Commonwealth v. Fareri

¶1dissenting:

¶2The question presented is whether at a PCHA1 hearing petitioner’s trial and revocation counsel could be found ineffective in failing to perfect direct appeals from both petitioner’s initial judgment of sentence and a subsequent order entered after a revocation hearing, revoking probation and imposing judgment of sentence on petitioner’s original conviction. The Majority, without explanation or justification, proclaims that both trial and revocation counsel were ineffective for failing to file direct appeals, and accordingly, grants petitioner the right to file his direct appeals nunc pro tunc. The Majority, however, errs when it reasons “[bjecause the Commonwealth introduced no evidence to show that appellant waived his right to appeal and to the assistance of counsel,” that prior counsel were necessarily ineffective in failing to perfect direct appeals despite petitioner’s apparent requests that they do so. To the contrary, applying the settled standard for determining whether an accused has been denied the effective assistance of counsel compels us to conclude that petitioner’s present collateral attack on his conviction must fail; petitioner’s PCHA counsel has not only failed to show that any claims which petitioner may have raised on direct appeal were of “arguable merit,” but also has failed to even indicate in what respects trial and revocation counsels’ decisions not to appeal lacked a reasonable basis.

¶3I.

¶4Ineffective Assistance of Counsel

¶5In evaluating petitioner’s contention that both of his counsel were ineffective for failing to perfect direct appeals after being requested to do so, the Majority departs in fundamental respects from the test set forth in Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 604, 235 A.2d 349, 352 (1967) and its progeny:

*180“[CJounsel’s assistance is deemed constitutionally effective once we are able to conclude that the particular course chosen by counsel had some reasonable basis designed to effectuate his client’s interests.”

¶6Under this standard, however, counsel cannot be held ineffective for either failing to assert a fruitless claim or for failing to perfect a baseless appeal, as, in such cases, counsel has not foregone an alternative which offers any potential for success. E. g., Commonwealth v. Hubbard, 472 Pa. 259, 278, 372 A.2d 687, 696 (1977); Commonwealth v. Nole, 461 Pa. 314, 336 A.2d 302 (1975); Commonwealth v. Harrison, 228 Pa.Super. 42, 323 A.2d 848 (1974). It is only when the abandoned (or waived) claim has “arguable merit ” that we must undertake the further inquiry into counsel’s basis for not pursuing it. E. g., Commonwealth v. Weathers, EL, 485 Pa. 28, 400 A.2d 1295 (1979); Commonwealth v. Sherard, 483 Pa. 183, 192, 394 A.2d 971, 976 (1978); Commonwealth v. Blackwell, 258 Pa.Super. 121, 392 A.2d 714 (1978); Commonwealth v. Harrison, 228 Pa.Super. 42, 323 A.2d 848 (1974). In this regard, petitioner’s PCHA counsel neither instructed the PCHA court nor this Court of the issue or issues of “arguable merit” which trial and revocation counsel could and should have pursued on the direct appeals which they did not perfect. Indeed, petitioner’s PCHA counsel does not argue that the advice of prior counsel not to appeal was incorrect, misleading, or ineffective in any particular. Rather, petitioner, and apparently the Majority also, reason that counsel’s refusal to heed petitioner’s requests to appeal per se demonstrates that counsel’s conduct did not have a reasonable basis designed to effectuate petitioner’s interests under the first prong of the Washington v. Maroney test, supra. Our examination of the relationship between a denial of “Douglas rights”2 and the relief available under the PCHA, as well as recent cases decided by both this Court and our Supreme Court, however, forecloses such a conclusion.

¶7*181(a) “Waiver” & “Douglas Rights”

