Commonwealth v. Lantzy

JOHNSON, Judge:

In this appeal, we are asked to determine whether a Post Conviction Relief Act (PCRA) petitioner may, after having withdrawn his direct appeal and post-sentence motions contesting the validity of his guilty plea and sentence, restore these challenges by asserting that sentencing counsel was ineffective for advising him to withdraw his appeal and motions in return for a modified sentence. Jesse D. Lantzy maintains that by following his counsel’s advice, he was deprived of the right to take a direct appeal when a panel of this Court vacated his modified sentence and reinstated his original sentence. Because we conclude that Lantzy has failed to fulfill the PCRA requirement of establishing that counsel’s actions undermined the truth-determining process to the extent that no reliable determination of guilt or innocence could have taken place, we affirm.

On September 3, 1992, Lantzy entered pleas of guilty to theft, 18 Pa.C.S. § 3921(a), receiving stolen property, 18 Pa.C.S. § 3925, and unauthorized use of an automobile, 18 Pa.C.S. § 3928(a). The court then sentenced Lantzy to an aggregate term of 5 years 11$ months’ to 11 years 11 months’ imprisonment for these crimes. Dissatisfied, Lantzy filed post-sentence motions to modify his sentence, to recuse the sentencing judge, and to withdraw his guilty plea. He also filed a direct appeal to this Court. The trial court scheduled a hearing to entertain these motions; however, it did not expressly grant reconsideration or vacate its previous judgment of sentence within 30 days. In the meantime, Lantzy’s counsel, David Kaltenbaugh, was able to negotiate a reduced sentence of four to eight years’ incarceration. In return, Lantzy promised the Commonwealth that he would pay $2500.00 in restitution and withdraw his appeal and post-sentence motions. Lantzy’s appeal and post-sentence motions were eventually withdrawn, and on December 18, 1993, the court imposed a sentence that reflected this agreement.

Shortly thereafter, however, Lantzy breached the agreement. Despite having withdrawn his notice of appeal and post-sentence motions, Lantzy insisted that his guilty plea counsel, Attorney Kevin Rozieh, and his sentencing counsel, Attorney Kalten-baugh, rendered ineffective assistance; consequently, he filed a number of pro se motions seeking to modify his newly reduced sentence and to withdraw his guilty plea. The trial court denied these motions, and Lantzy filed a pro se appeal. Holding that the sentence modification was invalid due to jurisdictional considerations, a panel of this Court quashed the appeal and reinstated Lantzy’s original sentence. Commonwealth v. Lantzy, 439 Pa.Super. 669, 653 A.2d 1301 (1994) (table). This determination left Lant-zy with his original sentence, and due to his earlier withdrawal of his appeal and post-sentence motions, he had exhausted his ability to challenge it via a direct appeal.

On April 16, 1996, Lantzy filed a PCRA petition asserting that (1) Attorney Kalten-baugh was ineffective for advising him to withdraw his original appeal and post-sentence motions in exchange for a sentence that, ultimately, was vacated, and (2) that the Commonwealth improperly obstructed his right to appeal. This latter argument, however, was neither developed in the petition, nor at the PCRA hearing. Subséquently, the PCRA court denied Lantzy relief. The court explained that in negotiating the reduced sentence, counsel’s actions were calculated to effectuate Lantzy’s best interests and that Lantzy’s own conduct led to the reinstatement of the greater sentence. This appeal followed.

On appeal, Lantzy asserts only that he suffered from ineffective assistance of counsel. Nowhere does he argue that his conviction resulted from any other violation of the Constitution of this Commonwealth or the Constitution or laws of the United States. He maintains that because the modified sentence was determined to be invalid, he lost the opportunity to litigate the validity of his plea and sentence. Even though he had previously exercised his right to take a direct appeal and later withdrew that appeal, Lant-zy nevertheless contends that by following counsel’s advice, he was deprived of that right.

In reviewing a post-conviction court’s grant or denial of relief, we are limited to evaluating whether the record supports the court’s findings and whether the order is free of legal error. Commonwealth v. Yager, 454 Pa.Super. 428, 434-36, 685 A.2d 1000, 1003 (1996) (en banc), appeal denied, 549 Pa. 716, 701 A.2d 577 (1997); Commonwealth v. Cranberry, 434 Pa.Super. 524, 529-31, 644 A.2d 204, 207 (1994). Because we are assigned the duty of interpreting the PCRA as it applies to the matter before us, we must note a recent change in the law affecting its application. Before November 17, 1995, § 9543(a)(2)(v) of the PCRA provided petitioners with the possibility of relief where their judgment of sentence resulted from a violation of the. United States Constitution that would require the granting of federal habeas corpus relief to a state prisoner. Consequently, at the time this provision was in effect, PCRA relief was available where the petitioner averred that trial counsel was ineffective for failing to file an appeal as requested; thus infringing on the petitioner’s right to appeal. See Commonwealth v. Hickman, 434 Pa.Super. 633, 634-35, 644 A.2d 787, 788 (1994). However, Act No. 32 of 1995, November 17, 1995, P.L. 1118 (Spec.Sess. No. 1), narrowed the availability of PCRA relief by eliminating this provision. Such legislation illustrates the limited scope of the PCRA. The PCRA is not designed to afford appellants with the opportunity for relief without limitation; instead its scope has been defined as follows: “[the PCRA] provides for an action by which persons convicted of crimes they did not commit and persons serving illegal sentences may obtain collateral relief.” 42 Pa.C.S. § 9542.

