Commonwealth v. Fareri

Pennsylvania COMMONWEALTH of FARERI, Appellant. Peter A.

Superior Pennsylvania. Court of March 1979.

Submitted 19, 1979. Filed Oct. Reargument Denied March En Banc 1980. Pollack, David L. for Philadelphia, appellant. Henson,

Eric B. Assistant District Attorney, Philadelphia, Commonwealth, appellee. for CERCONE, Judge,

Before President and WATKINS and HOFFMAN, JJ.

HOFFMAN, Judge: contends that his counsel Appellant was ineffective for (1) appealing judgment not his sentence for and burglary tools and possession burglary subsequent order a sentence of total confine- revoking probation imposing and, ment. We agree accordingly, denying reverse the order (PCHA)1 relief under the Post Conviction Act Hearing file appellant pro allow his nunc tunc. was August appellant burgla On convicted of ry possession burglary tools. The lower court denied motions and sentenced him six post-trial months to two and five years imprisonment years probation. No direct was taken. the lower court February On appellant’s probation revoked and sentenced him to two to five No direct years imprisonment. appeal was filed. On 19,1977, May appellant petition,2 alleging filed a PCHA the Defender Association of which Philadelphia, represented him throughout stages all of his and burglary possession trial probation and his revocation was ineffective hearing, 26, 1978, for not perfecting appeals. April On at the on his hearing petition, appellant PCHA testified that fol both lowing his 1972 conviction and sentence and his 1977 sentence, revocation of and he probation public asked the defender who was him to file representing appeals. of his the support testimony concerning appeal, second ap pellant from the produced correspondence Defender Associa 10, 1977, tion. In a letter to dated the appellant February chief of the division of the Defender Association stated that his office would not file an because such appeal 1580, seq., 1. Act of Jan. P.L. 1 et 19 P.S. 1180-1 § § seq. (Supp. 1978-79). et petition originally by appellant pro 2. The PCHA was filed se. Subse- quently, present appointed, counsel was and he filed an amended petition. appellant represented Because was for the first time proceeding, preserved new counsel at this PCHA he has his claim. Hubbard, 259, n.6, See Commonwealth v. 472 Pa. 276-77 372 A.2d 687, (1977) (“ineffectiveness prior 695 n.6 of be counsel must raised stage proceedings as an issue at the in earliest at which the being challenged longer represents counsel whose effectiveness is no defendant”). He further informed not be successful. would appeal clearly file an and right appeal absolute to that he had an appellant counsel, forms which and enclosed representation to the an appeal. and file to complete could appellant wrote back to the Defender that he Appellant testified know what to do with he did not Association, stating that further testified that the chief papers. Appellant the appeal 1977, in letter dated March appeals replied, The was to him. filing appeal up an appellant inform court no evidence. The lower presented relief, followed. appeal denied and this constitutional right

An defendant has a indigent counsel to prosecute the assistance of in to such assistance the task right right includes the rel. ex appeal. an taking perfecting (1966); 422 Pa. 220 A.2d Com Myers, Newsome Myers, monwealth ex rel. Robinson (1966); Haynes, Pa.Super. Peake, 340 A.2d 462 Commonwealth v. (1967). The to the assistance of right right

counsel on “embodies more than the to the appeal cases’; it assistance of counsel ‘meritorious embodies desires, on if the defendant so right representation to the court prospects may appear whatever the of success Newsome v. Myers, or counsel.” Commonwealth ex rel. An indigent 422 Pa. at 220 A.2d at 888. defend supra, waive his to the assistance of counsel for the right ant can “if that waiver consti taking of an perfection or abandonment of a relinquishment tutes ‘an intentional ” Wilson, 1, 3, v. 430 Pa. 241 right.’ known Commonwealth ex rel. v. (1968) (quoting Light A.2d 762 Cavell, 422 Pa. Common 157,160, wealth ex rel. v. Cunningham Maroney, the burden of (1966)). A.2d The Commonwealth has these rights by preponderance a waiver of demonstrating Wilson, supra. of the evidence. Commonwealth Peake, the testified supra, appellant In Commonwealth counsel, defender, to take' urged voluntary that he his trial an and trial counsel testified that he appeal, told appellant that grounds there were no for an and appeal that appellant should prison contact the social worker to obtain the neces- forms wanted to This sary appeal. if he Court held that there be a could not of waiver the finding light of “[i]n his appeal that abandoned of a possibility because misimpression fostered his counsel.” trial at at 909. case, the instant he appellant’s testimony that his trial counsel to

requested appeal file an after the 1972 conviction and sentence was uncontradicted. Because Commonwealth introduced no to evidence show that appel right lant waived his to and to the appeal assistance counsel, it did not meet its burden that demonstrating “ to was appellant’s appeal failure ‘an intentional relinquish ” ment or of a right.’ abandonment known Wilson, hold that is supra. Accordingly, appellant we entitled to an nunc appeal pro tunc.

