Commonwealth v. Henkel

DISSENTING OPINION BY

BENDER, P.J.

I respectfully disagree with the Majority’s conclusion that we are unable to review Appellant’s first three claims challenging his PCRA counsel’s representation. As discussed herein, I do not believe that there has been a binding, precedential decision by our Supreme Court prohibiting review of such issues for the first time on appeal, especially under the procedural posture of this case. Moreover, contrary to the Majority’s view, I think that this Court has presented conflicting opinions on the question of when, if ever, PCRA counsel’s ineffectiveness may be challenged for the first time on appeal. See Commonwealth v. Ford, 44 A.3d 1190 (Pa.Super.2012); Commonwealth v. Burkett, 5 A.3d 1260 (Pa.Super.2010). For the reasons that follow, I would resolve these conflicting panel decisions by overruling Ford and upholding Burkett, which permits our review of Appellant’s ineffectiveness claims.

In Commonwealth v. Ligons, 601 Pa. 103, 971 A.2d 1125 (2009), our Supreme Court squarely addressed the question of whether an appellant may challenge PCRA counsel’s stewardship for the first time on appeal. Because the Court was evenly split on the issue, Ligons is not prece-dential authority. See Interest of O.A., 552 Pa. 666, 717 A.2d 490, 496 n. 4 (1998) (“While the ultimate order of a plurality opinion, ie. an affirmance or reversal, is binding on the parties in that particular case, legal conclusions and/or reasoning employed by a plurality certainly do not constitute binding authority.”).

Several months later, the Supreme Court issued its decision in Common*33wealth v. Pitts, 603 Pa. 1, 981 A.2d 875, 887 (2009), in which it remarked, in a footnote, that the petitioner waived his challenge to PCRA counsel’s ineffectiveness by not raising this claim “prior to his PCRA appeal.” Id. at 880 n. 4. This statement had no impact on the Court’s decision in Pitts; indeed, as Justice Baer expressed in his dissenting opinion, the footnoted comment went “far beyond [the] narrow issue” on which the Court granted allocatur. Id. at 887 (Baer, J., dissenting opinion).1 Accordingly, I believe that the footnote in Pitts constitutes non-binding dicta. See Commonwealth v. Perry, 568 Pa. 499, 798 A.2d 697, 715 (2002) (Castille, J., joined by Newman, J., concurring) (stating prior case law is only binding “with respect to propositions which were actually at issue, and actually decided, in the case. Broad but non-essential ‘declarations’ are not precedent; ultimately, their inherent wisdom and persuasiveness determine whether they will play any role in future decisions.”) (citing Commonwealth v. Blouse, 531 Pa. 167, 611 A.2d 1177, 1182 (1992) (Flaherty, J., joined by Zappala and Cappy, JJ., dissenting) (stating although dicta may be instructive in predicting direction of court, it is not prec-edential authority)).

Admittedly, since Pitts, our Supreme Court has repeatedly cited Pitts in stating that petitioners have waived claims of PCRA counsel’s ineffectiveness for failing to raise it below.2 However, in none of those cases was the waiver issue actually before the Court or necessary to the Court’s decision, as evidenced by the fact that the Court always confined its remarks on waiver to footnotes.3 As Chief Justice Castille has stated, “[d ]icta is not converted into binding constitutional precedent through repetition.” Perry, 798 A.2d at 715 (citation omitted).

Because our Supreme Court has not issued a precedential decision on this “hotly contested issue,” Pitts, 981 A.2d at 887 (Baer, J., dissenting opinion), I believe that the binding authority in this area are the decisions of this Court. Where, as here, a PCRA hearing was held and no Pa. R.Crim.P. 907 notice was issued, there are two cases from this Court, Burkett and Ford, which address whether we may review claims of PCRA counsel’s ineffectiveness raised for the first time on appeal. In my opinion, those three-judge panel decisions are irreconcilably conflicting.

