Commonwealth v. Holmes
Citation | 79 A.3d 562 |
Parties | COMMONWEALTH of Pennsylvania, Appellant v. Justin David HOLMES, Appellee. |
Decision Date | 30 October 2013 |
Court | United States State Supreme Court of Pennsylvania |
OPINION TEXT STARTS HERE
Kathleen Granahan Kane, Esq., Kelley Lynn Nelson, Esq., Christopher Joseph Schimdt, Esq., Richard A. Sheetz, Esq., PA Office of Attorney General, for Commonwealth of Pennsylvania.
David Crowley, Esq., Deborah Lux, Esq., Centre County Public Defender's Office.
BEFORE: CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, STEVENS, JJ.
In this appeal, we consider the reviewability of claims of ineffective assistance of counsel on post-verdict motions and direct appeal under Commonwealth v. Bomar, 573 Pa. 426, 826 A.2d 831 (2003), cert.denied,540 U.S. 1115, 124 S.Ct. 1053, 157 L.Ed.2d 906 (2004), and Commonwealth v. Grant, 572 Pa. 48, 813 A.2d 726 (2002), including the question of whether ineffectiveness claims may be considered if accompanied by a waiver of review as of right under the Post Conviction Relief Act, 42 Pa.C.S. § 9541 et seq. (“PCRA”). For the reasons that follow, we vacate the Superior Court's order and remand to the trial court for proceedings consistent with this Opinion.
By way of summary, we hold that Grant's general rule of deferral to PCRA review remains the pertinent law on the appropriate timing for review of claims of ineffective assistance of counsel; we disapprove of expansions of the exception to that rule recognized in Bomar; and we limit Bomar, a case litigated in the trial court before Grant was decided and at a time when new counsel entering a case upon post-verdict motions was required to raise ineffectiveness claims at the first opportunity, to its pre-Grant facts. We recognize two exceptions, however, both falling within the discretion of the trial judge. First, we appreciate that there may be extraordinary circumstances where a discrete claim (or claims) of trial counsel ineffectiveness is apparent from the record and meritorious to the extent that immediate consideration best serves the interests of justice; and we hold that trial courts retain their discretion to entertain such claims. See infra Part III(C)(1).
Second, with respect to other cases and claims, including cases such as Bomar and the matter sub judice, where the defendant seeks to litigate multiple or prolix claims of counsel ineffectiveness, including non-record-based claims, on post-verdict motions and direct appeal, we repose discretion in the trial courts to entertain such claims, but only if (1) there is good cause shown,1 and (2) the unitary review so indulged is preceded by the defendant's knowing and express waiver of his entitlement to seek PCRA review from his conviction and sentence, including an express recognition that the waiver subjects further collateral review to the time and serial petition restrictions of the PCRA.2 In other words, we adopt a paradigm whereby unitary review may be available in such cases only to the extent that it advances (and exhausts) PCRA review in time; unlike the so-called Bomar exception, unitary review would not be made available as an accelerated, extra round of collateral attack as of right. See Part III(C)(2). This exception follows from the suggestions of prior Court majorities respecting review of prolix claims, if accompanied by a waiver of PCRA review. See Commonwealth v. Wright, 599 Pa. 270, 961 A.2d 119, 148 n. 22 (2008); Commonwealth v. Liston, 602 Pa. 10, 977 A.2d 1089, 1095–1101 (2009) (Castille, C.J., concurring, joined by Saylor and Eakin, JJ.).
On December 8, 2005, appellee was charged with two counts of criminal use of a communication facility,3 as well as single counts of delivery of cocaine, possession with intent to deliver cocaine, and simple possession of cocaine.4 Represented by retained private counsel, appellee proceeded to a jury trial on November 7, 2006, and was found guilty of all charges except one of the counts of criminal use of a communication facility. The trial court sentenced appellee to three to six years of imprisonment on the delivery charge and a concurrent sentence of two to four years on the criminal use of a communication facility conviction, both with credit for time served. The other drug convictions were deemed to merge for sentencing purposes.
Appellee filed a pro se notice of appeal to the Superior Court, which he later withdrew. On May 2, 2007, appellee motioned for appointment of counsel in the trial court, which the trial court granted, appointing the Centre County Public Defender's Office. On August 23, 2007, appellee filed a counseled PCRA petition seeking reinstatement of his appeal rights due to trial counsel's failure to file a requested direct appeal. Appellee amended the petition on December 18, 2007, raising multiple substantive claims of ineffective assistance of trial counsel. On May 16, 2008, following an earlier evidentiary hearing, the PCRA court reinstated appellee's direct appeal rights nunc pro tunc, without addressing the substantive ineffectiveness claims.
