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Commonwealth v. Liston


August 17, 2009


Appeal from the Order of the Superior Court entered January 8, 2008 at No. 1159 WDA 2006, remanding the Judgment of Sentence of the Court of Common Pleas of Fayette County entered August 19, 2005 at Nos. CP-26-CR-0001213-2004 and CP-26-CR-0001231-2004. 941 A.2d 1279 (Pa. Super. 2008).

The opinion of the court was delivered by: Madame Justice Greenspan


SUBMITTED: March 4, 2009


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, 813 A.2d 726 (Pa. 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 substance*fn1 and possession with intent to deliver a controlled substance,*fn2 and a single count of criminal conspiracy.*fn3 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.*fn4

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.*fn5 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, 826 A.2d 831 (Pa. 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, 826 A.2d 831 (Pa. 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 nunc 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, 939 A.2d 877, 880 (Pa. 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, 880 A.2d 597, 602 (Pa. 2005), this Court reiterated that the power to delineate exceptions to the Grant rule rests solely in this Court.*fn6

The Commonwealth further complains that the Superior Court's directive also conflicts with Commonwealth v. Reaves, 923 A.2d 1119 (Pa. 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.*fn7 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.*fn8 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, 771 A.2d 721, 736 (Pa. 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 "[d]eferring 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, 933 A.2d 997, 1030 (Pa. 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, 922 A.2d 892, 897 (Pa. 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.*fn9 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 Grant. Finally, we affirm the judgment of sentence.*fn10

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

Madame Justice Todd and Mr. Justice McCaffery did not participate in the consideration or decision of this case.

Mr. Chief Justice Castille files a concurring opinion in which Messrs. Justice Saylor and Eakin join.

Mr. Justice Baer files a concurring opinion.



I join the Majority Opinion to the extent it holds that the Superior Court erred in mandating that trial courts grant the filing of post-sentence motions nunc pro tunc in each case in which a defendant's direct appeal rights are reinstated. As the Majority recognizes, this holding improperly affords an enumerated class of defendants i.e., those who have had their direct appeal rights reinstated, the opportunity to raise claims of trial counsel ineffectiveness on direct appeal in contravention of our decision in Commonwealth v. Grant, 813 A.2d 726 (Pa. 2002), which held that, generally, such claims should be deferred to collateral review. I write separately, however, to disassociate myself from the Majority's characterization of the Superior Court's holding as "attempt[ing] to promulgate a new rule of criminal procedure," Slip Op. at 7, 9, and to provide counterpoint to Chief Justice Castille's Concurring Opinion advocating the abrogation of the exception to Grant created in Commonwealth v. Bomar, 826 A.2d 831 (Pa. 2004). I believe the Bomar exception remains good law, and the Superior Court's decision herein is an attempt, albeit an unwarranted one, to have the instant case fall within that narrow exception.

As to my first point, a fair review of the Superior Court's opinion reveals that the court was not promulgating a new rule of criminal procedure, but rather was evaluating a previous decision of that court, which addressed the issue of a trial court's scope of review in a collateral proceeding when one of the remedies sought and granted was the reinstatement of the right to a direct appeal. See Commonwealth v. Liston, 941 A.2d 1279, 1281-83 (Pa. Super. 2008) (examining the vitality of the Superior Court's previous decision in Commonwealth v. Miranda, 442 A.2d 1133 (Pa. Super. 1982), which addressed whether the trial court in a collateral proceeding is precluded from reaching the merits of additional issues raised by the defendant once the trial court grants a direct appeal nunc pro tunc).

Secondly, I note my respectful disagreement with the view taken in Chief Justice Castille's Concurring Opinion, wherein he asserts that this Court should no longer recognize a "Bomar exception to the rule of Grant," permitting defendants to raise collateral claims on direct appeal, unless the defendant expressly forfeits his right to PCRA review via the execution of a knowing and voluntary waiver of collateral review. Concurring Opinion at 9. While the Chief Justice has previously taken this position in his responsive opinions in Commonwealth v. O'Berg, 880 A.2d 597 (Pa. 2005), and Commonwealth v. Rega, 933 A.2d 997 (Pa. 2007), I feel compelled to highlight that a majority of this Court has never squarely addressed the issue. Further, the Bomar decision itself, which has never been abrogated or modified by this Court, set forth no such forfeiture requirement.

