COMMONWEALTH of Pennsylvania, Appellee v. Robert BARNETT, Appellant.
No. 1141 EDA 2008
Superior Court of Pennsylvania
July 20, 2011
Reargument Denied Aug. 9, 2011
33 A.3d 634 | 2011 PA Super 155
DONOHUE, J.
Argued April 5, 2011.
Therefore, appellant‘s argument that Massachusetts’ assault with intent to rob statute encompasses the use of force however slight is not supported by the case law. Furthermore, the court in Northrip cautioned against the use of hypothetical factual scenarios in favor of an elements-based approach. Northrip, 603 Pa. at 554, 985 A.2d at 740.
The record reflects that appellant had a total of 92 arrests and 36 convictions, including 8 convictions for violent crimes. (Notes of testimony, 11/17/06 at 12.) Appellant had been arrested 30 times for violent crimes ranging from assault with a deadly weapon to kidnapping and rape. (Id.) He has terrorized the victim in this case, who suffered serious injuries. (Id. at 11.) The prosecuting attоrney in this case described appellant‘s criminal history as the worst he has seen. (Id. at 17.) As the trial court remarked, appellant has not shown any willingness to rehabilitate. (Id. at 22.) At resentencing on January 14, 2009, the court observed that appellant was precisely the type of incorrigible, violent serial offender the legislature envisioned when it enacted the three strikes law. (Notes of testimony, 1/14/09 at 5.)
I would determine that for the same reasons described in the analysis of
For these reasons, I respectfully dissent.
Andrea N. Johnson, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
BEFORE: STEVENS, P.J., BENDER, BOWES, PANELLA, DONOHUE, SHOGAN, MUNDY, OTT and FREEDBERG, JJ.
OPINION BY DONOHUE, J.:
Robert Barnett (“Barnett“) brings this direct appeal nunc pro tunc from a judgment of sentence of life in prison entered on December 2, 2002, after a Philadelphia Court of Common Pleas jury found Barnett guilty of murder in the first degree1 on November 27, 2002. Barnett was also sentenced to consecutive terms of ten to 20 years of imprisonment for robbery2 and burglary,3 five to ten years for criminal conspiracy,4 and three and one-half to seven years for carrying a firearm without a license.5
After his conviction, Barnett‘s trial counsel filed an appeal that was so badly briefed his claims were deemed waived by this Court on direct appeal. Subsequently, Barnett filed a PCRA6 petition alleging
Although this is a nunc pro tunc direct appeal, each of Barnett‘s assertions of error is based on ineffective assistance of counsel. In other words, Barnett has abandoned his direct aрpeal issues. Barnett posits that his claims of ineffective assistance of counsel are properly before us under Commonwealth v. Bomar, 573 Pa. 426, 463, 826 A.2d 831, 853 (2003). As discussed in more detail later in this Opinion, we conclude the Supreme Court has limited the applicability of Bomar, and that Barnett‘s assertions of ineffective assistance are appropriately raised only on collateral review. This procedure ensures that Barnett will have a single opportunity for collateral review as mandated by the Supreme Court. Accordingly, we dismiss Barnett‘s claims of ineffective assistance of counsel without prejudice to raise them on collateral review,7 and affirm the judgment of sentence.
