Commonwealth v. O'Berg

Justice CASTILLE,

concurring.

I join the Majority Opinion. The Court correctly rejects a categorical exception to Commonwealth v. Grant, 572 Pa. 48, 818 A.2d 726 (2002), which would permit so-called “short sentence” defendants, who would not otherwise be able to pursue collateral relief because they will not satisfy the custody or control requirement of the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. § 9541, et seq., to raise claims of trial counsel ineffectiveness for the first time on direct appeal. I write separately to discuss the next logical question, which is whether and when a criminal defendant—short-sentence or otherwise—should be permitted to pursue an ineffective assis*21tance of counsel claim on post-trial motions, ie., before the collateral appeal stage.

There is nothing presently in the Rules of Criminal Procedure to prevent a defendant from attempting to raise a claim of ineffective assistance of counsel. But that is so, in large part, because our post-trial motions practice is a vestige of an ineffectiveness review paradigm that was dictated by Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687 (1977), and its progeny, whereby criminal defendants were required to raise claims of ineffective assistance of counsel at the first available opportunity after new counsel entered an appearance in the case, upon pain of waiver of the claim. Our decision in Grant has now overruled Hubbard; it has removed the requirement that claims of ineffective assistance must be raised at the first opportunity; and it has recognized that the PCRA is the proper repository for collateral claims sounding in trial counsel ineffectiveness.

As the Majority aptly notes, Commonwealth v. Bomar, 573 Pa. 426, 826 A.2d 831 (2003), a case where we held that the defendant could raise ineffectiveness claims on direct review, was litigated in the trial court under the older Hubbard rule. The post-trial litigation in Bomar commenced in 1999, three years before this Court overruled Hubbard. Notwithstanding that this Court had struck down the procedure-based unitary review paradigm for capital cases envisioned by the General Assembly in the Capital Unitary Review Act (“CURA”), 42 Pa.C.S. §§ 9570-9579, see In re Suspension of Capital Unitary Review Act, 554 Pa. 625, 722 A.2d 676 (1999) (single-Justice opinion by Castille, J.) (explaining this Justice’s view of reasons why CURA had to be suspended), the defendant in Bomar essentially proceeded, in light of the trial judge’s discretionary post-verdict decisions, under a unitary review construct. This was not an unusual circumstance in capital (and some non-capital) cases arising during the Hubbard regime, since ineffectiveness claims were required to be raised immediately by new counsel, under pain of waiver. In Bomar, we engaged in direct appeal review of the defendant’s ineffectiveness claims due to the very unique circumstances of that *22case; we did not purport to approve such a review paradigm prospectively, as a post-Grcroi matter. Rather, this Court merely took the Hubbard-era record as we found it in Bomar, and proceeded to determine if direct review, or a pointless deferral to PCRA review, of the collateral claims was appropriate.

With respect to “short-sentence” cases, in drafting the PCRA, the General Assembly made a presumptively valid legislative judgment that direct review provides sufficient due process for relatively minor infractions, no matter how grave a defaulted constitutional violation may have occurred. The General Assembly elected to provide a reasonable time limitation for filing a PCRA petition and to exclude from its purview those petitioners who are not presently imprisoned or on parole or probation, i.e., those for whom habeas corpus review traditionally would have been unavailable. 42 Pa.C.S. § 9543(l)(i); see also Commonwealth v. Ahlborn, 548 Pa. 544, 699 A.2d 718 (1997) (petitioner ineligible for PCRA relief where, following filing of PCRA petition and pending hearing, he was unconditionally released from prison). The General Assembly must have foreseen that, because of the minor nature of some crimes or the brevity of some sentences, certain defendants would not be entitled to seek collateral review at all. The General Assembly also must have foreseen that its custody or control restriction would effectively preclude “short sentence” defendants from pursuing collateral claims, such as ineffective assistance of counsel. The extraordinary but limited review contemplated by the PCRA instead was made available only for more serious cases, with seriousness defined not by the nature of the claim, but by the very tangible fact that the Commonwealth has control over the defendant’s freedom.

Our present state of jurisprudence properly recognizes that claims of ineffective assistance of counsel are quintessentially collateral claims and that they are expressly cognizable under the PCRA. 42 Pa.C.S. § 9543(a)(2)(h). Therefore, the PCRA, which is the “sole means of obtaining collateral relief’ in Pennsylvania, unquestionably is the appropriate repository for *23such claims, and our decision in Grant recognized as much. 42 Pa.C.S. § 9542; Grant, 813 A.2d at 734-38. Moreover, it is notable that this Court’s unanimous decision in Ahlbom, which denied PCRA review where the petitioner was not in custody and thereby recognized as lawful the General Assembly’s intention to limit that avenue of review, preceded our decision in Grant. The suggestion arising from the interplay of those two decisions is this: because the PCRA is deliberately limited in scope as to both the defendants who are eligible to pursue relief and the claims which they may raise, this Court should not expand the scope of post-verdict motions and direct review, so as to subvert the PCRA and allow for pre-litigation of claims that cannot be raised under the PCRA because the petitioner will not be within the Commonwealth’s control or custody.

