Com. v. Moore, 1442 WDA 2008&1448 WDA 2008.

• Court: Superior Court of Pennsylvania
• Citation: 2009 PA Super 134,978 A.2d 988
• Docket Number: No. 1442 WDA 2008&1448 WDA 2008.,1442 WDA 2008&1448 WDA 2008.
• Parties: COMMONWEALTH of Pennsylvania, Appellee v. Garrick MOORE, Appellant.
• Decision Date: 15 July 2009

978 A.2d 988 2009 PA Super 134 COMMONWEALTH of Pennsylvania, Appellee
v.
Garrick MOORE, Appellant. No. 1442 WDA 2008&1448 WDA 2008. Superior Court of Pennsylvania. Submitted March 16, 2009. Filed July 15, 2009.

[978 A.2d 989]

Nicole D. Sloane, Public Defender, Erie, for appellant.

Erin E. Connelly, Assistant District Attorney, Erie for Commonwealth, appellee.

BEFORE: BOWES, ALLEN, and KELLY, JJ.

OPINION BY ALLEN, J.:

¶ 1 Garrick Moore ("Appellant") appeals from the trial court order denying his petition for extension of time to file a post-sentence motion. We remand with instructions, and hold that, for reasons of judicial economy and fairness, a defendant who raises ineffective assistance of counsel claims after being found in contempt of a Protection from Abuse order ("PFA") and sentenced to imprisonment pursuant to 23 Pa.C.S.A. § 6114, is entitled to an evidentiary hearing on the ineffectiveness of counsel claims, such that the record is

978 A.2d 990

adequate to assess the claims on direct appeal, consistent with Commonwealth v. Bomar, 573 Pa. 426, 826 A.2d 831 (2003).

¶ 2 The trial court summarized this case as follows:

On January 15, 2008, ... this Lower Court entered a Final Order Of Protection From Abuse, in which [Appellant] was prohibited from having any contact with the Plaintiff. Subsequently, on July 23, 2008, an Indirect Criminal Contempt Hearing was held before the Lower Court in order to determine whether [Appellant] violated the above stated Protection from Abuse Order on three separate occasions. At the July 23, 2008 Indirect Criminal Contempt Hearing, [Appellant] was represented by Carolyn E. Gold, Esq., from the Erie County Office of the Public Defender. Pursuant to 23 Pa.C.S. § 6114, this Lower Court found [Appellant] guilty of Indirect Criminal Contempt at all three docket numbers, and [Appellant] was sentenced to serve six months of incarceration at each docket number. However, Docket Number 326 of 2008 was to be served concurrent to Docket Number 325 of 2008, while Docket Number 327 of 2008 was to be served consecutive to Docket Number 325 of 2008.

Thereafter, on July 31, 2008, [Appellant], by and through Nicole D. Sloane, Esq. of the Erie County Office of the Public Defender, filed a Petition For Extension of Time To File A Post-Sentencing Motion. In the petition, Attorney Sloane indicates that [Appellant] wrote to the Chief Public Defender asking for an "Appeal" based upon numerous claims of ineffective assistance of counsel. Attorney Sloane further indicated that the case must be transferred to outside counsel because the ineffective assistance of counsel claims were based upon the previous representation by Attorney Gold of the Public Defender's Office, and therefore, the Public Defender's Office would have a conflict of interest representing [Appellant] in any subsequent proceedings involving the issue of ineffective assistance of counsel. However, on August 4, 2008, this Lower Court properly denied [Appellant's] Petition For An Extension Of Time To File A Post-Sentencing Motion because this Lower Court lacks the jurisdiction to extend said time limits. On August 7, 2008, [Appellant], by and through Attorney Sloane, filed the instant appeal.

Trial Court Opinion, 10/6/08, at 1-2 (footnote omitted) (emphasis added).

¶ 3 On August 11, 2008, the trial court entered an order directing Appellant to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P.1925(b), which Appellant filed on August 14, 2008.

¶ 4 Appellant presents the following question for our review:

Whether the trial court denied Appellant the essential procedural safeguards that attend proceedings where an individual's liberty is at stake including the right to the assistance of counsel and the right to appeal the judgment of sentence?

Appellant's Brief at 3.

¶ 5 Appellant explains that he sought an extension of time to file his post-sentence motion because "an extension would have allowed his case to be transferred to an attorney outside of the public defender's office so that ineffective assistance claims could be raised in the post-sentence motion and on appeal." Appellant's Brief at 7. Appellant averred that "[a] diligent search of legal authority fails to reveal any support for the trial court's assertion that it lacked the jurisdiction to extend the time limit to file a post-sentence motion.... Further, even after the

978 A.2d 991

10 day period has expired (but before 30 days), trial courts have the authority to grant a criminal defendant permission to file a post-sentence motion nunc pro tunc when the defendant exhibits sufficient cause to excuse the late filing." Appellant's Brief at 10. We agree.

¶ 6 It is initially noteworthy that the request for nunc pro tunc relief is separate and distinct from the merits of the underlying post-sentence motion. Commonwealth v. Dreves, 839 A.2d 1122, 1128-1129 (Pa.Super.2003) (en banc). Pennsylvania Rule of Criminal Procedure 720(A)(1) requires that post-sentence motions be filed within ten days of sentencing.¹

¶ 7 This Court has addressed the nunc pro tunc filing of post-sentence motions as follows:

To be entitled to file a post-sentence motion nunc pro tunc, a defendant must, within 30 days after the imposition of sentence, demonstrate sufficient cause, i.e., reasons that excuse the late filing ... When the defendant has met this burden and has shown sufficient cause, the trial court must then exercise its discretion in deciding whether to permit the defendant to file the post-sentence motion nunc pro tunc.

Commonwealth v. Dreves, 839 A.2d at 1128 (emphasis added).

¶ 8 It is well settled that an abuse of discretion is not merely an error of judgment, but rather the overriding or misapplication of the law, or the exercise of judgment that is manifestly unreasonable, or the result of bias, prejudice, ill-will or partiality, as shown by the evidence on the record. Commonwealth v. Barnes, 871 A.2d 812, 819 (Pa.Super.2005).

¶ 9 Here, the trial court abused its discretion when it misapplied the law and stated that it "lacked the jurisdiction to extend the time limitation contained in Rule 720(A)(1)." Trial Court Opinion, 10/6/08, at 2. This statement by the trial court is contrary to the language of Dreves, supra. The trial court clearly had the authority to grant or deny Appellant an extension of time in which to file his post-sentence motion. However, the trial court erred when it averred that it lacked jurisdiction to permit Appellant to file his post-sentence motion nunc pro tunc.

¶ 10 Furthermore, with regard to the underlying merits of Appellant's petition concerning the ineffectiveness of trial counsel, the trial court commented:

[T]he underlying basis of [Appellant's petition for extension of time to file a post-sentence motion] was to raise a claim of ineffective assistance of counsel. As a general rule, a petitioner should wait to raise claims of ineffective assistance of trial counsel until collateral review because the role of appellate counsel may not include raising claims not contained in the record certified for appeal. The record may not be sufficiently developed on direct appeal to permit adequate review of ineffectiveness claims; and appellate courts do not normally consider issues not raised and developed in the court below. Consequently, [Appellant] is not prejudiced by...