In Commonwealth v. Grant, 572 Pa. 48, 813 A.2d 726 (2002), our Supreme Court held that claims of ineffective assistance of counsel should ordinarily be reserved for collateral review. The Grant Court abrogated the rule of Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687 (1977), which required a newly-appointed attorney to raise ineffective assistance of prior counsel at the earliest opportunity, including on direct appellate review.8 Subsequent to Grant, in Bomar, the Supreme Court allowed ineffeсtive assistance claims to be litigated on direct appeal because the defendant in that case raised them before the trial court and the trial court conducted a hearing to determine their merits. Bomar, 573 Pa. at 463, 826 A.2d at 853. Bomar involved ineffectiveness claims that were raised prior to the Supreme Court‘s ruling in Grant. In subsequent cases, without distinguishing between a pre- and post-Grant procedural posture, the Supreme Court relied on Bomar as authority for reviewing ineffective assistance of counsel claims on direct appeal so long as the claims were raised in the triаl court and subject to a hearing. See, e.g., Commonwealth v. Cooper, 596 Pa. 119, 140 n. 3, 941 A.2d 655, 668 n. 3 (2007) (post-Grant record); Commonwealth v. Chmiel, 585 Pa. 547, 613, 889 A.2d 501, 540 (2005) (pre-Grant record), cert. denied, 549 U.S. 848, 127 S.Ct. 101, 166 L.Ed.2d 82 (2006); Commonwealth v. Singley, 582 Pa. 5, 20 n. 8, 868 A.2d 403, 411 n. 8 (2005) (pre-Grant
In Commonwealth v. Rega, 593 Pa. 659, 933 A.2d 997 (2007), cert. denied, 552 U.S. 1316, 128 S.Ct. 1879, 170 L.Ed.2d 755 (2008), the Supreme Court majority once again reviewed ineffective assistance of counsel claims on direct appeal pursuant to Bomar. Id. at 695-96, 933 A.2d at 1018. Three of the six participating justices in Rega, however, expressed reservations as to the continued viability of Bomar. In a concurring opinion, Chief Justice Cappy wrote: “My fear is that continued employment of the ’Bomar’ exception will eventually swallow the rule we announced in Grant governing the presentation of effectiveness claims.” Id. at 714, 933 A.2d at 1028 (Cappy, C.J., concurring). In another concurring opinion, then-Justice, now Chief Justiсe Castille, joined by Justice Saylor, wrote that “[a]s matters now stand, it is within the unconstrained discretion of the trial judge whether a defendant will get one or two bites at the collateral review apple. Furthermore, there is no statutory authorization for the redundant, of-right collateral attacks that result from hybrid direct appeal review.” Id. at 716, 933 A.2d at 1030 (Castille, J., concurring).
The issue of the continued viability of Bomar arose again in Commonwealth v. Wright, 599 Pa. 270, 961 A.2d 119 (2008). In Wright, the Supreme Court, with four justices participating, reviewed ineffective assistance claims on direct appeal pursuant to Bomar, but Justice Eakin, writing for the Court, specified in a footnote that “[p]rolix collateral claims should not be reviewed on post-verdict motions unless the defendant waives his right to PCRA review because the PCRA does not afford the right to two collateral attacks.” Id. at 320 n. 22, 961 A.2d at 148 n. 22. Chief Justice Castille joined Justice Eakin‘s opinion, and Justice Saylor joined it in relevant part. Id. at 337, 961 A.2d at 158. Three out of the four participating justices9 therefore joined in footnote 22. We observe that an opinion has a binding effect whenever a majority of participating justices join. Commonwealth v. Mason, 456 Pa. 602, 604, 322 A.2d 357, 358 (1974); Commonwealth v. Derby, 451 Pa.Super. 100, 107, 678 A.2d 784, 788 n. 3 (1996); In re C.K., 369 Pa.Super. 445, 450, 535 A.2d 634, 637 n. 2 (1987). Thus, based on the Supreme Court majority in Wright in 2008, collateral claims in post-trial mоtions were no longer proper.
Subsequently, in Commonwealth v. Liston, 602 Pa. 10, 28, 977 A.2d 1089, 1100 (2009), the Supreme Court overruled this Court‘s en banc opinion in which we concluded that a PCRA court‘s order reinstating direct appeal rights must also reinstate the right to file post-sentence motions so that a defendant can raise ineffective assistance of counsel claims and have them reviewed on direct appeal.10 Justice Greenspan, writing for the Court, stated that the Superior Court‘s decision in Liston was “capable of undermining the very purpose and policy underlying Grant.” Id. at 18, 977 A.2d at 1094. Further, Justice Greenspan wrote:
A defendant who is granted an opportunity to file post-sentence motions because his attorney failed to file a requested appeal maintains the right to
seek post-conviction relief under the PCRA after his direct appeal is finally determined. This is an opportunity that most, if not all, defendants will likely take. Thus, the Superior Court‘s decision grants some defendants an additional automatic opportunity to attack their convictions based on claims of ineffective assistance of counsel, a recourse nоt available to all defendants.
