Commonwealth v. Rosado, F., Aplt , 637 Pa. 424 ( 2016 )

[J-79-2016]
IN THE SUPREME COURT OF PENNSYLVANIA
MIDDLE DISTRICT
SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.
COMMONWEALTH OF PENNSYLVANIA, : No. 92 MAP 2015
:
Appellee : Appeal from the Order of the Superior
: Court dated April 17, 2015 at 2474 EDA
: 2014 affirming the PCRA Order of the
v. : Court of Common Pleas of Monroe
: County, Criminal Division, dated July
: 18, 2014 at CP-45-CR-0000018-2012
FRANKIE ROSADO, :
: SUBMITTED: June 8, 2016
Appellant :
OPINION
JUSTICE TODD DECIDED: November 22, 2016
In this appeal, we consider whether filing an appellate brief which abandons all
preserved issues in favor of unpreserved ones constitutes ineffective assistance of
counsel per se.1 After careful review, we hold that it does, and so we vacate the
Superior Court’s order and remand to that court for further proceedings.
The factual and procedural history of this matter is straightforward. In 2012,
Appellant Frankie Rosado was accused of sexually abusing his former girlfriend’s
teenage daughter, whereupon he was charged with one count each of indecent assault,
corruption of minors, and unlawful contact with minor.2 Appellant, then represented by
1
As detailed below, an accused seeking relief on the basis of ineffective assistance of
counsel must typically demonstrate that his counsel's errors caused him prejudice;
however, in certain limited circumstances, he may alternatively demonstrate that his
counsel's errors are so plainly egregious as to amount to a constructive denial of
counsel, which constitutes ineffective assistance of counsel per se. See Strickland v.
Washington, 466 U.S. 668, 692-94 (1984); United States v. Cronic, 466 U.S. 648, 659
(1984).
2
18 Pa.C.S. §§ 3126, 6301, and 6318, respectively.
a public defender, proceeded to trial, whereafter he was convicted of the
aforementioned offenses and later sentenced to an aggregate term of 33 to 69 months
imprisonment.
Appellant hired new counsel (hereinafter “Appellate Counsel”) to represent him at
the post-sentencing and appellate stages of his case. Appellate Counsel filed a post-
sentence motion raising, as relevant here, a sufficiency-of-the-evidence claim, but the
trial court denied relief. Appellate Counsel then filed a notice of appeal to the Superior
Court, whereupon the trial court issued an order directing him to file a concise statement
of matters complained of on appeal pursuant to Pa.R.A.P. 1925(b). Appellate Counsel
filed a document styled as a “preliminary” concise statement, wherein he raised three
issues: (1) whether Appellant’s sentence was “an abuse of discretion”; (2) whether the
trial court erred in excluding evidence that the alleged victim had previously accused her
father of sexual abuse; and (3) whether a juror fraudulently concealed bias during voir
dire. Appellate Counsel also attached a copy of his post-sentence motion to the
“preliminary” concise statement, erroneously believing that doing so would preserve the
claims raised therein for purposes of appeal, and requested additional time to file a
“final” concise statement, which the trial court granted.3 However, Appellate Counsel
never filed a revised concise statement, and, accordingly, the trial court considered the
three claims raised in the extant concise statement, and issued a Pa.R.A.P. 1925(a)
opinion rejecting those claims. Appellate Counsel then filed an appellate brief with the
Superior Court, in which, deciding to abandon the three claims raised in his concise
3
In the “preliminary” concise statement, Appellate Counsel refers to or incorporates the
post-sentence motion only in two respects: with respect to the procedural background
set forth therein, and with respect to the claim that the trial court abused its discretion in
sentencing Appellant.
[J-79-2016] - 2
statement and addressed by the trial court, he raised as his sole appellate issue the
unpreserved sufficiency claim.
