Penn State Dickinson Law Penn State Dickinson Law

Dickinson Law IDEAS Dickinson Law IDEAS

Faculty Scholarly Works Faculty Scholarship

10-1-2004

Post Conviction Developments Post Conviction Developments

Thomas M. Place tmp5@psu.edu

Follow this and additional works at: https://ideas.dickinsonlaw.psu.edu/fac-works

Recommended Citation Recommended Citation Thomas M. Place, Post Conviction Developments, 75 Pa. B. Ass'n Q. 161 (2004).

This Article is brought to you for free and open access by the Faculty Scholarship at Dickinson Law IDEAS. It has been accepted for inclusion in Faculty Scholarly Works by an authorized administrator of Dickinson Law IDEAS. For more information, please contact lja10@psu.edu.

OCTOBER, 2004

Post Conviction DevelopmentsBy THOMAS M. PLACE*

Cumberland CountyMember of the Pennsylvania Bar

TABLE OF CONTENTS PageINTRODUCTION .................... 161NEW RULE OF CRIMINAL PROCEDURE 161

Qualifications for Defense Counselin Capital Cases ................... 161

RECENT CASES INTERPRETINGTHE PCRA . ....... ....... ........ 162

Ineffectiveness and the Right toPetition for Allowance of Appeal ..... 162Ineffectiveness, Second Petitions andthe Act's One-year Time Limitation ... 163Untimely Initial Petition andAppointment of Counsel ............ 165Exceptions to the Grant Decision ... 166Relaxed Waiver and Grant ........... 167Layered Claims of Ineffectiveness ofCounsel .......................... 167DNA Testing ..................... 168

INTRODUCTION

The Post Conviction Relief Act' provides aprocedure for defendants to collaterally chal-lenge their conviction or sentence. The Actprovides the sole means2 of obtaining collat-eral relief and has been broadly interpreted ascreating a unified statutory framework for re-viewing claims that were traditionally cogniz-able in habeas corpus. 3 The Act permits defen-dants in custody4 to seek relief where theconviction or sentence resulted from one ormore of the Act's specifically enumeratederrors or defects5 and the claimed error hasnot been waived 6 or previously litigated 7 onappeal or in a previous petition uider the Act.Subject to several narrow exceptions, a peti-tion under the Act must be filed within oneyear of the date the defendant's judgment be-

* Professor of Law, The Dickinson School of Law

of the Pennsylvania State University and the authorof the PENNSYLVANIA POST CoNvIcTioN Acr-PRAcncE& PROCE rJRF (2004 ed.).

1 42 PaC.S.A. §9541 et seq.2 42 Pa.C.S.A. §9542.3 Commonwealth v. Ahlborn, 699 A.2d 718, 721

(Pa. 1997); Commonwealth v, Chester, 733 A.2d1242, 1250-1251 (Pa. 1999).

4 42 Pa.C.S.A. §9543(a)(1).5 42 Pa.C.S.A. §9543(a)(2).r 42 Pa.C.S.A. §9543(a)(4), 9544(b).7 42 Pa.C.S.A. §9544(a).

comes final.' This article reports on a new ruleof criminal procedure concerning qualifica-tions of defense counsel that applies at allstages of a capital case including post convic-tion proceedings. It also reports on a numberof recent decisions of the PennsylvaniaSupreme and Superior Court construing provi-sions of the Act.

NEW RULE OF CRIMINAL PROCEDURE

Qualifications for Defense Counsel in CapitalCases

Pa.R.Crim.P. 801, newly promulgated by thePennsylvania Supreme Court,9 sets minimumuniform statewide experience and educationalstandards for retained or appointed counselat all stages of a capital case. While the courtdid not amend Pa.R.Crim.P. 904 governing theappointment of counsel in post-convictionproceedings, a new Comment to the Rule pro-vides that an attorney must meet the educa-tional and experiential requirements in Rule801 in order to be appointed in a capital PCRAproceeding.10 Under Rule 801, the experiencestandard requires that counsel be an "activetrial practitioner with a minimum of 5 yearscriminal litigation experience" and haveserved as lead or co-counsel in a "minimum of8 significant cases which were tried to verdictbefore a jury."11 When the appointment is for

8 42 Pa.C.S.A. §9545(b).9 Pennsylvania Bulletin, Vol. 34, No 25, Juno 19,

2004, adopted June 4, 2004, effective November 1,2004.

11) Although comments to the Rules of CriminalProcedure "are not part of the Rules mnd have notbeen officially adopted or promulgated by theSupreme or Superior Court" [Comments precedingChapter 1 of the Rules of Criminal Procedure], theSuperior Court has held that it is entitled to "treatthe 'Comments' as effective aids and to considerthem in interpreting the meaning of a particular rule...." Commonwealth v. Dougherty, 679 A.2d 779, 783(Pa. Super. 1996).

