*2 LALLY-GREEN, Before TODD and BROSKY, JJ.
BROSKY, J.
from an order
This is
6, 1999, dismissing
entered on October
hearing Appellant’s
peti-
second
Act,
Post
Relief
tion under the
Conviction
§§
9541-9546. The
presents
question
Appel-
of whether
lant’s
counsel rendered ineffective
failing
assistance of counsel
Appellant’s
direct
behalf. The
issue,
by Appellant,
as raised
is:
failing
court below erred in
Whether the
to file a
grant Appellant
leave
pro
appeal nunc
tunc or hold
eviden-
Ap-
tiary
determine whether
pellant
requested
at 4.
Appellant’s Brief
¶2 On the basis of Commonwealth v.
Hernandez,
(Pa.Super.2000),
¶ 4 Subsequently, the Public Defender’s
se PCHA
was denied without a
Office
filed a notice of
with this
*3
24,1989.
hearing August
on
Court. No
Statement
Matters Com-
plained
filed,
Appeal
of on
was
so we are
¶
9, 1989, Appellant
7 On September
unable to
determine
issues that were
filed
a
with this Court
notice of
raised in
appeal.
The Public Defend-
from the denial
his PCHA
er’s
petition
Office filed a
to dismiss the This Court affirmed the denial of the
granted.
which
we
8, 1991,
petition
January
PCHA
on
finding
states
purpose
brief
in that
provided
trial counsel
had
ineffec-
seeking this
was
Appel-
dismissal
to allow
tive assistance
there was
no merit
lant
petition
to file a
guilty
to withdraw his
guilty plea
contention that
was
plea in
the trial court.
the Pub-
invalid. This
stated that Appellant
lic Defender’s
never
Office'
filed such a
repeatedly acknowledged
plea
that his
petition, nor did the Public Defender’s Of-
by promise
was not
a specific
induced
a
fice
any
steps
take
protect
additional
to
sentence, so he could not make such an
Appellant’s right
The
post-conviction
in seeking
relief.
Public Defender’s Office also did not file a Thus, citing
Shaffer,
Commonwealth v.
498
brief to assert
that the
was frivo-
342,
446
panel
A.2d 591
lous and
pursuant
should be dismissed
to
found from its examination of the record
California,
738,
Anders v.
386 U.S.
87
had failed to make a show-
1396,
(1967).
S.Ct.
18
493
L.Ed.2d
This
ing
prejudice
order
on the
of manifest
19,
Court’s February
1986 order dismiss
injustice to
a withdrawal
support
of his
ing
provided that the dismissal
guilty plea
sentencing.
after
was
prejudice
any
without
to
rights Appel
¶ Appellant
petition
then filed another
might
lant
under
Post Conviction
(“PCHA”),
1991,
Hearing
October of
under the
predecessor
Act
to
PCRA.1
which
asserted that he would
at
hearing
an evidentiary
prom-
that he was
¶ Appellant’s
pro se
petition,
PCHA
ised a lesser
sentence.
Public De-
18,
which
1986,
he filed on December
was
appointed
represent
fender’s Office
filed,
denied the
day
same
it was
later,
him.
year
More than a
the Public
represent
without
Appellant.
counsel to
Defender’s Office filed a motion to with-
then
a
filed
revised
se
draw as
it
in-
counsel because
had been
petition
28, 1988,
PCHA
January
on
alleg-
volved
as direct
counsel. The trial
ing abandonment
ineffective
assistance
granted
court
the motion.
by
counsel,
Carsia,
Attorney
and al-
leging
plea
guilty
by
was induced
counsel,
Attorney
Present
John
promises of a lenient sentence.
Elash,
appointed
represent
was then
Appellant.
The Public
He filed Petition for Relief
Defender’s Office was
appointed
represent Appellant
Pursuant to
Conviction
and filed
the Post
Relief Act
Request
Appeal
motion to
as counsel
Nunc Pro Tunc
withdraw
because of
granted
September
conflict. The trial court
the mo-
The trial court
Lewis,
Hearing
1. The
Act
Post-Conviction
was modi-
1988. Commonwealth
part, repealed
part,
1998).
fied in
and renamed
(Pa.Super.
