Commonwealth v. Butler
Commonwealth v. Butler
Opinion of the Court
OPINION
We granted allowance of appeal in this case to determine whether the Superior Court erred in affirming the denial of Appellant’s petition for relief under the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-46, when it deemed all of Appellant’s issues waived due to counsel’s failure to file a Statement of Matters Complained of on Appeal, pursuant to Pa.R.A.P.1925(b). For the reasons that follow, we affirm.
Appellant filed a pro se PCRA petition on February 26, 1998. Alter the PCRA court appointed counsel, Appellant filed an amended petition.
The Superior Court affirmed in a published opinion. Commonwealth v. Butler, 756 A.2d 55 (Pa.Super. 2000). Relying on this Court’s decision in Commonwealth v. Lord, 553 Pa. 415, 719 A.2d 306 (1998), the court reasoned that it could “only conduct meaningful review where the appellant writes a Rule 1925(b) statement and the court below ... responds to those issues in its opinion.” Butler, 756 A.2d at 58. Accordingly, the court held that appellants will face waiver if they fail to comply with a court’s order to file a Rule 1925(b) statement. Id. In light of Appellant’s failure to file a Rule 1925(b) statement, the Superior Court deemed all of Appellant’s issues waived and affirmed the denial of Appellant’s amended PCRA petition. Id.
We granted Appellant’s petition for allowance of appeal, limited to the issue of whether the Superior Court erred in deeming all of Appellant’s issues waived due to his failure to
As promulgated by this Court, Pennsylvania Rule of Appellate Procedure 1925 provides, in pertinent part:
(a) General rule. Üpon receipt of the notice of appeal the judge who entered the order appealed from, if the reasons for the order do not already appear of record, shall forthwith file of record at least a brief statement, in the form of an opinion, of the reasons for the order, or for the rulings or other matters complained of, or shall specify in writing the place in the record where such reasons may be found.
(b) Direction to file statement of matters complained of. The lower court forthwith may enter an order directing the appellant to file of record in the lower court and serve on the trial judge a concise statement of the matters complained of on the appeal no later than 14 days after entry of such order. A failure to comply with such direction may be considered by the appellate court as a waiver of all objections to the order, ruling or other matter complained of.
Prior to our decision in Lord, the intermediate appellate courts seized upon an apparent vest of discretion contained in the language of Rule 1925: “A failure- to comply with such direction may be considered by the appellate court as a waiver....” Pa.R.A.P.1925(b) (emphasis added). As a result, courts enforced waiver under Rule 1925 by determining whether they could conduct a “meaningful review” despite an appellant’s failure to either file a Rule 1925(b) statement or include certain issues within a filed statement.
The same is true in PCRA appeals, despite the recitation of issues within a PCRA petition. As we noted in Lord, the purpose of Rule 1925 is “to aid trial judges in identifying and focusing upon those issues that the parties plan to raise on appeal.” Id. at 308; see also Commonwealth v. Johnson, 565 Pa. 51, 771 A.2d 751, 755 (2001) (Opinion Announcing the Judgment of the Court). As the Superior Court cogently observed, PCRA petitions fail to serve that purpose. Here, the claims in Appellant’s amended PCRA petition were identical to the issues that Appellant ultimately argued before the Superior Court. While the PCRA court was well acquainted with the claims raised in the amended PCRA petition, Appellant’s failure to comply with the court’s order to file a Rule 1925(b) statement compelled the court to speculate which of those claims Appellant would maintain on appeal. Bearing in mind the purpose of Rule 1925, this result is unsupportable. Therefore, as PCRA petitions do not fully inform PCRA courts of what issues an appellant will raise on appeal, a PCRA petition cannot serve as a substitute for a Rule 1925(b) statement.
Applying the preceding to the case sub judice, Appellant’s failure to comply with the PCRA court’s order to file a Rule 1925(b) statement resulted in the automatic waiver of any issues he may have raised on appeal. As issues not preserved for appellate review generally may not be considered by an appellate court, the Superior Court properly refused to address the merits of Appellant’s waived claims.
Even so, Appellant argues that the Superior Court erred in deeming his issues waived sua sponte. As explained supra, however, Rule 1925 waiver is automatic. Accordingly, the Superior Court properly deemed Appellant’s issues waived under Rule 1925, notwithstanding that the Commonwealth never briefed or argued Rule 1925 waiver. Moreover, if we were to accept Appellant’s position, courts would be constrained to selectively enforce the Rule based upon the arguments of parties, which would subvert the purpose and effectiveness of Rule 1925.
