*1 981A.2d 875 Pennsylvania, Appellant COMMONWEALTH PITTS, Appellee. Dexter Pennsylvania. Supreme Court of April Submitted 20, 2009.
Decided Oct. *2 Burns, Hugh Jr., J. Esq., Philadelphia District Attorney’s Office, for Commonwealth of Pennsylvania. Pitts,
Mr. Dexter for Dexter Pitts. CASTILLE, C.J., BEFORE: SAYLOR, EAKIN, and BAER, TODD, McCAFFERY GREENSPAN, JJ.
OPINION EAKIN, Justice.
The Commonwealth appeals from the Superior Court’s or-
der vacating the order denjnng appellee,
Pitts,
Dexter
relief
pursuant to the Post
(PCRA),
Conviction Relief Act
42 Pa.C.S.
§ 9541 et
seq., dismissing
Pitts’s
and granting
withdraw;
PCRA counsel’s
request
remanded for the
filing amended
Find-
petition.
ing
Superior Court erred in concluding PCRA counsel did
Turner,
dictates of Commonwealth v.
with the
comply
(1988),
Finley,
Commonwealth v.
assault ten counts of He burglary. was sentenced to an aggregate 21 to 42 years imprisonment and a consecutive ten- year probation counsel, term. Plea who also represented Pitts at sentencing, filed a to vacate and reconsider sen- remorse, tence addiction, on the basis of Pitts’s drug age, and the fact the burglaries violence, did not involve as no one was present the hotel rooms he burglarized; the motion was *3 denied.2 No direct appeal was filed. procedure
1. These cases establish the
court-appointed
for withdrawal of
counsel in collateral attacks on criminal
Independent
convictions.
by competent
review of the
required
record
counsel is
before withdraw-
Turner,
permitted.
(citing Pennsylvania
al is
at
Finley,
481 U.S.
551, 558,
1990,
(1987)).
107 S.Ct.
independent
5 them, an from which attested an affidavit [Pitts] obtained warrant- this claim would have been hearing on evidentiary ed. coun
Moreover,
that he asked his PCRA
has stated
[Pitts]
and that she
to include this claim
to amend the
sel
view,
if
allegation,
such an
to do so.
our
neglected
court,
basis
arguable
satisfies the
believed
the PCRA
Moreover, if
claim.
of the
ineffectiveness
prong
claim, may
meritorious
we
failed to raise this
PCRA counsel
(ie. the loss of
prejudice
conclude that
suffered
only
[Pitts]
rights).
[Commonwealth
the reinstatement of
direct
(Pa.1999).]
214,
564,
Pa.
736 A.2d
Lantzy, [558
v.
]
affidavits
Id.,
Thus,
Pitts had not filed
although
at 5-6.
counsel about a
counsel and PCRA
plea
he asked
asserting
evidentiary
remanded for
Superior
Court
appeal,
direct
claim.
ineffectiveness
hearing
layered
on Pitts’s
reconsideration, which the
The
moved
Commonwealth
vacated
again
granted.
Superior Court
order,
counsel’s
focusing
this time
on PCRA
court’s
the PCRA
Pitts,
v.
No.
letter.
Commonwealth
Tumer/Finley
See
4,
A.2d 148
memorandum at
EDA
unpublished
2006)
contends
(“Although [Pitts]
filed
(Pa.Super.
October
assistance, we
rendered ineffective
that his PCRA counsel
properly per-
whether the PCRA court
must first determine
withdraw.”)
(citing
counsel
mitted
Friend,
The court con-
(Pa.Super.2006)).
to with-
improperly permitted
cluded the PCRA
Id.,
letter.
at 5. It noted
of her no-merit
draw on
basis
a successful
whether Pitts could mount
analyze
counsel did not
of his sentence:
discretionary aspects
challenge
the discretion-
challenging
that a claim
recognize
While we
PCRA,
is not
under
cognizable
of sentence
ary aspects
articu-
Friend,
n.
counsel did not even
at 616
supra
see
for rein-
satisfy
requirements
whether
could
late
[Pitts]
rights under Commonwealth
statement of his direct
1999)
([Pa.]
214],
and its
Id., not at 6. The Court also noted PCRA counsel did explore plea whether counsel ineffective for challenges discretionary aspects raise other of sentence Id., in the motion to vacate and sentence. at 6-7. reconsider com- Accordingly, the concluded PCRA counsel had not be- plied Twrner/Finley requirements with the withdrawal cause, indicated no-merit letter Pitts’s dissatis- although sentence, faction with it length explain why his failed to Id., Pitts could not obtain relief on claim. at 7. this Further, the court addressed counsel’s failure direct plea appeal: discuss counsel’s failure to file a not Although existing permit record does us to conclude whether asked his counsel to file direct [plea] [Pitts] a appeal, we find PCRA trou- counsel’s silence this issue bling. It is inconceivable that not any counsel would inquire into the reasons for client’s failure to pursue his/her issue, If direct counsel considered appeal. client, it, discussed it with her then she and discounted explained should have her for doing reasons so in the no- However, merit letter. if [plea] asked his counsel to [Pitts] (as brief), file an he indicates in his [PCRA] counsel have petition should filed an amended and an sought evidentiary hearing.
