Com. v. Hoyman

• Decision Date: 28 June 1989
• Citation: 385 Pa.Super. 439,561 A.2d 756
• Parties: COMMONWEALTH of Pennsylvania v. Randy James HOYMAN, Appellant. 1380 PITTS. 1988
• Court: Pennsylvania Superior Court

Page 756

561 A.2d 756

385 Pa.Super. 439

COMMONWEALTH of Pennsylvania v. Randy James HOYMAN, Appellant.

1380 PITTS. 1988

Superior Court of Pennsylvania.

Submitted Feb. 13, 1989.

Filed June 28, 1989.

William J. McCabe, Greensburg, for appellant.

John W. Peck, II, Asst. Dist. Atty., Arnold, for Com.

Before ROWLEY, McEWEN and MONTGOMERY, JJ.

ROWLEY, Judge:

This submitted case is an appeal from an order of the trial court denying appellant's second collateral petition for relief from his conviction for rape. The petition was erroneously filed pursuant to the Post Conviction Hearing Act, 42 Pa.C.S. §§ 9541-9551 (hereinafter "PCHA"), which was modified in part, repealed in part, and renamed the Post Conviction Relief Act, 42 Pa.C.S. § 9541, et seq., eff. April 13, 1988, by Act of April 13, 1988, No. 47, §§ 3-4, 1988 Pa.Legis.Srv. 229-232 (hereinafter "PCRA"). The relief sought by appellant is a nunc pro tunc direct appeal to this Court. Appellant raises one issue for our review: whether trial counsel was ineffective for failing to file a direct appeal to the Superior Court from appellant's judgment of sentence?

A brief review of the procedural history of this case is necessary. Appellant was found guilty by a jury of Rape and Terroristic Threats. Post-trial motions were filed and denied. Appellant was sentenced on June 24, 1987. No appeal was taken from the judgment of sentence.

Appellant, on March 29, 1988, filed a pro se petition for relief under the PCHA in which he belatedly sought modification of his sentence. The trial court, without appointing counsel or holding a hearing, denied the petition on April 4, 1988. Appellant filed a second collateral petition May 24, 1988, which, although designated as being pursuant to the PCHA, should have been a petition under the PCRA, ¹ which went into effect on April 13, 1988. In this second petition appellant alleged ineffective assistance of his trial counsel. Upon review of the petition the trial court appointed new counsel to represent appellant, and a PCRA hearing was scheduled for August 23, 1988. At the hearing, PCRA counsel stated for the record, "[a]ll we are asking for in this case is an Order where you will allow us to file an appeal to the Superior Court nunc pro tunc." N.T. 8/23/88 at 3. At the close of the PCRA hearing the court noted: "I find [counsel] negligent for [not] taking an appeal her client wanted to take." Id. at 21.

The next day, August 24, 1988, the PCRA court filed an opinion in which it found as a fact that the Assistant Public Defender who had represented appellant at trial failed to file a timely appeal due to a clerical error or miscommunication in her office. The PCRA court, however, went on to determine that there were no underlying issues of merit to appellant's claimed trial errors, and hence found there to have been no ineffectiveness on the part of defense counsel in failing to take the direct appeal. As a result, the trial court denied appellant's request for a direct appeal, nunc pro tunc. This appeal followed.

The trial court found that appellant's trial counsel had been at fault for failing to file a direct appeal on appellant's behalf. The record supports that finding. The trial court concluded, however, that the issues which appellant would have argued on direct appeal, though preserved for appellate review both at trial and post trial, had no merit and denied appellant's request to be allowed to take a direct appeal to this Court, nunc pro tunc. In reaching that conclusion, the trial court departed from the holding of our Court in Commonwealth v. Miranda, 296 Pa.Super. 441, 442 A.2d 1133 (1982).

In Miranda, we held that where a PCHA petitioner has alleged the ineffectiveness of his or her trial counsel for failing to take a direct appeal, the PCHA court is precluded from reaching the merits of other issues raised in the PCHA petition once the trial court determines that petitioner has been deprived of his direct appeal right and grants an appeal nunc pro tunc. Id. at 451, 442 A.2d at 1138.

Although Miranda was decided under the PCHA, we hold that it is to be applied with equal force to proceedings under the PCRA. It is apparent from the record that appellant was denied his right to appeal. The terms of the PCRA indicate that application of our decision in Miranda is called for in this situation. Section 9542 states in relevant part: "This subchapter is not intended to limit the availability of remedies in the trial court or on direct appeal from the judgment of sentence...." (emphasis added). For these reasons, in the case at bar, the PCRA court erred in addressing the merits of the substantive issues which appellant claims should have been raised on appeal. Once the court concluded that appellant was denied his right of direct appeal the proper course would have been to grant appellant leave to file a direct appeal nunc pro tunc. Commonwealth v. Ciotto, --- Pa.Super. ----, 555 A.2d 930 (1989) (when a defendant establishes that counsel's ineffective assistance denied him entirely his right to a direct appeal, he is entitled to a direct appeal nunc pro tunc without regard to his ability to establish the merit of the issues which he seeks to raise on direct appeal).

