*1 A.2d 597 Pennsylvania, Appellee, COMMONWEALTH O’BERG, Appellant. T. William Pennsylvania. Supreme Court Nov. 2004. Submitted Aug. Decided *2 Herr, T. O’Berg. for William Esq., Vicki Ellen Gricar, Burns, Jr., Belle- Esq., Hugh Esq., Frank J. Ray fonte, of Pennsylvania. for Commonwealth CAPPY, C.J., CASTILLE, NIGRO,
BEFORE: SAYLOR, BAER, NEWMAN, EAKIN and JJ.
OPINION Chief Justice CAPPY. Pa.
In held, rule, (2002), this as a until the assistance of counsel should be deferred ineffective case, proceedings. collateral review Appellant’s claim of inef- and dismissed applied Grant Presently, are asked to assistance of counsel. fective *3 a “short sen- recognize consider whether court should in For to the rule announced Grant. exception general tence” herein, of agree disposition the the the reasons stated with reject Ac- exception. a “short sentence” Superior Court the judgment we affirm of sentence. cordingly, case that Appellant facts to the instant are The relevant early morning riot in the hours of participated July a street College, Pennsylvania. During the course of 2000 at State riot, pounding in the on police the observed individuals crowd bring cars two or three individuals shake and and observed lamp police down a was observed the post. Appellant the of As during course the incident. shaking lamp post incident, police charged in the the participation result of his disorderly the of con- Appellant with misdemeanor offenses disorderly disperse of a and with person duct and failure jury of criminal mischief. A summary offense convicted charges three on November 2000. On Appellant all 14, 2000, trial court Appellant December sentenced in prison plus and a half days twenty-three months thirty trial court’s also provided of fines. The order payment on bail until his was could remain free Appellant opted final. his Appellant ultimately begin- serve sentence ning summer 2002.1 motion,
Appellant post-sentence filed and the court sched- hearing uled a related to the motion. Following hearing, the trial denied post-sentence court motion. New counsel entered an on behalf and filed a appearance Appellant’s Notice of Appeal Superior in the May Appellant Court 23, 2002, filed in the his brief Court on October Superior challenging sufficiency raising evidence and an issue related to counsel’s at trial. effectiveness 10, 2003,
On September affirmed the judgment of sentence. The found the evidence was Further, support sufficient to the convictions. the court con- Appellant’s cluded that challenge subject announced Grant and dismissed Appel- to the rule general lant’s ineffectiveness claim prejudice without raise at collat- eral review.
Appellant filed a for raising Petition Allowance Appeal the issue of whether this court should recognize announced rule this case because the short of Appellant’s Ap- duration sentence. We granted pellant’s to appeal. request
The issue this case arises under plain because (PCRA), language of the Relief Post-Conviction Act an appel lant only eligible is for if he post-conviction “currently relief a sentence of serving probation or imprisonment, parole 9543(1). crime.” Following Pa.C.S. this court’s *4 Grant, decision in are claimants to wait until collateral Thus, before stage raising claims of ineffectiveness. net effect these is that may two rules claimants not have to claim opportunity raise a challenging counsel’s if their effectiveness is final at a time appeal they when are no longer serving a sentence of imprisonment, probation, or parole. Appellant represents
1.
in his
that his
expired.
brief
sentence has since
result,
this
this
in order to avoid
asserts that
Appellant
to the
exception
“short sentence”
recognize
should
points out that
rule announced Appellant
excep
an
recognized repeatedly has
the Superior Court
for
ineligible
when a claimant would
in situations
tion
or her
duration of his
the short
relief because of
PCRA
Blessitt,
We will address raised in this case. primary issue lenges addressing before First, Appellant’s predicament argues the Commonwealth early. he his We is self-created serve sentence opted since to raise the Appellant’s opportunity are going foreclose claim the first time his Appellant raises Due Process also Reply Brief. is waived. See Pa.R.A.P. 302. This issue *5 in issue this merely case on basis that Appellant chose to his fact, serve sentence before his direct was appeal final. issue, the instant case vehicle to presents perfect Appellant since will not opportunity pursue have collat- Moreover, eral relief has serving as he finished his sentence. the “short sentence” issue has been in percolating Superi- decided; Grant was or Court since the instant case presents this court with an opportunity ques- resolve this tion.
Second, the Commonwealth
that this issue
argues
since
waived
did not raise it
after
Appellant
Superior
until
Court decided
his
on
appeal
September
Ac
Commonwealth,
cording to the
the fact that
filed
Appellant
his
relevant,
Grant
brief before
is not
Appellant
rather
duty
had a
to amend his brief
decision Grant.
our
in
following
First, Grant
was
decided until
two
over
months after
Appellant filed his brief
before
Court.
