Commonwealth v. Ginglardi

*198 Concurring and Dissenting Opinion by

BROSKY, J.:

¶ 1 I must respectfully concur in part and dissent in part to the decision of my colleagues. I agree with the majority’s disposition of Appellant’s first issue; that Appellant’s petition under the Post-Conviction Relief Act, 42 Pa.C.S.A. § 9541-9546, was timely. However, I disagree with its disposition of the second issue, that Appellant’s Rule 1100 claim is not cognizable under the PCRA. The controlling issue in this case is not whether a Rule 1100 claim is normally cognizable under the PCRA but whether Appellant lost his right to appellate review as a result of his prior counsel’s ineffectiveness.

¶ 2 According to Judge Del Sole’s Concurring and Dissenting Memorandum in the direct appeal, Appellant had a valid Rule 1100 claim and should be free today. This is not the situation, however, because his prior appellate counsel failed to include the issue in the statement of questions involved, yet adequately set the issue forth in the argument portion of the brief. It would seem that Appellant’s Rule 1100 challenge escaped review and vindication on direct appeal only as a result of prior counsel’s ineffectiveness in properly presenting the challenge to this Court. The majority does not contest this viewpoint but finds that, since Rule 1100 violations are not cognizable under the PCRA, Appellant cannot obtain relief. On this point, I would turn to this Court’s decision in Commonwealth v. Hernandez, 2000 PA Super 154 , 755 A.2d 1 . On the basis of Hernandez , I question the continued viability of the line of cases relied upon by the majority that require a petitioner to plead and prove that ineffectiveness of prior counsel in failing to preserve a Rule 1100 claim “undermined the truth-determining process”; I believe that the majority’s viewpoint conflicts with the impact of the holding in Hernandez .

¶ 3 In Hernandez , a panel of this Court considered an appeal from an Order of the trial court that denied an appellant’s petition for leave to file an appeal nunc pro tunc. The appellant, Ricardo Hernandez, after pleading guilty to a number of charges and being sentenced, sought to challenge the discretionary aspects of his sentence. Although a direct appeal was filed on his behalf to raise the discretionary aspects of his sentence, a panel of this Court held that his challenge had been waived by his trial counsel’s failure to preserve the challenge. Hernandez did not seek any further review until after this Court issued our decision in Commonwealth v. Lantzy, 712 A.2d 288 (Pa.Super.1998), rev’d, 558 Pa. 214 , 736 A.2d 564 (1999). Until this Court’s decision in Lantzy, we had consistently held that a challenge to the discretionary aspects of a sentence, on the basis of ineffectiveness of counsel for failing to properly preserve the issue on direct appeal, was not cognizable under the PCRA. See Commonwealth v. Wolfe, 398 Pa.Super. 94 , 580 A.2d 857 (1990). Our reason for so holding was that a claim challenging the discretionary aspects of sentencing on PCRA through raising counsel’s ineffectiveness did not show that the ineffectiveness “so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place.” Id., 580 A.2d at 860 . See 42 Pa.C.S.A. § 9543(a)(2)(h), which provides that the petitioner must establish that he suffered from “ineffective assistance of counsel which, in the circumstances of the particular case, so undermined the truth-determining process, that no reliable adjudication of guilt or innocence could have taken place.” 42 Pa. C.S.A. § 9543(a)(2)(h).

¶ 4 Subsequently, this Court entertained the appeal in Lantzy. In Lantzy, the appellant, who was sentenced following his entry of a guilty plea, had originally filed *199 post-sentencing motions and an appeal to this Court. His counsel then negotiated a modified sentence and the appellant withdrew his post-sentence motions and appeal. However, when the modification fell apart, the appellant could not file a direct appeal because of his withdrawal of his post-sentence motions and appeal. He then filed a petition under the PCRA asserting that his counsel was ineffective in advising him to withdraw his post-sentence motions and appeal. The PCRA court denied him relief. This- Court affirmed the PCRA court’s order on a different basis.

¶ 5 In Lantzy, we held that the appellant could not establish a claim under section 9543(a)(2)(ii) of the PCRA. This Court reasoned that the appellant in Lantzy had failed to satisfy his burden by faffing to show that he was innocent, ie., wrongfully convicted. We noted, however, that if the appellant wished to assert that his counsel’s ineffectiveness deprived him of the right to appeal, causing him prejudice but not affecting the underlying verdict or adjudication, he could seek relief by requesting an appeal nunc pro tunc. Lantzy, 712 A.2d at 291 (citing Commonwealth v. Stock, 545 Pa. 13 , 679 A.2d 760 (1996)). This Court’s decision in Lantzy was filed on April 13,1998.