In an unpublished memorandum opinion, the Superior Court, while noting the
three issues preserved in Appellant’s concise statement, found the sufficiency claim to
be waived, as it was not included therein. Commonwealth v. Rosado, No. 2754 EDA
2012 (Pa. Super. filed Jul. 23, 2013). Accordingly, the court did not address any of
Appellant’s preserved claims or his sufficiency claim, and, as a result, it summarily
affirmed.
Appellant later filed a Post Conviction Relief Act (“PCRA”)4 petition asserting,
inter alia, that Appellate Counsel’s above-detailed conduct constituted ineffective
assistance of counsel per se, and thus seeking reinstatement of his appellate rights
nunc pro tunc. The PCRA court held an evidentiary hearing, at which Appellate
Counsel testified that he believed that attaching his post-sentence motion to his concise
statement was sufficient to preserve the claims raised for purposes of appeal, and that
he abandoned the three preserved claims in an effort to more persuasively argue his
sufficiency claim. Ultimately, the PCRA court found that Appellate Counsel’s conduct
did not amount to ineffectiveness per se, and, accordingly, denied relief. Appellant
appealed to the Superior Court.
In an unpublished memorandum opinion, the Superior Court affirmed.
Commonwealth v. Rosado, No. 2474 EDA 2014 (Pa. Super. filed Apr. 17, 2015). The
court first quoted extensively from the PCRA court’s Rule 1925(a) opinion regarding the
doctrine of ineffective assistance of counsel per se as it applies to appeals in
Pennsylvania:
4
42 Pa.C.S. §§ 9541 et seq.
[J-79-2016] - 3
There are two types of ineffective assistance of counsel.
The first is ineffectiveness under Strickland v. Washington,
466 U.S. 668 (1984), as adopted in Pennsylvania by
Commonwealth v. Pierce, 527 A.2d 973 (Pa. 1987), which
requires the defendant to demonstrate that he was
prejudiced by an act or omission of his attorney.
* * *
The second type of ineffectiveness of counsel is
ineffectiveness per se under United States v. Cronic, 466
U.S. 648 (1984), decided the same day as Strickland, in
which the United States Supreme Court categorized
circumstances where prejudice will be presumed and need
not be proven. The presumption is based on the High
Court’s recognition that there are “some circumstances so
likely to prejudice the accused that the cost of litigating their
effect in a particular case is unjustified.” (Id. at 658).
In Commonwealth v. Brown, 18 A.3d 1147 (Pa. Super.
2011), our Superior Court collected cases that outline the
various situations where counsel has been held to be
ineffective per se and analyzed the differences between a
Cronic violation and a Strickland/Pierce allegation of
ineffective assistance of counsel.
* * *
The recognized instances of per se ineffectiveness
entitling a defendant to automatic relief are extremely
narrow. Commonwealth v. Halley, 582 Pa. 164, 870 A.2d
795 (2005) (counsel did not file a Pa.R.A.P. 1925(b)
statement and waived all issues, thereby denying the
defendant his constitutional right to direct appeal);
Commonwealth v. Liebel, 573 Pa. 375, 825 A.2d 630 (2003)
(attorney did not file a petition for allowance of appeal, as
requested by the defendant, and denied his client the right to
seek discretionary review with our Supreme Court);
Commonwealth v. Lantzy, 558 Pa. 214, 736 A.2d 564, 572
(1999) (lawyer did not file a direct appeal, despite
defendant[‘]s request); see also Commonwealth v. Burton,
973 A.2d 428 (Pa. Super. 2009) (filing of an untimely
1925(b) statement); Commonwealth v. Bennett, 593 Pa. 382,
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930 A.2d 1264 (2007) (not filing an appellate brief so
defendant did not obtain direct review).
On the other hand, the types of actions or inactions
that are not subject to Cronic are legion. E.g.
Commonwealth v. Reed, 601 Pa. 257, 971 A.2d 1216, 1226
(2009) (“filing an appellate brief, deficient in some aspect or
another, does not constitute a complete failure to function as
a client’s advocate so as to warrant a presumption of
prejudice under Cronic”); . . . [sic] Commonwealth v. Reaves,
592 A.2d 134, 923 A.2d 1119 (2007) (narrowing ambit of
reviewable issues on appeal does not constitute per se
ineffectiveness)[.]
