Commonwealth of Pa. v. Jette

• Decision Date: 22 June 2011
• Parties: COMMONWEALTH of Pennsylvania, Appellantv.Jules JETTE, Appellee.
• Court: Pennsylvania Supreme Court

23 A.3d 1032

COMMONWEALTH of Pennsylvania, Appellant

v.Jules JETTE, Appellee.

Supreme Court of Pennsylvania.

Submitted Jan. 15, 2010.Decided June 22, 2011.

Hugh J. Burns Jr., Philadelphia District Attorney's Office, Philadelphia, for Commonwealth of Pennsylvania.Teri B. Himebaugh, Schwenksville, for Jules Jette.BEFORE: CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, ORIE MELVIN JJ.

OPINION

Justice ORIE MELVIN.

This is an appeal from an order of the Superior Court, which vacated the order of the PCRA ¹ court and granted Appellee's motion for remand to appoint new counsel. We granted review to examine whether the Superior Court erred in requiring court-appointed PCRA counsel to file a petition for remand to address claims asserted in a pro se petition for remand that challenged counsel's representation on appeal. For the reasons that follow, we vacate the order of the Superior Court entered on December 11, 2008, and remand to that court for proceedings consistent with this opinion.

On October 1, 2001, following a bench trial, Appellee was found guilty of involuntary deviate sexual intercourse, endangering the welfare of a child, and corruption of minors for repeated sexual assaults against an eight-year-old boy. Appellee was sentenced to a term of imprisonment of ten to twenty years, with consecutive terms of probation of seven and five years. On direct appeal, Appellee, who was represented by new counsel, challenged the sufficiency of the evidence and trial counsel's effectiveness in failing to move to dismiss the charges due to pre-arrest delay. The Superior Court affirmed in a published opinion filed on February 24, 2003, and this Court denied allocatur on September 3, 2003. Commonwealth v. Jette, 818 A.2d 533 (Pa.Super.2003), appeal denied, 574 Pa. 771, 833 A.2d 141 (2003).²

On October 20, 2003 and April 27, 2004, Appellee filed timely pro se PCRA petitions. Counsel was appointed, who subsequently filed a no-merit letter pursuant to Commonwealth v. Finley, 379 Pa.Super. 390, 550 A.2d 213 (1988) ( en banc ) (establishing, along with Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1988), the procedure for withdrawal of court-appointed counsel in collateral attacks on criminal convictions). Appellee responded by filing lengthy objections to counsel's no-merit letter on March 24, 2005 and April 18, 2005. Consequently, counsel abandoned his attempt to withdraw and filed an amended petition on Appellee's behalf asserting a claim that trial counsel was ineffective for failing to communicate a plea offer to Appellee. See Original Record D–15, Amended Petition, 5/26/05, at 2. After further communication with Appellee, on October 20, 2005, counsel filed a supplemental amended petition asserting four additional claims of trial counsel's ineffectiveness.³ The PCRA court held an evidentiary hearing, during which evidence was taken regarding trial counsel's conduct. On September 28, 2006, the PCRA court dismissed Appellee's PCRA petition finding no merit to any of the ineffectiveness claims raised.

Appellee filed an appeal with the Superior Court, and counsel filed a brief on Appellee's behalf asserting that the PCRA court erred in failing to find that trial counsel was ineffective for failing to object to the admission of the victim's “My Life” testimony. Counsel chose not to pursue the other four issues presented to the PCRA court and addressed in its opinion. Appellee then filed a pro se petition for remand raising PCRA counsel's ineffectiveness for not pursuing all of the issues Appellee wished to have reviewed on appeal. The Superior Court denied the pro se petition but directed counsel to file a petition for remand responding to Appellee's ineffectiveness claims pursuant to the procedure outlined in Commonwealth v. Lawrence, 408 Pa.Super. 9, 596 A.2d 165 (1991) and Commonwealth v. Battle, 879 A.2d 266 (Pa.Super.2005) ( “ Battle procedure”). Counsel subsequently complied by filing a motion to remand for the appointment of new counsel. In a published opinion, the Superior Court directed counsel to “prepare a proper and thorough petition for remand” and “to include in the certified record all of the PCRA petitions filed in this case.” Commonwealth v. Jette, 947 A.2d 202, 206 (Pa.Super.2008). After counsel complied with these directives, the Superior Court followed its Battle procedure and reviewed counsel's analysis of Appellee's claims of trial counsel's alleged ineffectiveness to determine “whether [PCRA] counsel properly found these claims to be frivolous.” Commonwealth v. Jette, No. 2834 EDA 2006, unpublished memorandum, ¶ 5 at 3–4, 965 A.2d 296 (Pa.Super. filed December 11, 2008). Ultimately, the Superior Court found that Appellee was entitled to appointment of new counsel and remanded the case to the PCRA court. The Superior Court further directed that:

[n]ewly appointed counsel should examine [Appellee's] original PCRA petition, consult with [Appellee] to determine the claims he wishes to raise, and investigate and consider the claims we have determined may have arguable merit ..., namely, the last page of the “My Life” document, the possibility that “My Life” was typed on a computer rather than a typewriter, the items listed in the original PCRA petition that [Appellee] wished counsel to pursue, and [Appellee's] allocution issue. Newly appointed counsel should also re-examine the sole issue current counsel raised on appeal and prepare a new, amended PCRA petition raising those claims counsel considers meritorious after a thorough investigation.

Id., Mem Op. ¶ 17 at 11. This Court's grant of the Commonwealth's petition for allowance of appeal followed.⁴

The Commonwealth argues that the Superior Court's Battle procedure should be abolished because it requires counsel to “litigate against his client in a contest to be decided by the appellate court, in an effort to establish that the claims preferred by the client are frivolous.” Commonwealth's brief at 9. Furthermore, the Commonwealth contends that the procedure impinges upon counsel's exercise of his professional judgment and “demands inferior appellate advocacy” by requiring counsel to “raise all the non-frivolous issues proposed by the defendant or be removed from the case by the Superior Court.” Id.

The Commonwealth further asserts that the Superior Court's Battle procedure contravenes this Court's holding in Commonwealth v. Ellis, 534 Pa. 176, 626 A.2d 1137 (1993) (“ Ellis II ”), where we held, as a matter of constitutional law and under our supervisory authority, that “there is no right to hybrid representation either at trial or on appeal.” Commonwealth's brief at 12. The Commonwealth maintains that in precluding hybrid representation, this Court made clear that a represented defendant on appeal has only two options: “(1) waive counsel and proceed pro se; or (2) proceed with appellate counsel and, if warranted, raise appellate counsel's supposed ineffectiveness at a later date. But ‘the [one] thing he may not do’ is raise his own appellate claims while still represented by counsel.” Id. at 13 (quoting Ellis II, 626 A.2d at 1141). The Commonwealth posits that the Superior Court's subsequent decision in Battle misinterpreted the scope of the holding in Ellis II as offering support for the proposition that whenever a defendant alleges ineffectiveness of appellate counsel on appeal, said counsel is required to petition the appellate court for remand. The Commonwealth submits that Ellis II did not involve claims of appellate counsel's ineffectiveness, as the grant of review was limited to the question of hybrid representation. Significantly, the Commonwealth notes that the Superior Court's misinterpretation is highlighted by this Court's explanation that once appellate counsel has filed a brief, an appellant's right to petition to waive counsel and proceed pro se is prohibited. See Commonwealth v. Rogers, 537 Pa. 581, 645 A.2d 223 (1994) (applying Ellis II and rejecting argument that once a “ pro se brief was filed ..., appellate counsel should have petitioned for a remand to determine whether the waiver was a knowing and voluntary one.”). Moreover, this Court's preclusion of hybrid representation in Ellis II was extended to collateral review in the trial court by our decision in Commonwealth v. Pursell, 555 Pa. 233, 724 A.2d 293 (1999), wherein we held that “courts considering PCRA petitions [will not be required] to struggle through the pro se filings of defendants when qualified counsel represent those defendants.” Id. at 302.

In response, Appellee asserts that the Superior Court's decision should be affirmed because it was “entirely consistent with case precedent.” Appellee's Brief at 6. Appellee argues that the Superior Court's Battle procedure “expressly prevents [hybrid representation] from occurring while still ensuring the petitioner's constitutional rights” by requiring counsel's analysis of any pro se filings and only permitting the court to consider the pro se filing for the limited purpose of identifying those claims the petitioner desired to have raised. Id. at 8. Further, Appellee contends that the Commonwealth's reliance on Ellis II is misplaced, as it is factually distinguishable. Appellee submits that Ellis II involved a direct appeal, and, thus, Ellis “still had procedures available to him to raise claims of ineffective assistance of counsel.” Id. at 9. Unlike Ellis, Appellee asserts that he “must raise all claims of ineffective assistance of counsel at this stage ... or forever waive those claims.” Id. Appellee also takes issue with the Commonwealth's assertion that the Battle procedure requires counsel to raise all non-frivolous issues proposed by the defendant or be removed from the case. Rather, Appellee maintains that the Battle procedure simply requires counsel to be able to “articulate a reasonable legal basis for not including the claim(s).” Id. at 11.

The issue in this case presents a question of...