Id., at 8. The court comply determined PCRA failed to thus, with Tumer/Finley; it vacated PCRA court’s order and remanded “for amended filing petition [PCRA] (1) in 'which counsel properly pleads proves and each (2) claims raised in [Pitts’s] se raised issues in [Pitts,] subsequent discussion/correspondence with Id., any other apparent issues from the certified record.” at 8-9 (emphasis original). It further ordered PCRA counsel about approach Pitts an affidavit signing regarding Id., plea assertion he asked counsel to file direct appeal. (D) 902(A)(12) 9 (citing (petition Pa.R.Crim.P. in- must clude facts supporting place they record where appear; they record, to extent do appear must affidavits, documents, include and other evidence such showing facts)). *6 allowance of to granted
We
determine whether the
Superior Court erred
new
creating
Tumer/Finley require
ments,
sponte, by
sua
finding PCRA counsel’s no-merit letter
failing
raised,
defective for
to address issues Pitts never
which were not
from the
apparent
record. See Common
Pitts,
(2008).
wealth v.
596 Pa.
Pitts counters asserting first time he could challenge PCRA counsel’s stewardship was on collateral appeal from the denial of his as that was the first time he was no longer represented counsel; therefore, by PCRA the issue regarding counsel’s withdrawal was not waived. He echoes the Superior Court’s conclusion that PCRA counsel should have realized he was with unhappy his sentence only and the way challenge discretionary aspects of his sentence was to obtain reinstatement of his direct appeal this re- rights; quired to file an amended petition alleging plea counsel’s ineffectiveness for to file a failing direct appeal. no-merit of PCRA counsel’s examining adequacy ineffectiveness the merits of Pitts’s addressing
letter before There, claim, on Friend. the defen Court relied Counsel was timely pro petition. se PCRA dant filed instead, she filed a petition; not amend the appointed, but did there were stating and a no-merit letter motion to withdraw would afford relief. viable issues under the PCRA which no notice to Pa.R.Crim.P. pursuant The PCRA court issued without a that it intended to dismiss the defendant’s however, the did not afford the defendant hearing; Rule, contem as and instead days respond, required petition. appealed dismissed the defendant poraneously se, for failing counsel was ineffective contending appellate presented appeal, or issues to be direct develop perfect this Court for review. *7 stated, decision, the “Prior Superior In a curiam Court per however, are to questions, obliged to these we addressing preceded appeal, specifically examine the that procedures ultimate the efforts counsel to withdraw and the by appointed Friend, at underlying petition.” dismissal of the PCRA 612. court, the reiterating Tumer/Finley requirements, The after an additional requirement: added contemporane- counsel who seeks to withdraw must PCRA ously copy petitioner application sene a on the counsel’s of counsel, supply petitioner to withdraw as and must a and a advis- copy both the “no-merit” letter statement of that, the ing petitioner grants the in the event that the court withdraw, to or she the application right counsel he has of re- proceed pro privately se or with the assistance of tained counsel.
Id., in the re- original). at 614 The court noted (emphasis Id., n. prospectively. was to be at 614-15 & quirement applied that never the defendant of Observing apprised counsel in event the court the rights granted his case status or his the the these omissions were withdrawal court concluded by the court’s failure to afford the defen- compounded PCRA Id., to the Rule 907 notice. at 615. days respond dant to comply the court held the trial court’s failure Accordingly, vacating Procedure necessitated Rules of with the Criminal proceed- for further remanding court’s order and the PCRA Id., at 616. ings.
The Friend court that was concerned justifiably certain minimum withdraw should fulfill counsel who wishes to responsi relieved of his being to his client before obligations the bilities; however, it to” rule on holding “obliged was Id., letter, when counsel’s no-merit adequacy the the court went by parties, was not raised such issue review. To appellate appropriate the beyond parameters extent Friend stands for an appellate proposition sponte sua of a no-merit sufficiency review the may issue, such we has not raised letter when the defendant such holding.3 disavow decision, based on Court’s
Accordingly, Superior Friend, only issue Pitts error. proposition whether Superior Court was sought raise before failure to the issue of counsel’s plea should have raised the issue of the party Neither raised appeal.4 direct pursue pertaining to the Pitts waived issue 3. The Commonwealth asserts during to raise it adequacy PCRAcounsel’s no-merit letter finding period. agree, Pitts's failure to 20-day response We Rule 907's receipt challenge upon of counsel's no- PCRA counsel's withdrawal Additionally, 20-day period telling. Pitts’s merit letter or within on collateral the issue before failure raise petition precludes of it. See consideration from the denial of his Freeman, (2003) (“It or, if 'elementary preserved appellate review even that issues not [is] level, appeal, will by party to an not be at the trial not raised raised ") (quoting Commonwealth McKen considered court.' *8 428, 174, (1978)); na, v. Bran A.2d 179 476 Pa. (this ham, Court has 767 n. 3 467 Pa. reaching presented practice issues not criticized of courts litigants). failure, Furthermore, argue prior appeal, to PCRA to his PCRA Pitts’s raising appeal the direct issue results counsel's ineffectiveness for not attempt ineffectiveness. Pitts’s to of the issue of PCRA counsel's waiver review, raised in the appeal, of an issue not obtain on collateral appeal. petition PCRA on PCRA proceedings below amounts to a serial opportunity he had appeal was the first Although asserts his PCRA Pitts longer stewardship because he was no challenge counsel's to PCRA counsel, challenged PCRA coun- he could have represented PCRA letter and the receiving withdrawal stewardship after counsel’s sel’s letter, the adequacy of counsel’s no-merit Common- advocacy wealth the opportunity provide was not afforded issue, the should Superior the and Court not have resolved the on an issue not before it. Pitts’s was from appeal appeal the denial of his PCRA of the involuntari- complaining sentence;5 and he rein- plea lengthy sought ness of his his statement of his direct so he could these appeal rights raise result in of issues. Such an should not chastisement order for an with and an amended PCRA mandatory proof, contents and to include issues never raised.
