Commonwealth v. Pitts

CASTILLE, Chief Justice,

concurring.

I join the Majority Opinion in its entirety, but write separately to further address three points.

First, the Majority properly disapproves of Commonwealth v. Friend, 896 A.2d 607 (Pa.Super.2006) (per curiam), upon which the panel below relied, to the extent that Friend suggests that an appellate court must sua sponte review the sufficiency of a no-merit letter when the defendant has not raised such issue. Majority Op. at 7-10, 981 A.2d at 879-80.1 We have never approved of such a requirement; such requirement negates the purpose of the procedures outlined in Turner/Finley,2 and the requirement ignores that courts generally are to accept cases as the parties present them.

However, I address another aspect of Friend. Friend also held that PCRA3 counsel seeking to withdraw pursuant to Tiomer/Finley must contemporaneously serve the petitioner with copies of counsel’s application to withdraw and no-merit letter as well as “a statement advising the petitioner that, in the event that the court grants the application of counsel to withdraw, he or she has the right to proceed pro se or with the assistance of privately retained counsel.” Friend, 896 A.2d at 614 (emphasis omitted). This additional requirement is not explicitly commanded by Turner. Recognizing that this refinement of the Tiomer/Finley procedure altered the existing withdrawal construct, the Friend panel made its rule prospective — and thus, it would not apply to this case, where counsel’s Finley letter in 2004 pre-dated the Friend decision in 2006. See Friend, 896 A.2d at 614-15 & n. 11.

*12As a general matter, of course, the Superior Court is not authorized to promulgate rules of procedure; that power rests exclusively with this Court. Pa. Const, art. V, § 10(c). Having said that, however, I recognize that our front-line criminal appeals court confronts these sorts of issues on a near-daily basis, and I have no fixed objection to the court undertaking to adopt efficiencies and improvements in order to better serve justice. But this case, in which we disapprove of the Superior Court’s sua sponte review of the sufficiency of a Finley no-merit letter when the defendant has not raised such issue, shows that the Superior Court should proceed cautiously in areas that implicate rulemaking. See Commonwealth v. Liston, 977 A.2d 1089, 1095 (Pa.2009) (Castille, C.J., joined by Saylor and Eakin, JJ., concurring).

In any event, putting aside the question of whether the Superior Court should purport to promulgate new “rules” or refine old ones in procedural matters, I note that I would have no actual objection to this Court’s adoption of a Friend-like modification of Tumer/Finley that better ensures notice to the defendant via documentation provided contemporaneously by counsel. This mechanism effectively advances the goal of Pa.R.Crim.P. 907, which provides as follows:

If the [PCRA court] is satisfied from this review that there are no genuine issues concerning any material fact and that the defendant is not entitled to post-conviction collateral relief, and no purpose would be served by any further proceedings, the [court] shall give notice to the parties of the intention to dismiss the petition and shall state in the notice the reasons for the dismissal. The defendant may respond to the proposed dismissal within 20 days of the date of the notice. The [PCRA court] thereafter shall order the petition dismissed, grant leave to file an amended petition, or direct that the proceedings continue.

Pa.R.Crim.P. 907(1) (emphasis added). Requiring PCRA counsel to provide the defendant with the Finley letter and the additional specified documentation will make it easier for the defendant to respond and raise objections within the *13twenty-day period contemplated by Rule 907. In many instances, the procedure will also provide the client with more than twenty days to respond or prepare objections.

The Rule 907 process, in turn, is important for issue preservation purposes. This is so because, as the Majority correctly holds, the Finley appellant, like appellants generally, should be limited to raising issues he actually raised before the PCRA court. See Pa.R.A.P. 302(a) (“Issues not raised in the lower courts are waived and cannot be raised for the first time on appeal.”); see also 42 Pa.C.S. § 9543(a)(3) (“To be eligible for relief under th[e PCRA], the petitioner must plead and prove by a preponderance of the evidence ... [t]hat the allegation of error has not been ... waived.”). In my judgment, the fact that indigent PCRA petitioners typically initiate the PCRA process by identifying their complaints in their own pro se filings, when combined with Finley’s command of review by both counsel and the PCRA court and the notice provision in Rule 907, provides more than adequate opportunity for the Finley appellant to preserve any and all appropriate issues for appeal, including complaints about Finley counsel.

