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Commonwealth v. Turner

Supreme Court of Pennsylvania

November 22, 2013


Argued September 11, 2012.

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[Copyrighted Material Omitted]

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Appeal from the order entered on July 15, 2011, in the Court of Common Pleas, Criminal Division, Philadelphia County, at No. CP-51-CR-0006247-2007. Trial Court Judge: Ramy I. Djerassi, Judge.

For Commonwealth of Pennsylvania, APPELLANT: Hugh J. Burns, Jr., Esq., Philadelphia District Attorney's Office; Rufus Seth Williams, Esq., Office of the District Attorney of Philadelphia County.

For Emma Turner, APPELLEE: Elayne Bryn, Esq.

BEFORE: CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, ORIE MELVIN, JJ. MR. JUSTICE BAER. Former Justice Orie Melvin did not participate in the consideration or decision of this case. Mr. Chief Justice Castille, Mr. Justice Eakin and Mr. Justice McCaffery join the opinion. Mr. Justice Saylor files a dissenting opinion. Madame Justice Todd files a dissenting opinion.


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[622 Pa. 324] MR. BAER, JUSTICE.

The Commonwealth has filed a direct appeal from an order of the court of common pleas of the first judicial district declaring that Section 9543(a)(1)(i) of the Post-Conviction Relief Act (PCRA), 42 Pa.C.S. § 9543(a)(1)(i),[1] which conditions the availability of post-conviction relief on whether the petitioner is currently serving a sentence of imprisonment, probation, or parole, is unconstitutional as applied to Emma Turner (Petitioner).[2] The court of common pleas (PCRA court) held that barring Petitioner from obtaining collateral relief on her timely claim of trial counsel ineffectiveness because she had completed serving her sentence, as Section 9543(a)(1)(i) requires, would violate Petitioner's constitutional [622 Pa. 325] due process right to be heard on this issue. See Ford v. Wainwright, 477 U.S. 399, 424, 106 S.Ct. 2595, 91 L.Ed.2d 335 (1986) (Powell, J. concurring) (" [i]f there is one 'fundamental requisite' of due process, it is that an individual is entitled to an 'opportunity to be heard.'" (internal citation omitted)). The PCRA court, therefore, permitted Petitioner to proceed with her PCRA petition, despite her ineligibility under Section 9543(a)(1)(i), granted an evidentiary hearing, and ultimately awarded her a new trial. Because

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we conclude that Petitioner has no due process right to be heard outside of the limits imposed by Section 9543(a)(1)(i) of the PCRA, and that she had the opportunity to attempt to vindicate her claim on direct appeal under Commonwealth v. Bomar, 573 Pa. 426, 826 A.2d 831 (Pa. 2003), or within the time frame permitted by the PCRA, we reverse the decision of the PCRA court and hold that this section is constitutional as applied to Petitioner.

Between October 16 and November 21, 2006, police used a confidential informant to conduct several controlled purchases of narcotics from Petitioner's home. The investigation ultimately led to a search warrant that uncovered narcotics and related equipment, as well as pre-recorded buy money which was found on Petitioner's person when she was arrested. With counsel, Petitioner waived her right to a jury, and was tried non-jury on November 5, 2007.[3] The trial court found Petitioner guilty of conspiracy to deliver a controlled substance, and on January 14, 2008, sentenced her to two years of reporting probation. Petitioner did not file a direct appeal.

On January 12, 2009, two days short of a year after her conviction, Petitioner filed a pro se PCRA petition. New counsel was appointed and filed an amended petition on November 17, 2009, raising three claims of ineffective assistance of trial counsel.[4] Petitioner filed a supplemental petition [622 Pa. 326] on February 8, 2010, to add a claim that trial counsel was also ineffective for failing to call character witnesses who would have testified about Petitioner's excellent reputation in the community.

Eleven days later, on February 19, 2010, Petitioner completed her two-year sentence of probation while the PCRA proceedings remained pending. The Commonwealth moved to dismiss the PCRA petition on the ground that Petitioner's completion of her sentence rendered her ineligible for relief pursuant Section 9543(a)(1)(i). Petitioner responded that dismissal of her petition on this ground would violate her due process right to have her ineffectiveness claims heard, rendering the PCRA unconstitutional as applied to her.[5]

On October 22, 2010, the PCRA court rejected the Commonwealth's motion to dismiss, and held that Section 9543(a)(1)(i) of the PCRA was unconstitutional as applied to Petitioner. Commonwealth v. Turner, 19 Pa. D. & C.5th 129 (C.P. Philadelphia October 22, 2010). The court initially recognized that in accord with the clear statutory language defendants who are no longer serving a sentence are ineligible for relief under the PCRA. See 42 Pa.C.S. § 9543(a)(1)(i); Commonwealth v. Ahlborn, 548 Pa. 544, 699 A.2d 718 (Pa. 1997). The court further observed that under Commonwealth v. Grant, 572 Pa. 48,

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813 A.2d 726 (Pa. 2002), ineffective assistance of counsel claims should be addressed under the PCRA rather than on direct appeal, which, according to the PCRA court, meant that the only opportunity for Petitioner to obtain review of her claims of ineffectiveness was in a post-conviction proceeding. But see Bomar, 573 Pa. 426, 826 A.2d 831 (permitting review of ineffective assistance of counsel claims on direct appeal under certain circumstances). Accordingly, [622 Pa. 327] the court concluded that Petitioner was without recourse to address her ineffectiveness claim, a result the PCRA court viewed as an unconstitutional deprivation of her due process right to a remedy arising from her alleged denial of the effective assistance of counsel. Consequently, the PCRA court held that Section 9543(a)(1)(i), as applied, was unconstitutional.

