Commonwealth v. Hernandez

BROSKY, J.,

dissenting.

¶ 1 I respectfully dissent from the decision of my colleagues in this matter because I believe that Appellant’s challenge to the discretionary aspects of his sentence is not properly before us for a disposition on the merits. I am concerned that the decision of the majority in this case has a potential for a broader-sweeping effect with regard to claims challenging the discretionary aspects of sentencing than the majority may intend.

¶ 2 The majority concludes that the trial court committed an abuse of discretion in denying the petition for a nunc pro tunc appeal because Appellant has presented a valid PCRA claim. From their conclusion that a valid PCRA claim has been presented, the majority decides that we should forge forward into an exploration of the challenge to the discretionary aspects of Appellant’s sentence in the interests of justice and fundamental fairness and decide the issue here. I take issue with this *16maimer of proceeding, as I would conclude that Appellant has not presented a claim that would have been cognizable in a PCRA petition.

¶ 3 As the majority explains, Appellant was represented at the guilty plea by counsel, and this same counsel represented him at the sentencing hearing. There was no objection raised at the time of sentencing, nor was a post-sentence motion to modify sentence filed. Trial counsel was the counsel who filed the timely notice of appeal and who was directed to file the Concise Statement of Matters Complained of on Appeal pursuant to Pa.R.A.P.1925(b). Despite the lack of this statement, the trial court filed its opinion on March 10, 1997 and sent a copy to Appellant’s counsel.

¶ 4 This Court, in a Memorandum filed October 7, 1997, dismissed the direct appeal. We acknowledged that Appellant’s direct appeal raised one issue: whether the sentence imposed was excessive and represented an abuse of discretion because the court failed to consider mitigating circumstances and failed to provide adequate reasons on the record for imposing a sentence outside the aggravated range of the sentencing guidelines. We recognized this as a challenge to the discretionary aspects of Appellant’s sentence.

¶ 5 In dismissing the appeal, we relied on the following three cases. The first was Commonwealth v. Jarvis, 444 Pa.Super. 295, 663 A.2d 790 (1995), in which we held that an appellant may not challenge the discretionary aspects of her sentence for the first time on appeal. The second was Commonwealth v. Clinton, 453 Pa.Super. 385, 683 A.2d 1236 (1996), in which we held that a claim challenging the discretionary aspects of sentencing is waived if the appellant does not raise the claim before the trial court in either post-sentence motions or at the sentencing proceeding. Finally, we relied on Commonwealth v. Egan, 451 Pa.Super. 219, 679 A.2d 237 (1996). In Egan, we addressed a claim regarding the discretionary aspects of sentencing, although the claim was not raised in a motion to modify sentence. We did so because the claim was included in the Concise Statement of Matters Complained of on Appeal and the trial court judge had the opportunity to address the issues in his opinion.

¶ 6 Distinguishing the holding in Egan, we held in the present matter that the trial court judge had no real opportunity to address the issues in his opinion. Since Appellant had failed to properly preserve his challenge to the discretionary aspects of his sentence for appellate review, we found it waived. Citing Commonwealth v. Tuladziecki, 513 Pa. 508, 522 A,2d 17 (1987), and 42 Pa.C.S.A. § 9781, we explained that there is no right to an appeal from the discretionary aspects of a sentence. We stated that, had the issue been preserved, Appellant would have had to request our permission to appeal in any event.

¶ 7 Our Order dismissing Appellant’s appeal was sent to him on October 7, 1997. He did nothing until, on July 13, 1998, Appellant’s present counsel filed a Petition for Leave to Appeal Nunc Pro Tunc. In the petition, Appellant alleged that he had instructed his prior counsel to take all necessary steps to appeal his sentence. Appellant asserted that he was denied his “appeal as of right as guaranteed by Article V., Section 9 of the Pennsylvania State Constitution due to due to [sic] counsel’s failure to preserve said right after being directed to do so.... ” Petition at 4. Further, Appellant alleged in the petition that his prior counsel’s actions amounted to ineffective assistance of counsel. The actions alleged were failing to preserve the challenge to the discretionary aspects of the sentence at the hearing and in a post-sentence motion, and failing to file a Concise Statement of Matters Complained of on Appeal. Appellant requested permission to file a nunc pro tunc appeal on the basis of his counsel’s alleged ineffective assistance in properly preserving his “constitutional right” to an appeal.

*17¶ 8 The Commonwealth filed su«..wei' in which it argued that the underlying claim of ineffective assistance lacked merit and that Appellant did not articurn- any substantial question for this Com» o review with regard to his sentence. The trial court denied the request for an apj -eal nunc pro tunc. This appeal followed.

