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HomeMy WebLinkAboutCP-21-CR-1729 & 2549-2002 COMMONWEALTH IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. CP-21-CR-2549-2002 CHARGE: (1) CRIMINAL HOMICIDE- MURDER OF THE THIRD DEGREE (2) INVOLUNTARY MANSLAUGHTER (3) AGGRAVATED ASSAULT AFFIANT: DET. THOMAS KIBLER OTN: H460316-3 ANTHONY THOMAS CP-21-CR-1729-2002 CHARGE: ENDANGERING WELFARE OF CHILDREN AFFIANT: DET. THOMAS KIBLER OTN: L128966-5 IN RE: OPINION PURSUANT TO P A. R.A.P. 1925 OLER, 1., April 6, 2005. In this criminal matter, the father of a malnourished four-year-old child with fractured ribs was originally charged with endangering the child's welfare, and subsequently charged with third-degree murder, involuntary manslaughter and aggravated assault when the child failed to survive hospitalization. Following a jury trial, the father was found guilty of endangering the welfare of a child, involuntary manslaughter and aggravated assault. 1 Defendant, the father, was sentenced to an aggregate prison term of not less than five years nor more than ten years in a state correctional institution, in accordance with the mandatory minimum sentence applicable to the aggravated 1 A mistrial was declared as to the charge of third-degree murder due to an inability of the jury to reach a verdict. See Order of Court, July 24,2003. assault charge? Following disposition of a post-sentence motion, Defendant filed a direct appeal to the Pennsylvania Superior Court from the judgment of sentence. 3 This appeal was dismissed by reason of the failure of Defendant's counsel to meet the deadline for filing his brief in accordance with the Superior Court's briefing schedule.4 Following a hearing under the Post Conviction Relief Act5 arising out of an allegation that Defendant's counsel was ineffective in this regard, this court found that his counsel had been ineffective and authorized Defendant's filing of a new appeal from the judgment of sentence. 6 Defendant filed the new notice of appeal in accordance with the PCRA relief granted,7 and expressed the same reasons for the appeal as had been stated in his initial matters complained of on appeal. 8 The Commonwealth filed a notice of appeal from the Post Conviction Relief Act order authorizing the filing of the new appeal. 9 The sole basis of the Commonwealth's appeal has been expressed in a statement of matters complained of on appeal as follows: The appellate rights of the defendant, Anthony Thomas, were reinstated at a Post-Conviction Relief Act hearing on January 31, 2005 before the Honorable Judge Oler of Cumberland County, Pennsylvania. At this hearing, the trial court found that trial defense counsel provided the defendant with ineffective assistance of counsel. The judge's finding was not justified under the circumstances. Specifically, the Commonwealth contends that the record reflects that the 2 See Order of Court, October 7,2003. 3 Defendant's Notice of Appeal, filed February 10,2004. 4 Order of Court, August 13,2004, No. 237 MDA 2004 (Pennsylvania Superior Court). 542 Pa. C.S. ~~954l et seq. 6 Order of Court, January 31, 2005. 7 Defendant's Notice of Appeal, filed February 23, 2005. This appeal has been docketed by the Superior Court at No. 327 MDA 2005. 8 See Defendant's Concise Statement of Matters Complained of on Appeal, filed April 28, 2004; Defendant's Concise Statement of Matters Complained of on Appeal, filed March 14,2005. 9 Commonwealth's Notice of Cross Appeal, filed March 7, 2005. This appeal has been docketed at 422 MDA 2005 by the Pennsylvania Superior Court. 2 defendant failed to establish that counsel had no reasonable basis in his actions. 10 With respect to Defendant's present appeal from the judgment of sentence, this court has previously addressed the issues raised on appeal in an opinion filed in response to his initial statement of matters complained of on appeal; a copy of this opinion, dated May 19, 2004, is attached hereto for reference. With respect to the Commonwealth's appeal from the order reinstating Defendant's appellate rights, the instant opinion in support of the order is written pursuant to Pennsylvania Rule of Appellate Procedure 1925(a). STATEMENT OF FACTS As noted, Defendant's initial appeal from the judgment of sentence was dismissed by the Pennsylvania Superior Court as a result of his counsel's failure to meet a deadline for filing a brief in support of the appeal. 11 As a result of this dismissal, Defendant, through new counsel, filed a petition under the Post Conviction Relief Act alleging that his prior counsel had been ineffective and requesting that his appellate rights be reinstated. 