1262 n. 2
Act,
April
the Post-Conviction Relief
effective
petition
right
post-
to an
dismissed
PCRA
on October
is not absolute.
conviction
Com-
of its
giving
requisite
after
notice
Granberry,
Pa.Super.
monwealth v.
intention
dismiss
204, 208
A
holding
evidentiary hearing.
This
hearing if
may
to hold a
decline
peal,
Elash
Attorney
filed
on behalf of
patently
frivolous
petitioner’s claim
Appellant, followed.
support
either the
is without a trace
argues
Appellant presently
that he
Id. A re-
record or from other evidence.
lost his
to direct
as a result
appeal must examine
viewing court on
his first
assistance of
in the
raised
each
the issues
Thomassey,
PCHA
the record
light of
*4
also
the
filed the
from
dismissal of
court erred
the PCRA
determine whether
the
petition with this Court. Attor-
PCHA
genuine
no
were
concluding that there
ney
Elash asserts that
Thomas-
denying relief
of
fact and
issues material
sey framed the
as one of trial coun-
issue
hearing.
an
Common-
without
whether,
sel’s error instead of
of
because
450,
Hardcastle,
Pa.
701 A.2d
wealth v.
549
ineffective assistance of direct
(1997).
541, 542
Le.,
Office,
counsel,
the Public Defender’s
petition
instant PCRA
Appellant’s
13
deprived
of his constitution-
date
effective
of
was filed
right
al
pre-
PCRA. The
1995
amendments
Appellant to
requires
amendment
PCRA
aspects
11
are
There
two
to this case:
evi-
preponderance
establish
first,
court
de-
whether
trial
re-
or sentence
dence that
conviction
petition
nied the second
PCRA
without
the errors or
more of
sulted from one or
second,
and
hearing;2
whether the
9543(a)(2)3
§
in 42 Pa.C.S.
defects listed
not to
properly decided
hold an evi-
not been
have
and that
raises
the issues
dentiary hearing
to determine if
Appellant can
If
previously litigated.4
tunc relief was warranted.
previ-
not been
that
have
show
the issues
Initially,
12
a con
we turn to
show that
also
ously litigated, he must
sideration of
second
not
the denial
have
been
allegations of error
these
waived,
conditions
petition
hearing.
or,
if
without
waived5
(a)(2)(ii),
9543(a)(2)(i),
and
treating
Appel-
peal:
2. We are
this as a denial of
section
(a)(2)(v).
petition
lant’s second PCRA
the ini-
defects listed
The errors and
petition
tial
the PCHA
under
assis-
refer
these
subsections
filed was
the benefit
of the United
violations
tance of
counsel
indigent
has the
assistance
Pennsylvania
States or
Constitutions.
counsel on
first PCRA
See Com-
16,
Keeney,
Pa.Super.
v.
367
532
monwealth
PCRA,
4. Prior to the 1995 amendments
Thus,
(1987).
purposes
A.2d 33
for
of our
9544(a)
has
provided
an issue
section
has filed one
under
review.
highest appel-
previously litigated
been
the PCHA and one under the PCRA.See Com-
have
could
late court which
134,
Brimage,
Pa.Super.
