J-S09037-23
2024 PA Super 15
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
FLOYD WATSON :
:
Appellant : No. 1049 WDA 2022
Appeal from the Judgment of Sentence Entered March 23, 2022
In the Court of Common Pleas of Clarion County
Criminal Division at No(s): CP-16-CR-0000086-2020
BEFORE: BENDER, P.J.E., BOWES, J., and SULLIVAN, J.
OPINION BY SULLIVAN, J.: FILED: January 29, 2024
Floyd Watson (“Watson”) appeals from the judgment of sentence
entered following his jury convictions for one count of rape, fourteen counts
of involuntary deviate sexual intercourse (“IDSI”), fourteen counts of IDSI of
a person less than sixteen years of age, fourteen counts of sexual assault,
thirteen counts of aggravated indecent assault, thirteen counts of aggravated
indecent assault of a person less than sixteen years of age, one count of
endangering the welfare of a child, one count of corruption of minors, thirteen
counts of indecent assault of a person less than sixteen years of age, and
fourteen counts of statutory sexual assault.1 After careful review, we are
constrained to dismiss the appeal.
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1 See 18 Pa.C.S.A. §§ 3121(a)(1), 3123(a)(2), 3123(a)(7), 3124.1,
3125(a)(1), 3125(a)(8), 4304(a)(1), 6301(a)(1)(ii), 3126(a)(1), 3126(a)(8),
and 3122.1(b).
J-S09037-23
A detailed recitation of the underlying factual history is not necessary
for this appeal. We briefly note that a jury convicted Watson of the above
offenses which resulted from the sexual abuse of his stepdaughter, starting
when the victim was eleven, and ending when she was seventeen. See N.T.,
9/23/21, at 27. Prior to sentencing, Watson retained new counsel (“new
counsel”) and trial counsel subsequently withdrew his appearance. The trial
court sentenced Watson to an aggregate term of twenty-seven to sixty years
in prison. The trial court also found Watson to be a sexually violent predator.
See Order, 3/4/22.
Watson, through new counsel, timely filed a post-sentence motion and
an amended post-sentence motion. It only raised claims of ineffective
assistance of trial counsel. See Amended Post-Sentence Motion, 5/18/22, at
1-2. The amended post-sentence motion concluded with the following
statement, “[Watson] has been advised that in raising ineffectiveness now, he
waives the right to raising [sic] issues of merit on direct appeal.” Id. at 2.
At an evidentiary hearing on Watson’s motion, there was no discussion
between the court and the parties about the propriety of raising issues
concerning ineffective assistance of counsel in an amended post-sentence
motion. See N.T., 6/20/22, at 3. Instead, new counsel immediately called
Watson to the stand, and asked the following preliminary questions:
[New Counsel]: [Watson], before we go any further, I’ve advised
you that in your [amended] post[-]sentence motion that you’re
raising ineffectiveness of counsel, correct?
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[Watson]: Yes.
[New 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?
[Watson]: Yes.
[New 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?
[Watson]: Yes.
[New Counsel]: Okay. And nobody’s forced you. You’re making
this decision voluntarily, correct?
[Watson]: Yes.
Id. at 4-5 (emphasis added). Trial counsel then proceeded to question
Watson about the substance of his claims of ineffective assistance of counsel,
and trial counsel also testified. On August 29, 2022, the trial court issued an
opinion denying Watson’s amended post-sentence motion.2 The instant,
timely appeal followed.3
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2 We note more than 120 days passed between the filing of the amended post-
sentence motion and the trial court’s denial of it. See Pa.R.Crim.P.
720(B)(3)(a).
3 This Court has found a breakdown in the trial court when a post-sentence
motion is not disposed within 120 days and/or the clerk of the courts has not
deemed the motion denied by operation of law and sent a copy of the order
to the parties. See Commonwealth v. Perry, 820 A.2d 734, 735 (Pa. Super.
2003). When a trial court denies a post-sentence motion after the 120-day
period and the appellant, as he did here, files a notice of appeal within 30 days
(Footnote Continued Next Page)
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On appeal, Watson raises the following issues:
1. Whether the trial court abused its discretion or [erred] as a
matter of law when the trial court concluded that [t]rial counsel
was not ineffective for failing to permit the defendant to testify
at trial[?]
2. Whether the trial court abused its discretion or [erred] as a
matter of law when the trial court concluded that . . . trial
counsel was not ineffective for failing [to] present numerous
pieces of evidence[,] including text messages[,] that would
have impeached witnesses’ testimony[?]
3. Whether the trial court abused its discretion or [erred] as a
matter of law when the trial court concluded that trial counsel
was not ineffective for failing [to file] a pretrial motion raising
the issue [of] the victim having [a] prior sexual[ly] transmitted
disease as required under the Rape Shield Statute[?]
