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Commonwealth v. Liston

August 17, 2009

COMMONWEALTH OF PENNSYLVANIA, APPELLANT
v.
CLAYTON LEROY LISTON, APPELLEE



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

CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, GREENSPAN, JJ.

SUBMITTED: March 4, 2009

OPINION

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 ...


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