Thus, error it was for the Comt the Superior review adequacy of counsel’s no-merit letter and to remand contents; amendment Pitts’s petition, dictating of the we reverse the order Superior Court’s and reinstate PCRA court’s order Pitts’s PCRA dismissing petition without a hearing and counsel leave to withdraw. granting
Order reversed. CASTILLE,
Chief Justice and and Justice McCAFFERY join Justice GREENSPAN the opinion. petition pursuant notice of the PCRA court's intent his to dismiss Thus, yet he Pa.R.Crim.P. failed to do so. the issue of whether counsel was ineffective for to raise the direct issue waived,
was should not have reached it. plead [guilty] solely attorney 5. "I my on the rushed advice [sic] gel me got whom told I would a amount [sic] certain of time and so Petition, 7/1/03, Although much at 6. more[.]” Pitts mentioned length sentence in with connection his voluntariness of plea, argument guilty receiving pled hopes his actual was he disappointed lesser was sentence and with the sentence court the trial imposed; (i.e., challenge discretionary aspects he did of his sentence sentencing court's actions were inconsistent with the Sentenc- ing contrary underlying Code or norms fundamental the sentenc- Tuladziecki, ing process; see Commonwealth v. A.2d (1987)). notes, While counsel's no-merit letter "It is clear from correspondence unhappy .. . length with [Pitts] is of his D-5, Letter, 4-5, 7/22/04, Original Turner/Finley Record sentence^] " plea 'promise' Pitts's real claim was counsel’s of a lesser sentence plea, impose going induced his had he known the trial sentence, the maximum he would have taken rather his chances before jury possibly guilty. been found not
11 Chief Justice files a concurring opinion. CASTILLE BAER dissenting Justice files a in which opinion Justice join. SAYLOR Justice TODD
CASTILLE, Justice, concurring. Chief join Majority Opinion its but write entirety, sepa- to further rately points. address three
First, the Majority properly
disapproves Friend,
However, I address another aspect of Friend. Friend also that held PCRA3 counsel seeking to pursuant withdraw Tiomer/Finley must contemporaneously serve the petitioner with copies of application counsel’s to withdraw and no-merit letter as well as “a statement that, advising petitioner the event that the court grants the application of counsel to withdraw, he or she to proceed pro se or with the right has the Friend, assistance of privately retained counsel.” 896 A.2d at omitted). (emphasis 614 This requirement additional is not explicitly commanded by Turner. Recognizing that this re- finement of the Tiomer/Finley procedure altered the existing construct, withdrawal Friend panel made prospec- its rule thus, case, tive—and it would not apply to this where counsel’s Finley letter in the Friend decision in 2006. pre-dated Friend, See 896 A.2d at 614-15 n. & 11. Notably, Dissenting Mr. Justice Opinion agrees Baer’s disap- with our proval of Friend. Turner, (1988);