4. Whether the trial court abused its discretion or [erred] as a
matter of law when the trial court concluded that trial counsel
did not fail to object to the district attorney’s closing when the
district attorney remarked that the defendant confessed and
said the defendant was guilty[?]
Watson’s Brief at 5-6.
All of Watson’s issues concern assertions of ineffective assistance of
counsel. See Watson’s Brief at 12-27. Before addressing the substance of
these issues, we must determine whether it was proper for Watson to raise
them in a post-verdict motion and whether the trial court appropriately
exercised its discretion in entertaining the claims.
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of the denial, the appeal is deemed timely. See id. Watson and the trial court
complied with Pa.R.A.P. 1925.
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In Commonwealth v. Holmes, 79 A.3d 562 (Pa. 2013), the
Pennsylvania Supreme Court reaffirmed the general rule which was initially
set forth in Commonwealth v. Grant,
813 A.2d 726 (Pa. 2002), that “claims
of ineffective assistance of counsel are to be deferred to PCRA review; trial
courts should not entertain claims of ineffectiveness upon post-verdict
motions; and such claims should not be reviewed upon direct appeal.”
Holmes,
79 A.3d at 576 (footnote omitted). The Holmes Court set forth two
limited exceptions to this general rule: (1) in “an extraordinary case where
the trial court, in the exercise of its discretion, determines that a claim (or
claims) of ineffectiveness is both meritorious and apparent from the
record so that immediate consideration and relief is warranted[;]”4 or (2)
when the defendant raises “multiple, and indeed comprehensive,
ineffectiveness claims[,]” which the court, “in its discretion, and for good
cause shown,” determines post-verdict review is warranted, and the
defendant waives his right to PCRA review.
Id. at 577-78 (emphases
added). Subsequently, our Supreme Court adopted a third exception,5 which
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4 Our Supreme Court has strongly linked the first exception to so-called “short
sentence” cases where an appellant might be unable to avail him or herself of
PCRA review prior to the expiration of the sentence. See Commonwealth v.
Burno,
94 A.3d 956, 971 (Pa. 2014) (citation omitted).
5 In Commonwealth v. Bradley,
261 A.3d 381 (Pa. 2021), the Supreme
Court recently suggested an additional limited circumstance where an
appellant may raise a claim of ineffective assistance of counsel outside of a
PCRA petition. However, this exception only applies to petitioners in the PCRA
(Footnote Continued Next Page)
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requires “trial courts to address claims challenging trial counsel’s performance
where the defendant is statutorily precluded from obtaining subsequent PCRA
review.” Commonwealth v. Delgros, 183 A.3d 352, 361 (Pa. 2018).6
Thus, we must ascertain whether Watson meets either of the Holmes
exceptions. In so doing, we reiterate while the trial court retains discretion to
address ineffectiveness claims on post-sentence motions, “the presumption
weighs heavily in favor of deferring such claims to collateral review.”
Commonwealth v. Knox, 165 A.3d 925, 928 (Pa. Super. 2017).
Here, we are perplexed by the failure of the trial court to address
Holmes either prior to the evidentiary hearing or in its Rule 1925(a) opinion.
See N.T., 6/20/23, at 3-4; Trial Court Opinion, 8/29/23, at 7-8.7
Nevertheless, we proceed with the Holmes analysis. Regarding the first
exception, which involves extraordinary cases with meritorious claims
apparent from the record: while there do not appear to be any published
opinions on the issue, this Court has held in an unpublished memoranda that
a claim is not “apparent from the record” if the trial court needs to schedule
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stage of proceedings. See id. at 401. Because review of Watson’s case is at
the direct appeal stage, Bradley is not applicable.
6 The Delgros exception does not apply in the instant matter.
7 We are also puzzled by the failure of the Commonwealth to object to the
proceedings, and by its appellate brief, in which it adopts the trial court’s
merits analysis without ever discussing the propriety of proceeding with
ineffective assistance of counsel claims on post-sentence motions and direct
appeal. See N.T., 6/20/23, at 3-4; Commonwealth’s Brief at 1-2.
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an evidentiary hearing to determine the merits of the claim. See
Commonwealth v. Alford, 1052 WDA 2020, 2021 WL 2907814 (Pa. Super.
2021) (unpublished memorandum at 8-9) (discussing that a claim is not
apparent from the record if an evidentiary hearing is required and citing other
unpublished memoranda holding the same).8 We find the reasoning in this
case persuasive. Thus, we hold a claim is not “apparent from the record”
where the trial court is required to schedule an evidentiary hearing to reach
the merits of a defendant’s ineffective assistance of counsel claims.
