Harrington v. Gillis

• Decision Date: 11 July 2006
• Docket Number: No. 02-2419.,02-2419.
• Citation: 456 F.3d 118
• Parties: Samuel HARRINGTON, Appellant v. Frank D. GILLIS; The District Attorney of the County of Chester, Anthony A. Sarcione; The Attorney General of the State of PA, Michael Fisher.
• Court: U.S. Court of Appeals — Third Circuit

456 F.3d 118

Samuel HARRINGTON, Appellant v. Frank D. GILLIS; The District Attorney of the County of Chester, Anthony A. Sarcione; The Attorney General of the State of PA, Michael Fisher.

No. 02-2419.

United States Court of Appeals, Third Circuit.

Argued April 24, 2006.

Opinion Filed July 11, 2006.

Mary Gibbons, Esquire (Argued), Toms River, NJ, for Appellant.

Nicholas J. Casenta, Jr., Esquire (Argued), Joseph W. Carroll, Esquire, Office of District Attorney, West Chester, PA, for Appellees.

Before FUENTES, STAPLETON, and ALARCÓN,^* Circuit Judges.

ALARCÓN, Circuit Judge.

Mr. Samuel Harrington appeals from the District Court's order denying his state-prisoner petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Mr. Harrington contends that he was denied his Sixth Amendment right to effective assistance of counsel when trial counsel failed to file a notice of appeal. We vacate the decision of the District Court and remand.

I

On April 27, 1996, Mr. Harrington collided with two vehicles while driving under the influence of alcohol. One driver died as a result of the collision, and the other sustained a broken ankle. Mr. Harrington retained attorney Robert J. Donatoni to represent him.¹ The retainer agreement, dated May 10, 1996, states in relevant part: "I [Mr. Donatoni] am required by the rules that govern the conduct of lawyers in the Commonwealth of Pennsylvania to place our fee agreement in writing. As we agreed, my total fee to represent you in connection with this matter will be Twenty Five Thousand dollars." The agreement also describes the approaching arraignment and states: "I, in turn, will enter my appearance on your behalf in the Court of Common Pleas of Chester County. The entry of appearance is a certification to the Court that I will represent you throughout the conclusion of these proceedings."

Mr. Harrington pled guilty to Aggravated Assault by Vehicle While Driving Under the Influence ("DUI"), Homicide by Vehicle While DUI, and DUI. The trial court accepted Mr. Harrington's guilty plea on April 7, 1997. At a sentencing hearing on June 3, 1997, the prosecution presented victim impact statements from the living victim and the deceased victim's father, friends, and pastor. The prosecution detailed Mr. Harrington's criminal record, including four prior convictions for DUI. An extensive pre-sentencing investigation report noted Mr. Harrington's lack of remorse and "apparent inability to maintain sobriety." At the sentencing hearing, Mr. Harrington accepted responsibility for his crimes, expressed remorse, and described his successful participation in rehabilitation programs since the incident. The court "found this to be a case in the aggravated range," and sentenced Mr. Harrington to a total of ten to twenty years on all charges.

Mr. Donatoni filed a Motion for Reconsideration of Sentence. He argued that the sentence was "grossly in excess of the Sentencing Guidelines." Among other contentions, he argued that the trial court failed to factor in his acceptance of responsibility and treated the injuries suffered by the individual with the broken ankle the same as the individual who died. The Motion for Reconsideration of Sentence was denied on July 22, 1997. Mr. Donatoni forwarded a copy of the denial to Mr. Harrington with a letter dated September 19, 1997, which read: "Obviously none of us are [sic] happy with this and we will have to talk about what options are available."

Under Pennsylvania law, a challenge to the discretionary aspects of a defendant's sentence is not an appeal of right. 42 Pa.C.S.A. § 9781(b); Pa.R.A.P. 2119(f); Commonwealth v. Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987). Rather, a defendant must file an allowance of appeal with the Superior Court of Pennsylvania. The Superior Court of Pennsylvania must then determine whether there is a substantial question that the sentence imposed is not appropriate under the Pennsylvania Sentencing Code. 42 Pa.C.S.A. § 9781(b). Subsection (f) of § 9781 provides: "No appeal of the discretionary aspects of the sentence shall be permitted beyond the appellate court that has initial jurisdiction for such appeals." Furthermore, Pa. R.A.P. 2119(f) requires that "[a]n appellant who challenges the discretionary aspects of a sentence in a criminal matter shall set forth in his brief a concise statement of the reasons relied upon for allowance of appeal with respect to the discretionary aspects of a sentence."

Mr. Donatoni never discussed any available options with Mr. Harrington. He never informed Mr. Harrington that if he wished to appeal, he was first required to seek an allowance of appeal. No application for an allowance of appeal was filed.