¶ 6 Our Supreme Court then considered Lantzy on appeal. The Supreme Court stated that the requirement under section 9543(a)(2)(ii), that a petitioner must plead and prove that his counsel’s ineffectiveness “so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place”, amounts to the prejudice prong for ineffectiveness of counsel. Lantzy, 736 A.2d at 570 (citing Commonwealth v. Kimball, 555 Pa. 299 , 724 A.2d 326 (1999)). The Supreme Court reasoned that an unjustified failure of counsel to perfect an appeal guaranteed as of right constitutes prejudice per se. Lantzy, 736 A.2d at 570 . In such a circumstance, the Court held that, if a petitioner such as the appellant in Lant-zy could also meet the remaining requirements of the PCRA, he did not have to establish his innocence or demonstrate the merits of the issues that would have been raised on a direct appeal. Thus, the Supreme Court held in Lantzy that relief was available to the appellant under the PCRA. The Supreme Court’s decision in Lantzy was issued on July 7,1999.

¶ 7 After this Court’s decision in Lantzy was issued but before the Supreme Court issued its decision in Lantzy, Hernandez, through new counsel, filed a petition for leave to file a direct appeal nunc pro tunc. The trial court denied the petition. On appeal from the denial of the petition to this Court, our panel gave Hernandez the benefit of the Supreme Court’s decision in Lantzy. The Opinion, authored by Judge Popovich, found that Hernandez had filed a petition for leave to file nunc pro tunc as a result of our decision in Lantzy, and, in effect, elected to treat the petition as a cognizable PCRA claim.

¶ 8 The majority in Hernandez reasoned that the impact of the Supreme Court’s decision in Lantzy was to illuminate the fact that Hernandez’s claim of counsel’s ineffectiveness was cognizable under the PCRA. However, the majority recognized that a remand of the matter to the PCRA court would have resulted in an inability of that court to adjudicate the issue, as the PCRA petition would be untimely under the PCRA. The majority in Hernandez found that the petition for leave to file an appeal nunc pro tunc should have been granted and proceeded to examine the merits of the challenge to the discretionary aspects of Hernandez’s sentence. The majority affirmed the judgment of sentence.

¶ 9 This author wrote a Dissenting Opinion in Hernandez . I pointed out that the majority was turning its decision on an interpretation of the Supreme Court’s Opinion in Lantzy that I believed was overly broad. I did not agree with the majority’s conclusion that the Supreme Court’s decision in Lantzy brought Hernandez’s challenge to the discretionary aspects of sentencing properly before us. *200 The Supreme Court indicated in Lantzy only that it was unclear whether the appellant in Lantzy had sought an appeal of his discretionary aspects of his sentence or whether he also had sought to challenge his conviction. Thus, I was wary of concluding that the Supreme Court made a decision to overrule this Court’s decision in Wolfe with regard to assertions of ineffectiveness of counsel having resulted in the loss of a guaranteed right to an appeal from the discretionary aspects of sentencing on PCRA. I pointed out that an appeal from the discretionary aspects of sentencing is not necessarily a guaranteed right.

¶ 10 Moreover, I found the majority’s attempts to limit its holding were illusory. For instance, the majority in Hernandez reasoned that the appellant’s assertion was that his prior counsel, despite instructions, failed to properly perfect his appeal, as opposed to an assertion that his prior counsel failed to challenge the discretionary aspects of sentencing. The majority used this as a factor to distinguish the decision in Wolfe , stating that Hernandez’s assertion did not involve an attack that would entail the truth-determining process. Hernandez, supra at n. 2 . However, the majority was clearly allowing Hernandez to raise the ineffectiveness of his prior counsel for failing to preserve the discretionary aspects of sentencing as an issue for appellate review. It troubled me that the majority was, in effect, adopting a new test to allow certain appellants, otherwise barred by Wolfe , to have an appeal if their allegation did not go to the truth-determining process. In my view, Wolfe barred all appellants in Hernandez’s position, regardless of whether their attack went to the truth-determining process.

¶ 11 It is important to observe that our Supreme Court in Lantzy and Kimball has removed the “undermining of the truth-determining process” as a separate hurdle for the assertion of claims on PCRA that otherwise meet the eligibility test of section 9543(a)(2)(n) of the PCRA. The Supreme Court’s commentary on the PCRA petitioner’s burden of proof regarding the undermining of the truth-determining process may be read to suggest that challenges to the discretionary aspects of sentencing not cognizable under Wolfe are now cognizable as an impact of the Supreme Court’s decision in Lantzy. However, since it was unclear in Lantzy whether there were any issues other than the discretionary aspects of sentence that the appellant sought to raise, I strenuously objected to a reading of the Supreme Court’s decision in Lantzy that would have treated the issue as decided by our Supreme Court. I argued for the need for such an important issue to have been appropriately raised and briefed before this Court went headlong into a decision on it.