Lantzy filed his petition for post-conviction relief on April 16, 1996, after the above amendment to the PCRA took effect. Accordingly, § 9543(a)(2)(h) is the sole provision that relates to his ineffective assistance of counsel claim. In order for Lantzy’s ineffective assistance claim to warrant relief under this provision of the PCRA, he must plead and prove, by a preponderance of the evidence, that his conviction resulted from “[ineffective assistance of counsel which, in the circumstance of the particular case, so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place.” 42 Pa.C.S. § 9543(a)(2)(h). Because the PCRA is designed to prevent a fundamentally unfair conviction; we have interpreted this restriction to require that an ineffectiveness claim brought under the PCRA raises a question of whether an innocent individual has been convicted. Commonwealth v. Korb, 421 Pa.Sur per. 44, 46-49, 617 A.2d 715, 716-17 (1992). Once the petitioner has satisfied this threshold test, he or she must prove “that the underlying claim is of arguable merit, [that] counsel had no reasonable basis for the act or omission in question, and [that] but for counsel’s act or omission, the outcome of the proceeding would have been different.” Commonwealth v. Appel, 547 Pa. 171, 199, 689 A.2d 891, 905 (1997); Commonwealth v. Lewis, 430 Pa.Super. 336, 341-43, 634 A.2d 633, 636 (1993).

In Commonwealth v. Petroski, 695 A.2d 844 (Pa.Super.1997), a panel of this Court addressed whether the denial of the right to a direct appeal could be cured through the filing of a PCRA-petition alleging the ineffective assistance of counsel in failing to take an appeal as requested. Although Petroski specifically requested that his attorney take steps neqessary to protect his right to appeal and to withdraw his guilty plea, we noted that the PCRA petition contained no averment that the deprivation of the petitioner’s right to appeal undermined the truth-determining process. Id. at 847. Moreover, the petition neglected to indicate how counsel’s actions prevented a reliable determination of guilt or innocence. Id. We held that “the Post Conviction Relief Act requires that a petitioner both plead and prove facts establishing that the violation of the constitutional right or the ineffectiveness of counsel so undermined the truth-determining process as to render a finding of guilt unreliable.” Id. at 844. Because Petroski did not demonstrate how the truth-determining process was affected by counsel’s failure to appeal, the petition was properly denied. Id. at 847. See also Commonwealth v. Tanner, 410 Pa.Super. 398, 405-07, 600 A.2d 201, 205 (1991) (holding that where the PCRA petitioner failed to establish how the truth-determining process was undermined by counsel’s failure to advise him of the possibility of a discretionary appeal to the Supreme Court of Pennsylvania, post-conviction relief was not available).

We now believe that Petroski deserves some clarification. When counsel takes some action that ultimately infringes on the petitioner’s right to a direct appeal, the action may well affect the truth-determining process. As President Judge McEwen points out in his Dissenting Opinion, when the trial court enters final judgment, the truth-determining process is not necessarily complete; the process continues to be worked out through the exhaustion of the petitioner’s appeals as of right. See Evitts v. Lucey, 469 U.S. 387, 404, 105 S.Ct. 830, 840, 83 L.Ed.2d 821, 835 (1985). Thus, a petitioner alleging that counsel rendered ineffective assistance by obstructing his right to a direct appeal is not always ineligible for relief under the PCRA. In such situations, the truth-determining process may well be implicated.

Accordingly, in order to prevail on a PCRA ineffective assistance claim, including those alleging that counsel’s actions interfered with the petitioner’s right to a direct appeal, the petitioner must plead and prove that his adjudication of guilt was made unreliable through counsel’s ineffectiveness. As the ineffectiveness provision of the PCRA states, the petitioner must establish that he suffered from “[ineffective assistance of counsel which, in the circumstances of the particular case, so undermined the truth-determining process, that no reliable adjudication of guilt or innocence could have taken place.” 42 Pa.C.S. § 9543(a)(2)(ii) (emphasis added).