Mr. Harrington filed a petition pro se for an appeal nunc pro tunc under the PCRA in the Pennsylvania Court of Common Pleas, asserting ineffective assistance of counsel based on Mr. Donatoni's failure to file a notice of appeal. An evidentiary hearing was held on May 11, 1999. Mr. Harrington testified at the hearing that he had no contact with Mr. Donatoni after the Motion for Reconsideration was denied. He also testified that he made several attempts to contact Mr. Donatoni by making collect phone calls, but that Mr. Donatoni's office would not accept charges. He testified to using Elizabeth Bireley, his girlfriend and former wife, as an intermediary in his attempts to contact Mr. Donatoni. Mr. Harrington further testified that he believed Mr. Donatoni "was going to do every procedure that was possible," and that he had promised to file an appeal if the Motion for Reconsideration was denied. He stated he wanted to file an appeal and had been aware of the thirty-day time limit for filing a notice of appeal, but never expressly requested that Mr. Donatoni file a notice of appeal. There is no evidence he was aware that he had to seek an allowance of appeal from the Superior Court of Pennsylvania.

Ms. Bireley testified that she had made several unsuccessful attempts to contact Mr. Donatoni by phone. On August 9, 1997, she sent Mr. Donatoni a fax stating that Mr. Harrington needed to speak with him. The fax included specific questions regarding Mr. Harrington's finances and property. She testified that she left several phone messages informing Mr. Donatoni that Mr. Harrington "needs to talk to you" and requested that Mr. Donatoni contact her. In her communications with Mr. Donatoni's office, Ms. Bireley never stated that Mr. Harrington wanted Mr. Donatoni to file a notice of appeal. Ms. Bireley testified that Mr. Harrington continually expressed to her his interest in filing a notice of appeal and that her attempts to contact Mr. Donatoni were at Mr. Harrington's behest.

Mr. Donatoni testified that he had no contact with Mr. Harrington after the Motion for Reconsideration was denied and did not recall discussing post-sentencing options with Mr. Harrington. He acknowledged Ms. Bireley's attempts to contact him, and stated that he knew she was acting on Mr. Harrington's behalf. He testified that he received correspondence from Mr. Harrington after the motion hearing, and that it was possible Mr. Harrington had attempted to call him, although he did not recall. He noted that it is standard practice in his office not to accept collect calls when the requested attorney is not in the office. He testified that neither Mr. Harrington nor Ms. Bireley communicated Mr. Harrington's desire to file a notice of appeal in their attempts to contact him. He described all such correspondence as dealing "with issues that are collateral to and not central to the issue of an appeal." Mr. Donatoni denied that he ever told Mr. Harrington he would file an appeal.

On September 24, 1999, the Pennsylvania Court of Common Pleas found Mr. Harrington's testimony to be not credible and denied him relief under PCRA. The Court stated: "We reject Defendant's testimony as credible and find that Defendant did not request counsel to file a direct appeal." In reaching its conclusion, the Court focused on the fact that "[n]owhere in the Fee Agreement does counsel agree to undertake Defendant's appeal to the Superior Court following his sentence," and that "[m]ore importantly, defense counsel testified that the Defendant never left a message instructing him to file a direct appeal." The Court of Common Pleas issued a Supplemental Opinion on October 5, 1999 to address the holding of a subsequent Pennsylvania Supreme Court case, Commonwealth v. Lantzy, 558 Pa. 214, 736 A.2d 564 (1999) (holding that defense counsel lacked a reasonable basis for failing to inform petitioner that sentence modification would be invalid and, thus, petitioner was entitled to PCRA relief as a remedy for defense counsel's withdrawal of appeal). Reaffirming its original opinion, the Court of Common Pleas concluded: "Lantzy, does not change the result in this case." The court explained that it "rejected Defendant's testimony and found that he did not request his counsel to file a direct appeal in his case."

Mr. Harrington appealed to the Pennsylvania Superior Court. It affirmed the decision of the Court of Common Pleas on July 28, 2000. In rejecting Mr. Harrington's appeal, the Superior Court relied on Commonwealth v. Harmon, 738 A.2d 1023 (Pa.Super.1999). Pursuant to Harmon, failure to file a notice of appeal cannot constitute ineffective assistance of counsel unless the defendant asked counsel to file an appeal and counsel failed to do so.² Harmon, 738 A.2d at 1024. The Superior Court quoted the Court of Common Pleas's adverse credibility finding and held: "The PCRA Court's determination of credibility is supported by the record, and therefore we will not disturb it on appeal. Trial counsel was not ineffective for failing to file a direct appeal." The Superior Court also included a footnote stating that Mr. Harrington's intended basis for relief on appeal—that his sentence was excessive—"lacks arguable merit."

Mr. Harrington petitioned for...