*1 have made persuasive. I find these authorities Contractors to return the refund to the School showing they no intend Instead, District, they seek a actually paid who fee. I would hold that Con- Accordingly, windfall themselves. fact, not the injury proper tractors have suffered no are person aggrieved refund and are not a parties to receive the § I would therefore affirm the pursuant to 72 P.S. 5566c. Court. Order the Commonwealth join FLAHERTY Chief Justice and Justice NIGRO Dissenting Opinion.
Before CASTILLE, NIGRO, SAYLOR, NEWMAN and JJ. THE JUDGMENT
OPINION ANNOUNCING THE COURT OF FLAHERTY, Chief Justice. in relief post-conviction from the denial of
This is an
of the case was described
background
capital
case.
on Michael’s direct
of the court
fully
opinion
in the
Michael,
sentence,
544 Pa.
Commonwealth v.
from his death
(1996),
briefly here.
and will be summarized
Due to Michael’s
for
by
appeal,
issues raised
his direct
appellant
consider
evidence,
sufficiency
but limited its review the
sentence,
evi-
imposition
of arbitrariness
possibility
circumstance,
propor-
aggravating
dence of at least one
Id.,
in similar cases.
tionality of the sentence to sentences
Pa. at
Represented by Legal new Center Education, & Defense Assistance, Advocacy filed a under the PCRA. The trial court held a petition collateral hearing, subsequently appeal denied relief. This is his petition. from the denial of his PCRA , this was Michael ex- appeal pending, again While PCRA pressed unwillingness his to contest his death sentence. He affidavit, stating filed an this time that he wanted to withdraw Michael’s counsel the court to appeal. petitioned PCRA his his deny request, questioning competence mental to make such a decision. Inasmuch as Michael’s direct had request been truncated due to his that the death sentence be affirmed, we remanded for determination the trial court to make competent whether Michael was the decision appeal. discontinue this PCRA August February On the Court County hearings Common Pleas of York held on Michael’s including psychiatric testimony mental on wheth- competence, might er Michael’s decision not contest his death sentence product underlying have been the of an mental illness. The court that no mental found illness had been established record, court and the certified the record this court with that, evidence, finding psychiatric based on and other Michael competent appeal, despite withdraw PCRA definite awareness that to discontinue the would most likely lead to his execution. *5 competency finding this court could review
Before in 28,1999 a new affidavit court, Michael filed January on trial of his PCRA to the merits asked this court decide which he to request essentially repudiating withdraw appeal quickly, decided, therefore, all the to review We have appeal. proceeding. Michael this PCRA by issues raised from in his denial raises nine issues Michael our of the issues organized discussion PCRA relief.1 We of review share the same standard ones which group which on considerations bear legal factual or other common Most, all, of the claims made but not adjudication. our A few of ineffectiveness of counsel. allege appellant statutory requirements appli- subject specific claims are others. cable
First, allegations on will review the issues based we issues, ap- these respect With ineffectiveness of counsel. set forth Commonwealth must meet the standard pellant (1987) Pierce, consistently 515 Pa. 527 A.2d cases. We have stated: subsequent and applied reiterated deprived that he was effective appellant argues When an demonstrate, counsel, according to he must assistance of (1) that progeny: its Commonwealth v. Pierce and brief, they presented are: 1. As in Michael's of counsel in appellant was denied effective assistance 1. Whether requests with- improper denial of his relation to the trial court’s guilty plea; draw his appellant assistance of counsel 2. whether was denied effective improper requests for court’s denial of relation to the trial counsel; different guilty plea entered as a result of appellant’s 3. whether counsel; assistance of ineffective failing to inves- 4. whether counsel was ineffective incompetency; tigate present significant of his indicia constitutionally penalty unre- stipulated-to death 5. whether liable; sentencing capital whether ineffective assistance of counsel at 6. infirm; constitutionally rendered the death sentence appellant plead guilty permit to first- 7. whether it was error to degree-of-guilt hearing; degree holding without murder kidnapping to relief from his 8. whether is entitled conviction; and appellant is entitled to relief due to cumulative error. 9. whether (2) merit; underlying arguable claim is of that counsel’s (3) unreasonable; performance was that counsel’s inef- Also, prejudiced post-conviction fectiveness defendant. re- previously litigated view of claims cannot be *6 by alleging prior by obtained ineffectiveness counsel and presenting new theories of relief to support previously Further, litigated claims. counsel cannot be considered for failing ineffective to assert a meritless claim. 42 Appellant § is Pa.C.S. 9543 to required demon- 9543(a) eligibility strate for relief under the PCRA. Section mandates that of error has not appellant’s allegation been previously litigated and that other conditions have been met. 9544(a)(2), § According to 42 an Pa.C.S. issue has been in previously litigated highest appellate when “the court petitioner which the could have had review as a matter of ” right has ruled on the merits of the issue.... Peterkin, Commonwealth v. 455, 460-61, 121, 538 Pa. 649 A.2d denied, cert. (1994), 123 515 U.S. 115 S.Ct. (1995) (citations omitted). L.Ed.2d 821 A petitioner PCRA must plead prove allegation also and that the of error has not 9544(b), § to 42 According been waived. Pa.C.S. “an issue is waived if petitioner could have raised it but failed to so do trial, trial, before ... on or in a prior postcon state An proceeding.” viction additional requirement, relevant claims, one of is petitioner claiming Michael’s that a that his guilty plea unlawfully prove induced must also plead likely that the circumstances it that make he is innocent. 9543(a)(2)(iii). § Pa.C.S.
