Com. v. Hogan, E.
487 MDA 2015
| Pa. Super. Ct. | Oct 4, 2016Background
- On Nov. 1, 2010 Hogan entered Donald Skiff’s home, was given Skiff’s cell phone to call 911, fled and then violently assaulted Skiff; Skiff’s blood matched stains on Hogan’s sweatshirt.
- A jury convicted Hogan of burglary, aggravated assault, and recklessly endangering another person; he received 11–22 years’ incarceration; this Court affirmed on direct appeal in 2013.
- Hogan did not seek allowance of appeal to the Pennsylvania Supreme Court; he later filed a pro se PCRA petition alleging ineffective assistance of trial and appellate counsel, including that appellate counsel failed to file a requested petition for allowance of appeal.
- PCRA counsel filed a Turner/Finley letter and was permitted to withdraw; the PCRA court dismissed Hogan’s petition after a brief hearing and Hogan appealed pro se.
- The Superior Court found the dispositive claim was Hogan’s allegation that appellate counsel failed to file a requested petition for allowance of appeal (Lantzy claim) and that the PCRA court did not address this claim at all.
- The Superior Court vacated and remanded: it ordered appointment of new counsel, an amended PCRA petition, and an evidentiary hearing to determine whether appellate counsel was per se ineffective and whether Hogan’s direct-appeal rights should be reinstated nunc pro tunc.
Issues
| Issue | Plaintiff's Argument (Hogan) | Defendant's Argument (Commonwealth/PCRA court) | Held |
|---|---|---|---|
| Whether appellate counsel was ineffective for failing to file a requested petition for allowance of appeal | Hogan claims he requested counsel to file a petition for allowance of appeal to the PA Supreme Court and counsel did not file it | PCRA court did not address the claim in dismissal; Commonwealth previously argued waiver of some issues on appeal | Court held this claim dispositive; remanded for evidentiary hearing on per se ineffectiveness and reinstatement of appellate rights if proven (Lantzy relief) |
| Whether Turner/Finley withdrawal was adequate | Hogan argued counsel’s Turner/Finley letter did not properly explain why issues were meritless | PCRA counsel’s letter listed issues but did not analyze each one as Turner requires | Court found the letter insufficiently explanatory and indicated some claims may merit an evidentiary hearing; remand for counsel review and possible amplification |
| Whether trial counsel was ineffective for not preserving or pursuing sentencing and evidentiary/ suppression claims | Hogan alleged multiple trial-level failures (plea advice, Miranda, lost clothing evidence, failure to impeach, Alleyne) | Commonwealth/PCRA court implicitly treated many claims as waived or meritless; Turner/Finley letter concluded no prejudice on many points | Court declined to resolve these on this record, noting some claims may warrant further development on remand; Alleyne claim appeared meritless on facts |
| Whether Hogan is entitled to relief without showing Supreme Court would have granted review | Hogan sought reinstatement of direct appeal rights without proving Supreme Court would have accepted review | Commonwealth argued no automatic entitlement absent merits | Court applied Lantzy and Liebel: unjustified failure to file requested appeal is per se ineffective and entitles petitioner to reinstatement of appellate rights without showing likely grant of review |
Key Cases Cited
- Lantzy v. Commonwealth, 736 A.2d 564 (Pa. 1999) (failure to file requested direct appeal is per se ineffective assistance and entitles petitioner to reinstatement of appellate rights)
- Liebel v. Commonwealth, 825 A.2d 630 (Pa. Super. 2003) (citing Lantzy; petitioner need not show Supreme Court would have granted review)
- Turner v. Commonwealth, 544 A.2d 927 (Pa. 1988) (requirements for counsel’s petition-to-withdraw procedures)
- Finley v. Commonwealth, 550 A.2d 213 (Pa. Super. 1988) (procedural framework for counsel withdrawal and appellate review of Turner letters)
- Rigg v. Commonwealth, 84 A.3d 1080 (Pa. Super. 2014) (counsel not per se ineffective for not pursuing discretionary-sentencing claim after affirmance)
- Harris v. Commonwealth, 114 A.3d 1 (Pa. Super. 2015) (PCRA court should grant leave to file direct appeal nunc pro tunc once appellate rights are found abridged)
- Donaghy v. Commonwealth, 33 A.3d 12 (Pa. Super. 2011) (when PCRA court grants reinstatement of direct-appeal rights, it should not reach merits of other claims)
- Glover v. Commonwealth, 738 A.2d 460 (Pa. Super. 1999) (Turner letter must explain why each identified issue is meritless)