Com. v. Herbert, R.
Com. v. Herbert, R. No. 2974 EDA 2016
| Pa. Super. Ct. | May 17, 2017Background
- Herbert entered a guilty plea to third-degree murder, robbery of a motor vehicle, and abuse of a corpse; received consecutive sentences totaling 31 to 62 years (20–40; 10–20; 1–2).
- He filed post-sentence motions; time credit was adjusted but sentence reconsideration denied.
- Herbert appealed to the Superior Court arguing the discretionary aspects of sentencing; the Superior Court affirmed. No petition for allowance of appeal (allocatur) to the Pennsylvania Supreme Court was filed.
- Herbert filed a timely pro se PCRA petition claiming appellate counsel was ineffective for failing to file a petition for allocatur; PCRA counsel limited the claim to that failure.
- The PCRA court held a hearing, found counsel consulted with Herbert and that Herbert did not prove he requested allocatur or that his issues were non-frivolous, and denied relief. The Superior Court affirmed.
Issues
| Issue | Herbert's Argument | Commonwealth/Trial Court Argument | Held |
|---|---|---|---|
| Whether appellate counsel was ineffective for failing to file a petition for allowance of appeal to the PA Supreme Court | Sundmaker failed to file allocatur despite Herbert wanting to exhaust appellate rights; requests reinstatement of appellate rights nunc pro tunc | Failure to file allocatur was not per se ineffective where only discretionary sentencing claims were raised; Herbert did not prove he requested allocatur, was consulted, or that issues were non-frivolous | Denied — Herbert failed to meet Pierce test (no prejudice shown); counsel not ineffective under the circumstances |
Key Cases Cited
- Commonwealth v. Rigg, 84 A.3d 1080 (Pa. Super. 2014) (counsel not per se ineffective for not seeking allocatur when only discretionary sentencing issue was raised)
- Commonwealth v. Reed, 971 A.2d 1216 (Pa. 2009) (failure to file a requested allocatur petition is per se ineffective assistance)
- Commonwealth v. Gadsden, 832 A.2d 1082 (Pa. Super. 2003) (defendant is entitled to effective consultation about filing allocatur after an adverse Superior Court decision)
- Commonwealth v. Pierce, 645 A.2d 189 (Pa. 1994) (three-part test for appellate ineffectiveness: arguable merit, no reasonable basis, and prejudice)
- Commonwealth v. Bath, 907 A.2d 619 (Pa. Super. 2006) (issues must rise above frivolity to show prejudice where no request for allocatur was made)