Commonwealth v. O'Berg

OPINION

Chief Justice CAPPY.

In Commonwealth v. Grant, 572 Pa. 48, 813 A.2d 726, 738 (2002), this court held, as a general rule, that claims of ineffective assistance of counsel should be deferred until the collateral review proceedings. In this case, the Superior Court applied Grant and dismissed Appellant’s claim of ineffective assistance of counsel. Presently, we are asked to consider whether this court should recognize a “short sentence” exception to the general rule announced in Grant. For the reasons stated herein, we agree with the disposition of the Superior Court and reject a “short sentence” exception. Accordingly, we affirm the judgment of sentence.

The facts relevant to the instant case are that Appellant participated in a street riot in the early morning hours of July 16, 2000 at State College, Pennsylvania. During the course of the riot, police observed individuals in the crowd pounding on cars and observed two or three individuals shake and bring down a lamp post. Appellant was observed by the police shaking a lamp post during the course of the incident. As a result of his participation in the incident, the police charged Appellant with the misdemeanor offenses of disorderly conduct and failure of a disorderly person to disperse and with the summary offense of criminal mischief. A jury convicted Appellant of all three charges on November 14, 2000. On December 14, 2000, the trial court sentenced Appellant to thirty days to twenty-three and a half months in prison plus the payment of fines. The trial court’s order also provided that Appellant could remain free on bail until his appeal was final. Appellant ultimately opted to serve his sentence beginning the summer of 2002.¹

Appellant filed a post-sentence motion, and the court scheduled a hearing related to the motion. Following the hearing, the trial court denied the post-sentence motion. New counsel entered an appearance on Appellant’s behalf and filed a Notice of Appeal in the Superior Court on May 7, 2001. Appellant filed his brief in the Superior Court on October 23, 2002, challenging the sufficiency of the evidence and raising an issue related to counsel’s effectiveness at trial.

On September 10, 2003, the Superior Court affirmed the judgment of sentence. The court found the evidence was sufficient to support the convictions. Further, the court concluded that Appellant’s ineffectiveness challenge was subject to the general rule announced in Grant and dismissed Appellant’s ineffectiveness claim without prejudice to raise at collateral review.

Appellant filed a Petition for Allowance of Appeal raising the issue of whether this court should recognize an exception to the general rule announced in Grant in this case because of the short duration of Appellant’s sentence. We granted Appellant’s request to appeal.

The issue in this case arises because under the plain language of the Post-Conviction Relief Act (PCRA), an appellant is only eligible for post-conviction relief if he is “currently serving a sentence of imprisonment, probation or parole for the crime.” 42 Pa.C.S. § 9543(1). Following this court’s decision in Grant, claimants are to wait until the collateral review stage before raising claims of ineffectiveness. Thus, the net effect of these two rules is that claimants may not have the opportunity to raise a claim challenging trial counsel’s effectiveness if their direct appeal is final at a time when they are no longer serving a sentence of imprisonment, probation, or parole.

Appellant asserts that in order to avoid this result, this court should recognize a “short sentence” exception to the general rule announced in Grant. Appellant points out that the Superior Court repeatedly has recognized such an exception in situations when a claimant would be ineligible for PCRA relief because of the short duration of his or her sentence. Commonwealth v. Blessitt, 852 A.2d 1215 (Pa.Super.Ct.2004); Commonwealth v. Salisbury, 823 A.2d 914 (Pa.Super.Ct.2003); Commonwealth v. Ingold, 823 A.2d 917 (Pa.Super.Ct.2003). In this case, Appellant argues that he is placed in the unfair position of losing his opportunity to litigate his ineffectiveness claims. Appellant concludes that such a result conflicts with the intent of Grant, which was to offer “a petitioner the best avenue to effect his Sixth Amendment right to counsel.” Grant, 813 A.2d at 738.²

The Commonwealth responds that Appellant is in such an “unfair” position by his own doing. The trial court originally permitted Appellant to defer his sentence until after his direct appeal was final, but Appellant elected to serve his sentence while his direct appeal was pending. Thus, Appellant essentially has “mooted” his own opportunity to take advantage of the PCRA. Similarly, the Commonwealth contends that Appellant waived this issue by failing to raise it until after the Superior Court ruled on his direct appeal. Pa.R.A.P. 302(a). Turning its attention to the Grant decision, the Commonwealth asserts that the Superior Court certainly had no power to create an exception to Grant, only this court has such power. Further, the Commonwealth argues that this court should not recognize a “short sentence” exception to Grant, since such an exception would undermine the reasoning underlying that decision.