Lastly, Appellant has attached an unverified Rule 1925(b) statement to his brief and avers that he “provided” it to the PCRA court. Appellant’s Brief at 5, Appendix “C.” Appellant does not allege that he properly filed this statement with the PCRA court. Rather, the unverified Rule 1925(b) statement is addressed directly to the PCRA court judge. In addition, Appellant’s unverified Rule 1925(b) statement does not appear anywhere, in the original record, is not evinced by any docket entry, and does not bear the customary “time stamp” of the clerk of courts.
Rule 1925 is not satisfied when an appellant merely mails his Rule 1925(b) statement to the presiding judge. Rather, Rule 1925(b) requires appellants to “file of record in the lower
The order of the Superior Court is affirmed.
. 18 Pa.C.S. §§ 2502(a), 3701, 903, respectively.
. Appellant’s court-appointed attorney has represented Appellant throughout the PCRA proceedings and this appeal.
. See Commonwealth v. Ervin, 456 Pa.Super. 782, 691 A.2d 966 (1997) (holding that mere omission of issue from statement does not automatically result in waiver; rather, Superior Court will address merits of any issue in criminal case whenever certified record is sufficient to conduct meaningful appellate review); Commonwealth v. Stilley, 455 Pa.Super. 543, 689 A.2d 242 (1997) (holding that appellate court may exercise discretion to invoke waiver provision of Rule 1925 only where failure to file statement or omission from statement defeats effective appellate review); Reynolds v. Commonwealth, Dept. of Transp., Bureau of Driver
Concurring Opinion
concurring.
I join the majority opinion, which affirms the order of the Superior Court, which affirmed the denial of appellant’s petition for relief under the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-46. I write separately to address points made in the dissenting opinion by Mr. Justice Nigro.
The majority holds that appellant’s failure to properly file a statement of matters complained of on appeal, in response to the PCRA court’s directive that he do so under Pa.R.A.P. 1925(b), results in the waiver of any appellate issues he would have raised. This holding is commanded by Commonwealth v. Lord, 553 Pa. 415, 719 A.2d 306 (1998). As the majority notes, in Lord, this Court, in an opinion authored by Mr. Justice Nigro, specifically held that:
[F]rom this day forward, in order to preserve their claims for appellate review, Appellants must comply whenever the trial court orders them to file a Statement of Matters Complained of on Appeal pursuant to Rule 1925. Any issues not raised in a 1925(b) statement will be deemed waived.
As the majority recognizes, the bright line interpretation of Appellate Rule 1925(b) ultimately set forth in Lord was not commanded by the actual language of the rule, since it is expressed in purely discretionary terms, i.e., “A failure to comply with such direction may be considered by the appellate court as a waiver of all objections to the order, ruling or other matter complained of.” Pa.R.A.P.1925(b) (emphasis supplied). As the majority also aptly notes, Lord “eliminated any aspect of discretion” in treating a failure to comply with an Appellate Rule 1925(b) directive. The very fact that this Court altered the nature of the Rule from permissive to mandatory obviously is one of the reasons our bright-line construction was given prospective effect only.
I have no qualms about the merit of the construction prospectively adopted in Lord. Requiring compliance with an Appellate Rule 1925 directive aids the trial judge in identifying which issues to write upon, it helps to ensure effective appellate review, and it provides for a certainty and evenness in application that is difficult, if not impossible, to achieve via a discretionary rule. Moreover, since Appellate Rule 1925 is a rule of our own creation, I had no difficulty in Lord, and I have no difficulty now, with our effectively amending the rule via a prospective decision, rather than through the formal rulemaking process.
The dissent offers a narrowing construction of Lord’s unequivocal, prospective holding, suggesting that it was powered by the interplay between Appellate Rule 1925 and Criminal Procedure Rule 720 (then-Rule 1410), which governs post-sentencing procedures. Since Lord involved a direct criminal appeal, and spoke to the interplay of Appellate Rule 1925 and a post-verdict rule, the dissent suggests, Lord’s holding should
Whatever may have been the factual and procedural posture of the case in Lord, the holding at issue was specifically rendered under Appellate Rule 1925, it was rendered without qualification, and it was rendered in light of the purpose which Appellate Rule 1925 is designed to serve. The Rules of Appellate Procedure govern all appeals, not just criminal appeals, and not just direct criminal appeals. See Pa.R.A.P. 103 (“Scope of Rules”) (“These rules govern practice and procedure in the Supreme Court, the Superior Court and the Commonwealth Court, including procedure in appeals to such courts from lower courts.... ”). The distinction offered by the dissent is not recognized in the Rules, nor was it recognized in Lord.
