September 3, 2013
COMMONWEALTH OF PENNSYLVANIA Appellee
DENNIS LEE DAVIS Appellant COMMONWEALTH OF PENNSYLVANIA Appellant
DENNIS LEE DAVIS Appellee
Appeal from the PCRA Order June 27, 2012 In the Court of Common Pleas of Somerset County Criminal Division at No(s): CP-56-CR-0000407-2008.
Appeal from the PCRA Order July 6, 2012 In the Court of Common Pleas of Somerset County Criminal Division at No(s): CP-56-CR-0000407-2008.
BEFORE: SHOGAN, J., OTT, J., and STRASSBURGER, J. [*]
In these cross-appeals, Dennis Lee Davis appeals from the order denying him collateral, post-conviction relief on his claim that he was denied his constitutional right to counsel because his trial attorney was not properly licensed at the time of his trial. The Commonwealth appeals from the order granting Davis a new trial on the basis that his trial counsel was ineffective for failing to present character witnesses. After a thorough review of the certified record, the submissions by the parties and relevant law, we reverse the denial of relief based on trial counsel's licensure. Because of our resolution of the first issue, we need not address the merits of the Commonwealth's appeal. Accordingly, we vacate Davis' judgment of sentence and remand for a new trial.
Because of the nature of the claim, we will not detail the facts underlying Davis's conviction on charges of rape, aggravated indecent assault, indecent assault and recklessly endangering another person.Following a hearing, Davis was also determined to be a sexually violent predator (SVP). He received an aggregate term of eight to sixteen years' incarceration. Relevant to this appeal, Davis was represented throughout trial, SVP determination, and sentencing by Arnold Yale Steinberg.
Steinberg had committed financial improprieties with settlement funds intended for some of Steinberg's civil law clients. On April 18, 2008, Steinberg submitted a letter of resignation with an addendum to Disciplinary Board. The addendum evidenced an agreement allowing Steinberg to complete four civil matters before the Federal Court, prior to his resignation. The addendum anticipated Steinberg's resignation would become effective in December 2008. He also agreed he would not "accept or undertake to render legal services for any new clients and he will not take on any new representation for any past or current client." See Addendum to Resignation Statement, 4/18/08, at 1. The final paragraph of the addendum stated:
(g) If Disciplinary Counsel determines that Respondent [Steinberg] has violated any part of the above agreement and Disciplinary Counsel, upon written request, does not receive a written satisfactory explanation for same from Respondent or his counsel within seven (7) days, Respondent hereby authorizes Disciplinary Counsel to forward the executed Resignation Statement to the Disciplinary Board for filing with the Supreme Court of Pennsylvania, pursuant to Rule 215, Pa.R.D.E.
Id., at 3.
Davis was arrested regarding the above crimes on May 2, 2008. See Criminal Complaint. Davis's girlfriend, Sheri Diane St. Claire, contacted and hired Steinberg that day. See N.T. PCRA Hearing, 12/12/11, at 60. St. Claire further testified that Steinberg told her he would be retiring at the end of the year due to health problems, but he never told her of any difficulties with the Disciplinary Board. Id. at 73-74. Davis testified at his PCRA hearing that Steinberg never informed him of his disciplinary problems. Id. at 29. Thereafter, Steinberg represented Davis throughout the trial process, his name appearing as counsel of record as late as the March 13, 2009 Court Commitment documents. On March 27, 2009, Davis filed a pro se notice of appeal. The record does not indicate that a Grazier hearing was held, but Davis nonetheless represented himself throughout his unsuccessful direct appeal. See Commonwealth v. Davis, 595 WDA 2009, filed 11/10/09 (unpublished memorandum).
On August 12, 2011, Davis filed a timely, counseled PCRA petition claiming several instances of ineffective assistance of counsel on the part of Steinberg, including the failure to call character witnesses on behalf of Davis. Subsequently, on November 14, 2011, Davis filed an amended PCRA petition alleging Steinberg was ineffective for representing Davis on February 27, 2009 after he had been disbarred. The PCRA petition was amended again in December 2011 at which time Davis claimed his constitutional right to counsel had been effectively denied by Steinberg's representation throughout the entire adversarial process, due to Steinberg's resignation dated April 18, 2008.
