Commonwealth v. Lantzy

Pennsylvania COMMONWEALTH LANTZY, Appellant. D.

Jesse Pennsylvania.

Argued Nov. 1997.

Filed April McKenrick, Ebensburg, ap-

Bruce F. pellant. Fisanick, Atty., Dist. A. Asst.

Christian Com., Barnesboro, appellee. however, thereafter, Lantzy McEWEN, Judge, Shortly Before President and' CAVANAUGH, CHULLO, TAMILIA, having agreement. Despite breached the JOHNSON, HUDOCK, POPOVICH, FORD post- appeal and withdrawn his notice EAKIN, JJ. ELLIOTT and motions, that Lantzy insisted his sentence Rozieh, counsel, Attorney Kevin guilty plea JOHNSON, Judge: counsel, Attorney Kalten- sentencing and his appeal, In to determine we are asked assistance; con- baugh, rendered ineffective Act whether a Post Conviction Relief pro se mo- sequently, he filed a number of (PCRA) may, having with- after newly seeking modify to his reduced tions appeal post-sentence drawn his direct and guilty plea. his sentence and to withdraw validity guilty contesting motions of his motions, and The trial court denied these sentence, plea challenges these and restore appeal. Holding that Lantzy filed a se by asserting in- sentencing counsel was modification was invalid due to the sentence advising him his effective to withdraw considerations, jurisdictional panel of this appeal and motions in return for a modified appeal quashed the and reinstated Lantzy D. maintains that sentence. Jesse Lantzy’s original sentence. Commonwealth advice, following his counsel’s he was de- Lantzy, 653 A.2d 1301 prived to take (1994) (table). Lant- This determination left panel when a of this Court vacated his modi- sentence, zy original with his and due to his original fied sentence and reinstated his sen- post- earlier withdrawal of his and Lantzy tence. Because we conclude that motions, abili- sentence he had exhausted his to fulfill requirement failed the PCRA appeal. ty challenge it via a direct establishing that actions counsel’s under- truth-determining process mined the to the April Lantzy filed a PCRA On guilt extent that no reliable determination of (1) Attorney Kalten- petition asserting that place, or innocence have we af- could taken him baugh advising was ineffective firm. post-sen- original appeal his and withdraw 3, 1992, exchange for a sentence September tence motions Lantzy On entered that, vacated, theft, 3921(a), ultimately, pleas guilty and 18 Pa.C.S.

receiving property, improperly stolen obstructed his Pa.C.S. automobile, argument, unauthorized use This latter how- 3928(a). ever, The court then sentenced developed petition, in the was neither Lantzy 11$ aggregate years to an term of 5 hearing. Subséquently, the nor at the PCRA years imprisonment months’ to 11 11 months’ Lantzy relief. The court PCRA court denied Dissatisfied, Lantzy for these crimes. filed reduced explained negotiating sentence, post-sentence modify motions to his sentence, calculated to counsel’s actions were sentencing judge, to recuse the and to with- Lantzy’s interests and that effectuate best guilty plea. draw his He also filed a direct Lantzy’s led to the reinstate- own conduct appeal to this Court. The trial court sched- greater sentence. This ment of the motions; hearing uled a to entertain these followed. however, expressly grant it did not reconsid- Lantzy only that he On asserts previous judgment eration or vacate its of coun- suffered from ineffective assistance meantime, days. within In sentence convic- argue does he that his sel. Nowhere counsel, Lantzy’s Kaltenbaugh, David any other violation of the tion resulted from negotiate able to a reduced sentence of four of this Commonwealth or the Constitution return, eight years’ incarceration. In of the United States. Constitution laws Lantzy promised the that because the modified sen- He maintains pay in restitution and with- $2500.00 invalid, to be he lost tence was determined post-sentence motions. draw litigate validity of his opportunity Lantzy’s appeal post-sentence motions though he had plea Even withdrawn, and sentence. eventually Decem- were and on right to take a direct previously exercised his imposed court a sentence ber appeal, Lant- agreement. withdrew that that reflected this and later evidence, by following that his conviction resulted from zy nevertheless contends that which, advice, deprived of that counsel he was assistance of “[ineffective right. particular so the circumstance of truth-determining process undermined the post-conviction reviewing court’s adjudication or inno- that no reliable relief, grant or denial of we are limited to place.” taken 42 cence could have Pa.C.S. supports the evaluating whether the record 9543(a)(2)(h). § Because PCRA de- findings is free court’s and whether order fundamentally a unfair signed prevent to legal Yager, error. v. 454 Commonwealth conviction; interpreted this restric- we have 428, 434-36, Pa.Super. 1003 685 A.2d require tion to that an ineffectiveness claim (en (1996) denied, banc), appeal Pa. 549 question brought the PCRA raises (1997); 701 A.2d Commonwealth con- whether an innocent individual been 524, 529-31, Cranberry, Pa.Super. Korb, Pa.Sur victed. Commonwealth (1994). Because we are as (1992). 44, 46-49, 716-17 per. 617 A.2d duty interpreting as signed the the PCRA petitioner this thresh- Once the has satisfied us, applies it to the matter before we must test, must “that old he or she change affecting its note a recent the law merit, arguable underlying [that] claim is of 17, 1995, application. Before November for act or no reasonable basis counsel had 9543(a)(2)(v) provided peti § of the PCRA but for coun- question, [that] omission possibility tioners of relief where with omission, the outcome of the sel’s act or judgment from a their of sentence resulted have been different.” proceeding would of the. violation United States Constitution 171, 199, Pa. Appel, Commonwealth require granting that would federal (1997); 689 A.2d corpus prisoner. habeas relief to a state 336, 341-43, Lewis, Pa.Super. 634 A.2d Consequently, provision this was at the time 633, 636 effect, PCRA relief was available where petitioner averred that trial counsel was Petroski, 695 A.2d failing ineffective for to file an as panel of this Court (Pa.Super.1997), requested; infringing petitioner’s thus on the right to the denial of addressed whether to v. Hick See Commonwealth through the be cured could man, 633, 634-35, Pa.Super. 644 A.2d alleging the filing PCRA-petition ineffec- of a However, Act No. failing to take an tive of counsel assistance 17, 1995, November P.L. Although spe- Petroski requested. as 1), availability No. narrowed the (Spec.Sess. attorney his take cifically requested that by provision. eliminating of PCRA relief to steps neqessary protect his legislation scope the limited Such illustrates plea, we noted guilty and to withdraw designed of the The PCRA is not PCRA. no aver- petition contained the PCRA appellants opportunity with the for afford petitioner’s deprivation of the that the ment limitation; scope instead its relief without the truth-deter- undermined has been as follows: “[the PCRA] defined Moreover, the mining process. Id. at 847. provides persons an action which con how counsel’s petition neglected to indicate they of crimes did not commit and victed determination of prevented a reliable actions persons serving sentences obtain illegal held that “the Id. We guilt or innocence. relief.” 42 9542. collateral requires Act Post Relief Conviction prove facts estab- post-con petitioner plead and

