February 2025 Docket Review
This month on SCOPAblog, the Court issued 4 precedential opinions and 5 allocatur grants. On the opinion side, I'm most interested in Laird, which rejects two arguments attempting to broaden petitioners' abilitty to raise claims of ineffective assistance of postconviction counsel notwithstanding the jurisdictional time-bar provisions of the PCRA. The problem has its roots a few decades ago, when the General Assembly in 1996 made amendments to the PCRA and included a provision titled "Jurisdiction and proceedings," which, perhaps unsurprisingly, includes a subsection providing that jurisdiction for proceedings under the PCRA is vested in the court of common pleas, and then a series of subsections that require claims to be raised within a year of the date a petitioner's judgment of sentence becomes final, subject to a few exceptions for claims which the government has interfered with, claims which are predicated on newly discovered and reasonably pursued facts, and newly-retroactive new constitutional rules, which must be raised within 60 ays (now a year) of the date they could have been raised. These provisions are commonly called the "time bar." Early decisions read the title as linking jurisdiction to these procedural rules, based in part on the title, but mostly in light of a policy favoring decisional finality, which was not not a concept related to views that extant petitioners, particularly petitioners challenging an onslaught of death sentences arising out of Philadelphia, some with more vigorous cousnel than most, were using the process to delay and avoid execution.
This (in my view) misinterpretation of the statute led to a number of ills. For example, for many years, petitioners who were trying their best to be diligent and filed their petitions technically early, in the window between the time they lost in Superior Court or Supreme Court but could technically have sought U.S. Supreme Court review, were put out of court because of a lack of jurisdiction, but, by the time they found out, the time-bar had run, and there was no jurisdiction to file again.
But one of the most frustrating problems has been that petitioners are entitled to counsel for at least their first petition, in which inheres a constitutional right to the effective assistance of counsel, and there has been, as yet, no complete remedy to vindicate that right. Based in part on the view that the time-bar is jurisdictional and the underlying policies of finality, the Court has generally refused to allow petitioners whose first postconviction counsel is ineffective to raise the claim in a serial petition on the theory that said ineffectiveness was a newly discovered fact. The idea is that, if a petitioner can raise a second petition to vindicate his right to counsel in the first, it logically follows that a petitioner can raise a third to vindicate his right to a second, and so on. One former Justice was fond of referring to the Augustus De Morgan Poem "Siphonaptera":
Great fleas have little fleas upon their backs to bite 'em,
And little fleas have lesser fleas, and so ad infinitum.
And the great fleas themselves, in turn, have greater fleas to go on;
While these again have greater still, and greater still, and so on.
This meant that the Court was essentially forced into half measures for a number of years. For example, where a petitioner's counsel was ineffective in failing to raise claims at all, or in a petition without further proceedings, a longstanding rule contemplated that, when a court issued a notice of intent to dismiss the proceedings without a hearing, the petitioner could raise claims of ineffective assistance of postconviction counsel in the first instance. Given the practicalities of raising nested claims of ineffectiveness in a 21-day period from prison, this procedure was mostly illusory. Additionally, where a petitioner had a claim of ineffective assistance of counsel per se, the Court balanced finality differently, and in a series of opinions held that such ineffectiveness is a newly discovered fact. Then, in 2020 and 2021, the Court attempted to address the problem with the procedure in earnest, holding in cases called Shaw and Bradley that petitioners who appeal the denial of relief can raise their claims of ineffectiveness for the first time on appeal, and thereby potentially obtain a remand to start the process over. In the latter case, the Court chose this path in lieu of another proposed remedy of allowing petitioners to file serial petitions, mostly based on the force of decisions holding the time-bar is jurisdictional.
