Commonwealth v. Ginglardi

HUDOCK, J.:

¶ 1 This is an appeal from the order denying Appellant’s first petition for relief under the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. sections 9541-46. We affirm.

¶2 On August 17, 1994, a jury found Appellant guilty of possession of a controlled substance with intent to deliver and possession of a controlled substance.¹ He was sentenced to pay a $25,000.00 fine and to serve a term of incarceration of four to eight years on the former conviction and was given a suspended sentence on the latter. He filed a timely notice of appeal, and a divided panel of this Court affirmed the judgment of sentence. Commonwealth v. Ginglardi, 451 Pa.Super. 622, 679 A.2d 252 (1996) (unpublished memorandum). The Supreme Court of Pennsylvania denied his petition for allowance of appeal on October 24, 1996. Commonwealth v. Ginglardi, 546 Pa. 663, 685 A.2d 543 (1996). Appellant did not seek review in the Supreme Court of the United States.

¶ 3 Appellant raised three issues in his direct appeal to this Court. One was a claim that the trial court improperly denied his motion for dismissal under Rule 1100 of the Pennsylvania Rules of Criminal Procedure.² The Honorable Peter Paul Olszewski filed a memorandum in which he found two of Appellant’s claims, including his Rule 1100 claim, to have been waived because Appellant’s appellate counsel, Albert C. Gaudio, Esquire, failed to include them in the “statement of questions involved” portion of his appellate brief as required by Rule 2116 of the Pennsylvania Rules of Appellate Procedure. The Honorable Zoran Popovich concurred in the result. The Honorable Joseph Del Sole filed a concurring and dissenting memorandum in which he contended that the two claims not included in the statement of questions involved should have been considered because the Commonwealth had not objected to this defect in Appellant’s brief and the issues were clearly set forth in the argument section of the brief. He addressed the Rule 1100 claim and concluded that Appellant was not brought to trial within 365 days of the filing of the criminal complaint. He also concluded that the Commonwealth had not carried its burden of demonstrating that it had exercised due diligence and that the circumstances occasioning the postponement were beyond the control of the Commonwealth.

¶ 4 On August 1, 1997, Appellant filed a timely pro se PCRA petition in which he requested the appointment of counsel. The only issue he raised in the petition was that his appellate counsel was ineffective for causing the Rule 1100 claim to be waived. The PCRA court appointed Amy L. Keim, Esquire, to represent Appellant in proceedings under the PCRA. She did not file a supplemental petition, and a hearing was scheduled for February 2, 1998. No testimony was taken, and the court ruled as follows:

[W]e had a discussion off the Record in chambers, in which it was, I think, both counsel have narrowed the issue in the same direction, so — and it doesn’t appear that there’s any need for any Record with regard to this, in addition to what’s already there. It appears that we have an issue regarding prior counsel’s action, or lack of action, at the Superior Court level, so we’ll set a briefing schedule. Amy, you have 20 days, and Wayne [B. Gongaware, Esquire, Assistant District Attorney], 20 days thereafter.

N.T., 2/2/98, at 2-3. The attorneys filed briefs, and on April 23, 1998, the court filed a notice of its intention to dismiss Appellant’s PCRA petition without a hearing. Attorney Keim did not file a response to the notice of dismissal. Appellant filed a pro se response on October 20,1998, and the PCRA court entered an order dismissing Appellant’s petition on October 22, 1998. Appellant filed a timely pro se notice of appeal to this Court. Attorney Keim neither entered an appearance on Appellant’s behalf in this Court nor was she granted leave to withdraw her representation.

¶ 5 Relying on this Court’s opinion in Commonwealth v. Quail, 729 A.2d 571 (Pa.Super.1999), we remanded this matter on December 10, 1999, for appointment of counsel to represent Appellant on appeal. Counsel was to file an appellate brief within sixty days of appointment, and the Commonwealth was to have thirty days thereafter to file a responsive brief. The PCRA court appointed counsel who, after receiving a sixty-day extension of time to file, filed a brief in this Court on April 17, 2000. Over thirty days have passed since the filing of Appellant’s brief with no response from the Commonwealth, so the case is now ripe for review.

¶ 6 The brief filed by counsel presents two issues for our review:

I. WHETHER THE PCRA COURT ERRED BY DISMISSING THE APPELLANT’S PETITION FILED UNDER THE POST-CONVICTION RELIEF ACT BECAUSE IT WAS NOT TIMELY FILED?