Lantzy petition filed his both the constitutional April lishing that the violation of viction relief on after the counsel so ineffectiveness of to the took effect. or the above amendment 9543(a)(2)(h) process as truth-determining provi undermined the Accordingly, is the sole Id. guilt unreliable.” finding to render a sion that relates to his ineffective assistance did not demon- Lantzy’s at 844. Because Petroski of counsel claim. In order for inef truth-determining process un how the fective assistance claim to warrant relief strate failure to by counsel’s provision he must was affected der this Id. at 847. properly was denied. prove, by preponderance Tanner, they See also Commonwealth v. 410 individuals convicted of crimes did 398, 405-07, illegal persons serving 205 not commit and sen if (holding peti that where the PCRA tences. 42 Pa.C.S. we were permit petitioner tioner failed establish how the truth-deter to obtain PCRA relief mining undermined counsel’s where the does demonstrate possibility failure to him of the advise of a that he was innocent or that his sentence discretionary appeal illegal, ignoring to the Court of we would be the limited Pennsylvania, post-conviction scope legisla relief was not our the PCRA defined available). If a desires to assert ture. defendant deprived assistance him counsel’s ineffective We now believe Petroski de appeal, causing prejudice, him serves some clarification. When counsel affecting underlying but not verdict or ultimately infringes takes some action that adjudication, can the defendant seek relief petitioner’s right on the appeal, by requesting appeal pro nunc tunc. See may the action well affect the truth-deter Stock, 13, 19, Commonwealth v. 545 Pa. mining process. Judge As President McEw (granting a defendant an points Dissenting en out in his Opinion, when appeal pro tunc where nunc counsel failed the trial court judgment, enters final the timely appeal noting file a direct that “an truth-determining process necessarily is not tunc is intended as a reme complete; process the continues to be dy to vindicate the where that through worked out the exhaustion of the extraordinary right has been lost due to cir petitioner’s appeals right. as of Evitts v. See cumstances.”). The fact that will not 387, 404, 830, 840, Lucey, 469 U.S. awarded relief under the PCRA does not petition L.Ed.2d prevent petitioner obtaining the from relief alleging er that counsel rendered ineffective altogether. assistance obstructing his Accordingly, light principle of the always is not ineligible for relief un petitioner alleging PCRA ineffective assis- situations, der the PCRA. In such truth- the always tance of must aver counsel and dem- determining process may implicated. well be onstrate that actions the counsel’s rendered Accordingly, prevail on a order unreliable, finding guilt of we have examined claim, PCRA including ineffective assistance Lantzy’s Motion for Post-Conviction Collat- alleging those that counsel’s actions inter Testimony eral of Relief and the Notes from petitioner’s fered with the right to a direct evidentiary hearing. his A review of PCRA petitioner the must Lantzy’s petition reveals that he checked adjudication that guilt his was made unre indicating eligi- box on the form that he was through liable counsel’s ineffectiveness. As “[¡Ineffective ble for relief because of assis- provision the ineffectiveness of the PCRA which, in tance of counsel the circumstances states, must establish that he case, particular so undermined suffered from “[ineffective assistance of truth-determining process that no reliable which, in counsel circumstances adjudication guilt have innocence could particular so undermined the truth- Motion, 16,1996, place.” April taken filed determining process, adjudi that no reliable petition 2. The also contained the statement cation or innocence could have taken that in the that the event 9543(a)(2)(ii) place.” Pa.C.S. granted, Lantzy assert that he was added). innocent. Id. at 3. The did not affidavits, any sup- or other attach records argues The Dissent that when a de evidence, porting merely that but asserted deprived fendant is supported Lantzy’s in the case the record error, through prejudice that position. Id. at may automatically the defendant suffer enti Yet, prevail tles him to relief Howev in order to on his PCRA PCRA. er, above, purpose petition, Lantzy than make as noted of the PCRA must do more statements; by a is to afford collateral relief to those he must demonstrate bald This, 9543(a)(2)(i); supra. Lant- truth- of the evidence that the preponderance Petroski question for our The sole compromised zy before failed to do. determining Lantzy the merits of his claims. established we reach was whether review Petroski, 9543(a)(2)(h); supra. due relief post-conviction he was entitled appellate suggests that Lantzy’s brief sentencing While to the ineffective assistance plea wrongfully counsel induced guilty Lantzy establish cannot counsel. Because Lantzy testified that he was inno- plea, never resulted counsel’s conduct sentencing Indeed, Lantzy that at the cent. testified conviction, go inquiry must our an unreliable negotiated, he felt that it time the deal was no further. attorney that his did was to his benefit and N.T., job. August at 12. He good error-correcting court are an We appealed that he the modified did not assert and, such, into areas may not tread we because he was innocent sentence review. for our preserved are rather, Lantzy explained charged; crimes relief, post-conviction analyzing the denial other believed “that there [were] that he propriety of the only the we must consider my character that the Court things about consider supra. After Yager, order below. my ... I felt sen- should have listened to PCRA, and evidence, scope ing the mitigated been further.” tence should have law, cannot conclude applicable we explain that the Id. at 13. He went on to unwarranted. actions were the PCRA court’s prospect was the of a motive for his Lantzy has failed to demonstrate Simply put, possibility of work sentence and the lesser at an erroneous court arrived that the PCRA 14. statements do not release. Id. at Such denied the PCRA court Although result. challenging the reli- suggest Lantzy at premise that his on the Lantzy’s motion Again, ability conviction. a PCRA of his negotiating basis for torney a reasonable had plead facts petitioner “must both sentence, is that conclusion the modified the ineffectiveness which establish “This Court the basis of our decision. truth-determining counsel so undermined it is correct order when affirm a trial court guilt unre- finding to render a legal regardless of any legal ground, on Petroski, supra, at 847 liable.” Petro- trial court relied.” on basis which added). By provide the court neglecting to Allantan, 847, citing Schimp v. supra, at ski wrongfully that he was convict- with evidence 1032, 365, 370-71, 659 Pa.Super. 442 ed, Lantzy satisfy to his burden. has failed (1995). to Lantzy has failed Because 1035 is not entitled to relief under Id. he unreliable, conviction was that his establish the PCRA. at authority his to evaluate we are without legali- with the are not here concerned We af Consequently, we torney’s effectiveness. sentencing ty Lantzy’s sentence. The Lantzy’s firm the order that denied eligible for relief under issues that are post-conviction relief. involving greater sentences are those PCRA limit; here, Lantzy AFFIRMED. statutory did Order than the 42 allegation. an Pa.C.S. not raise such Lewis, 341-43, 9543(a)(2)(vii); supra, at McEWEN, files a Judge, President Moreover, contrary to the at 634 A.2d joined by Opinion, which is Dissenting not decide the implication, we need

