Commonwealth v. CEOCommonwealth v. CEO
- Reporters:
- , ,
- Before:
- Del Sole
Lead Opinion
¶ 1 Wаlter Ceo appeals the order entered December 17, 2001, dismissing his current petition under the Post Conviction Relief Act (PCRA),
¶ 2 On November 1,1995, a jury convicted Ceo оf second-degree murder, kidnapping, aggravated assault, robbery, criminal conspiracy, and four counts of reckless endangerment. On April 17, 1996, the Honorable Eugene H. Clarke, Jr., sentenced Ceo to serve a term of life imprisonment for the murder conviction, and a consecutive term of four to ten years’ imprisonment for aggrаvated assault with concurrent sentences on the remaining counts. Ceo, represented by the Defender Association of Philadelphia, requested that counsel appeal the judgment of sentence. Counsel failed, however, to comply with Ceo’s wishes and admitted its failure in a letter of August 20, 1996. Counsel suggested that Ceo seek rеinstatement of his right to appeal by way of a PCRA petition.
¶ 3 Thereafter, Ceo timely filed his first PCRA petition, pro se, on November 25, 1996. The court appointed as counsel Edward C. Meehan, Esquire, who amended Ceo’s petition, requesting reinstatement of his right to appeal nunc pro tunc. The PCRA court granted relief, reinstating
¶ 4 Subsequently, Ceo learned of Attorney Meehan’s misrepresentation and, on December 9, 1998, filed a second pro se PCRA petition. Again the PCRA court appointed new counsel who filed an amended petition. The court granted relief on March 10, 1999, and again granted Ceo the right to file a direct appeal nunc pro tunc. Counsel for Ceo filed the notice of appeal; however, counsel failed subsequently to file a brief, and this Court dismissed his appeal, per curiam, on July 28, 1999.
¶ 5 Ceo filed his third PCRA petition in Octobеr 1999, and again the trial court appointed counsel to represent Ceo. Counsel filed an amended petition, and on January 21, 2000, the PCRA court again granted Ceo the right to file a direct appeal, nunc pro tunc. Again, counsel failed to file a brief, and this Court dismissed the appeal on July 14, 2000.
¶ 6 Ceo filed his fourth and present PCRA petition, pro se, on May 25, 2001, and the court appointed counsеl to represent him. Although counsel filed an amended petition requesting reinstatement of Ceo’s direct appeal right nunc pro tunc, the PCRA court issued notice of its intent to dismiss the petition without a hearing. Thereafter, on December 17, 2001, the court dismissed the petition as untimely filed. Ceo filed this appeal.
¶ 7 Ceo presents a single issue for our review:
Whether the defendant is entitled to reliеf under the Post Conviction Relief Act in the form of the grant of leave to file a notice of appeal nunc pro tunc, reinstatement of appellate rights, as the result of the ineffective assistance of prior counsel.
Brief for the Appellant at 4.
¶ 8 “An appellate court’s review of an order denying post conviction relief is limited to examining whether the evidence of record supports the determination of the PCRA court and whether the ruling is free from legal error.” Commonwealth v. Padden, 788 A.2d 299, 309 (Pa.Super.2001). “We will not disturb findings of the PCRA court that are supported by the certified record.” Id.
