Commonwealth v. McClendon

ROBERTS, Justice,

dissenting.

I join in the dissenting opinion of Mr. Chief Justice O’Brien. As the United States Court of Appeals for the District of Columbia Circuit has stated,

“[appointed counsel is of course not required to accept a client’s view by asserting points his good conscience would reject even at the loss of a handsome fee. At the same time, counsel cannot file a claim against his client. It is one thing for a prisoner to be told that appointed counsel sees no way to help him, and quite another for him to be sandbagged when the counsel appointed by one arm of Government seems to be helping another to seal his doom.”

Suggs v. United States, 391 F.2d 971, 974 (D.C. Cir. 1968); accord, Commonwealth v. Jones, 451 Pa. 69 , 301 A.2d 811 (1973).

I am compelled to write additionally because appellant’s pro se “illegality of sentence” argument, summarily dismissed by appellant’s appointed counsel and never specifically addressed by the opinion of Mr. Justice Nix, raises an *478 issue of arguable merit, one of which would have undoubtedly been argued vigorously to this Court if appellant’s “counsel” had been privately retained.

Appellant was initially convicted of murder of the second degree, arson, and related charges. At that time he received a sentence of life imprisonment on the murder charge, and a concurrent sentence of 10 to 20 years on the arson charge. After this Court on appeal reversed the murder conviction and affirmed the arson conviction, appellant received a new trial on the charge of murder. At this second trial he was convicted of voluntary manslaughter, for which he received a sentence of 3 to 10 years’ imprisonment, to be served consecutively to the sentence already imposed for arson.

Appellant contends that the imposition of a consecutive sentence in place of the concurrent sentences previously imposed constitutes an impermissible increase of sentence on retrial in violation of the due process requirements set forth in North Carolina v. Pearce, 395 U.S. 711 , 89 S.Ct. 2072 , 23 L.Ed.2d 656 (1969). In his brief against his client, appellant’s appointed counsel makes this presentation of the sentencing claim:

“Nor can counsel in good faith argue that the Trial Court violated his [appellant’s] protection against double jeopardy or failed to provide due process by imposing a harsher sentence on retrial. The defendant in Breniser, [sic] contended that his second sentence was more harsh in that the consecutive sentence rather than the concurrent sentence meeted [sic] out in his first trial increased the amount of punishment by delaying his eligibility for parole. The Supreme Court held defendant’s claims without merit because, in fact, no delay in parole eligibility occurred.

“In Breniser [sic] as in the instant case, Appeallant’s [sic] initial life imprisonment sentence precluded all parole, 61 P.S. § 331.21. It could not therefore be argued that the second sentence was more severe.” 1

*479 The “Breniser” case, to which counsel nowhere provides a citation, is Commonwealth v. Brenizer, 477 Pa. 534, 384 A.2d 1218 (1978).

As appellant’s pro se memorandum demonstrates, it can be argued — and argued non-frivolously — that appellant’s second sentence did constitute an increase in punishment. Appellant contends that this Court in Brenizer failed to consider the fact that, although parole is not available to a prisoner serving a life sentence, the possibility of commutation of sentence to a term of years does exist. Pa. Const, art. IV § 9. Appellant contends that

“in the State of Pennsylvania a prisoner serving life may reasonably, in the event that the sentence is commuted, expect a commuted minimum sentence which would range from a little as 9 years to as much as 20 years, therefore it was possible that after 10 years appellant could have secured his release through commutation of the life sentence whereto [sic] he would have been released totally from prison as opposed to the present situation where he would be released to the next sentence.” 2

It is of course inappropriate to speculate at this point on whether appellant’s argument would prevail in this Court. However, it should be noted that the possibility of commutation of a life sentence is a real one indeed. See “Time Served by Commuted Lifers 1971-1980,” Dep’t of Justice Bureau of Corrections, Planning & Research Division (Harrisburg, 1981). 3

The same high quality of advocacy is required of a lawyer irrespective of whether he is acting as court-appointed or *480 privately retained counsel. Indeed, fundamental principles of equal justice under law mandate that this case be remanded for the appointment of counsel who will investigate appellant’s contention, supporting the contention with legal authority and articulation which appellant, a prisoner and non-lawyer, cannot. Retained counsel, confronted with a single decision which arguably may stand against his client’s claim, would not, like appellant’s appointed counsel, cease being an advocate and merely file a brief against his client.

