Com. v. Liebel

• Decision Date: 09 June 2003
• Citation: 573 Pa. 375,825 A.2d 630
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. John LIEBEL, Appellant.
• Court: Pennsylvania Supreme Court

825 A.2d 630

573 Pa. 375

COMMONWEALTH of Pennsylvania, Appellee, v. John LIEBEL, Appellant.

Supreme Court of Pennsylvania.

Submitted December 5, 2002.

Decided June 9, 2003.

Geoffrey A. Graham, Doylestown, for John Liebel.

Karen Ann Diaz, Doylestown, for Com.

Before CAPPY, C.J., and CASTILLE, NIGRO, NEWMAN, SAYLOR, EAKIN and LAMB, JJ.

OPINION

Justice NIGRO.

We granted allowance of appeal to determine whether the Superior Court erred in finding that Appellant John Liebel was not entitled to file a Petition for Allowance of Appeal ("PAA") to this Court nunc pro tunc based on his claim in his PCRA¹ petition that his appellate counsel had been ineffective for failing to file a PAA to this Court on direct appeal. For the reasons outlined below, we reverse the decision of the Superior Court.

On September 15, 1997, Appellant, represented by appointed counsel, entered a general guilty plea to the charge of murder for the strangulation death of his father. Following a plea colloquy, the trial court accepted Appellant's plea and held a degree-of-guilt hearing. Following the degree-of-guilt hearing, the trial court found Appellant guilty of first-degree murder. Prior to sentencing, Appellant filed a motion to withdraw his guilty plea. On October 10, 1997, the trial court denied the motion and sentenced Appellant to life in prison. Appellant, represented by new appointed counsel ("appellate counsel"), filed timely post-sentence motions, in which he argued, inter alia, that the trial court erred in refusing to allow Appellant to withdraw his guilty plea and that trial counsel was ineffective for failing to develop a complete defense in spite of Appellant's desire to proceed to trial. Following an evidentiary hearing at which trial counsel testified, the trial court denied the post-sentence motions. The Superior Court affirmed Appellant's judgment of sentence on March 5, 1999. Five days later, on March 10, 1999, appellate counsel sent Appellant the following letter:

Dear John:

The Superior Court has denied your appeal. We have thirty days to file a[PAA] with the Pennsylvania Supreme Court. I will do so.

Thank you for your consideration.

Very truly yours /s/ [Appellate counsel]

PCRA Ct. Op. at 7-8 (reproducing appellate counsel's letter to Appellant). Contrary to his representation in the letter, however, appellate counsel failed to file a PAA with this Court within thirty days of the Superior Court's decision. See Pa. R.A.P. 1113 ("[A PAA] shall be filed with the Prothonotary of the Supreme Court within 30 days of the entry of the order sought to be reviewed.") Instead, after the time for filing a PAA with this Court had expired, on April 16, 1999, appellate counsel sent Appellant the following letter:

Dear John:

Regretfully, I failed to file your [PAA] in a timely manner. Accordingly, it is necessary that you file a Post Conviction Relief Petition alleging my ineffectiveness and requesting that the lower court grant you a nunc pro tunc right to file a[PAA].

I have spoken with Mr. Kerrigan² about this and he is aware of my mistake. Certainly you will be granted a right to file this appeal. Again I sincerely apologize but the likelihood of success in a discretionary writ of this nature is minimal.

Very truly yours /s/ [Appellate counsel]

PCRA Ct. Op. at 8 (reproducing appellate counsel's second letter to Appellant).

Consequently, on February 18, 2000, Appellant filed a timely pro se petition for post-conviction relief pursuant to the PCRA. The PCRA court appointed new counsel and permitted Appellant to file an amended PCRA petition, in which Appellant alleged, inter alia, appellate counsel's ineffectiveness and sought the reinstatement of the right to file a PAA to this Court nunc pro tunc.³ Following an evidentiary hearing, the PCRA court dismissed Appellant's amended PCRA petition.⁴ In his statement of matters complained of on appeal, Appellant argued, inter alia, that the PCRA court erred in refusing to reinstate his right to file a PAA to this Court nunc pro tunc based on his claim that his appellate counsel had been ineffective for failing to file a PAA to this Court on direct appeal. In its Rule 1925(a) opinion, see Pa.R.A.P. 1925(a), the PCRA court, relying on Superior Court precedent, concluded that Appellant's claim was not cognizable under the PCRA because it did not bear on Appellant's ultimate guilt or innocence.⁵ On appeal, the Superior Court summarily affirmed, citing to the PCRA court's opinion. We granted allowance of appeal to determine whether the Superior Court erred in affirming the PCRA court's order refusing to reinstate Appellant's right to file a PAA to this Court nunc pro tunc.