In his post-sentence motion, Watson failed to highlight any
extraordinary circumstance which merited consideration of his ineffective
assistance of counsel claims on direct appeal. See Amended Post-Sentence
Motion, 5/18/22, at 1-2; see also Holmes, 79 A.3d at 577. As noted above,
Watson is not serving a short sentence and we see nothing which
demonstrates any extraordinary circumstance. See Burno,
94 A.3d at 971.
Additionally, Watson’s claims were not “apparent from the record.” See
Holmes,
79 A.3d at 577. Because Watson demonstrated neither
extraordinary circumstances, nor that his claims were “apparent from the
record,” he has not met the first Holmes exception.
The second Holmes exception requires the trial court “in its discretion,
and for good cause shown,” to determine post-verdict review is warranted,
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8 See Pa.R.A.P. 126(b) (unpublished non-precedential memoranda decision of
Superior Court filed after May 1, 2019, may be cited for persuasive value).
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and that the defendant waives his right to PCRA review. Holmes, 79 A.3d
at 577-78 (emphases added). This Court has explained:
[I]n order for a defendant to raise counsel’s ineffectiveness on
direct appeal, he or she must expressly, knowingly and
voluntarily waive his or her right to PCRA review. Thus,
established waiver principles must be applied to waiver of PCRA
review when a defendant wishes to expedite the review of
ineffective assistance of counsel claims by way of a post-trial
motion. Consequently, a defendant must participate in an on-the-record colloquy, which ensures the defendant is aware of
the rights being waived, i.e., the “essential ingredients” of PCRA
review. This includes, but is not limited to, an explanation of (1)
the eligibility requirements for PCRA relief; (2) the right to be
represented by counsel for a first PCRA petition; (3) the types of
issues that could be raised pursuant to the PCRA that are now
being given up; and (4) the PCRA is the sole means of obtaining
nearly all types of collateral relief. See 42 Pa.C.S.[A.] §§ 9542-
9543; Pa.R.Crim.P. 904(C). The trial court must also ensure the
defendant has made the decision to waive [her] right to PCRA
review after consulting with counsel (if any) and in consideration
of his rights as they have been explained in the colloquy.
Commonwealth v. Baker, 72 A.3d 652, 668 (Pa. Super. 2013) (emphasis
added) (footnote omitted).
Here, Watson has never argued he had good cause for raising his
ineffective assistance of counsel claims in a post-sentence motion. See
Amended Post-Sentence Motion, 5/18/22, at 1-2; N.T., 6/20/12, at 3-5;
Watson’s Brief at 12-27. Further, the trial court did not make such a finding.
See N.T., 6/20/12, at 3-5. Most importantly, Watson did not make a knowing
waiver of his right to PCRA review. It is evident from the record that Watson’s
purported waiver of his right to file any PCRA claims was not knowing and
voluntary because it was based on new counsel’s misinterpretation of the
relevant case law. The “waiver” contained in the amended post-sentence
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motion and the on-the-record colloquy cited above are not waivers of the right
to seek PCRA relief. Rather, and confusingly, new counsel advised Watson he
was waiving his “right to raise issues of merit on direct appeal.” Amended
Post-Sentence Motion, 5/18/22, at 1-2. However, there is nothing in our
jurisprudence which prohibits a criminal defendant from raising both direct
challenges to his conviction and, so long as he meets the Holmes exceptions,
claims of ineffective assistance of counsel in a post-sentence motion or on
direct appeal. See e.g., Commonwealth v. Murray, 174 A.3d 1147, 1152-
57 (Pa. Super. 2017) (addressing the merits of Murray’s direct challenges to
the judgment of sentence while deferring his claim of trial counsel’s
ineffectiveness to PCRA review); Knox,
165 A.3d at 927-31 (holding Knox’s
claim of ineffective assistance of counsel was not “ripe” for review on direct
appeal but addressing the merits of his challenge to the discretionary aspects
of sentence). Moreover, all parties in this matter seem to be under the
misapprehension that a criminal defendant has a “choice” regarding when to
raise claims of ineffective assistance of counsel. See N.T., 6/20/22, at 5. This
is incorrect. Because Watson has neither demonstrated “good cause” nor
made a knowing, intelligent, and voluntary waiver of his right to subsequent
PCRA review, the second Holmes exception is inapplicable here.
Pennsylvania law has been clear since our Supreme Court decided
Grant in 2002 that ineffective assistance of counsel claims must be deferred
to PCRA review. The Court reaffirmed ten years ago in Holmes that the
exceptions to this general rule are narrow and limited to a very specific set of
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circumstances, none of which are present here. We therefore conclude
Watson’s claims of trial counsel’s alleged ineffectiveness are not properly
before us on this direct appeal. The trial court abused its discretion in
concluding otherwise. We are constrained to dismiss this appeal without
prejudice, allowing Watson to raise his claims of ineffective assistance of
counsel in a timely PCRA petition.
Appeal dismissed.
DATE: 01/29/2024
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