Third Circuit disposition — 051391np-pdf

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.

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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

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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

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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.

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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,

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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.

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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

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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.

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