On June 16, 2011, the PCRA court held an evidentiary hearing on the merits of Petitioner's claims and, on July 15, 2011, granted her a new trial solely on the ground that trial counsel had been ineffective for failing to call an available character witness. The Commonwealth took a direct appeal to this Court pursuant to 42 Pa.C.S. § 722(7).

The issue on appeal, as presented by the Commonwealth, is whether Petitioner was deprived of due process when she failed to seek review of her ineffectiveness claims on direct appeal or to expedite PCRA review, and therefore became statutorily ineligible for PCRA relief due to the expiration of her sentence. Because our inquiry in this case focuses on the PCRA court's identification and application of legal principles, which are questions of law, our review is plenary. Commonwealth v. Reaves, 592 Pa. 134, 923 A.2d 1119, 1124 (Pa. 2007). We note that duly enacted legislation carries with it a strong presumption of constitutionality. Commonwealth v. Swinehart, 541 Pa. 500, 664 A.2d 957, 961 (Pa. 1995); Commonwealth v. Parker White Metal Co., 512 Pa. 74, 515 A.2d 1358 (Pa. 1986). The presumption of constitutionality will not be overcome unless the legislation clearly, palpably, and plainly violates the constitution. Swinehart, 664 A.2d at 961; Commonwealth v. Blystone, 519 Pa. 450, 549 A.2d 81 (Pa. 1988).

The Commonwealth offers three arguments in support of reversal. First, it asserts that there is no due process right to non-custodial collateral review. According to the Commonwealth, due process is not implicated in the absence of a protected liberty interest, and there is no protected liberty interest involved when one is no longer subject to the restraints [622 Pa. 328] imposed by a sentence. Consistent with its position that a protected liberty interest is a prerequisite of due process protection, the Commonwealth argues that the PCRA draws a constitutional line between those whose liberty is constrained by a sentence and those whose liberty is no longer burdened because their sentences have concluded. Because Petitioner's liberty interest is no longer implicated after she has completed her sentence, the Commonwealth argues that she no longer has a due process right to collateral review of her conviction. It is immaterial to the Commonwealth's position that ineffectiveness claims are generally deferred to PCRA review. Even if Petitioner was barred from raising her ineffectiveness claims on direct appeal, a proposition with which the Commonwealth disagrees as explained below, it argues she has no due process right to collateral review of her sentence because she is not subject to state-imposed restraint.

Second, the Commonwealth argues that, to the extent Petitioner has a due process right to be heard even though she is no longer subject to state custody, she was denied the opportunity for review of her

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ineffectiveness claims not by operation of Section 9543(a)(1)(i), but by her failure to raise these claims on direct appeal. Although the Commonwealth acknowledges this Court's general rule deferring ineffectiveness claims to post-conviction review, see Grant, the Commonwealth argues that there was an exception to this general rule available to Petitioner. Specifically, in Bomar, 573 Pa. 426, 826 A.2d 831, we recognized a limited exception to Grant where ineffective assistance of counsel claims are presented to and decided by the trial court on direct appeal. See Commonwealth v. Holmes, 621 Pa. 595, 79 A.3d 562, 2013 WL 5827027 (Pa. Oct. 30, 2013) (discussing Grant and the " Bomar exception" ). The Commonwealth argues that the Bomar exception was available to Petitioner and that her failure to avail herself of the benefit of Bomar (by raising her ineffectiveness claims to the trial court on direct appeal), defeats her present due process claim. See Dist. Attorney's Office For the Third Judicial Dist. v. Osborne, 557 U.S. 52, 71, 129 S.Ct. 2308, 174 L.Ed.2d 38 (2009) (providing that a defendant asserting a denial of due process has the " burden to [622 Pa. 329] demonstrate the inadequacy of the state-law procedures available to him in state postconviction relief" and that " without trying [the procedures], [the defendant] can hardly complain that they do not work in practice." ).

Third, the Commonwealth argues that Petitioner could have worked within the framework of the PCRA to obtain review of her claims while she was still serving her sentence. As support for this position, the Commonwealth observes that Petitioner was sentenced on January 14, 2008, yet waited almost a full year to file her PCRA petition on January 12, 2009, by which time her sentence was nearly half completed. Moreover, she waited until eleven days before she completed her sentence to file the supplement containing the claim on which the PCRA court ultimately granted relief. By waiting to bring her claim to the PCRA court's attention, according to the Commonwealth, Petitioner substantially reduced the time available for the PCRA court to address it while she was still serving her sentence. The Commonwealth further observes that Petitioner could have, but did not, request expedited consideration of her petition. Consequently, according to the Commonwealth, Petitioner's own actions made it impossible for the PCRA court to consider her claims until after she had completed her sentence. As further factual support for this assertion, the Commonwealth notes that by the time the PCRA court issued its order on July 15, 2011, granting a new trial, only fourteen months had passed since the PCRA court had received Petitioner's final amended PCRA petition, suggesting that there would have been sufficient time within the PCRA framework ( i.e., during her two-year sentence) to have her successful PCRA claim resolved if she had sought relief immediately after being sentenced.

In response, Petitioner broadly argues that Section 9543(a)(1)(i) of the PCRA violates due process to the extent it bars individuals with short sentences, such as herself, from having claims of ineffective assistance of counsel reviewed collaterally. Her due process argument is premised on her right to the effective assistance of counsel guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution, [622 Pa. 330] see Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and Article I, Section 9 of the Pennsylvania Constitution, see Commonwealth v. Halley, 582 Pa. 164, 870 A.2d 795 (Pa. 2005). She argues that dismissing ...

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