COMMONWEALTH of Pennsylvania, Appellee, v. Ronale A. HITCHCOCK, Appellant.
Superior Court of Pennsylvania.
Argued Feb. 7, 2000. Filed March 23, 2000.
749 A.2d 935
Ronale A. Hitchcock, Pro Se, appellant.
Before McEWEN, President Judge, and CAVANAUGH, DEL SOLE, KELLY, POPOVICH, HUDOCK, EAKIN, JOYCE and STEVENS, JJ.
JOYCE, J.:
¶1 This is a pro se appeal from the order of the trial court which denied the petition for permission to appeal nunc pro tunc filed by Appellant, Ronale Hitchcock. For the reasons set forth below, we reverse and remand for further proceedings. Before addressing the merits of Appellant‘s claims, we will recount the relevant facts giving rise to this appeal.
¶2 During the early morning hours of October 29, 1996, Appellant entered a bar in the City of Harrisburg and began firing a .45 caliber semi-automatic weapon at four of the patrons. The barmaid, Nikia Wallace, recognized Appellant and notified the police. As a result, Appellant was arrested and charged with various offenses arising out of this incident.
¶3 Following a jury trial in October of 1998, Appellant was convicted of aggravated assault1 as well as recklessly endangering another person (REAP).2 After the jury rendered its verdict, the trial court adjudged Appellant guilty of violating an ordinance prohibiting the discharge of weapons within the city limits.3 The Commonwealth thereafter notified Appellant of its intent to seek a mandatory minimum sentence. On November 26, 1997, the trial court sentenced Appellant to an aggregate period of six (6) to twelve (12) years’ imprisonment.4
¶4 Appellant asked trial counsel, John Shugars, Esquire,5 to file a direct appeal. See N.T. Sentencing, 11/26/97, at 10 (in which trial counsel acknowledged on the record that Appellant wished to appeal his sentence and convictions). Notwithstanding Appellant‘s request, trial counsel refused and advised Appellant that he could proceed pro se or with private counsel.6 See Petition for Permission to File Post-Trial Motions Nunc Pro Tunc and Motion to Direct Appeal Nunc Pro Tunc, filed 11/24/98, Exhibit B (Letter of December 16, 1997 from Attorney Shugars to Appellant) (hereinafter Shugars’ Letter). For reasons which do not appear of record, Appellant took no action until November 24, 1998, at which time he complied with existing caselaw and filed a pro se petition seeking permission to file post-sentencing motions and a direct appeal nunc pro tunc. The trial court summarily denied Appellant‘s petition.7 Appellant timely appealed.
¶5 Although originally assigned to a panel for disposition, this Court sua sponte referred the case for en banc review. This
¶6 An abuse of discretion standard governs our review of the propriety of a grant or denial of an appeal nunc pro tunc. Commonwealth v. Stock, 545 Pa. 13, 16, 679 A.2d 760, 762 (1996). As a general rule, an appeal nunc pro tunc is only granted in civil cases where there was fraud or a breakdown in the court‘s operations. Id., 545 Pa. at 18, 679 A.2d at 763. However, in criminal cases, where counsel‘s conduct has adversely affected the right to appeal, the courts have granted an appeal nunc pro tunc on the basis that the defendant‘s right to appeal has been denied. Id. “Reading the civil cases and criminal cases together, the principle emerges that an appeal nunc pro tunc is intended as a remedy to vindicate the right to appeal where that right has been lost due to certain extraordinary circumstances.” Id., 545 Pa. at 19, 679 A.2d at 764 (italicization added). Accord Commonwealth v. Peterkin, 554 Pa. 547, 558 n. 7, 722 A.2d 638, 643 n. 7 (1998). We will review Appellant‘s claims with these considerations in mind.
