COMMONWEALTH of Pennsylvania, Appellee v. Frankie ROSADO, Appellant
No. 92 MAP 2015
Supreme Court of Pennsylvania.
November 22, 2016
150 A.3d 426
Robert Allen Saurman, Esq., for Frankie Rosado, Appellant.
SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.
OPINION
JUSTICE TODD
In this appeal, we consider whether filing an appellate brief which abandons all preserved issues in favor of unpreserved ones constitutes ineffective assistance of counsel per se.1 After careful review, we hold that it does, and so we vacate the Superior Court‘s order and remand to that court for further proceedings.
The factual and procedural history of this matter is straightforward. In 2012, Appellant Frankie Rosado was accused of sexually abusing his former girlfriend‘s teenage daughter, whereupon he was charged with one count each of indecent assault, corruption of minors, and unlawful contact with minor.2 Appellant, then represented by a public defender, proceeded to trial, whereafter he was convicted of the aforementioned offenses and later sentenced to an aggregate term of 33 to 69 months imprisonment.
In an unpublished memorandum opinion, the Superior Court, while noting the three issues preserved in Appellant‘s concise statement, found the sufficiency claim to be waived, as it was not included therein. Commonwealth v. Rosado, No. 2754 EDA 2012, 2013 WL 11259105 (Pa. Super. filed Jul. 23, 2013). Accordingly, the court did not address any of Appel-
Appellant later filed a Post Conviction Relief Act (“PCRA“)4 petition asserting, inter alia, that Appellate Counsel‘s above-detailed conduct constituted ineffective assistance of counsel per se, and thus seeking reinstatement of his appellate rights nunc pro tunc. The PCRA court held an evidentiary hearing, at which Appellate Counsel testified that he believed that attaching his post-sentence motion to his concise statement was sufficient to preserve the claims raised for purposes of appeal, and that he abandoned the three preserved claims in an effort to more persuasively argue his sufficiency claim. Ultimately, the PCRA court found that Appellate Counsel‘s conduct did not amount to ineffectiveness per se, and, accordingly, denied relief. Appellant appealed to the Superior Court. In an unpublished memorandum opinion, the Superior Court affirmed. Commonwealth v. Rosado, No. 2474 EDA 2014, 2015 WL 7352584 (Pa. Super. filed Apr. 17, 2015). The court first quoted extensively from the PCRA court‘s Rule 1925(a) opinion regarding the doctrine of ineffective assistance of counsel per se as it applies to appeals in Pennsylvania:
There are two types of ineffective assistance of counsel. The first is ineffectiveness under Strickland v. Washington, 466 U.S. 668 (1984), as adopted in Pennsylvania by Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (Pa. 1987), which requires the defendant to demonstrate that he was prejudiced by an act or omission of his attorney.
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The second type of ineffectiveness of counsel is ineffectiveness per se under United States v. Cronic, 466 U.S. 648 (1984), decided the same day as Strickland, in which the United States Supreme Court categorized circumstances where prejudice will be presumed and need not be proven. The presumption is based on the High Court‘s recognition that there
are “some circumstances so likely to prejudice the accused that the cost of litigating their effect in a particular case is unjustified.” (Id. at 658).
In Commonwealth v. Brown, 18 A.3d 1147 (Pa. Super. 2011), our Superior Court collected cases that outline the various situations where counsel has been held to be ineffective per se and analyzed the differences between a Cronic violation and a Strickland/Pierce allegation of ineffective assistance of counsel.