Dissent’s POPOVICH, JJ. CAVANAUGH Lantzy’s other constitution- issue of whether violated; question rights al were McEWEN, dissenting: Judge, President court nor before the PCRA raised neither Constitution, Article in Pennsylvania However, question if this even this Court. the absolute V, 9, upon confers defendant forth, relief in order to warrant had been set to right claim, petitioner must for such a valid, ie., know- of a In the absence Court. “so prove that the violation again right, coun- of that voluntary, waiver ing and truth-determining process undermined the right the Ghent’s protect required sel is adjudication or inno- that no rehable appeal is appeal even “where 42 a direct place.” cence could have taken

293 (em- 461, 555 A.2d at 931 appeal.” Id. ‘totally without merit.1 Commonwealth Wilkerson, 296, 299, 477, phasis original). Pa. 416 A.2d 490 (1980), Perry, quoting Commonwealth v. Hoyman, 385 Pa.Su- Commonwealth (1975). 272, 275, (1989), 439, 444, 464 Pa. 346 A.2d per. 561 A.2d Bronaugh, Wilkerson, Accord: Commonwealth quoting Pa, (1995). 522, 526, Pa.Super. 670 A.2d we 416 A.2d stated: a defendant establishes that coun- When accused has an absolute [A]n ineffective him en- sel’s assistance denied V, Constitution, Article appeal, Pa. tirely is his a direct allowing and counsel can be faulted pro nunc entitled direct tunc the ac- to be waived unless regard ability without to establish effectively waives the cused himself the merit the issues which he seeks to i.e., protecting ac- right, for not on raise See Common- an effec- cused’s the absence of Sullivan, wealth v. 472 Pa. 371 A.2d tive waiver. Miranda, (1977); Commonwealth v. timely appel- to file a Where counsel fails Pa.Super. A.2d 1133 brief, resulting late in the dismissal of Likewise, pro- we hold that when appeal, counsel has waived the effectively post- cedural default waives all of an waiv- accused the absence effective motions, appellant verdict entitled accused; byer counsel cannot be said pursue post-verdict motions tó have been effective. tunc, regard ability without to his to dem- Mosteller, Pa.Super. onstrate the merit of the claims waived 57, 62-63, 633 A.2d the default: Pennsylvania Supreme Court Com Ciotto, Commonwealth v. Boyd, monwealth v. 547 Pa. 688 A.2d (footnote omit- (1997), right 1172 held that the constitutional ted). Hickman, v. Accord: Commonwealth “may of counsel be to effective assistance (1994). 633, Pa.Super. 434 644 787 A.2d explain by properly violated a failure to Prior to the 1995 to the amendments accepting advantages disadvantages and PCKA, repeatedly that: this Court had held 116, plea Id. at 688 rejecting or a offer.” 1175, citing at ex rel. Caruso A.2d U.S. post-verdict ... motions dismissal (3d Cir.1982); Zelinsky, 689 F.2d 435 and proce- or a criminal on the basis of (5th 262 Wainwright, Beckham v. 639 F.2d “improperly places dural default the entire Cir.1981). Thus, can no reasonable there powerless burden of counsel’s errors on the Pennsyl dispute that under both federal and client, offending rather than the counsel.” provided by ap representation vania law Ciotto, Commonwealth v. 382 counsel,2 Attorney pellant’s court-appointed (1989) 1, 930, 458, 461 n. 931 1 n. was ineffec Kaltenbaugh, in the instant case original). a “[w]hen deprive appellant of his operated tive and defendant establishes that counsel’s inef- appeal without right constitutional to a direct entirely fective assistance denied him his knowledge consent. or appeal, to a direct entitled majority re- In the of those cases decided direct tunc without prior recent amendments3 to the gard ability to the merit of to the most to his establish PCRA, a that counsel had rendered which he seeks to raise on direct claim the issues appellant appointed, competing was court duties owed 2. Since counsel 1.Accommodation of the equal protection (1) a federal protect has constitutional by counsel to his or her client Evitts well as a due claim. See: (2) claim appeal, direct to the court not to 387, 5, 830, Lucey, 392 n. 105 S.Ct. 469 U.S. actions, litigate or frivolous resulted baseless 5, L.Ed.2d 821 834 n. California, procedures Anders v. set forth in 738, 1396, 87 S.Ct. 18 L.Ed.2d 1118, McClendon, P.L. No. Commonwealth v. 3. Act of November 1) 1, days.' (Spec. effective in 60 Session No. A.2d Pa. appeal, lant Lantzy cogni- ineffective assistance based on a failure to in the instant 9543(a)(2)(v) despite file zable appeal, request by under Section of the direct client, majority cognizable pursuant expres- PCRA.5 The author of the was held to Sec 9543(a)(2)(v) PCRA, thoughtful sion has provid tion of the undertaken review and which “ analysis concluding careful persons before ed for relief for who been ‘con had Act of which November deleted or sentenced as a result violation victed of a 9543(a)(2)(v) Constitution, Subsection as'a basis for relief provisions or law Act, preclude under the was intended use States, treaties of the which would United Act Post Conviction as the require granting corpus of federal habeas Relief ” involving litigating method for claims the de- prisoner.’ to a state relief by nial counsel Boyd, supra at at very to the I respect- Court. must 9543(a)(2)(v). quoting former (1) fully disagree I am both since unable to Although arises intent, agree purpose, that the effect of Constitution, Pennsylvania from the “the preclude the 1995 was to amendments review Due Process Clause of the Fourteenth of claims of of a state the denial constitution- guaranteed to state criminal Amendment al appeal6, a direct unable to procedural safeguards defendants not interpretation conclude that such an level, the trial also for appeals but as of prudent policy be a even decision if this right. Lucey, See: Evitts v. 469 U.S. empowered Court to make such a deci- were (1985); 83 L.Ed.2d 821 Griffin sion. Illinois, (1956).” Cunningham, Burkett v. L.Ed. as amended the Act of even (3d 1208, 1219 Cir.1987).4 826 F.2d 32 (Spec. November P.L. No. No.l) 1, provides, Session inter alia: Our Scope subchapter § 9542. Boyd, supra, citing Turner v. Ten- State of (6th nessee, Cir.1988); subchapter provides 858 F.2d 1201 United This action persons v. Zelinsky, they States ex rel. Caruso 689 F.2d which of crimes convicted did (3d Cir.1982); serving persons illegal and Beckham v. sen- Wain- commit and (5th Cir.1981), wright, 639 F.2d 262 found tences relief. The may obtain collateral claim, proffered subchapter by appel- such as that action in this shall established timely perfecting on behalf 4.The brief submitted of the Common- sel’s related to effectiveness Deputy Attorney holding surely wealth Chief District must be Chris- incorrect. Fisanick, persuasively arguing tian A. while for Boyd opinion suggest- of the Court in of the order which the While the affirmance dismissed ed a direct by appellant Lantzy, candidly to file a did not filed failure implicate erence, truth-determining process, the the ref- concedes: dicta, cited to Commonwealth which panel The Commonwealth is aware deci White, Petroski, in sion (Pa.Super.1997), seemingly which apply deny appellant case to relief. to this by proposed Act changes 6. The effected No. 32 of broadly, that case can Read holds that counsel Majority by Senate were described fouling up never be ineffective for a matter Legal analysis of Senate 81 as Staff in the Bill thereby costing related to an a defen follows: occurring direct dant his "Matters Code, judgment specif- after the of sentence cannot deter