¶7 The decisional authority in effect at the time Appellant‘s petition was filed provided that a defendant who had been deprived of the right to a direct appeal through the ineffectiveness of counsel was afforded no relief under the Post Conviction Relief Act (PCRA),
¶8 During the pendency of this appeal, the Supreme Court reversed our determination in Lantzy. Commonwealth v. Lantzy, 558 Pa. 214, 736 A.2d 564 (1999). In reaching this result, the Supreme Court specifically rejected our approval of a framework for obtaining redress outside of the PCRA and held that the PCRA provides the exclusive remedy for post-conviction claims seeking restoration of appellate rights due to counsel‘s failure to perfect a direct appeal. Lantzy, 558 Pa. at 222-25, 736 A.2d at 569-570. We must accordingly determine whether our Supreme Court‘s decision in Lantzy retroactively applies in this instance because Appellant did not file a PCRA petition, but instead sought reinstatement of his appellate rights via the procedure outlined by this Court in Hall, Lantzy and Petroski, supra.
¶9 With respect to the retroactive application of caselaw, the general rule is that “where an appellate decision overrules prior law and announces a new principle, unless the decision specifically declares the rule to be prospective only, the
The Constitution neither prohibits nor requires retrospective effect for decisions expounding new constitutional rules affecting criminal trials. . . . The criteria guiding resolution of the question implicate[:] (a) the purpose to be served by the new standards[;] (b) the extent of the reliance . . . on the old standards[;] and (c) the effect on the administration of justice.
The purpose to be served by the new rule should receive primary consideration. Where the major purpose of new constitutional doctrine is to overcome an aspect of the criminal trial that impairs its truth-finding function and so raises serious questions about the accuracy of guilty verdicts in past trials, the new rule has been given complete retroactive effect. Conversely, the same standard strongly supports prospectivity for a decision amplifying the evidentiary exclusionary rule, the primary purpose of which is to deter unlawful police conduct. Commonwealth v. Miller, 490 Pa. 457, 472-473, 417 A.2d 128, 136 (1980), cert. denied, 449 U.S. 1113, 101 S.Ct. 924, 66 L.Ed.2d 842 (1981) (citations and quotation marks omitted). Accord Blackwell, 527 Pa. at 183, 589 A.2d at 1099; Tizer, 684 A.2d at 602.
¶10 The Supreme Court‘s decision in Lantzy overruled prior caselaw and announced a new principle of law. Moreover, the Supreme Court did not indicate that its decision was to be given purely prospective effect; rather, the defendant in Lantzy was given the benefit of the Supreme Court‘s holding. We further note that Appellant preserved his claim, both in the trial court and on appeal.
¶11 With respect to the purpose of Lantzy, the rule obviously does not implicate the truth-determining function or otherwise cast doubt upon the reliability of
¶12 As previously noted, Appellant chose to file a petition for permission seeking reinstatement of his right to appeal nunc pro tunc rather than file a futile post-conviction petition that would have been dismissed pursuant to this Court‘s decisions in Hall, Lantzy and Petroski. Appellant specifically cited to these cases as well as Stock in his appellate brief and in the memorandum of law filed in support of his petition. Appellant‘s Brief at 10-11; Petition for Permission to File Post-Trial Motions Nunc Pro Tunc and Motion to Direct Appeal Nunc Pro Tunc, filed 11/24/98, at 2. It thus appears that he relied on the existing caselaw.
¶13 Insofar as the effect on the administration of justice is concerned, we note that sweeping retrospective application would only concern a limited number of individuals who followed this Court‘s rulings in Hall, Lantzy and Petroski. While the total of affected defendants may be slight in comparison to the volume of criminal cases pending in the courts, retroactive application may leave such persons wholly without a remedy as their ability to obtain PCRA relief may be precluded by the time constraints in
¶14 If we were to retrospectively apply the Supreme Court‘s ruling in Lantzy here, Appellant‘s sole means of obtaining reinstatement of his direct appeal rights would be to file a petition under the PCRA. Lantzy, 558 Pa. at 221, 736 A.2d at 569. Unfortunately for Appellant, any such petition would be subject to the time limitation set forth in
¶15 Such a result is unjust. It would serve to unfairly penalize Appellant for adhering to a procedure for obtaining redress that was specifically approved by this Court. Where, as here, a defendant has been misled by the actions of the appellate court, our Supreme Court has not hesitated to grant relief in the interests of justice. See, e.g., Commonwealth v. Tyson, 535 Pa. 391, 394-395, 635 A.2d 623, 624-625 (1993) (granting relief in the form of a new trial where the defendant was misled by the Supreme Court‘s own decision); Commonwealth v. Powell, 527 Pa. 288, 292-294, 590 A.2d 1240, 1242-1243 (1991) (discussing the inherent right of the courts to grant relief in the interest of justice whenever it is so required).