monwealth
398
merits of the
ruled on the
had review has
(1990)(providing
1015 9543(a)(3)(ii) (iii) 3) § conduct; either have been able basis for his course v. Travaglia, met[.]6 See Com. 541 Pa. probability there is a reasonable 108, 117, 352, 356 cert. in question, but for the act or omission denied, 1121, U.S. S.Ct. proceeding outcome of the would have (1996). L.Ed.2d 858 Jones, been different. Commonwealth v. (1996). 1181, 1188 546 Pa. If ¶ 14 Our Court has ex prong record shows that the third plained that the standard of for a review met, determine we need not second PCRA is as follows: the first two satisfied. prongs are Id. This reviewing [I]n claims relief in a sec- standard is the same PCRA relief ond or subsequent collateral attack on a based on a claim of ineffective assistance judgment sentence, conviction and Kimball, of counsel. Commonwealth v. request will not be entertained unless a (1999). strong prima showing facie is demon- miscarriage justice strated that a oc- ¶ A16 claim of ineffectiveness must Lawson, curred. Commonwealth v. possible be raised at stage the earliest appel- A.2d 107 “An *5 which allegedly the ineffective counsel no prima lant makes such a facie longer represents petitioner. the Com if he that pro- demonstrates either the Allen, 135, monwealth v. 557 732 A.2d ceedings which resulted his conviction (1999). 582, However, 587 a claim of inef were so unfair a miscarriage that fectiveness will not be deemed waived justice occurred no which civilized soci- petitioner layered where the has the claim ety tolerate, could or that he was inno- by alleging prior the ineffectiveness of all cent of the charged.” crimes Common- failing pursue counsel for the claim. Id. Morales, 400, wealth v. 549 Pa. (1997). 516 ¶ 17 validity The issue of the of the Fahy, 313, Commonwealth v. 558 Pa. 737 guilty plea previously has litigated been (1999). 223 Our standard of within the context of the PCRA. review for an denying post-convic- order Appellant might had another chal- have tion relief is limited whether the trial lenge that he to raise in a wished court’s supported determination is by evi- appeal, challenge such as a to the discre- dence of record and whether it is free of tionary aspects sentencing. Attorney legal error. Jermyn, Commonwealth v. Elash raised the issue now on at (1998). 856 stage the earliest in which the allegedly
¶ 15 In
longer repre-
order to
ineffective counsel was no
establish ineffec
tive
senting Appellant
by
lay-
assistance of
means of a
must
and
1)
Thus,
show:
that
merit
underly
there is
to the
ered
ineffectiveness claim.
issue
2)
claim;
ing
that
had no
Attorney Thomassey
counsel
reason-
whether
rendered
petitioner
failed to raise it and if
it could
conviction or affirmance
sentence of an
trial,
trial,
have been raised
before
at the
innocent individual.
corpus proceeding
in a habeas
or
(iii)
allegation
If the
of error has been
proceeding actually
other
conducted or in a
waived,
allegation
the waiver of
of error
actually
proceeding
initiated under this
trial,
during
post-trial
pretrial,
or direct
subchapter.”
peal proceedings
does
constitute a State
procedural
barring Federal habeas
default
(iii)
9543(a)(3)(h)
provided:
Subsections
and
corpus relief.
(ii)
If the
of error has been
(iii).
9543(a)(3)(h)
§
waived,
alleged
error has
resulted
post-sentence
advising him to withdraw his
failing
assistance in
ineffective
de-
Appellant’s right
The PCRA court
question
of whether
motions
appeal was
has not been
affirmed
denied
him relief. This Court
nied
litigated
previously
or waived.
either
a different basis.
court’s
Supreme
Both this Court and our
Supreme
21 The
stated
Court
recently
question
examined
9543(a)(2)(ii),
requirement under section
appellant
alleging
petitioner
plead
must
rights through
loss of his direct
“so under-
his counsel’s ineffectiveness
assistance of counsel
truth-determining process that
mined the
the PCRA or means of
does so under
inno-
adjudication
guilt
no rehable
petition for nunc
tunc relief.
amounts
place”,
could have taken
cence
prong
ineffectiveness of
prejudice
This
law has stat
Court’s case
Lantzy,
A.2d at
challenge
discretionary
counsel.
that a
ed
unjusti-
that an
sentencing
that must
Court reasoned
aspects of
is a matter
perfect
in the
of a direct
failure of counsel to
reviewed
context
fied
be
preju-
in the con
guaranteed
and cannot be reviewed
as
constitutes
Lantzy,
the PCRA.
