Commonwealth v. Grant, 2010 PA Super 45 (Pa. Super. Ct. 3/23/2010)

• Decision Date: 23 March 2010
• Docket Number: No. 643 WDA 2008.,643 WDA 2008.
• Citation: Commonwealth v. Grant, 2010 PA Super 45 (Pa. Super. Ct. 3/23/2010), 2010 PA Super 45, No. 643 WDA 2008. (Pa. Super. Ct. Mar 23, 2010)
• Parties: COMMONWEALTH OF PENNSYLVANIA, Appellee, v. LEABERT GEORGE GRANT, Appellant.
• Court: Pennsylvania Superior Court

Page 1

2010 PA Super 45

COMMONWEALTH OF PENNSYLVANIA, Appellee, v. LEABERT GEORGE GRANT, Appellant.

No. 643 WDA 2008.

Superior Court of Pennsylvania.

Filed: March 23, 2010.

Appeal from the PCRA Order dated April 4, 2008, Court of Common Pleas, Allegheny County, Criminal Division at No. CP-02-CR-0007258-2003.

Before: BOWES, DONOHUE and POPOVICH, JJ.

OPINION BY DONOHUE, J.:

¶ 1 Appellant Leabert George Grant ("Grant") appeals from the PCRA court's dismissal of his Amended Petition for Post Conviction Relief and Petition for Writ of Habeas Corpus. Grant contends that his constitutional rights were violated when the PCRA court refused to grant him a new trial after it was discovered that he was represented at trial by someone who was not licensed to practice law because of his repeated failure to fulfill mandatory continuing legal education requirements. For the reasons set forth herein, we conclude that Grant's rights to the assistance of counsel under the Sixth Amendment of the United States Constitution and Article I, Section 9 of the Pennsylvania Constitution were violated. Accordingly, we reverse the order of the PCRA court dated April 4, 2008, vacate the judgment of sentence dated August 16, 2004, and remand for a new trial.

¶ 2 On April 18, 2003, Grant was arrested and charged with one count each of rape, statutory sexual assault, indecent assault, and corruption of minors, and two counts of aggravated indecent assault of a child,¹ all in relation to an incident that occurred on January 18, 2003, while the victim was babysitting her cousin's four children and Grant's twin daughters. On July 10, 2003, he was formally arraigned, and on the same date William E. Papas ("Papas") entered his appearance as a privately retained attorney representing Grant. On March 24, 2004, Grant waived his right to a jury trial and was tried before the Honorable Kathleen A. Durkin of the Court of Common Pleas of Allegheny County. At trial, the Commonwealth presented testimony from the victim, her cousin, and her mother. The defense presented the testimony of Grant, his twin daughters, and his employer (as a character witness). Following trial, Grant was convicted of all charges.

¶ 3 Sentencing was scheduled for June 8, 2004, but Papas failed to appear. Sentencing was rescheduled for August 16, 2004, and on that date Judge Durkin made the following statement on the record:

Sentencing was originally scheduled for June 8, 2004, and a pre-sentence report was ordered. The attorney, Mr. Grant's at that time was William Pappas [sic]. He did not appear at that date. His whereabouts were unknown. After checking around with the Disciplinary Board, we discovered that Attorney Pappas [sic] was on inactive status for several years ... .

Notes of Testimony ("N.T."), 8/16/04, at 2-3. New privately-retained counsel appeared on behalf of Grant and moved the trial court for extraordinary relief — requesting a new trial on the basis of Papas' ineffectiveness for holding himself out as a lawyer at a time when he was not licensed to practice law in Pennsylvania. Id. at 3-4. Judge Durkin denied the motion and sentenced Grant on the rape conviction to a term of not less than five years or more than ten years of imprisonment. No further penalties were imposed for the remaining convictions.

¶ 4 Grant filed a direct appeal with this Court, raising two issues relating to the sufficiency of the evidence and two issues related to Papas' ineffective assistance of counsel. We denied as meritless his claims relating to the sufficiency of the evidence and deferred to the PCRA stage his ineffectiveness claims. With respect to the latter, we stated that "[Grant] can raise the claims of ineffectiveness presented herein and any other such claims in a PCRA petition, wherein the PCRA court will be in a position to ensure that [Grant] receives an evidentiary hearing on his claims, if necessary." Commonwealth v. Grant, 909 A.2d 871 (Pa. Super. 2006) (unpublished memorandum).

¶ 5 Grant then filed a timely pro se petition pursuant to the Post-Conviction Relief Act ("PCRA"), 42 Pa.C.S.A. §§ 9541-9546. Counsel was appointed and on October 24, 2007, an Amended Petition for Post-Conviction Collateral Relief and Petition for Writ of Habeas Corpus (the "PCRA Petition") was filed. The PCRA Petition sets forth in detail his claims of ineffective assistance of counsel by Papas, and has attached to it the affidavits of three witnesses who would testify at an evidentiary hearing. In addition, attached as exhibits A, C and D are two reports/recommendations of the Disciplinary Board of the Supreme Court of Pennsylvania and an order of disbarment. Based upon these documents, as well as the docket entries and transcripts in the record, the following timeline of Papas' misdeeds may be established for purposes of this appeal:

4/20/88: Papas is suspended from the practice of law for criminal convictions for the possession of cocaine, marijuana, and paraphernalia. (PCRA Petition, Exhibit A, p. 3).