Addition
Grant,
ally, in the months following
it was unclear how the
decision was
going
interpreted
by
lower courts and
See,
e.g.,
Grant,
applied
any given
case.
(2003)
573 Pa.
(clarifying that Grant will
We
consider
now
issue
primary
raised
parties—whether
this court
recognize
should
a “short sen
tence”
Any
analysis of this issue must
with
begin
this court’s
decision
wherein this
Hubbard,
Commonwealth v.
overruled
372 A.2d
(1977),
which required new counsel to raise claims of
previous counsel’s ineffectiveness at
the first opportunity,
Hubbard,
including direct appeal.
pointed
We
out
after
the procedure
raising
claims of ineffectiveness
distinct
normally,
procedure,
appellate
since
regular appellate
from
and reviewed
being
after
raised
review issues
only
court would
59-62,
After claims, we manage at how other states ineffectiveness ing prior position. our rejecting three main reasons for identified First, opinion of a court the lack lower we believed Id. to this court’s review. impediment a substantial imposed 733, Second, 59-61, 65-67, A.2d we noted that 813 at 737. at normally not consider matters outside courts do appellate in not or matters that consideration facts record involve 65-67, Grant, 61-62, A.2d at 737. at 813 evidence. not fact Third, courts do act as pointed appellate we out Thus, 61-62, 65-67, A.2d as Id. at 813 at finders. announced, rule, that a general we a previously, stated to claims of assistance of claimant should wait raise ineffective Id. trial counsel until collateral review. Grant, in had
Shortly our decision occasion after in rule set forth in exception general consider Grant (2003). Bomar, A.2d from since Bomar was The situation in Bomar differed rule requiring under the Hubbard litigated possible opportunity. to be raised at the first claims Bomar, following from the case sen- counsel withdrew post- counsel entered matter filed tencing, new behalf, raising appel- appellant’s sentence motions on 462-64, Pa. A.2d at claims of ineffectiveness. 573 at lant’s hearings post-sentence on the 853. The trial court conducted differences, Id. out that because of these pointed motions. We in, present in “a not appeal Bomar involved circumstance of ineffective assis- or addressed by appellant’s Grant: in the preserved raised and properly tance of counsel were then at the concerns attendant trial court.” Id. We looked the circumstances and found them under applicable Grant Bomar, Indeed, in this court had the benefit of in Bomar. opinion regarding trial court the specific claims of ineffective- ness; there an “ample” and “extensive” trial record and, thus, devoted the ineffectiveness claims danger no engaging appellate fact-finding; and the difficul- normally ties confronting appellate discovering counsel developing ineffectiveness claims within limited amount of time available for failing direct were absent light nature already-preserved of the defendant’s ineffective- 464-67, Thus, ness claims. Id. at 854-55. we held that “this is an exception circumstance rule of deferral Id. at 855. Grant.” As demonstrated our decision Bomar the critical is whether the trial inquiry court had first opportunity to case, claim. in this Accordingly, we must consider whether “short recognizing sentence” *7 would undermine led reasoning the that to the general rule in announced Grant.
In recognizing the “short sentence” exception, Superior the ignored claim, the trial whether court reviewed the but rather focused on For issues fairness. in example, Ingold, the court concluded an appellant that seven days sentenced to in could prison raise an claim appeal, on direct since merely announced a “general Ingold, Grant rule.” A.2d at 919.
The Court elaborated its in reasoning on Salis- bury, when faced with an appellant ninety sentenced to days in prison. Grant, The in explained court that this court did not “announce a complete prohibition on consideration of ineffectiveness claims direct review.” Salisbury, A.2d Further, at 916. the Superior Court was persuaded in Grant, we recognized no harm principle that should inure to Id.; parties the of the because new rule. see also Common- Blessitt, wealth 852 A.2d 1220 (Pa.Super.Ct.2004) the (adopting reasoning but Salisbury, rejecting appel- argument lant’s because he was released on bond pending appeal). the court Ultimately, that the persuaded defen- dant’s case an exception was such because of the short dura- at Salisbury, 823 A.2d imprisonment. the term of tion of will be Appellant “Harm fact is demonstrated right to effective assistance his constitutional challenge able to his sentence.” Id. Accord- length of the of counsel because of the appellant’s the merits ingly, the court discussed of ineffectiveness. us, consider whether case before we now
Turning exception to We “short sentence” Grant. there should be a not be that a claimant should the concern acknowledge at 606. Dissenting opinion See by the rule. harmed however, concern, reasoning used defeat the That cannot be Grant, Rather, our decision underlying our decision to underlying main concerns highlighted three Hubbard; opinion, of a court namely, lack lower overrule record, court in role appellate of a and placing lack 61-62, 65-67, Pa. at of fact finder. concerns also noted that none these specifically
737. We
procedural posture
in Bomar because
implicated
were
however,
concerns,
implicated
are
of that case. All of these
be ignored
and.
cannot
because of
simply
instant case
case, there
In this
is no trial
Appellant’s “short sentence.”
claim
of ineffectiveness.