12 A hearing on the petition was held by the undersigned judge on November 9, 2004, and January 31, 2005. The credible evidence at the hearing, in the view of the court in its capacity as trier of fact, may be summarized as follows: Following Defendant's sentencing and disposition of a post-sentence motion filed on behalf of Defendant, Defendant's trial counsel, pursuant to Defendant's request, filed a timely notice of appeal from the judgment of sentence to the Pennsylvania Superior Court13 and a statement of matters complained of on 10 Commonwealth's Concise Statement of Matters Complained of on Cross Appeal, filed March 16,2005 (emphasis added). 11 Order of Court, August 13, 2004, 237 MDA 2004 (Pennsylvania Superior Court). A petition by counsel to reinstate the appeal was unsuccessful. Order of Court, August 30, 2004, 237 MDA 2004 (Pennsylvania Superior Court). 12 Petition for Post Conviction Relief Pursuant to the Post Conviction Relief Act, filed September 17,2004. 13 NT 14-15, PCRA Hearing, November 9,2004, and January 31, 2005 (hereinafter NT ~. 3 appeal with this court.14 However, he missed a deadline for filing a brief on behalf of Defendant. 15 Defendant's counsel described the event in the following testimony: Q And did you file a timely brief [in accordance with the Superior Court's briefing schedule]? A I did not, and when I realized-I was working on the brief, and as I realized that I had gotten over the time limit, I eventually filed a motion for extension of time with the Court. Q Did the Court dismiss that motion? A My motion for extension of time apparently arrived, to the best I could tell from what was returned to me by the Prothonotary, on the same day that sua sponte the Superior Court quashed the appeal finding that counsel failed to file a brief. I then filed a motion for reconsideration providing the Superior Court a copy of my motion, and their time stamp showed it had arrived at the same time they were quashing it. They again refused it. My understanding being, again, finding that-the basis being that I failed to file a brief. 16 When asked whether Defendant had requested that the appeal not be pursued, his counsel answered in the negative: A No. In fact, if anything, Mr. Thomas was very interested in pursuing [the appellate issues]. More so than many clients. Q Okay. And so ultimately the appeal was quashed for the failure to file a brief and- A One hundred percent. Q -the motion for reconsideration was denied? 14 Defendant's Concise Statement of Matters Complained of on Appeal, filed April 28, 2004. 15NT 14. 16 NT 14-15. It appears that Defendant's brief was due on July 6,2004, the petition to extend the time for filing the brief was filed on August 13, 2004, and the Superior Court's order dismissing the appeal for failure to file a brief was entered on August 13, 2004. See NT 32; State's Exs. 5-6. 4 A One hundred percent my fault. Mr. Thomas did not in any way, shape or form have anything to do with it, and it's my failure, not his. 17 On cross-examination, the Commonwealth elicited evidence that III a criminal case involving another client represented by Defendant's counsel the Superior Court had dismissed an appeal for failure to file a brief.ls Whether this occurred with or without the client's consent, however, does not appear of record herein. Finally, the Commonwealth also elicited evidence that Defendant's counsel had once missed the deadline for filing an appeal to the Superior Court in a criminal case by one day, that the appeal had been quashed as untimely, and that an attempt had been made to have client's appellate rights reinstated through a Post Conviction Relief Act petition. 19 Following the PCRA hearing in this case, the court entered this order: AND NOW, this 31st day of January, 2005, upon consideration of Defendant's Petition for Post Conviction Relief Pursuant to the Post Conviction Relief Act, and following a hearing held on November 9, 2004, and January 31, 2005, and the Court finding (a) that Defendant had directed his trial counsel to file a direct appeal to the Pennsylvania Superior Court from the judgment of sentence in the above- captioned matter, (b) that Defendant's trial counsel filed the notice of appeal timely but was ineffective in failing to file a timely brief in support of the appeal with the Superior Court, and (c) that as a consequence of the ineffective assistance of Defendant's trial counsel the Superior Court dismissed the appeal without addressing the merits of the appeal, Defendant's petition is granted to the extent that this Court has authority to permit Defendant to file an appeal nunc pro tunc under the circumstances, and Defendant is afforded 30 days from the 17 NT 15. 18 NT 47-48; State's Ex. 13. 19 See NT 36-47; State's Ex. 11-12. 