We will address the Commonwealth’s preliminary challenges before addressing the primary issue raised in this case. First, the Commonwealth argues that Appellant’s predicament is self-created since he opted to serve his sentence early. We are not going to foreclose Appellant’s opportunity to raise the issue in this case merely on the basis that Appellant chose to serve his sentence before his direct appeal was final. In fact, the instant case presents a perfect vehicle to review this issue, since Appellant will not have the opportunity to pursue collateral relief as he has finished serving his sentence. Moreover, the “short sentence” issue has been percolating in the Superi- or Court since Grant was decided; and the instant case presents this court with an opportunity to resolve this question.

Second, the Commonwealth argues that this issue is waived since Appellant did not raise it until after the Superior Court decided his direct appeal on September 10, 2003. According to the Commonwealth, the fact that Appellant filed his appeal and brief before Grant is not relevant, rather Appellant had a duty to amend his brief following our decision in Grant. First, Grant was not decided until over two months after Appellant filed his brief before the Superior Court. Additionally, in the months following Grant, it was unclear how the decision was going to be interpreted by the lower courts and applied in any given case. See, e.g., Commonwealth v. Grant, 573 Pa. 141, 821 A.2d 1246 (2003) (clarifying that Grant will “not apply to claims of ineffective assistance of counsel where the immediate appellate court on direct appeal has rendered a disposition on the merits.”) Indeed, immediately following our decision in Grant, the Superior Court applied Grant in certain cases and ignored Grant in favor of a “short sentence” exception in other cases. Accordingly, we disagree that this issue is waived.

We now consider the primary issue raised by the parties—whether this court should recognize a “short sentence” exception to Grant. Any analysis of this issue must begin with this court’s decision in Grant wherein this court overruled Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687 (1977), which required new counsel to raise claims of previous counsel’s ineffectiveness at the first opportunity, including direct appeal. We pointed out that after Hubbard, the procedure for raising claims of ineffectiveness was distinct from regular appellate procedure, since normally, an appellate court would only review issues after being raised and reviewed in the lower court. Grant, 572 Pa. at 59-62, 813 A.2d at 733-34. With regard to ineffectiveness claims, however, Hubbard mandated that claimants raise new issues on appeal for the first time—at the time they obtained new counsel. Id. at 61-62, 813 A.2d at 734. Thus, we concluded it was time to reassess our decision in Hubbard.

After considering our state appellate rules, as well as looking at how other states manage ineffectiveness claims, we identified three main reasons for rejecting our prior position. First, we believed that the lack of a lower court opinion imposed a substantial impediment to this court’s review. Id. at 59-61, 65-67, 813 A.2d at 733, 737. Second, we noted that appellate courts normally do not consider matters outside the record or matters that involve consideration of facts not in evidence. Grant, at 61-62, 65-67, 813 A.2d at 734, 737. Third, we pointed out that appellate courts do not act as fact finders. Id. at 61-62, 65-67, 813 A.2d at 734, 737. Thus, as stated previously, we announced, as a general rule, that a claimant should wait to raise claims of ineffective assistance of trial counsel until collateral review. Id.

Shortly after our decision in Grant, we had occasion to consider an exception to the general rule set forth in Grant in Commonwealth v. Bomar, 573 Pa. 426, 826 A.2d 831 (2003). The situation in Bomar differed from Grant, since Bomar was litigated under the Hubbard rule requiring ineffectiveness claims to be raised at the first possible opportunity. In Bomar, trial counsel withdrew from the case following sentencing, and new counsel entered the matter and filed post-sentence motions on the appellant’s behalf, raising the appellant’s claims of ineffectiveness. 573 Pa. at 462-64, 826 A.2d at 853. The trial court conducted hearings on the post-sentence motions. Id. We pointed out that because of these differences, the appeal in Bomar involved “a circumstance not present in, or addressed by Grant: appellant’s claims of ineffective assistance of counsel were properly raised and preserved in the trial court.” Id. We then looked at the concerns attendant to Grant and found them not applicable under the circumstances in Bomar. Indeed, in Bomar, this court had the benefit of a trial court opinion regarding the specific claims of ineffectiveness; there was an “ample” and “extensive” trial record devoted to the ineffectiveness claims and, thus, no danger of this court engaging in appellate fact-finding; and the difficulties normally confronting appellate counsel in discovering and developing ineffectiveness claims within the limited amount of time available for failing a direct appeal were absent in light of the already-preserved nature of the defendant’s ineffectiveness claims. Id. at 464-67, 826 A.2d at 854-55. Thus, we held that “this circumstance is an exception to the general rule of deferral in Grant.” Id. at 855.