2. Commonwealth v.
As a general rests power rules of procedure; to promulgate authorized *10 10(c). V, § Hav- Const, art. exclusively with Court. criminal that, however, that our front-line recognize ing said near-daily on a these sorts of issues court confronts appeals undertaking the court basis, objection fixed to and I have no to better in order improvements efficiencies and adopt to of the case, disapprove in which we justice. But this serve sufficiency the of a sponte Court’s sua review of Superior such Finley no-merit letter when the defendant has not raised cautious- issue, proceed that the should shows See Commonwealth rulemaking. in areas that ly implicate Liston, (Pa.2009) C.J., (Castille, joined by Eakin, JJ., concurring). Saylor and the event, the of whether putting question In aside new “rules” or purport promulgate should to Superior Court matters, I note that I would have procedural refine old ones a Friend-like objection adoption actual to this Court’s of no Tumer/Finley that better ensures notice to modification of contemporaneously via documentation provided the defendant the effectively goal This mechanism advances by counsel. 907, which as follows: provides Pa.R.Crim.P. satisfied from this review that there
If the is [PCRA court] any material fact and genuine concerning are no issues collateral post-conviction the defendant is not entitled relief, further by any and no would be served purpose parties notice to the give the shall proceedings, [court] in the and shall state the intention to dismiss may The defendant notice the reasons for the dismissal. days respond proposed of the dismissal within [PCRA court] the notice. The thereafter shall date of petition dismissed, grant file an leave to order proceedings petition, or direct that the contin- amended ue. added). 907(1) (emphasis Requiring
Pa.R.Crim.P. Finley letter and the defendant with the provide make it easier for documentation will specified the additional objections and raise within respond the defendant in- many Rule 907. contemplated twenty-day period with more the client stances, provide will also the procedure objections. or respond prepare twenty days than preser- issue turn, for important is Rule 907 process, correctly because, Majority so as This is purposes. vation should generally, holds, appellants like Finley appellant, before the raised actually issues he raising limited to be 302(a) (“Issues in the not raised court. Pa.R.A.P. See the first time be raised for waived and cannot lower courts are (“To 9543(a)(3) eligible be § 42 Pa.C.S. see also appeal.”); PCRA], plead must petitioner relief under th[e ... [t]hat the evidence preponderance prove waived.”). In my judg- ... of error has not been allegation initiate typically ment, indigent petitioners the fact that in their own complaints their by identifying *11 process the PCRA of Finley’s with command when combined filings, se pro court and the notice and the PCRA review both counsel opportuni- 907, adequate more than provides in Rule provision any appropriate and all preserve to ty Finley appellant for counsel. Finley about including complaints for appeal, issues twenty-day that the Here, complaint raised no appellee has letter, Tumer/Finley PCRA counsel’s was insufficient. period and filed with 22, 2004, appellee July copied dated the case was listed for day, That same July 2004. it was on which date August formal dismissal on 30, 2004, notice to requisite with the to September continued without a petition to dismiss his that it intended appellee formally did Keogh Honorable D. Webster which the hearing, 30, 2004, months more than two September order dated appellee At no time did Tumer/Finley letter. after counsel’s manner, the court that PCRA in much less advise respond to add a alleged request act his upon had failed to counsel an for to file was ineffective plea claim that counsel appeal. to file an counsel requested plea or that he had appeal se, from pro of appeal, was file a notice did appellee What 13, 2004, on October petition of his PCRA the dismissal with that Along ineffectiveness. counsel asserting acknowl- Keogh notice, Judge included a letter to appellee dismissing the order his edging receipt of pleaded upon that he the assurance his complaining guilty at plea five-to-ten-year counsel that he would receive most a letter, sentence. In this also claimed that he asked appellee plea plea counsel to file but that counsel to do appeal failed so. in this letter that he had raise Appellee admitted failed to his issue of his lost direct in se PCRA petition, but then insisted that he PCRA counsel amend requested his to include a claim that denied plea him direct right appeal. point, I would hold that by this it was too late.
Second, I write to elaborate on the separately Majority’s determination, “failure, with which I that agree, appellee’s prior to his appeal, argue PCRA counsel’s ineffec- raising tiveness for not in direct issue results waiver of the issue of PCRA Ma- counsel’s ineffectiveness.” at jority Op. 9 n. A.2d at 880 n. The Majority reaches this it in passing conclusion Mr. expresses footnote. *12 serial petition process PCRA is even than in stronger here Ligons. Ligons, Baer, Mr. plurality,4 per Justice would have held that the appellant’s claims PCRA counsel ineffec- tiveness, raised for first time on enter- appeal, could be only tained because “the a way capital peti- to afford Although Ligons majority a opinion on certain with issues and mandate, respect garner majority to the it a proposition. did not for this C.J., (Castille, Ligons, joined by See A.2d at 971 1159 Eakin JJ., McCaffery, concurring) (noting opin- "Mr. that Justice Baer’s lead majority expression respecting points ion is not I of concurrence below"). evenly point outline The six-Justice Court was divided on the at issue here.
15
tioner an
to enforce his
to effective
opportunity
right
trial counsel is to
of such claims
permit
filing
appeal
Ligons,
from the denial of PCRA relief.”
Nor, as I explained Ligons, did the statutory PCRA’s time-bar rules condone such an allowance: time-bar plainly provides that ... “[a]ny petition
under subchapter, including second or subsequent petition, shall be filed within one year of the date the final,” judgment becomes unless the petitioner proves one or more of three narrow 42 exceptions time-bar. 9543(b)(1). § Pa.C.S. Notably, there is no exception devot ineffectiveness, ed to claims of PCRA counsel and this Court has held that consistently claims of ineffectiveness of PCRA counsel will not overcome the timeliness requirements of the PCRA because defense counsel are not “government offi Wharton, cials.” 576, See Commonwealth v. 584 Pa. 886 1120, 1127 A.2d Pursell, (citing Commonwealth v. 561 214, 911, (2000); A.2d 915-16 Commonwealth v. 562 Pa. Gamboa-Taylor, (2000); 753 A.2d 785-86 Lark, Commonwealth v.
(2000)). Ligons, (Castille, C.J., A.2d concurring). I posited “nothing the text of the suggests that it bemay ignored to indulge new sounding claims in PCRA ineffectiveness, which amount to a serial Id. petition.” at 1165.