Rosado, No. 2474 EDA 2014 at 6-8 (quoting PCRA Court Opinion, 10/31/14, at 6-9).
The Superior Court then rejected Appellant’s claim that Appellate Counsel’s conduct
constituted ineffective assistance of counsel per se:
Here, Appellant’s appeal was timely filed, a Pa.R.A.P.
1925(b) statement was filed, and this Court acknowledged
the claim Appellate Counsel chose to raise on appeal.
These facts vitiate Appellant’s claim of per se
ineffectiveness. As discussed above, because Appellate
Counsel litigated Appellant’s direct appeal, Appellant’s claim
of ineffectiveness must be reviewed using the tripartite test
of Strickland/Pierce. See also Commonwealth v. West, 883
A.2d 654, 658 n.5 (Pa. Super. 2005) (explaining that per se
ineffectiveness does not occur when counsel elected to
pursue certain issues in the Pa.R.A.P. 1925(b) statement
and omitted others).
In Appellant’s direct appeal, we found Appellant waived the
only issue appellate counsel chose to raise. This fact,
however, does not transform his claim into one of per se
ineffectiveness. See [Reed, 971 A.2d at 1226] (“filing an
appellate brief, deficient in some aspect or another, does not
constitute a complete failure to function as a client’s
advocate so as to warrant a presumption of prejudice under
Cronic”).
[J-79-2016] - 5
Id. at 8-9. Accordingly, the court concluded that Appellant was required to demonstrate
that Appellate Counsel’s errors caused him prejudice, and, finding he had not done so,
affirmed the PCRA court’s denial of relief.
Appellant timely sought, and this Court granted, allowance of appeal to consider
whether filing an appellate brief which abandons all preserved issues in favor of
unpreserved ones constitutes ineffective assistance of counsel per se. Commonwealth
v. Rosado, 129 A.3d 1237 (Pa. 2015) (order).
Before us, the parties’ arguments essentially offer two views of our jurisprudence
in this area. Appellant contends that the Superior Court erred in rejecting his claim
because it ignored “clear similarities” between the attorneys’ conduct in Lantzy, Halley,
Bennett, and Liebel – i.e., the failure to file a requested appeal, concise statement,
appellate brief, and petition for allowance of appeal, respectively – and Appellate
Counsel’s conduct herein. Appellant’s Brief at 8. Specifically, Appellant submits that
Appellate Counsel’s filing of a brief containing no preserved issue is functionally
equivalent to not filing a brief – as was the case in Bennett – and, in any event,
Appellate Counsel’s actions caused the complete forfeiture of merits review – as was
the case in each of the aforementioned cases. Thus, Appellant views our earlier
decisions in this area as drawing a distinction between attorney errors which cause
complete deprivation of appellate review – which constitute ineffective assistance of
counsel per se – and attorney errors causing partial deprivation of appellate review –
which do not.5
5
Appellant also presents a single-paragraph argument that, even if Appellate Counsel's
conduct does not constitute ineffective assistance of counsel per se, he has established
that Appellate Counsel's conduct caused him prejudice, and, thus, is entitled to relief
under the Strickland/Pierce framework. Appellant’s claim in this regard is outside the
scope of our grant of allowance of appeal, which was limited to the issue of whether
Appellate Counsel was ineffective per se.
[J-79-2016] - 6
The Commonwealth, by contrast, advances a competing view, consistent with
the Superior Court’s reasoning below, that this Court’s decisions in Lantzy and its
progeny apply only where counsel fails to file a document necessary to preserve review,
and that, once those documents are properly filed, any defects therein are governed by
Reed’s holding that merely filing a brief which is deficient in some way does not give
rise to a claim of ineffective assistance of counsel per se. See Commonwealth’s Brief at
10. Moreover, the Commonwealth echoes our concern, expressed in Reed, that
extending Lantzy to the context of defective appellate briefs would “transform the
exception” of ineffective assistance of counsel per se “into a rule,” as, in its view, “[t]o
delve into the substance of the actual content [of a brief] in order to make a finding of
per se ineffectiveness would in practice, do away with the Strickland/Pierce standard.”
