Com. v. Calbert, L.
395 EDA 2017
| Pa. Super. Ct. | Oct 2, 2017Background
- On November 23, 2013, Leroy Calbert entered negotiated guilty pleas to drug charges at two dockets and was sentenced the same day to an aggregate 10–20 years' imprisonment.
- Ten days later Calbert (pro se) filed a notice of appeal and motions to withdraw his pleas; the trial court appointed new counsel but did not resolve the withdrawal motion because of the pending appeal.
- On direct appeal this Court found Calbert waived his claim that he did not know the sentences would run consecutively, because he failed to preserve the claim before or at sentencing or in a timely post-sentence motion, and affirmed the judgment.
- Calbert filed a timely pro se PCRA petition (Feb. 3, 2016); counsel was appointed and later withdrawn; Calbert was allowed to proceed pro se after a Grazier hearing. The PCRA court issued Rule 907 notice and dismissed the petition without an evidentiary hearing on Jan. 9, 2017.
- Calbert raised numerous claims, primarily ineffective assistance of counsel (pre- and post-plea), a claim that a transcript had been "doctored," waiver of appellate rights by plea counsel, and a cursory challenge to the legality of sentence based on a forfeiture provision.
- The Superior Court vacated the PCRA dismissal and remanded for an evidentiary hearing limited to whether plea counsel ignored Calbert’s request to file a motion to withdraw or to perfect an appeal (i.e., failure-to-file/consult claim), because that factual issue raised a presumption of prejudice if proven.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether plea counsel and appellate counsel were ineffective for failing to file/perfect an appeal or file a motion to withdraw plea | Calbert: he asked plea counsel to file a motion to withdraw and to perfect appeal; counsel failed to consult or act, warranting reinstatement of appeal rights nunc pro tunc | Commonwealth/PCRA court: pointed to plea colloquy and other record materials as showing effective representation; did not fully rebut Calbert’s factual assertion | Remanded for an evidentiary hearing to resolve the factual dispute whether counsel ignored Calbert’s request; if proven, prejudice is presumed and appeal rights should be reinstated |
| Whether appellate counsel was ineffective for failing to object to a purportedly "doctored" transcript (omitted 14 pages showing Calbert initially rejected the plea) | Calbert: the missing pages would show coercion and counsel’s misconduct | Commonwealth: no evidence the Commonwealth tampered with transcripts; appellate decision rested on waiver, so missing pages did not change outcome | Rejected as lacking arguable merit and failing to show prejudice; no relief on this ground |
| Various pre-plea/suppression/jurisdictional claims (invalid warrant, MPJA, unlawful arrest, Rule 590 colloquy issues) | Calbert: assorted constitutional and statutory defects in arrest, warrant, plea colloquy, and police jurisdiction | Commonwealth/PCRA court: these issues were available earlier and were not raised; many are procedurally defaulted | Deemed waived under 42 Pa.C.S. § 9544(b) or undeveloped; not cognizable in PCRA absent proper preservation or development |
| Legality of sentence based on alleged statutory forfeiture violation | Calbert: plea included consent to car forfeiture that violated Pennsylvania’s forfeiture statute, rendering sentence illegal | Commonwealth: argued claim undeveloped and cursory | Court held claim undeveloped and waived for appellate review (requires development to be considered) |
Key Cases Cited
- Commonwealth v. Kimball, 724 A.2d 326 (Pa. 1999) (sets out three-prong ineffective assistance test)
- Commonwealth v. Carpenter, 725 A.2d 154 (Pa. 1999) (previous litigation and waiver principles under the PCRA)
- Commonwealth v. Travaglia, 661 A.2d 352 (Pa. 1995) (prejudice prong may be dispositive in ineffectiveness claims)
- Commonwealth v. Donaghy, 33 A.3d 12 (Pa. Super. 2011) (if counsel fails to file an appeal after a clear request, presumption of prejudice arises)
- Commonwealth v. Rosado, 150 A.3d 425 (Pa. 2016) (failure to preserve an issue on appeal can be the functional equivalent of no appeal)
- Commonwealth v. Pfaff, 437 A.2d 1188 (Pa. 1981) (claims not raised at trial/appeal are waived)
- Commonwealth v. Begley, 780 A.2d 605 (Pa. 2001) (PCRA petition must include an offer of proof to obtain an evidentiary hearing)