Com. v. Jordan

• Decision Date: 11 April 2001
• Citation: 772 A.2d 1011
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Vincent E. JORDAN, Appellant.
• Court: Pennsylvania Superior Court

772 A.2d 1011

COMMONWEALTH of Pennsylvania, Appellee, v. Vincent E. JORDAN, Appellant.

Superior Court of Pennsylvania.

Argued November 9, 2000.

Filed April 11, 2001.

John L. Elash, Pittsburgh, for appellant.

Sandra Preuhs, Assistant District Attorney, Pittsburgh, for Com., appellee.

Before LALLY-GREEN, TODD and BROSKY, JJ.

BROSKY, J.

¶ 1 This is an appeal from an order entered on October 6, 1999, dismissing without a hearing Appellant's second petition under the Post Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546. The appeal presents the question of whether Appellant's prior counsel rendered ineffective assistance of counsel in failing to pursue a direct appeal on Appellant's behalf. The issue, as raised by Appellant, is:

Whether the court below erred in failing to grant Appellant leave to file a direct appeal nunc pro tunc or hold an evidentiary hearing to determine whether Appellant had requested a direct appeal.

Appellant's Brief at 4.

¶ 2 On the basis of Commonwealth v. Hernandez, 755 A.2d 1 (Pa.Super.2000), allowance of appeal granted ___ Pa. ___, 766 A.2d 1244 (Pa.1/19/01), and Commonwealth v. Garcia, 749 A.2d 928 (Pa.Super.2000), we find the issue raised by Appellant meritorious. We therefore reverse and remand the matter to the trial court for an evidentiary hearing. Depending on the evidence gathered at that proceeding, the trial court is directed that Appellant's direct appeal rights should be reinstated nunc pro tunc.

¶ 3 Appellant, who was represented by Attorney Bruce Carsia, entered a guilty plea and was sentenced. His petition for modification of sentence was denied. Attorney Carsia then petitioned to withdraw his representation. His request was granted and the Public Defender's Office was appointed.

¶ 4 Subsequently, the Public Defender's Office filed a notice of appeal with this Court. No Statement of Matters Complained of on Appeal was filed, so we are unable to determine the issues that were raised in the appeal. The Public Defender's Office filed a petition to dismiss the appeal, which we granted. Appellant states in his brief that the purpose in seeking this dismissal was to allow Appellant to file a petition to withdraw his guilty plea in the trial court. However, the Public Defender's Office never filed such a petition, nor did the Public Defender's Office take any additional steps to protect Appellant's right to a direct appeal. The Public Defender's Office also did not file a brief to assert that the appeal was frivolous and should be dismissed pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). This Court's February 19, 1986 order dismissing the appeal provided that the dismissal was without prejudice to any rights Appellant might have under the Post Conviction Hearing Act ("PCHA"), the predecessor to the PCRA.¹

¶ 5 Appellant's pro se PCHA petition, which he filed on December 18, 1986, was denied the same day that it was filed, without counsel to represent Appellant. Appellant then filed a revised pro se PCHA petition on January 28, 1988, alleging abandonment and ineffective assistance by trial counsel, Attorney Carsia, and alleging that the guilty plea was induced by promises of a lenient sentence.

¶ 6 The Public Defender's Office was appointed to represent Appellant and filed a motion to withdraw as counsel because of conflict. The trial court granted the motion on January 29, 1988. In June of 1988, Patrick J. Thomassey, Esq., was then appointed to represent Appellant. The pro se PCHA petition was denied without a hearing on August 24, 1989.

¶ 7 On September 9, 1989, Appellant filed with this Court a notice of appeal from the denial of his PCHA petition. This Court affirmed the denial of the PCHA petition on January 8, 1991, finding that trial counsel had not provided ineffective assistance because there was no merit to the contention that the guilty plea was invalid. This Court stated that Appellant had repeatedly acknowledged that his plea was not induced by a promise of a specific sentence, so he could not make such an allegation in seeking post-conviction relief. Thus, citing Commonwealth v. Shaffer, 498 Pa. 342, 446 A.2d 591 (1982), the panel found from its examination of the record that Appellant had failed to make a showing of prejudice on the order of manifest injustice to support a withdrawal of his guilty plea after sentencing.

¶ 8 Appellant then filed another petition in October of 1991, under the PCRA, in which he asserted that he would prove at an evidentiary hearing that he was promised a lesser sentence. The Public Defender's Office was appointed to represent him. More than a year later, the Public Defender's Office filed a motion to withdraw as counsel because it had been involved as direct appeal counsel. The trial court granted the motion.