The first issue based on ineffectiveness is whether it was error for the trial court to deny request Michael’s to withdraw trial, guilty plea prior and whether trial counsel provid- ed with respect ineffective assistance to this issue. Michael argues judge, that the trial refusing request, violated Forbes, holding Commonwealth 450 Pa. 299 A.2d (1973), petition that a to withdraw a guilty plea should be and must be granted liberally, granted if fair there just therefore if it substantially prejudice reason will not prosecution. claims Michael that the trial court erred in court’s based on the guilty plea of his withdrawal denying prejudiced be prosecution would finding that insufficient that there would be any way” “in or “to some extent” Commonwealth,” or that with- financial burden to the “great Forbes, delay.” result substantial plea of the “would drawal appellant argues prejudice; substantial supra, requires be requirement prejudice ignored court the trial substantial, cited “prejudice” examples claims that the by the contemplated to the level court do not rise by the Forbes. court supreme argu rejection require
Two omissions of Forbes— First, dual ignores requirements it ment. just fair and reason allegation be an of a there must first guilty plea question before the withdrawal with request Michael’s At the time of arises. prejudice justify that would withdraw alleged nothing he plea, draw that he was only allegations petition al. His was based *7 and that he guilty plea entering at the time of incompetent coun with trial inability an to communicate experiencing was and have by the record been claims are belied sel. These deny not error adversely to Michael. It was litigated any good ground for withdrawal allege which failed to petition in a Second, ineffectiveness argues plea. appellant of the trial counsel should suggests nothing that vacuum. He guilty to withdraw permission appellant done to obtain to this issue which respect with allegations There are no plea. Peterkin, of Commonwealth v. satisfy requirements would substandard, that supra, act or omission was that counsel’s it, was no reasonable basis for there was i.e., likely have been the outcome of trial would prejudiced, or omission. questionable for the act different were it not in pursued should have allege Failure to what course counsel by an assistance review provide precludes effective order Pettus, court. Commonwealth v. 492 Pa. appellate (1981) (“Assertions in a of ineffectiveness A.2d ineffectiveness.”). that Michael We hold vacuum cannot be respect of counsel with has not ineffectiveness established guilty plea. withdrawal of his argument
Michael’s next trial counsel was inef him to obtain different counsel and that the assisting fective him denying trial court erred new counsel.
