Commonwealth v. Eller

• Decision Date: 25 September 2002
• Citation: Commonwealth v. Eller, 807 A.2d 838, 569 Pa. 622, 2002 WL 31118999 (Pa. 2002)
• Parties: COMMONWEALTH of Pennsylvania, Appellee v. Brian Charles ELLER, Appellant.
• Court: Pennsylvania Supreme Court

807 A.2d 838

569 Pa. 622

COMMONWEALTH of Pennsylvania, Appellee v. Brian Charles ELLER, Appellant.

Supreme Court of Pennsylvania.

Argued September 11, 2001.

Decided September 25, 2002.

David Joshua Rhodes, Erie, for appellant, Brian Charles Eller.

Hugh J. Burns, Philadelphia, Bradley Henry Foulk, Erie, for appellee, Com. of PA.

Before FLAHERTY, C.J., and ZAPPALA, CAPPY, CASTILLE, NIGRO, NEWMAN and SAYLOR, JJ.

OPINION

Justice CASTILLE.

The issue on this appeal is whether the Superior Court erred in applying Commonwealth v. Lantzy, 558 Pa. 214, 736 A.2d 564 (1999), a decision in which this Court unanimously held that the Post Conviction Relief Act (PCRA), 42 Pa.C.S. § 9541 et seq., "provides the exclusive remedy for post-conviction claims seeking restoration of appellate rights due to counsel's failure to perfect a direct appeal," id. at 569-70, in a situation where appellant forwarded just such a claim, outside the framework of the PCRA and after the PCRA filing deadline expired, but before the decision in Lantzy was filed. Appellant argues that Lantzy established a new rule of procedure that cannot be applied "retroactively" to a case such as his and, thus, he is entitled to pursue an extra-PCRA remedy. For the reasons that follow, we hold that the Superior Court properly applied both the provisions of the PCRA and Lantzy, a decision which followed those provisions, in holding that appellant was not entitled to pursue reinstatement of his appellate rights nunc pro tunc outside the PCRA. Accordingly, we affirm.

The widowed victim in this case, who suffers from multiple sclerosis, knew appellant from his frequent work-related visits to her Erie County home to service certain medical equipment that she relied upon. Appellant, correspondingly, knew that the victim was physically disabled. On September 6, 1995, the victim admitted appellant into her home to service the medical equipment, but appellant, once inside, raped the victim, whose physical condition rendered her helpless to physically resist the assault.

On January 18, 1996, appellant was charged with rape, indecent assault, and unlawful restraint. On May 5, 1997, appellant, in the face of the victim's accusation as well as collected DNA evidence, entered a negotiated plea of nolo contendere to the rape charge. In exchange for the plea, the Commonwealth agreed to nolle prosse the additional charges. There was no agreement as to sentencing. Appellant did not move to withdraw his plea prior to sentencing.

On June 11, 1997, appellant was sentenced to a six-to-twelve-year term of incarceration and a consecutive eight-year probationary term. The term of incarceration, though significantly less than the ten-to-twenty year statutory maximum, fell above the standard range of the sentencing guidelines. The trial court noted that an aggravated range guidelines sentence was warranted because appellant had selected a particularly vulnerable disabled victim and had violated a position of trust by raping her. At the time of sentencing appellant was advised of his post-sentencing rights, including his right to file post-sentencing motions, his right to appeal, and his continuing right to counsel. Appellant also signed a document which explained his post-sentencing rights, specifically acknowledging that he understood them. Appellant did not seek to withdraw his plea or to have his sentence reconsidered, nor did he file a direct appeal and thus, by operation of law, his sentence became final thirty days after its imposition, on July 11, 1997. See 42 Pa.C.S. § 9545(b)(3) ("a judgment becomes final at the conclusion of direct review ... or at the expiration of time for seeking the review").

The next docket activity occurred on April 7, 1998, when appellant filed a motion for transcripts and a motion "to grant credit for time on bond as custody time." The trial court denied both motions on April 22, 1998. On June 17, 1998, appellant filed a pro se motion for leave to have his counsel withdrawn, which the trial court granted on June 22, 1998. On July 13, 1998, appellant filed a pro se motion to require the filing of an Anders¹ brief by appellate counsel. The trial court denied this motion, noting that appellant had already had counsel removed and, thus, he had no appellate counsel. Appellant moved for reconsideration, which was denied.