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The recognized instances of per se ineffectiveness entitling a defendant to automatic relief are extremely narrow. Commonwealth v. Halley, 582 Pa. 164, 870 A.2d 795 (2005) (counsel did not file a
Pa.R.A.P. 1925(b) statement and waived all issues, thereby denying the defendant his constitutional right to direct appeal); Commonwealth v. Liebel, 573 Pa. 375, 825 A.2d 630 (2003) (attorney did not file a petition for allowance of appeal, as requested by the defendant, and denied his client the right to seek discretionary review with our Supreme Court); Commonwealth v. Lantzy, 558 Pa. 214, 736 A.2d 564, 572 (1999) (lawyer did not file a direct appeal, despite defendant‘s request); see also Commonwealth v. Burton, 973 A.2d 428 (Pa. Super. 2009) (filing of an untimely 1925(b) statement); Commonwealth v. Bennett, 593 Pa. 382, 930 A.2d 1264 (2007) (not filing an appellate brief so defendant did not obtain direct review).On the other hand, the types of actions or inactions that are not subject to Cronic are legion. E.g. Commonwealth v. Reed, 601 Pa. 257, 971 A.2d 1216, 1226 (2009) (“filing an appellate brief, deficient in some aspect or another, does not constitute a complete failure to function as a client‘s advocate so as to warrant a presumption of prejudice under Cronic“); ... [sic] Commonwealth v. Reaves, 592 Pa. 134, 923 A.2d 1119 (2007) (narrowing ambit of reviewable issues on appeal does not constitute per se ineffectiveness).
Here, Appellant‘s appeal was timely filed, a
Pa.R.A.P. 1925(b) statement was filed, and this Court acknowledged the claim Appellate Counsel chose to raise on appeal. These facts vitiate Appellant‘s claim of per se ineffectiveness. As discussed above, because Appellate Counsel litigated Appellant‘s direct appeal, Appellant‘s claim of ineffectiveness must be reviewed using the tripartite test of Strickland/Pierce. See also Commonwealth v. West, 883 A.2d 654, 658 n.5 (Pa. Super. 2005) (explaining that per se ineffectiveness does not occur when counsel elected to pursue certain issues in thePa.R.A.P. 1925(b) statement and omitted others).In Appellant‘s direct appeal, we found Appellant waived the only issue appellate counsel chose to raise. This fact, however, does not transform his claim into one of per se ineffectiveness. See [Reed, 971 A.2d at 1226] (“filing an appellate brief, deficient in some aspect or another, does not constitute a complete failure to function as a client‘s advocate so as to warrant a presumption of prejudice under Cronic“).
Id. at 8-9. Accordingly, the court concluded that Appellant was required to demonstrate that Appellate Counsel‘s errors caused him prejudice, and, finding he had not done so, affirmed the PCRA court‘s denial of relief.
Appellant timely sought, and this Court granted, allowance of appeal to consider whether filing an appellate brief which abandons all preserved issues in favor of unpreserved ones constitutes ineffective assistance of counsel per se. Commonwealth v. Rosado, 129 A.3d 1237 (Pa. 2015) (order).
Before us, the parties’ arguments essentially offer two views of our jurisprudence in this area. Appellant contends that the Superior Court erred in rejecting his claim because it ignored “clear similarities” between the attorneys’ conduct in
The Commonwealth, by contrast, advances a competing view, consistent with the Superior Court‘s reasoning below, that this Court‘s decisions in Lantzy and its progeny apply only where counsel fails to file a document necessary to preserve review, and that, once those documents are properly filed, any defects therein are governed by Reed‘s holding that merely filing a brief which is deficient in some way does not give rise to a claim of ineffective assistance of counsel per se. See Commonwealth‘s Brief at 10. Moreover, the Commonwealth echoes our concern, expressed in Reed, that extending Lantzy to the context of defective appellate briefs would “transform the exception” of ineffective assistance of counsel per se “into a rule,” as, in its view, “[t]o delve into the substance of the actual content [of a brief] in order to make a finding of per se ineffectiveness would in practice, do away with the Strickland/Pierce standard.” Id. at 11-12.