Again, specify Michael fails to what course his counsel could pursued or should have which would have constituted effective support finding assistance. This omission cannot of ineffec- prefatory, as it fails to fulfill the need to tiveness foundational actually that counsel’s of conduct was demonstrate course This constitutes a violation of questionable. substandard Pettus, as it the court with no supra, provides basis performance destroys argument evaluate counsel’s che ineffectiveness, has ineffectiveness. Without the issue been for failure to raise the issue on direct appeal. waived 9544(b). § Pa.C.S. guilty
Michael’s contention is that his plea next product of ineffective gist assistance counsel. that, argument is after he had confessed that he committed evidence, the murder and had he provided corroborating when change later to and claim he had year story decided nothing to do with the crime counsel was somehow remiss in refusing to assist him in new at trial presenting story thereby unlawfully inducing guilty plea, Michael’s which was involuntary by rendered counsel’s ineffectiveness. The crux alleged concluding, of counsel’s ineffectiveness was without any investigation, exculpatory story that the was a complete fabrication. 159, 164-65, v. Fahy,
We stated Commonwealth 549 Pa. (1997): 1256, 1259 700 A.2d right
The defendant in Michael waived his to a trial and *8 pleaded guilty degree kidnaping first murder and [sic]. accepting guilty plea, Before the the trial court conducted if colloquy an extensive to determine the waiver was know- and ing voluntary. questioned The court the defendant order to determine:
That carefully he had discussed the matter with his attorney, that him charges against he understood the murder, the of including charge degree right first his to a innocence, trial, of the presumption trial or bench jury right to confront proof, burden Commonwealth’s witnesses, rights, his waiver those Commonwealth’s the voluntariness upon guilty, rights pleading his limited murder, first that the degree elements of plea, of his life degree imprison- murder either first penalty for a separate be at which would determined ment death in- sentencing hearing rights at the hearing, that his circumstances, present any mitigating right clud[e] counsel. and that he was satisfied with Id., at n. 2. 108 n. 674 A.2d [544 Pa.] stipu- Michael sentencing phase, At the defendant right waived his and aggravating lated to the circumstances The court circumstances. trial any mitigating to present whether colloquy an extensive to determine again conducted that, stipulation if he into the entered petitioner understood evidence, the right mitigation to present and waived if court asked he would The penalty imposed. death be impose right jury he had a have understood that impris- him to might that a sentence life jury sentence and facts in court that under the Michael onment. This held waiv- accepted the defendant’s appropriately the trial court ers. clearly in Michael itself Fahy synopsis opinion
The Title 42 previously litigated. this issue was establish that 9544(a)(2) § precludes revisitation of issue. Pa.C.S. The counsel was inef next issue is whether Michael’s present significant indicia failing investigate fective for that to argues trial. incompetency Appellant stand incompetent when is a subject defendant trial he is Oklahoma, U.S. process. Cooper violation due (1996). He argues 116 S.Ct. 134 L.Ed.2d aware Michael had been was or should been counsel school, had “learning problems,” “attempted had a failure emotional,” “very depression,” suicide” and “suffered was “defensive,” “withdrawn,” “isolated,” “cried,” “moody,” swings,” mood “upset,” “major “suffered experienced argument is that neglectful an abusive and childhood.” *9 366
all these factors should have alerted counsel to the possibility that Michael have been might incompetent, obligating counsel least to an investigation including by at conduct evaluation mental health order to the experts, protect accused from being subjected to criminal when he proceedings may have been incompetent. of competency litigated issue Michael’s has been nu during prosecution
merous times in numerous contexts of this case. He has failed to establish incompetency stage litigation, of this and has thus to meet failed his burden 487, proof Kennedy, of under Commonwealth v. 451 Pa. (1973) (“[T]he A.2d asserting 892 person mental trial of incompetence proving to stand has the burden incom evidence.”). by a To couch' petency preponderance competency in terms of is question ineffectiveness of counsel merely restate the issue guise; new issue has been however, finally litigated, is entitled to no relief. We stated Commonwealth v. 550 Pa. Henry, (1997), A.2d “a defendant cannot obtain post- conviction of previously litigated by review claims alleging ineffective of assistance counsel and new presenting theories relief,” Peterkin, citing supra. of Commonwealth v. argument