¶ 12 Additionally, the majority in Hernandez attempted to limit its decision to an allegation that prior counsel’s ineffectiveness waived all issues that the appellant wished to raise. The majority stated that there could be situations in which a counsel’s conduct might have been effective, although he simply did not raise all issues that the appellant wanted to have raised. Hernandez, supra at n. 4 . In support of this distinction, the majority relied on footnote 8 in the Supreme Court’s Lantzy decision. That footnote stated:

Our holding should not be construed as affecting the substantial body of case law which concerns the circumstance in which a defendant seeks to pursue frivolous claims on appeal, or demands that counsel pursue every possible course of action or press every point. See generally Anders[ v. State of Cal.], 386 U.S. [738] at 744, 87 S.Ct. [1396] at 1400, 18 L.Ed.2d 493 [1967]; Commonwealth v. McClendon, 495 Pa. 467, 470-71 , 434 A.2d 1185, 1187 (1981); Commonwealth v. Finley, 379 Pa.Super. 390, 393-94 , 550 A.2d 213, 215 (1988).

Lantzy, 736 A.2d at 572, n. 8 .

¶ 13 However, the majority did not take into account the possibility that the only *201 issue of any true import may have been waived by the alleged ineffectiveness of counsel to preserve the issue for appellate review, while other issues of lesser merit were preserved for review. If, in fact, the Supreme Court in Lantzy intended for an appellant in Hernandez’s position seeking PCRA relief to meet the three prongs of the ineffectiveness test and to overrule Wolfe , the inquiry added by the majority in Hernandez is unjustified and confusing. The only appropriate inquiry is whether the appellant can show that the three prongs of the ineffectiveness test are met. If the appellant suffered prejudice, then it is irrelevant whether his prior counsel waived all issues or some issues. Again, it was my conviction that the majority in Hernandez was confusing these types of cases without having the benefit of a full raising and briefing of the issue.

¶ 14 Here, the majority rules, on the basis of Commonwealth v. Tanner, 410 Pa.Super. 398 , 600 A.2d 201 (1991), and Commonwealth v. Dukeman, 888 Pa.Super. 469 , 565 A.2d 1204 (1989), that ineffectiveness claims based on counsel’s asserted failure to pursue Rule 1100 violations are not cognizable under the PCRA As the majority points out, the basis for the decisions in Tanner and Dukeman was that such an allegation of ineffectiveness does not implicate the truth-determining process under section 9543(a)(2)(ii) of the PCRA. If this sounds much like the reasoning in the Wolfe case with regard to claims of ineffectiveness of counsel concerning the discretionary aspects of sentencing, it is because this Court, in deciding Wolfe , relied on Dukeman.

¶ 15 Thus, we have a situation in which Hernandez is not directly controlling, yet, what was said in that case by this Court is pertinent to our decision in the instant matter. My concerns about the interpretation of the Supreme Court’s decision in Lantzy on the prior cases of this Court that were based on the PCRA petitioner’s burden to demonstrate the “undermining of the truth-determining process”, e.g., Wolfe, led me to author a Dissenting Opinion in Hernandez . However, with Hernandez now decided, I feel duty bound by the precedent established by that decision. The important matter is whether the appellant was deprived from raising issues on appeal because of his prior counsel’s ineffectiveness. The test is the one expressed in the Supreme Court’s decision in Lantzy.

¶ 16 As the majority ruled in Hernandez that Hernandez presented a valid PCRA claim, I believe that we, likewise, should rule that Appellant here presents a valid PCRA claim, Such a ruling is, in fact, a logical outgrowth of the Hernandez decision. I do not believe the attempts by the majority in Hernandez to limit the impact of that decision are sufficient to prevent us from applying that decision in the instant case. I would find that Appellant should not be prevented from having the ineffectiveness claim in his PCRA petition reviewed simply because one of his issues was preserved for review on direct appeal. Although the alleged ineffectiveness of Appellant’s prior counsel did not result in the loss of all issues being raised on direct appeal, certainly it resulted in the loss of Appellant’s ability to challenge a very important matter, the Rule 1100 issue. This is not a frivolous issue and its absence from the statement of issues in the direct appeal was prejudicial to Appellant.

¶ 17 The majority in Hernandez found the assertion of ineffective assistance of counsel in failing to preserve for appellate review the challenge to the discretionary aspects of sentencing a properly cognizable claim on PCRA. We should hold that the assertion of ineffective assistance of counsel in failing to preserve the Rule 1100 for appellate review challenge raises a properly cognizable claim under the PCRA. If anything, a challenge to the discretionary aspects of sentencing is more tenuous than a Rule 1100 claim because an appellant does not have an absolute right to review of the discretionary aspects of his sentence. Thus, I believe that the *202 majority’s viewpoint is in conflict with the impact of the decision in Hernandez .

¶ 18 Accordingly, I concur as to the timeliness of the PCRA petition but dissent as to the decision of the majority that finds the Appellant’s ineffectiveness issue is not cognizable under the PCRA.