the Judicial and Amends Title ically provide occurred Act to mine what has before.” Id. at 847. the Post Conviction Relief frankly, post Changes Quite are made the Commonwealth is not con conviction relief. overlap correctly exists vinced that Petroski was decided. A to eliminate the which between appeals appeals a and Fed- criminal defendant has constitutional to on the State level to encouraging petitioners ap- eral to effective assistance of counsel under the Sixth courts peal subchapter to to the United States Constitution the state courts first. This Amendment noncapital right. Lucey, capital apply as of shall and cases. on his first Evitts v. to all relief, eligible 83 L.Ed.2d 821 In order (1985)(counsel by preponderance failing proce plead ineffective for must both and requirements relating durally perfect appeal). direct To the extent of the evidence a list of always requirements remain that Petroski denies a defendant his conviction. These challenge the PCRA to similar law. his coun- to current obtaining appealable of where a meritorious means of collateral be the sole properly pre- encompasses and was all com- issue existed relief and other statutory in the trial court. law and remedies for the served mon purpose that this sub- same exist when (vi) unavailability at the time of tri- The effect, chapter including habeas cor- takes has sub- exculpatory evidence that al of pus subchapter is and coram nobis. This and would sequently become available availability not intended to limit if of the trial changed the outcome have in trial court or on direct remedies it had been introduced. sentence, judgment nor appeal from the (vii) great- imposition The sentence subchapter provide intended maximum. er than the lawfiil prior raising means for issues waived Except specifically pro- proceedings. (viii) proceeding A in a tribunal without otherwise, provisions vided all of this sub- jurisdiction. chapter apply capital noncapi- shall 9543(a)(2). 42 Pa.C.S. tal cases. n supplied). majority The holds “Section Thus, pursuant express 9543(a)(2)(iii) to the directive of provision that re- is the sole legislature, the PCRA was intended to be [Lantzy’s] assistance of lates to ineffective litigating the sole vehicle for claims for col- it strikes me that the counsel claim.” While lateral relief in state court. petition implicate appellant’s averments of 9543(a)(2)(i) (ii), I be- both subsections 9543(a)(2)provides petition- Section intended, legislature lieve that the er, eligible in order to be for relief under the express provisions of the amended PCRA PCRA, prove by prepon- must ánd provide, involving deprivation that claims derance of the evidence: constitutionally guaranteed right (2) That the or result- conviction sentence cog- appeal to the Court are following: ed from one or more of the procedures nizable via the set forth (i) A violation of the Constitution of PCRA. this Commonwealth or the Constitution which, or laws of the United States legislature as intended case, particular the circumstances of the collaterally challenging sole7 means for truth-determining so undermined the convictions, carefully criminal has been adjudication that no reliable legislature provide a fair amended guilt or innocence could have taken judicial for the resolu and efficient vehicle place, [emphasis supplied] challenges to criminal con tion of collateral (ii) Ineffective assistance of counsel Supreme Court has assisted victions. Our which, par- in the circumstances of the by promulgating Rules of that endeavor ticular so undermined the truth- specifically designed to Criminal Procedure determining process that no reliable the efficient resolution such enhance adjudication innocence Pa.R.Crim.P. 1500-1510. claims. See: place, [emphasis sup- could have-taken nonetheless, relying on the recent majority, plied] Petroski, in panel decision Commonwealth (iii) plea guilty unlawfully A of induced (Pa.Super.1997), concludes that likely where the circumstances make it appeal, right of the to a direct the denial petition- (1) that the inducement caused the I, 9, of by Article Section our guaranteed plead petitioner is guilty er to and the constitution, process and the. due state innocent. the United equal protection and clauses of (iv) Constitution, presumably although improper by gov- States The obstruction procedure authorized right cognizable under some petitioner’s ernment officials of the joint; Dictionary separate; opposite of as a sole tenant. Collegiate de- the 7. Webster’s Ninth New as, "alone; person; opposite Comprising only the ... one fines the term "sole” inter alia: one”, Dictionary corporation. Without an- aggregate; as a sole Black’s Law de- the while individual; "Single; other or others.” fines the term "sole” as: Procedure, may of his counsel has “so under- Rules of Criminal tiveness the truth-determining process petition. via a mined the litigated be adjudication guilt or that no reliable panel in The of this Court Commonwealth place.” 42 could have taken innocence Petroski, supra, whether considered (ii). 9543(a)(2)® Petroski the constitutional to a the denial of petition has done neither. contains judgment appeal from of sentence direct deprivation that the of his no averment post- may by filing petition be cured any way appeal in un- only upon conviction relief based the al- process; truth-determining the dermined in fail- leged ineffectiveness of trial counsel that counsel’s nor does the aver ing to follow the client’s We instructions. appeal prevented a rehable de- failure the Relief Act hold Post Conviction guilt termination of or innocence. Com- requires plead both Tanner, peti- supra. Nor could the pare prove establishing that violation facts claims, make tion these because of the constitutional or the ineffec- truth-determining finding and a tiveness of counsel so undermined during guilt innocence both occur truth-determining process as to render a occurring judg- trial. Matters after guilty finding of unreliable. cannot determine what ment sentence panel in Petroski concluded Id. at 844. The has occurred before. that, allegation while an trial counsel supplied).9 (emphasis Id. at 846. had rendered ineffective assistance as re- sult of counsel’s failure to file a direct Court, Supreme howev United States petition- requested, thereby depriving 387, 105 er, Lucey, in S.Ct. Evitts v. U.S. er of his or her constitutional (1985), held that where a 83 L.Ed.2d 821 previously cognizable had been guaranteed, via its statutes or its state has 9543(a)(2)(v) Section constitution, right, appeal as then a direct by the Act of removal of that subsection designated appellate court “as ‘an it has any review of November foreclosed system finally ... integral part of the holding, This such a claim under the PCRA. adjudicating or innocence of upon majority in the instant which the relies Illinois, defendant,’ 351 U.S. Griffin conflicts, my opinion, controlling in with 585, 590, 100 891] L.Ed. [76 precedent from the United State deciding ap procedures used [and] Court, and, view, my strayful interpre- ais comport peals must with the demands legis- tation of the PCRA as amended our Equal Protection Clauses Due Process and lature in 1995.8 Lucey, supra, Evitts Constitution.” The Petroski reached its conclusion at 105 S.Ct. at 834. ineligibility the PCRA as for relief under supplied) Supreme Court The United States follows: that, “[b]y Lucey, supra, held in Evitts important that preju- deciding that an is so