In Laird, the Court confronts an argument that Bradley did precisely what it did not do: establish an equitable exception to the time-bar. The Court dispatches the claim. But it leaves open the potential that there are other arguments out there. And there are a few. As an initial matter, the Court has not been shy to restore correct statutory interpretations despite precedents misinterpreting them over the last few years. And beyond that, there are a number of reasons that there is more work to do. First, putting aside jurisdiction, one imagines that animating concerns of finality are less compelling when they put a petitioner in a position of appealing from a court of common pleas to a trial court, seeking a remand, forcing an appellate court to rule on the request, and getting a remand back to the lower court to raise what is in essence a serial petition. Indeed, procedural mistakes and dropped claims seem to be doing most of the filtering in practice. Second, the distinction between ordinary ineffectiveness and ineffectiveness per se -- which is actually about what a petitioner must do to demonstrate prejudice -- does not seem particularly logically relevant when it comes to whether the conduct at issue is a newly-discovered fact. But perhaps most concerning, shortly after Bradley, the U.S. Supreme Court decided a case called Shinn, in which it held that state postconviction counsel's ineffectiveness was not a sufficient reason for subsequent federal postconviction counsel to obtain an evidentiary hearing to make a record on federal postconviction claims. The long and short of it is that whereas federal postconviction proceedings operated as something of a safety valve for state postconviction ineffectiveness for years, the safety valve is gone. Although Mr. Laird did not raise the right arguments, it is not difficult to see the Court on some distant day addressing these points properly argued, and finding a way to adopt precisely the remedy he identified.
On the allocatur side, I'm most interested in Gun Owners of America. Although the primary question for review - a question of state preemption of a Philadelphia gun-control ordinance -- is interesting enough, I am more interested in the second question, which concerns how fulsome a state constitutional claim must be argued in the lower courts to be raised on appeal. Decisions over the years have faltered on whether and to what degree arguments must be made to preserve an issue. As some Justices have put it, "Issues get waived; not arguments," and yet other decisions have arguably viewed a full-scale constitutional analysis as a prerequisite to appellate review. The answer here will have significant impact on the development of state constitutional law, particularly in areas of law, such as criminal law, where resources are limited and/or trial practitioners may not have embedded appellate counsel to make full-scale constitutional arguments in the lower court.
Precedential Opinions
Commonwealth v. Williams, 17 EAP 2024 (Majority Opinion by Dougherty, J.) (holding that the lower courts erred in determining the Commonwealth failed to establish prima facie cases of several obstruction-of-justice offenses)
Commonwealth v. Laird, 809 CAP (Majority Opinion by Donohue, J.) (holding that neither an earlier decision allowing petitioners to raise claims of ineffective assistance of PCRA counsel on appeal nor a treaty provided a basis to permit petitioners to raise ineffective assistance of PCRA cousnel via a serial petition)
Garcia v. Foot Locker, 27-28 WAP 2023 (Majority Opinion by Brobson, J.) (holding that a merchant's collection of sales tax on an item not subject to sales tax does not occur within the conduct of its trade or commerce for purposes of the Unfair Trade Practices and Consumer Protection Law)
ODC v. Anonymous Attorney, 2947 DD3 (Majority Opinion by Donohue, J.) (holding that the Disciplinary Board in attorney-disciplinary proceedings must satisfy a burden of proof of clear and convincing evidence and holding that they may not use offensive collateral estoppel from proceedings with lower burdens of proof, including bankruptcy proceedings, to satisfy that burden)
See also Concurring Opinion by Wecht, J.
Allocatur Grants
Smith v. Kannarkatt, 300 MAL 2024 (granting review to consider the proper application of an "increased risk of harm" causation theory in a medical malpractice case)
PASSHE Kutztown Univ v. PASSHE Officers Assoc, 256 MAL 2024 (granting review to consider whether a trial court vacating an arbitrator's award on the basis of public policy must remand to the arbitrator for a new award)
Gun Owners of America v. City of Phila, 84 EAL 2024 (granting review to consider whether a state gun-control law preempts a Philadelphia gun-control ordinance and the application of waiver doctrine in the context of an allegedly waived state constitutional claim)
Follman v. SD of Phila. (Dept. Ed.), 361 EAL 2024 (granting review to consider whether the Public School Code requires a certain number of school board members to be present for a tenured-professional-employee dismissal hearing)
Lukasik v. Scotchlas, 233 MAL 2024 (granting review to consider whether the Superior Court erroneously sua sponte raised an issue of counsel's abuse of process and remanded for proceedings on whether counsel should be held jointly and severally liable for sanctions)
