COMMONWEALTH of Pennsylvania, Appellee, v. Devon BROWN, Appellant.
unknown
Supreme Court of Pennsylvania.
Decided March 26, 2008.
943 A.2d 264
Argued May 10, 2006.
Jurisdiction relinquished.
BEFORE: CAPPY, C.J., and CASTILLE, NEWMAN, SAYLOR, EAKIN, BAER and BALDWIN, JJ.
OPINION
Justice SAYLOR.
Appeal was allowed to determine whether the filing of an untimely notice of appeal displaces the statutory one-year period for filing a state post-conviction petition, as suggested by a passage from this Court‘s decision in Commonwealth v. Murray, 562 Pa. 1, 753 A.2d 201 (2000).1
Appellant was convicted of possession of a controlled substance, possession with intent to deliver, and criminal conspiracy. In May 2001, the trial court imposed a sentence of incarceration spanning from four to eight years. Appellant secured substitute counsel, who sought to make an oral post-sentence motion; further, counsel indicated that he intended to file written post-sentence motions identical to those that had been filed by a codefendant. Counsel, however, failed to follow through on this commitment, and written post-sentence motions were never filed. The trial court nevertheless issued an order purporting to deny Appellant‘s post-sentence motions in April 2002, eleven months after sentencing.
Six days later, Appellant filed a notice of appeal from the judgment of sentence. A year later (May 2003), the Superior Court quashed the appeal as untimely, holding that, under
In a divided memorandum opinion, a panel of the Superior Court quashed the appeal, holding that the post-conviction court lacked jurisdiction to reinstate Appellant‘s direct appeal rights or to otherwise adjudicate his claims for relief, in light of the PCRA‘s timing provision requiring that any post-conviction petition be filed within one year of the date when the judgment became final. See
Judge Klein concurred in the result, observing that a “safety net” for most of the harsh results yielded by the PCRA‘s one-year time bar is found in the exceptions of
We allowed appeal to address the discrepancy between the Superior Court‘s decision and the approach to the one-year time bar to post-conviction review suggested by this Court‘s reasoning in Murray. The appeal presents a question of law, over which our review is plenary.
Appellant‘s arguments stress the equities of his situation, in which he initially had believed that he was pursuing a timely appeal in the Superior Court, but was deprived of the benefit of appellate review by virtue of the ineffective assistance of his counsel. Further, he observes that, under the Commonwealth‘s theory, by the time counsel‘s dereliction was discovered by him (i.e., when the Superior Court quashed his initial appeal from the judgment of sentence), the one-year period for the filing of a timely post-conviction petition already would have expired. Thus, he asks this Court to apply the approach from Murray to conclude that his petition was not jurisdictionally precluded. The Commonwealth, on the other hand, supports the reasoning of the lead author of the Superior Court panel. Further, it requests that we take this opportunity to modify Murray, since it is in clear conflict with the language of
In Murray, the post-conviction petitioner was convicted of two criminal offenses and was sentenced in November 1995. His trial counsel filed an untimely notice of appeal, which was dismissed in January 1996. In July 1997, the petitioner filed his PCRA petition, alleging ineffective assistance of counsel in
On discretionary review, this Court opened its analysis with reference to the PCRA‘s timing provision, explaining that, subject to specific exceptions that had not been pled in the case, the statute prescribes that “[a]ny petition under this subchapter, including a second or subsequent petition, shall be filed within one year of the date the judgment becomes final[.]” Murray, 562 Pa. at 3-4, 753 A.2d at 202 (quoting
Further, in rejecting Appellant‘s alternative argument that his conviction had never become final because he had never fully litigated a direct appeal, Murray relied on the plain language of the PCRA commencing the one-year period “at the conclusion of direct review, including discretionary review in the Supreme Court of the United States and the Supreme Court of Pennsylvania, or at the expiration of the time for seeking the review.” Murray, 562 Pa. at 5, 753 A.2d at 203 (quoting
We acknowledge Appellant‘s equitable arguments; however, it is now well settled that there is no generalized equitable exception to the jurisdictional one-year time bar pertaining to post-conviction petitions. See Commonwealth v. Robinson, 575 Pa. 500, 508, 837 A.2d 1157, 1161 (2003).3 Additionally, we note that in Peterkin the Court considered the one-year time bar in the context of the provision of the Pennsylvania Constitution restricting the government‘s ability
We hold that, in circumstances in which no timely direct appeal is filed relative to a judgment of sentence, and direct review is therefore unavailable, the one-year period allowed for the filing of a post-conviction petition commences upon the actual expiration of the time period allowed for seeking direct review, as specified in the PCRA.
