2005 Pa. Super. 418 - Commonwealth v. Marts

STEVENS, J.,

¶1Concurring.

¶2¶ 1 I write separately to address the impact the Supreme Court’s recent decision in Commonwealth v. O’Berg, — Pa. -, 880 A.2d 597 (2005) has on appellate *617counsel’s claim of her own ineffectiveness in failing to raise Appellant’s discretionary aspect of sentencing claim in the court-ordered Pa.R.A.P. 1925(b) statement. See Majority Opinion at 611 n. 4. In O’Berg, the Supreme Court examined Grant’s5 general rule that claims of ineffective assistance of trial court should be deferred until collateral review and concluded that there is no “short sentence” exception to the general rule announced in Grant. In so doing, the Supreme Court in O’Bergspecifically stated:

[W]e believe the best course of action is to reaffirm our decision in Grant and reiterate that, as a general rule, claims of ineffective assistance of counsel will not be entertained on direct appeal. Moreover, we take this opportunity to disapprove of any decisions of the Superior Court that are to the contrary.

¶3O’Berg, 880 A.2d at 602.

¶4¶ 2 O’Bergwas filed subsequent to this Court’s decision in Commonwealth v. Wade, 867 A.2d 547 (Pa.Super.2005), upon which the Majority relies in concluding that Appellant’s ineffective assistance of appellate counsel claim is viable on direct appeal. In Wade, this Court explained that Grant’s general pronouncement is inapplicable to assertions that appellate counsel was ineffective in failing to raise a specific issue in a Pa.R.A.P. 1925(b) statement. We held that “by its very wording, Grant applies to allegations of ineffectiveness of trial counsel.”6Wade, 867 A.2d at 555 (emphasis in original).

¶5¶ 3 I conclude O’Berghas not overruled this Court’s decision in Wadeand, absent a specific Supreme Court pronouncement that Grant is applicable to claims of ineffective assistance of appellate counsel in failing to raise a precise issue in a court-ordered Pa.R.A.P. 1925(b) statement on direct appeal,7 I agree with the Majority that Wadeis controlling and permits review of Appellant’s underlying discretionary aspect of sentencing claim.

¶6. Commonwealth v. Grant, 572 Pa. 48, 813 A.2d 726 (2002).

¶7. We acknowledged in Wadethat "Grant cannot be avoided by simply layering a claim of ineffectiveness of appellate counsel atop a claim of ineffectiveness of trial counsel.” Wade, 867 A.2d at 555. Therefore, an appellate counsel's claim that he was ineffective in failing to raise a claim of trial counsel’s ineffectiveness in a court-ordered Pa.R.A.P. 1925(b) statement would result in deferral of the claim pursuant to Grant. However, in the case sub judice, appellate counsel is claiming that she was ineffective in failing to raise a discretionary aspects of sentencing claim in Appellant’s Pa.R.A.P. 1925(b) statement.

¶8. I note that the Supreme Court has applied O'Berg twice to find that ineffective assistance of trial counsel claims should be deferred until collateral review. See Commonwealth v. May, 2005 WL 3118048, - Pa. -, 887 A.2d 750 (Pa.2005); Commonwealth v. DeJesus, 880 A.2d 608 (Pa.2005). Neither of these cases dealt with allegations regarding appellate counsel’s ineffectiveness.

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