Appellant’s
record devoted
Thus,
entertaining
an issue for
appellate
court would
in these
appeal. Recognizing
exception
the first time on
not serve our decision Grant.
circumstances would
Furthermore,
of a
concept
“short sentence”
on what
any guidance
too
the lower courts
ambiguous
give
exception.
apply
is a
“short sentence”
sufficiently
imposed
Ingold, the
seven-day
it be the
sentence
Would
*8
Salisbury,
in
to
thirty-day
or
ninety-day
imposed
sentence
in the
case?
imposed
sentence
instant
twenty-three-month
Indeed,
occasion,
have
instances where a direct
on
there
been
See,
to be
years
completed.
e.g.,
took
than four
appeal
more
588,
(1994)
537 Pa.
Accordingly, we believe the best course of action is to reaffirm our Grant that, decision general reiterate as a rule, claims of ineffective assistance of counsel will be Moreover, entertained on direct appeal. we take opportu- to nity disapprove any Superior decisions of the Court that reasons, contrary. are to the For these we do not believe there is a to need create a “short sentence” exception to the Indeed, rule announced in doing we fear so would undermine the very reasons that led to our decision the first instance. affirm
Accordingly, the Order of the Court. Justice CASTILLE a opinion. files concurring Justice SAYLOR files dissenting opinion which Justice joins. BAER CASTILLE,
Justice concurring. join Majority I Opinion. rejects The correctly categorical to (2002),
818 A.2d permit which would so-called “short defendants, sentence” who would not otherwise be able to pursue collateral relief they because not satisfy will the custo- dy or control requirement of the Post Conviction Relief Act et (“PCRA”), seq., Pa.C.S. raise counsel ineffectiveness for the first time appeal. I write separately discuss the next logical question, which is whether and a criminal when defendant—short-sentence or permitted otherwise—should be pursue ineffective assis- agree Saylor, 3. While we with Justice appellate that the intermediate may reasonably courts likely able determine which are sentences expire post-conviction before the process meaningfully can be invoked, fairness, way this in no ensures there since is no standard employ making the courts to the determination because ambiguity exception. Ultimately, of the we do not see how this will consistency lead to fairness believe the better course action simply reject exception. "short sentence"
21 motions, ie., the before claim on post-trial tance of counsel appeal stage. collateral of Criminal Proce- in Rules nothing presently
There is to raise a claim from prevent attempting defendant dure so, in that large of counsel. But is of ineffective assistance of practice vestige is a our motions part, post-trial because by that Com- was dictated paradigm ineffectiveness review (1977), 259, Hubbard, A.2d v. 372 687 monwealth required were whereby criminal defendants progeny, its at the first of assistance of counsel raise claims ineffective appearance after counsel entered an opportunity available new in case, of of claim. Our decision upon in the waiver pain Hubbard; the re- it has removed has now overruled be that must raised ineffective assistance quirement it has that PCRA opportunity; recognized first in repository sounding for collateral claims trial proper counsel ineffectiveness. Bomar, notes, Majority
As
aptly
(2003),
case
Pa.
With respect drafting “short-sentence” PCRA, Assembly the General made a presumptively valid legislative judgment that provides direct review sufficient due infractions, process relatively for minor no matter grave how may defaulted constitutional violation occurred. The have Assembly provide General elected reasonable time limita tion for a PCRA and to from filing petition exclude its purview those petitioners imprisoned who are not presently or on i.e., parole or for probation, those whom habeas corpus review would been traditionally have unavailable. Pa.C.S. 9543(l)(i); Ahlborn, § see also Commonwealth v. (1997) (petitioner A.2d 718 ineligible for PCRA relief
where, following filing of petition pending PCRA hearing, he was from unconditionally prison). released The General that, Assembly must have foreseen because the minor sentences, nature of the brevity some crimes or of some certain not be defendants would entitled to seek collateral The Assembly review all. General also must have foreseen or custody its control restriction effectively would pre clude sentence” “short defendants from pursuing collateral claims, such as ineffective assistance of The counsel. extraor dinary contemplated but limited the PCRA instead cases, only was made available for more serious with serious ness not by claim, defined of the but by nature the very tangible fact that the Commonwealth has control over the defendant’s freedom. present
Our
state of jurisprudence properly recognizes that
claims of ineffective
assistance
counsel are quintessentially
they
collateral claims and that
are expressly cognizable under
9543(a)(2)(h).