Id. at 11-12.
The Sixth Amendment to the United States Constitution provides that “[i]n all
criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of
Counsel for his defence.” U.S. Const. amend. VI.6 The right to counsel is not a mere
hollow formality satisfied by “trial alongside . . . a person who happens to be lawyer,”
but, instead, “is the right to the effective assistance of counsel.” Strickland, 466 U.S. at
685-66 (1984) (quoting McMann v. Richardson, 397 U.S. 759, 771 n.14 (1970))
(emphasis added); see also Commonwealth v. Albert, 561 A.2d 736, 738 (Pa. 1989) (“It
is axiomatic that the right to counsel includes the concomitant right to effective
assistance of counsel.”).
6
Appellant’s claim is based on the Sixth Amendment's right to counsel, which applies,
via the Fourteenth Amendment's guarantee of due process, to state proceedings
carrying a potential sentence of imprisonment. See Argersinger v. Hamlin, 407 U.S. 25
(1972).
[J-79-2016] - 7
Generally, an accused asserting that he has been denied his constitutional right
to effective assistance of counsel must demonstrate that counsel engaged in errors
which caused him prejudice – i.e., that “there is a reasonable probability that, but for
counsel’s . . . errors, the result of the proceeding would have been different.” Strickland,
466 U.S. at 694. In Pennsylvania, we have set forth the Strickland standard as a three-
part test, requiring an accused to show that (1) his underlying claim is of arguable merit;
(2) counsel’s action or inaction lacked a reasonable strategic basis; and (3) but for
counsel’s conduct, there is a reasonable probability that the outcome of the proceedings
would have been different. See Pierce, supra. However, in certain limited
circumstances, including the actual or constructive denial of counsel, prejudice may be
so plain that the cost of litigating the issue of prejudice is unjustified, and a finding of
ineffective assistance of counsel per se is warranted. See Cronic, 466 U.S. at 658-59
(“There are . . . circumstances that are so likely to prejudice the accused that the cost of
litigating their effect in a particular case is unjustified. Most obvious, of course, is the
complete denial of counsel.” (footnote omitted)); Strickland, 466 U.S. at 692 (“Actual or
constructive denial of the assistance of counsel altogether is legally presumed to result
in prejudice.”); Lantzy, 736 A.2d at 571 (“[A]ctual or constructive denial of the assistance
of counsel falls within a narrow category of circumstances in which prejudice is legally
presumed.”).7
This Court has considered claims that an accused’s attorney’s errors amounted
to a constructive denial of counsel in the context of appeals, and has done so with
7
Ineffectiveness per se may also be shown, inter alia, where (1) the state interferes with
the assistance of counsel; (2) counsel fails to subject the prosecution’s case to
meaningful adversarial testing; or (3) counsel’s representation is affected by his or her
representation of adverse interests. See Strickland, 466 U.S. at 691-93; Cronic, 466
U.S. 658-62; Bell v. Cone, 535 U.S. 685, 695-96 (2002).
[J-79-2016] - 8
special solicitude for an accused’s Pennsylvania constitutional right to appeal. See Pa.
Const. art. V, § 9; Commonwealth v. Wilkerson, 416 A.2d 477, 479 (Pa. 1980) (“[A]n
accused has an absolute right to appeal . . . and counsel can be faulted for allowing that
right to be waived”). In Lantzy, we addressed an accused’s claim that his counsel’s
failure to perfect an appeal constituted ineffective assistance of counsel per se. 8 In an
opinion authored by then-Justice, now-Chief Justice Saylor, we held that counsel’s
errors were so egregious as to amount to a constructive denial of counsel, and therefore
constituted ineffective assistance of counsel per se:
Strickland . . . expressly acknowledges that actual or
constructive denial of the assistance of counsel falls within a
narrow category of circumstances in which prejudice is
legally presumed. Strickland, 466 U.S. at 692. Since the
failure to perfect a requested appeal is the functional
equivalent of having no representation at all, Strickland, on
its own terms, establishes the right to relief. Additionally, . . .
since Article V, Section 9 of the Pennsylvania Constitution
guarantees a direct appeal as of right, see [Wilkerson], a
failure to file or perfect such an appeal results in a denial so
fundamental as to constitute prejudice per se.