The Sixth Amendment to the United States Constitution provides that “[i]n all criminal prosecutions, the accused
Generally, an accused asserting that he has been denied his constitutional right to effective assistance of counsel must demonstrate that counsel engaged in errors which caused him prejudice—i.e., that “there is a reasonable probability that, but for counsel‘s ... errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694. In Pennsylvania, we have set forth the Strickland standard as a three-part test, requiring an accused to show that (1) his underlying claim is of arguable merit; (2) counsel‘s action or inaction lacked a reasonable strategic basis; and (3) but for counsel‘s conduct, there is a reasonable probability that the outcome of the proceedings would have been different. See Pierce, supra. However, in certain limited circumstances, including the actual or constructive denial of counsel, prejudice may be so plain that the cost of litigating the issue of prejudice is unjustified, and a finding of ineffective assistance of counsel per se is warranted. See Cronic, 466 U.S. at 658-59 (“There are ... circumstances that are so likely to prejudice the accused that the cost of litigating their effect in a particular case is unjustified. Most obvious, of course, is the complete denial of counsel.” (footnote omitted)); Strickland, 466 U.S. at 692 (“Actual or constructive denial of the assistance of counsel altogether is
This Court has considered claims that an accused‘s attorney‘s errors amounted to a constructive denial of counsel in the context of appeals, and has done so with special solicitude for an accused‘s Pennsylvania constitutional right to appeal. See
Strickland ... expressly acknowledges that actual or constructive denial of the assistance of counsel falls within
a narrow category of circumstances in which prejudice is legally presumed. Strickland, 466 U.S. at 692. Since the failure to perfect a requested appeal is the functional equivalent of having no representation at all, Strickland, on its own terms, establishes the right to relief. Additionally, ... since
Article V, Section 9 of the Pennsylvania Constitution guarantees a direct appeal as of right, see [Wilkerson], a failure to file or perfect such an appeal results in a denial so fundamental as to constitute prejudice per se.
Lantzy, 736 A.2d at 571 (some citations omitted).
Subsequently, in Liebel, we considered an accused‘s challenge to his counsel‘s failure to file a requested petition for allowance of appeal to this Court. We held that this error, too, amounted to a constructive denial of counsel and constituted ineffective assistance of counsel per se:
In Lantzy, ... [w]e reasoned that counsel‘s unjustified failure to perfect a requested appeal is the functional equivalent of having absolutely no representation at all on direct appeal, a clear violation of the federal and state constitutional right to counsel.
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[W]e find the reasoning of Lantzy equally persuasive in the circumstances presented by this case. Here, appellate counsel ... simply failed to file a [petition for allowance of appeal] on [the accused‘s] behalf.... Such a failure cannot be regarded as anything less than providing [the accused] with no representation at all on that [petition for allowance of appeal], a clear violation of [the accused‘s] rule-based right to counsel.
Next, in Halley, we addressed an accused‘s claim that his counsel‘s failure to file a court-ordered
Lantzy‘s reasoning expressly subsumed not only the unjustified failure to file a requested direct appeal, but also, the failure to perfect the appeal. See Lantzy, 736 A.2d at 571 (indicating that “a failure to file or perfect such an appeal results in a denial so fundamental as to constitute prejudice per se” (emphasis added)). Since ... the submission of a court-ordered Rule 1925(b) statement is a prerequisite to appellate merits review, the Rule 1925(b) statement (when directed) is elemental to an effective perfection of the appeal. See Black‘s Law Dictionary 1173 (8th ed. 2004) (defining the act of perfecting as “tak[ing] all [the] legal steps necessary to complete, secure, or record a claim, right, or interest“). Thus, Lantzy‘s reasoning applies by its terms to counsel‘s dereliction in this case, which left Appellant without an ability to challenge his conviction and sentence by means of the direct appeal.
Halley, 870 A.2d at 800 (some citations omitted and emphasis and alterations original). We distinguished counsel‘s failure to file a
[I]t is well established that the decision whether to presume prejudice or to require an appellant to demonstrate actual prejudice “turns on the magnitude of the deprivation of the right to effective assistance of counsel.” As we observed in Lantzy, the failure to perfect a requested direct appeal is the functional equivalent of having no representation at all.... The difference in degree between failures that completely foreclose appellate review, and those which may result in narrowing its ambit, justifies application of the presumption in the more extreme instance.