Therefore,
§
PCRA. 42 Pa.C.S.
PCRA,
which is the “sole
obtaining
means of
collateral relief’ in
Pennsylvania,
is
unquestionably
the appropriate repository as much.
claims,
recognized
and our decision Grant
Moreover, it is
9542;
734-38.
There is nothing not construct. A criminal conviction is deemed with such a multiple is not simply infirm because the defendant afforded or, minimum, guaranteed it at a one opportunities to set aside for competent lawyer to blame his opportunity presumptively of overburdened his conviction. See Ahlbom. In world coffers, perfectly it is governmental courts and overtaxed claim review to deny corpus/collateral peti- habeas rational it no “has”—even if longer tioners whose “bodies” the state and all any complaints means lose the chance raise they lawyers. their trial The General Assem- they may have about was bly made clear that its collateral-attack interest pellucidly of from actual state affording limited an avenue relief only “is ... it that the Act not intended control when noted a criminal convic- consequences relief for collateral of provide affording The § tion.” 42 Pa.C.S. 9542. PCRA’s focus restraints their free- only upon for those actual facing relief they constitutional claims would of the dom—irrespective of common law notions only consistent with raise—is review, habeas but also state corpus habeas with et seq.1 statute. See 42 6501 corpus Pa.C.S. Pennsylvania's corpus suggested
1. has state habeas This Justice might of constitutional statute afford an avenue review colorable 24
I understand visceral attraction “short sentence” exception appellant proffers—if not recog- nized, he performance will never able assail the of his My trial counsel. with the it difficulty theory is that is not premised upon alleged existence of a particularly egre- gious counsel, instance of ineffective assistance of as such denial of or an interest, constructive counsel actual conflict of See, Cronic, etc. e.g., States United 466 U.S. S.Ct. (1984); L.Ed.2d accord A.2d 738 n. Instead, the broad Amendment claim Sixth forwarded is premised upon here assumption the dubious that claims of ineffective assistance of trial counsel aas class of such are primary importance that the usual attending constraints post- review, practice, appellate verdict and PCRA review should be shunted aside so that may direct review become repository for a compressed, unitary type capture review which may both direct quintessentially collateral claims.
In light construct, of the now-settled PCRA I do not believe any Court is remotely obliged to permit criminal sentence, sentence, sentence, defendant—no short long capital claims, sentence—to raise collateral ineffective assis- counsel, right tance matter as a upon post-trial corrective, the salutary, motions. One of visionary fea- tures its recognition that direct and collateral permitted play should be the distinct essential they supposed roles are justice to serve in the criminal system. The appropriate forum for litigating claims of inef- fectiveness is under the PCRA. That “short sentence” defen- *12 may dants not be able to pursue such claims is an appropriate consequence of legislative by a choice made the people’s duly- representatives. elected It makes no more sense to torture post-trial practice to it convert into a quasi-PCRA role than it does to torture the direct to appeal process serve the same cognizable claims that are Coady Vaughn, under the PCRA. 564 (2001) (Castille, J., Court, Pa. concurring). The
however, view; and, event, any has not embraced that appellant cannot avail of a corpus remedy himself state habeas for same review, i.e., reason he invoke custody. cannot PCRA ishe not in seq. Pa.C.S. et assistance of counsel Ineffective function. quasi-collateral class, more than other substan- claims, important as are no a PCRA, under cognizable claims deemed tive constitutional hoc, judicially-created, must afforded an ad they that be such in the trial might I vest discretion forum. extra-PCRA While deferring a rule exceptions to courts entertain review, I would not certainly claims to ineffectiveness PCRA a recognizing categorical exception by subvert the PCRA As- the General custody, the absence where arising from addressed that circumstance. sembly specifically has Grant, the view, underpinnings my jurisprudential decision, of the requirements of the and effect practical a reconsideration necessarily post- call for careful PCRA occur in ideally, trial and this reconsideration should practice, specific a formal with conjunction rulemaking, beginning with Fur- the Criminal Procedural Rules Committee.2 referral thermore, any I believe that consideration of whether pursued be may