Commonwealth v. Green

981 A.2d 1283, 603 Pa. 66, 2009 Pa. LEXIS 2011

Opinion

ORDER

PER CURIAM.

AND NOW, this 18th day of September, 2009, the Petition for Allowance of Appeal is GRANTED, the order of the Superior Court is VACATED, and this case is REMANDED to the PCRA court for further proceedings pursuant to Senior Judge Colville’s concurring and dissenting opinion. See Commonwealth v. Green, 957 A.2d 1238, 1243 (Colville, S.J., concurring and dissenting). The Superior Court inappropriately presumed respondent’s counsel had no reasonable cause for not seeking reconsideration of respondent’s sentence. Further, the court erred in presuming respondent was prejudiced by counsel’s failure to file a post-sentence motion challenging the sentence. See Commonwealth v. Reed, 971 A.2d 1216, 1225 (Pa.2009) (noting only three circumstances this Court has recognized counsel’s conduct warranted presumption of prejudice). Upon remand, the PCRA court shall hold a hearing to determine whether respondent’s trial counsel had reasonable basis not to file a post-trial motion seeking reconsideration of respondent’s sentence. If counsel lacked reasonable basis, the PCRA court shall determine whether counsel’s failure to file a post-sentence motion prejudiced respondent.

Jurisdiction relinquished.

Justice SAYLOR dissents.