I acknowledge that in footnote 22 of our recent decision in Commonwealth v. Wright, 961 A.2d 119 (Pa. 2008), the Court cited Chief Justice Castille's Concurring Opinion in Rega, as follows:

Prolix collateral claims should not be reviewed on post-verdict motions unless the defendant waives his right to PCRA review, because the PCRA does not afford the right to two collateral attacks.

Id. at 148 n.22. This statement, however, amounts to nothing more than dicta because Wright was a direct appeal from the imposition of a sentence of death. Thus, the parties had no reason to raise or brief the issue of what review a PCRA petitioner is entitled under circumstances where a trial court, employing the Bomar exception, has addressed a claim of ineffective assistance of counsel on direct appeal.

As I recognized in my Concurring Opinion in Wright:

I agree with the observation that "post-verdict motions should not become an accepted repository for laundry lists of collateral-appropriate complaints...." Maj. Slip Op. at 37 (quoting Commonwealth v. Rega, 593 Pa. 659, 933 A.2d 997, 1032-33 (Pa. 2007) (Castille, J., concurring, joined by Saylor, J. concurring). Nevertheless, this Court has previously provided an exception to the holding in Commonwealth v. Grant, 572 Pa. 48, 813 A.2d 726 (Pa. 2002), delaying claims of counsel ineffectiveness until PCRA review, and allowed review of claims of ineffectiveness on direct appeal that were raised and addressed by the trial court on post-verdict motions, see, Commonwealth v. Bomar, 573 Pa. 426, 826 A.2d 831 (Pa. 2003). The Court, however, has never held that such process would result in waiver of subsequent full PCRA review. To the extent that footnote 22 attempts to change our jurisprudence in dicta supported only by cites to two concurring opinions, I respectfully disagree. I believe our established case law permits the review of claims under the Bomar exception without affecting a defendant's right to seek PCRA relief. Of course, in accordance with well-established judicial principles, claims that have been previously litigated at the time the PCRA is filed are barred. 42 Pa.C.S. §9543(a)(3). 961 A.2d at 158-59.

To be clear, I am not advocating that each PCRA petitioner be afforded two rounds of collateral review. In the vast majority of cases, our decision in Grant clarifies that claims of ineffective assistance of counsel are to be deferred until collateral review proceedings. The Bomar exception is only satisfied where the ineffectiveness claims were presented to the trial court, which, in its sound discretion, chose to address them on direct appeal; the trial court held an evidentiary hearing thereon; and the trial court ultimately ruled on the merits of the ineffectiveness claims in its opinion. Only in a case where all of this occurs, and a petitioner subsequently files a PCRA petition after his judgment of sentence becomes final, will the issue of the proper scope of collateral review under these peculiar circumstances arise. These conditions are simply not present in the matter now before this Court.

Accordingly, I respectfully caution against ruling upon this issue until it is raised, briefed, and argued by the parties in the appropriate case. See Commonwealth v. Dixon, 918 A.2d 95, 108 n.15 (Pa. 2007) (holding that "[w]e find it ill-advised, generally, to consider substantial questions not squarely presented and fully argued by the parties below and before this Court."). Absent a "real world" premise, we cannot begin to anticipate and analyze the peculiar positions advanced by thoughtful parties. Thus, it is inappropriate for this Court to hold that a PCRA petitioner per se forfeits his entire collateral review when a trial court exercises its discretion, for what one may presuppose is an appropriate reason, to dispose of a certain claim(s) of ineffectiveness on direct appeal, while leaving other collateral issues for the more typical post-judgment scrutiny anticipated by Grant. This is an especially important observation when one considers the already significantly limited nature of collateral review, via the one-year jurisdictional time restriction.

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