8/23/89 Reinstatement granted. (PCRA Petition, Exhibit A, p. 3).

3/17/00: By Order of the Supreme Court of Pennsylvania dated March 17, 2000, with an effective date of April 18, 2000, served by certified letter, Papas is formally advised by the Pennsylvania Disciplinary Board that in order to resume active status he would have to comply with Continuing Legal Education ("CLE") requirements before a request for reinstatement to the Disciplinary Board would be considered. (PCRA Petition, Exhibit C, p. 4)

4/18/00: Papas is transferred to inactive status for failure to fulfill his CLE requirements or successfully apply for reinstatement, thus prohibiting him from practicing law until reinstated to active status. (PCRA Petition, Exhibit C, pp. 3-4) 6/18/01: Papas improperly represents a Mr. Koutsouflakis while on inactive status without informing his client of his inability to practice law. (PCRA Petition, Exhibit A, pp. 5-6)

11/1/01: Papas improperly represents a Mr. Wolfram while on inactive status without informing his client of his inability to practice law. (PCRA Petition, Exhibit A, pp. 7-8)

11/1/01: Papas improperly represents a Mr. Fischer while on inactive status, without informing his client of his inability to practice law. (PCRA Petition, Exhibit A, p. 8)

7/10/03 Papas enters his appearance on behalf of Grant.

11/14/03: Papas attends a disciplinary hearing before a hearing committee of the Disciplinary Board, at which time he is again informed by Disciplinary Counsel that he is to cease and desist from representing clients and from holding himself out as an attorney permitted to practice law. (PCRA Petition, Exhibit C, p. 5)

3/24/04: Papas represents Grant in his non-jury trial.

6/8/04: Papas fails to appear for Grant's sentencing hearing.

8/16/04: Judge Durkin denies Grant's motion for a new trial on the grounds of ineffective assistance of counsel.

3/4/05: The Disciplinary Board sends Papas four formal letters of inquiry comprising 13 separate instances of his continuing violation of the Rules of Professional Conduct and Rule of Disciplinary Enforcement by engaging in the unauthorized practice of law while on inactive status. (PCRA Petition, Exhibit C, pp. 5-6).

9/12/05: Papas is suspended by the Supreme Court of Pennsylvania for a period of two years as a result of his unlawful representation of Koutsouflakis, Wolfram and Fischer while on inactive status combined with other acts of client neglect and dishonest conduct. (PCRA Petition, Exhibit B, Per Curiam Order).

11/1/05: Papas is found to be in contempt by the Pennsylvania Supreme Court for his willful violation of the Supreme Court's Order of March 17, 2000, and his repeated and continuing practice of law while in violation of the Supreme Court's prohibition. (PCRA Petition, Exhibit C, p. 6).

11/21/06: Papas is disbarred by order of the Supreme Court of Pennsylvania. (PCRA Petition, Exhibit D, Per Curiam Order).

¶ 6 On March 13, 2008, the Commonwealth filed its response to Grant's PCRA Petition, and the next day (March 14, 2008) the PCRA court filed a notice of intent to dismiss without an evidentiary hearing pursuant to Pa.R.Crim.P. 907. On April 2, 2008, Grant filed a response to the Rule 907 notice, but the next day (April 3, 2008), the PCRA court dismissed Grant's PCRA Petition without an evidentiary hearing.

¶ 7 This timely appeal followed, in which Grant raises the following three issues for our consideration:

I. Whether [Grant] was improperly denied his constitutional rights to the assistance of counsel, due process and fair trial when he unwittingly was represented at trial by someone whose license to practice law had been revoked due to flagrant longterm refusal to attend mandatory continuing legal education.

II. Whether trial counsel was ineffective in failing to secure the services of a patois-creole interpreter for trial, given [Grant's] difficulty in reading and understanding colloquial American English.

III. Trial counsel was ineffective in coercing [Grant] into involuntarily waiving his right to jury trial by his obvious unpreparedness for jury trial and by improperly advising him shortly before commencement of jury selection that the jury panel was "all white" and that therefore it would convict him because of his race.

Appellant's Brief at 5.

¶ 8 Our standard of review for a decision of a PCRA court in dismissing a PCRA petition is well-settled: "In reviewing the propriety of [a] PCRA court's order, we are limited to determining whether the court's findings are supported by the record and whether the order in question is free of legal error." Commonwealth v. Geer, 936 A.2d 1075, 1077 (Pa. Super. 2007) (citing Commonwealth v. Halley, 582 Pa. 164, 170 n.2, 870 A.2d 795, 799 n.2 (2005)), appeal denied, 597 Pa. 703, 948 A.2d 803 (2008). "The PCRA court's findings will not be disturbed if there is any support for the findings in the certified record." Id. (citing Commonwealth v. Carr, 768 A.2d 1164,...