Michael’s next that trial counsel’s ineffec capital sentencing tiveness at rendered death sentence constitutionally infirm. The basis of this claim is that stipulation of two aggravating significant circumstances —a history felony of prior killing during convictions and perpetration felony proves of a ineffectiveness counsel — Moreover, aggravating because both factors were debatable. stipulation counsel’s that there were no mitigating factors was knowingly representation false which violated the rules conduct, according Finally, ethical to Michael. he argues that investigate counsel was obligated present indicia shortcomings Michael’s mental psychological burdens counsel, known and was in failing ineffective to do so. Pennsylvania Rule 1.2 of the Rules of Professional Conduct provides pertinent part:
(a) concerning by decisions lawyer A shall abide a client’s consult with ... shall objectives representation they be pur- are to as to the means which the client case, by the lawyer shall abide In a criminal sued .... *10 decision, lawyer, as to a consultation with the client’s after entered, jury to trial and whether whether waive plea to be testify. the will client by Michael’s decision obligated to abide ethically
Counsel was present as well as refusal regard guilty plea with no for ground There is therefore mitigation. evidence of in of trial counsel’s aspects these alleging ineffectiveness addition, In this claim as presents as Michael representation. that the deprivation, plead prove he must a constitutional that no truth-determining process the violation so undermined or innocence could have taken adjudication guilt of reliable 9543(a)(2)(I). (See of the § discussion 42 Pa.C.S. place. infra.) do, absolutely This has failed to and is Michael statute claim. no relief therefore entitled of presented terms remaining arguments The are counsel, trial error or allege of but court ineffectiveness The these deprivations. applicable constitutional standards that conviction or alleging issues as follows. When the are violation of the state constitution or sentence resulted from a States, petitioner or of the the constitution laws United of preponderance must the evidence that plead prove by case, violation, particular “in so the circumstances no reliable truth-determining process undermined the that guilt place.” innocence could have taken adjudication or 9543(a)(2)(1). § that the same standard Pa.C.S. We held proceedings, though, arguably, applies penalty-phase is, at stage, longer at that no question guilt innocence Chester, Pa. 733 A.2d issue. v. Commonwealth (1999). 1242, 1250 “stipulated- first of claims is that Michael’s these stipulated is constitutionally
to” death unreliable. He penalty no miti two circumstances and aggravating that there were circumstances, sentence. Michael gating requiring a death Ohio, 2954, 57 438 U.S. 98 S.Ct. cites Lockett (1978), L.Ed.2d proposition “[presentation of mitigating consideration evidence is ... an absolute death,” prerequisite imposition constitutional in the words of Michael’s brief. decision,
Contrary to Michael’s characterization of the
how-
ever,
plurality
Lockett concluded that
Eighth
“the
sentencer,
Fourteenth Amendments
in all
require
but
case,
the rarest
not be
from
capital
precluded
kind
consider-
ing
a mitigating factor, any aspect
as
of a defendant’s charac-
ter or
record and
of the circumstances of the offense that
proffers
defendant
as a basis for a
less than
sentence
2964-65,
death.”
Id. at
98 S.Ct.
The issue is next whether the trial court erred in Michael to to permitting plead guilty murder first-degree and hold a failing degree-of-guilt Michael hearing. alleges that such procedure permitted is not under court’s and, precedents 353, furthermore, nor under Pa.R.Crim.P. right against self-incrimination guaranteed by violated the federal and state constitutions. allegation
We cannot review this
again, as it has been
previously litigated and has been waived.
direct appeal,
On
this court conducted an
the
independent review of
record to
determine whether there was sufficient
evidence
support
plea
Michael’s
murder
first-degree
imposition
and
of the
death
Michael’s plea
judgment
sentence.
and
of sentence
Michael,
were
supra. Regarding
validity
affirmed.
the
of the
here,
guilty
waiver
plea
Fahy,
and
see
Justice CASTILLE, Justice, concurring. join majority opinion exception
I
with the
claims
why
appellant’s
it
merits of
explanation of
reaches the
has,
times,
this case where
at various
appellant
expressed a
to proceed
desire not
his appeal.
with
16, 1998,
April
On
after this PCRA
had been briefed
Court,
appellant
and submitted
wrote to the Common-
wealth
it
that
requesting
appropriate
forward to
court a
letter in
he
that
pursue
which
he did not wish to
stated
upon
letter,
further appeals. Based
that
the Commonwealth
requested a
colloquy
remand to
PCRA court for a
under
159,
(1997),
Commonwealth v.
