84 A.3d 1080

Pa. Super. Ct.

2014

COMMONWEALTH OF PENNSYLVANIA v. RAQUAN RIGG

No. 1392 EDA 2012

IN THE SUPERIOR COURT OF PENNSYLVANIA

FILED JANUARY 27, 2014

2014 PA Super 11

J-S43012-13. Appeal from the PCRA Order April 18, 2012, In the Court of Common Pleas of Lehigh County, Criminal Division at No(s): CP-39-CR-0003447-2008. BEFORE: BOWES, MUNDY, and FITZGERALD,* JJ.

CONCURRING AND DISSENTING STATEMENT BY FITZGERALD, J.:

I agree that Appellant waived the claims of counsel‘s ineffectiveness he raised for the first time in his Pa.R.A.P. 1925(b) statement of errors complained of on appeal. Therefore, I concur that the sole issue preserved in this appeal is Appellant‘s claim that prior counsel, during the direct appeal, was ineffective for failing to honor his request to file a petition for allowance of appeal in the Pennsylvania Supreme Court. However, I respectfully dissent because I would conclude that Appellant properly pleaded a per se ineffectiveness claim under Commonwealth v. Liebel, 825 A.2d 630 (Pa. 2003).

In Liebel, the Pennsylvania Supreme Court held that under Pa.R.Crim.P. 122, a defendant “is entitled to the assistance of counsel through his discretionary appeal to th[e Pennsylvania Supreme] Court on direct appeal.”¹ Liebel, 825 A.2d at 634. Additionally, the Court concluded that when a defendant seeks to vindicate that right by claiming ineffectiveness based on counsel‘s failure to file a petition for allowance of appeal, no showing of prejudice—i.e. that his claims were such that they would warrant review by the Supreme Court—was required. Id. The Court reasoned that although there is no right to allowance of appeal, there exists a “right to file a petition for allowance of appeal.” Id. at 635.

The Court, however, observed:

[P]rovided that appellate counsel believes that the claims that a petitioner would raise in a [petition for allowance of appeal] to this Court would not be completely frivolous, a

petitioner certainly has a right to file such a petition to this Court. See Pa.R.A.P. 1112 (‘An appeal may be taken by allowance . . . from any final order of the Superior Court[,]’ and allowance for such appeal ‘may be sought by filing a petition for allowance of appeal’ with this Court within the required time limit).”

Id.

The Liebel Court‘s proviso that appellate counsel believes that claims for allowance of appeal are not completely frivolous is an issue in this Court. In Commonwealth v. Gadsden, 832 A.2d 1082 (Pa. Super. 2003), this Court concluded that the proper inquiry, under Liebel, is “whether [a defendant] asked to file a petition for allocator, and if so whether counsel‘s failure to do so was justifiable.” Id. at 1088.

Subsequently, in Commonwealth v. Ellison, 851 A.2d 977 (Pa. Super. 2004), this Court acknowledged that Liebel “eliminates the petitioner‘s need to prove prejudice.” Id. at 980. However, the Court proceeded to consider whether “counsel‘s failure to file would be justified if the claims the petitioner wanted to raise are ‘completely frivolous.‘” Id. at 980 (citation omitted). The Ellison Court concluded:

In sum, we interpret Liebel to mean that a PCRA petitioner no longer needs to show that he is innocent or that the Supreme Court definitely would have taken the appeal or that he would have won in the Supreme Court in order to prove counsel‘s ineffectiveness for failing to file a [petition for allowance of appeal]. Nor does he need to demonstrate the merits of the underlying issues. The only things a petitioner needs to show are that he asked his attorney to file a [petition for allowance of appeal] and there is some chance that the Supreme Court would have taken his case, i.e., his claims are not completely frivolous.

Id. at 981. Thus, the Ellison Court suggested that a review of the merits of a defendant‘s claims may be conducted to consider whether counsel was justified in refusing to file a petition for allowance of appeal. Id. at 981.

Justice Frank J. Montemuro, then assigned to the Superior Court, authored a concurring opinion in Ellison. He noted that requiring a defendant to show his claims for allowance of appeal are not completely frivolous “clearly flies in the face of the Liebel pronouncement that ‘where the remaining requirements of the PCRA are satisfied, the petitioner is not required to establish his innocence or demonstrate the merits of the issue or issues which would have been raised on appeal.‘” Id. at 982 (Montemuro, J. concurring).

Instantly, there is no dispute that Appellant requested counsel to file a petition for allowance of appeal from our decision affirming the judgment of sentence. Additionally, there is no dispute that counsel refused the request. Therefore, I would hold that that Liebel governs and would not look to the merits of Appellant‘s possible issues for allowance of appeal. See id. at 980 & n.3 (distinguishing counsel‘s duty to consult with defendant regarding petition for allowance of appeal and noting Liebel applies when counsel fails to honor request to file petition for allowance of appeal); cf. id. at 982 (Montemuro, J. concurring).

The majority, however, observes that Appellant‘s intended claim for petition of allowance of appeal was based on a challenge to the discretionary aspects of sentencing and that 42 Pa.C.S. § 9781(f), entitled “Limitation on additional appellate review,” states: “No appeal of the discretionary aspects of the sentence shall be permitted beyond the appellate court that has initial jurisdiction for such appeals.” 42 Pa.C.S. § 9781(f). The majority holds that a petitioner “whose only allowance of appeal claim involves challenging the merits of an upheld-on-the-merits discretionary sentencing challenge to a guideline sentence” is not entitled to claim per se ineffectiveness related to the failure of counsel to honor his request for seeking allowance of appeal. Majority Op. at 19.

I suggest that while the majority properly characterizes the statutory limitation on appellate review of a sentence, its decision to conduct a review of possible allowance of appeal claims and then examine the substance of such claims under section 9781(f) does not comport with Liebel. See Liebel, 825 A.2d at 635. I further suggest that the majority‘s holding is difficult to apply as it requires this Court to act first as defendant‘s counsel when discerning possible petition for allowance claims and then as the Pennsylvania Supreme Court when determining whether possible claims will be barred by the limitation of appeals provision in section 9781(f).

Therefore, I do not join the majority‘s suggested exception to Liebel and would allow Appellant to “avail himself of the opportunity to have th[e Pennsylvania Supreme Court] at least consider whether his claims warrant . . . review[.]” See id.

Thus, I respectfully dissent.

____________________________________________

* Former Justice specially assigned to the Superior Court.

Notes

Presently, Rule 122 provides, in relevant part:

(B) When counsel is appointed,

* * *

(2) the appointment shall be effective until final judgment, including any proceedings upon direct appeal.

Pa.R.Crim.P. 122(B)(2). Although the numbering of the paragraphs of Rule 122 has changed since Liebel, the current Rule contains the same operative language.