Id. at 18-19, 977 A.2d at 1094. The Supreme Court therefore vacated our order remanding for a reinstatement of the appellant‘s right to file post-sentence motions, affirmed the judgment of sentence, and deferred the appellant‘s ineffective assistance of counsel claims to collateral review. Id. at 19-20, 977 A.2d at 1094-95.
Liston was decided by a five-member Court. Chief Justice Castille authored a concurring opinion in Liston expounding on footnote 22 of Wright. He stated: “I would explicitly limit Bomar to Hubbard-era cases and make clear that there is no ’Bomar’ exception to Grant.” Chief Justice Castille further wrote that “I would permit hybrid review only when the request for suсh review is accompanied by an express, knowing and voluntary waiver of further PCRA review.” Id. at 22, 977 A.2d at 1096 (Castille, J., concurring). Four of the five participating justices in Liston expressly disapproved of providing defendants multiple opportunities for collateral review. Justices Saylor and Eakin joined Chief Justice Castille‘s concurring opinion, giving Chief Justice Castille a three-justice majority in support of his limitation of Bomar.11 We note, also, that Chief Justice Castille‘s concurring opinion rejected the notion that footnote 22 of Wright was dicta.12 Id. at 28 n. 10, 977 A.2d at 1099 n. 10.
Thus, on two occasions a majority of the participating Supreme Court justices have agreed that an appellant cannot raise collateral claims on direct appeal without waiving the right to subsequent collateral review. More recently, in Commonwealth v. Montalvo, 604 Pa. 386, 986 A.2d 84 (2009), the Supreme Court agreed to hear ineffective assistance of counsel claims on direct appeal where the record pertaining to those claims was developed prior to the decision in Grant. Id. at 398 n. 5, 986 A.2d at 91 n. 5. In a concurring opinion in Montalvo, Chief Justicе Castille wrote: “As I made clear in my recent concurrence in [Liston]—and in this regard I spoke for a majority of the Liston Court—going forward, the lower courts should not indulge hybrid review by invoking Bomar.” Id. at 432, 986 A.2d at 111 (Castille, J., concurring) (emphasis added).13
Although offered the opportunity to bring a dirеct appeal on his weight, sufficiency and suppression of evidence claims, Barnett, for whatever reason, has not raised any of those arguments in this nunc pro tunc direct appeal.15 As a result, Barnett technically does not seek “hybrid review” of direct and collateral claims. It is clear, however, that the primary teaching of Liston and footnote 22 of Wright is not that “hybrid review” is wrong in and of itself, but that defendants are not entitled to two chances at collateral review, once on direct appeal and once pursuant to the PCRA. In this case, Barnett sought reinstatement of his direct appeal rights and then raised only collateral claims in the nunc pro tunc direct appeal that followed. The result, absent application of Liston and Wright, would be that Barnett procured for himself two opportunities for purely collateral review. The absence of direct appeal claims in this nunc pro tunc direct appeal therefore makes the teaching of Liston and Wright especially poignant.
Application of Wright and Liston to the instant matter poses unique difficulties. To ensure compliance with the PCRA‘s jurisdictional timeliness requirements (see
Based on the opinion of a majority of participating justices in Wright and Liston, this Court cannot engage in review of ineffective assistance of counsel claims on direct appeal absent an “express, knowing and voluntary waiver of PCRA review.” Liston, 602 Pa. at 22, 977 A.2d at 1096 (Castille, C.J., concurring). With the proviso that a defendant may wаive further PCRA review in the trial court,16 absent further instruction from our Supreme Court, this Court, pursuant to Wright and Liston, will no longer consider ineffective assistance of counsel claims on direct appeal.
Based on the foregoing analysis, we dismiss Barnett‘s claims of ineffective assistance of counsel without prejudice to raise them in a subsequent PCRA petition along with any other post-conviction claims he may have. As Barnett has not raised any challenge to his conviction other than ineffective assistanсe of counsel pursuant to the PCRA, we affirm the judgment of sentence.
