Com. v. Reaves

• Decision Date: 31 May 2007
• Docket Number: No. 21 EAP 2005.,21 EAP 2005.
• Citation: 923 A.2d 1119
• Parties: COMMONWEALTH of Pennsylvania, Appellant, v. Gregory REAVES, Appellee.
• Court: Pennsylvania Supreme Court

923 A.2d 1119

COMMONWEALTH of Pennsylvania, Appellant, v. Gregory REAVES, Appellee.

No. 21 EAP 2005.

Supreme Court of Pennsylvania.

Submitted January 19, 2006.

Decided May 31, 2007.

Max Cooper Kaufman, Esq., Hugh J. Burns, Jr., Esq., for Commonwealth of Pennsylvania.

David Scott Rudenstein, Esq., for Gregory Reaves.

BEFORE: CAPPY, C.J., and CASTILLE, SAYLOR, EAKIN, BAER, BALDWIN and FITZGERALD, JJ.

OPINION

Justice CASTILLE.¹

The Commonwealth of Pennsylvania appeals by allowance from a decision of the Superior Court which granted appellee sentencing relief under the Post Conviction Relief Act ("PCRA"),² finding that appellee's counsel at his violation of probation ("VOP") hearing was ineffective for failing to file a motion for reconsideration of sentence alleging that the VOP court had failed to state on the record the reasons for the sentence. For the reasons that follow, we reverse and remand to the Superior Court for proceedings consistent with this Opinion.

On February 3, 1997, appellee pleaded guilty to three counts each of burglary and criminal conspiracy, and a single count of theft by unlawful taking.³⁴ On July 29 1997, appellee was sentenced to an eleven and a half to twenty-three month term of imprisonment followed by two years of reporting probation, and he was directed to pay restitution, fines, and costs. While on probation, appellee failed to report to his probation officer and also failed to pay his restitution, fines, and costs. Appellee was subsequently apprehended and a brief VOP hearing was held on December 18, 2000 before the Honorable Rayford A. Means of the Court of Common Pleas of Philadelphia County. Judge Means revoked appellee's probation and sentenced him to a four to eight year term of imprisonment.⁵ Appellee lodged no objection to the VOP sentence at the hearing, nor did he file a timely motion to modify or reconsider sentence.⁶

Appellee did file a timely, pro se notice of appeal, and new counsel was appointed. On appeal, appellee alleged that the VOP court erred in imposing a sentence in excess of the ranges recommended in the Sentencing Guidelines⁷ without stating the reasons for doing so on the record. He also claimed that the sentence imposed was excessive. The Superior Court affirmed the judgment of sentence on February 26, 2002. Commonwealth v. Reaves, No. 299 EDA 2001 (memorandum). The panel noted that the Sentencing Guidelines are inapplicable to VOP sentences, citing Commonwealth v. Ware, 737 A.2d 251 (Pa.Super.1999), and therefore held that the trial court did not err in failing to state reasons for departing from inapplicable guidelines. The panel found appellee's excessive sentence claim waived because he failed to petition for reconsideration of the sentence or "to pose the issue to the sentencing court in some other manner." Super. Ct. Op. at 4.

Later that year, on November 25, 2002, appellee filed a timely, pro se petition for relief under the PCRA. New counsel was appointed and he filed an amended PCRA petition. The amended petition raised a layered claim of counsel ineffectiveness, i.e., appellee alleged both that (1) VOP hearing counsel "failed and refused" to file a motion to modify sentence, and (2) VOP appeal counsel was ineffective for failing to claim that VOP hearing counsel was ineffective in defaulting sentencing issues. In an accompanying letter brief, appellee identified the defaulted sentencing errors available to VOP counsel as including that the sentence was excessive, the VOP court failed to state the reasons for the sentence, the court abused its discretion in failing to inquire into the reasons why appellee violated his probation, the court failed to order a pre-sentence investigation report and the court failed to consider appellee's ability to pay the fines and costs imposed.

The Commonwealth filed a motion to dismiss, which assumed the truth of appellee's averments for purposes of dismissal, but argued that appellee was not entitled to relief as a matter of law because he had failed to demonstrate that he was prejudiced by counsel's failure to seek modification of sentence. On August 22, 2003, Judge Means heard argument. Appellee argued a per se ineffectiveness theory at the hearing, a theory that was not set forth in his written pleadings, i.e., he claimed that VOP counsel's failure to file a motion for reconsideration was the equivalent of failing to file a direct appeal, and therefore, VOP counsel should be deemed ineffective per se, thus removing appellee's burden to prove the actual prejudice required by Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) and Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987). The Commonwealth responded that classifying VOP counsel's actions as implicating per se professional incompetence would be making new law. The PCRA court agreed that the failure to file a motion for reconsideration of sentence does not implicate per se ineffectiveness. Judge Means then dismissed the PCRA petition on the ground that appellee failed to prove actual prejudice resulting from VOP counsel's omission because, speaking as the actual VOP sentencing judge, he would not have altered the sentence had a motion for reconsideration been filed. N.T., 8/22/03, at 8-14.

