Com. v. Holly, R. ( 2015 )

J-S69032-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
RANDELL HOLLY
Appellant No. 407 EDA 2014
Appeal from the Judgment of Sentence entered February 11, 2011
In the Court of Common Pleas of Philadelphia County
Criminal Division at Nos: CP-51-CR-0008395-2009;
CP-51-CR-0008456-2009; CP-51-CR-0009089-2009
BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., and STABILE, J.
MEMORANDUM BY STABILE, J.: FILED JANUARY 16, 2015
Appellant, Randell Holly, appeals the judgment of sentence entered
February 11, 2011 by the Court of Common Pleas of Philadelphia County.
On direct appeal, Appellant raises one claim of ineffective assistance of
counsel pertaining to trial counsel. Because this claim is not cognizable on
direct appeal under the circumstances of this case, we affirm the judgment
of sentence, without prejudice to Appellant’s right to raise it in a timely Post
Conviction Relief Act (PCRA) petition.1 Counsel has filed a brief under
Anders v. California, 386 U.S. 738 (1967), and petitioned to withdraw as
counsel, alleging that this appeal is wholly frivolous. Upon review, we grant
the petition to withdraw.
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1
42 Pa.C.S.A. §§ 9541-46.
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The trial court summarized the relevant background of the case in its
Rule 1925(a) opinion, which reads:
On November 22, 2010, following a jury trial, Appellant was
convicted of indecent assault, corrupting the morals of a minor,
and unlawful contact with a minor. These charges stemmed
from Appellant’s molestation of three young children, ages 7, 8,
and 9. On February 11, 2011, [the trial court] sentenced
Appellant to three and one-half (3 1/2) to seven (7) years’
incarceration, followed by six (6) years’ probation. Appellant
filed neither post-sentence motions nor a direct appeal.
On March 12, 2012, Appellant filed a [PCRA petition]. On June
12, 2013, Appellant’s PCRA counsel filed an Amended Petition
alleging that trial counsel rendered ineffective assistance by
failing to file post-sentence motions challenging the weight of
the evidence and the discretionary aspects of Appellant’s
sentence, and by failing to file a direct appeal. Appellant
requested permission to file post-sentence motions and a direct
appeal nunc pro tunc.
On January 17, 2014, [the trial court] held an evidentiary
hearing and reinstated Appellant’s right to file a direct appeal of
his conviction and sentence, but denied his request to file post-
sentence motions. [This appeal followed].
Trial Court Opinion, 4/29/14, at 1-2.
On appeal, Appellant raises the following issue:
Trial counsel was ineffective for failing to investigate and call as
witnesses at trial Khadejah Catley and Lamar, both of whom
would have testified that the victims had a reputation for lying.
Appellant’s Brief at 10.
When presented with an Anders brief, this Court may not review the
merits of the underlying issues without first examining counsel’s petition to
withdraw. See Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa.
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2009); see also Commonwealth v. Goodwin, 928 A.2d 287, 290 (Pa.
Super. 2007) (en banc). It is well-established that, in requesting a
withdrawal, counsel must satisfy the following procedural requirements: 1)
petition the court for leave to withdraw stating that, after making a
conscientious examination of the record, counsel has determined that the
appeal would be frivolous; 2) provide a copy of the brief to the defendant;
and 3) advise the defendant that he or she has the right to retain private
counsel, proceed pro se or raise additional arguments that the defendant
considers worthy of the court’s addition. Commonwealth v. Lilley, 978
A.2d 995, 997 (Pa. Super. 2009).
Instantly, counsel’s petition to withdraw from representation provides
that counsel reviewed the record and concluded that the appeal is frivolous.
Furthermore, counsel notified Appellant that he was seeking permission to
withdraw and provided Appellant with copies of the petition to withdraw and
his Anders brief. Counsel also advised Appellant of his right to retain new
counsel, proceed pro se, or raise any additional points he deems worthy of
this Court’s attention. Accordingly, we conclude that counsel has satisfied
the procedural requirements of Anders.
We next must determine whether counsel’s Anders brief complies with
the substantive requirements of Santiago, wherein our Supreme Court
held:
[I]n the Anders brief that accompanies court-appointed
counsel’s petition to withdraw, counsel must: (1) provide a
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summary of the procedural history and facts, with citations to
the record; (2) refer to anything in the record that counsel
believes arguably supports the appeal; (3) set forth counsel’s
conclusion that the appeal is frivolous; and (4) state counsel’s
reasons for concluding that the appeal is frivolous. Counsel
should articulate the relevant facts of record, controlling case
law, and/or statutes on point that have led to the conclusion that
the appeal is frivolous.