11 The Comment provides that the appointing oradmitting court will deternine whether counsel hadthe requisite experience by colloquy or otherwise.The Comment further provides that an attorney mayserve as "second chair" without meeting the stan-dards under the Rule but may not present significant

PENNSYLVANIA BAR ASSOCIATION QUARTERLY

an appeal, the experience requirement is satis-fied if counsel has prior appellate or post-con-viction experience in a minimum of 8 signifi-cant cases.12 The education standard requiresthat during the three year period immediatelyprior to appointment or entry of appearance,counsel "shall have completed a minimum of18 hours of training relevant to representationin capital cases"'13 in courses approved by theCLE Board. The Rule provides that the CLEBoard shall "maintain and make available alist of attorneys" who meet the educational re-quirements of the Rule.

The educational requirements in the newRule will be phased in with the full 18 hoursof training not required until May 1, 2006.14Between now and November 1, 2004, an attor-ney must have attended at least 6 hours ofcourses relevant to representation in capitalcases. Beginning November 1, 2004, an attor-ney shall have completed a minimum of 6hours of training in courses approved by theCLE Board to be eligible for appointment or toenter an appearance in a capitacase. The min-imum number of hours of training increases to12 for the period beginning November 1, 2005to May 1, 2006 and, thereafter, the standard in-creases to 18 hours.

RECENT CASES INTERPRETING THE PCRAIneffectiveness and the Right to Petition forAllowance of Appeal

Ineffective assistance of counsel is a basis forrelief under the Act where counsel's act oromission "so undermined the truth determin-ing process that no reliable determination ofguilt or innocence could have taken place.'Ineffectiveness claims raised in a post convic-tion proceeding are governed by the same stan-dard that applies when such a claim is pre-sented on direct appeal.yi In addition to claimsof ineffectiveness of counsel at trial, the Penn-sylvania Supreme Court has construed the Act

evidence or argument. Serving as "second chair" ina homicide case counts as a trial for purposes ofexperience under the Rule.

12 Rule 801 defines a "significant case" as "mur-der, including vehicular homicide, or a felony of thefirst or second degree." Pa.R.Crim.P. (1)(c).

13 Pa.R.Crim.P. 801(2)(a).14 In Re: Order Promulgating New Rule of Crimi-

nal Procedure 801, etc., No.310, Criminal ProcedureRules, Docket No. 5, Supreme Court of Pennsylva-nia, June 4, 2004.t5 42 Pa.C.S.A. §9543(a)(2)(ii).16 Commonwealth v. K"imball, 724 A.2d 326, 333

(Pa. 1999) (rejecting heightened standard ftr ineffec-tiveness in PCRA proceedings and concluding thatthe language in the PCRA is the equivalent to theprejudice requirement applied by the federal courtsto both direct and collateral review under Stricklandv. Washington, 466 U.S. 688 (1984)).

to allow relief where counsel is ineffective atthe penalty phase of a capital case,17 fails toprotect the defendant's right to direct appeal,i 8

or provides ineffective assistance of counsel ina post conviction proceeding.l 9 With respect toaihiure by counsel to protect a defendant's right

to seek discretionary review, prior to thePennsylvania Supreme Court's recent decisionin Commonwealth v. Liebel,20 the SuperiorCourt had denied PCRA relief holding thatsuch a claim was not cognizable under the Actbecause it did not bear on the defendant's "ul-timate guilt or innocence."'2' In Liebe], theSupreme Court noted that while a defendantdid not have an automatic right to an appeal inthe Supreme Court, a defendant has a right toseek discretionary review provided counselbelieves that the claims the defendant wouldraise would not be completely frivolous.Noting that a defendant does not have a federalconstitutional right to counsel for discre-tionary review,22 the Court held that a defen-dant seeking allowance of appeal is entitled tocounsel pursuant to Pa.R.Crim.P 122.23 Rely-ing upon its decision on Commonwealth v.Albrecht,2 4 the Court held that a rule-basedright to counsel included the concomitantright to effective assistance of counsel and thatsuch a claim was cognizable under the PCRA.The court found in Liebel that counsel's unjus-tifled failure to file a petition for allowance ofappeal after telling his client he would do soconstitutes a "wholesale denial of counsel."25

Such a showing, the court held, satisfies the

17 Commonwealth v. Chester, 733 A.2d 1242 (Pa.1999) (holding Legislature intended to channel allclaims through framework of PCRA thereby avoid-ing a bifurcated system in which some claims wouldbe considered under habeas corpus).

'8 Commonwealth v. Lantzy, 736 A.2d 654 (Pa.1999).

'" Commonwealth v. Albrecht, 720 A.2d 693 (Pa.1998).

20 825 A.2d 630 (Pa. 2003).21 Commonwealth v. Tanner, 600 A.2d 201, 205

(Pa. Super. 1991).22 Ross v. Moffitt, 417 U.S. 600, 610 (1974).23 Pa.R.Crim.P 122(C)(3) provides that "where

counsel has been assigned, such assignment shallbe effective until final judgment, including anyproceedings on direct appeal." Commonwealth v.Daniels, 420 A.2d 1323 (Pa. 1980) (explaining thatPennsylvania Supreme Court had long "guaranteedthat a person seeking allowance of appeal is entitledto assistance of counsel.").

24 720 A.2d 693 (Pa. 1999) (rule-based right tocounsel and concomitant right to effective assistanceof counsel in PCRA proceedings).