Lantzy, 736 A.2d at 571 (some citations omitted).
8
Therein, Lantzy pled guilty to theft and related offenses, and was sentenced
accordingly, whereupon counsel filed post-sentence motions seeking to withdraw the
plea or modify his sentence, as well as a notice of appeal. Lantzy, 736 A.2d at 555.
The trial court did not expressly grant reconsideration, but nevertheless entertained the
motions, and, in the interim, Lantzy's time to file his appellate brief lapsed. Id. at 555-
56. Meanwhile, Lantzy and the Commonwealth reached an agreement whereby Lantzy
would abandon his appeal in exchange for a lesser sentence, and the trial court
approved the same, issuing an order modifying his sentence, and permitting counsel to
withdraw his appearance. Id. at 556. Lantzy, now pro se, filed another set of post-
sentence motions, which the trial court denied, and a notice of appeal. Id. The Superior
Court, reasoning that Lantzy's initial appeal had lapsed and that the trial court's failure
to grant reconsideration divested it of jurisdiction to issue its order modifying his
sentence, quashed the appeal and reinstated the original sentence, leaving Lantzy with
no way to appeal. Id.
[J-79-2016] - 9
Subsequently, in Liebel, we considered an accused’s challenge to his counsel’s
failure to file a requested petition for allowance of appeal to this Court. We held that this
error, too, amounted to a constructive denial of counsel and constituted ineffective
assistance of counsel per se:
In Lantzy, . . . [w]e reasoned that counsel’s unjustified failure
to perfect a requested appeal is the functional equivalent of
having absolutely no representation at all on direct appeal, a
clear violation of the federal and state constitutional right to
counsel .
* * *
[W]e find the reasoning of Lantzy equally persuasive in the
circumstances presented by this case. Here, appellate
counsel . . . simply failed to file a [petition for allowance of
appeal] on [the accused’s] behalf. . . . Such a failure cannot
be regarded as anything less than providing [the accused]
with no representation at all on that [petition for allowance of
appeal], a clear violation of [the accused’s] rule-based right
to counsel.
Liebel, 825 A.2d at 635.
Next, in Halley, we addressed an accused’s claim that his counsel’s failure to file
a court-ordered Pa.R.A.P. 1925(b) statement, which resulted in waiver of all his claims
for purposes of appeal,9 constituted ineffective assistance of counsel per se. In another
opinion authored by now-Chief Justice Saylor, we concluded that extending Lantzy was
“but a modest and incremental step”:
Lantzy’s reasoning expressly subsumed not only the
unjustified failure to file a requested direct appeal, but also,
the failure to perfect the appeal. See Lantzy, 736 A.2d at 571
(indicating that “a failure to file or perfect such an appeal
results in a denial so fundamental as to constitute prejudice
per se” (emphasis added)). Since . . . the submission of a
court-ordered Rule 1925(b) statement is a prerequisite to
9
See Commonwealth v. Lord, 719 A.2d 306, 309 (Pa. 1998).
[J-79-2016] - 10
appellate merits review, the Rule 1925(b) statement (when
directed) is elemental to an effective perfection of the
appeal. See Black’s Law Dictionary 1173 (8th ed. 2004)
(defining the act of perfecting as “tak[ing] all [the] legal steps
necessary to complete, secure, or record a claim, right, or
interest”). Thus, Lantzy’s reasoning applies by its terms to
counsel’s dereliction in this case, which left Appellant without
an ability to challenge his conviction and sentence by means
of the direct appeal.
