Com. v. Celestin

• Decision Date: 02 May 2003
• Citation: 825 A.2d 670
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Jean M. CELESTIN, Appellant. Commonwealth of Pennsylvania, Appellant, v. Jean M. Celestin, Appellee.
• Court: Pennsylvania Superior Court

825 A.2d 670

COMMONWEALTH of Pennsylvania, Appellee, v. Jean M. CELESTIN, Appellant.

Commonwealth of Pennsylvania, Appellant, v. Jean M. Celestin, Appellee.

Superior Court of Pennsylvania.

Argued January 14, 2003.

Filed May 2, 2003.

Reargument Denied July 3, 2003.

Joseph M. Devecka, State College, for Celestin.

Lance T. Marshall, Asst. Dist. Atty., Bellefonte, for Com., appellee.

Before: STEVENS, GRACI, and OLSZEWSKI, JJ.

GRACI, J.

¶ 1 Appellant, Jean M. Celestin ("Celestin") and the Commonwealth have filed cross-appeals from a judgment of sentence entered November 19, 2001, in the Court of Common Pleas of Centre County. For the reasons set forth below, we dismiss Celestin's appeal, vacate the judgment of sentence, and remand this matter to the trial court for resentencing.

I. FACTUAL AND PROCEDURAL HISTORY

¶ 2 In October 1999, Celestin and co-defendant, Nathaniel Parker ("Parker"), were charged by criminal complaint with rape of an unconscious person, 18 Pa. C.S.A. § 3121(a)(3), involuntary deviate sexual intercourse with an unconscious person, 18 Pa.C.S.A. § 3123(a)(3), sexual assault, 18 Pa.C.S.A. § 3124.1, and indecent assault of an unconscious person, 18 Pa.C.S.A. § 3126(a)(4). The charges arose from an incident that occurred in August, 1999, when Celestin and Parker engaged in sexual intercourse with the female victim while she was intoxicated to the point of passing in and out of consciousness. The Commonwealth filed a motion for severance, which was denied on April 4, 2000. On appeal by the Commonwealth, this Court affirmed the trial court's order in an unpublished memorandum decision filed March 21, 2001.

¶ 3 On September 20, 2001, the Commonwealth filed a Motion to Nolle Prosequi the charge of sexual assault as to both defendants. The trial court denied the motion and Celestin and Parker proceeded to a jury trial in October 2001. At trial, Parker was represented by Joseph M. Devecka, Esq. and Celestin by Mark Lancaster, Esq. Parker was acquitted of all charges while Celestin was convicted of one count of sexual assault. On October 29, 2001, Attorney Lancaster withdrew from Celestin's case. Attorney Devecka entered his appearance on Celestin's behalf and continues to represent Celestin in this appeal.

¶ 4 On November 1, 2001, prior to sentencing, Celestin filed a written pleading which he entitled a "Motion for Extraordinary Relief for New Trial." In this motion, Celestin raised three claims of ineffective assistance of trial counsel. On November 6, 2001, the trial court heard arguments by counsel and denied Celestin's motion.

¶ 5 Celestin proceeded to sentencing on November 19, 2001. At the conclusion of the sentencing hearing, the trial court sentenced Celestin to a term of imprisonment of six to twelve months. Celestin did not file post-sentence motions. The Commonwealth filed a motion for reconsideration of sentence, which was denied on December 17, 2001. These cross-appeals followed.

¶ 6 Celestin raises the following issues on appeal:

1. Whether trial counsel was ineffective for opposing the Commonwealth's motion for Nolle Prosequi of the sexual assault charge against Celestin?

2. Whether trial counsel was ineffective for failing to file an Omnibus Pre-Trial Motion that he had prepared on behalf of Celestin?

3. Whether trial counsel was ineffective for failing to request a jury instruction on consent in the context of a sexual assault case?

See Brief and Supplemental Reproduced Record of Appellant, at 3. (Issues have been arranged for clarification purposes). In its cross-appeal, the Commonwealth raises the following issue:

Whether the lower court's imposition of a six (6) month to twelve (12) month sentence after the jury returned a verdict of guilty for the crime of Sexual Assault [ ] is excessively lenient and unreasonable in its 400 percent deviation from the extreme end of the mitigated guideline range?

...

Brief for Appellee, at 5. We shall begin with Celestin's appeal, docketed at 27 MDA 2002.