25 825 A.2d at 636 (relying upon its decision inComnonwealth v. Lasky, 736 A.2d 564 (Pa. 1999)holding that defendant was not required to demon-strate the merits of the underlying issue he wouldhave raised on direct appeal where there was anunjustified failure by counsel to perfect requesteddirect appeal).

POST CONVICTION DEVELOPMENTS

prejudice prong of the standard governing in-effectiveness claims and thus renders unnec-essary a showing by Liebel that the courtwould have granted review of his claims.

In post-Liebel cases, the Superior Court hasaddressed the defendant's burden of establish-ing ineffectiveness in cases other than wherecounsel fails to fulfill a commitment to thedefendant to file a petition for allocatur. InCommonwealth v. Gadsden,26 counsel in-formed Gadsden that he would not seek dis-cretionary review and that his representationof Gadsden was concluded. Gadsden soughtPCRA relief reinstating his right to seek discre-tionary review. The court held that a defendantpresents a cognizable claim of ineffectivenesswhere counsel fails to consult with the defen-dant with respect to filing a petition for al-lowance of appeal. Consultation with thedefendant must meet the standards in Roe v.Flores-Ortega7: counsel must advise the de-fendant in a timely manner about the "advan-tages and disadvantages" of seeking discre-tionary review and make a "reasonable effortto discover the defendant's wishes.'

"28 Thecourt remanded the case to the PCRA court todetermine whether counsel consulted withGadsden and, if Gadsden asked counsel to filea petition for allocatur, whether counsel's fail-ure to do so was justifiable. Gadsden is entitledto PCRA relief, the court concluded, if counselfailed to consult adequately with him or, ifGadsden requested counsel to seek review andcounsel "unjustifiably failed to comply."'29

In Commonwealth v. Ellison,30 direct appealcounsel acknowledged that he knew Ellisonwanted to seek discretionary review butclaimed that he did not receive notice of thecourt's order affirming judgment of sentenceand thus missed the filing date. Ellison soughtPCRA relief based upon counsel's ineffective-ness. In applying the three prong ineffective-ness standard," the court noted that Liebe]eliminates the defendant's need to establishprejudice. The court then turned to the re-

26 832 A.2d 1082 (Pa. Super. 2003).27 528 U.S. 470 (2000) ( recognition of ineffective

assistance of counsel claim based upon counsel'sfailure to consult with defendant about right to file adirect appeal from judgment of sentence.)

28 Gadsden, 832 A.2d at 1087 (quoting Common-wealth v. Touw, 781 A2d 1250,_ (Pa. Super. 2001)summarizing the United States Supreme Court's de-cision in Roe v. Flores-Ortega, 528 U.S. 470, 478(2000).

29 Gadsden, 832 A.2d at 1088. Gadsden was fol-lowed in Commonwealth v. Cooke, 852 A.2d 340(Pa. Super. 2004) (no evidence that defendant re-quested discretionary review or that counsel con-salted with the defendant regarding such review.).

30 851 A.2d 977 (Pa. Super. 2004).31 Commonwealth v. Pierce, 786 A.2d 203, 213

(Pa. 2001).

maining prongs of the ineffectiveness stan-dard, arguable merit and no reasonable basisfor the act or omission of counsel, and con-cluded that the two prongs were "insepara-ble": counsel's failure to seek discretionaryreview has arguable merit if counsel had noreasonable basis for fuiling to seek review. Toestablish that counsel's omission was "unjusti.-fied," i.e., no reasonable basis for failing toseek review, the court held that a defendantmust show that the claims he would haveraised in a petition for allocatur "have somelevel of merit, regardless of whether there areactually "winning" arguments." 32 The courtdirected the PCRA court to reinstate Ellison'sright to file a petition for allocatur nunc protune after concluding that his claims were not"completely frivolous" and that counsel's fail-ure to seek discretionary relief was unjustified.

Ineffectiveness, Second Petitions and theAct's One-Year Time Limitation

Prior to the one-year time limitation whichwas adopted as part of the 1995 amendmentsto the Act,33 in certain limited circumstances 34

the Superior Court treated a second or subse-quent petition for post conviction relief as aninitial petition and not subject to the moredemanding standard applicable to successivepetitions.3 5 Following the enactment of theone-year time limitation, the Superior Courtin Commonwealth v. Peterson3 6 and Common-wealth v. Leasa 37 construed second and m-timely petitions raising issues identical to thefirst petition as al "extension" of the timely,but previously dismissed first petition. In bothcases, an appeal was taken from the denial ofPCRA relief but the appeal was dismissedwhen counsel failed to file a brief, Similarly, inCommonwealth v. Rienzi,38 the Superior Courtconstrued a second, untimely petition as an"amendment" to the initial, timely petitionwhere the ineffectiveness claimed by Rienziwas counsel's withdrawal of the initial peti-tion without his consent. The rationale under-lying both line of cases is that where counsel isineffective, "it is inappropriate to allow the

32 Ellison, 851 A.2d at 980-981.

33 42 Pa.C.S.A. §9645(b).34 See e.g., Commonwealth v. Thomas, 578 A.2d

422 (Pa. Super. 1990).35 Commonwealth v. Lawson, 549 A.2d 107 (Pa.