Halley, 870 A.2d at 800 (some citations omitted and emphasis and alterations original).
We distinguished counsel’s failure to file a Pa.R.A.P. 1925(b) statement, occasioning
waiver of all claims for purposes of appeal, from a failure to preserve particular claims;
we held the first constitutes ineffectiveness per se, while the second does not:
[I]t is well established that the decision whether to presume
prejudice or to require an appellant to demonstrate actual
prejudice “turns on the magnitude of the deprivation of the
right to effective assistance of counsel.” As we observed in
Lantzy, the failure to perfect a requested direct appeal is the
functional equivalent of having no representation at all. . . .
The difference in degree between failures that completely
foreclose appellate review, and those which may result in
narrowing its ambit, justifies application of the presumption in
the more extreme instance.
Id. at 801 (citations omitted and emphasis added). Additionally, we found that
maintaining the distinction between errors causing waiver of all claims and those failing
to preserve particular claims appropriately prevented the exceptional doctrine of
ineffective assistance of counsel per se from engulfing the general rule that an accused
must demonstrate that counsel’s errors caused him prejudice. Id. (“[T]he limiting
principle arising from the recognition of such difference in degree addresses the . . .
concern that the presumption should not extend to every circumstance in which a
defendant may claim no effective appeal.” (citations omitted)).
[J-79-2016] - 11
Our subsequent decisions have maintained Halley’s distinction between errors
which completely foreclose merits review and those which merely “narrow its ambit.”
Thus, in Reaves, we held an attorney’s failure to file a post-sentence motion preserving
a particular sentencing claim “did not operate to entirely foreclose appellate review,” but
merely “waive[d] . . . those claims subject to issue preservation requirements which
were not otherwise properly preserved.” Reaves, 923 A.2d at 1128-29. By contrast, in
Bennett, wherein an accused’s counsel failed to file an appellate brief, we explained that
the claim emanated from Lantzy and Halley, as counsel’s failure to file a brief was not a
“situation . . . in which counsel has narrowed the ambit of appellate review” but, rather,
“has failed to file an appeal at all.” Bennett, 930 A.2d at 1273. In Commonwealth v.
Mallory, 941 A.2d 686 (Pa. 2008), we held that counsel’s failure to object that his client
was not afforded a jury trial waiver colloquy was “unlike the presumed prejudice
scenarios found in Lantzy and Halley, where counsel’s lapse caused the complete
default of direct appeals requested by the client.” Id. at 197. Similarly, in
Commonwealth v. Steele, 961 A.2d 786 (Pa. 2008), we held that an attorney who, at the
penalty phase of his client’s capital murder case, gave a cursory argument and then
exited the courtroom, leaving co-counsel in place, had not “entirely failed to function as
[the client’s] advocate.” Id. at 810-12.
Finally, and of particular importance herein, in Reed, we considered whether
filing a deficiently composed appellate brief warranted a finding of ineffective assistance
of counsel per se. Therein, the accused was convicted at a bench trial of murder and
related offenses, and sentenced to life imprisonment; he appealed, raising an
evidentiary claim that the admission of certain prior bad acts evidence had undermined
his extant diminished capacity defense. Id. at 1217-19. The Superior Court concluded
[J-79-2016] - 12
that the accused had waived his claims by failing to adequately prepare his appellate
brief and certified record:
We have examined the record in light of these standards,
and conclude that [Reed] is not entitled to relief for several
reasons. First, [Reed’s] argument is not developed
sufficiently for us to conduct meaningful appellate review.
Failure to provide argument with appropriate citation to
authority results in waiver of the issue.
Second, [Reed’s] brief refers to evidence in the notes of
testimony, but the notes of testimony are not included in the
certified record. Thus, we are unable to read the testimony
and evaluate [Reed’s] argument.
It is an appellant’s duty to ensure that the certified record is
complete for purposes of review. We decline to review this
issue with an incomplete record, and consider the issue to
be waived.
