*1
Jan. 2001. ORDER PER CURIAM: NOW, day January, petition
AND 29th prejudice petitioner’s without allowance of is denied timely petition effectiveness in a ability challenge counsels’ for post-conviction relief.
Supreme Pennsylvania.
Feb. 2001. Appeal Denied Jan. 2001.
ORDER PER CURIAM: NOW, February, 2001, day
AND this 7th consider- ation of the Defender Association of Philadelphia, hereby it is ORDERED that the PCRA court shall colloquy conduct a with M. Daniel Saranc- hak to veracity determine the of the unsworn declaration *2 which was attached to the as application, well Daniel as M. present regard pursuit intentions with to the post-conviction relief and the reinstatement the Defender Philadelphia Association of as his colloquy counsel. Such is to recorded, transcribed and submitted this Court. For purposes colloquy the any associated proceedings, the Defender Association of Philadelphia shall be permitted to Saranchak, serve as counsel for if this is consistent with his wishes at the time colloquy by determined the PCRA court.
Jurisdiction retained. Justice CASTILLE dissenting files a statement. dissenting. Justice CASTILLE
In response to an application reargument by filed Federal Court Division of the Defender Association of Phila- (“Federal delphia Defender”), counsel, Saranchak’s former Court orders the yet PCRA court to conduct another colloquy with Saranchak veracity determine the of his unsworn declaration attached to the application, as well as Saranchak’s “present intentions” with respect pursuit to the of post-convic- tion relief and reinstatement the Federal Defender as his counsel. The Court’s necessarily order assumes that allegation that “changed Saranchak his mind” pursuing about collateral disposition relief after of the Federal Defender’s appeal ground valid grant which to believe, assumption, That I is erroneous. Neither Saranchak’s alleged declaration nor his “present pursue post- intention” conviction remotely relief call question into propriety this Court’s dismissal order that is the exclusive sub- ject of this application. Furthermore, because present the averments application clearly do not other- wise warrant reargument, I deny would the Federal Defend- application. er’s Accordingly, respectfully I dissent. 1993, brutally mur- robbed October Saranchak
On
78-year-old
87-year-old grandmother
uncle and
dered
murders
guilty to the
County.
pleaded
Saranchak
Schuylkill
trial court
guilt hearing,
degree
After a
generally.
murder,
juryA
first-degree
counts of
guilty
found him
of two
phase,
penalty
at
penalty
and fixed
was convened for the
unanimously upheld
appeal,
death. On
direct
Commonwealth
death
and affirmed the
sentence.
convictions
(1996).
Saranchak,
278-79
v.
675 A.2d
544 Pa.
relief, which
sought post-conviction
subsequently
Saranchak
however,
initially
appeal,
PCRA court. On
was
denied
filing
petition.
for the
of a new PCRA
this Court remanded
Saranchak,
111,
In its the Federal Defender compe- colloquy raised an issue of Saranchak’s mental PCRA review, that a mental tency arguing further to waive collateral necessary competency. health to determine examination On October supple- Court remanded the case for expert psychiatric opinion mentation the record with as to present ability Saranchak’s a valid effectuate waiver right pursue to counsel and to proceedings. further collateral stay abeyance The motion was pending held in outcome this inquiry. court-appointed psychiatrist A examined Saranc- hak, filed a report, supplemental and testified at a that, proceeding opinion, in his Saranchak was competent to waive pursue to counsel and to proceedings. collateral The accepted testimony, PCRA court noting that it sup- ported the court’s earlier determination that Saranchak’s waiver was valid.