1988) (second or subsequent petition for post con-viction relief will be considered only if the defen-dant can demonstrate "that the proceedings result-ing in his conviction were so unfair that amiscarriage of justice occurred which no civilizedcan tolerate, or that he is innocent of the crimescharged.").36 756 A.2d 687 (Pa. Super. 2000).37 759 A.2d 941 (Pa. Super. 2000).38 777 A.2d 508 (Pa. Super. 2001).

PENNSYLVANIA BAR ASSOCIATION QUARTERLY

proceedings in which [ineffectiveness oc-curred] to be binding upon the defendant'srights."3 9 Both the "extension" and "amend-ment" treatment of second, untimely petitionsas a continuation of the initial, timely petitionhave been recently rejected by the Pennsylva-nia Supreme Court.

In Commonwealth v. Robinson,40 the defen-dant filed a timely petition which was dis-missed by the PCRA court. The Superior Courtdismissed the appeal "without prejudice toPCRA relief" because counsel failed to file abrief Robinson filed a second pro se petitionseeking to have appellate rights reinstatedwhich was dismissed by the PCRA court asuntimely. Following Robinson's third petitionwhich claimed appellate counsel was ineffec-tive for failing to file a brief, the PCRA courtgranted Robinson the right to appeal nunc protune. In rejecting the Commonwealth's argu-ment that the appeal should be quashedbecause the third petition was untimely, theSuperior Court held that to the extent that de-fendant's serial petition either renewed issuesthat were raised and rejected in his initialpetition or sought reinstatement of the initialPCRA appeal, the third petition was an "ex-tension" of the initial petition not subject tothe Act one-year filing period.

In reversing the Superior Court and find-ing Robinson's third petition untimely, theSupreme Court reiterated that the time periodsunder the Act are mandatory and jurisdic-tional in nature. Expressly disapproving theSuperior Court's decisions in Lease andPeterson,41 the court held that treating a sec-

39 Commonwealth v. Albert, 561 A.2d 736, 738(Pa. 1989). Albert was relied upon by the court inCommonwealth v. Thomas, 578 A.2d 422, 424 (Pa.Super. 19901 (second petition treated as initial peti-tion since first petition was dismissed on appeal dueto ineffectiveness of counsel),

40 837 A.2d 1157 (Pa. 2003).41 Because they are based on the rationale of

Peterson and Leasa, the Superior Court's decisionsin Commonwealth v. Ceo, 812 A.2d 1263 (Pa. Super.2002) (where appointed counsel failed to act result-ing in waiver of defendant's substantive rights, sub-sequent petition seeking review of the same ques-tions properly considered an "extension" of firstpetition) and Commonwealth v. Rivera, 816 A.2d282 (Pa. Super. 2003) (second untimely petitiontreated as first petition where defendant was not ad-vised of his right to appeal dismissal of first timelypetition) arguably do not survive the SupremeCourt's decision in Robinson. Less clear is theSuperior Court's decision in Commonwealth v.Williams, 814 A.2d 739 (Pa. Super. 2002) in whichthe court treated the defendant's second and un-timely petition as a continuation of his first petitionbecause counsel appointed to represent defendant in

ond or subsequent petition as an "extension"of the initial petition is a "fiction" not autho-rized by the language of the statute or deci-sional law. The court stated that once theSuperior Court dismissed defendant's appealfor failure to file a brief, the PCRA court's orderdismissing the petition became final thirtydays following the action of the SuperiorCourt. Thus, the court concluded, there wasnothing for a subsequent petition to "extend."Robinson's subsequent petitions were, there-fore, "entirely new collateral actions" 42 subjectto the time limits of the Act. The court notedthat rather than dismissing al appeal wherecounsel fails to file a brief, the Superior Courtcould take other action 43 but the court couldnot sanction a fiction "designed to simply cir-cumvent the statutory time-bar."44

Similarly, in Commonwealth v. Rienzi,45 theSupreme Court rejected the Superior Court'streatment of an untimely second petition as an"amendment" to Rienzi's timely, initial peti-tion where the initial petition was withdrawnby counsel without the consent of the defen-dant. The court stated that construing the sec-ond petition as an "anendment" was an effortby the Superior Court to "circumvent" thetime limits under the Act. The initial petitioncould not be "amended," the court held, be-cause the petition had been withdrawn and,therefore, nothing was pending before thePCRA court.46

With its decisions in Robinson and Rienzi,the Supreme Court has again made clear thatcourts have no authority to "fashion ad hocequitable exceptions to the PCRA time-bar.* , .,47 Robinson and Rienzi make clear that

his first petition had previously represented theCommonwealth in the same case. The court con-cluded that under such circumstances the initial pe-tition was defective ab inito.

42 Id. at 1162.43 The Court suggested that instead of dismissing

the appeal where counsel fails to file a brief, theSuperior Court could remand the first PCRA petitionfor appropriate action in the court below, or issue arule to show cause upon appellate counsel.

44 837 A.2d at 1162.45 827 A.2d 369 (Pa. 2003).46 Rienzi was found not controlling in Common-

wealth v. Williams, 828 A. 2d 981 (Pa. 2003) ongrounds that Williams, in contrast to the defendantin Rienzi, was not represented at the time he filedfirst petition nor when he attempted to withdraw thepetition. In addition, the PCRA court in Williamsnever acted on defendant's motion to withdraw andcontinued to treat the petition as viable for six yearsbefore concluding that it had been withdrawn.

