Commonwealth v. Barnett

CONCURRING AND DISSENTING OPINION BY

SHOGAN, J.:

Although the learned Majority aptly addresses the multiple concerns associated with this unclear area of law, I do not believe it is appropriate that this Court create a bright-line rule of waiver given the current state of the law and apply it to the instant case. Therefore, I respectfully dissent from those portions of the Majority opinion. However, after careful review, I join the Majority in affirming the judgment of sentence.

Here, the Majority has authored a thorough examination of the development of our Supreme Court’s case law addressing claims of ineffective assistance of counsel *378 since the seminal decision in Commonwealth v. Grant, 572 Pa. 48 , 813 A.2d 726 (2002) (holding that claims of ineffective assistance of counsel should proceed on collateral review). The Majority observes the subsequent exception carved out in Commonwealth v. Bomar, 573 Pa. 426 , 826 A.2d 831 (2003) (permitting ineffective assistance of counsel claims to be reviewed on direct appeal where the appellant has raised the claim before the trial court and an evidentiary hearing has been conducted by the trial court), as well as the anomalous comment calling for the waiver of PCRA rights if particular issues are raised on direct appeal in Commonwealth v. Wright, 599 Pa. 270 , 320 n. 22, 961 A.2d 119 , 148 n. 22 (2008) (indicating in footnote that collateral claims should not be reviewed on post-verdict motions unless the defendant waives his right to PCRA review because the PCRA does not afford the right to two collateral attacks). Our Majority further expounds on the decision in Commonwealth v. Liston, 602 Pa. 10 , 977 A.2d 1089 (2009) (overruling this Court’s en banc opinion in which we concluded that a PCRA court’s order reinstating direct appeal rights must also reinstate the right to file post-sentence motions, to provide an avenue to have ineffective assistance of counsel claims addressed on direct appeal), along with the concurring opinion of Chief Justice Castille indicating that review of ineffective assistance of counsel claims on direct appeal should only occur when the request for “such review is accompanied by an express, knowing and voluntary waiver of further PCRA review.” Id. at 22 , 977 A.2d at 1096 . The Majority astutely observes that the Supreme Court has since established that the Chief Justice’s comment in Liston is the equivalent of a majority pronouncement. See Commonwealth v. Montalvo, 604 Pa. 386, 431 , 986 A.2d 84, 111 (2009).

While it is obvious that this area of the law is undergoing development by our Supreme Court, I cannot disregard the fact that certain questions have been left unanswered by the Supreme Court’s decisions. Indeed, both Wright , and the concurrence in Liston , express that waiver of further PCRA review should be required of an appellant attempting to raise claims of ineffective assistance of counsel on direct appeal. However, the Supreme Court has left unanswered the question of whether it intends that only the right to raise further claims of ineffective assistance of counsel should be waived on collateral review or whether it prefers the more draconian measure that all rights to PCRA review should be waived. Even if limited to ineffective assistance of counsel claims, would the waiver include ineffective assistance of appellate counsel claims, which have yet to accrue? I am left to question how this can occur, since certain claims of appellate counsel ineffective assistance have been found to constitute per se ineffectiveness, e.g., counsel’s failure to file a statement of errors pursuant to Pennsylvania Rule of Appellate Procedure 1925(b). Likewise, would the waiver bar future PCRA claims based upon the three (3) exceptions to the one-year time bar? In addition, the Supreme Court has not indicated what form the waiver must take, e.g., must the waiver be written or is an oral waiver sufficient? Moreover, our Supreme Court has been silent as to the appropriate timing of any such waiver, e.g., must waiver occur at the time of filing post-sentence motions? Therefore, I believe that the more prudent approach would be to await further instruction on this matter from our Supreme Court. As the Majority notes, the Supreme Court granted a petition for allowance of appeal in Commonwealth v. Holmes, 606 Pa. 209 , 996 A.2d 479 (2010), in order to further refine its holdings in this area of the law. As acknowledged by *379 the Majority, the “grant of allowance of appeal in Holmes may likely be a recognition of a perceived lack of clarity in Wright and Liston,” rather than a mandate to this Court through the various opinions in these cases. See Majority Op. at 375-76 n. 13. Accordingly, I would decline the opportunity to further complicate this area of the law until the Supreme Court clarifies its position. 1

