term of incarceration on January 28,2005.

       Bell appealed, and his court-appointed appellate counsel, Gary L. Kelley (who

was also Bell's retained counsel in the District Court), filed an Anders motion seeking to

withdraw as counsel, asserting that all potential grounds for appeal are frivolous. We

have jurisdiction over this appeal pursuant to 28 U.S.C.   5 1291. At the outset, we note
that Mr. Kelley has markedly failed to fulfill his Anders responsibilities. However,

because, after our own review of the record, we find that there are no non-frivolous

issues on appeal, we will nevertheless affirm the defendant's conviction and sentence

and grant Mr. Kelley's motion to withdraw.

                                             I.

       Because we write primarily for the parties, we discuss only those facts necessary

to our decision. On June 25,2003, Bell was charged by indictment with distribution of,

and possession with intent to distribute, five grams or more of crack cocaine. At his

initial appearance, he pled not guilty. One year later, on July 2 1,2004, the grand jury
returned a superseding indictment in which Bell was again charged with distribution of,

and possession with intent to distribute, crack cocaine. However, in the superseding

indictment, the grand jury made special findings that Bell distributed and possessed with

the intent to distribute between 50 and 150 grams of crack cocaine and that he had at

least two previous felony drug convictions. Bell again pled not guilty, and on September

10,2004, Judge Conner prepared for jury selection in Bell's trial.

       On September 13,2004-after      the jury had been selected in his case-Bell    pled

guilty pursuant to a written plea agreement. Under the terms of the plea agreement, Bell

waived his right to indictment by a grand jury and agreed to plead guilty to an

information that would be filed by the government once the plea was accepted. The

information charged distribution of, and intent to distribute, crack cocaine, but, as part of

the plea agreement, did not include a specific drug weight. Thus, whereas Bell had been

facing a statutory maximum of forty years under the initial indictment, and life

imprisonment under the superseding indictment, the statutory maximum under the

information was only twenty years. The government additionally agreed to recommend a

two-level credit for acceptance of responsibility (if warranted).

        Two months after changing his plea, Bell filed apro se motion to withdraw his

guilty plea, but he withdrew his motion to withdraw the following month. On January

28,2005, Judge Conner sentenced Bell to a 170-month term of imprisonment, a $500

fine, $500 restitution, a $100 special assessment, and a three-year term of supervised
release. Bell filed a notice of appeal on February 7,2005. On March 17,2006, Bell

wrote a letter to his attorney, Mr. Kelley, describing eighteen issues he thought the

attorney should raise on appeal. Mr. Kelley filed his Anders brief on April 3,2006.



       If a criminal defendant wishes to appeal hisher case but counsel, after thorough

review of the record, cannot find any appealable issue, counsel may file what is known

as an Anders brief. See Anders v. California, 386 U.S. 738,744 (1967); Third Circuit

Local Appellate Rule 109.2(a). Rule 109.2(a) reflects the Third Circuit's

implementation of Anders:

            Where, upon review of the district court record, trial counsel is persuaded
    that the appeal presents no issue of even arguable merit, trial counsel may file a
    motion to withdraw and supporting brief pursuant to Anders v. California, 386
    U.S. 738, 87 S. Ct. 1396, [I8 L. Ed.2d 4931 (1967), which shall be served upon
    the appellant and the United States. The United States shall file a brief in
    response. Appellant may also file a brief in response pro se. After all briefs have
    been filed, the clerk will refer the case to a merits panel. If the panel agrees that
    the appeal is without merit, it will grant trial counsel's Anders motion, and
    dispose of the appeal without appointing new counsel. If the panel finds
    arguable merit to the appeal, it will discharge current counsel, appoint substitute
    counsel, restore the case to the calendar, and order supplemental briefing.

       In assessing an Anders brief, we must determine: "(1) whether counsel adequately

fulfilled the rule's requirements; and (2) whether an independent review of the record

presents any non-frivolous issues." United States v. Youla, 241 F.3d 296,300 (3d Cir.

2001) (explaining Rule 109.2(a)). We first examine whether Mr. Kelley fulfilled the

requirements of Rule 109.2(a) and then turn to the issue of our independent review.
                                            A.