¶ 9 In this matter, the trial court concluded that Ceo’s current petition was untimely. Based solely on the text of the PCRA, the court’s ruling does not appear erroneous. Pursuant to 42 Pa.C.S. section 9545, any PCRA petition must be filed within one year of the date the judgment becomes final. “A judgment of sentence becomes final once an appellant’s means of direct review of a conviction, including discretionary review in the Supreme Court of the United States аnd the Supreme Court of Pennsylvania, have concluded or the time limits for seeking a direct appeal have expired.” Commonwealth v. Tedford, 566 Pa. 457, 781 A.2d 1167, 1170-71 (2001) (citing
¶ 10 Although Ceo did not file his current petition until May 25, 2001, he argues that he is entitled to relief because prior counsel effectively abandoned him on each prior reinstatement of his direct appeal rights. Brief for Appellant at 9. Ceo con
¶ 11 In Peterson, Leasa, and Robinson, we considered whether the respective defendants’ seсond or subsequent PCRA petitions were time-barred under
¶ 12 Similarly, in Leasa, we recognized that where appellate review of the order denying a defendant’s first PCRA petition is precluded by counsel’s inaction resulting in dismissal of the appeal, his sеcond petition, although untimely, is merely an “extension of litigation” of the first. See Leasa, 759 A.2d at 942. In Leasa, as in two instances in this case, counsel filed a notice of appeal but then failed to file any supporting brief. See id. Consequently, this Court dismissed the appeal. When the defendant then sought review in a “second” petition of points previously raised, we recognized that the second petition was merely an extension of the first. See id. Accordingly, we required reinstatement nunc pro tunc of the defendant’s right to appeal the denial of his first petition. See id. Because the second petition merely extended the timely first petition, we expressly rejected “any claim that Appellant’s second petition should have been dismissed by the PCRA court as untimеly filed pursuant to
¶ 13 In Robinson, we considered a defendant’s appeal from the dismissal of his “third” PCRA petition where, again, that petition merely sought review of claims raised in a timely first petition. See 781 A.2d at 158. The record showed that following the trial court’s denial of the first
¶ 14 Implicit in the disposition of each of these cases is the proposition that every PCRA petitioner, regardless of the seriousness of his underlying offenses, is entitled to meaningful appellate review of post-conviction claims raised in his first petition so long as that petition is timely filed. See Commonwealth v. Kubis, 2002 PA Super 296, ¶ 6, 808 A.2d 196, 203 (2002) (Johnson, J. dissenting). Where the dereliction of counsel or other circumstances for which the defendant is not responsible operate to waive those claims, the defendant’s right to review remains to bе discharged. Consequently, when the defendant restates those claims in a second or subsequent PCRA petition that would be otherwise time-barred, we are compelled to recognize that the later petition is not an unentitled “second bite at the apple,” but merely the first bite that he was unlawfully denied. Thus, where counsel appоinted to advance the petitioner’s right to review of his first PCRA petition fails to act, resulting in a waiver of the petitioner’s substantive right, a subsequent petition seeking review of the same questions is properly considered an extension of the first petition. See Peterson, 756 A.2d at 689 n. 3, Leasa, 759 A.2d at 942, Robinson, 781 A.2d at 159. Such a practice does not, as the Commonwealth contends, attempt to “create jurisdiction” in violation of
¶ 15 The Supreme Court of Pennsylvania has never invalidated this line of reasoning. Although the Court has emphasized the exclusivity of the PCRA and the jurisdictional bar on untimely petitions for relief, it has not addressed whether
¶ 16 In this case, the record demonstrates that Ceo timely filed a first PCRA petition seeking reinstatement nunc pro tunc of his right to direct appeal. Although the trial court granted that right, Ceo then suffered a pattern of dereliction by three sucсessive appointed counsel extending from abandonment to patent misrepresentation concerning the status of his appeal. Even the most innocuous of these occurrences equal those we addressed in Peterson, Leasa, and Robinson. The documented misrepresentation of Ceo’s sec
¶ 17 Order REVERSED. Case REMANDED for further proceedings consistent with this Opinion. Jurisdiction RELINQUISHED.
¶ 18 Judge BOWES files a Dissenting Opinion.
Dissenting Opinion
Dissenting.:
¶ 1 As I believe that the majority’s disposition in this case is inconsistent with our Supreme Court’s pronouncements in Commonwealth v. Lantzy, 558 Pa. 214, 736 A.2d 564 (1999), Commonwealth v. Hall, 565 Pa. 92, 771 A.2d 1232 (2001), and Commonwealth v. Eller, 569 Pa. 622, 807 A.2d 838 (2002), as well as our recent panel decision in Commonwealth v. Fairiror, 2002 PA Super 290, 809 A.2d 396, I must respectfully dissent.
¶ 2 The facts of this case undoubtedly are egregious. Appellant’s counsel falsely told him that a direct appeal had been filed. Subsequently, Appellant’s two PCRA counsel both abandoned representation. Nonetheless, I do not believe that we have jurisdiction to entertain this appeal.