appropriately when claims ineffectiveness for proper must account role post-trial motions upon PCRA, consequence should by the as well played permitted upon a determination that a defendant will follow them litigate his collateral claims and some to advance For “unitary” appeal. direct post-trial proceeding instance, that, in case where the defendant is logical it seems a sentence, if is essentially serving lengthy a compress a defendant permit asked collateral/PCRA post-trial appeal, his motions and cost review into a right pursue so be an of the doing explicit should waiver 8, 2005, 1, 2005, August Rules Committee 2. On effective June Procedures; (Post-Sentence Ap- amended Comment to Rule its abrogation by Formerly, peal), to of Hubbard account that, paragraph explaining Rule under the Comment to 720 contained a Hubbard, post-sentence represented defendant new counsel at raise, decide, any stage must must the trial court required Correspondingly, paragraph the trial court to claims. also evidentiary hearing inadequate hold an where the record decide replaces para- The Committee's amendment the former claim. paragraph explaining graph a new has overruled with “should wait" until collateral review to Hubbard and that defendant any raise ineffectiveness claims. *13 26
later as of petition right under the The post-verdict PCRA.3 process should not be allowed become a vehicle which defendant secures a round of second collateral attack assistance, right, new claims of ineffective the raising where PCRA explicitly single envisions a challenge, collateral in the extraordinary absence of the circumstances governing serial 9545(b). forth petitions as set in 42 Pa.C.S. reasons, join
For the I foregoing Majority Opinion, and I would refer the question availability of the post-trial procedure for review of Pennsyl- ineffectiveness claims vania Criminal Procedural Rules for study Committee and recommendation. SAYLOR, dissenting.
Justice
The majority declines to afford Appellant the benefit of the
Hubbard,
rule
259,
embodied
v.
Commonwealth
472 Pa.
372
(1977),
A.2d 687
which was
effect at
the time of his
conviction,
sentence,
imposition
lodging
of the notice
of appeal,
through
initial
briefing
Superior
Court. Rather than applying
prevailing
rule in
at
effect
times,
all relevant
majority
applies
protocol
new
48,
established in
v.
Commonwealth
572 Pa.
813 A.2d
(2002),
implementing
express
Grant’s
exceptional
pronouncement that
procedural
its
would be
dictates
applied
Grant, however,
retroactively.
justified such
ap-
retroactive
plication
premise
based
the stated
“neither party
will
be harmed by
application of the new rule since
[retroactive]
claims of
can be
raised in a collateral proceed-
68,
ing.”
See id.
With
to the ambiguity concerning
range
qualify
sentences that
would
treatment under the excep-
tion,
19-20,
see Majority Opinion, op.
880 A.2d at
I
is preferable
believe that
permit
intermediate appellate
courts faced with ineffectiveness issues raised for the first
time on appellate
review
determine which sentences are
likely to
reasonably
expire
post-conviction
before the
review
can be
process
meaningfully invoked.3 The
is to
alternative
unduly
curtail
availability
appellate
to a category
persons
predicated
relative
on their constitutional
right to effective
representation,
course
to me
which seems
upon
right
impinge
guaranteed under
Const,
V,
the Pennsylvania
Constitution.
See
art.
9.4
Pa.
regard,
respectfully
majority’s
I
with
approach
differ
*15
failure,
relying upon
systemic
anecdotal aberrations
instances of
and/or
eleven-year
such
20,
appeal,
Opinion,
as an
Majority
op.
See
at 19-
602,
rejecting
at
upon
880 A.2d
an assessment based
the reason-
availability
able
of
likelihood
of collateral review. While such
highlight
vigilance
judicial
manage-
occurrences
the need for
case
ment, they
justify
appellate
do not
elimination
review relative to
claims,
any category of
constitutionally ground-
let alone ones that are
ed.
majority's
ambiguity
The
stated,
concern over
also seems to me to
over-
be
many
prevailing legal
undergirding
since
other
standards
our
legal system
likelihood,
judgments
probabilities
entail
based on
and/or
preponderance-of-the-evidence
governs
as the
concept that
in civil
proceedings, or the
probability
evaluation of reasonable
that otherwise
would
as a
availability
Appel-
serve
litmus relative to
relief on
See,
Smith,
e.g.,
lant’s
Wiggins
Sixth Amendment claim.
v.
(2003).
539 U.S.
510, 536-37,
2527, 2543,
123 S.Ct.
Justice A.2d 608 Pennsylvania, Appellee, COMMONWEALTH Appellant. DeJESUS, Jose Pennsylvania. Supreme Aug. Submitted 2003. Aug.
Decided *16 beyond scope paradigm lie the available of our in the short-sentence review.