First, in Burkett, the petitioner filed a pro se PCRA petition and, due to delays not relevant to the instant issue, it was not until thirteen years later that counsel was appointed and an amended petition was filed. Burkett, 5 A.3d at 1266. The court then held a PCRA hearing, after which it denied relief to the petitioner. Id. The petitioner filed a timely appeal, sought to proceed pro se, and was granted that request. Id. On appeal, he argued for the first time that his PCRA counsel was ineffective. While we acknowledged our Su*34preme Court’s statement in Pitts that the petitioner’s failure to respond to the court’s Rule 907 notice waived his claims of PCRA counsel’s ineffectiveness on appeal, we concluded that Pitts was inapplicable because the PCRA court had conducted an evidentiary hearing rather than issuing a Rule 907 notice. Id. at 1273. Furthermore, we noted that our Supreme Court specifically addressed this issue in Ligons, but reached a non-precedential plurality decision in that case. Id. Accordingly, we concluded that the “binding precedent in this area” was this Gourt’s decision in Commonwealth v. Lauro, 819 A.2d 100 (Pa.Super.2003), which permitted review of such a claim for the first time on appeal. Burkett, 5 A.3d at 1273; see also Lauro, 819 A.2d at 109.4 We then assessed the appellant’s claim of PCRA counsel’s ineffectiveness in Burkett, concluding that it was meritless.5 Id.

Less than two years later, this Court reached the opposite result in Ford. There, the defendant filed a pro se PCRA petition, counsel was appointed, and, after conducting an evidentiary hearing, the court ultimately denied relief to the petitioner. Ford, 44 A.3d at 1193. New counsel was appointed to handle the petitioner’s appeal, and in the petitioner’s Pa.R.A.P. 1925(b) statement, he argued for the first time that his initial PCRA counsel acted ineffectively. Id. at 1194-95. This Court discussed our Supreme Court’s plurality decision in Ligons, and the Court’s statements in Pitts and its progeny on the waiver of PCRA counsel ineffectiveness claims. Id. at 1195-1198. Moreover, in regard to pertinent decisions by this Court, we acknowledged our conclusion in Burkett that Pitts did not prohibit review of the ineffectiveness of PCRA counsel claims where no Rule 907 notice had been filed. Id. at 1199. However, we did not expressly distinguish Burkett or state why it was inapplicable to the circumstances in Ford.6 In*35stead, the Ford panel summarily stated that “a majority of the Supreme Court agrees that the issues of PCRA counsel ineffectiveness must be raised in a serial PCRA petition or in response to a notice of dismissal before the PCRA court.” Id. at 1200. Accordingly, we concluded that we could not review the appellant’s claims of PCRA counsel’s ineffectiveness because they were raised for the first time after the notice of appeal had been filed. Id. at 1201.

I interpret these two decisions as conflicting. In both Burkett and Ford, an evidentiary hearing was conducted, there was no Rule 907 notice or petition to withdraw filed by counsel, and the petitioner attempted to raise the ineffectiveness of his PCRA counsel at the first opportunity, i.e. in his Rule 1925(b) statement or brief to this Court. In Burkett, this Court reviewed the petitioner’s ineffectiveness claim, while in Ford we found it waived.

The Majority reconciles these conflicting decisions by relying on the “intervening case law” of Jette and Hitt. Majority Opinion at 28-29. As with the previously’discussed Supreme Court cases mentioning the waiver of PCRA counsel ineffectiveness claims, I conclude that neither Hitt nor Jette constitutes precedential authority on this issue.

First, in Hitt, after filing an appeal from the denial of Hill’s PCRA petition, Hill’s counsel failed to file a timely Rule 1925(b) statement. Hill, 609 Pa.- at 416, 16 A.3d 484. Curiously, it was the Commonwealth that argued on appeal that Hill’s PCRA/appellate counsel’s failure to file a timely Rule 1925(b) statement amounted to per se ineffectiveness. Id. at 416-17. Despite the fact that Hill herself did not raise this issue, the Supreme Court remarked in a footnote that even had she done so, “such a claim would not be cognizable in this collateral direct appeal under recent decisions of this Court.” Id. at 497 n. 17 (citing Colavita, 993 A.2d at 893 n. 12; Pitts, 981 A.2d at 880 n. 4).7

