PA Superior Court Explains When Ineffective Assistance Claims May Be Raised on Direct Appeal

Criminal Defense Lawyer Zak T. Goldstein, Esquire

The Pennsylvania Superior Court has decided the case of Commonwealth v. Watson, dismissing the defendant’s appeal because the defendant improperly tried to raise ineffective assistance of counsel claims prematurely through post-sentence motions and on appeal rather than by filing a Post-Conviction Relief Act Petition. The Superior Court held that the trial court abused its discretion in allowing the defendant’s claims of ineffective assistance of counsel to be reviewed in post-sentence motions rather than in a PCRA petition.

The Facts of Watson

The defendant appealed to the Pennsylvania Superior Court after he was convicted by a jury of rape and other related sex crimes. The conviction stemmed from the alleged sexual abuse of the defendant’s stepdaughter. She said that the abuse started when she was eleven and ended when she was seventeen. Prior to sentencing, the defendant retained new counsel, and trial counsel withdrew his appearance. The trial court sentenced the defendant to 27-60 years in prison and found the defendant to be a sexually violent predator.

The defendant’s new attorney filed a post-sentence motion and eventually an amended post-sentence motion. The motion raised claims of ineffective assistance of trial counsel, which usually need to be deferred until after a direct appeal has concluded. The amended post-sentence motion concluded with the statement, “[Defendant] has been advised that in raising ineffectiveness now, he waives the right to raising [sic] issues of merit on direct appeal.”

The trial court held an evidentiary hearing on the defendant’s motion. At the hearing, the Court did not really address whether it was appropriate to hear ineffective assistance claims in the post-sentence motions rather than defer any such claims until after the direct appeal had concluded. Instead, new counsel immediately called the defendant to the stand and asked the following preliminary questions:

[Defense Counsel]: [Defendant], before we go any further, I’ve advised you that in your [amended] post[-]sentence motion that you’re raising ineffectiveness of counsel, correct?

[Defendant]: Yes.

[Defense Counsel]: And I’ve advised you that raising it in your [amended] post[-]sentence motion means that the Superior Court of Pennsylvania will not, you’re not going to be raising questions of merit. Do you remember that?

[Defendant]: Yes.

[Defense Counsel]: Okay. And I’ve advised you that you have to make a choice of doing one or the other and you chose to raise ineffectiveness of counsel, correct?

[Defendant]: Yes.

[Defense Counsel]: Okay. And nobody’s forced you. You’re making this decision voluntarily, correct?

[Defendant]: Yes.

The trial court denied the amended post-sentence motion, and the defendant appealed to the Pennsylvania Superior Court. All of the issues that the defendant raised in the Superior Court related to the allegations that he received the ineffective assistance of counsel which he had asserted in his post-sentence motions. The Superior Court began by addressing whether it was appropriate for the Court to deal with claims relating to the ineffective assistance of counsel on direct appeal instead of in a PCRA petition. The Court also addressed the related claim of whether it was proper for the trial court to hear the ineffective assistance claims in a post-sentence motion rather than a PCRA. 

The Superior Court’s Decision

The Superior Court provided a helpful summary of when PCRA/ineffective assistance of counsel claims should normally be raised. In general, PCRA claims such as claims that the lawyer provided the ineffective assistance of counsel should not be raised until PCRA proceedings, and a PCRA petition must be filed either after the direct appeal has concluded or instead of a direct appeal. Trial courts usually should not entertain claims of ineffectiveness in post-sentence motions, and therefore, those claims should not ordinarily be raised on direct appeal. There are exceptions to this rule, however. A defendant may raise an ineffective assistance of counsel claim right away in the following scenarios:

(1) an extraordinary case where the trial court, in its discretion, determines that a claim of ineffectiveness is both meritorious and apparent from the record so that immediate consideration and relief is warranted; or

(2) when the defendant raises multiple, and comprehensive, ineffectiveness claims, which the court, and for good cause shown, determines that post-verdict review is warranted, and the defendant waives his right to PCRA review; or

(3) if the defendant is statutorily precluded from obtaining subsequent PCRA review, the trial courts must address claims challenging trial counsel’s performance.

The first exception is for claims that are so strong and so obviously likely to be granted that it would be an injustice to defer them until PCRA review. The second exception typically applies to a defendant who receives a short sentence or no sentence. The PCRA requires that a defendant still be in custody or under probation supervision in order for the court to have jurisdiction, so a defendant who receives a short sentence typically will not be able to file an appeal and then litigate a PCRA petition because the sentence will have expired.

Here, the Court found that none of the exceptions applied.  

With respect to the first exception for extraordinary claims, the Court found that because the trial court needed to schedule an evidentiary hearing to determine the merits of the claim, the claim was not apparent from the record. In other words, if the claim were so strong and so obvious that it should be resolved immediately, then it would not have been necessary for the trial court to hold a hearing. The court would have been able to just grant it from the record.

In addressing the second exception, the Court ruled that the defendant failed to argue that he had good cause for raising his ineffective assistance of counsel claims in a post-sentence motion, and the trial court did not make a finding of good cause for him to do so. Most importantly, the Superior Court found the defendant did not make a knowing waiver of his right to PCRA review. The Superior Court opined that the defendant’s attempted waiver of his right to file PCRA claims was based on new counsel’s misinterpretation of the relevant case law. Instead of asking if the defendant agreed to waive the right to litigate a PCRA after the conclusion of the direct appeal, the new attorney asked the defendant if he agreed to waive the right to raise normal appellate issues of trial court error. In order for the colloquy to be correct, the lawyer would have to ask the defendant if he agreed to waive his PCRA rights, not his direct appeal rights. It is possible to raise both ineffective assistance of claims and regular direct appeal claims in cases where the waiver is executed properly or in cases where the first exception for extraordinary claims applies. The Court did not address the third exception as the defendant was not statutorily precluded from obtaining subsequent PCRA review.

Ultimately, the Superior Court concluded that the trial court abused its discretion in allowing the defendant to address his premature ineffective assistance of counsel claims in the post-sentence motions. The Court therefore dismissed the appeal without prejudice for the defendant to file a timely PCRA petition and raise those claims. Procedurally, the Court probably should not have actually dismissed the appeal. The appeal was properly filed, it just raised claims that were not cognizable at this stage. Therefore, the Court should have simply affirmed. This wording, however, will likely not make a significant difference for the defendant as he will still be able to raise his claims by filing a PCRA petition. Either way, it is important to understand these exceptions and make sure you retain a lawyer who understands them if you want to raise a claim of ineffective assistance of counsel before filing a direct appeal. In most cases, it makes sense to do the direct appeal and then litigate a PCRA petition, but in some cases, the PCRA claims are so strong or the sentence is short enough that it makes sense to claim that trial counsel was ineffective right away.

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