II. WHETHER THE PCRA COURT ERRED BY DISMISSING THE APPELLANT’S PETITION FILED UNDER THE POST-CONVICTION RELIEF ACT ON THE BASIS THAT A RULE 1100 CLAIM IS NOT COGNIZABLE UNDER THE POST-CONVICTION RELIEF ACT?

Appellant’s Counseled Brief at 6. We will address Appellant’s claims in the order presented.

¶ 7 When examining a post-conviction court’s grant or denial of relief, we are limited to determining whether the record supports the court’s findings and whether the order is otherwise free of legal error. Commonwealth v. White, 449 Pa.Super. 386, 674 A.2d 253, 255 (1996). We will not disturb findings that are supported by the record. Id.

¶ 8 A petitioner whose judgment of sentence becomes final after January 16, 1996, generally must file his petition within one year of the date his judgment of sentence becomes final. 42 Pa.C.S.A. § 9545(b)(1). A judgment of sentence becomes final at the conclusion of direct review, including discretionary review in the Supreme Court of the United States and the Supreme Court of Pennsylvania, or at the expiration of time for seeking review. 42 Pa.C.S.A. § 9545(b)(3). In this case, the Supreme Court of Pennsylvania denied Appellant’s petition for allowance of appeal on October 24, 1996. His judgment of sentence became final ninety days later when the time for filing a petition for a writ of certiorari with the United States Supreme Court expired. U.S. Sup.Ct. R. 13. The clerk of courts received the PCRA petition on August 1, 1997, within one year of the date the judgment of sentence became final, so the petition was timely under the PCRA. The PCRA court erred in holding otherwise.

¶ 9 We now turn to Appellant’s second issue, whether the PCRA court erred by dismissing Appellant’s petition on the basis that a Rule 1100 claim is not cognizable under the PCRA. On the basis of Commonwealth v. Eaddy, 419 Pa.Super. 48, 614 A.2d 1203 (1992), Appellant argues that a Rule 1100 claim is cognizable under the PCRA. Eaddy, however, is inapposite, as it involved a speedy trial claim under the sixth amendment to the United States Constitution. The Court in Eaddy held that such a claim was cognizable under 42 Pa.C.S.A. section 9543(a)(2)(v), which has since been repealed. On other occasions, this Court has held that ineffectiveness claims based on counsel’s failure to pursue claims of Rule 1100 violations are not cognizable under the PCRA because they do not implicate the truth-determining process. Commonwealth v. Tanner, 410 Pa.Super. 398, 600 A.2d 201 (1991); Commonwealth v. Dukeman, 388 Pa.Super. 469, 565 A.2d 1204 (1989). The PCRA court followed Tanner and Dukeman.

¶10 The PCRA court did not, however, have the benefit of our Supreme Court’s opinion in Commonwealth v. Lantzy, 558 Pa. 214, 736 A.2d 564 (1999). In Lantzy, the Supreme Court considered whether relief was available under the PCRA on a prisoner’s claim that counsel was ineffective for failing to perfect a direct appeal from a judgment of sentence. The question before the Court was whether the appellant’s claim was precluded by the language in section 9543(a)(2)(H) of the PCRA, 42 Pa.C.S.A. § 9543(a)(2)(h), that limits ineffectiveness claims to those affecting the truth-determining process. The Court held that the appellant’s claim was cognizable under the PCRA because such claims were cognizable on traditional habeas corpus review. Lantzy, 558 Pa. at 223, 736 A.2d at 570. That holding flowed from the Court’s conclusion that the truth-determining language must be subordinated to the directive in section 9542, 42 Pa.C.S.A. § 9542, that “[t]he action established in [the PCRA] shall be the sole means of obtaining collateral relief and encompasses all other common law and statutory remedies for the same purpose ... including habeas corpus and coram nobis.” 558 Pa. at 223 n. 4, 736 A.2d at 570 n. 4. Thus, it is not enough, post-Lantzy, to ask whether a claim of ineffectiveness implicates the truth determining process. Rather, if a claim does not implicate the truth determining process, it must then be determined whether the claim was cognizable on traditional habeas corpus review. Only where a claim does not implicate the truth determining process and is not of a type that was cognizable on traditional habeas corpus review will it not be cognizable under the PCRA.³