In Jette, the Supreme Court addressed the propriety of this Court’s “Battle procedure” for the handling of pro se pleadings filed by a represented appellant.8 In rejecting this procedure, the Supreme Court found that “address[ing] pro se claims of appellate counsel ineffectiveness, while that counsel is still representing the appellant, is in contravention of this Court’s long-standing policy that precludes hybrid representation.” Jette, 23 A.3d at 1036. Thus, the Jette Court held that appellate courts cannot consider an appellant’s pro se assertions of ineffectiveness while the *36appellant is still represented by counsel. Id. at 1037-40. Instead, the Court directed that “the proper response to any pro se pleading is to refer the pleading to counsel, and to take no further action on the pro se pleading unless counsel forwards a motion.” Id. at 1044.

In a footnote at the end of its decision, the Jette Court acknowledged the appellant’s argument that the Court should assess his pro se motion, which alleged claims of PCRA counsel’s ineffectiveness, “given [the PCRA’s] serial petition and time-bar restrictions.” Id. at 1044 n. 14. The Court found this argument “contrary to [its] recent jurisprudence,” citing the footnotes in Colavita and Pitts. Id. It further explained that “whatever difficulty exists in presenting claims of ineffectiveness of PCRA counsel, it provides insufficient justification for abandoning our longstanding prohibition of hybrid representation.” Id.

In sum, it is apparent that in Hill, the issue of the appellant’s ability to challenge her PCRA counsel’s stewardship for the first time on appeal was not before the Court, as she had not asserted such a claim. Moreover, while this issue was admittedly related to the appellant’s claims in Jette, the footnote in that case was not essential to the Court’s decision that the “Battle ” procedure contravened the well-established prohibition against hybrid representation. Accordingly, I view the footnotes in both Hill and Jette as merely repeating the dicta of Pitts and its progeny. I do not believe that either footnote constitutes binding authority compelling this Court’s contradictory decisions in Burkett and Ford. Therefore, this en banc panel should overrule Ford not only because it is inconsistent with our decision in Burkett, but, more importantly, because Ford is premised upon the panel’s erroneous conclusion that the footnotes in Pitts, Colavita, and Jette constitute binding authority.9 Following Burkett, which has a similar procedural posture to the instant case, I would review the three claims of PCRA counsel’s ineffectiveness that Appellant raises herein.

Finally, I appreciate the Majority’s recognition “that failing to address PCRA counsel ineffectiveness claims raised for the first time on appeal renders any effective enforcement of the rule-based right to effective PCRA counsel difficult at the state level.” Majority Opinion at 29 (citation omitted). However, I emphasize that in this case, failing to address Appellant’s ineffectiveness claims does not merely make it difficult for him to raise them at the state level-it makes it impossible. Appellant’s judgment of sentence became final on or about November 24, 2008. Consequently, he cannot file a timely second PCRA petition asserting his PCRA counsel ineffectiveness claims. Appellant will also be unable to satisfy any exception to the PCRA’s one-year time bar by raising such issues. See Commonwealth v. Morris, 573 Pa. 157, 822 A.2d 684, 694-95 (2003) (stating that claims of PCRA counsel’s ineffectiveness do not save an otherwise untimely PCRA petition). Thus, Appellant will serve the remainder of his life in prison with no state-level opportunity to challenge his PCRA counsel’s decision not to raise (or present any evidence to support) the very same claim on which Appellant’s codefendant, Jared Lischner, obtained relief and is now serving a sentence of 10 to 20 years. Such inequity demands relief, at least in the form of reviewing *37Appellant’s claims herein. Accordingly, I respectfully

. The Pitts Court granted allocatur to examine whether this Court erred by sua sponte evaluating the sufficiency of PCRA counsel’s ‘no-merit’ letter and petition to withdraw under Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1988), and Commonwealth v. Finley, 379 Pa.Super. 390, 550 A.2d 213 (1988). See Pitts, 942 A.2d at 893.

. See Commonwealth v. Jette, 611 Pa. 166, 23 A.3d 1032, 1044 n. 14(2011); Commonwealth v. Hill, 609 Pa. 410, 16 A.3d 484, 497 n. 17 (2011); Commonwealth v. Colavita, 606 Pa. 1, 993 A.2d 874, 894 n. 12 (2010).