The majority’s concurrence in appointed counsel’s abdication of his duty as an advocate underscores the danger of permitting an appellant’s appointed lawyer to be the “judge” of his case. As then Judge (now Chief Justice) Burger has observed, “[c]ounsel . . . must remember that under our adversary system an appellate court cannot function efficiently without lawyers to present whatever there is to be said on behalf of appellant, however meager his claims may be, so that the Court can make an informed appraisal.” Johnson v. United States, 360 F.2d 844 (D.C. Cir. 1966) (concurring opinion). The American Bar Association Project on Standards for Criminal Justice echoes this view: “The court’s processes will be aided, not impeded, if a trained legal mind has been applied to presentation of the issues. This consideration surely underlies the Supreme Court’s position in Anders.” ABA Standards, The Defense Functions, § 8.3(b), Commentary at 299-300 (Approved Draft, 1971). See also ABA Standards Providing Defense Services, § 5.3, Commentary at 52 (Approved Draft, 1968).

The importance of conscientious, effective advocacy to our system of justice cannot be overemphasized.

“Where every step on the way to judgment has been tested and contested, the chance of error in the ultimate decision is reduced to a minimum. The better the case is presented on each side, and the keener and more skillful the debate before him, the more likely is it that the judge will reach a just and sound judgment. That is why it has *481 been said that a strong Bar makes a strong Bench. It is, then, as contributing an essential element to the process of the administration of justice that the profession of the advocate discharges a public function of the highest accountability and importance.”

MacMillan, “The Ethics of Advocacy” (1916), reprinted in Jurisprudence in Action at 307. Thus, it is clear that appointed counsel’s allegation that he has thoroughly reviewed the record, together with his submission of a brief against his client, cannot suffice to satisfy counsel’s duty to this Court and to his client. A contrary conclusion not only derogates the profession of advocacy but also impedes the process of fair, equal and efficient appellate review.

The Constitutions of this Commonwealth have consistently recognized the importance of the assistance of counsel since William Penn’s Charter of Privileges in 1701. Thus, it is especially ironic that, in this case, where appellant has received no assistance from his appointed “advocate,” a majority of this Court should summarily affirm judgment of sentence, thereby compelling appellant to turn to the Federal Courts for vindication of his constitutional right to effective assistance of counsel. See Ferri v. Ackerman, 444 U.S. 193 , 100 S.Ct. 402 , 62 L.Ed.2d 355 (1979), reversing 483 Pa. 90 , 394 A.2d 553 (1978); United States ex rel. Sullivan v. Cuyler, 631 F.2d 14 (3d Cir. 1980).

Because appellant’s counsel has taken it upon himself to prosecute the case against his client, no purpose would be served by requiring his continued “assistance” to appellant. Therefore, I agree with Mr. Chief Justice O’Brien that the record should be remanded to the trial court to permit the appointment of new counsel who will represent appellant as an advocate discharging “a public function of the highest accountability and importance,” MacMillan, supra, and in the manner to which he is constitutionally entitled.

O’BRIEN, C. J., joins in this dissenting opinion.

. Brief in Support of Withdrawal at 6.

. Pro se memorandum of appellant at 2-3.

. Judges imposing sentences in addition to a sentence of life imprisonment appear to take this possibility into account, for such additional sentences are often imposed to run consecutively, rather that concurrently, to the life sentence. See, e.g., Commonwealth v. Floyd, 494 Pa. 537 , 431 A.2d 984 (1981); Commonwealth v. Contakos, 492 Pa. 465 , 424 A.2d 1284 (1981); Commonwealth v. Davis, 491 Pa. 363 , 421 A.2d 179 (1980).