47 Commonwealth v. Eller, 807 A.2d 838, 845 (Pa.2002) (defendant cannot pursue reinstatement of di-rect appeal rights nunc pro tunc outside frameworkof the PCRA).

POST CONVICTION DEVELOPMENTS

although a defendant has a rule-based right toeffective PCRA representation, 48 a defendanthas no state law remedy for lawyer error if asecond petition challenging the lawyer's per-formance is not filed with the time limits ofthe Act,49 In its recent en banc opinion inCommonwealth v. Bennett,5" a post-Robinsoncase, the Superior Court expressed frustrationabout being required to deny relief where trialand PCRA appellate counsel were ineffective.Bennett, convicted of murder and sentenced tolife imprisonment, filed a timely PCRA peti-tion raising issues of ineffectiveness of trialcounsel including failure to object to a defec-tive accomplice liability charge. Followingdismissal of the petition, Bennett appealedand counsel who had represented Bennett attrial and who Bennett asserted in his PCRA pe-tition was ineffective, was appointed to repre-sent him on appeal, When counsel failed tofile a brief, the Superior Court dismissed theappeal. After learning that his appeal had beendismissed, Bennett filed a second petition re-questing reinstatement of his right to appealbased upon the ineffectiveness of PCRA appel-late counsel. The PCRA court granted relief inthe form of restoring Bennett's right to appeal.

The Superior Court held that becauseBennett's second petition was untimely, thePCRA court was without authority to grant re-lief and, as a result, the Superior Court did nothave jurisdiction to hear the appeal. While ac-knowledging that the Supreme Court had con-strued the time periods in the Act as jurisdic-tional and not a statute of limitations subjectto equitable tolling, the court stated thatBennett's "argument for making an equitableexception to the PCRA time-bar"5 was strong.There was "no question" that Bennett was en-titled to a new trial based upon the erroneousaccomplice liability charge that counsel failedto object to. The court noted that Bennett's co-defendant had been awarded a new trial afterhe successfully challenged the charge on ap-peal from the denial of PCRA relief but thatBennett was without a remedy due to "serialineffectiveness of counsel. 52 The court notedthat it had changed its administrative practiceof dismissing appeals when counsel fails to

48 Commonwealth v. Priovolos, 715 A.2d 420, 421-422 (Pa. 1998); Commonwealth v. Albrecht, 720A.2d 693 (Pa. 1998).

49 While second petition alleging ineffectivenessof prior PCRA counsel must be filed within the timelimits of the Act, where a petition is dismissed priorto the appointment of counsel, the Supreme Courthas held that a subsequent counseled petition maynot be treated as an untimely second petition.Commonwealth v. Tedford, 781 A.2d 1167 (Pa. 2001).

50 842 A.2d 953 (Pa. Super. 2004).-1 Id. at 957.52 Id. at 959.

file a brief and now retains jurisdiction andremands the case to the PCRA court. In thiscase, however, the court had followed its priorpractice and, consequently, it was in the "un-enviable position of denying relief where thereis no doubt that justice requires such relief."5

The court stated that its "inability to considerequitable concerns"5 4 in light of the jurisdic-tional nature of the time-bar resulted in an"injustice... of constitutional magnitude" andacknowledged that there was a "legitimateargument that... Bennett's constitutional rightto appeal, his right to effective counsel or hisright to a writ of habeas corpus has been un-constitutionally thwarted by the PCRA timelimitations." 55

Untimely Initial Petition and Appointmentof Counsel

In Commonwealth v. Smith,56 the SupremeCourt addressed the relationship between thetimeliness requirement of the Act 57 andPa.R.Crim.P. 904(B) which requires the PCRAcourt to appoint counsel for an indigent defen-dant on the defendant's first petition,59 Thequestion presented in Smith was whether adefendant is entitled to counsel where thepetition is untimely. The Commonwealth con-tended that because the timeliness require-ments are jurisdictional, an indigent defendantwho files an initial petition more than a yearafter judgment of sentence must plead andprove one of the exceptions to the one-yeartime limitation in order to qualify for courtappointed counsel under Rule 904. The courtheld that while the time linmits under the Actpreclude a court from considering the meritsof an untimely petition, Rule 904 mandates ap-pointment of counsel, even in cases where itappears the petition is untimely, in order forcounsel to assist the indigent defendant in at-tempting to establish an exception to the time-bar. The court noted that without counsel, anindigent defendant would not be aware of theneed to establish an exception to the one-yearfiling period. Even in cases where the defen-dant is aware of the time periods under theAct, counsel is better able to investigate andassess whether facts are sufficient to prove thatone of the exceptions applies.

53 ld,54 Id. at 960.5 Id.56 818 A.2d 494 (Pa. 2003).57 42 Pa.C.S.A. §9545(b).58 In second or subsequent petitions, appointment

of counsel is required only where the PCRA courtdetermines an evidentiary hearing is required orwhere the interests of justice require it. PaR.Crim.P.904(C) and (D).