¶ 11 We turn now to the question of whether a claim that counsel was ineffective for failing to preserve a Rule 1100 claim was cognizable under traditional ha-beas corpus review. A speedy trial claim would not support the issuance of a writ of habeas corpus, Commonwealth ex rel. Romano v. Banmiller, 397 Pa. 606, 156 A.2d 825 (1959), and an allegation of ineffective assistance of counsel would support such relief only if it was found that counsel’s conduct amounted to a denial of due process of law. Commonwealth ex rel. Jones v. Maroney, 417 Pa. 567, 209 A.2d 285 (1965). This Court has recently concluded that due process does not require “a 6 th Amendment speedy trial right in the specific, quantified form of Rule 1100.” Commonwealth v. Dallenbach, 729 A.2d 1218, 1221 (Pa.Super.1999). Thus, we conclude that counsel’s failure to preserve a Rule 1100 claim does not amount to a denial of due process and would not have supported the issuance of a writ of habeas corpus. The PCRA court, therefore, did not err in holding that Appellant’s Rule 1100 claim was not cognizable under the PCRA.

¶ 12 Appellant’s attempt in his initial pro se brief to save his Rule 1100 claim by relying on this Court’s decision in Commonwealth v. Lantzy, 712 A.2d 288 (Pa.Super.1998) (en banc), rev’d, 558 Pa. 214, 736 A.2d 564 (1999), is also unavailing. He argues that PCRA counsel was ineffective for failing to file a petition for reinstatement of Appellant’s appeal nunc pro tunc⁴ This argument must fail because Lantzy and the other cases he cites involved situations in which the petitioners were entirely denied their right to direct appeal. In the instant case, Appellant had a direct appeal, even though two of the three issues he wished to pursue were waived. The relief afforded by Lantzy would, therefore, not be available to Appellant.⁵

¶ 13 Order affirmed.

¶ 14 Judge BROSKY files a Concurring and Dissenting Opinion.

1 . 35 P.S. §§ 780-113(a)(30) and (a)(16), respectively.

2 . Appellant had properly preserved the Rule 1100 claim by raising it in a pre-trial motion. The trial court denied the motion following a hearing immediately before trial. N.T., 8/15— 17/94, at 3-14.

3 . Thus, we disagree with the dissent’s conclusion that Lantzy has removed the “undermining of the truth-determining process” limitation as a separate hurdle for the assertion of ineffectiveness claims under the PCRA. We also disagree with the dissent's conclusion that Commonwealth v. Kimball, 555 Pa. 299, 724 A.2d 326 (1999), had that effect. As our Supreme Court explained in Commonwealth v. Chester, 557 Pa. 358, 370 n. 4, 733 A.2d 1242, 1248 n. 4 (1999), Kimball addressed the standard of review in allegations of ineffectiveness of counsel under the PCRA. In the instant case, however, we are concerned with the scope of post-conviction review. Hence, Kimball does not apply.

4 . The Pennsylvania Supreme Court issued its opinion in Lantzy during the pendency of this appeal. In it, the Supreme Court rejected the procedure this Court approved for petitioning for reinstatement of appeal rights outside the framework of the PCRA in cases where the issues to be pursued on appeal are not cognizable under the PCRA. However, this Court has since held that the Supreme Court's decision in Lantzy should not be applied retroactively to deny relief to petitioners who followed the procedures approved in this Court’s opinion. Commonwealth v. Hitchcock, 749 A.2d 935 (Pa.Super.2000).

5 . We disagree with the dissent’s contention that this conclusion is inconsistent with this Court’s recent decision in Commonwealth v. Hernandez, 2000 PA Super 154, 755 A.2d 1. That case involved an appeal from an order denying Hernandez's petition for an appeal nunc pro tunc. This Court had dismissed Hernandez’s direct appeal from his judgment of sentence because his counsel had failed to properly preserve for appeal any of the issues Hernandez wished to raise on appeal. Hernandez petitioned for an appeal nunc pro tunc, and the court of common pleas denied the petition. Hernandez appealed, and a majority of the panel hearing the case found that the lower court had abused its discretion. The majority equated the waiver of all issues on appeal with the failure to perfect an appeal, and expressly distinguished cases, such as the instant case, in which counsel’s ineffectiveness may have waived some but not all of the issues on direct appeal. Unlike the dissent, we do not find this distinction illusory.