Santiago, 978 A.2d at 361. Here, our review of counsel’s brief indicates
that he has complied with the briefing requirements of Santiago. We,
therefore, conclude that counsel has satisfied the minimum requirements of
Anders/Santiago.
Once counsel has met his obligations, “it then becomes the
responsibility of the reviewing court to make a full examination of the
proceedings and make an independent judgment to decide whether the
appeal is in fact wholly frivolous.” Santiago, 978 A.2d at 355 n.5.
Before we can address the merits of this case, however, we must
determine preliminarily whether a claim for ineffective assistance of counsel
(IAC) is reviewable by this Court at this procedural juncture. For the
reasons explained below, we conclude it is not.
As noted the by the trial court, this Court cannot review a claim for
ineffective assistance of counsel at this stage. In Commonwealth v.
Holmes, 79 A.3d 562 (Pa. 2013), our Supreme Court reaffirmed the general
principle that IAC claims must be deferred to collateral review. See
Commonwealth v. Grant, 813 A.2d 726 (Pa. 2002). Notwithstanding this
general rule, the Supreme Court created two limited exceptions, both falling
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within the trial court’s discretion. The Holmes Court summarized the two
exceptions as follows:
First, we appreciate that there may be extraordinary
circumstances where a discrete claim (or claims) of trial counsel
ineffectiveness is apparent from the record and meritorious to
the extent that immediate consideration best serves the
interests of justice; and we hold that trial courts retain their
discretion to entertain such claims.
....
Second, with respect to other cases and claims, including cases
such as Bomar[2] and the matter sub judice, where the
defendant seeks to litigate multiple or prolix claims of counsel
ineffectiveness, including non-record-based claims, on post-
verdict motions and direct appeal, we repose discretion in the
trial courts to entertain such claims, but only if (1) there is good
cause shown, and (2) the unitary review so indulged is preceded
by the defendant’s knowing and express waiver of his
entitlement to seek PCRA review from his conviction and
sentence, including an express recognition that the waiver
subjects further collateral review to the time and serial petition
restrictions of the PCRA. In other words, we adopt a paradigm
whereby unitary review may be available in such cases only to
the extent that it advances (and exhausts) PCRA review in time;
unlike the so-called Bomar exception, unitary review would not
be made available as an accelerated, extra round of collateral
attack as of right. . . . . This exception follows from the
suggestions of prior Court majorities respecting review of prolix
claims, if accompanied by a waiver of PCRA review.
Holmes, at 563-64 (footnotes omitted).3
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2
Commonwealth v. Bomar, 826 A.2d 831 (Pa. 2003).
3
The Supreme Court summarized the impact of Holmes on Grant and
Bomar as follows:
(Footnote Continued Next Page)
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Here, the trial court did not find the claim to be meritorious and
apparent from the record as to require immediate vindication. Additionally,
Appellant did not allege any “good cause” for seeking unitary review of his
ineffectiveness claim and did not state he intended to waive collateral
review. Thus, neither of the exceptions outlined in Holmes is applicable
here. See also Trial Court Opinion, 4/2914, at 4. The instant claim,
therefore, is not reviewable on this direct appeal. Holmes, 79 A.3d 563-64;
see also Commonwealth v. Britt, 83 A.3d 198, 204 (Pa. Super. 2013)
(IAC claim not reviewable on direct appeal because claim was not apparent
from record and appellant did not waive PCRA review). Accordingly, we
affirm the judgment of sentence without prejudice to Appellant to raise this
IAC claim in a timely PCRA petition, and grant counsel’s petition to withdraw.
Judgment of sentence affirmed. Petition to withdraw granted.
_______________________
(Footnote Continued)
[W]e hold that Grant’s general rule of deferral to PCRA review
remains the pertinent law on the appropriate timing for review of
claims of ineffective assistance of counsel; we disapprove of
expansions of the exception to that rule recognized in Bomar;
and we limit Bomar, a case litigated in the trial court before
Grant was decided and at a time when new counsel entering a
case upon post-verdict motions was required to raise
ineffectiveness claims at the first opportunity, to its pre-Grant
facts.
Holmes, 79 A.3d at 563.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/16/2015
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