Commonwealth v. Jette

Justice BAER,

concurring and dissenting.

I agree with the Majority’s individual mandate, and with its broader decision to reject the Superior Court’s Battle procedure. While I have no doubt that procedure was well intentioned, it was also cumbersome and inconsistent with this *193 Court’s announcement in Commonwealth v. Ellis, 534 Pa. 176 , 626 A.2d 1137 (1993) (Ellis II). Thus, I agree that Battle should be overruled. Respectfully, however, I do not join in the Majority’s further criticism that the Battle procedure improperly provided certain petitioners an “additional round” of collateral review.

I now turn to the Majority’s proposed solution to the problem of pro se filings by represented PCRA petitioners. The Majority’s answer is to import the well-established rules applicable to direct appeals. As the Majority recognizes, courts in Pennsylvania do not countenance hybrid representation. Ellis II, 626 A.2d at 1139 . Thus, the rules for proceeding on direct appeal are clear. If an indigent appellant wishes to raise claims different from those that were chosen by his counsel, he must either: (1) file a petition to terminate counsel’s services and proceed with the appeal pro se; or (2) accept his counsel’s representation, and wait until collateral review to assert his claims of counsel’s ineffectiveness indirectly. Id. The first option carries with it a time limitation: an appellant may not terminate counsel’s services and proceed pro se if counsel has already filed an appellate brief. Commonwealth v. Rogers, 537 Pa. 581 , 645 A.2d 223 (1994). We “drew the line” where we did in Rogers because we believed that it adequately balanced the appellant’s interest in self-representation with a broader interest in avoiding confusion and delay. Id. at 224. We justified the limitation by noting that dissatisfied appellants may still turn to collateral relief. Id.

The Majority now imports these same rules, including the Rogers deadline, into the PCRA appeal context. Under the Majority’s new pronouncement, the petitioner may proceed pro se on a PCRA appeal at any time before his brief is filed. In my view, this line that we drew in Rogers should not be scribed in the same place for PCRA appeals. The original justification for the administrative imposition in Rogers (i.e., the ability to seek collateral relief) is largely illusory in the PCRA context, as a second round of relief is unlikely because of the jurisdictional nature of the PCRA’s time-bar, as inter *194 preted by this Court’s precedent. 1 Thus, under the Majority’s rule, if, for example, a PCRA appellant wishes to raise three claims that had been advanced but rejected by the PCRA court, and discovers that his appellate counsel has already filed a brief raising only one (or perhaps even none) of those claims, the omitted claims will escape review during disposition of the initial PCRA appeal under any circumstances, leaving the petitioner with the option of attempting to file a second PCRA petition, notwithstanding significant hurdles mentioned above. 2

In light of the restrictions on serial PCRA petitions, and that PCRA petitioners may not even be aware of the issues counsel chooses to advance on appeal until the brief is actually filed, I respectfully suggest that we should extend the deadline for proceeding pro se on appeal to 30 days from the date that the PCRA appellate brief is filed and served. This will allow the petitioner an opportunity to review the brief and decide whether to proceed pro se. If he timely asserts his desire to litigate pro se, the Superior Court would remand for a Grazier hearing and the case would proceed accordingly. 3 This pro *195 posed course of action would keep in place the prohibition against hybrid representation and keep delays to what I view as an acceptable level, properly balancing a petitioner’s right to obtain one thorough and meaningful appellate review of his PCRA claims (and any right he may have to self-representation on appeal) with society’s interest in finality. 4

Justice TODD joins this opinion.

. I would also submit that it is entirely possible to proceed pro se on PCRA appeal without alleging ineffectiveness of PCRA counsel, and without implicating any concerns about “additional rounds” of collateral review. If the defendant proceeds pro se on PCRA appeal, he could simply raise any of the claims that he litigated in his PCRA petition, without having to allege PCRA appellate counsel's ineffectiveness (because, of course, at that point there is would be no PCRA counsel).

. See 42 Pa.C.S.A. § 9545 (subject to three limited exceptions, any PCRA petition must be filed within one year of the date that the petitioner's judgment of sentence becomes final); Commonwealth v. Watts, 611 Pa. 80 , 23 A.3d 980 (2011) (PCRA provides the exclusive remedy for claims that fall within its ambit, and the PCRA's time limits are mandatory and jurisdictional in nature); Commonwealth v. Lawson, 519 Pa. 504 , 549 A.2d 107, 112 (1988) ("[A] second or any subsequent post-conviction request for relief will not be entertained unless a strong prima facie showing is offered to demonstrate that a miscarriage of justice may have occurred.”)

. I understand that the issue of whether a defendant has a right to self-representation on appeal is an open question under Pennsylvania law. See Commonwealth v. Staton, 12 A.3d 277 (Pa.2010). In Staton , we directed counsel to file an already-prepared brief on his client's behalf in a direct capital appeal, even though the defendant expressed a desire to discharge counsel and proceed pro se. We did so under the specific facts of that case, where the appellate process had already been delayed, even though Rogers would appear to permit self-representation before the appellate brief is filed.

. Commonwealth v. Grazier, 552 Pa. 9 , 713 A.2d 81 (1998) (trial court must determine if decision to proceed pro se is knowing, intelligent, and voluntary). Of course, if the defendant files anything other than a *195 request to proceed pro se, that filing would be simply forwarded to counsel.