The Dissent argues that when a defendant is deprived of the right to appeal through counsel’s error, the prejudice that the defendant may suffer automatically entitles him to relief under the PCRA. However, as noted above, the purpose of the PCRA is to afford collateral relief only to those individuals convicted of crimes that they did not commit and persons serving illegal sentences. 42 Pa.C.S. § 9542. Thus, if we were to permit a petitioner to obtain PCRA relief where the petitioner does not demonstrate that he was innocent or that his sentence was illegal, we would be ignoring the limited scope of the PCRA as defined by our legislature. If a defendant desires to assert that counsel’s ineffective assistance deprived him of the right to appeal, causing him prejudice, but not affecting the underlying verdict or adjudication, the defendant can seek relief by requesting an appeal nunc pro tunc. See Commonwealth v. Stock, 545 Pa. 13, 19, 679 A.2d 760, 764 (1996) (granting a defendant an appeal nunc pro tunc where counsel failed to timely file a direct appeal and noting that “an appeal nunc pro tunc is intended as a remedy to vindicate the right to appeal where that right has been lost due to extraordinary circumstances.”). The fact that he will not be awarded relief under the PCRA does not prevent the petitioner from obtaining relief altogether.

Accordingly, in light of the principle that a PCRA petitioner alleging ineffective assistance of counsel must always aver and demonstrate that counsel’s actions rendered the finding of guilt unreliable, we have examined Lantzy’s Motion for Post-Conviction Collateral Relief and the Notes of Testimony from his PCRA evidentiary hearing. A review of Lantzy’s petition reveals that he checked the box on the form indicating that he was eligible for relief because of “[¡Ineffective assistance of counsel which, in the circumstances of the particular case, so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place.” Motion, filed April 16,1996, at 2. The petition also contained the statement that in the event that the PCRA appeal was granted, Lantzy would assert that he was innocent. Id. at 3. The petition did not attach any affidavits, records or other supporting evidence, but merely asserted that the record in the case supported Lantzy’s position. Id. at 4.

Yet, in order to prevail on his PCRA petition, Lantzy must do more than make bald statements; he must demonstrate by a preponderance of the evidence that the truth-determining process was compromised before we may reach the merits of his claims. 42 Pa.C.S. § 9543(a)(2)(h); Petroski, supra. While Lantzy’s appellate brief suggests that guilty plea counsel wrongfully induced his plea, Lantzy never testified that he was innocent. Indeed, Lantzy testified that at the time the deal was negotiated, he felt that it was to his benefit and that his attorney did a good job. N.T., August 15, 1996, at 12. He did not assert that he appealed the modified sentence because he was innocent of the crimes charged; rather, Lantzy explained that he believed “that there [were] other things about my character that the Court should have listened to ... I felt my sentence should have been mitigated further.” Id. at 13. He went on to explain that the motive for his appeal was the prospect of a lesser sentence and the possibility of work release. Id. at 14. Such statements do not suggest that Lantzy was challenging the reliability of his conviction. Again, a PCRA petitioner “must both plead and prove facts which establish that the ineffectiveness of counsel so undermined the truth-determining process as to render a finding of guilt unreliable.” Petroski, supra, at 847 (emphasis added). By neglecting to provide the court with evidence that he was wrongfully convicted, Lantzy has failed to satisfy his burden. Id. Thus, he is not entitled to relief under the PCRA.

We are not here concerned with the legality of Lantzy’s sentence. The only sentencing issues that are eligible for relief under the PCRA are those involving sentences greater than the statutory limit; here, Lantzy did not raise such an allegation. 42 Pa.C.S. § 9543(a)(2)(vii); Lewis, supra, at 341-43, 634 A.2d at 636. Moreover, contrary to the Dissent’s implication, we need not decide the issue of whether Lantzy’s other constitutional rights were violated; that question was raised neither before the PCRA court nor this Court. However, even if this question had been set forth, in order to warrant relief for such a claim, the PCRA petitioner must again plead and prove that the violation “so undermined the truth-determining process that no rehable adjudication of guilt or innocence could have taken place.” 42 Pa.C.S. § 9543(a)(2)(i); Petroski supra. This, Lant-zy has failed to do. The sole question for our review was whether Lantzy established that he was entitled to post-conviction relief due to the ineffective assistance of sentencing counsel. Because Lantzy cannot establish that sentencing counsel’s conduct resulted in an unreliable conviction, our inquiry must go no further.

We are an error-correcting court and, as such, we may not tread into areas that are not preserved for our review. In analyzing the denial of post-conviction relief, we must consider only the propriety of the order below. Yager, supra. After considering the evidence, the scope of the PCRA, and the applicable law, we cannot conclude that the PCRA court’s actions were unwarranted. Simply put, Lantzy has failed to demonstrate that the PCRA court arrived at an erroneous result. Although the PCRA court denied Lantzy’s motion on the premise that his attorney had a reasonable basis for negotiating the modified sentence, that conclusion is not the basis of our decision. “This Court may affirm a trial court order when it is correct on any legal ground, regardless of the legal basis on which the trial court relied.” Petro-ski supra, at 847, citing Schimp v. Allantan, 442 Pa.Super. 365, 370-71, 659 A.2d 1032, 1035 (1995). Because Lantzy has failed to establish that his conviction was unreliable, we are without authority to evaluate his attorney’s effectiveness. Consequently, we affirm the order that denied Lantzy’s petition for post-conviction relief.

Order AFFIRMED.

McEWEN, President Judge, files a Dissenting Opinion, which is joined by CAVANAUGH and POPOVICH, JJ.