¶8At the threshold of most PCHA proceedings in which an accused alleges a deprivation of “Douglas Rights” there necessarily appears a determination of whether the accused’s failure to take a direct appeal constitutes a waiver under Section 1180-3(d)3 and 1180-4(b)4 of the Act of any claims he may have presented on that appeal. See, Commonwealth v. Holmes, 468 Pa. 409, 364 A.2d 259 (1976); Commonwealth v. Blackwell, 258 Pa.Super. 121, 392 A.2d 714 (1978); Commonwealth v. Peake, 210 Pa.Super. 133, 231 A.2d 908 (1967). In resolving this question, all Pennsylvania appellate courts are uniform in holding that “[i]f an issue is not raised on direct appeal, it is presumptively treated as waived unless the petitioner can show that extraordinary circumstances justified his failure to raise it previously.”5 19 P.S. § 1180-4(c); Blackwell, 258 Pa.Super. at 123, 392 A.2d at 715; Commonwealth v. Valezquez, 244 Pa.Super. 327, 330, 368 A.2d 745, 746 (1976). See also, Holmes, 468 Pa. at 415, 364 A.2d at 262.6 Equally clear is the further proposition *182that counsel’s failure to file a direct appeal may rise to the level of ineffective assistance of counsel, such that an “extraordinary circumstance” within the meaning of section 1180-4(b)(2) of the Act is present where counsel’s ineffectiveness has resulted in a denial of a petitioner’s appeal rights. E. g., Commonwealth v. Holmes, 468 Pa. 409, 416, 364 A.2d 259, 263 (1976); Commonwealth v. Blackwell, 258 Pa.Super. 121, 392 A.2d 714 (1978); Commonwealth v. Valezquez, 244 Pa.Super. 330, 327, 368 A.2d 745, 764 (1976); Commonwealth v. Green, 234 Pa.Super 236, 338 A.2d 607 (1975). Compare, Commonwealth v. Tunnell, 463 Pa. 462,345 A.2d 611 (1975); Commonwealth v. Fiero, 462 Pa. 409,341 A. 2d 448 (1975).7 In pursuing this argument in the present proceeding, however, PCHA counsel bore the burden of alleging facts which would support a determination that both prior counsel’s actions were erroneous in failing to perfect direct appeals.8 Instantly, since PCHA counsel failed to show how any claims of “arguable merit” could, or should, have been pursued on the direct appeals which were not perfected, we would hold that “extraordinary circumstances” have not been shown.

¶9II

¶10PCHA Proceedings and Douglas Rights

¶11As a result of the above rules and principles, any claims which would have been cognizable on the direct appeals which counsel’s actions thwarted, are now not only capable of being raised, but should have been raised by PCHA *183counsel if petitioner is to succeed in his present collateral attack. To the extent that petitioner’s desire to take a direct appeal was dashed by his counsel’s action, this alone is not prejudicial. E. g., Commonwealth v. Musser, 437 Pa. 131, 133, 262 A.2d 678, 680 (1970) (per curiam); see also, Commonwealth v. Hayes, 462 Pa. 291, 341 A.2d 85 (1975); Commonwealth v. Walker, 460 Pa. 658, 334 A.2d 282 (1975). This is so for a simple reason; namely, since ineffective assistance of counsel is the only claim that petitioner’s PCHA counsel now raises, and presumably would have raised on the direct appeals which trial and revocation counsel frustrated, all such claims of ineffectiveness cognizable on that direct appeal are capable of being raised in the instant PCHA proceeding. Similarly, in the absence of any contention by present counsel that trial and/or revocation counsel’s action in not appealing was incorrect or misleading, it can not be held that they were, strictly speaking, per se ineffective. On the direct appeals which the Majority would grant petitioner,9 would not petitioner in order to prevail have to avail himself of either one of two contentions — (1) that the lower court committed some reversible error in convicting or sentencing him or; (2) that trial and/or revocation counsel’s actions were constitutionally deficient in omitting to pursue some course of action at trial.10 In either *184case, the ultimate conclusion which would be reached by the Majority of this court would be the same as regards prior counsel’s representation,. i. e., in the former case counsel would be ineffective in advising petitioner not to take a direct appeal and in the latter case counsel’s error would merely be compounded by his failure to perfect a direct appeal. In view of the above, we are at a loss as to how the Majority reasons that trial and revocation counsel can be ineffective even though PCHA counsel fails to raise any claim which would have required a reversal if raised on direct appeal, i. e., that trial and/or revocation counsel were ineffective in failing to perfect a direct appeal in order to raise issues of “arguable merit.”

¶12In sum, this record cannot sustain the Majority’s conclusion that both counsel for petitioner were ineffective. Petitioner’s prior counsel have not been shown either to have ignored any issues which would have required a reversal, or to have failed to take any action or give any advice which demonstrated a lack of legal preparation. To the extent, therefore, that the Majority concludes both of petitioner’s prior counsel were ineffective, they pursue a course which is unsupported by recent precedent11 and not required in the *185interest of orderly procedure or fairness to petitioner and his counsel.