Upon review of psychiatric on produced evidence re- mand, this Court entered an order on November dismissing the Federal Defender’s on lack based standing denying stay for a of execution. Our finding order resulted from a that the record demonstrat- ed that competent Saranchak was to waive counsel and further review, and that his knowing, voluntary waiver was and intelli- gent. necessarily also encompassed order rejection the Federal procedural Defender’s various challenges to the hearings below. 7,
On November a “next friend” request for a execution was then behalf in the United States District Court for the Middle District of Pennsylvania, Court, per which the Sylvia Rambo, the Honorable H. denied. Judge Rambo found purported that the “next friends”—Alex- Fensterer, andra Esquire, an attorney with the Federal De- *4 fender who previously represented Saranchak in pro- related ceedings, and Troup, Dennis step-father, Saranchak’s who did appear not at hearing the federal not individuals “who —were truly are dedicated to the best interest of Mr. Saranchak.” Accordingly, Judge Rambo held that the movants lacked to standing Order, a stay Rambo, seek of J., execution. (attached November to Commonwealth’s Response as A). Exhibit A however, Third panel, Circuit granted stay and listed the expedited matter for briefing, specifically direct- ing parties to standing brief the issue. The United States to application the Commonwealth’s Court denied
Supreme expired of warrant execution stay, and vacate the Saranchak’s a matter course. court, the Federal Following stay granted federal urging application reargument, the instant Defender filed standing application issue.1 The to “revisit” this Court unsworn, an exclusively premised upon November Saranchak, The by appended application. to declaration changed has his mind states that Saranchak declaration by the Defender and he Federal represented now wishes be challenge prior waivers and to “withdraw” desires The declaration through any appropriate means. convictions to act Assistant Fensterer purports to authorize Defender also friend,” legal necessary, any “next future as Saranchak’s change of purported of Saranchak’s proceedings. On the basis mind, requests reargument that the Federal Defender PCRA be remanded to the court granted, the case claims on the consider PCRA merits. law, view, do my as a matter these averments
In by reargument. they Nor do warrant further action warrant governing The considerations this Court. well-established reargument set forth in Pa.R.A.P. which allowance are part “Reargument appellate before an pertinent states in discretion, right, judicial is not a matter of but sound only compel- be allowed where there are will pro- The the rule further ling reasons therefore.” Note to vides: controlling following, fully nor while neither measur- court, indicate the character of
ing the discretion reasons which will be considered:
(1) panel court and Where decision deci- may the decision be inconsistent with a appears that court on the same panel of a different the same sion subject. friends,’’ Docket, According Pacer the "next
1. to the Third Circuit’s counsel, through successfully the Federal Defender as moved briefing disposi- expedited pending schedule this Court’s Third Circuit tion *5 (2) or misapprehended the court has Where overlooked fact of record material the outcome the case.
(3) or misapprehended the court has overlooked Where (as result) misquotation or by misstatement of text authority. or controlling directly relevant (4) controlling directly authority or relevant Where reversed, by expressly relied the court has been modified, materially during overruled or otherwise affected judice, pendency the matter sub and no notice thereof 2501(b) was given pursuant (change to the court Rule in authorities). status of today
The Court orders the PCRA to conduct another colloquy present to ascertain respect Saranchak’s with desires Yet, to pursuing post-conviction light relief. of Rule begs this action question: To what legally relevant end? reargument petition. notes, This ais As the Commonwealth argue Federal Defender does not that the order dismiss- ing erroneous; its just requests it that the issue be changed “revisited” because Saranchak has his mind. is
Even assumed that truly Saranchak’s declaration wishes, reflects wholly his current this fact is irrelevant to the reargument. Saranchak’s of mind not a fact the Court or misapprehended” “overlooked at the time of our order. It was a fact not at all. Saranchak’s declaration is dated days November ten this after Court the challenged entered order. It is a that only “fact” came into ruling existence our Saranchak’s after after out, credited desire of record to see execution earned nugatory desire rendered Third Circuit’s order. case, Even in a capital prescient Court’s failure grounds not
Notably, nothing application for chal- lenges propriety this Court’s assessment PCRA which, found, record below this demonstrated a valid present waiver. dispute declaration does not clear and unequivocal statements the record he that wished waive further collateral attack and his to counsel and death that his should
that he understood
result
Moreover,
challenge
out.
he
penalty being carried
does
*6
examining psychiatrist
that he was
the conclusions of the
that
mentally
at the time of his waiver and
competent
knowingly, voluntarily
intelligently
made.2
way
it in
casts doubt on the
facts relied
Because
no
record
order,
challenged
upon by this
at the time of the
facts,
consequences
legal
or the
interpretation
Court’s
those
facts,
change
simply
of mind
alleged
of those
does
v.
Com-
justify reargument. Compare Joyce
Workmen’s
Board,
244, 246,
417,
550 Pa.
705 A.2d
418
pensation Appeal
(1997)
misapprehended
where Court
(granting
hearsay
relating
job availability
inadmissible
evidence as
referral);
job
Machi-
follow-through
of claimant’s
instead
Co.,
Pennsyl-
v.
Land and Coal
Inc. Commonwealth
pongo
Resources,
vania, Dep’t
Environmental
544 Pa.
(1996)
(granting reargument
appel-
201
where
676 A.2d
alleged that Court’s reliance on Eminent Domain Code to
lees
misplaced
appellants’ pre-enforce-
remand matter was
since
challenges
regulation promulgated pursuant
concerned
ment
police powers);
exercise of its
Tulewicz v.