16 Baer, citing: Dissenting Opinion, in his Justice
Instantly, Albrecht, 31, 693, 699-700 554 Pa. 720 A.2d v. Commonwealth Pursell, 233, 293, (1998); Pa. 724 A.2d v. 555 Commonwealth relied; (1999), and Com- upon 302 which Court (2005), Hall, 1177, 1182 monwealth v. he in that claims Ligons reiterates the view that forwarded must be entertained challenging stewardship PCRA counsel’s in effect to give if raised below order to in this Court even not Rule of Procedure right under Criminal petitioner’s at Dissenting Op. effective counsel. See post-conviction 904 to Albrecht, 891; at 1138 Ligons, (citing 981 A.2d at A.2d Hall). 699-700, Pursell, in my As noted 720 A.2d at in Concurring Opinion Ligons: decided, Hall was litigated
Albrecht and Pursell were
here,
[,
before
below and briefed
Commonwealth Grant
(Pa.2002)
Before
572 Pa.
... thereby Court overruled Hubbard [T]his of the ineffective relieving obligation new counsel to raise Grant, A.2d opportunity. assistance claims at first Grant, judicial at 738. In no waiver results from a light of opportuni- failure to raise ineffectiveness claims the first the normal ty. What remains is review/issue and the strictures of the preservation paradigm, PCRA. rationale for “only opportunity Hubbard-based to do so” of the entertaining new claims outside strictures corrected, it is time having permit been it operate clearly PCRA to as is intended.
[] than a Hubbard course, more to Albrecht there was Of *14 must be was, also, that there concern; a sentiment there counsel. to PCRA right of the “enforceable” safeguard some extra-statutory, of an But, cannot be creation that avenue unlimited, new, and essen- ability litigate “as-of-right” merely because appeal, tially serial PCRA that way. into the case their appearance new counsel time (Castille, C.J., I still concurring). at 1165-66 Ligons, 971 A.2d this view. hold consistently with Opinion, Dissenting Baer’s
Justice
one
requiring only
in
Ligons, responds
he expressed
view
of PCRA counsel is
the effectiveness
challenge
opportunity
888;
at
981 A.2d at
(Dissenting Op.
unworkable”
“obviously
890)
that,
right
vindicate the
order to
accord id. at
to”
counsel,
no viable alternative
“there is
effective PCRA
counsel
court to address claims of PCRA
allowing an appellate
(id.
29-30,
that were not raised below
ineffectiveness
(Castille, C.J.,
892-93).
Id. at
cf.
Eakin,
(Pa.2009) (Castille, C.J., joined by Saylor and
1100-01
(“There
reason,
JJ.,
no
consistent with
is
concurring)
an extra
PCRA,
arbitrarily permit
trial courts to
to authorize
all
for some but not
defen-
of collateral attack
round
Lawson,
A.2d
5. Commonwealth
(“[A]
subsequent post-conviction request for relief will
second or
showing
strong prima
is offered to
entertained unless a
not be
facie
occurred.”).
justice may
miscarriage
have
that a
demonstrate
dants....”).
concurrence,
As I further
in my Ligons
noted
is an
full,
“[t]here
obvious course that would allow for
rather
select,
than
vindication
right
of the
to effective PCRA coun-
i.e., “permit all
pursue
defendants to
a second PCRA
sel”—
petition as
right.
But the PCRA does not authorize that
path.” Ligons,
(Castille, C.J.,
As Majority observes,
appellee “could have challenged
PCRA counsel’s
after
stewardship
receiving counsel’s with-
drawal letter and the notice of the PCRA court’s intent to
dismiss his
pursuant
to Pa.R.Crim.P.
yet he failed
to do so.” Majority Op.
at 9-10 n.
The dissent that responds appellee should not “be faulted to follow a nonexistent procedure,” “proce- but the appellee dure” that failed to follow an opportunity, is not a requirement. requirements And are clear and outside of i.e., Rule the actual waiver provisions Section 907— 9543(a)(3) 302(a). Moreover, and Pa.R.A.P. the conclusion that the dissent reaches deeming appellee’s failure to his issues preserve should be excused is a determination policy that should be better left to Assembly. the General See v. Santiago, (2004) (Castille, J., J., (“When joined Eakin, concurring) PCRA, issue is waived under the it is not because of our doctrine, appellate preservation/waiver but because a legisla- tive judgment has been made as to what types of claims should be available at all on collateral review. We cannot simply ignore that legislative judgment judicial as if it were a *16 subject concerns.”) concern weighing to against judicial other (internal omitted). quotation marks course, if
Of the Court determines to let Rule 907 a play role in greater allowing, or inviting, complaints against Finley counsel, always we could revise the Rule: more provide time, (such or to provide more information as a reminder that waived). claims not forwarded are But what we should not do is to allow a to serve as a for a repository serial petitioner, causing courts appellate entirely to consider claims, new thereby negate the statute. For all of reasons, join these I in the Majority’s adoption position I set forth in in my Ligons. concurrence obser-
Third, panel’s I to address the write that that is inconceivable “[i]t vation below failure to client’s inquire not into the reasons would his/her this at 8. I believe appeal.” Super. Op. a direct Ct. pursue it astray. suppose to lead the court helped mistaken notion court to view itself as the natural for an only is whenever a puzzled center of the universe and thus to be legal But this is a naive and mistaken appeal. does not party one, case, such as this that was a assumption, especially guilty plea. severely a A restricts the guilty plea resolved that be raised fact that may upon appeal universe of claims —a the trial court conveyed very forcefully by was to appellee and learned D. judge, experienced here. As the PCRA “It well that Keogh, opinion, Webster noted is settled entry guilty plea, petitioner of a a waives all defects and upon concerning validity plea, defenses those of the except court, of the trial of the sentence jurisdiction legality Guth, Op. (citing PCRA Ct. at Commonwealth v. imposed.” (Pa.Super.1999)). Quoting 711 n. 3 record court, that the the Honorable E. colloquy guilty plea Carolyn Temin, had conducted with also noted appellee, Judge Keogh that informed of this fact—so much appellee specifically so, indeed, a judge that the trial concluded with: prac- “[A]s matter, case, tical once the end you plead guilty, is you (quoting do understand that?” Id. at Notes of Testimo- 7-10). (“N.T.”), 5/9/03, course, ny reality Of does not seeking consequences defendants from to avoid the prevent their when find themselves pleas invariably they disappoint- — with their sentences. The common to seek to way ed most avoid the effect of a is to blame it on counsel. That guilty plea attack, is the sort of claim that lends itself to collateral direct review. realities, it easy why experi-
