Commonwealth v. Allen

• Decision Date: 12 July 2012
• Citation: 48 A.3d 1283,2012 PA Super 144
• Parties: COMMONWEALTH of Pennsylvania, Appellee v. Thomas Ray ALLEN, Appellant.
• Court: Pennsylvania Superior Court

48 A.3d 1283

2012 PA Super 144

COMMONWEALTH of Pennsylvania, Appellee

v.Thomas Ray ALLEN, Appellant.

Superior Court of Pennsylvania.

Submitted June 11, 2012.

Filed July 12, 2012.

Matthew P. Gieg, Altoona, for appellant.

Gregory J. Simatic, Assistant District Attorney, Pittsburgh, for Commonwealth, appellee.

BEFORE: SHOGAN, J., LAZARUS, J., and PLATT, J.^*

OPINION BY PLATT, J.

Appellant, Thomas Ray Allen, appeals nunc pro tunc from the order denying his first petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541–9546. Specifically, Appellant argues that he was denied effective assistance of trial counsel per se for counsel's failure to adhere to the technical requirements for admission pro hac vice and due to counsel's suspension from the practice of law after he completed his representation of Appellant. We affirm.

The relevant facts follow: On May 2, 2007, trial counsel filed a notice of appearance and a motion for pro hac vice admission on his own behalf, which the court granted. At that time, and throughout his representation of Appellant, counsel was properly licensed in Ohio. In June, 2007, the Columbus Bar Association filed a complaint against trial counsel “alleging numerous disciplinary rule violations.” (PCRA Court Opinion, 1/14/11, at 10 (quoting Columbus Bar Ass'n v. Ellis, 120 Ohio St.3d 89, 896 N.E.2d 703, 704 (2008))). Trial counsel did not disclose the allegations to either the trial court or Appellant at any time.

On June 8, 2007, a jury convicted Appellant of three counts of possession with intent to deliver, one count of criminal conspiracy, two counts of use of a communication facility,¹ and one count of dealing in proceeds of unlawful activity. On August 17, 2007, the court sentenced Appellant to an aggregate term of incarceration of no less than nineteen nor more than thirty-eight years' incarceration in a state correctional institution, plus fines.

On September 11, 2007,² Appellant filed a pro se notice of appeal, and a motion to dismiss counsel and to proceed in forma pauperis. Trial counsel also filed a timely notice of appeal and a motion to withdraw on September 17, 2007. On September 24, 2007, the court granted trial counsel's motion to withdraw and Appellant's pro se motion to proceed in forma pauperis. By the same order, the court appointed the Blair County Public Defender'sOffice as direct appeal counsel, and ordered it to file a Rule 1925(b) statement. On September 27, 2007, in response to correspondence received from the Public Defender's Office, the court vacated its September 24th order. (Order, 9/27/07). The September 27th order granted Appellant's request to proceed in forma pauperis and directed trial counsel to “remain as counsel of record[,] perfect the direct appeal filed on behalf of [Appellant, and] file a Statement of Matters Complain[ed] of on Appeal.” ( Id.). On November 21, 2007, after counsel failed to file a Rule 1925(b) statement within the requisite time frame, the court appointed new direct appeal counsel and reinstated Appellant's direct appeal rights.

On October 16, 2008, the Ohio Supreme Court temporarily suspended trial counsel from the practice of law and, upon joint recommendation of the parties, ordered that “reinstatement be contingent upon his ... provision of medical evidence that [he] can ethically and competently practice law.” Ellis, supra at 705.

On May 4, 2009, this Court affirmed Appellant's judgment of sentence. ( See Commonwealth v. Allen, 976 A.2d 1197 (Pa.Super.2009) (unpublished memorandum)). Our Supreme Court denied Appellant's petition for allowance of appeal on February 23, 2010. ( See Commonwealth v. Allen, 605 Pa. 678, 989 A.2d 914 (2010)).

Appellant filed a pro se first PCRA petition on March 25, 2010 ³ and the court appointed counsel. On January 14, 2011, after a hearing, the court denied Appellant's petition. On January 3, 2012, the court reinstated Appellant's right to appeal the court's January 14, 2011 order nunc pro tunc. Appellant filed the instant timely appeal.⁴

Appellant raises one issue for our review:

I. Whether [Appellant] was per se prejudiced by his trial counsel's failure to comply with Pennsylvania pro hac vice bar admission procedures; and trial counsel's failure to disclose to [Appellant] and/or the trial court that a 19–count ethics compliant had been filed against trial counsel by the Supreme Court of Ohio, which eventuated in trial counsel's suspension from the practice of law?

(Appellant's Brief, at 4).

Our standard of review of an appeal from a denial of a PCRA petition is well-settled.

The standard of review for an order denying post-conviction relief is limited to whether the record supports the PCRA court's determination, and whether that decision is free of legal error. The PCRA court's findings will not be disturbed unless there is no support for the findings in the certified record.