¶ 3 At the onset, one must be mindful that there is no constitutional right to post-conviction relief. Pennsylvania v. Finley, 481 U.S. 551, 107 S.Ct. 1990, 95 L.Ed.2d 539 (1987). Therefore, Appellant’s right to such review is purely a matter of legislative grace. Our legislature has permitted such review through enactment of the Post-conviction Relief Act, (“PCRA”)
¶ 4 Our Supreme Court has made clear that vindication of the constitutional right to direct review granted in the Pennsylvania Constitution, Pa. CONST, art. V, § 9, cannot be obtained outside the parameters of the PCRA, stating that the “PCRA provides the exclusive remedy for post-conviсtion claims seeking restoration of appellate rights due to counsel’s failure to perfect a direct appeal.... ” Lantzy, supra at 223, 736 A.2d at 570.
¶ 5 In the present case, Appellant sought restoration of his appellate rights, and his entitlement to relief must be examined within the confines of the PCRA. He sought restoration of his rights in an untimely-filed PCRA petition. I believe that under the Supreme Court’s directives in Hall and Eller, we may not consider this fourth petition an “extension” of Appellant’s timely-filed first petition. Hall holds that a petition seeking a direct appeal nunc pro tunc based on an allegation that counsel was ineffective for failing to
¶ 6 It must be remembered that Hall and Eller merely reinforce the consistent pronouncements from our Supreme Court that any allegation of ineffective assistance of counsel, no matter how framed, will not save an untimely filed PCRA petition under any circumstances. E.g., Commonwealth v. Howard, 567 Pa. 481, 788 A.2d 351 (2002); Commonwealth v. Gamboa-Taylor, 562 Pa. 70, 753 A.2d 780 (2000); Commonwealth v. Pursell, supra; Commonwealth v. Beasley, 559 Pa. 604, 741 A.2d 1258 (1999); Commonwealth v. Fahy, 558 Pa. 313, 737 A.2d 214 (1999).
¶ 7 The instant case involves ineffective assistance of counsеl with respect to Appellant’s first, second, and third PCRA counsel, who did not perform their professional duty to file a direct appeal.1 However, there is no authority for the proposition that this type of failure to act is such that the filing requirement can be ignored.
¶ 8 Perhaps our Supreme Court will make a crucial distinction betwеen ineffective assistance of counsel and a wholesale dereliction of duty in the face of a defendant’s request for action, as is presented in this case, so that we may “relate back” subsequent petitions. However, in light of the Court’s unequivocal position that ineffective assistance under any guise does not fall within any exceptions, we are without jurisdiction to entertain this petition.
¶ 9 Clearly, this Court in Fairiror, supra, recognized the impact of Hall on “relation back” cases.
¶ 10 Whether Lantzy, Hall, and Eller are cases with which this Court agrees, we must abide by the Supreme Court’s dictates in this regard. Vindication of the constitutional right to direct review is not allowed outside the parameters of the PCRA. In this case, prior PCRA counsels’ dereliction of duty, as unconscionablе as it is, ultimately must be viewed in the context of ineffective assistance of counsel. Further, we do not have the authority to fashion an equitable remedy by relating back untimely petitions to timely petitions when counsel’s representation is deficient. Since the fifing requirements of
¶ 11 Our legislature and Supreme Court have spoken and have deprived us of jurisdiction to act, even in these compelling circumstances. We, as an intermediate appellate court, are without authority to ignore them. See Commonwealth v. Kirkner, 569 Pa. 499, 805 A.2d 514 (2002) (a lеgislative enactment may not be modified by judicial discretion, even when the judiciary has good intentions). However, this case presents the perfect opportunity for the Supreme Court to find that certain types of ineffective assistance of counsel shock the conscience of the court such that the defendаnt’s constitutional right to direct appeal must be vindicated. Until that
Notes
. I believe that these PCRA counsel, who engage in the wholesale abandonment of their client resulting in their client’s loss of important constitutional guarantees, should be sanctioned.