Here, appellee has raised no complaint that the twenty-day period was insufficient. PCRA counsel’s Tumer/Finley letter, dated July 22, 2004, was copied to appellee and filed with the court on July 23, 2004. That same day, the case was listed for formal dismissal on August 20, 2004, on which date it was continued to September 30, 2004, with the requisite notice to appellee that it intended to dismiss his petition without a hearing, which the Honorable D. Webster Keogh formally did by order dated September 30, 2004, more than two months after counsel’s Tumer/Finley letter. At no time did appellee respond in any manner, much less advise the court that PCRA counsel had failed to act upon his alleged request to add a claim that plea counsel was ineffective for failing to file an appeal or that he had requested plea counsel to file an appeal.

What appellee did was file a notice of appeal, pro se, from the dismissal of his PCRA petition on October 13, 2004, asserting PCRA counsel ineffectiveness. Along with that notice, appellee included a letter to Judge Keogh acknowl*14edging receipt of the order dismissing his PCRA petition and complaining that he pleaded guilty upon the assurance of his plea counsel that he would receive at most a five-to-ten-year sentence. In this letter, appellee also claimed that he asked plea counsel to file an appeal but that plea counsel failed to do so. Appellee admitted in this letter that he had failed to raise the issue of his lost direct appeal in his pro se PCRA petition, but then insisted that he requested PCRA counsel to amend his PCRA petition to include a claim that plea counsel denied him his right to direct appeal. I would hold that by this point, it was too late.

Second, I write separately to elaborate on the Majority’s determination, with which I agree, that appellee’s “failure, prior to his PCRA appeal, to argue PCRA counsel’s ineffectiveness for not raising the direct appeal issue results in waiver of the issue of PCRA counsel’s ineffectiveness.” Majority Op. at 9 n. 4, 981 A.2d at 880 n. 4. The Majority reaches this conclusion in passing and expresses it in a footnote. Mr. Justice Baer’s Dissenting Opinion rightly notes that this issue is of serious import, implicating a division on the Court recently expressed in Commonwealth v. Ligons, 971 A.2d 1125 (Pa.2009), and also calling into question existing authority of this Court. I would expressly acknowledge those facts, and I write to explain why I agree with the Majority’s adoption of the position I set forth, at great length, in Ligons.

The justification for finding that appellee’s claim of PCRA counsel ineffectiveness is waived and must be deferred to the serial PCRA petition process is even stronger here than in Ligons. In Ligons, the plurality,4 per Mr. Justice Baer, would have held that the appellant’s claims of PCRA counsel ineffectiveness, raised for the first time on appeal, could be entertained because “the only way to afford a capital PCRA peti*15tioner an opportunity to enforce his right to effective PCRA trial counsel is to permit the filing of such claims on appeal from the denial of PCRA relief.” Ligons, 971 A.2d at 1140.

In a concurring opinion joined by Justice Eakin and McCaffery, I asserted various reasons why such claims should be resolved within the serial PCRA petition process and simply cannot be raised for the first time on appeal from denial of the appellant’s first PCRA petition. First, claims not raised before the PCRA court must be deemed waived on appeal because to entertain their merits improperly turns the appeal court into a court of original jurisdiction and amounts to a violation of Pa.R.A.P. 302(a), which expresses “a settled and salutary principle of appellate review that we will not reach claims that were not raised below.” Id. at 1162-63 (Castille, C.J., joined by Eakin and McCaffery, JJ., concurring).

Nor, as I explained in Ligons, did the PCRA’s statutory time-bar rules condone such an allowance:

The PCRA time-bar plainly provides that ... “[a]ny petition under this subchapter, including a second or subsequent petition, shall be filed within one year of the date the judgment becomes final,” unless the petitioner proves one or more of three narrow exceptions to the time-bar. 42 Pa.C.S. § 9543(b)(1). Notably, there is no exception devoted to claims of PCRA counsel ineffectiveness, and this Court has consistently held that claims of ineffectiveness of PCRA counsel will not overcome the timeliness requirements of the PCRA because defense counsel are not “government officials.” See Commonwealth v. Wharton, 584 Pa. 576, 886 A.2d 1120, 1127 (2005) (citing Commonwealth v. Pursell, 561 Pa. 214, 749 A.2d 911, 915-16 (2000); Commonwealth v. Gamboa-Taylor, 562 Pa. 70, 753 A.2d 780, 785-86 (2000); Commonwealth v. Lark, 560 Pa. 487, 746 A.2d 585, 589 (2000)).