It be that Petroski was well right, a it must available as a matter of failure to file an diced step However, the final we can reach the issue of state has ‘made before adjudication guilt or innocence of prejudiced by coun- whether Petroski was ease, Cunningham, Burkett v. Petroski must the individual.’” sel’s actions (3d Cir.1987), quoting the violation 826 F.2d both Lucey, supra, Evitts v. of his constitutional or the ineffec- 8. As our A. Cirillo noted in Commonwealth purpose preclude preclude 707 A.2d counsel’s of the relief where the distinguished colleague, ineffectiveness claims ineffectiveness.” ^[1995] amendments was not to (Pa.Super.1998): waiver was caused altogether P.J.E. Vincent v. Carbone, "|T]he or to 9. The ner appeal, peal Tanner, tionary appeal, does not seem to a claim appeal guaranteed as of of the was based not on a failure to in the challenge possibility but on a failure to advise while correct in involving Supreme to counsel's of seeking a a failure Court. right. the context of discre- stewardship validly applicable discretionary ap- The to file a direct the defendant file a direct analysis a in Tan- of supra at 847 (1985)(emphasis Commonwealth S.Ct. at 88 L.Ed.2d Petroski majority in the Judge (emphasis supplied). Zo supplied). colleague, learned Our holding relying upon holds Popovich, acknowledged the of ran instant Petroski Pa.Super. Greer, Lantzy required in Evitts Commonwealth that was where 554 A.2d preponderance prove, the panel of this Court held that “[s]ince evidence, his conviction resulted that the right has an as of convicted criminal assistance of counsel from “[ineffective Court, appeal to this to the the which, particular of the in the circumstance effect, is, adju step final in the Court the truth-determining case, so undermined the of an individual’s criminal status. dication adjudication of no process that reliable Evitts, at at place.” innocence could have guilt or taken at citing Griffin, 351 9543(a)(2)(iii)[sic].... Once 42 Pa.C.S. 590.” satisfied this threshold petitioner the law, Thus, controlling federal case under test, he or she must “that the under- Lantzy requirement the has met merit, arguable lying [that] claim is “under- establishing that counsel’s actions basis for the act counsel had no reasonable truth-determining mined the ...” question, but for [that] or omission Lantzy’s ap- precluded since counsel’s actions omission, counsel’s act or the outcome Court, step peal right to this the last different.” proceeding the would have been truth-determining process the of a criminal Appel, 547 Pa. Commonwealth V, by Art. trial in this state as established (1997); 891, 905 689 A.2d Pennsylvania Section 9 Constitution. Lewis, 634 A.2d [430 336] firmly legislature, I am that our convinced (Pa.Super.1993). amending fully aware of