The order of the Superior Court is affirmed.
Again, and as highlighted by Judge Klein, the exceptions to the one-year time bar are those delineated in the PCRA, see
Chief Justice CAPPY and Justice NEWMAN did not participate in the decision of this case.
Justice EAKIN joins the opinion.
Chief Justice CASTILLE joins the opinion and files a concurring opinion.
Justice BAER files a dissenting opinion.
Chief Justice CASTILLE, concurring.
I join the Majority Opinion in its entirety. I write solely in response to Mr. Justice Baer‘s Dissenting Opinion.
The latter part of the Dissenting Opinion makes some thoughtful points, albeit on an issue and theory of relief not raised or briefed by the parties, i.e., whether this case should be deemed subject to the Post Conviction Relief Act (“PCRA“),
The Dissent‘s opinion of this Court‘s supposed “unwillingness” to consider issues in this area is but the last of its criticisms of our precedent. The Dissent begins by questioning the correctness of this Court‘s holding that the PCRA time-bar is “jurisdictional.”2 More intemperately, the Dissent proceeds to assert that the Court “has felt compelled to tolerate constitutional violation upon constitutional violation, sacrificing fundamental rights at the altar of finality.” Dissenting Op. at 367, 943 A.2d at 272. The Dissent goes on to criticize what it calls “our increasingly narrow reading of the time constraints under the PCRA” which, it says, has “painted us into a corner.” Id. at 369, 943 A.2d at 273. In my view, the Dissent‘s criticisms of the Court‘s jurisprudence in this area, and by extension its criticism of the Majority‘s analysis here, are unwarranted.
The PCRA time-bar was enacted following the beginning of my tenure on the Court since 1994, and so I have participated in, and even authored, some of the decisions that are the subject of the Dissent‘s concern. Those decisions primarily posed questions of statutory construction, but with an eye also
A proper understanding and appreciation of the PCRA requires consideration of context. With respect to the 1995 PCRA amendments, it is worth noting that there is nothing unconstitutional, or even unwise, about the General Assembly‘s concern with finality. Like various pieces of legislation, the 1995 amendments were a response to existing abuses. Not coincidentally, the federal habeas statute was amended around the same time, and Congress likewise adopted a time-bar as well as other restrictions, similar to those found in the PCRA, designed to curb abuses and to bring finality to criminal cases. Prior to the PCRA amendments which included the one-year time-bar, Pennsylvania capital defendants tended to sit on their collateral review rights, except in the rare instance where the Governor signed a death warrant.4
More fundamentally, in understanding the PCRA, one must remember the interplay of traditional habeas corpus and Pennsylvania statutes governing post-conviction review. At least in the context of being employed as a vehicle to challenge a criminal conviction, the historical writ was not such a “great” thing for Pennsylvania criminal defendants. Unlike a person who had yet to be tried, a convicted criminal obviously was well aware of the cause of his detention. Common law habeas corpus afforded convicted criminals very little prospect of relief until the sudden criminal procedure revolution engineered by the Earl Warren Supreme Court in the early 1960s. In the wake of those federal decisions, this Court reworked and expanded the scope of the historical writ as a matter of defensive necessity, i.e., to accommodate the flood of petitions
In earlier times petitions for writs of habeas corpus were a far greater rarity than today, at least in Pennsylvania. Today‘s frequent resort to the writ can be laid to the burgeoning use of the writ as a means of attacking criminal convictions collaterally. This phenomenal development of the writ as an instrument of postconviction litigation was not foreseen when the common law deemed the writ competent to test only sentences under which the petitioner was then serving.FN13
That the scope of the writ has developed greatly with the exigencies of the time as a postconviction remedy seems so undeniable that extensive citation and comparison of cases might now well seem a needless exercise. There is no other comprehensive method of collateral attack in Pennsylvania. Thus this growth of the writ is not surprising or unwarranted in view of our continuing efforts to provide a full hearing for claims of federal constitutional violations and in the face of the present urgent necessity for a state postconviction avenue which will afford an adequate corrective process for hearing and determining alleged violations of federal constitutional guarantees. See, e. g., Case v. State of Nebraska, 381 U.S. 336, 85 S.Ct. 1486, 14 L.Ed.2d 422 (1965); Reitz, Federal Habeas Corpus: Postconviction Remedy for State Prisoners, 108 U.Pa.L.Rev. 461, 465-66, 469-70 (1960); Meador, Accommodating State Criminal Procedure and Federal Postconviction Review, 50 A.B.A.J. 928, 929-30 (1964).
