Commonwealth v. Liston

OPINION

Justice GREENSPAN.

The Commonwealth appeals from the Superior Court’s order remanding the matter to the trial court so that Appellee Clayton Leroy Liston may file a post-sentence motion nunc pro tunc. We hold that the Superior Court erred in declaring that a defendant who has been granted the right to file a notice of appeal nunc pro tunc shall also automatically be granted the right to file post-sentence motions nunc pro tunc. We further hold that the Superior Court’s order impermissibly created a new exception to our decision in Commonwealth v. Grant, 572 Pa. 48, 813 A.2d 726 (2002). We vacate in part and affirm the judgment of sentence.

Appellee was charged in 2005 by Fayette County authorities with two counts each of possession of a controlled substance¹ and possession with intent to deliver a controlled substance,² and a single count of criminal conspiracy.³ These charges stemmed from two separate incidents in 2004 when Appellee supplied cocaine to a Pennsylvania State Trooper acting in an undercover capacity. Appellee was tried before the Honorable John F. Wagner and a jury on August 2, 2005, and convicted of the above-enumerated offenses.⁴

On August 19, 2005, Appellee received an aggregate sentence of eighteen to thirty-six months incarceration. Appellee did not file either post-sentence motions or a notice of appeal. On December 14, 2005, Appellee filed a timely pro se petition under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-9546. Counsel was appointed to represent him and on February 6, 2006, appointed counsel filed an amended PCRA petition raising several claims alleging ineffective assistance of counsel, one of which was that trial counsel had been ineffective for failing to file a requested notice of appeal following entry of the judgment of sentence. Judge Wagner convened an evidentiary hearing and on May 31, 2006, issued an opinion and order reinstating Appellee’s direct appeal rights based on a finding that trial counsel had failed to file the requested appeal. Although Judge Wagner took testimony on Appellee’s remaining claims of ineffectiveness of counsel, Judge Wagner did not address them or issue rulings with respect to those claims.

Appellee filed a direct appeal to the Superior Court. Appellee raised one sufficiency claim and four claims of ineffective assistance of counsel. On January 8, 2008, the en banc Superior Court issued a published opinion. Commonwealth v. Liston, 941 A.2d 1279 (Pa.Super.2008). The Superior Court declined to address Appellee’s ineffective assistance claims, relying on this Court’s decision in Grant. In Grant, this Court held that claims alleging ineffective assistance of counsel should be deferred until the collateral stage of proceedings.⁵ Grant, 813 A.2d at 738.

Instead of resting with a plain application of the rule in Grant, the Superior Court turned its attention to this Court’s decision in Commonwealth v. Bomar, 573 Pa. 426, 826 A.2d 831 (2003). In Bomar, this Court carved out an exception to the Grant rule and held that an appellate court may consider ineffective assistance claims on direct appeal only if the claims were raised below, developed in the certified record, and definitively determined by the lower court. Id. at 854-55. Concluding that Bomar’s reach should be extended, the Superior Court held that whenever a PCRA court reinstates a defendant’s right to file a direct appeal, the PCRA court shall also issue an order permitting the defendant to file post-sentence motions nunc pro tunc. The Superior Court reasoned that such a procedural rule would conserve precious judicial resources because claims of ineffective assistance of counsel could be reviewed at an earlier stage of the proceedings, thereby obviating the necessity of a subsequent PCRA petition should the judgment of sentence be affirmed on direct appeal. Liston, 941 A.2d at 1284-85.

The Superior Court stated:

Therefore, in line with our decision today, henceforth, if the PCRA court determines that, in fact, appellate counsel was ineffective for failing to file a requested direct appeal and reinstates the petitioner’s direct appeal rights nunc pro tunc, the court shall also reinstate the petitioner’s right to file post-sentence motions or amended post-sentence motions nunc pro tunc. The petitioner can then raise whatever “other” claims of counsel ineffectiveness he/she wants to in post-sentence motions; the trial court can hold an evidentiary hearing, if warranted, perfect the record for review, and reach a final decision on the merits. In this way, the trial court’s decision results in an appealable ruling, and the trial court will not be compelled to issue a merely “advisory” opinion. The record will also be complete so that this court may review the appellant’s ineffectiveness claims on the ensuing direct appeal, consistent with [Commonwealth v. Bomar, 573 Pa. 426, 826 A.2d 831 (2003)]. This practice will preserve valuable judicial time and resources, and save the appellant from having to file another, duplicative PCRA petition raising the identical claims later in the process.