Id. at 801 (citations omitted and emphasis added). Additionally, we found that maintaining the distinction between errors causing waiver of all claims and those failing to preserve
Our subsequent decisions have maintained Halley‘s distinction between errors which completely foreclose merits review and those which merely “narrow its ambit.” Thus, in Reaves, we held an attorney‘s failure to file a post-sentence motion preserving a particular sentencing claim “did not operate to entirely foreclose appellate review,” but merely “waive[d] ... those claims subject to issue preservation requirements which were not otherwise properly preserved.” Reaves, 923 A.2d at 1128-29. By contrast, in Bennett, wherein an accused‘s counsel failed to file an appellate brief, we explained that the claim emanated from Lantzy and Halley, as counsel‘s failure to file a brief was not a “situation ... in which counsel has narrowed the ambit of appellate review” but, rather, “has failed to file an appeal at all.” Bennett, 930 A.2d at 1273. In Commonwealth v. Mallory, 596 Pa. 172, 941 A.2d 686 (2008), we held that counsel‘s failure to object that his client was not afforded a jury trial waiver colloquy was “unlike the presumed prejudice scenarios found in Lantzy and Halley, where counsel‘s lapse caused the complete default of direct appeals requested by the client.” Id. at 197, 870 A.2d 795. Similarly, in Commonwealth v. Steele, 599 Pa. 341, 961 A.2d 786 (2008), we held that an attorney who, at the penalty phase of his client‘s capital murder case, gave a cursory argument and then exited the courtroom, leaving co-counsel in place, had not “entirely failed to function as [the client‘s] advocate.” Id. at 810-12.
Finally, and of particular importance herein, in Reed, we considered whether filing a deficiently composed appellate brief warranted a finding of ineffective assistance of counsel per se. Therein, the accused was convicted at a bench trial of murder and related offenses, and sentenced to life imprison-
We have examined the record in light of these standards, and conclude that [Reed] is not entitled to relief for several reasons. First, [Reed‘s] argument is not developed sufficiently for us to conduct meaningful appellate review. Failure to provide argument with appropriate citation to authority results in waiver of the issue.
Second, [Reed‘s] brief refers to evidence in the notes of testimony, but the notes of testimony are not included in the certified record. Thus, we are unable to read the testimony and evaluate [Reed‘s] argument.
It is an appellant‘s duty to ensure that the certified record is complete for purposes of review. We decline to review this issue with an incomplete record, and consider the issue to be waived.
971 A.2d at 1219 (quoting Commonwealth v. Reed, No. 2909 EDA 2003, 2005 WL 2177622, unpublished memorandum at 7-9 (Pa. Super. filed June 9, 2005)). Nevertheless, assuming arguendo that the accused had not waived his claim, the court rejected it, reasoning: (1) his argument was undermined by the fact that he was convicted at a bench trial, where the presiding judge is presumed not to be influenced by exposure to prejudicial evidence; and (2) the evidence was admissible under the rule that prior bad acts evidence may be introduced to show Reed‘s degree of preparation and, more generally, the res gestae of the case. Id.
The accused subsequently filed a PCRA petition challenging his appellate attorney‘s failure to develop his brief as ineffective assistance of counsel per se, and the lower courts denied relief. On appeal to this Court, we reviewed some of the foregoing authorities, and rejected his claim:
[W]e ... conclude that the filing of an appellate brief, deficient in some aspect or another, does not constitute a complete failure to function as a client‘s advocate so as to warrant a presumption of prejudice under Cronic. Unlike the case in Lantzy, Halley, and Liebel, ... Reed‘s direct appeal counsel‘s conduct in the instant case did not deprive Reed of his constitutional right to appeal. Significantly, Reed‘s direct appeal counsel filed a timely notice of appeal, which was docketed with the prothonotary. Although the Superior Court ... opined that counsel‘s failure to provide appropriate citation to authority and a copy of the notes of testimony resulted in waiver of Reed‘s argument, the court did not quash Reed‘s appeal. Indeed, the issues apparently were sufficiently presented to allow the court to address the merits of Reed‘s arguments, as the court indicated that it reviewed the evidence and the record. ... At most, the Superior Court‘s review of Reed‘s arguments on the record before it may be viewed as a “narrowing of the ambit” of Reed‘s appeal. Moreover, to extend the [doctrine of ineffective assistance of counsel per se] to cases involving a defect in an appellate brief essentially would transform the exception into a rule, as many appellate briefs contain at least one arguable defect.