Commonwealth’s
Authority, 529
Pennsylvania Transportation
Southeastern
(1992)
588, 592-93,
(granting reargument
A.2d
Pa.
606
429
appellee
petition
reargu-
in its
where
raised
first time
immunity).
claim of
ment non-waivable
single authority
cites a
The Federal Defender’s
a
support
its absolutist claim that
of mind
i.e.,
reopening
proceedings,
of collateral
Lonchar
warrants
Thomas,
517 U.S.
116 S.Ct.
3. Lonchar was decided three weeks before the 1996 Antiterrorism and (AEDPA) Penalty Effective Death Act amended the federal habeas corpus Among things, one-year statute. other AEDPA established a 2244(d)(1). filing petitions. § deadline for federal habeas See 28 U.S.C. hold that a defendant’s
Lonchar does remotely not automatically controls litigate to mind and current desire accepted previously a nugatory and renders affirmed Lonchar, to Nor, principles unique waiver. applying a case inkling an corpus jurisprudence, is there habeas federal states, holding, binding upon the constitutional some federal finality of a waiver. The Federal involving validity and mischaracteriza- suggestion otherwise is serious Defender’s decision; only a mischaracterization such tion of the alone authority relied enough to warrant its denial. if Lonchar contained Furthermore, a constitutional even Court, support it would not binding upon this holding that is Lonchar waiver, respect to With grant with- filing that Lonchar’s and later merely observed operate not as an petition habeas did drawal of a state valid, petition. first habeas pursuing federal automatic bar however, Notably, 1293. 517 U.S. at S.Ct. withdrawal of a explicitly recognized Supreme Court bar petition might “procedural well raise first state habeas circumstances, which, petition, certain second state of similar claims in court.” might prevent litigation federal also Id. of state Lonchar Court’s recognition that a waiver necessarily waive the
habeas review does federal exceptional, nor at all relevant also is neither habeas review from was not barred question presented here. Saranchak *8 to petition because he elected filing a first federal habeas Indeed, the Third Circuit’s rights waive his under the PCRA. alleged of “next stay, upon of a motion grant Lonchar, Here, it will friends,” no than illustrates this. less determine, of court to as matter federal be for the federal law, explicit waiver of corpus habeas whether Saranchak’s a waiver of hearings encompassed further review the PCRA and, not, his state habeas review whether federal Lonchar, Thus, delay, Congress spoken on and the conse- has since dramatically delay pursuing review have quences federal habeas increased. waiver, minimum, at procedurally bars of the consideration merits of his PCRA claims federal But corpus. habeas nothing remotely suggests in Lonchar that state courts lack authority upon waiver, to including the rule issues of state the question finality of the those waivers for state collateral purposes. review judice, determined,
In the sub upon matter Court below, proceedings law, light review and in of settled that Saranchak’s waiver of counsel and further review was competently validly and statutory right entered. Saranchak’s right PCRA review and his Criminal Rules-based to PCRA counsel no are less waivable than more fundamental constitu- rights tional commonly cases, that are waived in criminal such trial, right the to a the right jury, to a testify, the case, etc. I know no neither the Federal Defender nor any, cited Court have that allows a rights waiver of to be “withdrawn,” automatically upon based change mere mind, highest appellate after the court in the Commonwealth already has that it knowingly, ruled intelligently, volun- tarily, and competently entered. accepted, position
If urged by the Federal Defender seriously salutary would alter degrade doctrine solemnity proceedings where waiver occurs. If a only valid waiver is until change effective is a there mind final, then no waiver is ever matter unequiv- no how clear and ocal forgo the defendant’s record decision further proceed- ings. Any automatically can negated “waiver” a subse- quent merely claim that the defendant has had A system heart. rational of appellate jurisprudence cannot be caprice based whim and of those who seek its benefits. Saranchak himself has closed the door collat- process eral review and has knowingly, voluntarily done so intelligently. The door should remain closed. recognize I yet has not ruled upon may very ultimately itself and well deny Nevertheless, because, law, as a matter the present arguments reargument, do not warrant I believe *9 an creates erroneous, simply and it order remand
this Hence, dissent. respectfully I delay. additional, unnecessary 767 A.2d BERKELBAUGH, Appellant, Thomas CORRECTIONS OF DEPARTMENT PENNSYLVANIA Parole, Pennsylvania & Probation Board of & Appellees. Pennsylvania. Supreme Court of 9, 2001. Feb. ORDER PER CURIAM: juris- probable NOW, day February,
AND 9th is affirmed. appealed order and the is noted diction