COMMONWEALTH of Pennsylvania, Appellee v. Donnetta HILL, Appellant.
Supreme Court of Pennsylvania.
Decided March 11, 2011.
Submitted Jan. 4, 2010.
16 A.3d 484
Accordingly, I would remand the case to the trial court for entry of an order overruling the Preliminary Objections, and for further proceedings consistent with this opinion.
Justice McCAFFERY joins this dissenting opinion.
Hugh J. Burns, Philadelphia District Attorney‘s Office, Amy Zapp, Harrisburg, for Commonwealth of Pennsylvania.
BEFORE: CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, ORIE MELVIN, JJ.
OPINION
Chief Justice CASTILLE.
Appellant Donnetta Hill appeals from the Order of the Court of Common Pleas of Philadelphia County, dismissing the guilt-phase claims in her petition brought under the Post
On April 6, 1992, a jury sitting before the Honorable Marvin R. Halbert of the Court of Common Pleas of Philadelphia County, convicted appellant of two counts of first-degree murder, possession of an instrument of crime, and robbery. The convictions arose from the murders of Nghia Quy Lu and Nairobi Dupont.2 The same jury returned a sentencing verdict of death on both murder charges, finding that the aggravating circumstances presented by the Commonwealth outweighed the mitigating circumstances proffered by the defense as to each. See
Represented by new counsel, Lynne Bennett-Hamlin, Esquire, appellant filed a direct appeal in this Court. On direct appeal, this Court unanimously affirmed appellant‘s convictions and judgments of sentence. Commonwealth v. Hill, 666 A.2d at 642.
On April 17, 1997, appellant filed a timely, counseled PCRA petition, raising 23 claims. The Commonwealth filed a motion to dismiss. On February 19, 1999, appellant filed a supplement to her PCRA petition, raising three additional claims. The Commonwealth supplemented its motion to dismiss on August 24, 1999. The case ultimately was reassigned to the Honorable Willis Berry, Jr. Both the Commonwealth and appellant requested and were granted continuances. On November 30, 2005, appellant filed a second supplement to her PCRA petition.
On December 9, 2005, with the PCRA court, the Commonwealth, and appellant in agreement, the PCRA court granted appellant penalty-phase relief, vacated her sentences of death, and ordered a new penalty hearing.
On March 21, 2006, the Commonwealth moved to dismiss appellant‘s supplemented PCRA petition. On April 17, 2006,
The PCRA court held evidentiary hearings on August 8 and 9, 2006. On August 14, 2006, the PCRA court issued an order, dismissing all of appellant‘s guilt-phase claims, stating that: appellant‘s collateral Batson claim was dismissed following a hearing; the balance of appellant‘s claims were meritless and dismissed without a hearing; and the court‘s determination to grant penalty-phase relief remained in full force and effect.
On September 6, 2006, appellant filed a notice of appeal with this Court from the PCRA court‘s August 14, 2006 order. Apparently, appellant also filed a “Jurisdictional Statement for Petitioner‘s Appeal of the Denial of a New Trial” (“Jurisdictional Statement“) on that same day.4 In her Jurisdictional Statement, appellant set forth, inter alia, 15 guilt-phase claims, subsumed within four broad questions for review. On February 2, 2007, the Commonwealth filed a “Response to Jurisdictional Statement and a Motion for Remand,” requesting that this Court reconsider its holding in Commonwealth v. Bryant, 780 A.2d at 646, and remand appellant‘s case to the trial court for an immediate resentencing proceeding. The Commonwealth‘s Motion for Remand was denied on May 11, 2007.