549 Pa.
Fahy,
On upon December consideration of the colloquy transcript, Court remanded to the PCRA for court anoth- er hearing augment record to include psychiatric evi- relating dence to appellant’s withdrawal request, including whether, claimed, as counsel an mental underlying predicate illness was the for appellant’s request. The PCRA court hearing February However, scheduled the 1999. on February appellant’s counsel wrote to the court cancelled, to have the attempted hearing ground on the that appellant prepared had a new affidavit on January affidavit, 1999. In appellant averred that he did wish examination, to undergo any psychiatric nor he did wish to undergo “any proceedings County my York about desires Instead, with regard my case.” now claimed to prefer “quick decision the merits” of his pending appeal Court, in this requesting up “be moved ahead *13 cancel request court denied the The PCRA of other cases.” hearing. A. 23, 1999, Larry Rotenberg, Dr. hearing, February At the and director neurologist psychiatrist a board-certified Center, testi- Reading Hospital Medical at the psychiatry illness, major but from no mental suffered appellant fied that disorder, him to which led personality had a narcissistic N.T. special treatment. that was entitled believe he 2/23/99 in part upon a was based Rotenberg’s opinion Dr. 8-13. completed he December evaluation psychiatric trial, Appellant had refused to since appellant’s anticipation further stated Rotenberg Dr. submit to a new examination. waive further collateral review that desire to illness, his desire upon but rather not based on a mental could not tolerate appeal resolution his because he speedy who Rotenberg, appellant Dr. observed delay. Specifically, [today] Defendant hearing, “[t]he at the testified that testify lucid, manipu- be and somewhat showed coherent himself lative, logical, nondepressed, him to be ... and so it showed nondemented, suffering and not from men- nonpsychotic, illness.” Id. tal at 38. court hearing, PCRA asked
At same January speedy requesting whether his letter change his wishes: appeal represented of his resolution you you your state want Court: affidavit your [I]n Pennsylvania Supreme Court. by the quickly issues decided want decided you your me that indicates that do To longer are mind and no changing your you are you the appeal. withdraw saying I saying, it want guess up by I we could sum
[Appellant]: I it would like possible. forward as fast as this move one-way settle it go Supreme into the Court and them or another. [sic] to corroborate
Id. at 32-33. testimony certainly This seemed hearing, At the conclusion of the opinion. Dr. Rotenberg’s “mentally and also competent” court found appellant PCRA to his component” was no “mental health found that there previous request to withdraw further waive review. N.T. at 41. The recognized, court also howev- 2/23/99 er, affidavit, appellant’s January which import he essentially adopted testimony at the February hearing, *14 a of suggested “change mind.” appeal,
Before we could rule on including question the the of appellant validly right whether had waived his further to review, appellant apparently changed yet collateral his mind 17,1999, In again. a letter dated “To June addressed the Courts,” Commonwealth, but forwarded to the appellant again pursue any stated that he not to appeals.1 does further wish The Commonwealth that as an included letter Exhibit to a to appellant’s appeal that, Motion Dismiss ground on the letter, through again the he had indicated desire not to further pursue Appellant’s review. filed an in counsel answer best, that, opposition, at stating allegedly by letter written was of example another appellant’s “vacillation” concerning his to pursue desire further review. why
In it claims explaining reviewing merits, majority only refers to appellant’s January 1999, affidavit, which it construes as “essentially repudiating” previous his to request appeal. Majority Op. withdraw 1276. If that all to were there was this I could question, not I agree, reasoning as believe such to be inconsistent with this opinion Fahy, Court’s supra.
1. The June
letter reads as follows:
To the Courts:
I,
Michael,
I would like
it known
Hubert
do not
to
wish
any
appeals regarding my
further
homicide conviction in York coun-
ty.
any appeals regarding any
do I
Nor
wish
other convictions.
I
pled guilty
guilty.
to homicide
was
I
because I
was not coerced into
making
plea,
promised anything
this
making
nor was I
in return for
plea.
this
insanity
There are no
to be
issues
raised in this
I was
case.
of
sound mind at the time of the
homicide.
I was
sound mind at the
my
during
time
arrest.
I was
also
sound mind
all court
proceedings, and am of
type
I
sound mind as I
this letter.
attorney’s
my
represent
who
[sic]
claim
best interests in
only trying
promote
agenda.
they
court are
their own
are
As
opposed
penalty. They
to the death
know their
hearts that I am
mentally competent,
expressed
and have
fact
this to
conver-
in me.
sation.
this
pending before
serial PCRA
was
Fahy’s
While
Court,
petition asking
Court
Fahy filed a handwritten
and withdraw
proceedings
him to
all collateral
allow
waive
carried out.
his
could be
death sentence
any appeals so
requested
remand
appointed
subsequently
counsel
Fahy’s
all
to waive
collateral
Fahy
competent
was
determine whether
colloquy
for a
the matter
We remanded
proceedings.
consequences
Fahy fully understood
determine whether
all collateral
and to waive
request
his
to withdraw his
remand,
a full
PCRA court conducted
On
proceedings.
consistently
testified
with
during
Fahy
which
colloquy
ie.,
by
further
filed
petitions
he did
want
petition,
Legal
from the Center for
counsel
counsel
appointed
(CLEADA),
Education,
who
Advocacy and Defense Assistance
full
conducting
case. After
involved themselves
had
Fahy
competent
court found that
colloquy,
PCRA
*15
to
right
waived his
further collateral
knowingly
that he
1259.