The General Assembly responded fairly promptly to the need for a new “state postconviction avenue,” adopting the Post Conviction Hearing Act (“PCHA“) in 1966. As this Court‘s own contemporaneous authority demonstrates, the legislative contribution was not designed to restrict or eliminate that which had been afforded to convicted prisoners under common law habeas corpus; rather, the statute addressed the necessity for a new review paradigm in response to new and literally unprecedented federal commands in matters affecting criminal procedure, many of which were deemed retroactive, thus unsettling final convictions. A proper historical understanding, then, requires recognition that the PCHA, and now the PCRA, is remarkable not in how it restricts convicted criminals, but in the broad avenue of collateral attack it accommodates and permits. Given this history, there is nothing at all improper in the General Assembly attempting to normalize, regularize, and expedite review. Even with the time-bar, statutory post-conviction review in this Commonwealth is expansive, not cramped or unduly restrictive. The statute need not apologize for itself; and we need not construe it to mean something other than it says to accommodate a lachrymose outlier situation. This is so, despite the intemperate and unfortunate charges leveled by the Dissent against this Court‘s jurisprudence.
Justice BAER, dissenting.
Ever since this Court construed the time limits provided by the Post Conviction Relief Act,
In his Concurring Opinion in Commonwealth v. Hall, 565 Pa. 92, 771 A.2d 1232 (2001), Justice Nigro expressed the
I am troubled by the prospect that a defendant who, for example, instructed counsel to file a direct appeal, was told by counsel that an appeal was being filed, was subsequently reassured by counsel that the appeal was filed, but later found out after the [PCRA‘s] one-year time limitation period expired that counsel never filed the appeal, is forever precluded from receiving at least one appellate review of his case. In my view, a rule that penalizes a defendant who reasonably relies in good faith upon his counsel to protect his appellate rights is contrary to the purpose of the PCRA, and such a defendant should be entitled to, at a bare minimum, one appellate review.
Id. at 1237 (Nigro, J., concurring). The instant case presents a circumstance materially identical to that foreseen by Justice Nigro, one in which Appellant was denied even one appellate review of his judgment of sentence through no fault of his own and due to no want of diligence in seeking to protect his appellate rights. While I do not dispute that our reading of the PCRA has, in effect, painted us into a corner in cases such as this, I do not believe that the General Assembly had the intent or authority4 to eviscerate the commonlaw remedy of habeas corpus to the extent that relief is precluded under the facts of this case.5 That being said, however, in this case,
Notes
I agree in large part with the Majority‘s recounting of the case. See Maj. Op. at 357-60, 943 A.2d at 266-67. The Majority acknowledges that Murray sent conflicting signals to litigants, on the one hand suggesting that the PCRA time limit begins to run upon the actual occurrence of finality of the judgment of sentence, but then suggesting, albeit in dictum, that the relevant limitations period did not begin to run until the Superior Court had quashed the appeal in question as untimely. In Murray, as the Majority notes, on either analysis the appellant was not entitled to relief, as his PCRA petition was untimely in either case. I disagree with the Majority, however, in refusing to acknowledge the inequity and thereby punishing Appellant for his fully justified reliance on Murray and its progeny.