United States Court Circuit ‡ ‡ ‡ ‡ precedent provides which that where a Petroski the PCRA [in ] We noted provides right state an as of to a petition contained no averment defendant, integral criminal is an ap- deprivation petitioner’s right to of the part “truth-determining process”. truth-determining Thus, peal compelled I undermined am to the conclusion that a Moreover, peti- process. at 847. Id. court-appointed perfect failure of counsel to counsel’s neglected tion to indicate how requested by an as of where prevented a reliable determination “compromises an act actions defendant is which Id. at 847. We held determining process”. truth or innocence. re- Relief Act that “the Post Conviction that, Moreover, I state believe both plead and quires that a both law, and federal where the defendant estab- establishing that the violation prove facts lishes that he has been denied the right or the ineffec- of the constitutional appeal, prejudice presumed. must be direct so undermined tiveness of counsel panel in Petroski held: truth-determining process as to render fur- appeal, goes ... Petroski no at 844. finding.of guilt unreliable.” Id. claim that he was denied his ther than to how Petroski did not demonstrate Because pleaded appeal, having after truth-determining process was affected alleging how the truth-de- guilty, without appeal, failure to termining process may affected have been properly denied. Id. at 847. appeal. are by his failure to we majority as it put, I with the Simply differ any harm unable to discern establishing requirements for construes resulted from counsel’s failure file have allegation is underlying prejudice where Petroski has not demonstrated constitutionally guaran- deprivation alleged how counsel’s ineffectiveness I am of since teed prejudice. to his worked denial of the Pierce, that evidence of the the mind 515 Pa. evidence is alone sufficient 975-76 298 appeal [United an 956 States