971 A.2d at 1219 (quoting Commonwealth v. Reed, No. 2909 EDA 2003, unpublished
memorandum at 7-9 (Pa. Super. filed June 9, 2005)). Nevertheless, assuming
arguendo that the accused had not waived his claim, the court rejected it, reasoning: (1)
his argument was undermined by the fact that he was convicted at a bench trial, where
the presiding judge is presumed not to be influenced by exposure to prejudicial
evidence; and (2) the evidence was admissible under the rule that prior bad acts
evidence may be introduced to show Reed’s degree of preparation and, more generally,
the res gestae of the case. Id.
The accused subsequently filed a PCRA petition challenging his appellate
attorney’s failure to develop his brief as ineffective assistance of counsel per se, and the
lower courts denied relief. On appeal to this Court, we reviewed some of the foregoing
authorities, and rejected his claim:
[J-79-2016] - 13
[W]e . . . conclude that the filing of an appellate brief,
deficient in some aspect or another, does not constitute a
complete failure to function as a client’s advocate so as to
warrant a presumption of prejudice under Cronic. Unlike the
case in Lantzy, Halley, and Liebel, . . . Reed’s direct appeal
counsel’s conduct in the instant case did not deprive Reed of
his constitutional right to appeal. Significantly, Reed’s direct
appeal counsel filed a timely notice of appeal, which was
docketed with the prothonotary. Although the Superior Court
. . . opined that counsel’s failure to provide appropriate
citation to authority and a copy of the notes of testimony
resulted in waiver of Reed’s argument, the court did not
quash Reed’s appeal. Indeed, the issues apparently were
sufficiently presented to allow the court to address the merits
of Reed’s arguments, as the court indicated that it reviewed
the evidence and the record. . . . At most, the Superior
Court’s review of Reed’s arguments on the record before it
may be viewed as a “narrowing of the ambit” of Reed’s
appeal. Moreover, to extend the [doctrine of ineffective
assistance of counsel per se] to cases involving a defect in
an appellate brief essentially would transform the exception
into a rule, as many appellate briefs contain at least one
arguable defect.
Id. at 1226-27 (citations omitted).10
Upon review of these cases, we conclude that Appellant’s interpretation of our
jurisprudence in this area is correct. As demonstrated supra, this Court has, since
Halley, held that errors which completely foreclose appellate review amount to a
constructive denial of counsel and thus ineffective assistance of counsel per se,
whereas those which only partially foreclose such review are subject to the ordinary
Strickland/Pierce framework. Moreover, contrary to the suggestion of the lower courts
10
Notably, now-Chief Justice Saylor dissented, opining that Reed's attorney's failure to
develop his brief had “foreclose[d] effective merits review,” that such error was “the
functional equivalent of having no counsel at all,” and that the distinction between
undeveloped briefs that completely foreclosed merits review and those that did not was
a sufficient limiting principle. Reed, 971 A.2d at 1227 (Saylor, J., dissenting).
[J-79-2016] - 14
and the Commonwealth, Reed did not modify this analytical approach, but, rather,
confirmed it. Indeed, as detailed above, Reed involved an appellate brief which,
although the Superior Court opined was so deficiently developed as to warrant a finding
of waiver, was “apparently . . . sufficiently presented to allow the court to address the
merits of Reed’s arguments.” Reed, 971 A.2d at 1226. In light of Halley’s distinction
between errors completely foreclosing review and those merely “narrowing the ambit” of
appellate review, this fact was critical, as this Court reasoned, noting that, “[a]t most, the
Superior Court’s review of Reed’s arguments on the record before it may be viewed as
a ‘narrowing of the ambit’ of Reed’s appeal.” Id. at 1226-27. In other words, the brief in
Reed was not so underdeveloped as to completely foreclose appellate review, but,
rather, presented a less robust version of Reed’s underlying evidentiary claim, which the
Superior Court reviewed on its merits, precluding a finding that his attorney’s errors
caused a complete deprivation of merits review.11
Moreover, the filing of a brief that raises only waived issues, while technically
distinct, is nonetheless akin to failing to file documents perfecting an appeal. There is
no meaningful difference between an attorney who fails to file a notice of appeal, Rule
1925(b) statement, brief, or petition for allowance of appeal – thereby forfeiting his
11
Indeed, we observe that the Superior Court has itself noted the distinction between a
brief so poor as to warrant a finding of waiver, which gives rise to a claim of ineffective
assistance of counsel per se, and one which is merely deficient in some aspect or
another. See Commonwealth v. Franklin, 823 A.2d 906 (Pa. Super. 2003) (finding that
filing a brief so underdeveloped as to waive all claims for purposes of appeal constitutes
ineffective assistance of counsel per se); Commonwealth v. Mikell, 968 A.2d 779 (Pa.
