Commonwealth v. O'Berg

880 A.2d 597, 584 Pa. 11, 2005 Pa. LEXIS 1727
CourtSupreme Court of Pennsylvania
DecidedAugust 16, 2005
Docket92 MAP 2004
StatusPublished
Cited by65 cases

This text of 880 A.2d 597 (Commonwealth v. O'Berg) is published on Counsel Stack Legal Research, covering Supreme Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. O'Berg, 880 A.2d 597, 584 Pa. 11, 2005 Pa. LEXIS 1727 (Pa. 2005).

Opinions

OPINION

Chief Justice CAPPY.

In Commonwealth v. Grant, 572 Pa. 48, 813 A.2d 726, 738 (2002), this court held, as a general rule, that claims of ineffective assistance of counsel should be deferred until the collateral review proceedings. In this case, the Superior Court applied Grant and dismissed Appellant’s claim of ineffective assistance of counsel. Presently, we are asked to consider whether this court should recognize a “short sentence” exception to the general rule announced in Grant. For the reasons stated herein, we agree with the disposition of the Superior Court and reject a “short sentence” exception. Accordingly, we affirm the judgment of sentence.

The facts relevant to the instant case are that Appellant participated in a street riot in the early morning hours of July 16, 2000 at State College, Pennsylvania. During the course of the riot, police observed individuals in the crowd pounding on cars and observed two or three individuals shake and bring down a lamp post. Appellant was observed by the police shaking a lamp post during the course of the incident. As a result of his participation in the incident, the police charged Appellant with the misdemeanor offenses of disorderly conduct and failure of a disorderly person to disperse and with the summary offense of criminal mischief. A jury convicted Appellant of all three charges on November 14, 2000. On December 14, 2000, the trial court sentenced Appellant to thirty days to twenty-three and a half months in prison plus the payment of fines. The trial court’s order also provided that Appellant could remain free on bail until his appeal was [14]*14final. Appellant ultimately opted to serve his sentence beginning the summer of 2002.1

Appellant filed a post-sentence motion, and the court scheduled a hearing related to the motion. Following the hearing, the trial court denied the post-sentence motion. New counsel entered an appearance on Appellant’s behalf and filed a Notice of Appeal in the Superior Court on May 7, 2001. Appellant filed his brief in the Superior Court on October 23, 2002, challenging the sufficiency of the evidence and raising an issue related to counsel’s effectiveness at trial.

On September 10, 2003, the Superior Court affirmed the judgment of sentence. The court found the evidence was sufficient to support the convictions. Further, the court concluded that Appellant’s ineffectiveness challenge was subject to the general rule announced in Grant and dismissed Appellant’s ineffectiveness claim without prejudice to raise at collateral review.

Appellant filed a Petition for Allowance of Appeal raising the issue of whether this court should recognize an exception to the general rule announced in Grant in this case because of the short duration of Appellant’s sentence. We granted Appellant’s request to appeal.

The issue in this case arises because under the plain language of the Post-Conviction Relief Act (PCRA), an appellant is only eligible for post-conviction relief if he is “currently serving a sentence of imprisonment, probation or parole for the crime.” 42 Pa.C.S. § 9543(1). Following this court’s decision in Grant, claimants are to wait until the collateral review stage before raising claims of ineffectiveness. Thus, the net effect of these two rules is that claimants may not have the opportunity to raise a claim challenging trial counsel’s effectiveness if their direct appeal is final at a time when they are no longer serving a sentence of imprisonment, probation, or parole.

[15]*15Appellant asserts that in order to avoid this result, this court should recognize a “short sentence” exception to the general rule announced in Grant. Appellant points out that the Superior Court repeatedly has recognized such an exception in situations when a claimant would be ineligible for PCRA relief because of the short duration of his or her sentence. Commonwealth v. Blessitt, 852 A.2d 1215 (Pa.Super.Ct.2004); Commonwealth v. Salisbury, 823 A.2d 914 (Pa.Super.Ct.2003); Commonwealth v. Ingold, 823 A.2d 917 (Pa.Super.Ct.2003). In this case, Appellant argues that he is placed in the unfair position of losing his opportunity to litigate his ineffectiveness claims. Appellant concludes that such a result conflicts with the intent of Grant, which was to offer “a petitioner the best avenue to effect his Sixth Amendment right to counsel.” Grant, 813 A.2d at 738.2

The Commonwealth responds that Appellant is in such an “unfair” position by his own doing. The trial court originally permitted Appellant to defer his sentence until after his direct appeal was final, but Appellant elected to serve his sentence while his direct appeal was pending. Thus, Appellant essentially has “mooted” his own opportunity to take advantage of the PCRA. Similarly, the Commonwealth contends that Appellant waived this issue by failing to raise it until after the Superior Court ruled on his direct appeal. Pa.R.A.P. 302(a). Turning its attention to the Grant decision, the Commonwealth asserts that the Superior Court certainly had no power to create an exception to Grant, only this court has such power. Further, the Commonwealth argues that this court should not recognize a “short sentence” exception to Grant, since such an exception would undermine the reasoning underlying that decision.

We will address the Commonwealth’s preliminary challenges before addressing the primary issue raised in this case. First, the Commonwealth argues that Appellant’s predicament is self-created since he opted to serve his sentence early. We are not going to foreclose Appellant’s opportunity to raise the [16]*16issue in this case merely on the basis that Appellant chose to serve his sentence before his direct appeal was final. In fact, the instant case presents a perfect vehicle to review this issue, since Appellant will not have the opportunity to pursue collateral relief as he has finished serving his sentence. Moreover, the “short sentence” issue has been percolating in the Superi- or Court since Grant was decided; and the instant case presents this court with an opportunity to resolve this question.

Second, the Commonwealth argues that this issue is waived since Appellant did not raise it until after the Superior Court decided his direct appeal on September 10, 2003. According to the Commonwealth, the fact that Appellant filed his appeal and brief before Grant is not relevant, rather Appellant had a duty to amend his brief following our decision in Grant. First, Grant was not decided until over two months after Appellant filed his brief before the Superior Court. Additionally, in the months following Grant, it was unclear how the decision was going to be interpreted by the lower courts and applied in any given case. See, e.g., Commonwealth v. Grant, 573 Pa. 141, 821 A.2d 1246 (2003) (clarifying that Grant

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Bluebook (online)
880 A.2d 597, 584 Pa. 11, 2005 Pa. LEXIS 1727, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-oberg-pa-2005.