Commonwealth v. Rigg
84 A.3d 1080
| Pa. Super. Ct. | 2014Background
- Rigg was convicted of aggravated assault, recklessly endangering another person, and simple assault after stabbing a man in the neck.
- Sentencing on 12/15/2009 imposed seven to fourteen years for aggravated assault with a deadly-weapon enhancement; range aligned with guidelines.
- Post-sentence motions were denied; direct appeal proceeded with new counsel appointed.
- PCRA petition filed 10/28/2011 alleging appellate counsel was ineffective for not filing a petition for allowance of appeal.
- PCRA court granted Turner/Finley no-merit letter; initial dismissal followed; Appellant challenged Liebel-related issues and counsel effectiveness.
- Appellant’s Rule 1925 statements included Liebel and non-Liebel issues; the court held most issues waived and analyzed the Liebel claim under correct jurisprudence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether trial counsel was ineffective for voir dire and juror removal without complete prejudice inquiry | Rigg argues trial counsel should have objected or moved for mistrial | Commonwealth contends issue waived for not raised in PCRA court and not preserved | Waived; issues not preserved by timely PCRA filing or response |
| Whether trial counsel was ineffective for advising Rigg not to testify | Rigg claims colloquy did not show knowing waiver and advice was erroneous | Commonwealth asserts waiver and non-record-based claim not preserved; Nieves cited as limited precedent | Waived; no preservation and NCAA-type analysis foreclosed |
| Whether appellate counsel was ineffective for declining to seek discretionary review under Liebel | Rigg asserts Liebel per se ineffectiveness for not filing allowance of appeal | Commonwealth contends §9781(f) bar and discretionary-review limitations; merits not reviewable | Not per se ineffective; discretionary review barred under §9781(f) for sole discretionary-sentencing issue |
| Whether PCRA counsel was ineffective for not raising issues in the 1925(b) response | Rigg claims counsel failed to preserve arguments foreseen in 1925(b) | Commonwealth argues waiver due to Rule 907 and preservation rules; Ford line of cases cited | Waived; preservation required in response to Rule 907 notice |
Key Cases Cited
- Commonwealth v. Liebel, 573 Pa. 375, 825 A.2d 630 (Pa. 2003) (per se ineffectiveness for failing to file a requested petition for allowance of appeal; nonfrivolous claims not required)
- Commonwealth v. Ellison, 851 A.2d 977 (Pa. Super. 2004) (clarified Liebel; requires showing of request to file and some chance of review; scope for frivolousness)
- Commonwealth v. Bath, 907 A.2d 619 (Pa. Super. 2006) (distinguished unjustified failure to seek discretionary review from justified failure to consult)
- Commonwealth v. Gadsden, 832 A.2d 1082 (Pa. Super. 2003) (held consultation adequacy claims cognizable under Liebel)
- Commonwealth v. Reed, 601 Pa. 257, 971 A.2d 1216 (Pa. 2009) (Liebel-based per se ineffectiveness for failing to file allowed appeal)
- Commonwealth v. Mouzon, 571 Pa. 419, 812 A.2d 617 (Pa. 2002) (jurisdiction limits on discretionary review; §9781(f) concerns)
- Commonwealth v. Perry, — Pa.—, 32 A.3d 232 (Pa. 2011) (discusses §9781(f)'s reach and reviewability of discretionary sentencing)
- Commonwealth v. Smith, 543 Pa. 566, 673 A.2d 893 (Pa. 1996) (review limitations on discretionary sentencing)
- Commonwealth v. Pasture, — Pa.—, 37 A.3d 1174 (Pa. 2012) (discretionary-sentencing review and reviewability limitations)
- Commonwealth v. Ros ary, 535 Pa. 282, 635 A.2d 109 (Pa. 1993) (statutory review constraints on discretionary aspects)
- Commonwealth v. Walls, 592 Pa. 557, 926 A.2d 957 (Pa. 2007) (jurisdiction in discretionary sentencing review)