Super. 2009) (relying on Halley to conclude that a brief that waived some claims for
purposes of appeal did not give rise to a claim of ineffective assistance of counsel per
se); Commonwealth v. Fink, 24 A.3d 426 (Pa. Super. 2011) (noting that filing a brief so
underdeveloped as to waive all claims for purposes of appeal constituted ineffective
assistance of counsel per se, and distinguishing Reed on the basis that the Superior
Court therein was able to conduct merits review, in some measure, of Reed’s
evidentiary claim).
[J-79-2016] - 15
client’s right to appeal – and one who makes all necessary filings, but does so relative
solely to claims he has not preserved for appeal, producing the same end. In both
situations, counsel has forfeited all meaningful appellate review.
Furthermore, although the Commonwealth’s view that its proposed limitation on
Lantzy and its progeny is more judicially administrable because it draws a clear
distinction between claims of ineffective assistance of counsel per se and those subject
to the Strickland/Pierce framework is well-taken, we do not view it as significantly more
advantageous in this context than the rule in Halley. Particularly where, as herein, an
attorney has matter-of-factly forfeited all preserved claims of error in favor of
unpreserved ones, it is a straightforward matter for an appellate court to conclude the
claims are waived. Indeed, unlike in Reed, where the Superior Court was required to
contemplate the degree to which review could be performed despite counsel’s errors,
and could consider the merits of issues from the arguments made with respect to them
in the brief, here, no such analysis was required: due to counsel’s actions, the only
claim raised, by virtue of its omission from the Rule 1925(b) statement, was manifestly
waived. Moreover, as we indicated in Halley, the distinction between errors causing
complete deprivation of review and those causing only partial deprivation of review
plainly “addresses the . . . concern that the presumption should not extend to every
circumstance in which a defendant may claim no effective appeal.” Halley, 870 A.2d at
801. Accordingly, we hold that the filing of an appellate brief which abandons all
preserved issues in favor of unpreserved ones constitutes ineffective assistance of
counsel per se.
Here, although preserving three claims of trial court error in his Rule 1925(b)
statement, Appellate Counsel completely abandoned those claims on appeal and,
instead, raised an unpreserved sufficiency-of-the-evidence challenge, occasioning a
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complete waiver of all merits review. In light of this complete default, we find the
Superior Court’s observations that “Appellant’s appeal was timely filed, a Pa.R.A.P.
1925(b) statement was filed, and [the Superior Court] acknowledged the claim
[Appellate Counsel] chose to raise on appeal” of little value. Rosado, No. 2474 EDA
2014 at 8 (Pa. Super. filed Apr. 17, 2015). Nor do we agree with the Superior Court’s
characterization that Appellate Counsel “litigated Appellant’s direct appeal.” Id. On the
contrary, Appellate Counsel’s errors herein precluded litigation of Appellant’s direct
appeal.
Thus, we vacate the Superior Court’s order affirming Appellant’s judgment of
sentence, and we remand to that court for further proceedings consistent with this
opinion.
Jurisdiction relinquished.
Justices Baer, Donohue and Dougherty join the opinion.
Chief Justice Saylor files a concurring opinion in which Justices Wecht and
Mundy join.
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