¶9 The only issue that we should be addressing on appeal is whether the uial court erred or committed an abuse of discretion in denying Appellant’s request for an appeal nunc pro tunc to this Court. I would conclude that the trial court did not err or abuse its discretion. In order for an appeal nunc pro tunc to be granted, Appellant would have to show an extraordinary circumstance wherein a direct appeal by right was lost. Commonwealth v. Stock, 545 Pa. 13, 679 A.2d 760, 764 (1996). Appellant’s argument is premised on the assertion that he had a right to appeal the discretionary aspects of his sentence. He did not. See Tuladziecki, 522 A.2d at 19, and 42 Pa.C.S.A. § 9781.11

¶ 10 In the present circumstance, where Appellant has no right to an appeal to challenge the discretionary aspects of his sentence and he has not shown extraordinary circumstances, I agree with the trial court’s decision not to grant an appeal nunc pro tunc. If Appellant believed his counsel was ineffective, he should have promptly set forth his ineffectiveness issues in a timely PCRA petition.

¶ 11 At the time when Appellant received our disposition of his direct appeal, however, this Court’s decision in Commonwealth v. Wolfe, 398 Pa.Super. 94, 580 A.2d 857 (1990), had been in place for almost seven years. That case prevents a chai lenge to the discretionary aspects of hid sentence based upon an assertion of ineffectiveness of counsel for failing to preserve the issue properly upon the direct appeal. Unlike the majority, I find that the decision in Wolfe was directly controlling of Appellant’s procedural posture in the present matter.

¶ 12 In Wolfe, as in the instant matter, the appellant’s prior appellate counsel had filed a timely direct appeal on behalf of the appellant that did not result in a decision in the appellant’s favor. After receiving the decision of this Court on the appeal, the appellant sought to challenge the ineffectiveness of his prior counsel for failing to preserve any challenge to the discretionary aspects of sentencing. Specifically, the appellant raised the following concerns. First, whether his appellate counsel was ineffective for failing to raise the issue of ineffectiveness of his trial counsel for failing to raise and preserve the exces-siveness of sentence. Secondly, the same layered ineffectiveness as to the failure of the trial judge to indicate on the record the court’s interpretation of the sentencing guidelines. Thirdly, the same layered ineffectiveness as to the failure of the trial judge to state sufficient reasons on the record why the sentence exceeded the guidelines. Wolfe, 580 A.2d at 858. In addition, the petitioner contended that his appellate counsel was ineffective in failing to present mitigating evidence at sentencing. Id.

¶ 13 This Court held in Wolfe that the claims of a petitioner under the PCRA, that both prior appellate and trial counsel had been ineffective in failing to challenge the discretionary aspects of his sentence, were not cognizable under the PCRA. We found that the petitioner’s claims failed to *18meet the requirement of the PCRA that counsel’s ineffectiveness “so undermined the truth determining process that no reliable adjudication of guilt or innocence could have taken place.” 42 Pa.C.S.A. § 9543(a)(2)(ii). This Court held:

[A]s appellant’s instant claim relates only to ineffective assistance in failing to challenge discretionary aspects of sentence, and because no ineffective assistance of counsel claims may be heard under the PCRA unless such claim would undermine the truth determining process so as to render unreliable the adjudication of guilt or innocence, appellant’s claim is not herein reviewable.

Wolfe, 580 A.2d at 860 (emphasis in original).

¶ 14 Thus, pursuant to the holding in Wolfe, Appellant in the present case did not have a claim that was cognizable under the PCRA, and he did not file a PCRA petition. This Court’s decision in Commonwealth v. Lantzy, 712 A.2d 288, 291 (Pa.Super.1998), had no impact on an individual in such a procedural posture.

¶ 15 In Lantzy, the appellant, who was sentenced following his entry of a guilty plea, had originally filed post-sentencing motions and an appeal to this Court. His counsel then negotiated a modified sentence and the appellant withdrew his post-sentence motions and appeal. However, when the modification fell apart, the appellant could not file a direct appeal because of his withdrawal of his post-sentence motions and appeal. He then filed a petition under the PCRA asserting that his counsel was ineffective in advising him to withdraw his post-sentence motions and appeal. The PCRA court denied him relief. This Court affirmed the PCRA court’s order on a different basis.

¶ 16 In Lantzy, we held that the appellant could not establish a claim under section 9543(a)(2)(ii) of the PCRA. That section provides that the petitioner must establish that he suffered from “[ijneffec-tive assistance of counsel which, in the circumstances of the particular case, so undermined the truth-determining process, that no reliable adjudication., of guilt or innocence could have taken place.” 42 Pa.C.S.A. § 9543(a)(2)(ii). This Court reasoned that the appellant in Lantzy had failed to satisfy his burden by failing to show that he was innocent, ie., wrongfully'-convicted. We noted, however, that if the appellant wished to assert that his counsel’s ineffectiveness deprived him of the right to appeal, causing him prejudice but not affecting the underlying verdict or adjudication, he could seek relief by requesting an appeal nunc pro tunc. Lantzy, 712 A.2d at 291 (citing Stock, supra).

¶ 17 This Court’s decision in Lantzy was filed on April 13, 1998. Appellant filed his Petition for Leave to Appeal Nunc Pro Tunc on July 13, 1998, in order to challenge his prior counsel’s effectiveness in failing to preserve for our review any challenges to the discretionary aspects of his sentence. He did not make reference to our Lantzy decision. Rather, Appellant states in his brief that he did not file a PCRA petition because the state of the law would have precluded PCRA relief. Thus, he claims that filing a PCRA petition would have been a futile act. Appellant’s Brief at 16-17.

