 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
Commonwealth v. Brown4/29/2005
ead as if it said that the only defaulted claims waived for PCRA purposes are those claims that "are required to be preserved" at trial. But the statute does not say this. Indeed, the statute does not speak in terms of ephemeral judicial issue preservation doctrines at all. Instead, the PCRA waiver provision -- contained in a statute that affords criminal defendants that which is afforded to no other litigant, i.e., a chance to undo a final judgment -- rationally speaks only in terms of previous opportunities to raise a claim, i.e., whether the petitioner could have raised the claim before, but failed to do so. There is no absurdity in reading this sensible restriction upon collateral review according to its plain language. The appropriate and preferred time to raise claims either monumental or small, constitutional or otherwise, is when they are ripe -- when the record is fresh, when a fair opportunity to respond exists, and when a fair and timely resolution is possible. A claim which could have been raised at a point where relief could have been afforded and error averted, but was not, is properly deemed defaulted and merges into the final judgment. Such a foregone claim should be reviewable on collateral attack only as the collateral attack that it is, and as authorized by the General Assembly. The quintessential collateral claim, one specifically deemed cognizable under the PCRA, is a claim of counsel ineffectiveness. This form of the claim is the only logical way to retroactively inquire into a defaulted competency issue:
Instantly no competency hearing was held, nor was one requested. The issue as it had survived for us, then, is not whether appellant would have passed the two-pronged test for competency, it is rather only whether his counsel was ineffective for failing to raise the claim that he would not.
Commonwealth v. Nelson, 414 A.2d 998, 1001 (Pa. 1980) (plurality opinion) (footnote omitted).
Moreover, even if judicial "construction" of this plain and unambiguous statute were appropriate, it is the Majority's rewriting of the provision to include relaxed waiver which will lead to absurdity. Under the Majority's rewriting, issues which had to be objected-to at trial in order to be reviewable on direct appeal are subject to PCRA waiver, while issues which did not have to be objected-to at trial in order to be reviewable on direct appeal are "not subject to the waiver provision of the PCRA." Slip op. at 22. In other words, claims which would have been subject to "relaxed" judicial waiver rules on direct appeal carry their relaxed waiver status forevermore, rendering the claims immune from PCRA waiver. But, if the Majority is correct in this reconstruction of the statute, then this Court's decision in Commonwealth v. Albrecht, 720 A.2d 693 (Pa. 1998), is demonstrably wrong.
The rather esoteric direct appeal relaxed waiver rule innovated for competency claims in Marshall and Tyson is not the most familiar of this Court's historic relaxed waiver rules: that status belongs to the relaxed waiver rule formerly applicable in direct capital appeals. When Albrecht, a capital PCRA appeal, was decided, the capital relaxed waiver rule still existed. That doctrine provided that this Court would review claims for which the record permitted review even if those claims would otherwise have been waived -- i.e., even if they were not preserved below. Thus, under that issue preservation scheme, record-based claims of error were not "required to be preserved" in order to be reviewed. 720 A.2d at 700. For purposes of reviewability, such defaulted claims were treated in the same manner as defaulted claims of competency to stand trial. And yet, the Albrecht Court abrogated relaxed wai
Page 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 Pennsylvania DUI Attorneys
DUI Lawyers
|
| |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|