¶16 Viewed in this manner, we find that the trial court abused its discretion by summarily denying Appellant‘s petition. The record unequivocally demonstrates that Appellant asked Attorney Shugars to file a direct appeal. N.T. Sentencing, 11/26/97, at 10; Shugars’ Letter, supra. Notwithstanding his awareness of Appellant‘s desires, Attorney Shugars advised that he would not file an appeal and that Appellant could proceed pro se or with
¶17 Trial counsel certainly was not obligated to pursue frivolous claims on appeal. Lantzy, 558 Pa. at 227 n. 8, 736 A.2d at 572 n. 8. Nevertheless, he was not permitted to unilaterally withdraw. If counsel believed Appellant‘s claims to be wholly frivolous, he was obligated to adhere to the procedures set forth in Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967) and Commonwealth v. McClendon, 495 Pa. 467, 434 A.2d 1185 (1981). Lantzy, 558 Pa. at 227 n. 8, 736 A.2d at 572 n. 8. As recognized by our Supreme Court, where there is an unjustified failure to file a requested direct appeal, the conduct of counsel falls beneath the range of competence demanded of attorneys in criminal cases and denies the accused the right to the assistance of counsel as guaranteed by the United States and Pennsylvania Constitutions. Id., 558 Pa. at 227, 736 A.2d at 572.
¶18 Because it is apparent from the face of the record that trial counsel unjustifiedly failed to file a requested direct appeal and because Appellant relied upon the procedure for obtaining redress outlined by this Court in Lantzy, the interests of justice require the reinstatement of Appellant‘s right to a direct appeal. Tyson and Powell, supra. As the trial court summarily denied Appellant‘s petition, we are compelled to reverse and remand. Upon remand, we direct the trial court to enter an appropriate order reinstating Appellant‘s right to a direct appeal nunc pro tunc. Lantzy, 558 Pa. at 227-28, 736 A.2d at 572-73. In addition, as it appears that Appellant is indigent, the trial court shall appoint counsel to represent Appellant.
¶19 Order reversed. Remanded for further proceedings. Jurisdiction relinquished.
¶20 STEVENS, J. files Dissenting Opinion.
STEVENS, J., dissenting.
¶1 I respectfully dissent as I disagree with the Majority‘s conclusion that Commonwealth v. Lantzy, 558 Pa. 214, 736 A.2d 564 (1999), does not apply retroactively.
¶2 As the Majority indicates, the Pennsylvania Supreme Court has held that:
[W]here an appellate decision overrules prior law and announces a new principle, unless the decision specifically declares the rule to be prospective only, the new rule is to be applied retroactively to cases where the issue in question is properly preserved at all stages of adjudication up to and including any direct appeal.
Commonwealth v. Cabeza, 503 Pa. 228, 233, 469 A.2d 146, 148 (1983). The purpose behind the aforementioned holding is that “[e]venhanded decision making requires that similarly situated individuals on direct appeal be treated the same.” Id. at 232, 469 A.2d at 148.
¶3 In the case sub judice, as in Commonwealth v. Lantzy, 558 Pa. 214, 736 A.2d 564 (1999), the question on appeal is whether the Post-Conviction Relief Act (PCRA),
¶4 Since there is no meaningful distinction which can be drawn between the facts in the case sub judice and the facts in Lantzy, the same law should be applied. Moreover, considering the similarity between this case and Lantzy, I find that this case may well have been the case which set aside prior law if Lantzy had not been decided while this particular case was pending. As such, I find that the law enunciated in Lantzy should be applied to the within case.