Indeed, the issue in Lord was not whether there was something unique to criminal direct appeals which required that Appellate Rule 1925 be construed differently than it would be in all other appellate contexts, but the very opposite: did the fact that Criminal Rule 720, which was relatively new and which provides that issues raised before or during trial shall be deemed preserved for appeal irrespective of whether the defendant renews them in a post-sentence motion, render a potential waiver under Appellate Rule 1925 inoperative? The question, in essence, was whether direct criminal appeals were excepted from the general appellate waiver rule set forth in Appellate Rule 1925.
In deciding the question, the Court in Lord noted that the Superior Court had interpreted the new criminal rule as relieving criminal defendants of the obligation to “list[ ] all appellate issues in a 1925(b) statement” if the issues not raised could be effectively reviewed from the record. We explicitly “disagree[d]” with those decisions, not because of anything unique to direct criminal appeals, but because of the purpose of Appellate Rule 1925:
*450 The absence of a trial court opinion poses a substantial impediment to meaningful and effective appellate review. Rule 1925 is intended to aid trial judges in identifying and focusing upon those issues that the parties plan to raise on appeal. Rule 1925 is thus a crucial component of the appellate process.
Lord, 719 A.2d at 308. Accord Commonwealth v. Johnson, 565 Pa. 51, 771 A.2d 751, 755 (2001) (plurality opinion). Accordingly, we held that direct criminal appeals were not excepted from Appellate Rule 1925 and, in so holding, we announced the prospective interpretation of the appellate waiver standard set forth in Appellate Rule 1925(b). Nothing in Lord remotely suggested that the Appellate Rule 1925 holding was limited to direct criminal appeals, as if the unitary language and purpose of the Rule means one thing for some appeals, and something entirely different for others.
As noted above, I recognize, as the majority does, that our prospective interpretation of Appellate Rule 1925 in Lord was stricter than what the rule’s plain language suggested. But the strictness of our prospective interpretation had nothing to do with the fact that Lord involved a direct criminal appeal, rather than a civil appeal, or a PCRA appeal, or any other appeal; it had to do with the necessary and salutary function of Appellate Rule 1925 as a rule of appellate procedure. As such, it is an interpretation that necessarily must apply to all cases on appeal. Notably, both the Superior Court and the Commonwealth Court have applied the teaching of Lord to civil cases no less than to criminal cases. Lobaugh v. Lobaugh, 753 A.2d 834, 837-38 (Pa.Super. 2000); Giles v. Douglass, 747 A.2d 1236, 1236-37 (Pa.Super. 2000); Municipality of Monroeville v. Monroeville Police, 767 A.2d 596, 599 n. 6 (Pa.Cmwlth. 2001), allocatur denied, 566 Pa. 672, 782 A.2d 551 (2001); Cheltenham Twp. Sch. Dist. v. Slawow, 755 A.2d 45, 48 (Pa.Cmwlth. 2000). I would not undo Lord’s salutary effect in an ad hoc fashion.
Even if I believed that Appellate Rule 1925, as construed in Lord, was subject to equitable exceptions upon an ad hoc basis, I see nothing “unfair” in holding PCRA appeals subject
More importantly, the PCRA affords criminal defendants something which is afforded to no other litigant: a second bite at the review apple. Application of Lord on a direct civil appeal puts that appellant out of court forever with respect to the waived claims. Those civil appellants who have their claims deemed waived under Lord (or under any waiver doctrine) have no “safety valve” whatsoever. I would not place a greater value upon an appeal of a collateral attack upon a final judgment, an attack not available to all, than I would place upon the right of appeal, which is available to all. Thus, in my mind, if Lord sufficiently balances the equities in the direct appeal context, it necessarily is fair in the context of collateral appellate review of final criminal judgments.
The majority rightly applies Lord in this appeal. I join the opinion without reservation.
Concurring Opinion
concurring.