Judgment of sentence affirmed.
SHOGAN, J. files a Concurring and Dissenting Opinion.
CONCURRING AND DISSENTING OPINION BY SHOGAN, J.:
Although the learned Majority aptly addresses the multiple concerns associated with this unclear area of law, I do not believe it is appropriate that this Court create a bright-line rule of waiver given the current state of the law and apply it to the instant case. Therefore, I respectfully dissent from those portions of the Majority opinion. However, after careful review, I join the Majority in affirming the judgment of sentenсe.
Here, the Majority has authored a thorough examination of the development of our Supreme Court‘s case law addressing claims of ineffective assistance of counsel
While it is obvious that this area of the law is undergoing development by our Supreme Court, I cannot disregard the fact that certain questions have been left unanswered by the Supreme Court‘s decisions. Indeed, both Wright, and the concurrence in Liston, express that waiver of further PCRA review should be required of an appellant attempting to raise claims of ineffective assistаnce of counsel on direct appeal. However, the Supreme Court has left unanswered the question of whether it intends that only the right to raise further claims of ineffective assistance of counsel should be waived on collateral review or whether it prefers the more draconian measure that all rights to PCRA review should be waived. Even if limited to ineffective assistance of counsel claims, would the waiver include ineffective assistance of appellate counsel claims, which have yet to accrue? I am left to question how this can occur, since certain claims of appellate counsel ineffective assistance have been found to constitute per se ineffectiveness, e.g., counsel‘s failure to file a statement of errors pursuant to
Furthermore, I question whether the Majority‘s bright-line rule should be applied to Appellant in this matter. Given the timing of the original remand of this case, and the dates of the Supreme Court decisions in Wright and Liston, it appears inеquitable to Appellant to now alter the procedure set forth by this Court and to direct Appellant to file, yet again, his identical claims seeking relief.
My review of the record indicates that Appellant‘s trial and judgment of sentence, which was imposed on December 2, 2002, both pre-dated the Supreme Court‘s decision in Grant. Also, on December 5, 2003, a panel of this Court deemed Appellant‘s issues waived on direct appeal due to the poor brief filed by Appellant‘s counsel and affirmed the judgment of sentence. On October 5, 2005, Appellant filed a PCRA petition, claiming ineffective assistance of counsel, which, after a hearing, the PCRA court denied on April 15, 2008. These events predated the Supreme Court‘s decision in Wright, which suggested waiver of PCRA rights is appropriate when collateral claims are raised in post-verdict motions.
Thereafter, on April 7, 2009, a panel of this Court reversed the PCRA court‘s determination and remanded to the PCRA court for the reinstatement of Appellant‘s direсt appeal rights, nunc pro tunc. This Court specifically stated:
Given this disposition, we need not address Appellant‘s remaining claims. We do note, however, that because the PCRA court has already held an evidentiary hearing, and addressed the merits of Appellant‘s ineffectiveness claims, they may be reviewed on direct appeal. See generally, Commonwealth v. Bomar, 573 Pa. 426, 826 A.2d 831 (Pa.2003). Commonwealth v. Barnett, No. 1141 EDA 2008, slip op. at 9, 974 A.2d 1175 (Pa.Super. filed April 7, 2009).
On August 17, 2009, four months after this Court issued its decision reversing and remanding the instant case, our Supreme Court issued its decision in Liston containing Chief Justice Castille‘s comments thаt review of ineffective assistance of counsel claims on direct appeal should only occur when the request for “such review is accompanied by an express, knowing and voluntary waiver of further PCRA review.” Liston, 602 Pa. at 22, 977 A.2d at 1096. However, I cannot ignore the fact that, rather than apply Liston retroactively, in Montalvo, Chief Justice Castille suggests that Liston be applied “going forward.” Montalvo, 604 Pa. at 432, 986 A.2d at 111. Therefore, I am compelled to conclude
After a careful review of the certified record, as well as the briefs of the parties and the applicable law, I further conclude that Appellant‘s issues lack merit and have been adequately addressed in the trial court‘s opinion filed on June 22, 2009. Accordingly, I would affirm the judgment of sentence.