.I discuss the issues before the Court in Jette and Hill in more detail, infra. As the Majority concedes, in the Colavita footnote mentioning waiver, the Court expressly stated that the issue of waiver was not before it. Colavita, 993 A.2d at 894 n. 12; Majority Opinion at 26-27, 27. dissent.

. In Lauro, we explained that "if, on a claim of PCRA ineffectiveness, we determine that there is a reasonable probability that, but for PCRA counsel’s act or omission, the result of the PCRA proceeding would have been different, we would be' required to remand for a new PCRA hearing." Burkett, 5 A.3d at 1273 (citing Lauro, 819 A.2d at 109).

. I acknowledge that due to the timing of our Supreme Court’s decision in Commonwealth v. Grant, 572 Pa. 48, 813 A.2d 726 (2002), it was inapplicable in both Lauro and Burkett. The same is not true in the present case. However, the Burkett panel did not expressly rely on the inapplicability of Grant to distinguish Burkett from Pitts. See Burkett, 5 A.3d at 1273. Moreover, while Grant abolished the rule set forth in Commonwealth v. Hubbard, All Pa. 259, 372 A.2d 687 (1977), which required IAC claims to be presented at the first opportunity (which often resulted in such claims being raised for the first time on appeal), Grant did not expressly prohibit appellate courts in this Commonwealth from addressing claims of PCRA counsel’s ineffectiveness for the first time on appeal. If it had, "[t]he issue of whether a PCRA petitioner can raise a claim of PCRA counsel ineffectiveness for the first time after a notice of appeal was filed in post Grant petitions" would not have "come to a head in Ligons...." Majority Opinion at 24.

.The Ford panel did indicate that intervening, post-Burkett Supreme Court decisions supported our holding in Ford, citing concurring and/or dissenting opinions by Justice Saylor in Commonwealth v. Paddy, 609 Pa. 272, 15 A.3d 431 (2011) (Saylor, J. concurring and dissenting) ("[A] majority of the [Supreme] Court appears to be suggesting that there effectively can be no state-level redress for such deficient stewardship [of PCRA counsel]."), and Hill, 16 A.3d at 498 (Saylor, J. dissenting) (acknowledging "the apparent curtailment of an enforcement mechanism to assure the evenhanded enforcement of a capital post-conviction petitioner's rule-based right to assistance of counsel and the concomitant requirement of effective stewardship”). While I agree that Justice Saylor’s comments suggest that our Supreme Court wants to preclude review of PCRA counsel ineffectiveness *35claims raised for the first time on appeal, neither Paddy nor Hill (or any other decision by the Supreme Court to date) has expressly held as much. Accordingly, these decisions do not diminish the applicability of Burkett to the instant facts, or cure its apparent irreconcilability with Ford.

. Very recently, in In re L.J.,-Pa.-, 79 A.3d 1073 (2013), our Supreme Court concluded that a footnoted passage in a case by this Court was not precedential for several reasons, including that “the issue was not litigated by the parties” but, instead, our Court had "simply volunteered the discussion." Id. at 1081. The same is true of the footnote in Hill. The Court acknowledged that Hill had not raised the issue of PCRA counsel's ineffectiveness but, nevertheless, volunteered the comment that even if she had, "such a claim would not be cognizable” under Colavita and Pitts. Hill, 16 A.3d at 497 n. 17.

. See Commonwealth v. Battle, 879 A.2d 266, 268-69 (Pa.Super.2005) (holding that when a represented appellant files a pro se pleading, brief or motion, we forward the document to counsel who is then required to petition this Court for remand, citing the appellant’s allegations of ineffectiveness and providing an evaluation of the claims, after which our Court determines if remand for the appointment of new counsel is appropriate).

. See Commonwealth v. Morris, 958 A.2d 569, 581 n. 2 (Pa.Super.2008) ("It is well-settled that this Court, sitting en banc, may overrule the decision of a three-judge panel of this Court.”) (citation omitted).