¶ 9 Present counsel, Attorney John Elash, was then appointed to represent Appellant. He filed a Petition for Relief Pursuant to the Post Conviction Relief Act or Request for Appeal Nunc Pro Tunc on September 30, 1998. The trial court then dismissed the PCRA petition on October 6, 1999, after giving the requisite notice of its intention to dismiss the petition without holding an evidentiary hearing. This appeal, filed by Attorney Elash on behalf of Appellant, followed.

¶ 10 Appellant presently argues that he lost his right to a direct appeal as a result of the ineffective assistance of his first PCHA counsel, Attorney Thomassey, who also filed the appeal from the dismissal of the PCHA petition with this Court. Attorney Elash asserts that Attorney Thomassey framed the issue as one of trial counsel's error instead of whether, because of ineffective assistance of direct appeal counsel, i.e., the Public Defender's Office, Appellant was deprived of his constitutional right to a direct appeal.

¶ 11 There are two aspects to this case: first, whether the trial court properly denied the second PCRA petition without a hearing;² and second, whether the trial court properly decided not to hold an evidentiary hearing to determine if nunc pro tunc relief was warranted.

¶ 12 Initially, we turn to a consideration of the denial of the second PCRA petition without a hearing. The right to an evidentiary hearing on a post-conviction petition is not absolute. Commonwealth v. Granberry, 434 Pa.Super. 524, 644 A.2d 204, 208 (1994). A PCRA court may decline to hold a hearing if the petitioner's claim is patently frivolous and is without a trace of support in either the record or from other evidence. Id. A reviewing court on appeal must examine each of the issues raised in the PCRA petition in light of the record in order to determine whether the PCRA court erred in concluding that there were no genuine issues of material fact and denying relief without an evidentiary hearing. Commonwealth v. Hardcastle, 549 Pa. 450, 701 A.2d 541, 542 (1997).

¶ 13 Appellant's instant PCRA petition was filed prior to the effective date of the 1995 amendments to the PCRA. The pre-amendment PCRA requires Appellant to establish by a preponderance of the evidence that his conviction or sentence resulted from one or more of the errors or defects listed in 42 Pa.C.S. § 9543(a)(2)³ and that the issues he raises have not been previously litigated.⁴ If Appellant can show that the issues have not been previously litigated, he must also show that these allegations of error have not been waived⁵ or, if waived, the conditions in either § 9543(a)(3)(ii) or (iii) have been met[.]⁶See Com. v. Travaglia, 541 Pa. 108, 117, 661 A.2d 352, 356 (1995),

cert. denied, 516 U.S. 1121, 116 S.Ct. 931, 133 L.Ed.2d 858 (1996).

¶ 14 Our Supreme Court has explained that the standard of review for a second PCRA petition is as follows:

[I]n reviewing claims for relief in a second or subsequent collateral attack on a conviction and judgment of sentence, the request will not be entertained unless a strong prima facie showing is demonstrated that a miscarriage of justice occurred. Commonwealth v. Lawson, 519 Pa. 504, 549 A.2d 107 (1988). "An appellant makes such a prima facie case only if he demonstrates that either the proceedings which resulted in his conviction were so unfair that a miscarriage of justice occurred which no civilized society could tolerate, or that he was innocent of the crimes charged." Commonwealth v. Morales, 549 Pa. 400, 701 A.2d 516 (1997).

Commonwealth v. Fahy, 558 Pa. 313, 737 A.2d 214, 223 (1999). Our standard of review for an order denying post-conviction relief is limited to whether the trial court's determination is supported by evidence of record and whether it is free of legal error. Commonwealth v. Jermyn, 551 Pa. 96, 709 A.2d 849, 856 (1998).

¶ 15 In order to establish ineffective assistance of counsel, Appellant must show: 1) that there is merit to the underlying claim; 2) that counsel had no reasonable basis for his course of conduct; and 3) that there is a reasonable probability that, but for the act or omission in question, the outcome of the proceeding would have been different. Commonwealth v. Jones, 546 Pa. 161, 683 A.2d 1181, 1188 (1996). If the record shows that the third prong is not met, we need not determine whether the first two prongs are satisfied. Id. This standard is the same for PCRA relief based on a claim of ineffective assistance of counsel. Commonwealth v. Kimball, 555 Pa. 299, 724 A.2d 326, 332 (1999).

¶ 16 A claim of ineffectiveness must be raised at the earliest possible stage in which the allegedly ineffective counsel no longer represents the petitioner. Commonwealth v. Allen, 557 Pa. 135, 732 A.2d 582, 587 (1999). However, a claim of ineffectiveness will not be deemed waived where the petitioner has layered the claim by alleging the ineffectiveness of all prior counsel for failing to pursue the claim. Id.

¶ 17 The issue of the validity of the guilty plea has been previously litigated within the context of the PCRA. However, Appellant might have had another challenge that he wished...