The PCRA court held hearings on September 12, 2011, December 30, 2011, and January 31, 2012. Steinberg did not appear at any of the hearings. The PCRA court ruled that despite the Disciplinary Board's knowledge of Steinberg's financial malfeasance, he had been permitted to practice until December 20, 2008. Therefore, Steinberg was at all times during the trial, a licensed attorney. Accordingly, Davis had not been denied his constitutional right to counsel. See Commonwealth v. Grant, 992 A.2d 152 (Pa. Super. 2010). Our review of this issue, however, leads to our conclusion that Davis's claims warrant PCRA relief. Therefore, we are constrained to reverse.
The PCRA court correctly noted that in Commonwealth v. Grant, supra, a panel of our Court noted the difference between a lawyer who has lost his or her license for technical reasons, such as failure to pay the yearly fee, and for substantive reasons, such as in Grant, repeatedly failing to fulfill continuing legal education requirements. When the failure is technical, a petitioner must demonstrate actual prejudice from deficient representation. However, applying United States v. Cronic, 466 U.S. 648 (1984),  our Court held when the reason for non-licensure is substantive, a constructive denial of counsel has been demonstrated, which is presumptively prejudicial.
Here, the PCRA court noted that although Steinberg had resigned, he still possessed his license until December 30, 2008. While the reasons he resigned were substantive violations of the Canon of Ethics, the Disciplinary Board nonetheless permitted Steinberg to complete his representation for four clients in civil matters before the Federal Court. The PCRA court reasoned that the Disciplinary Board "considered Mr. Steinberg still competent to represent parties in the cases he was already handling." See Pa.R.A.P. 1925(a) Opinion, 6/27/12, at 5. Accordingly, absent a determination of incompetence by the Disciplinary Board the PCRA court concluded since Steinberg still possessed a license to practice, Davis was not entitled to relief on this issue.
The PCRA court's analysis, however, did not address paragraph (g) of the addendum. Paragraph (g) states that if Steinberg violated the terms of his resignation letter, without acceptable reasons, his resignation would be immediately forwarded to the Supreme Court.
On May 2, 2008, exactly 14 days after his resignation letter and addendum, Steinberg violated its terms by accepting Davis's representation. There is no indication in the certified record that Steinberg notified Disciplinary Counsel of his near immediate violation of the agreement nor that Disciplinary Counsel was independently aware of the violation.
Paragraph (g) of the Resignation Addendum stated that if Steinberg violated the agreement and had no satisfactory explanation, his resignation would be immediately forwarded to the Supreme Court. Accordingly, but for Steinberg's concealment of his violation, his resignation would have been effective as of May 2008, when he breached the agreement. Therefore, Steinberg was constructively unlicensed five months prior to Davis' October 23-24, 2008 trial.
Because we have determined Steinberg was constructively unlicensed, we must look to Grant, supra, to determine the effect.
Steinberg's resignation was a result of violating Pennsylvania Rules of Professional Conduct, 1.4 (a) (a failure to promptly comply with reasonable requests for information); 1.15 (a) (comingling funds); 1.15 (b) (failure to notify client of an award); and 8.4 (c) (dishonesty, fraud, deceit or misrepresentation). These are substantive violations of the Rules of Professional Conduct.
Courts have consistently distinguished between technical licensing defects and serious violations of bar regulations reflecting an incompetence to practice law. Where the attorney's license has been suspended or his/her credentials to practice have otherwise been impaired as a result of mere technical defects, the constitutional right to counsel is not violated and prejudice is not presumed. Where the attorney's license has been suspended or he/she has been disbarred for substantive violations, however, constitutional rights to counsel are violated and harm is presumed.
Commonwealth v. Grant, 992 A.2d at 159 (internal citations omitted).
Because Steinberg was constructively unlicensed and the violations that led to his resignation were substantive, we must presume prejudice to Davis. Therefore, we are constrained to reverse the PCRA court's ruling on this issue, and grant Davis a new trial.
The Commonwealth appealed from the PCRA court's grant of a new trial based on the failure to call character witnesses. This issue is moot given our resolution of the first issue.
The PCRA Order of June 27, 2012 (Docket No. 1180 WDA 2012) is reversed. Appeal from the PCRA Order July 6, 2012 (Docket No. 1181 WDA 2012) is dismissed as moot. This matter is remanded for a new trial. Jurisdiction relinquished.