Appellee then appealed to the Superior Court, which reversed the denial of PCRA relief, vacated the judgment of sentence, and remanded for resentencing. Commonwealth v. Reaves, 863 A.2d 1230, No. 3190 EDA 2003 (Pa.Super. 2004) (memorandum). The panel found that appellee's claim that VOP counsel should have objected to the VOP court's failure to state the reasons for the sentence imposed had arguable merit because Pa.R.Crim.P. 708 requires VOP courts to make such a record statement. Citing Commonwealth v. Coolbaugh, 770 A.2d 788, 793 (Pa.Super.2001) and Commonwealth v. Philipp, 709 A.2d 920, 922 (Pa.Super.1998), the panel noted that, although VOP sentencing courts do not need to state their reasons for departing from the Sentencing Guidelines because the Guidelines do not apply to VOP sentences, VOP courts are required to state the reasons for the overall sentence imposed.

The panel found that VOP counsel's inaction defaulted a "legitimate challenge to the discretionary aspects" of appellee's sentence. The court then summarily concluded that counsel's inaction lacked a reasonable basis because it limited appellee's options on appeal, and caused appellee prejudice because counsel "effectively waived [appellee's] right to challenge this issue on appeal." Accordingly, the panel found that appellee had "successfully established an ineffective assistance of counsel claim." Super. Ct. Op. at 4-5. In sustaining appellee's claim of ineffective assistance, the panel did not purport to depart from Strickland and Pierce, i.e., it did not indicate that it accepted appellee's claim of per se/presumed prejudice.

After finding VOP counsel ineffective, the panel turned to what it called "the merits" of the defaulted sentencing claim, quoted the VOP hearing transcript, found that the VOP court did not state the reasons for its sentence, and ultimately concluded that it therefore was "constrained" to vacate the judgment of sentence and remand for resentencing. The panel confined itself to the failure to raise an objection premised upon Rule 708; it did not address appellee's claim respecting other objections counsel could have made. Moreover, although the panel had recognized at the outset that appellee raised a layered claim of ineffective assistance, it failed to discuss the performance of appellee's VOP appeal counsel in failing to pursue the claim of VOP hearing counsel ineffectiveness on direct appeal, but instead granted relief premised upon its finding respecting VOP counsel alone.⁸

This Court then granted the Commonwealth's petition for further review. Commonwealth v. Reaves, 583 Pa. 670, 876 A.2d 394 (2005) (per curiam). The scope and standard of review applicable on PCRA appeal are settled:

As a general proposition, an appellate court reviews the PCRA court's findings to see if they are supported by the record and free from legal error. The court's scope of review is limited to the findings of the PCRA court and the evidence on the record of the PCRA court's hearing, viewed in the light most favorable to the prevailing party.

Commonwealth v. Duffey, 585 Pa. 493, 889 A.2d 56, 61 (2005) (citations omitted). In this case, however, our review focuses largely upon the Superior Court's identification and application of the proper legal principles. These are questions of law, as to which this Court's review is plenary. Moreover, with respect to claims of ineffective assistance of counsel, there may be both factual and legal elements at issue. Commonwealth v. Spotz, 582 Pa. 207, 870 A.2d 822, 830 (2005), cert. denied, ___ U.S. ___, 126 S.Ct. 564, 163 L.Ed.2d 474 (2005). The level of deference to the hearing judge may vary depending upon whether the decision involved matters of credibility or matters of applying the governing law to the facts as so determined. See generally Commonwealth v. Gorby, 589 Pa. 364, 909 A.2d 775, 792-94 (2006) (Cappy, C.J., joined by Newman, J., concurring); id. at 796 n. 2 (Castille, J., joined by Eakin, J., dissenting).

The Commonwealth argues that the Superior Court erred in granting sentencing relief on grounds of ineffective assistance of VOP counsel because appellee did not demonstrate that he suffered prejudice from counsel's failure to challenge the sentence before the VOP judge. Citing a line of decisions beginning with Commonwealth v. McGill, 574 Pa. 574, 832 A.2d 1014 (2003), the Commonwealth stresses that this is a circumstance where appellee was required to prove actual prejudice under the Strickland/Pierce ineffectiveness test as to both his VOP hearing counsel and VOP appeal counsel. The Commonwealth contends that appellee failed to prove that VOP hearing counsel's lapse prejudiced him,...