In this Court‘s recent decision in Commonwealth v. Bennett, 593 Pa. 382, 930 A.2d 1264 (2007), among several factors that led us to find that the appellant had duly pleaded an exception to the PCRA‘s one-year time limit was what we held to be his reasonable reliance on an extant Superior Court practice, called “the extension theory,” which we had invalidated during the pendency of Bennett‘s appeal but after his reliance on that practice. See id. at 1268-69 (citing Commonwealth v. Robinson, 575 Pa. 500, 837 A.2d 1157 (2003) (invalidating the extension theory)). In so doing, we recited a number of cases in
Pennsylvania may be molded to suit the exigencies of any particular case. It is an implied common-law power, not created by the habeas corpus act of February 18, 1785, 2 Sm.L. 275, sec. 13, but existing before and since the passage of that act in every court of record, invested with extensive appellate or supervisory jurisdiction; and, in a proper case, it is always grantable ....” (internal quotation marks omitted; emphasis added)).
While I agree with the Majority that Murray misstated the law in the passage relied upon by Appellant, the fact remains that the language was sufficiently misleading to fool not only Appellant, but also a distinguished panel of the Superior Court. See Commonwealth v. Mazzarone, 856 A.2d 1208 (Pa.Super.2004) (interpreting the same passage in Murray as binding precedent for precisely the proposition Appellant now asserts). As in Bennett, I would find that such reliance on then-valid law supports a grant of relief. Thus, I would apply the Majority opinion in this case solely prospectively, and afford Brown relief, rather than punish him for our error.
This case, however, presents an occasion that compels me to address the slow erosion of the rights once protected by the writ of habeas corpus, a problem that is neither faced nor remedied by such incremental, case-specific palliatives, as is suggested above to return Brown‘s appellate rights; and one that goes to the very heart of our PCRA jurisprudence. It is to this alarming diminution of fundamental rights that I now turn.
As noted, in Evitts, the United States Supreme Court held that, when counsel fails to perfect an appeal for a client who seeks it in a criminal case, his representation is constitutionally inadequate.6 In this case, there is no dispute that Appellant sought to appeal his conviction. Moreover, there is no dispute that it was counsel‘s failure to file a written post-sentence
Appellant failed to understand his predicament because Appellant‘s counsel failed to understand his predicament; Appellant‘s error, on this account, lay in his faith that counsel understood the governing law. It is not his counsel, however, who pays the price. Where counsel‘s constitutionally defective representation results in forfeiture of a criminal defendant‘s constitutional right to a direct appeal, and where the loss cannot be fairly traceable to the defendant‘s own want of diligence in seeing to his own interests, I simply cannot accept that the law, be it statutory or decisional, denies that defendant‘s constitutionally derived fundamental right to appeal his conviction. See Evitts, 469 U.S. 387, 105 S.Ct. 830, 83 L.Ed.2d 821.
Vindication of this fundamental right to one appeal and to effective representation of counsel through that event can occur either through the PCRA or around it, but it is simply inescapable that a solution must be found that entails restoration of Appellant‘s right to a direct appeal. Since this Court long has construed the PCRA to reflect the General Assembly‘s intention to encompass the broadest possible category of collateral relief—including habeas corpus, coram nobis, and any other commonlaw remedies—within the Act‘s confines, see Commonwealth v. Cruz, 578 Pa. 263, 851 A.2d 870, 877 (2004), I first consider whether relief is available through the PCRA.
This examination requires very little effort, however, because our caselaw and the PCRA facially preclude relief in this case. Just as the Majority holds, the one-year time limit for filing a PCRA petition commences not upon expiration of a faultily pursued direct appeal, but, rather, upon the finality in
Thus, bearing in mind the foregoing constitutional rights that hang in the balance, Appellant simply must be entitled to relief outside the PCRA, for while this Court has acknowledged that the General Assembly intended with the Act to sweep into its purview as many aspects of collateral review as possible, neither that body nor this Court has the authority to deny federal constitutional rights. Commonwealth v. Cruz, 578 Pa. 263, 851 A.2d 870, 877 (2004). Moreover, we have held that there remain cases that fall outside the PCRA‘s ambit and thus are subject to traditional habeas corpus analysis. Commonwealth v. West, 595 Pa. 483, 938 A.2d 1034 (2007)(citing
Similarly, in West this Court found another scenario as to which the PCRA provided no solution, and analyzed it instead pursuant to principles of substantive due process by way of habeas corpus. In that case, due to an administrative oversight, petitioner had managed to remain free for nine years following the imposition of a sentence of imprisonment for a criminal conviction. When the error finally was discovered and brought to the attention of the sentencing court, an arrest warrant was issued. Soon thereafter, petitioner was taken into custody, whereupon he challenged his incarceration based upon what he averred were violations of his substantive due process rights under the Fourteenth Amendment to the United States Constitution. He brought these claims in filings that jointly invoked, and alternatively argued, principles of habeas corpus and the PCRA.