A.2d at 567. In
per
text of
Commonwealth
dice
se.
circumstance,
Pa.Super.
A.2d 857
Wolfe, 398
held
such a
Bronaugh,
In Commonwealth v.
in Lant-
appellant
such as the
petitioner
Pa.Super.
was shown the truth-determin- sponte banc referred the case for en re- However, ing process. while Hitchcock’s recognized view. This that Garcia pending, with this Court was position caught procedural was in the same Supreme Court issued its decision Lant- Hitchcock, as and that a PCRA zy. Lantzy, supra, See pursuant would be to section time-barred A.2d 564. 9545(b) (unless could Garcia exceptions). meet one of the refused We
¶24 Hitchcock, In this Court observed apply Court’s decision that a application retroactive of the Su- Lantzy retroactively, finding such result preme Lantzy Court’s decision would af- unjust. would be were un- we persons fect a limited number able to determine from the record whether had the existing followed case law at the had, fact, requested Garcia his trial they sought time tunc. counsel to file notice of that, We concluded because Hitchcock’s request. counsel refused this counsel had unjustifiedly failed to file a requested appeal and Garcia, Accordingly, we reversed procedure Hitchcock had followed the the trial order court’s and remanded for obtaining redress that effect our evidentiary hearing on the in- issue. We time, at that law we had to reverse structed if Garcia were to court’s order and remand the his right was lost due to matter. Accordingly, we assistance, directed the trial his counsel’s ineffective the tri- court to enter an reinstating Hitch- al reinstating court should enter an order *7 appeal pro cock’s direct nunc rights tunc pro a nunc right appeal Garcia’s to direct appoint represent and to counsel to Hitch- Additionally, tunc. we ordered the trial cock, indigent. who was court appoint represent to counsel to Gar- cia, indigent. who was
¶25 appeal, The Garcia which was si- ¶ Hitchcock, multaneously Hernandez, considered with supra, 28 In this Court also resulted in reversing appel- this Court issue of and addressed the whether an remanding pro order of the lant appeal trial court was entitled to an nunc therein, appellant discretionary which had denied the tunc challenge aspects to Garcia, permission post-sen- entry Carlos to file of the rendered of sentence after pro motions or an tencing appeal guilty plea. nunc a The had directed that, tunc. after his a direct and the appeal Garcia contended he was counsel to file so, sentenced, requested convicted and but to file a counsel had done he failed to appeal, modify his counsel file a direct and motion to a concise sentence or of failing complained ap- counsel was ineffective for to do so. statement of matters on an appeal peal. Garcia filed with this Court from This decided in the direct challenge appeal appellant’s the trial court’s denial of his to file to the sentence, post-sentencing appeal aspects discretionary motions or an nunc of his pro therefore, quashed appeal tunc. This Court waived. had been
¶29 right to was sought that his direct Hernandez then leave pro assistance of appeal nunc tunc and was denied. On lost because of ineffective decision, Garcia, panel supra, from that of this since we do not see of the found that a review discre- Appellant sought to chal- know whether aspects tionary of Hernandez’s sentence validity than lenge anything other of appropriate, his counsel Also, was since failed an plea. his without evidentia- guilty perfect The appeal. majority his ry it cannot be determined wheth- hearing, in that the Hernandez reasoned confusion direct Defender withdrew the er Public Lantzy in- that the case fostered and the himself was re- Appellant because justice fundamental fairness terests the Public De- fusing cooperate with its dictated the trial abused appellate his preservation fender’s in denying discretion choosing to be rights.7 Appellant If was pro nunc tunc appeal. uncooperative longer he no de- Com- sired to the direct dissenting opin- 30 This wrote a author asserting may be monwealth correct expressing majority concern that the ion to a effectively right that he waived his discarding case law appeal. briefing proper and consideration of impact Supreme Lantzy Court’s foregoing 33 On the basis Bronaugh opinion on the eases. Wolfe law, trial order and we reverse the court’s grant Court’s allowance to the court for remand the matter clarify Hernandez should question time, matter. Until that this Court’s deci- did, fact, waive his us. sion Hernandez binds perfect right have counsel