Ligons, 971 A.2d at 1164 (Castille, C.J., concurring). I posited that “nothing in the text of the PCRA suggests that it may be ignored to indulge new appellate claims sounding in PCRA counsel ineffectiveness, which amount to a serial petition.” Id. at 1165.

*16Instantly, in his Dissenting Opinion, Justice Baer, citing: Commonwealth v. Albrecht, 554 Pa. 31, 720 A.2d 693, 699-700 (1998); Commonwealth v. Pursell, 555 Pa. 233, 724 A.2d 293, 302 (1999), upon which the Superior Court relied; and Commonwealth v. Hall, 582 Pa. 526, 872 A.2d 1177, 1182 (2005), reiterates the view that he forwarded in Ligons that claims challenging PCRA counsel’s stewardship must be entertained in this Court even if not raised below in order to give effect to a PCRA petitioner’s right under Rule of Criminal Procedure 904 to effective post-conviction counsel. See Dissenting Op. at 27, 981 A.2d at 891; Ligons, 971 A.2d at 1138 (citing Albrecht, 720 A.2d at 699-700, Pursell, and Hall). As I noted in my Concurring Opinion in Ligons:

Albrecht and Pursell were decided, and Hall was litigated below and briefed here, before Commonwealth v. Grant [, 572 Pa. 48, 813 A.2d 726 (Pa.2002) ] was decided. Before Grant, the prevailing judicial rule under Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687 (1977) and its progeny commanded that claims of ineffective assistance of counsel had to be raised, upon pain of waiver, at the first opportunity when new counsel entered a case-including when new counsel entered on PCRA collateral appeal. The comments in the pre-Grant cases must be understood in light of that reality.
... [T]his Court overruled Hubbard in Grant, thereby relieving new counsel of the obligation to raise ineffective assistance claims at the first opportunity. Grant, 813 A.2d at 738. In light of Grant, no judicial waiver results from a failure to raise ineffectiveness claims at the first opportunity. What remains is the normal appellate review/issue preservation paradigm, and the strictures of the PCRA. The Hubbard-based “only opportunity to do so” rationale for entertaining new claims outside the strictures of the PCRA having been corrected, it is time for this Court to permit the PCRA to operate as it is clearly intended.
[]
*17Of course, there was more to Albrecht than a Hubbard concern; there was, also, a sentiment that there must be some safeguard of the “enforceable” right to PCRA counsel. But, that avenue cannot be creation of an extra-statutory, “as-of-right” ability to litigate a new, unlimited, and essentially serial PCRA petition on PCRA appeal, merely because new counsel time their appearance into the case that way.

Ligons, 971 A.2d at 1165-66 (Castille, C.J., concurring). I still hold this view.

Justice Baer’s Dissenting Opinion, consistently with the view he expressed in Ligons, responds that requiring only one opportunity to challenge the effectiveness of PCRA counsel is “obviously unworkable” (Dissenting Op. at 22, 981 A.2d at 888; accord id. at 890) and that, in order to vindicate the right to effective PCRA counsel, “there is no viable alternative to” allowing an appellate court to address claims of PCRA counsel ineffectiveness that were not raised below (id. at 29-30, 981 A.2d at 892-93). See Ligons, 971 A.2d at 1166 (Castille, C.J., concurring) (quoting similar arguments offered by plurality). As I noted in my Ligons concurrence, the view expressed by the Dissenting Opinion here:

overlooks how arbitrary [its] rule is. The rule does nothing to vindicate the right to effective PCRA counsel for the overwhelming majority of defendants, in capital and non-capital cases alike, who do not have new counsel on PCRA appeal. If those defendants believe their PCRA counsel were ineffective, they are faced with the time and serial petition restrictions of the PCRA, as well as the Lawson standard.[5]