Liston, 941 A.2d at 1284-85 (emphasis added). The Superior Court then addressed Appellee’s sufficiency claim and, after ruling that it was meritless, relinquished jurisdiction and remanded the matter so that Appellee could file post-sentence motions mmc pro tunc. Id.

The Commonwealth filed a timely Petition for Allowance of Appeal and on October 31, 2008, we granted review of three issues:

a. Did the Superior Court contradict Commonwealth v. Grant in purporting to create its own new exception to that case?

b. Did the Superior Court contradict Commonwealth v. Reaves by holding that any PCRA petitioner entitled to a nunc pro tunc direct appeal is automatically entitled to nunc pro tunc post sentence motions as well, without proving prejudice?

c. Did the Superior Court usurp this Court’s exclusive authority to create procedural rules under Article V, § 10(c) of the state constitution?

The issues in this case present questions of law, thus our standard of review is plenary and our scope of review is de novo. Commonwealth v. King, 595 Pa. 685, 939 A.2d 877, 880 (2007).

The Commonwealth first asserts that, by mandating that permission to file post-sentence motions be conferred automatically whenever a defendant succeeds in having his right to appellate review reinstated, the Superior Court contravened our decision in Grant. The Commonwealth notes that in Grant this Court held the authority to make exceptions to its rule rests specifically in this Court. Grant, 813 A.2d at 738 n. 14 (stating that “this Court may choose to create an exception to the general rule”). Further, in Commonwealth v. O’Berg, 584 Pa. 11, 880 A.2d 597, 602 (2005), this Court reiterated that the power to delineate exceptions to the Grant rule rests solely in this Court.⁶

The Commonwealth further complains that the Superi- or Court’s directive also conflicts with Commonwealth v. Reaves, 592 Pa. 134, 923 A.2d 1119 (2007). In Reaves, this Court declared that the failure to file post-sentence motions does not fall within the limited ambit of situations where a defendant alleging ineffective assistance of counsel need not prove prejudice to obtain relief.⁷ Id. at 1132. According to the Commonwealth, the Superior Court’s decision eviscerates the Reaves rule because a defendant now has the right to file post-sentence motions automatically, without having either to request such relief or prove that he or she is entitled to it because of the ineffective assistance of prior counsel.⁸ The Commonwealth asserts that in addition to undermining the decision in Reaves, the Superior Court’s ruling herein creates an exception to the Rules of Criminal Procedure, specifically Rule 720(b), by “effectively convert[ing] optional post sentence motions into compulsory post sentence motions where a nunc pro tunc appeal is granted.” Commonwealth’s Brief, 9. On this point, the Commonwealth takes issue with the Superior Court’s conclusion that its new rule is similar to the Grant exception set forth in Bomar. The Commonwealth argues that under Bomar, the filing and resolution of post-sentence ineffectiveness claims is not automatic. Rather, asserts the Commonwealth, the trial court has discretion to defer review of such claims until the post-conviction stage of the proceeding. Commonwealth’s Brief, 9.

Another unintended consequence of the Superior Court’s decision, according to the Commonwealth, arises in the situation where counsel fails to identify existing claims of ineffectiveness for purposes of a post-sentence motion, thereby waiving them under the provisions of the PCRA. See 42 Pa.C.S. § 9544(b) (stating that issues that could have been raised previously are waived for purposes of the PCRA). The resulting “waiver trap,” the Commonwealth argues, will require subsequent counsel to “layer” any ineffectiveness claims, a requirement that the Grant decision was intended to eradicate. Commonwealth’s Brief, 10.