Nor is appellant's right to file a direct appeal barred by the decision of the Supreme Court of Pennsylvania in Commonwealth v. Lawson, 519 Pa. 504, 549 A.2d 107 (1988). In Commonwealth v. Lawson, our Supreme Court determined, in the context of the PCHA, that "[a] repetitive or serial petition may be entertained only for the purpose of avoiding a demonstrated miscarriage of justice, which no civilized society can tolerate." Id. at 513-514, 549 A.2d at 112. Our Court has applied Lawson with equal force to proceedings under the PCRA. Blackwell v. Commonwealth--- Pa.Cmwlth. ----, 555 A.2d 279 (1989). Moreover, the Comment to new Pa.R.Crim.P. 1507 states that "[a] second or subsequent motion should be summarily dismissed when the judge determines that the defendant has failed to make a strong prima facie showing that a miscarriage of justice may have occurred." ² Lawson and new Rule 1507 were not available to the PCRA court in this case, so this Court must determine whether such a miscarriage is present.

We hold that failure of trial counsel to take a direct appeal, when his client so requests, is a demonstrated miscarriage of justice within the meaning of Lawson. The importance of appellate rights was recognized by the U.S. Supreme Court in Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963). There, the Supreme Court required appointment of counsel for indigent state defendants on their first appeal as of right. ³ Five years later, when our state constitution was amended in 1968, the legislature provided that Pennsylvania citizens have an absolute right to appeal. Our Supreme Court has steadfastly upheld that right:

[A]n accused has an absolute right to appeal, Pa. Constitution, Article V, § 9, and counsel can be faulted for allowing that right to be waived unless the accused himself effectively waives the right, i.e. for not protecting the accused's right in the absence of an effective waiver.

Commonwealth v. Wilkerson, 490 Pa. 296, 299, 416 A.2d 477, 479 (1980).

Finally, the eminent former Chief Judge Aldisert of the Third Circuit Court of Appeals wrote just two years after our Constitution was amended:

The courts have exhibited an increasing sensitivity to the constitutional rights of indigent defendants at the critical post-trial stage. No longer can there be any doubt that a state's obligation to furnish counsel is not discharged when the verdict is read and sentence is imposed. The equal protection clause and the due process incorporation of the sixth amendment require that an indigent be afforded the assistance of legal counsel at every critical stage throughout the criminal process. And to insure the effectiveness of such assistance, the appointed trial attorney has been charged with the duty of respecting his client's desire to file an appeal, even if in his best professional judgment the appeal is utterly without merit.

U.S. ex rel. O'Brien v. Maroney, 423 F.2d 865, 868 (3d Cir., 1970).

Ciotto, supra, indicates that the right of direct appeal is superior to that of an appeal in collateral proceedings because appellant need not establish the merit of the issues he seeks to raise. The Court in Wilkerson recognized as much when it noted, "[the] requirement that counsel protect the appellate right of an accused extends even to circumstances where the appeal is 'totally without merit.' " Wilkerson, supra, 490 Pa. at 299, 416 A.2d at 479.

Nor do the decisions in Commonwealth v. Lawson, supra, and Blackwell v. Commonwealth, supra, command a contrary result. Although Lawson and Blackwell have some similarities to the case before us, there is a critical distinction between them. Mr. Lawson was the beneficiary of one (1) direct appeal and Mr. Blackwell was the beneficiary of two (2) direct appeals. Mr. Hoyman, through no fault of his own, has had none. Thus, Mr. Lawson's and Mr. Blackwell's constitutional rights to take a direct appeal were not violated and the only remaining source of relief was in a collateral proceeding where the underlying substantive issues were presented in the context of ineffective counsel. Here, Mr. Hoyman having established that an important state constitutional right has been denied him is entitled to have that right reinstated and to proceed with a direct appeal. In the case at bar, appellant told the Assistant Public Defender who had represented him at trial that he wanted to take a direct appeal, and it was determined at the PCRA hearing that she knew of appellant's request that a direct appeal was to be filed on his behalf. Through no fault of his own a direct appeal was not filed. Because a miscarriage of justice has occurred in the case at bar, appellant is entitled to the relief he...