Ineffective Assistance of Counsel; Collateral Review

Commonwealth v. Delgros, 2016 WL 7212500 (Pa. Super.)(unreported), 27 WAP 2017

Issue

Do this Court’s decisions regarding the deferral of claims of ineffective assistance of counsel to post-conviction collateral review, and the limited exceptions thereto, apply to convictions resulting in non-custodial sentences imposing a fine only, and do Due Process considerations require some opportunity to raise such claim?

Background

Delgros was convicted of receiving stolen property, and was sentenced to pay restitution in the sum of $2,800.00 and to pay a fine of $15,000.00.

On appeal, Delgros argued the trial court erred in not entertaining his ineffective assistance of counsel claims on the basis that he was not eligible for collateral relief because he was sentenced to a fine.

The Superior Court looked to Commonwealth v. Holmes, 79 A.3d 562 (Pa. 2013), which provides two possibilities for claims of ineffective assistance of counsel to be reviewed by a trial court if:

the ineffectiveness is apparent from the record and meritorious such that immediate consideration best serves the interests of justice; or

(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.

Slip Op., at 10. The Superior Court summarily rejected Delgros’s contention that this case fit either scenario, finding:

Regarding the first test under Holmes, Appellant suggests that trial counsel should have challenged the underlying search warrant and the Commonwealth’s determination of the stolen property’s value. Appellant claims these “errors” are apparent from the record. N.T. Post–Sentence Motions Hearing, 8/3/15, at 17–18. However, the record is devoid of any evidence of ineffectiveness, unless allegations of ineffectiveness amount to evidence of ineffectiveness. Id. Of course, they do not.

Regarding the second test under Holmes, Appellant fails to recognize that the test presumes that Appellant is entitled to PCRA review of his conviction and sentence. As also acknowledged by Appellant, however, Appellant is not entitled to PCRA relief. Accordingly, Appellant did not meet the second test.

Id. at 10-11.

The court also rejected Delgros’s contention that denial of his ineffective assistance of counsel claims violates due process when “[t]he right to challenge counsel’s effectiveness is not absolute” to find Delgros’s noncustodial sentence ineligible for collateral review. Id. at 11.

For more information, contact Kevin McKeon or Dennis Whitaker.