But still the matter is not so simple. record evidence regarding desire to appellant’s pursue this is equivocal hearing, best. At appellant at one insisted that not he did pursue At appeals. hearing, wish the next he stated thereafter, opposite. Shortly he wrote another purportedly reverting position. Moreover, letter his waiver given orders, nature of our finding remand we do have a time; regarding instead, waiver particular point at we fully supported findings that is appellant competent determination, make that and that he understands the conse- of a quences decision waive.
At point, this it yet seems me we could remand again for a definitive factual determination whether appellant, entails, who competent understands what waiver But, to proceed wants with his it. withdraw/waive record, I given appellant’s established track see prospect little since, that this course resolve would matter we before finding, could review the change could his mind Since no again. finding there is of a valid waiver to review (unlike point in Fahy), and since last record *16 expression to pursue appeal, agree the I with majori- ty’s presented determination to review the claims in this appeal. claims,
I would also
that reaching
note
rather
than'
remanding,
is
appellant’s
sensible here because
vacillation
already has
an-
created
and
unnecessary
delay
substantial
orderly
Although
resolution
this matter.
it
may
intention,
have been this
conscious
I am
appellant’s
mindful
that,
deliberately
such
-could be
employed
vacillation
aas
including a death-
Any party,
cases.
capital
tactic
delaying
pursue
not to
collateral
convict,
free to choose
is
sentenced
however,
Court,
fact-finding body.
This
is not
review.
withdraw,
to
concerning
request
dispute
faced with a
When
an
voluntary nature of
intelligent,
knowing,
review,
necessity
must of
further
we
to
expression
waive
Continued
for a factual determination.
the matter
remand
ping-
an endless
could create
vacillation
the defendant
courts.
appellate
trial and
between the
matter
ponging
course,
end in itself for
cases,
is often an
delay
In
capital
has
Rehnquist
Justice
prisoner. As Chief
the death-sentenced
facing capital
noted,
litigating incentives
there are “different
Murphy,
noncapital defendants.” Lindh
U.S.
(1997)
(Rehnquist,
Noncapital released, as presumably petitions seeking to be file habeas In to They delay.... have no incentive possible. soon as execution, contrast, defendants, facing impending capital incentive, therefore, is executed. Their seek to avoid being out of possible delay carrying utilize means to every their sentence.
Id. capital for a I would be not to create incentive careful that, Thus delay into his it is appeal. defendant build claims, record, not- I am satisfied to review this off-again of disinclina- withstanding on-again, expressions pursue relief. tion
SAYLOR, Justice, dissenting. 17,1999, submitted a letter to this Court Appellant
On June appeal. Accord- expressing present desire abandon the for a I would to the PCRA court determination ingly, remand volun- apparent knowing, as to whether waiver Appellant’s tary intelligent. I claims
Although Appellant’s not reach the merits of would majority’s with juncture, my disagreement I note trial coun- disposition concerning the issue approach alleged failing present mitigating sel’s ineffectiveness *17 penalty phase circumstances of trial. Prior to the penalty phase, Appellant expressed stipulate a desire to to the aggravating existence of several factors and the absence of factors, any mitigating functionally agreeing to death sen See § tence. 9711(c)(1)(iv)(providing Pa.C.S. “the be a if verdict must sentence of death the jury unanimously at aggravating finds least one sub specified circumstance (d) circumstances”). section and no mitigating Apprehending of such gravity stipulation, trial court conducted an on- colloquy, Appellant essentially the-record in which confirmed his understanding of the from penalty would result stipulation; indicated that he had been concerning advised penalty nature of the phase proceeding aggra and the role of circumstances; vating mitigating and and maintained that he was nonetheless proceeding stipulation. committed to on the Nevertheless, court, quite trial appropriately, instructed to fully trial counsel for the prepare penalty phase proceeding as follows:
