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Pennsylvania Supreme Court Announces New Framework for Enforcing Right to Effective Counsel in Post-Conviction Relief Act Proceeding

by Douglas Ankney

The Supreme Court of Pennsylvania announced a new framework for enforcing the right to effective counsel in a 42 Pa.C.S. §§ 9541-9546, Post-Conviction Relief Act (“PCRA”), proceeding.

Aaron Bradley was convicted by jury of multiple felonies, including first degree murder, in connection with the shooting death of Bruce Fox. After the judgment against Bradley was affirmed on appeal, he timely filed a petition under the PCRA.

Bradley retained attorney D. Wesley Cornish who filed an amended petition raising various claims of trial court error and claims of ineffective assistance of trial counsel. On December 11, 2018, the PCRA court issued notice of its intent to dismiss the petition pursuant to Pa.R.Crim.P. 907 (“Rule 907”) and informed Bradley he had 20 days in which to file a response. The boilerplate form utilized by the PCRA court contained seven options for the court to mark as the reason for dismissal. The PCRA court checked the box indicating the issues were without merit but did not provide further information.

On January 2, 2019—two days beyond the 20-day window—Cornish filed a motion for extension of time to file a response. But the PCRA court did not address the motion; instead, the court entered an order dismissing the petition on January 16, 2019. Cornish filed a timely notice of appeal.

Bradley then retained a new attorney, Michael Wiseman, who moved the Superior Court to remand to the PCRA court so that he could raise allegations that the initial PCRA attorney (Cornish) was ineffective for failing to raise several claims concerning both trial and direct appeal counsel’s ineffectiveness and for relitigating trial court errors that had been addressed on direct appeal.

The Superior Court affirmed the dismissal of the PCRA petition, ruling that although it was an “imperfect solution,” any challenge asserting ineffective assistance of PCRA counsel must be raised within the 20-day response period after receiving the Rule 907 notice; otherwise, such claims were deemed waived. Commonwealth v. Pitts, 981 A.2d 875 (Pa. 2009). Further, claims of ineffective assistance of PCRA counsel cannot be raised for the first time on appeal. Commonwealth v. Grant, 813 A.2d 726 (Pa. 2002).

The Pennsylvania Supreme Court granted allocatur to address Bradley’s argument that the current process for enforcement of the right to effective PCRA counsel is inadequate. Bradley argued, inter alia, that (1) the 20-day window is too short to allow the hiring of new counsel to review the record, determine where initial PCRA counsel was ineffective, and prepare and submit an amended PCRA petition raising the claim; (2) if different counsel was not hired or the petitioner did not proceed pro se, then initial PCRA counsel would be forced into the position of arguing his own ineffectiveness, damage his own legal reputation and his ability to earn his livelihood and would, therefore, be a conflict of interest; and (3) the boilerplate form utilized as the Rule 907 notice provides no information as to the PCRA court’s reasoning for dismissal, making it difficult for a seasoned attorney—much less a defendant proceeding pro se—to identify PCRA counsel’s ineffectiveness.

The Pennsylvania Supreme Court observed that PCRA petitioners have an enforceable right to effective assistance of counsel during the proceedings. Commonwealth v. Albrecht, 720 A,2d 693 (Pa. 1998). Under current case law, the sole method by which a petitioner may raise an ineffective PCRA counsel claim is via a response to the PCRA court’s Rule 907 dismissal notice. Pitts. But at the time of the passage of the PCRA, claims of ineffective assistance of counsel were required to be raised at the first opportunity, i.e., whenever new counsel began representation, which most often meant the claim was raised for the first time on appeal. Commowealth v. Hubbard, 372 A.2d 687 (Pa. 1977).

In Commonwealth v. Ligons, 971 A.2d 1125 (Pa. 2009), the court permitted a petitioner under sentence of death to raise a claim of ineffective assistance of PCRA counsel for the first time on appeal even though that claim had not been raised in the PCRA petition.

But in Grant, the court rejected the longstanding reasoning of Hubbard and ruled that claims of ineffective PCRA counsel could not be raised for the first time on appeal. The Grant Court reasoned that Pa.R.A.P. 302 prohibits raising new claims on appeal. Furthermore, ineffective assistance of PCRA counsel requires a showing of counsel’s deficient performance that prejudiced the defense (the two-pronged standard of Strickland v. Washington, 466 U.S. 668 (1984)), which is a fact-intensive inquiry related to circumstances often not readily apparent from the record. The finding of facts in the first instance is a task for which appellate courts are ill-equipped.

The Supreme Court has also previously concluded that, just as claims of ineffective trial and appellate counsel are limited to collateral review proceedings and not permitted on direct appeal, Commonwealth v. Fahy, 737 A.2d 214 (Pa. 1999), claims of ineffective PCRA counsel must likewise be presented in a collateral proceeding and not on appeal of the dismissal of the PCRA petition. Commowealth v. Hall, 872 A.2d 1177 (Pa. 2005).

Yet this approach is flawed, the Court observed, in that it is generally unknown that PCRA counsel was ineffective until after the PCRA court rules on the petition—by which time the one-year limitations period for the filing of a PCRA petition will have expired and a subsequent petition alleging ineffective PCRA counsel would be time barred. 42 Pa.C.S. § 9545(b).

The Court in the instant appeal concluded that the Rule 907 procedure is inadequate, declaring “[w]e reject the current Rule 907 procedure by which a petitioner may raise claims of ineffective assistance of PCRA counsel as unworkable.” It based that determination on the reasons argued by Bradley and announced “that a modified and flexible Hubbard approach” is the best way to preserve claims of ineffective PCRA counsel on collateral review. Thus, the Court ruled “a PCRA petitioner may, after a PCRA court denies relief, and after obtaining new counsel or acting pro se, raise claims of PCRA counsel’s ineffectiveness at the first opportunity to do so, even if on appeal.” However, “an appellate court will not be tasked with developing the record or acting as a court of original jurisdiction. Rather, appellate courts will have the ability to grant or deny relief on straightforward claims, as well as the power to remand to the PCRA court for the development of the record,” the Court instructed.

Accordingly, applying the newly announced framework to the instant appeal, the Court reversed the order of the Superior Court and remanded to that court for proceedings consistent with the Court’s opinion. See: Commonwealth v. Bradley, 261 A.3d 381 (Pa. 2021). 

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