Commonwealth v. Markowitz
32 A.3d 706
| Pa. Super. Ct. | 2011Background
- Markowitz pled guilty to robbery and second-degree murder in 1981; other crimes not at issue.
- Co-defendant implicated him; two eyewitnesses identified him in a photographic lineup.
- Guilty plea hearing led to a degree-of-guilt finding and life imprisonment; no direct appeal filed.
- Markowitz filed a PCRA petition in 1994; counsel changes and amended petitions followed over years.
- Transcripts of plea and sentencing were unavailable initially; later notes were located and transcribed after extensive delays.
- The PCRA court denied relief; this appeal challenged reinstatement of direct appeal rights, prejudice from delay, and counsel’s effectiveness.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Prejudice from delay under §9543(b) | Markowitz argues the Commonwealth was prejudiced by long delay and loss of evidence, meriting relief. | Commonwealth contends delay was prejudicial and warrants dismissal or no relief under §9543(b). | Prejudice shown; PCRA court properly denied relief. |
| Per se ineffectiveness for failing to file direct appeal | If plea counsel failed to file an appeal upon request, per se ineffectiveness should apply. | No explicit request to appeal; cannot conclude per se ineffectiveness. | Not per se ineffective; need Flores-Ortega/Strickland analysis. |
| Consultation and actual prejudice under Flores-Ortega | Counsel's allegedly inadequate consultation or bad advice caused nonfiling of an appeal. | Counsel discussed appellate rights; defendant did not request an appeal; no prejudice shown. | No reversible error; no reinstatement of direct appeal rights. |
Key Cases Cited
- Commonwealth v. Stokes, 232 A.2d 193 (Pa. 1967) (plea of guilty may foreclose direct review of sentencing; collateral relief possible)
- Roe v. Flores-Ortega, 528 U.S. 470 (U.S. 2000) (requires consult with defendant about appeals; prejudice analysis follows)
- Lantzy, 736 A.2d 564 (Pa. 1999) (per se ineffectiveness when defendant requested direct appeal and counsel failed)
- Commonwealth v. Touw, 781 A.2d 1250 (Pa. Super. 2001) (tests for ineffective assistance regarding appeal choice)
- Commonwealth v. Harmon, 738 A.2d 1023 (Pa. Super. 1999) (ante Flores-Ortega framework for consultation relevance)
- Commonwealth v. Weinder, 577 A.2d 1364 (Pa. Super. 1990) (prejudice considerations in prejudice-based PCRA dismissals)
- Commonwealth v. Burkett, 5 A.3d 1260 (Pa. Super. 2010) (PCRA review and deferential standard of review; credibility of witnesses)