Now, you understand that though you given even those instructions, my to instructions are going [trial counsel] can everything possibly be do that he think of to prepare defense, discussions I’m including you. further with going daily direct that he remain in contact you with make you sure haven’t changed your going mind. I’m to have him your family contact friends your other wit- may possibly nesses that be available to have them and to have available. subpoenaed them The trial court also secured such Appellant’s prepa- consent to Further, ration. penalty phase proceeding, upon the proffer actual stipulation, trial court conducted a colloquy, second in which Appellant stated that his decision voluntary, again acknowledged understanding con- cerning the effect of the stipulation, and indicated that he trial prepared actually believed that counsel was conduct the defense. however, difficulty, contemporaneous, is that there is no description
on-the-record preparation. of trial counsel’s actual case, Pertaining penalty capital to the I phase believe opposes the that, cooperate a client fails to even where defense, conduct obligation of a counsel retains proffer Singletary, Johnston v. investigation. a reasonable See *18 (11th Evatt, 630, Cir.1998); v. 105 F.3d F.3d Matthews th(4 Cir.1997); v. 943 F.2d Singletary, Blanco (11th Cir.1991). Notwithstanding client’s expressed the wishes, an on- by trial counsel and lacking proper preparation no there is preparation, simply the-record articulation the in the trial record from which to assess whether basis generally See properly decisions were informed. defendant’s (Fla.1995).1 State, Holding 662 So.2d 328-29 Allen capital risk that a counsel such a standard eliminates the defendant, advocate cannot frame a colorable defense whose generated investiga facts from around concrete reasonable tion, might hope for that reason alone that there is no decide avoiding least outcome. the favorable case, so obligat-
In the even if trial counsel was not present jurisprudence, ed our the record discloses that capital him to full prepa- trial court instructed undertake specifically Yet, no only contemporaneous ration. there record did, at concerning actually upon what counsel his examination hearing, preparation the PCRA trial counsel characterized identify “cursory.” Although as he was able to several wit- (a mem- “maybe family nesses close friend and some of bers”), “very trial as minor” counsel described the evidence heavily upon and relied wishes to ex- Appellant’s expressed fully prepare: cuse his failure to investigation areas of
Q: your tap] mitiga- [Did other family dynamics tion or abuse regarding issues talked we had about? absolutely necessary permit investiga-
1. If the refuses to defendant tion, give seeking permission counsel should consideration to with- draw, perform representa- since he cannot an essential function of his tion; minimum, at a should trial court be informed the earliest (since obviously opportunity investigation upon begin counsel’s should representation, trial the commencement the involvement of the long penalty before the eve of court should occur commencement trial). phase of A: Well, did, certainly it certainly I was aware of that.
You have to understand I a cursory did preparation based judge’s request [Appellant] do so. was instruct- ing along fact, me all from point not to. In he did so at the sentencing proceeding.
THE COURT: you you [D]id did not make a complete
preparation present mitigating circumstances? You referred to You cursory. referred to quick investigation. Did the Court not you instruct to do a complete defense for mitigation? you Did understand that was you what were to do? Yes,
A: Your Honor.
THE COURT: you Did do it? know, A: I Honor, don’t Your Honor. Your I’ll you tell what I did do. I talked to these I witnesses. talked to Mr. wanted, Michael about who he what he wanted to *19 present. did, That’s what I you know.
Relative to the development of potential mental health mitiga- evidence, tion trial counsel also indicated as follows: Maybe that’s what do, trial [the court] wanted me to you but have to understand Mr. Michael did not want mitigation. But all certainly you’ve those that raised could have been mitigating factors in a death penalty proceeding.
Counsel proceeded as despite indicated the fact that the trial court'had secured Appellant’s on-the-record consent to full preparation, and counsel never reported to the trial court that such consent was subsequently withdrawn. It is signifi- also cant that post-conviction counsel was able to create substan- tial record of mitigating evidence the PCRA hearing. record,
On
I
cannot agree with
majority
that the
Rule of Professional Conduct
pertaining
general
scope
of an attorney’s representation would apply to obviate review
of trial counsel’s actual performance as it relates to Appel-
lant’s decision to accept the death penalty.
notes
conviction. Michael
kidnapping
from his
relief
conviction,
ground
it constituted
of this
as
crucial nature
his death
supporting
circumstances
aggravating
one of
specific
no
that there was
evidence
alleges
He
penalty.
issue,
This
kidnapping.
crime of
required for the
intent
Michael,
however,
supra,
appeal,
litigated
was also
direct
subject
is therefore not