Appellee filed a notice of appeal and a statement pursuant to Pa.R.A.P. 1925(b), identifying eleven issues of ineffectiveness of trial counsel. On September 22, 2008, the PCRA court issued its opinion pursuant to Rule 1925(a), briefly addressing the merits of those ineffectiveness claims.
In his Superior Court brief, appellee pursued only three of the eleven claims of ineffectiveness; he raised no preserved, direct review claims. The Superior Court panel determined that appellee's merits arguments were “misguided” because he should have argued that the PCRA court, in its opinion reinstating appellee's direct appeal rights nunc pro tunc, had erred by failing to consider the effect of appellee's amended PCRA petition raising trial counsel's ineffectiveness. The panel cited the Superior Court's then-recent en banc decision in Commonwealth v. Liston, 941 A.2d 1279 (Pa.Super.2008) ( en banc ). Liston had held that, where a PCRA petitioner seeks reinstatement of direct appeal rights nunc pro tunc and also raises claims of trial counsel ineffectiveness, and the PCRA court grants reinstatement of direct appeal rights, the PCRA court must also grant the petitioner leave to file post-sentence motions nunc pro tunc to provide the PCRA and Superior Courts with a sufficient record to dispose of the ineffectiveness claims. Id. at 1280. Following Liston, the Superior Court panel here remanded to the PCRA court with instructions to permit appellee to file post-sentence motions nunc pro tunc in which he could raise his ineffectiveness claims.
In the meantime, the Commonwealth sought discretionary review of Liston, which this Court granted. Commonwealth v. Liston, 598 Pa. 638, 959 A.2d 1248 (2008) ( per curiam order). The Commonwealth in this matter then filed a petition for allowance of appeal, arguing that this Court should hold the petition pending Liston. Alternatively, the Commonwealth argued that the Superior Court's remand was unnecessary under Bomar, even though appellee's claims were raised in a PCRA petition rather than in post-verdict motions, because the trial court had conducted an evidentiary hearing and had eventually addressed the merits of the ineffectiveness claims in its opinion. On August 17, 2009, three days after the Commonwealth filed its petition, we decided Liston. We affirmed Liston's sentence and vacated and disapproved of the Superior Court's holding that a reinstatement of appellate rights nunc pro tunc also requires granting the defendant the right to file post-sentence motions nunc pro tunc. Commonwealth v. Liston, 602 Pa. 10, 977 A.2d 1089.
By way of further background, the defendant in Liston filed a pro se PCRA petition seeking reinstatement of his appellate rights nunc pro tunc, alleging ineffectiveness of trial counsel for failing to file a requested direct appeal. The PCRA court appointed new counsel, who filed an amended petition raising substantive claims of ineffective assistance of trial counsel. The PCRA court determined that Liston's trial counsel was ineffective in failing to file the appeal and reinstated Liston's direct appeal rights; however, the court did not address the substantive ineffectiveness claims. Liston then filed his direct appeal raising a single direct review issue involving the sufficiency of the evidence, as well as the ineffectiveness claims he had raised in his PCRA petition. The Superior Court en banc ruled only on the sufficiency claim and declined to consider the ineffectiveness claims, relying on Grant's holding that ineffectiveness claims should be deferred to PCRA review.
However, the Liston panel then went farther and fashioned an additional, broader exception to Grant, based in part on Bomar. This new exception required that, when direct appeal rights are reinstated nunc pro tunc, the trial court must also permit the defendant to file post-sentence motions nunc pro tunc to raise new claims of ineffective assistance of counsel for direct review. The court justified its new rule, in part, by suggesting that it would “preserve valuable judicial time and resources” by sparing the defendant the trouble of filing a PCRA petition after his direct appeal was litigated. 941 A.2d at 1284–85. The court then remanded to the trial court to permit Liston to file postsentence motions nunc pro tunc.
On the Commonwealth's appeal to this Court, we vacated the Superior Court decision in Liston to the extent that it remanded for filing post-sentence motions nunc pro tunc, and we instead affirmed the judgment of sentence. Madame Justice Greenspan, writing for the Court, emphasized Grant's teaching that ineffectiveness claims generally should be deferred until post-conviction review, and that only this Court may create exceptions to the Grant rule. Liston, 977 A.2d at 1093. We further explained that:
Clearly, the Superior Court's holding creates an exception to the Grant rule in...
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