Commonwealth v. Taylor, 933 A.2d 1035, 1040 (Pa.Super.2007), appeal denied,597 Pa. 715, 951 A.2d 1163 (2008) (citations omitted).

Generally, this Court follows the Pierce⁵ test adopted by our Supreme Court to review an appellant's claim of ineffective assistance of counsel:

[T]he petitioner must show: (1) that his claim of counsel's ineffectiveness has merit; (2) that counsel had no reasonable strategic basis for his action or inaction; and (3) that the error of counsel prejudiced the petitioner— i.e., that there is a reasonable probability that, but for the error of counsel, the outcome of the proceeding would have been different. We presume that counsel is effective, and it is the burden of Appellant to show otherwise.

Commonwealth v. duPont, 860 A.2d 525, 531 (Pa.Super.2004), appeal denied, 585 Pa. 695, 889 A.2d 87 (2005), cert. denied sub nom. duPont v. Pennsylvania, 547 U.S. 1129, 126 S.Ct. 2029, 164 L.Ed.2d 782 (2006) (case citations omitted).

However, in some cases, the petitioner need not establish actual prejudice because there are situations “that are so likely to prejudice the accused that the cost of litigating their effect in a particular case is unjustified.” U.S. v. Cronic, 466 U.S. 648, 658, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984) (footnote omitted).

[W]here there has been a complete denial of counsel or where the circumstances are such that any competent attorney would be unable to provide effective assistance, a defendant need not demonstrate that he was prejudiced by counsel's actions. The presumed prejudice exception to Strickland [ ⁶] has been found to apply where there was an actual or constructive denial of counsel, the state interfered with counsel's assistance, or counsel had an actual conflict of interest.

Commonwealth v. Reaves, 592 Pa. 134, 923 A.2d 1119, 1128 (2007) (citing Cronic, supra at 659–62, 104 S.Ct. 2039) (citations omitted).

Here, Appellant argues that:

trial counsel's failure to comply with the “technical” requirement of Rule 301 of the Pennsylvania Bar Admission Rules[ ⁷] ..., combined with trial counsel's subsequent failure to notify the [trial court] of the complaint [filed against him in Ohio], as well as trial counsel's subsequent suspension from the practice of law for actions which pre-dated his representation of Appellant, removes the instant matter from the “technical/substantive” paradigm described in Grant [ ⁸].

(Appellant's Brief, at 11–12 (emphasis omitted)).

Preliminarily, we note that, although Appellant provides boilerplate law regarding ineffectiveness of counsel and the presumption of prejudice, he fails to provide any pertinent cases in which a Pennsylvania Court applied these general legal principles to facts similar to those presented herein and found that counsel had been ineffective per se.⁹ ( See Appellant'sBrief, at 9–15). However, although Appellant's issue could be waived on that basis, we decline to do so, and conclude that Appellant's claim lacks merit. SeePa.R.A.P. 2101; 2119(a)-(c).

Courts have consistently distinguished between technical licensing defects and serious violations of bar regulations reflecting an incompetence to practice law. Where the attorney's license has been suspended or his/her credentials to practice have otherwise been impaired as a result of mere technical defects, the constitutional right to counsel is not violated and prejudice is not presumed. Where the attorney's license has been suspended or he/she has been disbarred for substantive violations, constitutional rights are violated and harm is presumed.

Grant, supra at 159 (citations omitted).

Our review of the caselaw reveals no pertinent controlling authority in Pennsylvania; however, we observe that courts consistently have concluded that neither a counsel's suspension nor his violation of pro hac vice admission rules requires a per se finding of ineffectiveness, and therefore, a petitioner still must show actual prejudice.¹⁰See, e.g., Young v. Runnels, 435 F.3d 1038, 1043 (9th Cir.2006), cert. denied,549 U.S. 1033, 127 S.Ct. 579, 166 L.Ed.2d 433 (2006) (state bar court's subsequent finding of unfitness did not render counsel's earlier assistance in defendant's case per se ineffective); Vance v. Lehman, 64 F.3d 119, 122–23 (3d Cir.1995), cert. denied sub nom Vance v. Horn, 516 U.S. 1060, 116 S.Ct. 736, 133 L.Ed.2d 686 (1996) (counsel's disbarment after trial due to prior professional misconduct not per se denial of effective assistance); U.S. v. Hoffman, 733 F.2d 596, 599–601 (9th Cir.1984), cert. denied,469 U.S. 1039, 105 S.Ct. 521, 83 L.Ed.2d 409 (1984) (rejecting per se rule of ineffectiveness where Florida attorney was disbarred in his home state while in trial in Arizona and his Arizona license was suspended automatically as a result of the Florida discipline; petitioner still required to identify actual and prejudicial errors by counsel); People v. Kieser, 79 N.Y.2d 936, 582 N.Y.S.2d 988, 591 N.E.2d 1174, 1175 (1992) (finding that New Jersey attorney's temporary suspension and her failure to be admitted pro hac vice in New...