5 date of this order to file nunc pro tunc a notice of appeal from the judgment of sentence.20 The Commonwealth's Notice of Appeal from this order, in the form of a Notice of Cross Appeal, was filed on March 7, 2005?1 DISCUSSION Statement of law. "It is . . . axiomatic that a defendant in a criminal case is entitled to effective representation. . .." Commonwealth v. Collins, 519 Pa. 58, 63, 545 A.2d 882, 885 (1988). With respect to a claim of ineffective assistance, however, "Pennsylvania courts presume that an accused's counsel is effective and place the burden of proving ineffectiveness on the convicted defendant." Packel & Poulin, Pennsylvania Evidence 9307, at 116; see Commonwealth v. McCauley, 2001 PA Super. 301, ,-r4, 797 A.2d 920,922 (2001). A general rule for the analysis of a claim of ineffective assistance of counsel has been provided by the Pennsylvania Supreme Court as follows: There are three elements to a valid claim of ineffective assistance. We inquire first whether the underlying claim is of arguable merit; that is, whether the disputed action or omission by counsel was of questionable legal soundness. If so, we ask whether counsel had any reasonable basis for the questionable action or omission. . .. If he did, our inquiry ends. If not, the [ defendant] will be granted relief if he also demonstrates that counsel's improper course of conduct worked to his prejudice . . . . Commonwealth v. Davis, 518 Pa. 77, 83, 541 A.2d 315, 318 (1988); see Commonwealth v. Beasley, 544 Pa. 554, 678 A.2d 773 (1996); Commonwealth v. Hess, No. 94-1437 Criminal Term (Cumberland Co., March 11, 1997) (Sheely, P.1.). Although normally in this context the prejudice suffered by a defendant must be such that the truth-determining process was undermined to a degree that 20 Order of Court, January 31, 2005. 21 Commonwealth's Notice of Cross Appeal, filed March 7, 2005. 6 no reliable adjudication of guilt or innocence could have taken place,22 this prerequisite to relief is construed broadly where the effect of the inadequate representation has been to deprive a defendant of the exercise of his right to appellate review of the judgment of sentence. See Commonwealth v. Lantzy, 558 Pa. 214, 736 A.2d 564 (1999).23 The right to appellate review of a judgment of sentence is of constitutional dimension,24 and a counsel's failure in this regard is presumed to be prejudicial. Id In this context, the failure to prosecute an appeal of right, timely filed, where the failure is without the consent of the defendant, can be the functional equivalent of a failure to file the requested appeal in the first place and will warrant a restoration of appellate rights on grounds of ineffective assistance. Id (withdrawal of direct appeal without consent of defendant). Application of law to facts. An application of the above principles to the present case led the court to the conclusion that Defendant was entitled to a reinstatement of his appellate rights as a consequence of ineffective assistance of counsel. First, Defendant's underlying claim of ineffectiveness was of arguable merit in that the omission by counsel to file a brief was obviously legally unsound. Second, the questionable omission had no reasonable legal basis. Even if it is assumed that counsel had hoped to gain additional time for preparation of his brief and in that sense to benefit the Defendant from his inaction, the potential consequence to Defendant's appellate rights of such an omission was so drastic as to render the omission indefensible in terms of a rational legal strategy. In this regard, this court finds itself unable to agree with the Commonwealth's position 22 See Commonwealth v. Weinder, 395 Pa. Super. 608,627,577 A.2d 1364, 1374 (1990). 23 A strong argument can obviously be made that "where a state constitution provides for a first appeal as of right, such appeal represents an integral part of the adjudication of guilt or innocence" and "thus, . . . where counsel's ineffectiveness operates to deprive a defendant of his constitutional right to appeal his judgment of sentence, the finding of guilt is thereby rendered inherently unreliable. . .." Commonwealth v. Lantzy, 558 Pa. 214, 220, 736 A.2d 564, 568 (1999). 24 Pa. Const. art. V, ~9. 7 on appeal that "the record reflects that the defendant failed to establish that counsel had no reasonable basis in his actions." Finally, the consequence of the omission III terms of a forfeiture of Defendant's constitutional right to appellate review of his judgment of sentence represented a sufficient degree of prejudice to satisfy the third query involved in an evaluation of a claim of ineffective assistance of counsel. For the foregoing reasons, the court entered the order under the Post Conviction Relief Act reinstating Defendant's right to appeal to the Pennsylvania Superior Court, from which the Commonwealth has appealed. BY THE COURT, 1. Wesley Oler, Jr., 1. Jaime M. Keating, Esq. Chief Deputy District Attorney Nathan C. Wolf, Esq. Suite 201 37 South Hanover Street Carlisle, P A 17013 Attorney for Anthony Thomas 8