I am cognizant of the interests that motivated the Lord Court’s decision — given the constraints arising from the volume of cases managed by the Pennsylvania appellate courts, as well as the concern for uniformity in the administration of claims, the system simply cannot function properly if appellants or their counsel are derelict in their obligation to adequately frame appeals for review. See Commonwealth v. Lord, 558 Pa. 415, 418-20, 719 A.2d 306, 308-09 (1998). Nevertheless, at least on direct appeal in criminal cases, a majori
The effect of Johnson, however, is to fully resurrect the “double waiver” situation that led to the elimination of the requirement to file post-verdict motions in criminal cases to preserve claims for appeal.
Whereas Johnson concerned a case on direct appeal, the present case arises at the post-conviction stage. Significantly, however, this Court has held that post-conviction petitioners have a rule-based interest in effective post-conviction counsel analogous to the Sixth Amendment right prevailing at trial and on direct appeal, and that a remedy may be fashioned to vindicate such entitlement. See Commonwealth v. Priovolos, 552 Pa. 364, 368, 715 A.2d 420, 423 (1998). Indeed, the Court has directed that, in cases in which counsel’s deficient performance in effect denies the post-conviction petitioner the right of appeal guaranteed by Article V, Section 9 of the Pennsylva
In light of Appellant’s failure to implicate or discuss in his one-and-one-quarter page argument this potential avenue for relief or some broader perspective gleaned from experience with Lord, I am simply unable to conclude that the Court should fashion an equitable exception to Lord, or a general exception to the rule pertaining to the post-conviction process, in this case. Respectfully, however, given the limited argument presented, I do not join in the majority’s broader pronouncements. Rather, it appears to me that it may be advisable for the Court to reconsider Lord’s strict waiver rule in an appropriate case in light of the developing experience, including that which is reflected in Johnson and its progeny, particularly as there was some advantage in reposing a degree of discretion in the intermediate appellate courts in instances in which a claim can be reviewed on the record (as, for example, a sufficiency claim). If the Court were to re-implement Rule 1925(b) as written (“failure to comply with such direction [to file a statement of matters complained of on appeal] may be considered ... as a waiver”), Lord could effectively be read as a strong admonition that the failure to raise issues in a Rule 1925 statement may well result in a deemed waiver by an appellate court.
. In civil cases, it appears that the client's present recourse, if any, lies with counsel.
. By comparison, in the civil context the waiver concern is more pronounced, as, to adequately preserve an issue for review, it must be raised in pre-trial proceedings or by appropriate method at trial, see Pa.R.Civ.P. No. 227.1(b)(1), included in post-trial motions, see id. at (b)(2), and specified in a Rule 1925(b) statement.
Dissenting Opinion
dissenting.
I disagree with the majority’s conclusion that the failure of Appellant’s counsel to file a court-ordered Pa.R.A.P.1925(b) statement resulted in the automatic waiver of all the claims that Appellant raised on appeal from the denial of his PCRA petition. In my view, the strict waiver rule from Commonwealth v. Lord, 553 Pa. 415, 719 A.2d 306 (1998), is not
Appellant filed a pro se PCRA petition on February 26, 1998, which was later amended by appointed counsel. Over one year later, on May 11, 1999, Appellant’s amended petition was dismissed without a hearing, the PCRA court having determined that a decision could be made from the existing record. Appellant filed a notice of appeal to the Superior Court, and on June 25, 1999, the PCRA court ordered him to file a statement of matters complained of on appeal pursuant to Pa.R.A.P.1925(b). Appellant’s counsel did not file a Rule 1925(b) statement on his behalf and, as a result, in its Rule 1925(a) opinion the PCRA court addressed only the issues Appellant raised in his amended PCRA petition.
The Superior Court affirmed the PCRA court’s denial of Appellant’s PCRA petition without considering the merits of any of his appellate issues. Commonwealth v. Butler, 756 A.2d 55 (Pa.Super. 2000). Instead, the court deemed all of Appellant’s claims waived due to his failure to file a Rule 1925(b) statement, concluding that a PCRA petition may not serve as a substitute for a 1925(b) statement. I agree with Appellant that the Superior Court erred in refusing to address the merits of the issues he raised in his PCRA petition.