PENNSYLVANIA BAR ASSOCIAL'ION QUARTERLY

Exceptions to the Grunt Decision

In Commonwealth v. Grant,50 the Pennsyl-vania Supreme Court reversed a long standingrule60 requiring new counsel to raise ineffec-tiveness of prior counsel at the first opportu-nity, even if that first opportunity is directappeal and the issue was not raised and devel-oped in the court below. Grant holds that as ageneral rule, a defendant "should wait to raiseclaims of ineffectiveness of counsel until col-lateral review."61 The court noted that post-poning ineffectiveness claims to the post con-viction stage affords the defendant the"opportunity to develop a factual basis for theclaim that counsel's performance" 62 did notmeet the standard for effective assistance ofcounsel. Grant held that its new rule of defer-ring consideration of claims of trial counselineffectiveness until the post conviction stageapplied retroactively to cases pending on di-rect appeal where the issue of ineffectivenessof trial counsel had been raised and pre-served,613 The court in Grant left open the pos-sibility that it may choose to create exceptionsto the rulerA4

In Commonwealth v. Bomar, the SupremeCourt held that Grant did not apply where de-fendant's claims of ineffectiveness were prop-erly raised and preserved in the trial court, InBomar, trial counsel withdrew following sen-tencing and new counsel filed post-sentencemotions including claims of trial counsel inef-fectiveness. The trial court conducted hearingson the motions that included the testimony oftrial counsel and addressed the ineffectivenessclaims in its opinion. The court held that theconcerns that led the court to adopt the rule inGrant did not apply here and, therefore, the in-

19 813 A.2d. 726 (Pa. 2002).60 Commonwealth v. Dancer, 331 A.2d 435 (Pa.

1975); Commonwealth v. Hubbard, 372 A.2d 687(Pa. 1977).

61 Commonwealth v. Grant, 813 A.2d at 738. In re-jecting the old rule, the court noted numerous prob-lems associated with identifying and presentingan issue on appeal that was not considered by thetrial court are including tie absence of a trial courtopinion.

62 Id. at 736."1 See e.g. Cammonwealth v. Rosendary, 818 A. 2d

526, 529-530 (Pa. Super. 2003), Commonwealth v.Robinson, 817 A.2d 1153, 1162-1163 (Pa. Super.2003) and Commonwealth v. Blick, 840 A.2d 1025,1027-1028 (Pa. Super. 2004) as cases where theclaim of ineffectiveness was dismissed without prej-udice to the defendant raising the issue in a PCRApetition.

64 Id. at n.14. The court noted a possible exceptionto the general rule where the claim involves "a com-plete or constructive denial of counsel" or wherecounsel breaches his or her duty of loyalty,

effectiveness claims were reviewable on directappeal.

65

Bomar was relied upon by the SuperiorCourt in Commonwealth v. Wright.66 Wrightsought PCRA relief on the grounds that coun-sel was ineffective in failing to file a direct ap-peal. He also raised other claims of ineffective-ness including counsel's failure to suppressevidence. The PCRA court granted relief in theform of an appeal nunc pro tunc. On appeal,Wright renewed his claims of ineffectiveness.The court held that the rationale of Bomar per-mitted it to consider Wright's ineffectivenessclaim for failure to suppress evidence notwith-standing the fact that the PCRA court did notrule on the issue. The court concluded that be-cause there had been a full evidentiary hearingat which trial counsel testified, there was anadequate record on which to assess the claim.Moreover, dismissal of the claim pursuant toGrant would be "judicially inefficient" as itwould merely lead to a "hearing identical tothe one that already occurred below."67

The Superior Court has also concluded thatGrant does not apply where the defendant issentenced to a short term of imprisonment. InCommonwealth v. Salisbury,68 the defendantwas sentenced to 90 days imprisonment Thecourt noted that a defendant must be in cus-tody to be entitled to PCRA relief"9 and thatwhile Salisbury's sentence had been stayedpending appeal, there is no provision for amandatory stay pending collateral attack of thesentence. Strict application of Grant, the courtconcluded, would result in Salisbury beingunable to present his claim that counsel wasineffective. Salisbury was followed in Com-

65 Bomar was distinguished in Commonwealth v.Belak, 825 A.2d 1252, 1254 n.6 (Pa. 2003) (absenceof evidentiary record and trial court opinion whereineffectiveness claims not raised until defendantfiled statement pursuant to Pa.R.A.Ap.1925(b)) butfollowed in Cormmonwealth v. Ramos, 827 A.2d1195, 1199 n.8 (Pa. 2003); Commonwealth v. Causey,833 A.2d 165, 175 (Pa. Super. 2003) and Common-wealth v. Watson, 835 A.2d 786, 795-796 (Pa. Super.2003) (Superior Court will review claim of ineffec-tiveness on direct appeal only where trial court hasaddressed the claim on the merits after havingdetermined that the existing record is sufficientlydeveloped for resolution of the issue).

1 832 A.2d 1104 (Pa. Super. 2003).61d. at 1109-1110.

