Com. v. Pickard, K.
401 EDA 2016
| Pa. Super. Ct. | Oct 25, 2017Background
- Appellee Kevin Pickard was convicted after a jury trial of three counts of aggravated assault and one count of possession of an instrument of a crime; jury deadlocked on three attempted murder counts and the trial court declared mistrials on those counts.
- Judge Sheridan‑Harris initially sentenced Pickard to concurrent 5–10 year terms plus probation, but after the Commonwealth sought reconsideration the judge vacated and resentenced him to consecutive terms totaling 17–34 years.
- Pickard did not file a direct appeal. He later filed a pro se PCRA petition alleging trial counsel was ineffective for failing to file post‑sentence motions; counsel was appointed and filed an amended PCRA petition seeking reinstatement of appellate and post‑sentence rights nunc pro tunc.
- At the PCRA hearing Pickard testified he asked trial counsel to file a post‑sentence motion to preserve a discretionary‑sentencing challenge and counsel said it would be futile because the same judge would hear it; counsel had no recollection of taking action and admitted concerns about client fees.
- The PCRA court found trial counsel ineffective for depriving Pickard of the opportunity to litigate post‑sentence motions, concluded Pickard suffered prejudice because the discretionary sentencing claim was waived absent those motions, and reinstated both his right to file post‑sentence motions nunc pro tunc and his direct appeal rights.
- The Commonwealth appealed, arguing Pickard failed to prove actual (Strickland/Pierce) prejudice from counsel’s failure to file post‑sentence motions, contrary to Commonwealth v. Reaves and related precedent.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a PCRA petitioner must prove actual prejudice to obtain reinstatement of post‑sentence motion rights when counsel failed to file them | Pickard argued counsel ignored his request to file post‑sentence motions and that deprived him of the only means to preserve a discretionary‑sentencing claim, causing prejudice | Commonwealth argued Reaves requires proof of actual Strickland/Pierce prejudice for failure‑to‑file‑motions claims and Pickard did not prove such prejudice | Court held the PCRA court did not err: record supports that counsel's failure deprived Pickard of the ability to preserve his discretionary‑sentence challenge and caused prejudice, warranting nunc pro tunc restoration of post‑sentence and direct appeal rights |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (1984) (establishes two‑part ineffective assistance standard: performance and prejudice)
- Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987) (Pennsylvania formulation of Strickland for post‑conviction claims)
- Commonwealth v. Reaves, 592 Pa. 134, 923 A.2d 1119 (2007) (failure to file post‑sentence motions requires proof of actual Strickland/Pierce prejudice)
- Commonwealth v. Liston, 602 Pa. 10, 977 A.2d 1089 (2009) (reinstatement of direct appeal nunc pro tunc does not automatically restore post‑sentence rights; relief available if ineffective assistance deprived defendant of those rights)
- Commonwealth v. Fransen, 986 A.2d 154 (Pa. Super. 2009) (PCRA court must consider a request and hold an evidentiary hearing to grant reinstatement of post‑sentence rights)
- Commonwealth v. McAfee, 849 A.2d 270 (Pa. Super. 2004) (challenge to discretionary aspects of sentence must be raised in timely post‑sentence motion to preserve appellate review)
- Commonwealth v. Williams, 151 A.3d 621 (Pa. Super. 2016) (pro se filings by represented defendants are legal nullities and do not preserve rights in hybrid representation)