Concerning to or appellant’s failure the 1977 sentence, der revoking probation imposing his the record (1) clearly appellant reveals that asked counsel to appeal, but the Defender Association refused file an appeal, believing the case lacked merit. Because was appellant entitled to the assistance of counsel assist in the perfect ing of an he did not right waive his when he did not file the forms the Defender Association sent him. There is no evidence to the lower court’s support finding that met its of demonstrating burden Thus, waived his appellant appeal rights. on remand appellant allowed to file must be thirty days nunc tunc from both the 1972 pro judgment sentence revoking the 1977 order probation imposing sentence. Reversed and remanded.

CERCONE, President files a Judge, dissenting opinion. CERCONE, Judge, President dissenting: The question presented is whether at a PCHA1 hearing petitioner’s trial and revocation counsel could be found inef- fective in failing to direct appeals from both peti- tioner’s judgment initial of sentence and a subsequent order entered after a revocation hearing, revoking probation and imposing judgment of sentence on petitioner’s con- original viction. The Majority, without explanation or justification, proclaims that both trial and revocation counsel were inef- fective for to file failing direct appeals, and accordingly, grants petitioner the right to file his direct appeals nunc pro tunc. The however, Majority, errs when it reasons “[bjecause the Commonwealth introduced no evidence to show that appellant waived right appeal and to the counsel,” assistance of that prior counsel were necessarily ineffective in failing perfect direct appeals despite peti- tioner’s apparent requests that they do so. To the contrary, applying the settled standard for determining whether an accused has been denied the effective assistance of counsel compels us to conclude that petitioner’s present collateral fail; attack on his conviction must petitioner’s PCHA coun- sel has not failed only to show that any claims which petitioner may have raised on direct appeal were of “argua- merit,” ble but also has failed to even indicate in what respects trial and revocation counsels’decisions not to appeal lacked a reasonable basis.

I. Ineffective Assistance of Counsel In evaluating petitioner’s contention that both of his coun- sel were ineffective for failing perfect direct appeals after being so, requested to do Majority departs fundamental respects from the test set forth in Common- wealth ex rel. Washington v. Maroney, and its progeny: Act, Hearing 1. Post Conviction seq. (Supp. 19 P.S. 1180-1 et §§ 1978-1979) Act], or [Hereinafter: PCHA is effective constitutionally deemed assistance “[CJounsel’s course particular conclude are able to once we basis designed some reasonable counsel had by chosen interests.” his client’s effectuate however, be held inef- standard, counsel cannot Under this for fruitless claim or to assert a failing for either fective cases, as, counsel in such appeal, a baseless failing any potential which offers an alternative foregone has not 259, Hubbard, 472 Pa. v. E. g., success. Commonwealth for Nole, 461 v. 687, (1977); Commonwealth 278, 696 372 Harrison, v. 314, (1975); A.2d 302 Commonwealth 336 Pa. when the 42, (1974). only It is 323 A.2d 848 228 Pa.Super. ” we merit that waived) “arguable claim has (or abandoned into counsel’s basis for further inquiry undertake the must Weathers, EL, 485 v. E. Commonwealth g., it. pursuing not Sherard, 483 v. (1979); Commonwealth 28, 400 A.2d 1295 Pa. v. 971, (1978); 976 183, 192, 394 A.2d Pa. (1978); 714 Common- Blackwell, Pa.Super. 258 (1974). Harrison, 42, 323 A.2d 848 228 Pa.Super. wealth v. instructed counsel neither PCHA petitioner’s In this regard, or issues of of the issue court nor this Court the PCHA revocation counsel could which trial and merit” “arguable which they on the direct pursued and should have counsel does not Indeed, PCHA petitioner’s perfect. did not was counsel not to of prior that the advice argue Rath- in any particular. or ineffective incorrect, misleading, also, reason Majority er, apparently petitioner, appeal per petitioner’s requests to heed counsel’s refusal rea- did not have a that counsel’s conduct se demonstrates interests petitioner’s to effectuate designed basis sonable test, v. Washington Maroney of the the first prong under a deni- between relationship examination of the Our supra. under and the relief available rights”2 “Douglas al of both this Court recent cases decided PCHA, as well as a conclu- Court, however, forecloses such and our Supreme sion. California, L.Ed.2d 811 Douglas 83 S.Ct. 372 U.S.