1 823 A.2d 914 (Pa. Super. 2003).69 42 Pa.C.S.A. §9543(a); Commonwealth v,

Alhborn, 683 A.2d 632 (Pa. Super. 1996) en bane,afpd, 699 A.2d 718, 720 (Pa. 1997) (PCRA "clearlycontemplates that the petitioner will be serving asentence at both the pleading and proof stages of theproceeding" and consequently, a petitioner who hasfinished serving his or her sentence is not entitled torelief ).

POST CONVICTION DEVEL OPMENTS

monwealth v. Ingold 70 where the defendantwas sentenced to seven days time-served 71 andin Commonwealth v. Viglione72 where the de-fendant was ordered to pay a fine.

Relaxed Waiver and Grant

The practice of the Supreme Court to "relax"waiver in capital cases on direct appeal wasabrogated in Commonwealth v. Freeman.73 InFreeman, the defendant, represented by newcounsel on direct appeal, presented a numberof claims of ineffective assistance of trial coun-sel and claims of trial court error not raised inthe trial court. Under the doctrine of relaxedwaiver, it was the court's practice to considerclaims on direct appeal in capital cases,which, though waived, could be decided onthe basis of the record. The court held thatGrant governed the ineffectiveness claims and,accordingly, dismissed the ineffectivenessclaims without prejudice to the defendant'sright to present the claims in a PCRA petition.With respect to the claims of trial court errornot considered by the court below, the courtconcluded that a rule similar to Grant shouldapply. The court noted that some of the samereasons that led to the Grant decision are pre-sent when the court employs relaxed waiver incapital cases. The court stated that the doctrineoften required the court to decide issues with-out the benefit of a trial court opinion and tospeculate about the reasons for the judge's actor omission. In light of the multiple concernsabout the waiver doctrine and the extensiveexperience that the court has had with post-conviction review in capital cases, the courtheld that "as a general rule on capital directappeal, claims that were not properly raisedand preserved in the trial court are waived andunreviewable. Such claims may be pursuedunder the PCRA, as claims sounding in trialcounsel ineffectiveness, or if applicable, a

7) 823 A.2d 917 (Pa. Super. 2003).71 See also Commonwealth v. Dent, 837 A.2d 571

(Pa. Super. 2003) (addressing ineffectiveness claimon direct appeal where defendant was sentenced toan immediate term of probation concurrent withsentence on unrelated offense and term had expired)and Commonwealth v. Duda, 831 A.2d 728 (Pa.Super. 2003) (reviewing ineffectiveness claim wheredefendant was sentenced to 90 days). The SuperiorCourt distinguished Salisbury and Ingold in Com-monwealth v. Millward, 830 A.2d 991 (Pa. Super.2003) (defendants sentence of 90 days imprisonmentand a concurrent term of three years probation didnot preclude him from presenting his ineffective-ness claim in a PCRA petition) and Commonwealthv. Blessitt, 852 A.2d 1215 (Pa. Super. 2004) (prisonterm of 16 to 32 months sufficient time within whichto pursue ineffectiveness claims under the PCRA).

72 842 A.2d 454 (Pa. Super. 2004).7 827 A.2d 385 (Pa. 2003).

statutory exception to the PCRA's waiverprovision. 74

Layered Claims of Ineffectiveness of Counsel

In Commonwealth v. McGill7 the SupremeCourt noted that its case law with respect topreserving and proving a PCRA claim of inef-fectiveness of counsel, other than immediateprior counsel, had created uncertainty amongjudges and lawyers. In McGill, the court set outthe "appropriate framework" for pleading andproving such "layered" claims of ineffective-ness. The court noted that where direct appealwas filed before Commonwealth v. Grant76 orwhere a court on direct appeal has reviewedsome claims of ineffectiveness and PCRAcounsel raises new claims of trial counselineffectiveness, because of the doctrine ofwaiver,77 the only viable claim is one of appel-late counsel ineffectiveness. Accordingly, thedefendant must plead in his PCRA petitionthat appellate counsel was ineffective for fail-ing to raise the ineffectiveness of prior counseland present argument on each prong of thePierce7 8 standard as it relates to appellatecounsel's deficient performance. With respectto arguable merit, the first prong of the Piercestandard, the defendant must plead and proveall three prongs of the Pierce standard as totrial counsel's act or omission79: the underly-ing claim has arguable merit, trial counsel hadno reasonable basis for the act or omission,and that but for the act or omission of trialcounsel, there is a reasonable probability thatthe outcome of the proceeding would havebeen different. If the defendant fails to estab-lish the ineffectiveness of trial counsel, the in-quiry ends. If the defendant satisfies the Piercestandard with respect to trial counsel's perfor-mance, the defendant must next demonstrate

74 Commonwealth v. Freeman, 827 A.2d at 393.The court stated that the general rule did foreclosethe possibility that a capital defendant may be ableto describe why a waived claim is of such "primaryconstitutional magnitude" that it should be re-viewed on appeal. The court further stated that therule will be applied prospectively but excludedcases already briefed or in the process of beingbriefed.