In addition, the Commonwealth challenges the Superior Court’s assertion that its holding will “preserve valuable judicial time and resources.” Liston, 941 A.2d at 1285. The Commonwealth characterizes this purported benefit as illusory because it merely provides defendants with an additional collateral attack on their convictions. Commonwealth’s Brief, 11.

Finally, the Commonwealth refers to the Pennsylvania Constitution, which provides, in relevant part, that this Court “shall have the power to prescribe general rules governing practice, procedure, and the conduct of all courts.” Pa. Const. Art. V, § 10. This power to establish rules of procedure rests exclusively in this Court. See Commonwealth v. Morris, 565 Pa. 1, 771 A.2d 721, 736 (2001). The Commonwealth asserts that the rule set forth in Grant was procedural and thus, under the Pennsylvania Constitution, only this Court has the power and authority to fashion exceptions to it.

In response, Appellee asserts that the Superior Court’s decision should be affirmed “because it ... correct[s] a gap in the system and ... permit[s] counsel to pursue a prompt disposition of the claims of the [defendant].” Appellee’s Brief, 9. Appellee argues that under the Superior Court’s decision a defendant will be able to obtain review of any ineffectiveness claims without the unnecessary delay occasioned by the inability to raise those claims on direct appeal because there has been no hearing on them in the lower court.

After a careful review of the Superior Court’s opinion, the applicable law, and the briefs of the parties, we conclude that the Superior Court overstepped its authority in this case. The panel determined that all defendants who have been granted the right to file an appeal nunc pro tunc also must be granted an automatic additional right to file post-sentence motions nunc pro tunc. Clearly, the Superior Court’s holding creates an exception to the Grant rule in that it permits a defendant to obtain what is essentially collateral review even before a direct appeal has been litigated. In Grant we expressed a preference that review of ineffectiveness claims be deferred until the post-conviction collateral review stage of a proceeding because we recognized that “time is necessary for a petitioner to discover and fully develop claims related to trial counsel ineffectiveness.” 813 A.2d at 737-38. Thus we concluded that “[djeferring review of trial counsel ineffectiveness claims until the collateral review stage of the proceedings offers a petitioner the best avenue to effect his Sixth Amendment right to counsel.” 813 A.2d at 738. While we created an exception to Grant in our decision in Bomar, we have explicitly reiterated the general rule in Grant and further directed that any exception to that general rule be accomplished only by this Court:

Accordingly, we believe the best course of action is to reaffirm our decision in Grant and reiterate that, as a general rule, claims of ineffective assistance of counsel will not be entertained on direct appeal. Moreover, we take this opportunity to disapprove of any decisions of the Superior Court that are to the contrary. For these reasons, we do not believe there is a need to create a “short sentence” exception to the general rule announced in Grant. Indeed, we fear doing so would undermine the very reasons that led to our decision in Grant in the first instance.

O’Berg, 880 A.2d at 602 (emphasis added).

As we did in O’Berg, we conclude that the Superior Court’s decision in this case is capable of undermining the very purpose and policy underlying Grant. One of the reasons propounded by the Superior Court was to conserve precious judicial resources. Liston, 941 A.2d at 1285. While such a goal is laudable, the prospect that the Superior Court’s decision will have the intended effect is doubtful. A defendant who is granted an opportunity to file post-sentence motions because his attorney failed to file a requested appeal maintains the right to seek post-conviction relief under the PCRA after his direct appeal is finally determined. This is an opportunity that most, if not all, defendants likely will take. Thus, the Superior Court’s decision grants some defendants an additional automatic opportunity to attack their convictions based on claims of ineffective assistance of counsel, a recourse not available to all defendants. See Commonwealth v. Rega, 593 Pa. 659, 933 A.2d 997, 1030 (2007) (Castille, CJ., concurring) (in a concurring opinion, then-Justice Castille commented that it is unfair to afford an additional avenue of relief to certain defendants).

