Commonwealth v. Blakeney , 631 Pa. 1 ( 2014 )

EAKIN, J.,

concurring.

I fully join the per curiam opinion. I write separately to note my continuing disagreement with the notion that competency challenges are immune from the PCRA’s waiver provision. See Per Curiam Op., at 752-54 (citations omitted). The plain language of the PCRA’s waiver provision states: “[A]n issue is waived if the petitioner could have raised it but failed to do so before trial, at trial, during unitary review, on appeal or in a prior state postconviction proceeding.” 42 Pa.C.S. § 9544(b). Nowhere does the statute contain a waiver exception for challenges based on claims of incompetency. See Commonwealth v. Brown, 582 Pa. 461, 872 A.2d 1139, 1158-68 (2005) (plurality) (Castille, J., concurring, joined by Eakin, J.); Commonwealth v. Santiago, 579 Pa. 46, 855 A.2d 682, 704-11 (2004) (plurality) (Castille, J., concurring, joined by Eakin, J.). As the per curiam opinion points out, appellant failed to raise this issue at trial or on direct appeal.

Brown was a plurality decision that garnered a majority view that a defendant’s failure to raise a competency issue — either before trial, at trial, or on direct appeal— does not render it waived under the PCRA. See Brown, at 1170 (Nigro, J., concurring and dissenting) (agreeing competency challenges not subject to PCRA waiver). I did not join that thinking then, nor do I now. See id., at 1158-68 (Castille, J., concurring, joined by Eakin, J.) (finding judicial relaxed waiver rule for competency claims directly conflicts with plain language of PCRA’s waiver provision); see also Santiago, at 704-11 (Castille, J., concurring, joined by Eakin, J.) (same).

As such, I would review only appellant’s properly preserved ineffectiveness claims — counsels’ failure to allege appellant’s incompetence. As to those ineffectiveness claims, I agree with the per cu-riam opinion’s holding appellant’s claims lack merit and do not warrant relief.

Justice STEVENS joins this opinion.