75 832 A.2d 1014 (Pa. 2003).76 813 A.2d 726 (Pa. 2002).77 42 Pa.C.S.A. §§9543(a)(3); 9544(b).78 786 A.2d 203 (Pa. 2001).79 In Commonwealth v. Rush, 838 A.2d 651, 656

(Pa. 2003) the court noted that the "first prong of theineffectiveness analysis as to appellate counsel'sconduct-arguable merit-is best understood as a'nested' argument" that requires the defendant to ad-dress all three prongs of the Pierce test as to trialcounsel's act or omission to demonstrate that a lay-ered claim of appellate counsel's ineffectiveness hasarguable merit.

PENNSYLVANIA BAR ASSOCIATION QUARTERLY

that appellate counsel did not have a reason-able basis for failing to raise trial counsel'sineffectiveness, Finally, the defendant mustestablish prejudice as the result of appellate'scounsel's failure to raise the ineffectiveness oftrial counsel, namely that there is a reasonableprobability that the outcome of the appealwould have been different had appellate coun-sel presented the claim of ineffectiveness oftrial counsel. In McGill, the court noted thatbecause of confusion surrounding the presen-tation of layered claims of ineffectiveness, a re-mand to the PCRA court may be appropriatefor cases currently in the appellate courtswhere the defendant has failed to properlyplead and present such a claim. Because thetest for establishing deficient performance onthe part of trial counsel is well settled, remand,the court noted, was not appropriate where thedefendant has failed to plead and present ar-gument concerning ineffectiveness of trialcounsel.

80

DNA 7bsting

In 2002, the PCRA was amended to providefor post-conviction DNA testing.81 Under theamendment, a defendant in custody may seekDNA testing on available evidence that re-sulted in his conviction by filing a written mo-tion with the sentencing court.8 2 After testingis completed, the defendant may petition the

80 Commonwealth v. McGill, 832 A.2d at 1024. Seealso Commonwealth v. Rush, 838 A.2d 651, 657 (Pa.2003) (no need to remand a PCRA petition "whenthe petitioner has not carried burden in relation tothe underlying claim of trial counsel's ineffective-ness, since even if the petitioner was able to craft aperfectly layered argument . . . . the petitioner'sclaim would not entitle 1im relief ... (because) hewould never be able to establish the arguable meritprong necessary for proving appellate counsel inef-fectiveness") and Commonwealth v. Edmiston, 851A.2d 883 (Pa. 2004] (where "nested" claims of trialcounsel ineffectiveness are lacking in merit, courtwill not engage in futile act of remanding to allowdefendant to supplement pleadings with respect toineffectiveness of appellate counsel),

l Act of July 10, 2002, P.L. _, No 2002-109, 42Pa.C.S.A. §9543.1 (2002).

"2 Under the amendment, the defendant must in-ter alia establish why the evidence was not previ-ously subjected to testing, specify the evidence to betested, consent to provide samples of body fluids,and assert his innocence. 42 Pa.C.S.A. §9543.1(a)(1),(c)(1),(c)(2)(i).

court for post-conviction relief. 83 In Common-wealth v. Weeks,8 4 the Superior Court affirmedthe dismissal of a PCRA petition seeking DNAtesting as untimely The court held that post-conviction DNA testing did not "directly cre-ate an exception" to the Act's one-year timebar. Instead, the amendment allows a defen-dant to seek DNA testing which could then beused in a PCRA petition to establish new factsin order to satisfy the newly discovered evi-dence exception to the one-year filing pe-riod.85 Week's petition was properly dismissedbecause he filed an untimely PCRA petitioninstead of a motion for DNA testing.

hi contrast to Weeks, in Commonwealth v.McLaughlin,86 the defendant filed a motion forDNA post-conviction testing. In affirming thetrial court's denial of the motion, the SuperiorCourt held that McLaughlin had waived hisright to secure DNA testing when be refused tosubmit to DNA testing at the thne of trial.

The Superior Court also affirmed the denialof DNA testing in Williams v. Erie CountyDistrict Attorney's Office.87 In Williams, thedefendant pled guilty and subsequently soughtDNA testing. The court concluded that in lightof the requirement that a defendant seekingpost-conviction DNA testing present a "primafacie case" showing that the "identity of or par-ticipation in the crime by the perpetrator wasat issue in the proceedings that resulted in theapplicant's conviction.. ." and that DNA test-ing would establish the "applicant's actualinnocence,"8 8 the statute did not apply wherethe defendant has pleaded guilty. In addition,the court concluded that the statute's use of theterm "proceeding" did not "encompass negoti-ations between the prosecution and defenseregarding plea bargains."8 9

83 Following testing, the defendant must seekpost-conviction relief within 60 days beginning onthe (late on which the defendant is notified of thetest results. 42 Pa.C.S.A. §9543.1(f).

84 831 A.2d 1194 (Pa. Super. 2003).85 42 Pa.C.S.A. §9545(b)(i).36 835 A.2d 747 (Pa. Super. 2003).87 848 A.2d 967 (Pa. Super. 2004).I' 42 Pa.C.S.A. §9543.1(c)(31.11 Williams v. Erie County District Attorney's

Office, 848 A.2d at 972. The court left the questionof whether other provisions of the PCRA may permitDNA testing where to challenge the legality of aguilty plea. The court noted that the Act permitschallenges to guilty pleas but that such challengesare subject to the timeliness requirements of the Act