Meanwhile, on February 9, 2007, the PCRA court issued an order under
On January 9, 2009, appellant filed her Brief in this Court, providing argument on all but one of the 15 guilt-phase claims listed in her Jurisdictional Statement.5 On March 29, 2009, the Commonwealth filed a “Motion to Vacate Briefing Schedule, Strike Defendant‘s Brief, and Hold Counsel Per Se Ineffective for Failing to Comply with a Rule 1925(b) Order.” In that Motion, the Commonwealth also raised an issue concerning the Federal Defender‘s funding and participation in state court appeals. This Court denied the Commonwealth‘s Motion without prejudice to the Commonwealth raising such issues in its appellate brief. The Commonwealth thereafter filed its Brief for Appellee in this Court, again raising procedural issues arising from appellant‘s failure to comply with Rule 1925(b) and the Federal Defender‘s participation in state court appeals, and providing substantive responses to appellant‘s guilt-phase claims. Appellant filed her Reply Brief, challenging the Commonwealth‘s request that her counsel be
We first consider the threshold matter of appellant‘s failure to file a Rule 1925(b) statement, as ordered by the PCRA court.6 The Commonwealth asserts that this Court‘s decisions firmly establish that when an appellant is ordered to file a Rule 1925(b) statement, he or she must comply with Rule 1925(b)‘s requirement in order to preserve issues for appeal, and that any appellate issues not raised in a compliant Rule 1925(b) statement will be deemed waived. See, e.g., Commonwealth v. Lord, 553 Pa. 415, 719 A.2d 306, 309 (1998). The Commonwealth also points out that this Court has held that this principle applies in PCRA proceedings, see Commonwealth v. Butler, 571 Pa. 441, 812 A.2d 631, 633 (2002), as well as in capital cases. See Commonwealth v. Wholaver, 588 Pa. 218, 903 A.2d 1178 (2006). The Commonwealth asserts that appellant‘s failure to fulfill her Rule 1925(b) obligations led to the PCRA court‘s incomplete Rule 1925(a) opinion, and in turn, impedes this Court‘s meaningful review. Relying on Commonwealth v. Halley, 582 Pa. 164, 870 A.2d 795 (2005), the Commonwealth contends that appellant‘s counsel was per se ineffective for failing to file and serve a Rule 1925(b) statement, as ordered. See id. at 805 (“We hold that the failure to file a Rule 1925(b) statement on behalf of a criminal defendant . . . resulting in a waiver of all claims asserted on direct appeal, represents the sort of actual or constructive denial of assistance of counsel . . . in which prejudice is legally presumed.“). Based on this contention, the Commonwealth invokes the remand procedures currently found in Rule 1925(c), and asks this Court to remove appellant‘s counsel and remand this case for the appointment of new counsel, who should be directed to comply with the PCRA court‘s Rule 1925(b) order and enable the PCRA court to write an opinion that addresses all of appellant‘s issues.7
In addition, the Commonwealth alleges that serious questions concerning the proper use of federal tax dollars are raised by the fact that the Federal Defender is funded by the Administrative Office of Federal Courts, but routinely appears in state court appeals at a time when state and municipal services are being curtailed because of budget shortfalls in the economic recession. In this regard, the Commonwealth asks that this Court exercise its supervisory authority over the practice of law in Pennsylvania and require the Federal Defender to address these concerns before being permitted to proceed in any Pennsylvania appeal.
