Commonwealth of Pa. v. Barnett

• Decision Date: 09 August 2011
• Citation: 25 A.3d 371,2011 PA Super 147
• Parties: COMMONWEALTH of Pennsylvania, Appelleev.Robert BARNETT, Appellant.
• Court: Pennsylvania Superior Court

25 A.3d 371

2011 PA Super 147

COMMONWEALTH of Pennsylvania, Appellee

v.Robert BARNETT, Appellant.

Superior Court of Pennsylvania.

Argued April 5, 2011.Filed July 20, 2011.Reargument Denied Aug. 9, 2011.

Michael J. Malloy, Media, for appellant.Andrea N. Johnson, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.BEFORE: STEVENS, P.J., BENDER, BOWES, PANELLA, DONOHUE, SHOGAN, MUNDY, OTT and FREEDBERG, JJ.OPINION BY DONOHUE, J.:

Robert Barnett (“Barnett”) brings this direct appeal nunc pro tunc from a judgment of sentence of life in prison entered on December 2, 2002, after a Philadelphia Court of Common Pleas jury found Barnett guilty of murder in the first degree ¹ on November 27, 2002. Barnett was also sentenced to consecutive terms of ten to 20 years of imprisonment for robbery ² and burglary,³ five to ten years for criminal conspiracy,⁴ and three and one-half to seven years for carrying a firearm without a license. ⁵

After his conviction, Barnett's trial counsel filed an appeal that was so badly briefed his claims were deemed waived by this Court on direct appeal. Subsequently, Barnett filed a PCRA ⁶ petition alleging ineffective assistance of counsel, including counsel's ineffectiveness in preparing the appellate brief. The PCRA court held a full evidentiary hearing during which Barnett and trial counsel testified. The PCRA court denied Barnett's petition. On appeal from the PCRA court's order, this Court did not address the merits of Barnett's ineffective assistance claims pertaining to counsel's effectiveness at trial, but rather reinstated Barnett's direct appeal rights. This nunc pro tunc appeal is filed by new counsel.

Although this is a nunc pro tunc direct appeal, each of Barnett's assertions of error is based on ineffective assistance of counsel. In other words, Barnett has abandoned his direct appeal issues. Barnett posits that his claims of ineffective assistance of counsel are properly before us under Commonwealth v. Bomar, 573 Pa. 426, 463, 826 A.2d 831, 853 (2003). As discussed in more detail later in this Opinion, we conclude the Supreme Court has limited the applicability of Bomar, and that Barnett's assertions of ineffective assistance are appropriately raised only on collateral review. This procedure ensures that Barnett will have a single opportunity for collateral review as mandated by the Supreme Court. Accordingly, we dismiss Barnett's claims of ineffective assistance of counsel without prejudice to raise them on collateral review,⁷ and affirm the judgment of sentence.

In Commonwealth v. Grant, 572 Pa. 48, 813 A.2d 726 (2002), our Supreme Court held that claims of ineffective assistance of counsel should ordinarily be reserved for collateral review. The Grant Court abrogated the rule of Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687 (1977), which required a newly-appointed attorney to raise ineffective assistance of prior counsel at the earliest opportunity, including on direct appellate review.⁸ Subsequent to Grant, in Bomar, the Supreme Court allowed ineffective assistance claims to be litigated on direct appeal because the defendant in that case raised them before the trial court and the trial court conducted a hearing to determine their merits. Bomar, 573 Pa. at 463, 826 A.2d at 853. Bomar involved ineffectiveness claims that were raised prior to the Supreme Court's ruling in Grant. In subsequent cases, without distinguishing between a pre- and post- Grant procedural posture, the Supreme Court relied on Bomar as authority for reviewing ineffective assistance of counsel claims on direct appeal so long as the claims were raised in the trial court and subject to a hearing. See, e.g., Commonwealth v. Cooper, 596 Pa. 119, 140 n. 3, 941 A.2d 655, 668 n. 3 (2007) (post- Grant record); Commonwealth v. Chmiel, 585 Pa. 547, 613, 889 A.2d 501, 540 (2005) (pre- Grant record), cert. denied, 549 U.S. 848, 127 S.Ct. 101, 166 L.Ed.2d 82 (2006); Commonwealth v. Singley, 582 Pa. 5, 20 n. 8, 868 A.2d 403, 411 n. 8 (2005) (pre- Grant record), cert. denied, 546 U.S. 1021, 126 S.Ct. 663, 163 L.Ed.2d 536 (2005).

In Commonwealth v. Rega, 593 Pa. 659, 933 A.2d 997 (2007), cert. denied, 552 U.S. 1316, 128 S.Ct. 1879, 170 L.Ed.2d 755 (2008), the Supreme Court majority once again reviewed ineffective assistance of counsel claims on direct appeal pursuant to Bomar. Id. at 695–96, 933 A.2d at 1018. Three of the six participating justices in Rega, however, expressed reservations as to the continued viability of Bomar. In a concurring opinion, Chief Justice Cappy wrote: “My fear is that continued employment of the ‘ Bomar ’ exception will eventually swallow the rule we announced in Grant governing the presentation of effectiveness claims.” Id. at 714, 933 A.2d at 1028 (Cappy, C.J., concurring). In another concurring opinion, then-Justice, now Chief Justice Castille, joined by Justice Saylor, wrote that “[a]s matters now stand, it is within the unconstrained discretion of the trial judge whether a defendant will get one or two bites at the collateral review apple. Furthermore, there is no statutory authorization for the redundant, of-right collateral attacks that result from hybrid direct appeal review.” Id. at 716, 933 A.2d at 1030 (Castille, J., concurring).