prejudice require the award of L.Ed.2d Supreme] pro Court said: nunc tunc.10 Deeds, the United States request for a certificate of the district court’s denial L.Ed.2d peals for the 9th Circuit Lozada v. 964 F.2d 956 appeal pursuant petition, stating: “Lozada demonstrate that an Lozada did not ceed.” to demonstrate resulted Relying ^[466] The United States Circuit Court U.S. 498 U.S. 956 have raised on on Strickland because the district court dismissed (1991), (9th Cir.1992), to 28 U.S.C. 104 S.Ct. Supreme 430, any prejudice that has identify any in a decision 111 in appeal might suc- v. appeal probable Washington, Court, on remand completely the defendant’s S.Ct. 80 L.Ed.2d nor did he deficiency. Lozada v. reversing issue 860, cause to Deeds, held: fails from Ap- 112 than the one followed 463 Wé ing that he was denied probable cause because lieve the that was tive assistance dice Courts Court. Since could be resolved dice alleged denial of certificate of dards set forth erred in 1090] Court rested Court of U.S. conclude that the Court prong Lozada this situation. ' issue of denying 880, 103 Appeals presumably Appeals’ decision of the Strickland its probable cause. We be made a substantial Strickland, at least' two of counsel. prejudice analysis Lozada S.Ct. have Barefoot a different the basis for the See 3383, presumed by the District under the stan a certificate of on the Abels v. Kai caused The District inquiry and [v. 77 of to effec L.Ed.2d Appeals manner deny Estelle, appeal preju preju show (C.A.10 1990); ser, 821, 823 913 F.2d request The district court denied Lozada’s States, F.2d Estes v. United appeal probable for a certificate of cause to (C.A.8 1989); Rodriquez v. see also pursuant also to 28 U.S.C. We 327, 330, States, United . probable denied the certificate of cause 23 L.Ed.2d previous cases. See consistent with our Appeals did The order of the Court (9th Lewis, United States v. 880 F.2d authority line of analyze this not cite or Cir.1989); Popoola, United States Estes, had which been as reflected in (9th Cir.1989); F.2d 811 and Katz Unit- issued the Ninth Circuit decided before (9th Cir.1990). States, ed 920 F.2d ruling. its Lewis, Popoola, and Katz all involve In each failure to file a notice of 431, 111 S.Ct. at 862. Id. 498 U.S. at prejudice a lack of either be- we found post- our whether We must now decide allege claimed error cause of a failure to holdings that a section Strickland we concluded that a direct or because where there allege prejudice must appeal would have been futile. appeal survive file a is a failure to notice in favor of Supreme holding our denial of Court’s Court reversed probable cause. probable cause. Lozada Lozada on the issue of the certificate of Deeds, they not. We hold do proce- Cappy post-verdict the basis of in Commonwealth motions on 10. As Justice observed Stock, (1996): like a similar 679 A.2d 760 dural default in a criminal Pa. improperly dismissal of criminal here, appellant’s ... Likewise if state constitu- on places counsel’s errors the entire burden of appeal any to an is to have mean- tional defendant.) powerless” Accord- criminal vindicated, ing can and is to be it ingly, court of common we conclude that the by granting pro him an nunc vindicated denying appel- pleas abused its discretion Furthermore, entirely tunc. it would be unfair tunc from lant leave to file an permit appellant’s in the criminal context to therefore, and, justice, reverse the district to be state constitutional an Court and remand order of extinguished solely on the basis of his counsel's proceedings with this case for not inconsistent timely appel- where failure to file opinion. requested to be filed. Com- lant had Stock, Ciotto, supra at 679 A.2d Commonwealth v. monwealth (1989)(“dismissal 764-765. 931 n. 1 n. Cir.1974). States, (9th question 327, 501 F.2d 381 Rodriquez v. United U.S. appeal simply to origi- 23 L.Ed.2d 340 was whether S.Ct. wrongfully Doyle v. In was denied. United Rodriquez; in this circuit. we nated Cir.1983). (9th decision, States, 721 had affirmed the district court’s F.2d 1195 2255 petitioner which held that a section Washington, v. Then came Strickland must disclose the “nature error and 687, 104 S.Ct. U.S. prejudice proposes by appeal which he to requirement its L.Ed.2d 674 with get Rodriquez to relief. correct” order that coun that the must show defendant (9th States, F.2d United performance was deficient and that sel’s rev’d, Cir.1967), performance prejudiced the the deficient reversing 23 L.Ed.2d 340 defense. did not cite Rodri Strickland affirmance, our Court said: quez, requiring and while its broad rule before, ‘[pres- has noted As this Court to showing prejudice could be read in appeal ent federal law has made an from negligence cases was clude where the judgment a District Court’s of conviction failure to file the Strick a notice is, effect, in a what criminal ease pointed land court out that in certain Sixth right.’ Coppedge matter of v. United contexts, pre prejudice Amendment is States, 441 [82 sumed. The said: “actual or con 21] 8 L.Ed.2d The Ninth structive assistance of denial counsel require an applicant Circuit seems to altogether presumed is to result in legally 2255 to U.S.C. show more prejudice.” 104 S.Ct. at 2067. Id. at simple deprivation than a of this before relief can be It accorded. also ‡ sj: ‡ requires him to show some likelihood presumed prejudice hold is un- We appeal; if the applicant success on is der if it is established that Strickland succeed, unlikely to the Ninth Circuit ap- counsel’s failure to file a notice of any would characterize denial of the peal petitioner’s con- without species right to as a of harmless sent. for a We remand determination ap- error. We cannot subscribe to this whether the failure to file the notice of proach. consent. If was without Lozada’s ... to appeal Those whose has entitled petitioner that is the been frustrated should be treated exact- by way writ. relief of a conditional ly any appellants; they like other should should release from writ order Lozada’s given not be an additional hurdle custody allows Lozada state unless Nevada just rights clear because their were vio- take a a reason- delayed within stage pro- lated at some earlier in the Pitchess, able time. See Gardner ceedings. Accordingly, we hold that the (9th Cir.1984); 637, 640 Abels v. Kai- F.2d rejecting petition- courts below erred in Cir.1990). (10th ser, F.2d application er’s for relief because of his Deeds, supra, at 956-959 Lozada v. 964 F.2d specify points failure to he would (footnote omitted) supplied). Sim- raise were his reinstated. that, ilarly, I believe where a defendant has 329-30, Rodriquez, 395 U.S. at 89 S.Ct. at established denial of prejudice nec- appeal, he established the Following Rodriquez, we the no extended essary tunc to allow an prejudice requirement to section 2254 regardless of nature or merit (9th Cupp, 415 F.2d 352 Cir. Gairson raise on issues desires to 1969). made it clear that not We accept I am the result unnecessary allege it for a While unable prejudice, majority and am mind but that we would not look at reached intended underlying claim that such result was not merits of the or error Craven, that such opinion I legislature, if am also of one was made. Sanders (9th Cir.1973); Craven, policy ill from Riser a result advised F.2d 478 6503(b)11 perspective. hearing Section the Judi relief be dismissed without a provides cial Code that the writ of habeas pleadings pur where the establish that no corpus remedy is not available whenever “a pose by proceedings. would be served further may by post-conviction hearing pro be had provision disposition No is made for of a ceedings by authorized law.” 42 Pa.C.S. petition corpus for writ of habeas without a 6503(b). See, e.g.: § Commonwealth See, hearing. e.g., v. Luck McNeil, 526, 530-534, Pa.Super. 445 665 A.2d ett, (Pa.Super.1997); 700 1014 A.2d Common 1247, (1995); 1249-1250 Commonwealth v. Banks, 143, 153-159, wealth v. 540 Pa. 656 Wolfe, Pa.Super. 413 (1995), denied, A.2d 472-474 cert. 516 allo, denied, Pa. 612 S.Ct. 133 L.Ed.2d (1992). If A.2d 985 it is determined that a (1995); Morris, Pa. claim of a a denial of to direct is 296, 684 A.2d 1037 cognizable not via the such claims interpretation proposed The of the PCRA may petitions and will be raised via for writ by majority require the in this case would corpus. of habeas narrowly so Section 9542 be construed Pennsylvania Article Section 14 of the provide proceeding the as to that no prohibits suspension, Constitution12 ex may by whose be filed a defendant invasion, cept in eases rebellion or of the state constitutional privilege corpus, of the writ of habeas petition has been violated. A for a writ guarantee implemented by provisions corpus become a viable habeas would then Chapter 65 of the Judicial Code. Section 6504 means of where the claim involves redress hearing requires the Judicial Code that a deprivation of a state or federal constitution- on the return of a writ must be held “within longer cognizable under al is no which days good three unless for cause additional majority’s interpretation of the PCRA. time, exceeding days, not allowed.” likely impose Such a result will an additional added) § 6504.13 See: courts, are con- upon burden our trial which Smith, Commonwealth v. in the tinually confronted with an increase 642-643, While no trials, correspond- number of criminal imposed upon hearings time limits are or peti- ing increase in the number of PCRA proceedings under the PCRA Rule 1507 of through- provides by tions inmates incarcerated the Rules of Criminal Procedure filed post-conviction collateral out this Provision has been Commonwealth. provides: provides: 11. The Judicial Code 13. Section 6504 of the Judicial Code § Right apply 6503. for writ on writ 6504. Return (a) rule.—Except provided General in sub- writ, why the show cause or the order to (b), application corpus section an for habeas issue, shall be directed to writ should not inquire into the cause of detention be person having custody person detained. brought by any person or on behalf of re- days three unless It shall be returned within liberty strained of Common- within time, exceeding good additional cause any pretense wealth under whatsoever. days, (b) person Exception.—Where person is allowed. The whom is restrained by virtue of sentence after conviction for a writ or the directed shall make order is offense, corpus criminal the writ of habeas certifying the deten- return the true cause of remedy may shall not be available if a be had and, by except prescribed tion as otherwise by post-conviction hearing proceedings autho- court, general by rules or rule or order of shall rized law.' produce hearing body person at the 42 Pa.C.S. 6503. detained. 42 Pa.C.S. 6504. Pennsylvania 12. Article Section 14 of the Con- stitution states: Kindt, (3d See, e.g.: Story 26 F.3d 402 bailable; § 14. Prisoners to be habeas cor- Cir.1994), denied, rt. ce pus (1994); Wojtczak v. Ful 130 L.Ed.2d 506 prisoners All shall be bailable sufficient comer, (3d Cir.1986); 800 F.2d 353 Burkett sureties, capital unless for offenses when the (3d Cir.1987) (Burk Cunningham, F.2d 1208 proof presumption great; is evident or and the Fulcomer, (3d I), ett Hankins v. 941 F.2d 246 privilege corpus of the writ of habeas shall not 1991); Brierley, Cir. States ex rel. Senk v. suspended, United unless when case of rebellion Cir.1973). (3d public safety may require it. 471 F.2d 657 invasion legislature made prompt disposition

Court for the of PCRA

petitions clearly which are meritless without evidentiary hearing, need for expenditure

without wasteful of those necessary transport prisoners

resources across the Commonwealth.

back and forth procedures implement enacted constitutionally guaranteed

exercise of the not, however, corpus mir-.

writ of habeas do expedited disposition provisions

ror those for of resources. conservation I believe that the denial of the since

constitutionally guaranteed via the PCRA cognizable

evidence the denial of that is alone prejudice require

sufficient evidence of tunc,

award of an I must

respectfully dissent. POPOVICH, JJ.,

CAVANAUGH

joined. Pennsylvania,

COMMONWEALTH of

Appellee, VALERIO, Appellant. Raphael

Amable Pennsylvania. 26, 1998.

Submitted Jan. April

Filed Defender, Gough, P. Public Mil-

Michael ford, appellant. Guccini, Atty., Dist. Mil- R. Asst.

Steven ford, Com., appellee.

Case Details

Case Name: Commonwealth v. Lantzy

Court Name: Superior Court of Pennsylvania

Date Published: Apr 13, 1998

Citation: 712 A.2d 288

Court Abbreviation: Pa. Super. Ct.