In response, appellant does not counter the Commonwealth‘s assertion that her failure to file a Rule 1925(b) statement as ordered results in a waiver of appellate issues under settled jurisprudence interpreting the Rule. Indeed, appellant remarkably does not discuss Lord and its progeny at all. Rather, appellant focuses on the Commonwealth‘s request that, because no Rule 1925(b) statement was filed, her federal counsel should be removed from continuing to represent her in state court. In the context of that rebuttal, appellant contends that counsel‘s removal is unwarranted because, even though counsel never filed a Rule 1925(b) statement as ordered, counsel‘s non-record conduct complied with instructions conveyed by the PCRA court‘s “chambers” in a series of ex parte contacts.8 More specifically, appellant asserts that (1)
More specifically, appellant represents that the following ex parte contacts transpired between Attorney Nolas and the PCRA court‘s chambers. At some unspecified point in time after appellant was granted additional time to file her Rule 1925(b) statement, the PCRA court‘s chambers contacted Nolas. Nolas responded that appellant had filed a Jurisdictional Statement setting forth the issues that appellant intended to raise on appeal.9 Sometime later, the PCRA court‘s chambers contacted Nolas again, informing him that the court “had received” the Jurisdictional Statement, and requesting that he forward a list of appellate issues. Nolas then forwarded a document entitled “PCRA Appellate Issues” to the court. In a subsequent telephone contact with Nolas, the PCRA court‘s
Appellant does not suggest that these ex parte contacts were ever made known to the Commonwealth; that counsel copied the Commonwealth with the “PCRA Appellate Issues” document; that counsel ever sought to make the “PCRA Appellate Issues” document part of the record; or that appellant ever sought to have the Rule 1925(b) order vacated. Appellant nevertheless claims that, through these ex parte contacts, the PCRA court recognized that her issues on appeal were those set forth in her Jurisdictional Statement. Appellant then claims that, to the extent the court did not address all of her issues and this Court‘s review function is impeded, a remand for the limited purpose of having the PCRA court supplement its opinion to resolve unaddressed claims should be ordered.10
Appellant argues, in the alternative, that even if her counsel could be found to have violated Rule 1925(b), such an error does not require removal of the Federal Defender. Appellant notes that counsel was not removed in Commonwealth v. West, 883 A.2d 654 (Pa.Super.2005). In that case, the Superior Court found merit in the claim raised by direct appeal counsel, the Defender Association of Philadelphia (“Defender Association“), that it had been per se ineffective for failing to file a Rule 1925(b) statement. Appellant notes that the court remanded for the filing of the statement, but left it to the trial court to determine whether to remove the Defender Association based upon counsel‘s ineffectiveness. Appellant also asserts that the Federal Defender is the counsel of her choice and its removal would be contrary to what she claims is a “right” to taxpayer-financed counsel of her choice. Appellant contends that the Federal Defender has protected her inter-
We begin with the prior version of Rule 1925(b), for that is controlling here. The Rule then provided, in relevant part:
Rule 1925. Opinion in Support of Order
(a) General rule. Upon receipt of the notice of appeal the judge who entered the order appealed from, if the reasons for the order do not already appear of record, shall forthwith file of record at least a brief statement, in the form of an opinion, of the reasons for the order, or for the rulings or other matters complained of, or shall specify in writing the place in the record where such reasons may be found.
(b) Direction to file statement of matters complained of. The lower court forthwith may enter an order directing the appellant to file of record in the lower court and serve on the trial judge a concise statement of the matters complained of on the appeal no later than 14 days after entry of such order. A failure to comply with such direction may be considered by the appellate court as a waiver of all objections to the order, ruling or other matter complained of.
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In several decisions, this Court has addressed the consequences of the appellant‘s failure to comply with the simple
Three years later, in Butler, a non-capital PCRA appeal involving a first-degree murder conviction, we reviewed and upheld the Superior Court‘s order dismissing the defendant‘s appellate issues as waived because of his failure to file a Rule 1925(b) statement, as ordered. We so held notwithstanding that the PCRA court had issued a Rule 1925(a) opinion addressing the claims the appellant had set forth in his PCRA petition. We reaffirmed that our decision in Lord “eliminated any discretion [in the lower courts] and established a bright-line rule for waiver under Rule 1925(b)[.]” 812 A.2d at 633.
Following Lord and Butler, and despite their respective holdings, it appeared that the trial and intermediate appellate courts continued to engage in merits review of issues raised in untimely or otherwise procedurally noncompliant Rule 1925(b) statements. See Gravely, 970 A.2d at 1141. Therefore, in Commonwealth v. Castillo, 585 Pa. 395, 888 A.2d 775 (2005), and its companion case, Commonwealth v. Schofield, 585 Pa. 389, 888 A.2d 771 (2005), we granted allocatur to reconsider our decisions in Lord and Butler as to whether the lower courts should have the discretion to review an issue that was not raised in a timely and properly filed Rule 1925(b) statement. Commonwealth v. Castillo, 580 Pa. 3, 858 A.2d 1156 (2004); Commonwealth v. Schofield, 580 Pa. 4, 858 A.2d 1157 (2004).
