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 ...