There is nothing unreasonable, unwise, or unconstitutional with such a construct. A criminal conviction is not deemed infirm simply because the defendant is not afforded multiple opportunities to set it aside or, at a minimum, one guaranteed opportunity to blame his presumptively competent lawyer for his conviction. See Ahlbom. In a world of overburdened courts and overtaxed governmental coffers, it is perfectly rational to deny habeas corpus/collateral claim review to petitioners whose “bodies” the state no longer “has”—even if it means they lose the chance to raise any and all complaints they may have about their trial lawyers. The General Assembly made pellucidly clear that its collateral-attack interest was limited only to affording an avenue of relief from actual state control when it noted that the Act “is not intended ... to provide relief for collateral consequences of a criminal conviction.” 42 Pa.C.S. § 9542. The PCRA’s focus on affording relief only for those facing actual restraints upon their freedom—irrespective of the constitutional claims they would raise—is consistent not only with common law notions of habeas corpus review, but also with the general state habeas corpus statute. See 42 Pa.C.S. § 6501 et seq.1

*24I understand the visceral attraction of the “short sentence” exception appellant proffers—if the exception is not recognized, he will never be able to assail the performance of his trial counsel. My difficulty with the theory is that it is not premised upon the alleged existence of a particularly egregious instance of ineffective assistance of counsel, such as the constructive denial of counsel or an actual conflict of interest, etc. See, e.g., United States v. Cronic, 466 U.S. 648, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984); accord Grant, 813 A.2d at 738 n. 14. Instead, the broad Sixth Amendment claim forwarded here is premised upon the dubious assumption that claims of ineffective assistance of trial counsel as a class are of such primary importance that the usual constraints attending post-verdict practice, appellate review, and PCRA review should be shunted aside so that direct review may become the repository for a compressed, unitary type of review which may capture both direct and quintessentially collateral claims.

In light of the now-settled PCRA construct, I do not believe that this Court is remotely obliged to permit any criminal defendant—no sentence, short sentence, long sentence, capital sentence—to raise collateral claims, such as ineffective assistance of trial counsel, as a matter of right upon post-trial motions. One of the salutary, corrective, and visionary features of Grant was its recognition that direct and collateral review should be permitted to play the distinct and essential roles they are supposed to serve in the criminal justice system. The appropriate forum for litigating claims of ineffectiveness is under the PCRA. That “short sentence” defendants may not be able to pursue such claims is an appropriate consequence of a legislative choice made by the people’s duly-elected representatives. It makes no more sense to torture post-trial practice to convert it into a quasi-PCRA role than it does to torture the direct appeal process to serve the same *25quasi-collateral function. Ineffective assistance of counsel claims, as a class, are no more important than other substantive constitutional claims deemed cognizable under the PCRA, such that they must be afforded an ad hoc, judicially-created, extra-PCRA forum. While I might vest discretion in the trial courts to entertain exceptions to a general rule deferring ineffectiveness claims to PCRA review, I certainly would not subvert the PCRA by recognizing a categorical exception arising from the absence of custody, where the General Assembly has specifically addressed that circumstance.

In my view, the jurisprudential underpinnings of Grant, the practical effect of the decision, and the requirements of the PCRA necessarily call for a careful reconsideration of post-trial practice, and ideally, this reconsideration should occur in conjunction with formal rulemaking, beginning with a specific referral to the Criminal Procedural Rules Committee.2 Furthermore, I believe that any consideration of whether and when claims of ineffectiveness may appropriately be pursued upon post-trial motions must account for the proper role played by the PCRA, as well as the consequence that should follow upon a determination that a defendant will be permitted to advance his collateral claims and litigate them in some “unitary” post-trial proceeding and on direct appeal. For instance, it seems logical that, in a case where the defendant is serving a lengthy sentence, if the trial court is essentially asked to permit a defendant to compress collateral/PCRA review into his post-trial motions and direct appeal, the cost of doing so should be an explicit waiver of the right to pursue a *26later petition as of right under the PCRA.3 The post-verdict process should not be allowed to become a vehicle by which a defendant secures a second round of collateral attack as of right, raising new claims of ineffective assistance, where the PCRA explicitly envisions a single collateral challenge, in the absence of the extraordinary circumstances governing serial petitions as set forth in 42 Pa.C.S. § 9545(b).

For the foregoing reasons, I join the Majority Opinion, and I would refer the question of the availability of the post-trial procedure for review of ineffectiveness claims to the Pennsylvania Criminal Procedural Rules Committee for study and recommendation.

. This Justice has suggested that Pennsylvania's state habeas corpus statute might afford an avenue of review for colorable constitutional *24claims that are not cognizable under the PCRA. Coady v. Vaughn, 564 Pa. 604, 770 A.2d 287, 290 (2001) (Castille, J., concurring). The Court, however, has not embraced that view; and, in any event, this appellant cannot avail himself of a state habeas corpus remedy for the same reason he cannot invoke PCRA review, i.e., he is not in custody. 42 Pa.C.S. § 6501, et seq.

. On June 8, 2005, effective August 1, 2005, the Rules Committee amended its Comment to Rule 720 (Post-Sentence Procedures; Appeal), to account for the abrogation of Hubbard by Grant. Formerly, the Comment to Rule 720 contained a paragraph explaining that, under Hubbard, a defendant represented by new counsel at the post-sentence stage must raise, and the trial court must decide, any ineffectiveness claims. Correspondingly, the paragraph also required the trial court to hold an evidentiary hearing where the record was inadequate to decide such a claim. The Committee's amendment replaces the former paragraph with a new paragraph explaining that Grant has overruled Hubbard and that a defendant “should wait" until collateral review to raise any ineffectiveness claims.

. Of course, it is well-settled that counsel may not allege his own ineffectiveness. See Commonwealth v. Saranchak, 866 A.2d 292, 299 n. 9 (2005); see also Commonwealth v. Green, 551 Pa. 88, 709 A.2d 382, 384 (1998). Accordingly, the universe of potential claims at the post-verdict and direct appeal stage would be substantially limited.