In Castillo, the appellant did not file his Rule 1925(b) statement within 14 days of the trial court‘s order, as Rule 1925(b) required, but filed it approximately 50 days thereafter. Nonetheless, the Superior Court did not deem the appellant‘s
Subsequently, in Wholaver, a capital direct appeal, the appellant failed to file a Rule 1925(b) statement as directed by the trial court. Observing that we had recently reaffirmed Lord‘s strict waiver rule in Castillo and Schofield, this Court rejected the appellant‘s argument that waiver should not apply, since all of his claims were addressed by the trial court in its Rule 1925(a) opinion or in other dispositive rulings. We
Finally, in Gravely, this Court considered whether the Superior Court correctly determined that a Rule 1925(b) statement, not filed on the day the trial court had ordered, but some six weeks later, was untimely, even though the appellant asked for and received an oral extension of time from the trial court within which to file his statement and confirmed the request by letters that were entered on the docket and made part of the certified record. We concluded that the Superior Court erred, in light of the appellant‘s efforts to preserve his appellate rights, the lack of clarity in the Rule itself as to the proper method of securing an extension of time for filing, and the record, which showed that the trial court and the appellant took steps to satisfy Rule 1925(b)‘s mandatory requirements. We stated:
Appellant moved swiftly to preserve his right to raise issues on appeal. His actions demonstrated the kind of “proactive” conduct this Court noted with approval in Castillo. Although Appellant‘s request for an extension was made orally (as was the trial court‘s grant of the extension), both the request and the grant were accomplished within [Rule
970 A.2d at 1144 (emphasis in original) (footnotes omitted).1925(b)‘s] 14-day time limit. Further, Appellant confirmed those facts in a letter, which he promptly filed with the court, also within the 14-day time limit. At the time of these events, the law was clear that appellants were required to file timely Statements, but there was no specific method set out in the Rule directing the manner in which an extension could be sought or should be granted. In fact, this Court had not yet handed down its decision in Castillo. Nonetheless, the record reflects that both Appellant and the trial court took steps to comply with Lord and its clear mandate that the terms of Rule 1925(b) were mandatory. Because the record establishes that Appellant acted promptly and proactively to preserve his rights on the record, and because the trial court approved counsel‘s actions and granted counsel‘s request for an extension of time, we cannot sustain the Superior Court‘s finding of waiver.
With these decisions and principles in mind, there can be no question that all of appellant‘s issues are waived due to her failure to file and serve a Rule 1925(b) statement, as ordered.12 For purposes of applying settled law under Rule 1925, we will assume the accuracy of appellant‘s extra-record representations of the ex parte contacts occurring after appellant had secured an extension of time to file the statement. These assertions neither negate nor excuse the failure to comply with the court‘s Rule 1925(b) order. In Gravely, a Rule 1925(b) statement was, in fact, filed, and there was record support for the asserted court approval of an oral request for an extension of time to file the Statement. Here, in contrast, no statement was ever filed and none of the ex parte contacts counsel describes, or their supposed effect, was memorialized on the record. Moreover, no action was requested, or taken, to vacate or negate the existing orders under Rule 1925. Neither the Rule 909 Jurisdictional Statement nor the non-record list of “PCRA Appellate Issues”
Our jurisprudence is clear and well-settled, and firmly establishes that: Rule 1925(b) sets out a simple bright-line rule, which obligates an appellant to file and serve a Rule 1925(b) statement, when so ordered; any issues not raised in a Rule 1925(b) statement will be deemed waived; the courts lack the authority to countenance deviations from the Rule‘s terms; the Rule‘s provisions are not subject to ad hoc exceptions or selective enforcement; appellants and their counsel are responsible for complying with the Rule‘s requirements; Rule 1925 violations may be raised by the appellate court sua sponte, and the Rule applies notwithstanding an appellee‘s request not to enforce it; and, if Rule 1925 is not clear as to what is required of an appellant, on-the-record actions taken by the appellant aimed at compliance may satisfy the Rule.13 We yet again repeat the principle first stated in Lord that must be applied here: “[I]n order to preserve their claims for appellate review, [a]ppellants must comply whenever the trial court orders them to file a Statement of Matters Complained of on Appeal pursuant to