As demonstrated by our decision in Bomar the critical inquiry is whether the trial court had the first opportunity to review the claim. Accordingly, in this case, we must consider whether recognizing a “short sentence” exception to Grant would undermine the reasoning that led to the general rule announced in Grant.

In recognizing the “short sentence” exception, the Superior Court ignored whether the trial court reviewed the claim, but rather focused on issues of fairness. For example, in Ingold, the court concluded that an appellant sentenced to seven days in prison could raise an ineffectiveness claim on direct appeal, since Grant merely announced a “general rule.” Ingold, 823 A.2d at 919.

The Superior Court elaborated on its reasoning in Salisbury, when faced with an appellant sentenced to ninety days in prison. The court explained that in Grant, this court did not “announce a complete prohibition on consideration of ineffectiveness claims on direct review.” Salisbury, 823 A.2d at 916. Further, the Superior Court was persuaded that in Grant, we recognized a principle that no harm should inure to the parties because of the new rule. Id.; see also Commonwealth v. Blessitt, 852 A.2d 1215, 1220 (Pa.Super.Ct.2004) (adopting the reasoning of Salisbury, but rejecting the appellant’s argument because he was released on bond pending appeal). Ultimately, the court was persuaded that the defendant’s case was such an exception because of the short duration of the term of imprisonment. Salisbury, 823 A.2d at 916. “Harm is demonstrated by the fact that Appellant will not be able to challenge his constitutional right to effective assistance of counsel because of the length of his sentence.” Id. Accordingly, the court discussed the merits of the appellant’s claims of ineffectiveness.

Turning to the case before us, we now consider whether there should be a “short sentence” exception to Grant. We acknowledge the concern that a claimant should not be harmed by the Grant rule. See Dissenting opinion at 606. That concern, however, cannot be used to defeat the reasoning underlying our decision in Grant. Rather, in Grant, we highlighted three main concerns underlying our decision to overrule Hubbard; namely, the lack of a lower court opinion, the lack of a record, and placing the appellate court in the role of fact finder. Grant, 572 Pa. at 61-62, 65-67, 813 A.2d at 734, 737. We also specifically noted that none of these concerns were implicated in Bomar because of the procedural posture of that case. All of these concerns, however, are implicated in the instant case and. simply cannot be ignored because of Appellant’s “short sentence.” In this case, there is no trial court record devoted to Appellant’s claim of ineffectiveness. Thus, the appellate court would be entertaining an issue for the first time on appeal. Recognizing an exception in these circumstances would not serve our decision in Grant.

Furthermore, the concept of a “short sentence” exception is too ambiguous to give the lower courts any guidance on what is a sufficiently “short sentence” to apply the exception. Would it be the seven-day sentence imposed in Ingold, the ninety-day sentence imposed in Salisbury, or the thirty-day to twenty-three-month sentence imposed in the instant case? Indeed, on occasion, there have been instances where a direct appeal took more than four years to be completed. See, e.g., Commonwealth v. Douglas, 537 Pa. 588, 645 A.2d 226 (1994) (direct appeal lasting more than 11 years); Commonwealth v. Schaeffer, 547 Pa. 53, 688 A.2d 1143 (1993) (direct appeal lasting at least 5 years); Commonwealth v. McMullen, 545 Pa. 361, 681 A.2d 717 (1996) (same). Thus, is four years a “short sentence” under some circumstances? In other words, there is simply no way to define “short sentence.”³

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.

Accordingly, we affirm the Order of the Superior Court.

Justice CASTILLE files a concurring opinion. Justice SAYLOR files a dissenting opinion in which Justice BAER joins.

1 . Appellant represents in his brief that his sentence has since expired.

2 . Appellant also raises a Due Process claim for the first time in his Reply Brief. This issue is waived. See Pa.R.A.P. 302.

3 . While we agree with Justice Saylor, that the intermediate appellate courts may be able to determine which sentences are reasonably likely to expire before the post-conviction review process can be meaningfully invoked, this in no way ensures fairness, since there is no standard for the courts to employ in making the determination because of the ambiguity of the exception. Ultimately, we do not see how this will lead to consistency and fairness and believe the better course of action is simply to reject a "short sentence" exception.