II. DISCUSSION

A. 27 MDA 2002

¶ 7 Celestin raises three allegations of ineffective assistance of trial counsel. Since he is raising these ineffectiveness claims on direct appeal, we must begin with a discussion of our Supreme Court's recent pronouncement in Commonwealth v. Grant, 572 Pa. 48, 813 A.2d 726 (2002). ¶ 8 In Grant, the Supreme Court held that "as a general rule, a petitioner should wait to raise claims of ineffective assistance of trial counsel until collateral review." Id. at 738.¹ Underlying the rule announced in Grant is the Court's observation that "time is necessary for a petitioner to discover and fully develop claims related to trial counsel ineffectiveness." Id. at 737-738. As a result, "the record may not be sufficiently developed on direct appeal to permit adequate review of ineffectiveness claims[.]" Id. at 737. Because "appellate courts do not normally consider issues that were not raised and developed in the court below[,]" id., the Grant court reasoned that "[d]eferring review of trial counsel ineffectiveness claims until the collateral review stage of the proceedings offers a petitioner the best avenue to effect his Sixth Amendment right to counsel." Id. at 738.

¶ 9 In Commonwealth v. Hudson, 820 A.2d 720 (Pa.Super.2003), we reviewed the merits of two ineffective assistance claims raised on direct appeal. In distinguishing Grant, we noted the following:

Grant leaves one open question however: may an appellate court address the merits of an ineffective assistance claim when the claim was, as is the case here, properly raised in a timely post-sentence motion filed in and ruled upon by the trial court in conformity with Pa. R.Crim.P. 720? We answer that question affirmatively. Grant is concerned with the difficulty an appellate court faces when trying to resolve ineffectiveness claims without the benefit of an adequately developed record. If an appellant obtained new counsel after verdict, new counsel could seek a new trial based on the ineffective assistance of trial counsel in a timely-filed post-sentence motion under Pennsylvania Rule of Criminal Procedure 720(B)(1)(a)(iv). Pa.R.Crim.P. 720(B)(1)(a)(iv). The trial court would then have to determine if a hearing was required or if the claim could be resolved on the existing record. Pa.R.Crim.P. 720(B)(2)(b). Thereafter, the trial court could resolve the ineffectiveness claim in the time frame established by the rule. Pa.R.Crim.P. 720(B)(3). If that issue was then raised on direct appeal, this court could resolve it. That situation is different from the one governed by Grant where the issue of trial counsel's ineffectiveness was not raised in a timely post-sentence motion but was, instead, raised for the first time on appeal. Grant simply has no application where the issue was properly raised and decided by the trial court before the direct appeal process started.

Hudson, 820 A.2d at 725-726.

¶ 10 Based upon Grant and Hudson, in the procedural posture of this case, Celestin's proper course of action would have been to raise his ineffective assistance claims in a post-sentence motion pursuant to Pa.R.Crim.P. 720. This Celestin failed to do, opting instead to raise his claims in a written Motion for Extraordinary Relief filed prior to sentencing. Such an approach is clearly disallowed by the Rules of Criminal Procedure.

¶ 11 Rule 704 of the Pennsylvania Rules of Criminal Procedure provides as follows (B) Oral Motion for Extraordinary Relief.

(1) Under extraordinary circumstances, when the interests of justice require, the trial judge may, before sentencing, hear an oral motion in arrest of judgment, for a judgment of acquittal, or for a new trial.

(2) The judge shall decide a motion for extraordinary relief before imposing sentence, and shall not delay the sentencing proceeding in order to decide it.

(3) A motion for extraordinary relief shall have no effect on the preservation or waiver of issues for post-sentence consideration or appeal.

Pa.R.Crim.P. 704(B) (emphasis added). The Comment to Rule 704 provides further guidance on when a motion for extraordinary relief is appropriate:

Under paragraph (B), when there has been an error in the proceedings that would clearly result in the judge's granting relief post-sentence, the judge should grant a motion for extraordinary relief before sentencing occurs. Although trial errors may be serious and the issues addressing those errors meritorious, this rule is intended to allow the trial judge the opportunity to address only those errors so manifest that immediate relief is essential. It would be appropriate for counsel to move for extraordinary relief, for example, when there has been a change in case law, or, in a multiple count case, when the judge would probably grant a motion in arrest of judgment on some of the counts post-sentence. Although these examples are not all-inclusive, they illustrate the basic purpose of the rule: when there has been an egregious error in the proceedings, the interests of justice are best served by deciding that issue before sentence is imposed. Because the relief provided by this section is extraordinary, boilerplate motions for extraordinary relief should be summarily denied.

...

Paragraph (B)(3) is intended to make it clear that a motion for extraordinary relief is neither necessary nor sufficient to preserve an issue for appeal. The failure to make a motion for extraordinary relief, or the failure to raise a particular issue in such a motion, does not constitute a waiver of any issue. Conversely, the making of a motion for extraordinary relief does not, of itself, preserve any issue raised in the motion, nor does the judge's denial of the motion preserve any issue.

Id. Comment (emphasis added).

¶ 12 The plain terms of Rule 704(B) do not permit the filing of a written motion for extraordinary relief prior to sentencing. Moreover, Rule 704(B)(1) clearly contemplates that any oral motion for extraordinary relief...