The contrary disposition the Commonwealth seeks in these circumstances—the removal of appellant‘s counsel and the remand of this case for the appointment of new counsel and the filing of a Rule 1925(b) statement and a supplemental Rule 1925(a) opinion—simply cannot be granted under our settled jurisprudence. Notably, we rejected a similar request by the appellee to overlook a Rule 1925(b) failure in Wholaver;
Nor are we persuaded by the specific argument forwarded by the Commonwealth here. The Commonwealth‘s request is premised on the remand procedure added to Rule 1925 in 2007, specifically the procedure now set forth in subsection (c)(3) of the Rule, as amended. But, as noted, amended Rule 1925 does not apply in this appeal; it is the 1988 version of Rule 1925(b) that controls. The 1988 version of Rule 1925 does not include the remand procedure the Commonwealth cites. And, equally problematic is the fact that a retroactive application of amended Rule 1925—as the amendment is interpreted by the Commonwealth14—to the present case would effectively require us to overrule Lord and our repeated reaffirmation of the Rule‘s strict waiver provision in the line of cases deriving from Lord. We have not been asked to do so—by either party—and given this Court‘s repeated reaffirmation
Of course, the West case, which appellant cites in support of her claim that counsel should not be replaced, itself existed before Rule 1925 was amended, and indeed was the occasion for the 2007 amendment. But, West does not support remanding this PCRA appeal to allow for the filing of a proper Rule 1925(b) statement, whether by present counsel or new counsel.15 In West, the appellant, represented by the Defender
Turning to the ineffectiveness claim first, the Superior Court concluded that all of the appellant‘s appellate issues were waived under Lord due to counsel‘s failure to file a Rule 1925(b) statement; counsel‘s lapse was an actual or constructive denial of counsel, meaning, for purposes of ineffectiveness analysis, prejudice was to be presumed under Halley; and the ineffectiveness claim could and should be more efficiently addressed on direct appeal rather than be deferred to the collateral review stage under Commonwealth v. Grant, 572 Pa. 48, 813 A.2d 726, 738 & n. 14 (2002), merely to have the direct appeal reinstated nunc pro tunc. By way of relief, the Superior Court remanded the case to the trial court for the filing of a Rule 1925(b) statement and a supplemental Rule 1925(a) opinion, and left the decision of appointing new counsel to the trial court. West, 883 A.2d at 658.
The remand procedure that the West case established for Superior Court direct criminal appeals was aimed at devising
Neither West, nor the 2007 West-inspired amendment to Rule 1925 for that matter, supplanted this Court‘s Rule 1925(b) waiver jurisprudence. West adopted efficiencies in the direct appeal context, involving an issue frequently arising in Superior Court, and bottomed in existing, remedial caselaw. By contrast, this case is an appeal from an order denying collateral relief. The decisional law makes clear that Rule 1925 defaults by counsel on direct appeal may be litigated and remedied under the guise of ineffectiveness of counsel at the PCRA stage; West merely accelerates the remedy. But, there is, as yet, no decisional law holding that Rule 1925 defaults by counsel at the PCRA appeal stage are available, and remediable, via a serial PCRA petition. Thus, a West-type procedure here would not amount to an efficiency adopted in furtherance of judicial economy, premised upon decisional law making clear that the same remedy would eventually result on collateral attack. There is no obviously available future and collateral remedy that may properly and efficiently be advanced. Rather, adopting a West-type procedure on collateral appeals would amount to assuming that this Court would hold, in a case or cases presenting the issues, that (1) this sort of default is cognizable under the PCRA‘s serial petition and time-bar restrictions; and (2) that holding, should it materialize, warrants adopting an efficiency on a first PCRA appeal that would eliminate the necessity to proceed via a
For the foregoing reasons, we affirm the order of the PCRA court, dismissing the guilt-phase claims in appellant‘s PCRA petition, but on different grounds. We affirm the order of the PCRA court based on waiver under Rule 1925(b).18
Justices EAKIN, BAER, McCAFFERY, and ORIE MELVIN join the opinion.
