Com. v. Watson, F.

2024 Pa. Super. 15

• Court: Superior Court of Pennsylvania
• Decided: January 29, 2024
• Docket: 1049 WDA 2022
• Status: Published

Opinion

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?

[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?

[New Counsel]: Okay. And nobody’s forced you. You’re making this decision voluntarily, correct?

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

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.

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

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

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,

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) (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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