Given these is to conceive lawyer lawyer enced criminal defense as the appointed —such represent the PCRA court appellee appointed here — to a represent serving pursuant defendant who is sentence would not in the least be to learn that no guilty plea surprised easy direct was filed. It is to conceive that particularly
21 of the into the absence inquire lawyer would complained never where, here, pro her Ghent’s se as (futile) counsel ignore to have appeal, only requested he that him. letter, the claim that focused on her no-merit counsel plea his in his se actually raised
appellee —that plead guilty in him to inducing was ineffective of five to ten he receive a sentence him that would promising received. actually far less than he in which was years prison, is, course, of claims collateral the most common This court when I “I lied to the guilty plea on guilty pleas: attacks me; me in lied to my lawyer no were made to promises said sentence; my lies vitiate and the two light me a promising why letter in her no-merit carefully explained Counsel plea.” concurred, Keogh frivolous. Judge the claim indeed was informed by that was trenchantly noting appellee specifically 120 up years prison, Temin that he faced to Judge record, him declared, promised that no one on the appellee 4 (quoting atOp. See PCRA Ct. anything plea. to secure 7-10). 5/9/03, N.T., at reasons, expressed for the reasons foregoing
For the Superior I in the reversal of Majority concur Opinion, remand. vacatur and Court’s
BAER, Justice, dissenting.
Majority only
I
with the
agree
dissent.
respectfully
by ruling
erred
that it holds that the
extent
letter satis-
counsel’s “no-merit”
the issue of whether PCRA
Turner,
requirements
fied the
of Commonwealth
(1988),
Finley,
Consistent with my position in Ligons, would rule that the claim of ineffectiveness, PCRA counsel raised in the appeal relief, from the denial of PCRA is not waived because it was presented at the first only viable opportunity Appellee had to challenge post-conviction performance. counsel’s As explained in infra, detail position is consistent with the controlling case law of this Court. The contrary view adopted by the Majority, which requires Appellee to challenge PCRA counsel’s stewardship during the ongoing proceeding before court, the PCRA is so obviously unworkable that it should finally be put rest. Having concluded that the challenge to PCRA counsel’s waived, is stewardship I would hold that Appellee has pled which, sufficient believed, facts if would entitle him to relief the form of reinstatement of appellate rights pursuant to Commonwealth Lantzy, 558 Pa. A.2d 564 (holding that counsel’s failure to file a request ed ).1 direct appeal constitutes prejudice per se Accordingly, I would remand this matter for an evidentiary hearing to allow Appellee to prove his claim via the presentation of evidence.
I begin my analysis facts, with a review of the as they illustrate perfectly why petitioners must be afforded a meaningful opportunity to challenge PCRA counsels’ effective- Here, ness. in January Appellee pled guilty to four counts of burglary and one count of simple assault. May On case, 1. As in the instant defendant in pled guilty had also Lantzy offenses, various criminal and did not receive a direct of his judgment of sentence. 9, 2003, to an six counts of Appellee pled guilty additional The trial to an burglary. Appellee aggregate court sentenced fol- twenty-one forty-two years imprisonment, term of years ten The same counsel probation. represent- lowed (herein- Appellee plea proceeding sentencing ed and at counsel”). after, “trial Trial counsel filed a timely petition sentence, vacate and reconsider which the trial court denied. Significantly, no direct was filed.2 18, 2003,
On June filed a se Appellee pled which he contended that he because his guilty attorney that, so, him if mistakenly advised he did he would be sen- years tenced to five to ten of incarceration. Counsel was (“PCRA counsel”), appointed thereafter but she did not file an *19 Rather, petition Appellee’s amended PCRA on behalf. on 23, 2004, July counsel filed a pursuant PCRA no-merit letter Turner, supra, Commonwealth v. and v. Commonwealth Therein, Finley, supra. PCRA counsel acknowledged that sentence, was the Appellee unhappy with duration of his but Nevertheless, lodged appeal never a direct it. challenge that, PCRA counsel asserted upon reviewing Quarter the files, Session the notes of from testimony plea the and sen- tencing it proceedings, Appellee, communications with professional her that the opinion issue raised in the se pro petition was meritless because Appellee knowingly and intelligently guilty pleas. entered the She further concluded that there were no other issues which could have been raised in a counseled amended PCRA petition, sought leave to withdraw from the case. PCRA counsel did not address the letter Tumer/Finley why filed, direct had not been appeal despite Appellee’s expression of dissatisfaction judg- with his ment of sentence.