Furthermore, I question whether the Majority’s bright-line rule should be applied to Appellant in this matter. Given the timing of the original remand of this case, and the dates of the Supreme Court decisions in Wright and Liston , it appears inequitable to Appellant to now alter the procedure set forth by this Court and to direct Appellant to file, yet again, his identical claims seeking relief.

My review of the record indicates that Appellant’s trial and judgment of sentence, which was imposed on December 2, 2002, both pre-dated the Supreme Court’s decision in Grant . Also, on December 5, 2003, a panel of this Court deemed Appellant’s issues waived on direct appeal due to the poor brief filed by Appellant’s counsel and affirmed the judgment of sentence. On October 5, 2005, Appellant filed a PCRA petition, claiming ineffective assistance of counsel, which, after a hearing, the PCRA court denied on April 15, 2008. These events predated the Supreme Court’s decision in Wright , which suggested waiver of PCRA rights is appropriate when collateral claims are raised in post-verdict motions.

Thereafter, on April 7, 2009, a panel of this Court reversed the PCRA court’s determination and remanded to the PCRA court for the reinstatement of Appellant’s direct appeal rights, nunc pro tunc. This Court specifically stated:

Given this disposition, we need not address Appellant’s remaining claims. We do note, however, that because the PCRA court has already held an eviden-tiary hearing, and addressed the merits of Appellant’s ineffectiveness claims, they may be reviewed on direct appeal. See generally, Commonwealth v. Bomar [ 573 Pa. 426 ], 826 A.2d 831 (Pa.2003).

Commonwealth v. Barnett, No. 1141 EDA 2008, slip op. at 9, 974 A.2d 1175 (Pa.Super. filed April 7, 2009).

On August 17, 2009, four months after this Court issued its decision reversing and remanding the instant case, our Supreme Court issued its decision in Liston containing Chief Justice Castille’s comments that review of ineffective assistance of counsel claims on direct appeal should only occur when the request for “such review is accompanied by an express, knowing and voluntary waiver of further PCRA review.” Liston, 602 Pa. at 22 , 977 A.2d at 1096 . However, I cannot ignore the fact that, rather than apply Liston retroactively, in Montalvo , Chief Justice Castille suggests that Liston be applied “going forward.” Montalvo, 604 Pa. at 432 , 986 A.2d at 111 . Therefore, I am compelled to conclude *380 that, even if a bright-line rule is an appropriate edict from this Court on this issue, its application to the instant case is inappropriate. For these reasons, I am obliged to register my dissent and to conclude that we should address the merits of the issues presently brought to this Court on appeal.

After a careful review of the certified record, as well as the briefs of the parties and the applicable law, I further conclude that Appellant’s issues lack merit and have been adequately addressed in the trial court’s opinion filed on June 22, 2009. Accordingly, I would affirm the judgment of sentence.

. In addition, I am concerned with the language used by the Majority which insinuates that petitioners are entitled to the filing of only one PCRA petition and "are not entitled to two chances at collateral review, ...” See Majority Op. at 376. Although our General Assembly has placed restrictions for the timely filing of PCRA petitions, it has not imposed any restrictions upon the number of timely PCRA petitions a petitioner may file. The relevant section of the PCRA provides that "[a]ny petition under this subchapter, including a second or subsequent petition, shall be filed within one year of the date the judgment becomes final, ...” 42 Pa.C.S.A. § 9545(b)(1). Thus, I believe that a more appropriate statement would explain that petitioners are not entitled to two chances of review of issues which should be reserved for presentation in collateral proceedings.