Id. at 1166-67; cf. Commonwealth v. Liston, 977 A.2d 1089, 1100-01 (Pa.2009) (Castille, C.J., joined by Saylor and Eakin, JJ., concurring) (“There is no reason, consistent with the PCRA, to authorize trial courts to arbitrarily permit an extra round of collateral attack for some but not all defen*18dants....”). As I further noted in my Ligons concurrence, “[t]here is an obvious course that would allow for full, rather than select, vindication of the right to effective PCRA counsel” — i.e., “permit all defendants to pursue a second PCRA petition as of right. But the PCRA does not authorize that path.” Ligons, 971 A.2d at 1167 (Castille, C.J., concurring). The Dissenting Opinion, like the Ligons plurality, thus suggests a “half-measure [that] allows the Court to maintain the pretense that it is not flouting the statute, when in fact we are flouting it, but in an incomplete and arbitrary way.” Id.

As I noted at the outset, the scenario here provides more reason not to subvert the PCRA review paradigm than the typical case, where a defendant is represented by new counsel on appeal. This is a Finley case; here, unlike the successive counsel scenario at issue in the cases relied upon by Ligons, the PCRA petitioner has an opportunity to raise his successive claims in the trial court. See Turner, 544 A.2d at 928-29 (“When, in the exercise of his professional judgment, counsel determines that the issues raised under the [PCRA] are meritless, and when the [PCRA] court concurs, counsel will be permitted to withdraw and the petitioner may proceed pro se, or by privately retained counsel, or not at all.”).

As the Majority observes, appellee “could have challenged PCRA counsel’s stewardship after receiving counsel’s withdrawal letter and the notice of the PCRA court’s intent to dismiss his petition pursuant to Pa.R.Crim.P. 907, yet he failed to do so.” Majority Op. at 9-10 n. 4, 981 A.2d at 880 n. 4. This appellee had the full twenty-day notice period within which to object to dismissal of his PCRA petition. In fact, in light of the need for at least one continuance, appellee had even longer than twenty days within which to act. The Dissenting Opinion responds that Rule 907 (providing that once PCRA court provides requisite notice of intention to dismiss PCRA petition and states reasons therefor, “[t]he defendant may respond to the proposed dismissal within 20 days of the date of the notice (emphasis added)) does not require that the petitioner respond to the PCRA court’s notice, nor does any other rule or decision of this Court. But the point is that Rule 907 offers *19the Finley petitioner an opportunity to object. The fact that the Rule does not require more does not mean that this Court must overlook a petitioner’s failure to raise a claim of PCRA counsel ineffectiveness at the trial level; much less does it follow that we should look for ways around the PCRA. Again, the PCRA’s waiver provision makes no exception for allegations of PCRA counsel ineffectiveness. See 42 Pa.C.S. § 9543(a)(3). Indeed, Section 9544(b) defines waiver as to include any issue that the petitioner could have raised but failed to ‘in a prior state postconviction proceeding.’ ” 42 Pa.C.S. § 9544(b).

The dissent responds that appellee should not “be faulted for failing to follow a nonexistent procedure,” but the “procedure” that appellee failed to follow is an opportunity, not a requirement. And the requirements are clear and outside of Rule 907 — i.e., the actual waiver provisions of Section 9543(a)(3) and Pa.R.A.P. 302(a). Moreover, the conclusion that the dissent reaches in deeming that appellee’s failure to preserve his issues should be excused is a policy determination that should be better left to the General Assembly. See Commonwealth v. Santiago, 579 Pa. 46, 855 A.2d 682, 709 (2004) (Castille, J., joined by Eakin, J., concurring) (“When an issue is waived under the PCRA, it is not because of our appellate preservation/waiver doctrine, but because a legislative judgment has been made as to what types of claims should be available at all on collateral review. We cannot simply ignore that legislative judgment as if it were a judicial concern subject to weighing against other judicial concerns.”) (internal quotation marks omitted).

Of course, if the Court determines to let Rule 907 play a greater role in allowing, or inviting, complaints against Finley counsel, we could always revise the Rule: to provide more time, or to provide more information (such as a reminder that claims not forwarded are waived). But what we should not do is to allow a PCRA appeal to serve as a repository for a serial PCRA petitioner, causing appellate courts to consider entirely new claims, and thereby to negate the statute. For all of these reasons, I join in the Majority’s adoption of the position I set forth in my concurrence in Ligons.

