Commonwealth V. Holmes and the Rule of Deferral: Short Sentences, Long Sentences and the Illusory Nature of the Good Cause Exception

In the mid-1950s, the American Bar Association reported that state procedures were "wholly inadequate" in failing to provide defendants "genuine opportunities" to raise constitutional challenges to their conviction or sentence. In 1965, Justice Clark concluded that given the great variations in scope and availability, state post-conviction remedies were "entirely inadequate." Justice Brennan went further and called for the adoption of state procedures that were "swift . . . simple" and "sufficiently comprehensive to embrace all federal constitutional claims" and "eschew rigid and technical doctrines of forfeiture, waiver, or default." Like many states at the time, Pennsylvania lacked a uniform process by which defendants could challenge their convictions. To address this problem, in 1966, the legislature enacted the Post Conviction Hearing Act (PCHA), which provided the first comprehensive procedure to hear and decide challenges to convictions and sentences imposed "without due process of law." In 1988, the PCHA was modified in part, repealed in part, and renamed the Post Conviction Relief Act (PCRA). The one-year filing period was added to the PCRA in 1995,7 and a later amendment authorized post-conviction DNA testing. By 2002, Pennsylvania had a comprehensive and easily invoked system of review. All defendants, without regard to the length of the sentence imposed, could obtain review of challenges to their convictions or sentences initially by direct appeal guaranteed by the Pennsylvania Constitution, and later, for defendants in custody, by seeking collateral relief under the PCRA.Notwithstanding the constitutional guarantee of direct appeal, in 2002, in Commonwealth v. Grant, the Supreme Court of Pennsylvania significantly restructured review of errors occurring during trial. In Grant, the court closed direct appeal to claims of trial-counsel ineffectiveness and instead deferred such claims to the post-conviction process governed by the PCRA.The effect of the Grant rule was to leave a large number of defendants who received short sentences of imprisonment or probation without a remedy to challenge the effectiveness of the lawyer that represented them at trial or on a guilty plea. This is because post-conviction review in Pennsylvania is only available to defendants who are currently serving a sentence of imprisonment or are on probation or parole at the time the petition is filed and at the "time relief is granted." If a defendant completes his sentence while issues of trial error and other preserved claims are being considered on direct appeal, a post-conviction petition cannot be filed challenging the ineffectiveness of trial counsel. If a defendant waives direct appeal and proceeds immediately to obtain post-conviction review of an ineffectiveness claim, as required by Grant, but completes his sentence during the time the post-conviction proceeding is pending, the post-conviction petition will be dismissed. With the decision in Grant, Pennsylvania returned to a system of post-conviction review in which some defendants, based simply on the sentence imposed, were denied "at least one opportunity to present . . . [a] constitutional challenge[] to [a] . . . judgment of sentence."Shortly after the Grant decision, the Supreme Court of Pennsylvania created an exception to the rule of deferral. In Commonwealth v. Bomar, the court held that Grant did not apply when claims of ineffectiveness of trial counsel were raised by new counsel in a post-sentence motion. In Bomar, the trial court conducted a hearing on the motion that included the testimony of trial counsel and later addressed the ineffectiveness claims in an opinion. The Supreme Court held that the concerns that led it to adopt the rule of deferral in Grant did not apply and, therefore, the ineffectiveness claims in Bomar were reviewable on direct appeal.The Superior Court recognized the problem created by Grant, and in 2003 created a short-sentence exception to the rule of deferral which permitted claims of ineffectiveness to be considered on direct appeal. The court acknowledged that in the case of defendants with short sentences, "review delayed constitutes review denied." The short-sentence exception to Grant was rejected by the Supreme Court in Commonwealth v. O'Berg. In O'Berg, the court recognized that the net effect of the Grant rule and the statutory requirement of custody was that defendants with short sentences will "not have the opportunity to raise a claim challenging trial counsel effectiveness . . . ." While the court acknowledged that a defendant should not be harmed by the Grant rule, the court nonetheless concluded that harm to defendants with short sentences "cannot be used to defeat" the reasons for deferring trial-ineffectiveness claims to the post-conviction process.Following O'Berg, as trial courts permitted more defendants to bypass Grant on the basis of the Bomar exception, members of the court began expressing reservations about the continuing and expansive application of the Bomar procedure. Individual justices argued that the exception should not be available unless the defendant waived his right to post-conviction review. In Commonwealth v. Liston, the court subsequently rejected the use of post-sentence motions to raise ineffectiveness claims unless, "accompanied by an express, knowing, and voluntary waiver of further PCRA review." Not resolved by the Liston decision was the scope, form, and timing of the required waiver and the issue of whether an indigent defendant was entitled to new counsel to prepare a post-sentence motion challenging the effectiveness of trial counsel. As a result, there was significant uncertainty in the courts about the continued use of post-sentence motions to develop ineffectiveness claims and the required waiver of collateral review.In 2010 the Supreme Court granted allowance of appeal in Commonwealth v. Holmes to resolve whether ineffectiveness claims should be deferred to collateral review, or whether they are reviewable on direct appeal by post-sentence motion provided there is a waiver of the right to collateral review under the PCRA. In Holmes, decided in 2013, the court recognized two limited, discretionary exceptions to the Grant rule of deferral. The first exception permits the trial court, in an "extraordinary case," to rule on a claim of ineffectiveness that is both "meritorious and apparent from the record" without requiring the defendant to waive PCRA review. The second exception permits post-sentence review of multiple record- and non-record-based claims of ineffectiveness upon "good cause shown" where there is a waiver of PCRA rights. The exception purports to address the short-sentence problem created by Grant but is not limited to defendants whose sentence precludes access to PCRA review.In this article, I argue that Holmes does not resolve the short sentence problem: indigent defendants with a short-sentence still do not have a useable procedure to "vindicate their right to effective trial counsel." Nor does Holmes provide defendants with longer sentences a workable alternative to the rule of deferral. Part II of the article discusses the Holmes decision and the exceptions to the rule of deferral. Part III explains why the good cause exception does not provide a remedy to indigent defendants with short sentences and identifies the significant flaws in the "extraordinary case" exception. Part III also explains that for defendants who can employ new counsel, the scope of the waiver required under the good cause exception and the conflict of interest issue presented by the waiver significantly limit the use of the exception. In Part IV, the article discusses how changes to post-sentence procedure or to interpretations of the PCRA would create a usable procedure for indigent defendants to obtain review of trial-ineffectiveness claims.