¶31 holdings in the Pursuant peal his behalf. We further cases, appears it foregoing both to a direct proves right Public Defender’s Office and appeal was lost due counsel’s Thomassey might provided ineffec- assistance, in Her- holdings based on failing to en- Garcia, tive assistance of counsel nandez the trial court should sure that receive direct reinstating Appellant’s enter an Critically, Attorney request Elash filed the pro tunc. appeal nunc September tunc on remanded. 34 Order reversed and when this Court’s decision relinquished. Jurisdiction before Lantzy was effect and the Su- case. preme Court had entertained the ¶ TODD, J., Concurring files a *8 Thus, majority reasoning that led Statement. that the trial court in Hernandez to find TODD, J., Concurring: granted appellant’s peti- have should tunc is tion for a direct mindful Majority’s 1 I ex- am applicable present case. equally pression for a defendant of concern unwittingly right to a Moreover, may lost his recognize the need we through guilty plea his to evidentiary hearing for office had tions to from his seeking of the direct directed In dismissal alleged in the to Public Defender Petition See 2 to Common- been refused. Exhibit Dismiss or in the Alternative Remand Act to Post Conviction Relief wealth's Answer Purposes Filing a Petition Withdraw Petition. Guilty Plea Nunc Pro Tunc communica- appellate petitioner counsel’s ineffectiveness. While I concur “force a issues often by in the result Majority, ‘layered’ reached I frame his as claims ineffective- separately clarify claims, write usually the state of the ness because there has record this and set forth why I by been waiver previous counsel’s failure agree that properly this matter is before preserve.” to raise or v. Commonwealth us. Pursell, 233, 252, 293, 302 555 Pa. requires Our notes, 2 As the Majority Appellant was statutory language “strict adherence to the represented initially will post-convic- afford Office, the Public Defender’s then Attor- petitioner tion review where shows ney Thomassey, and now Elash. exceptions statutory to waiver petition, Appellant In his PCRA does not apply, petitioner PCRA where explicitly layered assert a ineffectiveness properly raises claims of counsel’s ineffec- claim of all counsel as the Majority tiveness.” Id. at A.2d at Rather, implies. Appellant hinges his claim for relief on the ineffectiveness of ¶ Therefore, the most technical the Public Defender’s Office in failing to sense, Appellant not properly has framed guilty plea. his layered the issue as a claim. In his amended PCRA implicit the factual back- states: “Petitioner denied his consti- ground set forth is what tutionally guaranteed right to effective may be as an At- construed representation Public when the Defender’s torney Thomassey’s ineffectiveness. For faded protect Office Petitioner’s consti- reason, judicial this and in interest of tutionally protected to a economy (i.e., yet to avoid another ineffec- (Amended Petition, peal.” 9/30/98, claim), agree Majority tiveness I with the 3-4.) prayer at In his for relief he further the matter us. before “WHEREFORE, states: Petitioner re- I premise, With concur in disposi- this quests find Honorable Court that the tion by Majority. of the case Public Defender’s Office rendered ineffec- tive assistance of grant counsel and re- (Id., 5.) ...” at
lief.
¶ 3 An allegation of the Public Defend-
er’s ineffectiveness could have been raised by Attorney Thomassey Appellant’s first CORPORATION, Appellant, IDT filed in 1988. As it was not, it is now waived. See Commonwealth v. Griffin, SERVICES, CLARITI LTD. CARRIER (1994) (ineffectiveness claims are & Clariti Telecommunications
waived not at the earliest stage raised International, Ltd., Appellees. proceedings allegedly at which ineffec- Superior Pennsylvania. counsel is no longer representing tive 9544(b). § petitioner); Thus, *9 Argued Feb. it Thomas- April Filed sey’s key ineffectiveness that is the Jordan’s
¶ 4 coupled pro- PCRA waiver rules with preservation regarding
cedural rules