We review an order granting or denying PCRA relief to determine whether the PCRA court's decision is supported by evidence of record and whether its decision is free from legal error. Commonwealth v. Carpenter, 555 Pa. 434, 725 A.2d 154, 159 (1999). In order to state a cognizable claim under the PCRA, a PCRA petitioner must plead and prove by a preponderance of the evidence that his conviction resulted from one or more of the errors or defects listed in 42 Pa.C.S. § 9543(a)(2). Commonwealth v. Albrecht, 554 Pa. 31, 720 A.2d 693, 698 (1999). Section 9543(a)(2)(ii) provides that "[t]o be eligible for relief under [the PCRA], the petitioner must plead and prove ... [t]hat the conviction of sentence resulted from ... [i]neffective assistance of counsel which, in the circumstances of the particular case, so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place." 42 Pa.C.S. § 9543(a)(2)(ii).

In essence, the PCRA court below concluded that Appellant's claim is not cognizable under Section 9543(a)(2)(ii) because counsel's failure to file a PAA to this Court could not have undermined the truth-determining process in light of the fact that (1) Appellant has no constitutional right to counsel on discretionary appeal to this Court and (2) Appellant has not shown that this Court would have granted allocatur had his counsel followed through on his promise to file a PAA. We disagree.

Regarding the first of the reasons listed above, it appears to be settled that Appellant has no federal constitutional right to counsel on a petition for discretionary review.⁶ See Ross v. Moffitt, 417 U.S. 600, 610, 94 S.Ct. 2437, 41 L.Ed.2d 341 (1974)

(holding that neither the Due Process Clause nor the Equal Protection Clause of the Fourteenth Amendment require the appointment of counsel on a petition for discretionary review to a state supreme court); Evitts v. Lucey, 469 U.S. 387, 401, 105 S.Ct. 830, 83 L.Ed.2d 821 (1985) (characterizing Ross as holding that "a criminal defendant has a right to counsel only on appeals as of right, not on discretionary state appeals"). Appellant, however, clearly has a rule-based right to counsel under Pennsylvania Rule of Criminal Procedure 122, which provides that "[w]here counsel has been assigned, such assignment shall be effective until final judgment, including any proceedings on direct appeal." Pa.R.Crim.P. 122(C)(3) (emphasis added). Relying on this Rule, this Court, in Commonwealth v. Daniels, 491 Pa. 289, 420 A.2d 1323 (1980) (per curiam), ordered the petitioner's appointed counsel, who had refused to file a PAA to this Court on the petitioner's behalf, to do so.⁷ We explained that by "Rule [122], this Court long has guaranteed that a person seeking allowance of appeal is entitled to the assistance of counsel." Id. (citing cases); see Commonwealth v. Swanson, No. 507 WAL 2001, 2001 Pa. LEXIS 2417, at *1 (Pa. Nov. 14, 2001) (per curiam) (relying on Daniels and Pa.R.Crim.P. 122(C)(3) to order petitioner's appointed counsel, who had represented petitioner on appeal, to continue to represent petitioner on his PAA to this Court).

Daniels makes clear that under Rule 122, Appellant is entitled to the assistance of counsel through his discretionary appeal to this Court on direct appeal. We have previously concluded that an appellant's rule-based right to counsel, such as the one at issue here, permits this Court to review an ineffectiveness claim based on that right brought pursuant to the PCRA. In Commonwealth v. Albrecht, the appellant claimed that his PCRA counsel had been ineffective for filing a brief in which counsel explicitly waived most of the seventy-two issues raised by the appellant's former PCRA counsel in his amended PCRA petition. Albrecht, 720 A.2d at 698-99.

Employing a similar analysis to that adopted by the PCRA court in the instant case, the Commonwealth essentially argued in Albrecht that the appellant's claim was not cognizable under the PCRA because the appellant had no Sixth Amendment right to counsel in post-conviction proceedings. Id. at 699. In rejecting that argument, this Court stated: "Though we agree with the [Commonwealth's] argument regarding the scope of the Sixth Amendment, we have never found our power to review, and if necessary, remedy the deficiencies of counsel at the post-conviction stage circumscribed by the parameters of the Sixth Amendment." Id. (citation omitted). We then found that, although the appellant had no Sixth Amendment right to counsel in post-conviction proceedings, he certainly had a right, based on Pennsylvania Rule of Criminal Procedure 904,⁸ to the assistance of counsel to prepare and litigate his PCRA petition. Such a right, we reiterated, necessarily included the concomitant right to the effective assistance of counsel. Id. at 700. Given this rule-based right to the effective assistance of PCRA counsel, we proceeded to review the claims Appellant alleged his PCRA counsel had been ineffective for failing to argue in his brief.

In light of Albrecht and Appellant's own rule-based right to the effective assistance of counsel through any discretionary appeal to this Court on direct appeal, we disagree with the PCRA court that Appellant is "precluded from seeking post-conviction...