The PCRA court found that the issue pro raised the se petition the concerning validity Appellee’s guilty plea was meritless the because record revealed that he was clearly 15, Appellee pro guilty May filed a plea se to withdraw his because, time, upon which was never ruled at that Pa.R.Crim.P. 576(C) precluded accepting pro filings the clerk of courts from se when represented by the criminal defendant is counsel. sentences from his convic- potential arising
informed of Appellee’s court dismissed Accordingly, tions. to withdraw. granted request PCRA counsel’s Court, se pro thereafter filed a Appellee Superior counsel was ineffec- raising single issue of whether PCRA failing tive for to raise trial counsel’s ineffectiveness for appeal. Appellee to file a direct did not raise requested Tumer/Finley of whether letter was valid specific issues by granting and whether the PCRA court erred counsel’s to withdraw from the case.3 In a memorandum request 26, 2006, that, opinion January filed Court held notwithstanding Appellee did not raise claim PCRA court, counsel ineffectiveness before the PCRA the claim was se “the from the waived because denial of is the opportunity challenge PCRA order first the steward- counsel.” at 3 ship Slip Op. (citing Pursell, (1999); Common- 724 A.2d Gallman, wealth 776 (Pa.Super.2003)). that, The court went on to hold in view of claim Appellee’s that he trial appeal, communicated to counsel his desire to sufficient which Appellee pled upon facts PCRA counsel could have amended the PCRA to include a claim of trial counsel The court ineffectiveness. concluded that had PCRA pled these facts and obtained an Appel- affidavit from attesting lee to the fact that he asked trial file a counsel to appeal, evidentiary direct on the claim have hearing would *20 Lantzy, supra. been pursuant warranted the Accordingly, court, Superior Court vacated the order of the which PCRA had dismissed Appellee’s PCRA and remanded for evidentiary hearing layered on his claim of ineffective assis- matter, tance. I proper believe this was a of this disposition as it claim recognized Appellee pled cognizable layered ineffectiveness, of PCRA counsel the remanded matter for an evidentiary hearing Appellee prove where could his claim recognize validity 3. that the issue of the of the no-merit letter and the challenging issue PCRA counsel's effectiveness are based on the same issues, however, predicate. legally factual The two are discrete in that interpretation Tumer/Finley require- the former issue involves an of the ments, and the latter issue does not. (1) that he: establishing testimony of presentation the challenging to file a direct trial counsel requested to file sentence; requested PCRA judgment counsel’s omis- challenging trial an amended PCRA sion. final however, Superior this not the Court’s
Regretfully, Rather, the Common granted that court in the case. ruling reconsideration, behind the claim looked request wealth’s ineffectiveness, counsel’s regarding PCRA by Appellee raised of whether the issue independent examined sponte and sua counsel to with permitted court PCRA properly the PCRA Pitts, EDA 2004 (Unpub Commonwealth draw. See 27, 2006, lished Memorandum dated October 148) that his contends PCRA (stating “[although [Appellee] assistance, must first deter ineffective we counsel rendered counsel to permitted the court properly mine whether PCRA withdraw.”).4 hold that counsel failed to
The court went on to
because she
Finley
with the dictates of Turner
comply
could not
why Appellee
in her no-merit letter
explain
failed to
sentence,
the
of the
legality
claims based on the
pursue
sentence, and,
significantly,
of the
most
discretionary aspects
ineffective for
whether trial counsel was
the issue of
The Superior
his sentence.
challenging
file a direct appeal
in permitting
court erred
concluded that
Court
of the no-merit letter.
counsel withdraw on the basis
thereof,
previous
support
Superior
cited its
decision
In
Friend,
(Pa.Super.2006), which had
It is from this ruling that the Commonwealth has appealed, the Superior Court sua sponte created new arguing Tumer/Finley requirements by ruling that PCRA counsel’s no-merit letter was issue, defective. In addressing this I respectfully submit that the Majority conflates the issue of the propriety of the Superior ruling Court’s this regard with the independent issue of whether a PCRA petitioner can challenge PCRA counsel ineffectiveness on appeal from the denial of issue, PCRA relief. As to the former to the extent the Majority holds that the Superior Court by ruling erred the issue of whether PCRA counsel’s no-merit letter satisfied the Tumer/Finley requirements, I with agree nar- very row proposition, as such issue was never raised the parties. While I have no opposition to general notion underlying rationale, i.e., the Superior Court’s that an attorney filing Tumer/Finley letter inquire should as to why a particular criminal defendant did not receive his constitutional right to a direct appeal, Majority aptly notes that Superior is not free to resolve an issue that is not before it on appeal.5 dissent,
I vigorously
however, from the Majority’s alterna-
tive holding that Appellee waived the claim of PCRA counsel’s
ineffectiveness, which was layered properly and raised at the
first viable opportunity in the collateral
proceeding.