Id. at 1226-27 (citations omitted).10
Upon review of these cases, we conclude that Appellant‘s interpretation of our jurisprudence in this area is correct. As demonstrated supra, this Court has, since Halley, held that errors which completely foreclose appellate review amount to a constructive denial of counsel and thus ineffective assistance of counsel per se, whereas those which only partially foreclose such review are subject to the ordinary Strickland/Pierce
Moreover, the filing of a brief that raises only waived issues, while technically distinct, is nonetheless akin to failing to file documents perfecting an appeal. There is no meaningful difference between an attorney who fails to file a notice of appeal, Rule 1925(b) statement, brief, or petition for allowance of appeal—thereby forfeiting his client‘s right to appeal—and one who makes all necessary filings, but does so relative solely
Furthermore, although the Commonwealth‘s view that its proposed limitation on Lantzy and its progeny is more judicially administrable because it draws a clear distinction between claims of ineffective assistance of counsel per se and those subject to the Strickland/Pierce framework is well-taken, we do not view it as significantly more advantageous in this context than the rule in Halley. Particularly where, as herein, an attorney has matter-of-factly forfeited all preserved claims of error in favor of unpreserved ones, it is a straightforward matter for an appellate court to conclude the claims are waived. Indeed, unlike in Reed, where the Superior Court was required to contemplate the degree to which review could be performed despite counsel‘s errors, and could consider the merits of issues from the arguments made with respect to them in the brief, here, no such analysis was required: due to counsel‘s actions, the only claim raised, by virtue of its omission from the Rule 1925(b) statement, was manifestly waived. Moreover, as we indicated in Halley, the distinction between errors causing complete deprivation of review and those causing only partial deprivation of review plainly “addresses the ... concern that the presumption should not extend to every circumstance in which a defendant may claim no effective appeal.” Halley, 870 A.2d at 801. Accordingly, we hold that the filing of an appellate brief which abandons all preserved issues in favor of unpreserved ones constitutes ineffective assistance of counsel per se.
Here, although preserving three claims of trial court error in his Rule 1925(b) statement, Appellate Counsel completely abandoned those claims on appeal and, instead, raised an unpreserved sufficiency-of-the-evidence challenge, occasioning a complete waiver of all merits review. In light of this complete default, we find the Superior Court‘s observations that “Appellant‘s appeal was timely filed, a
Thus, we vacate the Superior Court‘s order affirming Appellant‘s judgment of sentence, and we remand to that court for further proceedings consistent with this opinion.
Jurisdiction relinquished.
Justices Baer, Donohue and Dougherty join the opinion.
Chief Justice Saylor files a concurring opinion in which Justices Wecht and Mundy join.
COMMONWEALTH of Pennsylvania, Appellee v. Frankie ROSADO, Appellant
No. 92 MAP 2015
Supreme Court of Pennsylvania.
November 22, 2016
150 A.3d 426
CONCURRING OPINION
CHIEF JUSTICE SAYLOR
I join the majority opinion except for the passages distinguishing Commonwealth v. Reed, 601 Pa. 257, 971 A.2d 1216 (2009). I am of the view that the waiver of all claims presented on direct appeal, as occurred in Reed—resulting in a complete forfeiture of as-of-right direct appellate review—is tantamount to a complete denial of counsel. Accord id. at 1227 (Saylor, J., dissenting). Indeed, from my point of view, the majority‘s effort to distinguish Reed is in tension with the salutary thrust of its opinion. See Majority Opinion, at 439, 150 A.3d at 434 (“[T]he filing of a brief that raises only waived issues ... [is] akin to failing to file documents perfecting an appeal.“); id. at 439 n.11, 150 A.3d at 434 n.11 (distinguishing “a brief so poor as to warrant a finding of waiver” from “one which is merely deficient in some aspect or another“); id. at 439-40, 150 A.3d at 434 (“There is no meaningful difference between an attorney who fails to file a notice of appeal, Rule 1925(b) statement, brief, or petition for allowance of appeal—thereby forfeiting his client‘s right to appeal—and one who
Justices Wecht and Mundy join this concurring opinion.