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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
ANTHONY PHILLIP PELUSO
Appellant No. 1283 WDA 2015
Appeal from the Judgment of Sentence July 9, 2015
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0014213-2014
BEFORE: BENDER, P.J.E., BOWES, J., AND SOLANO, J.
MEMORANDUM BY BOWES, J.: FILED MARCH 23, 2017
Anthony Phillip Peluso appeals from the judgment of sentence of two
to four years incarceration, followed by two years probation, imposed after
he pled guilty to possession with intent to deliver a controlled substance,
possession of a controlled substance, and tampering with physical evidence.
We remand this matter with instructions for the trial court.
The pertinent facts are as follows. On July 9, 2015, Appellant entered
a guilty plea to the aforementioned offenses. At the plea hearing, the
prosecutor informed the court that Appellant was entering a general plea.
Appellant did not object. The trial court conducted a colloquy, and accepted
Appellant’s guilty plea as knowing, intelligent, and voluntary. The court then
proceeded directly to sentencing. After hearing argument, and considering
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the nature of the charges and Appellant’s history, the court sentenced
Appellant to two to four years state incarceration, plus two years probation.
Appellant filed a post-sentence motion seeking to withdraw his guilty
plea, claiming that counsel was ineffective. In that motion, plea counsel,
Hart Hillman, Esquire, averred that he had conferred with the prosecutor and
reached an agreement where Appellant would only be sentenced to a term of
county imprisonment. He asserted that he had communicated this plea deal
to Appellant immediately prior to the hearing. He then noted his failure to
object during the hearing when the prosecutor indicated that Appellant was
entering a general plea. As a result of own his alleged ineffectiveness,
Attorney Hillman concluded that Appellant’s guilty plea had not been entered
knowingly, intelligently, and voluntarily since he ultimately received a
sentence to state imprisonment contrary to counsel’s pre-hearing advice.
The trial court held a hearing on Appellant’s motion to withdraw on
July 21, 2015. After hearing testimony from the prosecutor and Attorney
Hillman, the court denied Appellant’s motion to withdraw his plea, thus
finding that Appellant’s claim of ineffectiveness was not meritorious.
Appellant filed a timely pro se notice of appeal to this Court. After
conducting a Grazier hearing,1 the court permitted Appellant to pursue this
appeal pro se with the aid of standby counsel. Appellant complied with the
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1
Commonwealth v. Grazier, 713 A.3d 81 (Pa. 1998).
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court’s directive to file a Rule 1925(b) statement of errors complained of on
appeal, and the court authored its Rule 1925(a) opinion. On appeal,
Appellant presents one issue for our review:
I. Did the lower court err and/or abuse its discretion by
denying [Appellant’s] motion to withdraw his guilty plea
insofar as the plea was not knowing, intelligent or
voluntary, but was based on the admitted
misrepresentation of defense counsel that an agreement
had been reached with the Commonwealth, whereby
[Appellant] would receive a county-length sentence, when
in fact no such agreement had been made, making
[Appellant’s] plea unlawfully induced by counsel’s
ineffectiveness which is apparent on the record?
Appellant’s brief at 5.
Before we reach the merits of this appeal, we must first determine
whether it is properly before us. At the outset, we are mindful of our
Supreme Court’s well-established principle that a petitioner should only raise
a claim of counsel ineffectiveness on collateral review. Commonwealth v.
Grant, 813 A.3d 726 (Pa. 2002). In light of its holding in Grant, the High
Court in Commonwealth v. Holmes, 79 A.3d 562 (Pa. 2013), considered
whether a trial court could ever consider an ineffectiveness claim in the
context of post-sentence motions, and, concomitantly, whether this Court
could entertain the claim on direct appeal. The Court concluded that a trial
court may permit review of an ineffectiveness claim in only two
circumstances. First, the Court observed that “there may be an
extraordinary case where the trial court, in the exercise of its discretion,
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determines that a claim (or claims) of ineffectiveness is both meritorious and
apparent from the record so that immediate consideration and relief is
warranted.” Holmes, supra at 577. Second, the Court permitted a trial
court, in its discretion, and “for good cause shown,” to review an
ineffectiveness claim so long as it was “accompanied by a waiver of PCRA
rights appropriately tailored.” Id. at 578. The Court emphasized that a trial
court could agree to review an ineffectiveness claim “only upon good cause
shown and after a full PCRA waiver colloquy.” Id. at 580. Indeed, the Court
underscored that the trial court’s discretion was contingent upon a waiver
of PCRA review. Id. Beyond these two scenarios, ineffectiveness claims
must be deferred to collateral review.
We find that the procedural rule established in Grant and modified in
Holmes must be observed in order for this Court to exercise jurisdiction
over a claim of ineffective assistance of counsel on direct appeal. Although
the trial court addressed Appellant’s claim on the merits after holding a
hearing, permitting further review, even for the sake of judicial economy,
would create an exception to Grant in contravention to prevailing case law.
The Supreme Court has made it abundantly clear that any exception to
Grant’s general rule must be furnished by the High Court. See
Commonwealth v. Liston, 977 A.2d 1089, 1094 (Pa. 2009) (stating “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[.]”).
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Thus, as the Holmes exceptions establish a procedural requirement, the
trial court’s failure to ensure this matter was procedurally sound must be
remedied if this Court is to exercise jurisdiction over the matter.
Here, Appellant failed to establish either of the Holmes’ exceptions.
First, we observe that the trial court did not find that Appellant’s claim was
meritorious. Since it scheduled a hearing on the matter, it failed to find the
merits of the claim were apparent based upon the existing record. Thus,
neither of the two elements of the first Holmes exception was met.
Likewise, the record does not indicate that Appellant waived his rights to
collateral review. Therefore, Appellant did not fulfill the procedural dictates
enumerated in Holmes to properly raise a claim of counsel’s ineffectiveness
before the trial court. Accordingly, we retain jurisdiction and remand this
matter to permit Appellant, if he so chooses, to waive his rights to PCRA
review under Holmes, and permit the trial court to assess that waiver.
Failing this, we cannot entertain the merits of Appellant’s ineffectiveness
claim presented herein.
Case remanded with instructions. Jurisdiction retained.
Judge Solano joins the memorandum.
President Judge Emeritus Bender files a dissenting memorandum.
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