Majority rejects the notion that Appellee’s agree
Furthermore, requiring petitioners to challenge PCRA counsel’s at any point effectiveness during proceed- ing is simply unworkable. To overcome the presumption that effective, counsel is petitioner must satisfy a three- (1) pronged test and demonstrate that: the underlying sub- (2) merit; stantive claim has arguable counsel whose effective- ness is being challenged did not have a reasonable basis for act; his or her actions or failure to the petitioner suffered prejudice as a result of perform- counsel’s deficient (Michael) Pierce, ance. Commonwealth v. 186, 567 Pa. 786 (2001). 203, A.2d A petitioner could never demon- strate that he was prejudiced by PCRA counsel’s performance, i.e., demonstrate that the outcome of the PCRA proceeding different, would have been when the PCRA proceeding has yet concluded and no ruling by PCRA court has been issued. raising layered by Appellee,
The actual
followed
procedure
from the
claim of
counsel ineffectiveness
relief,
obtaining
accepted
is the
method
denial of PCRA
recently explained
this author
review for such claims. As
held
Ligons,
repeatedly
this Court has
plurality opinion
of PCRA
may challenge
stewardship
that a defendant
relief because it is
counsel on
from the denial of PCRA
Hall,
Pa.
so.
only
do
Commonwealth
opportunity
Pursell,
(2005);
Albrecht,
(1999);
It is axiomatic that the to counsel includes the concom- itant to effective assistance of counsel. Indeed the right if right meaningless to counsel is effective assistance is not guaranteed.
Id.,
Albert,
To a ‘new’ a claim counsel ineffectiveness as [viewing of PCRA to effective petitioner’s right represen- renders PCRA claim] and, therefore, Ligons, meaningless.” unenforceable tation that A.2d at 1139. I explained challenge ... counsel’s effective- petitioner cannot PCRA alleged court because the ineffec- ness before PCRA occurs, inef- that proceeding tiveness is out as playing proceeding identified has fectiveness cannot be until one the three absent invocation of Similarly, concluded. forth exceptions requirement to the timeliness set statutory 9545(b)(1)(i)-(iii), virtually § be im- 42 Pa.C.S. it would petition raising for a to ever file a serial possible petitioner timely counsel’s ineffectiveness in a manner as disposed would not be before first PCRA filing period expires. See Common- one-year statutory Lark, wealth pending, subsequent is
(holding when be filed until resolution of review of petition cannot by highest state court which pending *24 the of time sought, expiration seeking review is or at review). such
Id. at 1139-40. way that the to a PCRA emphasized only
This author afford effective opportunity right to enforce his to petitioner is the such claims on permit filing appeal PCRA counsel to of relief. Id. at 1140. the from the denial of PCRA While addressing that such claims of Ligons plurality recognized in the the places PCRA counsel ineffectiveness that the position of claims were reviewed reviewing court, there to PCRA we that is no viable alternative found can be that to effective PCRA counsel right ensure case, appropriate and a where remedy granted enforced petitioner has burden of rigorous establishing satisfied claim multiple-layered of ineffectiveness set forth Com (2003).6 McGill, monwealth v. A.2d 1014 Appellee rigorous has satisfied that remarkably, Somewhat burden here him an necessary to extent to afford eviden- 908(A)(2) tiary hearing pursuant (stating to Pa.R.Crim.P. that the PCRA court shall order where hearing petitioner raises fact). Appellee a material issue of in his pro asserted se to he appeal requested Court that trial counsel to file filed; a direct such appeal; no that he requested counsel to his amend to include a claim that trial counsel was ineffective for to a requested appeal; file and that counsel failed to so amend filed a Appellee’s instead Tumer/Finley letter in she which maintained that there were no issues which Thus, could be in a raised counseled amended PCRA petition. pursuant assertions, to v. Lantzy, Appellee’s if believed, clearly would entitle him to reinstatement of his rights direct appeal nunc tunc. Under these circum- stances, I would evidentiary remand this matter for an hear- to Appellee afford ing opportunity prove layered his claim of ineffective assistance of counsel. conclusion,
In quintessential this case presents example why claims of PCRA counsel be recog- ineffectiveness must nized on from the denial of PCRA relief. Assuming his true, assertions are was denied Appellee his constitutional to a direct light appeal, and was denied his right effective assistance of counsel in his first petition. To further deny him an evidentiary hearing to claim prove layered counsel, ineffective assistance of he is clearly when entitled to 908(A)(2), Hall, the same pursuant Lantzy, Pa.R.Crim.P. Pursell, Albrecht, deny justice is this case. join
Justice SAYLOR TODD this opinion. Justice McGill, 6. proper layering Commonwealth v. this Court addressed the counsel, aof claim of ineffective assistance of and held that a PCRA ineffectiveness, present petitioner argument layer must as to each establishing prongs all three of the ineffectiveness standard for each attorney. Id. at Justice Baer’s notes issue Dissenting Opinion rightly that this is of import, serious a division on implicating recently expressed Ligons, A.2d (Pa.2009), and also calling question existing authority into I expressly acknowledge facts, Court. would those and I why write to I explain agree Majority’s with the adoption forth, position great Ligons. set length, justification appellee’s claim finding of PCRA counsel ineffectiveness is waived must be deferred