Justice SAYLOR files a dissenting opinion in which Justice TODD joins.
Justice SAYLOR, dissenting.
I supported the rule of substantial compliance advanced in the lead opinion in Berg v. Nationwide Mutual Insurance Co., 607 Pa. 341, 6 A.3d 1002 (2010) (opinion announcing the
I find the decision in Commonwealth v. Wholaver to be distinguishable, since, as the Court highlighted there, reinstatement of direct-appeal rights was available to remedy derelictions of counsel. See id. at 228-29, 903 A.2d at 1184-85.19 As the majority suggests, reinstatement of claims no longer appears to be available, however, in the post-conviction setting. See Commonwealth v. Pitts, 603 Pa. 1, 9-10 n. 4, 981 A.2d 875, 880 n. 4 (2009).
I fully appreciate the majority‘s concerns with ex parte contacts and tactical behavior on the part of litigants, as well as with consistency in the administration of justice. Nevertheless, particularly given that the Court now strongly discourages the presentation of constitutional claims of deficient stewardship at the direct-appeal stage, see Commonwealth v. Grant, it is my position that the availability of one round of post-conviction review should not be impaired by rules of literal compliance. Thus, at least in light of the ongoing developments in this area—including the apparent curtailment of an enforcement mechanism to assure the evenhanded enforcement of a capital post-conviction petitioner‘s rule-based right to assistance of counsel and the concomitant requirement of effective stewardship—I am
Justice TODD joins this dissenting opinion.
Notes
Rule 1925. Opinion in Support of Order
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(c) Remand.
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(3) If an appellant in a criminal case was ordered to file a Statement and failed to do so, such that the appellate court is convinced that counsel has been per se ineffective, the appellate court shall remand for the filing of a Statement nunc pro tunc and for the preparation and filing of an opinion by the judge.
Paragraph (c)(3) This paragraph allows an appellate court to remand in criminal cases only when the appellant has completely failed to respond to an order to file a Statement. It is thus narrower than (c)(2), above. Prior to these amendments of this rule, the appeal was quashed if no timely Statement was filed or served; however, because the failure to file and serve a timely Statement is a failure to perfect the appeal, it is presumptively prejudicial and “clear” ineffectiveness. See, e.g., Commonwealth v. Halley, 582 Pa. 164, 172, 870 A.2d 795, 801 (2005); Commonwealth v. West, 883 A.2d 654, 657 (Pa.Super.2005). Direct appeal rights have typically been restored through a post-conviction relief process, but when the ineffectiveness is apparent and per se, the court in West recognized that the more effective way to resolve such per se ineffectiveness is to remand for the filing of a Statement and opinion. See West, 883 A.2d at 657. The procedure set forth in West is codified in paragraph (c)(3). As the West court recognized, this rationale does not apply when waiver occurs due to the improper filing of a Statement. In such circumstances, relief may occur only through the post-conviction relief process and only upon demonstration by the appellant that, but for the deficiency of counsel, it was reasonably probable that the appeal would have been successful. An appellant must be able to identify per se ineffectiveness to secure a remand under this section, and any appellant who is able to demonstrate per se ineffectiveness is entitled to a remand. Accordingly, this paragraph does not raise the concerns addressed in Johnson v. Mississippi, 486 U.S. 578, 588-89, 108 S.Ct. 1981, 100 L.Ed.2d 575 (1988) (observing that where a rule has not been consistently or regularly applied, it is not—under federal law—an adequate and independent state ground for affirming petitioner‘s conviction.)