On August 6, 1998, appellant filed a pro se motion to appeal nunc pro tunc in the Superior Court. The court denied the motion on August 24, 1998. Also on August 24, appellant filed a motion to appeal nunc pro tunc in the trial court, which the trial court denied the same day. Appellant filed a motion for reconsideration in the trial court on September 10, 1998, which was denied, and a motion for reconsideration in the Superior Court. The Superior Court treated the reconsideration motion as a timely notice of appeal from the trial court's denial of nunc pro tunc relief and set a briefing schedule. The trial court subsequently filed an opinion, explaining that it denied the request for nunc pro tunc relief because the PCRA governed any such application.

On appeal, appellant argued that he was entitled to reinstatement of his direct appellate rights nunc pro tunc because his plea lawyer allegedly refused to file a direct appeal despite appellant's request that he do so. On September 1, 1999, a divided Superior Court panel affirmed the denial of nunc pro tunc relief. The panel majority's memorandum opinion held that it did not need to address the nunc pro tunc appeal claim on the merits because appellant had failed to file a PCRA petition within the one-year time limitation after his judgment became final, as is required under that Act, and he therefore was time-barred from pursuing PCRA relief. See 42 Pa.C.S. § 9545(b). Citing our then-recent decision in Commonwealth v. Lantzy, 558 Pa. 214, 736 A.2d 564 (1999), which was filed on July 7, 1999, the panel majority noted that the PCRA is "the exclusive remedy for post-conviction claims seeking restoration of appellate rights after counsel's failure to perfect a direct appeal." Superior Court slip op. at 3. Since there was no avenue by which appellant could pursue his time-barred claim, the panel affirmed the order below. Judge Schiller dissented without opinion.

After the ruling in this case, however, subsequent published decisions of the Superior Court, sitting en banc, held that our decision in Lantzy does not apply "retroactively" to cases in which the extra-PCRA request for a nunc pro tunc appeal, premised upon counsel's failure to file a requested appeal, was made prior to Lantzy being filed. See Commonwealth v. Hitchcock, 749 A.2d 935 (Pa.Super.2000) (en banc); Commonwealth v. Garcia, 749 A.2d 928 (Pa.Super.2000) (en banc) (petition for allowance of appeal pending). We granted review to examine whether appellant, who was denied nunc pro tunc relief on an argument concerning the effect of Lantzy that was later accepted by the Superior Court en banc, is entitled to relief on grounds that Lantzy established a new procedural rule that cannot be retroactively applied to him. The matter has been ably briefed and argued, including argument on the validity of the retroactivity analysis that powered the decisions in Garcia and Hitchcock.²

Echoing the argument accepted by the Superior Court en banc in Garcia and Hitchcock, appellant contends that Lantzy's holding that requests for reinstatement of appellate rights premised upon counsel ineffectiveness must proceed under the PCRA cannot apply to him because Lantzy was not decided until after he had already requested, and been denied, nunc pro tunc relief in the trial court. Prior to this Court's decision in Lantzy, appellant notes, the Superior Court had held that restoration of appellate rights nunc pro tunc outside the framework of the PCRA was available on claims such as his.³ Appellant contends that Lantzy was merely intended to "clarify the procedure" by which a defendant may challenge trial counsel's stewardship in failing to appeal. Appellant does not dispute that the authoritative decision in Lantzy has now supplanted the Superior Court's contrary line of authority. He claims, however, that Lantzy announced a "new" judicial rule "of a procedural nature," which "marked a departure from Superior Court precedent," precedent which he had properly relied upon in seeking nunc pro tunc relief outside the PCRA. Appellant argues that such a new rule should have prospective effect only. Finally, appellant notes that, since his case is "nearly indistinguishable" from Garcia and Hitchcock, he is entitled to the same relief that the Superior Court afforded those post-conviction litigants.⁴

The Commonwealth responds that the Superior Court correctly held that in an instance such as this, the sole and exclusive avenue for post-conviction collateral review and relief in Pennsylvania is the PCRA and, thus, the trial court had no power to fashion the extra-PCRA, nunc pro tunc relief appellant requested. The Commonwealth argues that Lantzy merely interpreted the existing requirements of the PCRA, which plainly states that it is the exclusive means for obtaining post-conviction review. Lantzy thus did not break with previous judicial authority, but reaffirmed a plain meaning interpretation of the PCRA that was recognized in Commonwealth v. Ahlborn, 548 Pa. 544, 699 A.2d 718 (1997) —which was decided well before the nunc pro tunc request appellant made in the case sub judice. The Commonwealth argues that, since the Lantzy "rule" was neither new nor a judicial rule of procedure, applying it here poses no legitimate question of retroactivity. In the Commonwealth's view, Garcia, Hitchcock and similar cases are simply wrong to the extent they perceive a question of retroactivity. Because all post-conviction remedies are subsumed within the PCRA for claims that may be raised under the PCRA, the Commonwealth reasons, the question of whether relief for...