2. (1963). (a) “Waiver” & “Douglas Rights” At the threshold of most PCHA proceedings which an accused alleges deprivation of “Douglas Rights” there necessarily appears determination whether the accused’s failure to take a direct constitutes a waiver under 1180-3(d)3 and 1180-4(b)4 of the Act of any claims Section See, he have may presented appeal. on that Holmes, (1976); A.2d 259 Blackwell, Com- A.2d 714 Peake, monwealth v. 210 Pa.Super. all resolving question, courts Pennsylvania appellate

are uniform in holding that an issue is not raised on “[i]f it is presumptively treated as waived unless show can that extraordinary circumstances justified his failure to raise it previously.”5 P.S. 1180-4(c); Blackwell, Pa.Super. 123, 258 at 392 § A.2d at 715; Commonwealth v. Valezquez, 327, 330, 244 Pa.Super. also, Holmes, See 745, (1976). 368 A.2d 746 415, 468 Pa. at 364 A.2d at 262.6 clear is the further Equally proposition 1180-3(d) provides: 3. Section of the Act act, eligible person “To be for relief under this must initiate a proceeding by filing petition prove under section 5 and must following: resulting . That the error in his conviction and sentence finally litigated has not been or waived.” 4(b) provides: 4. Section of the Act 1180— act, purpose “For the of this an issue is waived if: (1) petitioner knowingly understandingly The failed to raise it trial, trial, and it could have been raised before the at the on corpus proceeding any proceeding in a habeas or other conducted, actually prior proceeding actually or in a initiated under act; this petitioner prove extraordinary The is unable to the existence of justify circumstances to his failure to raise the issue.” presumed 5. A waiver is not where did not have counsel at Blackwell, allegedly g., the time the waiver occurred. E. 258 Pa.Su- n.3, n.3; per. Haynes, at 124 392 A.2d at 715 v. Commonwealth 234 556, 561, 462, Pa.Super. (1975) (quoting approval 464 with Mumford, from Commonwealth v. 430 Pa. general principle A6. refinement of this is the rule that in the absence extraordinary circumstances all claims of ineffective assistance of 182 to file a direct rise to appeal may

that counsel’s failure counsel, such that an “ex- ineffective assistance of level of within the of section meaning circumstance” traordinary Act is where counsel’s ineffec- 1180-4(b)(2) present of the in of a petitioner’s appeal has resulted a denial tiveness Holmes, v. rights. E. Commonwealth g., Blackwell, v. 258 (1976); A.2d 263 Commonwealth 364 Va- (1978); A.2d 714 Commonwealth v. (1976); 327, 368 244 Pa.Super. lezquez, A.2d 607 Green, Pa.Super 462,345 Pa. Tunnell, 463 (1975). Compare, 409,341 A. Fiero, Pa. A.2d 611 pro- present in the argument (1975).7 pursuing 2d however, alleging counsel bore the burden of PCHA ceeding, both prior a determination that support facts which would failing were erroneous counsel’s actions how counsel failed to show Instantly, since PCHA appeals.8 could, should, merit” or have been “arguable claims of any which were not we appeals perfected, on the direct pursued have not “extraordinary would hold that circumstances” shown. been