*20Third, I write to address the Superior Court panel’s observation below that “[i]t is inconceivable that any PCRA counsel would not inquire into the reasons for his/her client’s failure to pursue a direct appeal.” Super. Ct. Op. at 8. I believe this mistaken notion helped to lead the court astray. I suppose it is only natural for an appellate court to view itself as the center of the legal universe and thus to be puzzled whenever a party does not appeal. But this is a naive and mistaken assumption, especially in a case, such as this one, that was resolved by a guilty plea. A guilty plea severely restricts the universe of claims that may be raised upon appeal — a fact that was conveyed to appellee very forcefully by the trial court here. As the PCRA judge, the experienced and learned D. Webster Keogh, noted in his opinion, “It is well settled that upon entry of a guilty plea, a petitioner waives all defects and defenses except those concerning the validity of the plea, the jurisdiction of the trial court, and the legality of the sentence imposed.” PCRA Ct. Op. at 2 (citing Commonwealth v. Guth, 735 A.2d 709, 711 n. 3 (Pa.Super.1999)). Quoting the record colloquy that the guilty plea court, the Honorable Carolyn E. Temin, had conducted with appellee, Judge Keogh also noted that appellee was specifically informed of this fact — so much so, indeed, that the trial judge concluded with: “[A]s a practical matter, once you plead guilty, that is the end of the case, do you understand that?” Id. at 4 (quoting Notes of Testimony (“N.T.”), 5/9/03, at 7-10). Of course, this reality does not prevent defendants from seeking to avoid the consequences of their pleas — invariably when they find themselves disappointed with their sentences. The most common way to seek to avoid the effect of a guilty plea is to blame it on counsel. That is the sort of claim that lends itself to collateral attack, not direct review.

Given these realities, it is easy to conceive why an experienced criminal defense lawyer — such as the lawyer appointed to represent appellee in the PCRA court here — appointed to represent a defendant who is serving a sentence pursuant to a guilty plea would not in the least be surprised to learn that no direct appeal was filed. It is particularly easy to conceive that *21a lawyer would not inquire into the absence of the appeal where, as here, her Ghent’s pro se petition never complained that he requested a (futile) appeal, only to have counsel ignore him.

In her no-merit letter, counsel focused on the claim that appellee actually raised in his pro se petition — that his plea counsel was ineffective in inducing him to plead guilty by promising him that he would receive a sentence of five to ten years in prison, which was far less than he actually received. This is, of course, the most common of claims in collateral attacks on guilty pleas: “I lied to the guilty plea court when I said no promises were made to me; my lawyer lied to me in promising me a light sentence; and the two lies vitiate my plea.” Counsel carefully explained in her no-merit letter why the claim indeed was frivolous. Judge Keogh concurred, trenchantly noting that appellee was specifically informed by Judge Temin that he faced up to 120 years in prison, and that appellee declared, on the record, that no one promised him anything to secure his plea. See PCRA Ct. Op. at 4 (quoting N.T., 5/9/03, at 7-10).

For the foregoing reasons, and for the reasons expressed in the Majority Opinion, I concur in the reversal of the Superior Court’s vacatur and remand.

. Notably, Mr. Justice Baer’s Dissenting Opinion agrees with our disapproval of Friend.

. Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1988); Commonwealth v. Finley, 379 Pa.Super. 390, 550 A.2d 213 (1988).

. Post Conviction Relief Act, 42 Pa.C.S. §§ 9541-9546.

. Although Ligons was a majority opinion on certain issues and with respect to the mandate, it did not garner a majority for this proposition. See Ligons, 971 A.2d at 1159 (Castille, C.J., joined by Eakin and McCaffery, JJ., concurring) (noting that "Mr. Justice Baer’s lead opinion is not a majority expression respecting the points of concurrence I outline below"). The six-Justice Court was evenly divided on the point at issue here.

. Commonwealth v. Lawson, 519 Pa. 504, 549 A.2d 107, 112 (1988) (“[A] second or any subsequent post-conviction request for relief will not be entertained unless a strong prima facie showing is offered to demonstrate that a miscarriage of justice may have occurred.”).