In Commonwealth v. Lord, this Court considered whether Pennsylvania Rule of Criminal Procedure 720 (formerly Rule 1410(B)(1)(c)) precludes an appellate court from deeming an issue waived when an Appellant fails to raise that issue in his Rule 1925(b) statement. 719 A.2d at 307. Thus, Lord involved the interplay between Rule 1925(b) and Rule 720, which states that issues raised before or during trial are preserved for appeal whether or not the defendant elects to file a post-sentence motion on those issues.
Given this analysis and reasoning, it is clear to me that the strict waiver rule of Lord applies only in the context of direct appeals. The majority essentially agrees with this conclusion, but then expands the strict waiver rule to PCRA appeals, explaining that because the purpose of Rule 1925 is to aid trial judges in identifying the issues a party plans to raise on appeal, the need for a 1925(b) statement still exists at the PCRA level. As a result, the majority finds that Appellant’s PCRA petition cannot serve as a substitute for a 1925(b) statement, and instead concludes that the strict waiver rule from Lord applies to Appellant’s appeal from the denial of his PCRA petition. In my view, this expansion of Lord is not only unwarranted, but simply unfair.
Importantly, when a court applies the strict waiver rule of Lord on direct appeal, the appellant still has the safety valve of PCRA review. See Commonwealth v. Johnson, 565 Pa. 51, 771 A.2d 751, 759 n. 1 (2001) (Nigro, J., concurring and dissenting) (“Appellant, however, may still seek relief for his ineffective assistance of counsel claim under the [PCRA]”). This protection, however, is clearly absent on appeal from the denial of a PCRA petition. While I recognize that the PCRA represents the General Assembly’s attempt to provide some finality to criminal appeals, I nonetheless believe that, by
. Some lower courts had concluded that, pursuant to post-trial procedures under Rule 720, appellants on direct appeal were not required to list all appellate issues in a 1925(b) statement as long as the issues not raised in the statement could be effectively reviewed from the record. As we explained in Lord, Rule 720 was enacted in order to eliminate the "double waiver" doctrine:
*455 Prior practice required that to preserve an issue for appeal, the matter must have been raised initially when it occurred either before or during trial, and then be included in the Post-verdict Motion. Failure to include an issue in the Post-verdict Motion resulted in it being waived on appeal and often led to subsequent attacks on the conviction claiming counsel’s ineffectiveness. New [Rule 720] was intended to eliminate this cumbersome process and allow the first appeal to address the issues properly raised before and during trial.
Lord, 719 A.2d at 308-09 (citation omitted).
. The PCRA is "the sole means of obtaining collateral relief and encompasses all other common law and statutory remedies for the same purpose ..., including habeas corpus and coram nobis.” 42 Pa.C.S. § 9542; see Commonwealth v. Lantzy, 558 Pa. 214, 736 A.2d 564, 569 (1999).
. See 42 Pa.C.S. § 9545(b)(1) (any PCRA petition, including a second or subsequent petition, must be filed within one year of the date the judgment of sentence becomes final); Commonwealth v. Peterkin, 554 Pa. 547, 722 A.2d 638, 641-42 (1998).
. My conclusion here is consistent with the view I have expressed in other cases regarding waiver under the PCRA. For example, in addressing the issue of whether an appellant could obtain reinstatement of his direct appeal rights nunc pro tunc when he failed to file a timely PCRA petition, I stated:
I am troubled by the prospect that a defendant who, for example, instructed counsel to file a direct appeal, was told by counsel that an appeal was being filed, was subsequently reassured by counsel that the appeal was filed, but later found out after the one-year limitation period expired that counsel never filed the appeal, is forever precluded from receiving at least one appellate review of his case. In my view, a rule that penalizes a defendant who reasonably relies in good faith upon his counsel to protect his appellate rights is contrary to the ■purpose of the PCRA, and such a defendant should be entitled to, at a bare minimum, one appellate review.
Commonwealth v. Hall, 565 Pa. 92, 771 A.2d 1232, 1237 (2001) (Nigro, J., concurring). See also Com. V. Kenney, 557 Pa. 195, 732 A.2d 1161, 1166 (1999) (Nigro, J., dissenting) ("Under these circumstances, I cannot agree that simply because [present counsel] recognized a meritorious issue overlooked by prior counsel yet failed to use the operative words in his brief to overcome waiver of this issue by prior counsel, Appellee’s Persinger claim should, in effect, never be subject to review on its merits.”)
Reference
- Full Case Name
- COMMONWEALTH of Pennsylvania, Appellee v. Albert BUTLER, Appellant
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- 196 cases
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- Published