¶ 18 Unlike the majority, I do not find that Appellant’s filing of a petition for leave to appeal nunc pro tunc, rather than a petition under the PCRA, was clearly a result of our decision in Lantzy. Further, I disagree with the majority’s conclusion that the impact of the Supreme Court’s decision that reversed our holding in Lantzy, Commonwealth v. Lantzy, 558 Pa. 214, 736 A.2d 564 (1999), is to convert Appellant’s petition for an appeal nunc pro tunc into a cognizable claim under the PCRA. I do not agree with the majority’s conclusion that the Supreme Court’s decision in Lant-zy brings the Appellant’s challenge to the discretionary aspects of sentencing properly before us. See Op. at 7. In fact, as is observed by the majority, the Supreme *19Court indicated in Lantzy only that it was unclear whether the appellant in Lantzy had sought an appeal of his discretionary aspects of his sentence or whether he also had sought to challenge his conviction. Lantzy, 736 A.2d at 566. Thus, I am wary of concluding on the basis of this sentence in the Supreme Court’s Lantzy Opinion, standing alone, that the Supreme Court has in any way made a decision to overrule this Court’s decision in Wolfe.

¶ 19 The Supreme Court stated that the requirement under section 9543(a)(2)(ii), that a petitioner must plead and prove that his counsel’s ineffectiveness “so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place”, amounts to the prejudice prong for ineffectiveness of counsel. Lantzy, 736 A.2d at 570. The Supreme Court reasoned that an unjustified failure of counsel to perfect an appeal guaranteed as of right constitutes prejudice per se. Lantzy, 736 A.2d at 571. In such a circumstance, the Court held that, if a petitioner such as the appellant in Lant-zy could also meet the remaining requirements of the PCRA, he did not have to establish his innocence or demonstrate the merits of the issues that would have been raised on a direct appeal.

¶ 20 In the instant appeal, Appellant did not have a guaranteed right to challenge the discretionary aspects of his sentence on appeal. Thus, the Supreme Court’s statement in Lantzy regarding prejudice per se does not establish that Appellant’s prior counsel was ineffective per se here. The Supreme Court’s decision in Lantzy did not alter this Court’s holding in Wolfe, supra, as Appellant still would have to meet the prejudice prong of the ineffectiveness standard in order to show that he has a cognizable claim under the PCRA.

¶ 21 He would have to show that, but for the acts or omissions of his prior counsel, the outcome of the proceedings would be different. Commonwealth v. Kimball, 555 Pa. 299, 724 A.2d 326, 330 (1999). Appellant has failed to do so here. The prejudice the majority finds that Appellant alleges is that prior counsel effectively waived Appellant’s “right” to an appeal challenging the discretionary aspects of his sentence. But, again, I point out that Appellant does not have such a right. Therefore, I believe that the reasoning of the majority is not solid.

¶ 22 As I view the case, Appellant was faced with a situation where he had a direct appeal but his counsel’s alleged ineffectiveness caused the issue of the discretionary aspects of his sentence to be forgone on appeal. He would have brought the question of his counsel’s ineffectiveness before the trial court but realized that our long-established case law provides that a PCRA petitioner attempting to challenge the ineffectiveness of his counsel for failing to preserve the discretionary aspects of sentencing does not raise a cognizable claim. So, instead, after this Court issued its decision in Lantzy, new counsel for Appellant filed a petition for leave to appeal nunc pro tunc to challenge prior counsel’s ineffectiveness.

¶ 23 I am not convinced by the majority Opinion that this decision by Appellant’s new counsel was a result of a procedural trap of our making. Rather, it appeal's that Appellant’s new counsel was attempting to end-run our case law regarding challenges to discretionary aspects of sentencing on PCRA. If we allow this to occur and engage in review of the challenge to the discretionary aspects of sentencing, we are discarding the prior case law without proper briefing and consideration of the issue. Although the majority is doing so under the auspices of rectifying a situation caused by our Lantzy case, I do not think it is wise. The majority is creating an exception for one person in Appellant’s procedural posture at the time of our Lantzy decision without fully considering the larger issue of whether it is desirable to effectively overrule our prior case law regarding challenges to the discretionary aspects of sentencing on PCRA.

*20¶ 24 Accordingly, I cannot join the majority’s decision to allow an appeal raising the discretionary aspects of Appellant’s sentence. Nor can I join in the majority’s decision to affirm the judgment of sentence. I would simply affirm the order of the trial court denying the Petition for Leave to File Appeal Nunc Pro Tunc.

. This section provides in pertinent pari:

(a) Right to appeal. — The defendant or the Commonwealth may appeal as of right the legality of the sentence.
(b) Allowance of appeal. — The defendant or the Commonwealth may file a petition for allowance of appeal of the discretionary aspects of a sentence for a felony or a misdemeanor to the appellate court that has initial jurisdiction for such appeals. Allowance of appeal may be granted at the discretion of the appellate court where it appears that there is a substantial question that the sentence imposed is not appropriate under this chapter.

42 Pa.C.S.A. § 9781.