Having found merit in the first basis upon which the Commonwealth challenges the Superior Court’s decision, we need not address the Commonwealth’s remaining claims. It is the policy of this Court to avoid deciding a matter on constitutional grounds if the issue can be decided on other grounds. Commonwealth v. Long, 592 Pa. 42, 922 A.2d 892, 897 (2007). Once more, however, we caution the Superior Court with regard to its application of Grant and its progeny. When the panel in this case afforded all defendants who have been granted the right to file an appeal nunc pro tunc the automatic right to file post-sentence motions nunc pro tunc, it not only contradicted our decisions in Grant and O’Berg, it essentially attempted to promulgate a new rule of criminal procedure. The Superior Court’s decision to afford additional rights to a specific class of criminal defendants is particularly problematic. Before a mandatory rule of procedure affecting an untold number of cases is issued, it should be studied and approved by one of our procedural rules committees, and then considered by this Court.

Accordingly, we vacate that part of the Superior Court’s order that remanded the matter so that Appellee could file post-sentence motions.⁹ We affirm that part of the Superior Court’s order that dismissed Appellee’s ineffectiveness claims, without prejudice to his right to pursue such claims on collateral review under Gh'ant. Finally, we affirm the judgment of sentence.¹⁰

Superior Court’s order vacated in part; judgment of sentence affirmed.

Justice TODD and Justice McCAFFERY did not participate in the consideration or decision of this case. Chief Justice CASTILLE, files a concurring opinion in which Justices SAYLOR and EAKIN join. Justice BAER, files a concurring opinion.

1 . 35 P.S. § 780-113(a)(16).

2 . 35 P.S. § 780-113(a)(30).

3 . 18 Pa.C.S. § 903.

4 . The charges were consolidated for purposes of trial.

5 . Grant revised the rule established in Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687 (1977), wherein this Court held that claims of ineffective assistance of counsel had to be raised at the first stage of the proceedings at which the defendant is represented by new counsel to avoid waiver of those claims. The reasons for overruling Hubbard included the lack of a complete record on appeal and the improper recasting of an appellate court into the role of a fact-finder. See Commonwealth v. Bomar, 573 Pa. 426, 826 A.2d 831, 853-854 (2003).

6 . In O’Berg, this Court reversed the decision of the Superior Court delineating a "short sentence" exception to Grant. O'Berg, 880 A.2d at 602.

7 . In Reaves, this Court identified three situations in which a defendant was excused from having to prove prejudice in order to obtain relief on a claim of ineffective assistance of counsel. They were: "(1) when counsel fails to file a requested direct appeal; (2) when counsel neglects to file a requested petition for allowance of appeal with this Court; and (3) when counsel fails to file a court-ordered Pa.R.A.P. 1925(b) Statement of Matters Complained of on Appeal and that failure results in the waiver of all direct appeal claims.” Reaves, 923 A.2d at 1125 (citations omitted).

8 . In order to obtain relief on a claim alleging ineffective assistance of counsel, a litigant must prove that the claim underlying the claim of ineffectiveness has arguable merit, that counsel acted unreasonably, and that as a result of counsel's error, prejudice resulted. See Commonwealth v. Daniels, 963 A.2d 409, 419 (Pa.2009).

9 . Our holding should not be construed as prohibiting a PCRA court from reinstating a defendant’s right to file post-sentence motions nunc pro tunc. If a defendant successfully pleads and proves that he was deprived of the right to file and litigate said motions as a result of the ineffective assistance of counsel, a PCRA court is free to grant such relief. Presumably, since post-sentence motions are optional, see Pa. R.Crim.P. 720(B), rarely will counsel be deemed to have been ineffective for failing to file them except, for example, when the claim involves the discretionary aspects of sentence or a challenge to a verdict on weight of the evidence grounds, claims which must be raised in the trial court to be preserved for purposes of appellate review. See, e.g., Commonwealth v. Ahmad, 961 A.2d 884, 886 (Pa.Super.2008) (holding that in order to preserve for appellate review an issue involving the discretionary aspects of sentence, the claim first must have been raised in a post-sentence motion or presented to the trial court). See also Pa.R.Crim.P. 607 (regarding preservation of a claim challenging the weight of the evidence).

10 . Appellee did not challenge the Superior Court's order rejecting his sufficiency claim.