The issue of the continued viability of Bomar arose again in Commonwealth v. Wright, 599 Pa. 270, 961 A.2d 119 (2008). In Wright, the Supreme Court, with four justices participating, reviewed ineffective assistance claims on direct appeal pursuant to Bomar, but Justice Eakin, writing for the Court, specified in a footnote that “[p]rolix collateral claims should not be reviewed on post-verdict motions unless the defendant waives his right to PCRA review because the PCRA does not afford the right to two collateral attacks.” Id. at 320 n. 22, 961 A.2d at 148 n. 22. Chief Justice Castille joined Justice Eakin's opinion, and Justice Saylor joined it in relevant part. Id. at 337, 961 A.2d at 158. Three out of the four participating justices ⁹ therefore joined in footnote 22. We observe that an opinion has a binding effect whenever a majority of participating justices join. Commonwealth v. Mason, 456 Pa. 602, 604, 322 A.2d 357, 358 (1974); Commonwealth v. Derby, 451 Pa.Super. 100, 678 A.2d 784, 788 n. 3 (1996); In re C.K., 369 Pa.Super. 445, 535 A.2d 634, 637 n. 2 (1987). Thus, based on the Supreme Court majority in Wright in 2008, collateral claims in post-trial motions were no longer proper.

Subsequently, in Commonwealth v. Liston, 602 Pa. 10, 28, 977 A.2d 1089, 1100 (2009), the Supreme Court overruled this Court's en banc opinion in which we concluded that a PCRA court's order reinstating direct appeal rights must also reinstate the right to file post-sentence motions so that a defendant can raise ineffective assistance of counsel claims and have them reviewed on direct appeal.¹⁰ Justice Greenspan, writing for the Court, stated that the Superior Court's decision in Liston was “capable of undermining the very purpose and policy underlying Grant.” Id. at 18, 977 A.2d at 1094. Further, Justice Greenspan wrote:

A defendant who is granted an opportunity to file post-sentence motions because his attorney failed to file a requested appeal maintains the right to seek post-conviction relief under the PCRA after his direct appeal is finally determined. This is an opportunity that most, if not all, defendants will likely take. Thus, the Superior Court's decision grants some defendants an additional automatic opportunity to attack their convictions based on claims of ineffective assistance of counsel, a recourse not available to all defendants.Id. at 18–19, 977 A.2d at 1094. The Supreme Court therefore vacated our order remanding for a reinstatement of the appellant's right to file post-sentence motions, affirmed the judgment of sentence, and deferred the appellant's ineffective assistance of counsel claims to collateral review. Id. at 19–20, 977 A.2d at 1094–95.

Liston was decided by a five-member Court. Chief Justice Castille authored a concurring opinion in Liston expounding on footnote 22 of Wright. He stated: “I would explicitly limit Bomar to Hubbard-era cases and make clear that there is no ‘ Bomar ’ exception to Grant.” Chief Justice Castille further wrote that “I would permit hybrid review only when the request for such review is accompanied by an express, knowing and voluntary waiver of further PCRA review.” Id. at 22, 977 A.2d at 1096 (Castille, C.J., concurring). Four of the five participating justices in Liston expressly disapproved of providing defendants multiple opportunities for collateral review. Justices Saylor and Eakin joined Chief Justice Castille's concurring opinion, giving Chief Justice Castille a three-justice majority in support of his limitation of Bomar.¹¹ We note, also, that Chief Justice Castille's concurring opinion rejected the notion that footnote 22 of Wright was dicta.¹² Id. at 28 n. 10, 977 A.2d at 1099 n. 10.

Thus, on two occasions a majority of the participating Supreme Court justices have agreed that an appellant cannot raise collateral claims on direct appeal without waiving the right to subsequent collateral review. More recently, in Commonwealth v. Montalvo, 604 Pa. 386, 986 A.2d 84 (2009), the Supreme Court agreed to hear ineffective assistance of counsel claims on direct appeal where the record pertaining to those claims was developed prior to the decision in Grant. Id. at 398 n. 5, 986 A.2d at 91 n. 5. In a concurring opinion in Montalvo, Chief Justice Castille wrote: “As I made clear in my recent concurrence in [ Liston ]—and in this regard I spoke for a majority of the Liston Court—going forward, the lower courts should not indulge hybrid review by invoking Bomar.” Id. at 432, 986 A.2d at 111 (Castille, C.J., concurring) (emphasis added).¹³

As we noted above, all of Barnett's arguments in this nunc pro tunc direct appeal raise claims of ineffective assistance of counsel. The...