II Proceedings Douglas Rights PCHA claims the above rules and principles, any As a result of have been on the direct cognizable which would thwarted, only capable which counsel’s actions are now not raised, have raised by but should been PCHA being Dancer, v. 460 trial must also be so raised. Commonwealth counsel also, 95, 100-01, 435, (1975). See Commonwealth Pa. 331 A.2d 438 259, n.6, 687, Hubbard, (1977). A.2d 695 n.6 v. 472 Pa. 276-77 372 Therefore, only an “extraor- not is ineffective assistance of counsel 7. relief, prevent dinary which will a waiver of PCHA circumstance” 409, Holmes, (1976); v. 468 Pa. 364 A.2d 259 see Commonwealth also, Musser, 85, (1975), A.2d 354 but 463 Pa. 343 Rights precludes finding Douglas waiver under 4 of § a denial n.7, Holmes, generally. g., at 263 E. 468 Pa. at 417 364 A.2d the Act n.7; 409, Fiero, (1975). Pa. 341 A.2d 448 462 1180-3; Sherard, 183, 189, See, 483 Pa. 8. 19 P.S. § 971, (1978). A.2d 975 counsel if is to succeed in his present collateral attack. To the extent that petitioner’s desire to take a appeal action, direct was dashed his counsel’s this alone is Musser, not E. prejudicial. g., Commonwealth v. 437 Pa. 678, (1970) also, 262 A.2d (per curiam); see 291, Commonwealth v. 462 Pa. Hayes, 341 A.2d 85 Walker, Commonwealth v. 460 Pa. (1975). reason; This is so for a simple namely, since ineffective assistance of counsel is the claim that only petitioner’s raises, PCHA counsel now and would have presumably raised on the direct which appeals trial and revocation frustrated, counsel all such claims of ineffectiveness cogniza- ble on that direct are in capable being raised the instant PCHA proceeding. in the absence of Similarly, any by present contention counsel that trial and/or revocation counsel’s action in not appealing was incorrect or misleading, it were, can not be held that they strictly speaking, per se ineffective. the appeals On which the would Majority grant petitioner,9 would not petitioner in order to prevail have to avail himself of either one of two (1) contentions — the lower court committed some reversible error in or; or convicting sentencing him that trial and/or revo- cation counsel’s actions were constitutionally deficient omitting pursue some course of action at trial.10 In either present however, posture, In cases of the 9. where a PCHA court has erroneously waiver, proper procedural disposition by found a the grant petitioner is pro court Majority not to a direct nunc tunc as the particular, proper procedure does. the would be to remand to the PCHA court for a determination of the ineffective then, argument assistance of issues on necessary counsel underlying if Valezquez, their merits. See Commonwealth v. 244 Pa.Su- 327, 328-29, per. As we observed in Valezquez, Majority’s procedural disposition to endorse the “would sanctioning wholly unnecessary confusing be considering appeal. addressed method for , previous issues which were not raised . on a this, satisfactorily In cases such as be issues can simply by employing procedure the well-established under the PCHA.” Id. Furthermore, judgment, accept Majority’s a most were we to 10. appeals might appellant his direct befall on unfortunate circumstance might pro be inconsistent with the rationale of tunc. It not nunc Hubbard, Dancer, 472 Pa. A.2d appellant’s pro require on nunc tunc the court which reached the

case, by the ultimate conclusion would be be the regards prior of this court would same as Majority i. e., in the former case counsel representation,. counsel’s to advising petitioner in not take a would be ineffective latter case counsel’s error would appeal direct and in the a compounded perfect be his failure to direct merely by above, we are as to how In view the at a loss the appeal. of reasons trial and revocation counsel can be that Majority any even PCHA fails to raise though ineffective counsel claim which would have if required a reversal raised on e., i. trial direct that and/or revocation counsel were appeal, in a in order to failing perfect appeal ineffective to merit.” raise issues of “arguable sum, In cannot sustain the conclu- Majority’s record were ineffective. Peti- petitioner sion that both counsel for to tioner’s counsel have not been shown either have prior reversal, would have a or any required issues which ignored or have failed to action advice which any give any to take extent, the legal preparation. a lack of To demonstrated therefore, Majority petitioner’s that the concludes both ineffective, they pursue counsel were a course which is prior not in by precedent11 required recent the unsupported aspects hold that PCHA tiveness of trial and revocation counsel’s failure to raise all of the ineffec- counsel’s representation in the PCHA proceeding of all omitted. amounted to a waiver those so Majority rejected per approach se silentio 11. The of the was sub Holmes, two recent cases. In Commonwealth argued, it does in the the Commonwealth as instant A2d proceeding, petitioner right an that had waived his to raise issue on appeal. collateral attack testimony of his failure to file a direct The because petitioner specifically that had re record established quested appeal, against, had an but that counsel advised and did not determining perfect The as instructed. court in petitioner’s attorney question was ineffective waiver reasoned petitioner’s he or not because failed to heed the instructions because waived, sought the issue was not but rather because his to be raised perfect as his to a direct advice not as well failure Ingram, holding in was erroneous of the 77 view event, any Pa. the Court neither finding waiver into a conclusion of ineffective transmuted of no apply different assistance counsel nor did it articulate or test of appeal. ineffectiveness to failure of counsel a direct The g., decisions are to the same effect. E. Common- recent of this court or fairness orderly procedure interest of and his counsel. Raab, wife, Appellants, T. RAAB and Constance

James O’Keefe, KEYSTONE INSURANCE COMPANY and Ed Individually employee supervisor and as and claims for

Keystone Company. Insurance Superior Pennsylvania. Court of

Argued March 1979.

Filed Oct. 1979.

Reargument Denied Jan. 1980. Blackwell, wealth v. 715-16 States, Compare Rodriquez v. United (1978). 395 U.S. 89 S.Ct. 23 L.Ed.2d 340

Case Details

Case Name: Commonwealth v. Fareri

Court Name: Superior Court of Pennsylvania

Date Published: Oct 19, 1979

Citation: 412 A.2d 632

Docket Number: 2327

Court Abbreviation: Pa. Super. Ct.