From these cases I conclude that the critical question presented in this case and others of its ilk must concern what constitutes the “availability” of a remedy (or the “cognizability” of a claim) under the PCRA. I cannot dispute that this case is distinguishable from Judge and West inasmuch as the General Assembly clearly sought to encompass allegations of ineffectiveness of counsel within the remedies—and subject to the restrictions—established by the PCRA, as we held in Lantzy. Where I believe the Majority errs—and where I concede this Court has, in the past, erred as well, even in cases I have joined—is in defining as cognizable all claims that fall within a category as to which the vast majority of such claims will become apparent within the time limit provided by the PCRA.9 Thus, we have effectively held that, because garden-variety ineffective assistance of counsel will emerge to support a viable PCRA claim well within the stringent time limits of the PCRA, and because those sorts of claims are clearly intended to be encompassed by the PCRA, all ineffective assistance of counsel claims necessarily are cognizable
It should go without saying that this status quo is unsustainable to the extent it runs afoul of overriding sources of law such as the Pennsylvania and United States Constitutions, the supremacy of which is beyond cavil. Pursuant to the principles outlined and cases cited above, see Evitts, 469 U.S. 387, 105 S.Ct. 830, 83 L.Ed.2d 821; these hallowed charters secure a fundamental right in Pennsylvania state criminal proceedings to a direct appeal of a conviction and to due process in the provision of that direct appeal, including assuring the effective assistance of counsel. Where statutory law, or our interpretation of same, leads to manifest constitutional violations, either the statute or our interpretation must yield.
It would be more consonant with our constitutional duty to determine the availability of PCRA relief not exclusively as a function of categories defined too broadly to remain sensitive to anomalous cases—such as all ineffectiveness of counsel—but rather with sufficient care to accommodate certain recurring problems. The instant case is one such case, and, indeed, is emblematic of the type of case Pennsylvania courts see all too often, where diligent criminal defendants are denied their constitutional rights to direct appeal and the effective assistance of appellate counsel because of the continuance of ineffective assistance of counsel and the passage of time. We should not be construing every sort of collateral claim as “cognizable” under the PCRA, and therefore subject to its
I do not believe, however, that the solution is to overturn our prior precedent. Indeed, it is our habeas corpus precedent of recent vintage that provides the solution. As in Judge and West, I believe that the PCRA simply is an inadequate device to address constructive abandonment of counsel when it leads to complete forfeiture of direct appellate rights due to a failure to seek or perfect a desired appeal—at least where such abandonment could not reasonably have been discovered by a petitioner until after the PCRA‘s one-year time limit had run. Such a claim simply should not be deemed “cognizable” under the PCRA; it simply makes no sense to suggest that it is when to do so is tantamount to defining “cognizable” as “available, but not to you.” Accordingly, I would find such a claim subject to review as a matter of habeas corpus.
In this case, it is undisputed that counsel‘s failure properly to understand the law, or failure to abide by it, led to the forfeiture of defendant‘s right to a direct appeal of his conviction. Where counsel‘s dereliction costs his client a constitutionally sanctioned direct appeal, counsel is ineffective, and the proper remedy is to restore his direct appeal rights nunc pro tunc. While that remedy has not been sought here, I believe that is because this Court has signaled continuously and unremittingly its unwillingness to consider such arguments, a position that is constitutionally unsustainable, and thus should be abandoned. When next a party seeks relief under these circumstances and raising these constitutional arguments, I would grant relief.