      As Rule 109.2(a) reflects, "The duties of counsel when preparing an Anders brief

are (1) to satisfy the court that counsel has thoroughly examined the record in search of

appealable issues, and (2) to explain why such issues are fiivolous." Youla, 241 F.3d at

300. In the instant case, counsel has done neither. To the contrary, all Mr. Kelley has

done is reproduce seriatim the eighteen issues that defendant Bell related to him in his

letter of March 17,2006. The Anders document Mr. Kelley filed contains no

explanation of the issues listed therein, nor has Mi. Kelley provided any legal analysis to

demonstrate why these issues are fiivolous. Furthermore, there is nothing in the Anders

filing (to call the filing an Anders "brief' would be problematic, since the word carries

the connotation of professionalism) to suggest that Mr. Kelley ever undertook an

examination of the record in search of non-frivolous issues for appeal.

       By contrast, Bell has filed twopro se briefs on appeal. These briefs present

contentions which, in the aggregate, may be grouped as presenting three issues: (1)

whether the information to which Bell pled guilty contained an improper amendment of

the charges against him because he was initially charged by indictment but then pled

guilty to an information; (2) whether the district judge correctly determined Bell's

sentence based on the drug being "crack cocaine" rather than another form of cocaine

base (which would have resulted in a lesser sentence); and (3) whether Mi. Kelley, as

counsel in the District Court, was ineffective for (a) being unprepared for trial,
prompting Bell to plead guilty; (b) failing to object at sentencing or elsewhere that the

information improperly amended the charge against him; and (c) failing to object at

sentencing or elsewhere that the District Court erroneously determined that the

controlled substance at issue was crack cocaine and not some other form of cocaine

base.' When apro se criminal defendant with limited high-school education files a

substantially more searching brief than his attorney, it is apparent that counsel has not

come close to hlfilling his Anders responsibilities.

                                              B.

       Where an Anders brief does not comport with the minimum standards set forth

above, the court has the authority to deny counsel's motion to withdraw and order further

briefing. See United States v. Marvin, 2 1 1 F.3d 778,782 (3d Cir. 2000). However, a

narrow exception exists for cases where the court of appeals, upon independent review,

finds that the "frivolousness [of the appeal] is patent." Id. at 78 1. We find that this is

such a case.

       Our independent review of the record in this case, including the plea hearing

transcript, pre-sentencing investigation report, and sentencing hearing transcript,

confirms that Bell voluntarily and knowingly pled guilty to the information and admitted

that crack cocaine, rather than any other form of cocaine base, was at issue.



                        The government responded to Bell's pro se brief and
               supplemental brief with a detailed and well-researched thirty-page
               opposition.
Accordingly, we conclude that the first two sets of issues raised in his pro se briefs are

without merit.

       With regard to Bell's ineffective-assistance-of-counsel claims, we note that

ineffective assistance claims are usually pursued in a collateral proceeding, rather than

on direct appeal. See United States v. Theodoropoulos, 866 F.2d 587, 598 (3d Cir.

1989), overruled on other grounds by United States v. Price, 76 F.3d 526, 528 (3d Cir.

1996). "There is, however, a narrow exception to the rule that defendants cannot attack

the efficacy of their counsel on direct appeal. Where the record is sufficient to allow

determination of ineffective assistance of counsel, an evidentiary hearing to develop the

facts is not needed." United States v. Headley, 923 F.2d 1079, 1083 (3d Cir. 1991). The

government, however, contends that this court cannot make a determination whether

counsel was ineffective on the basis of the record at hand. We concur in that assessment.

(We would add that, even if the record shed more light than it does on Bell's claims of

ineffective assistance, we think it unlikely .that Mr. Kelley would be an effective

advocate with respect to those claims.)

                                             111.

       Because the issues raised on appeal (other than the ineffective-assistance-of-

counsel-claims, the merits of which are not properly before us at this time) are patently
without merit, we will affirm Derrick Bell's conviction and ~ e n t e n c e .Mr.
                                                                             ~ Kelley,

defendant's court-appointed appellate counsel, is granted leave to withdraw. But Mr.

Kelley is, via this opinion, advised that we find his performance in representing

defendant in this appeal to have been seriously deficient. Such a departure from

accepted professional standards should not be repeated. Under these circumstances, Mr.

Kelley may conclude that it would be the better part of prudence not to seek fees for his

services on Bell's behalf on appeal. CJ: United States v. Bennett, No. 04-3225,2007 WL

760965, at *2 (3d Cir. March 14,2007). If Mr. Kelley does wish to seek fees, the court

will entertain a submission from Mr. Kelley explaining his efforts.




                      As to the issues listed in Mr. Kelley's Anders filing, the
             government did not address each in turn, and neither do we. It is
             sufficient to hold that, after an independent review of the record,
             we find that there exist no non-frivolous issues that we can address
             on this appeal.
