                                 [J-80-2017]
                   IN THE SUPREME COURT OF PENNSYLVANIA
                              WESTERN DISTRICT

   SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.


COMMONWEALTH OF PENNSYLVANIA,                :   No. 27 WAP 2017
                                             :
                    Appellee                 :   Appeal from the Order of the Superior
                                             :   Court entered December 13, 2016 at
                                             :   No. 1472 WDA 2015, affirming the
             v.                              :   Judgment of Sentence of the Court of
                                             :   Common Pleas of Mercer County
                                             :   entered June 23, 2015 at No. CP-43-
EDWARD STEPHEN DELGROS,                      :   CR-0001496-2014.
                                             :
                    Appellant                :   SUBMITTED: November 21, 2017


                                       OPINION


JUSTICE BAER                                     DECIDED: APRIL 26, 2018
      We granted allowance of appeal to determine whether a defendant, who is

ineligible for statutory collateral review because he was sentenced to pay a fine without

incarceration or probation, may obtain review of ineffective assistance of counsel claims

presented in post-sentence motions filed in the trial court. The lower courts held that

Edward Stephen Delgros (“Appellant”) could not obtain review of his ineffectiveness

claims because he failed to satisfy any of the exceptions to this Court’s general rule

deferring such claims to collateral review under the Post Conviction Relief Act (“PCRA”),

42 Pa.C.S. § 9541 et seq. For the reasons set forth infra, we adopt a new exception to

the general deferral rule, requiring trial courts to examine ineffectiveness claims when

the defendant is ineligible for PCRA review.      Accordingly, we vacate the Superior

Court’s judgment and remand to the trial court for consideration of Appellant’s post-

sentence claims of ineffective assistance of counsel.
                                       I. Background

      The record establishes that in June of 2001, Appellant hired Robert Croyle to

install a double-wide mobile home on his property. Croyle purchased two I-beams,

described as being lightweight magnesium and more than twenty feet long, for

$1,400.00 each and employed them to move the double-wide into position. Croyle left

the I-beams and other materials on Appellant’s property, intending to pick them up at a

later time. When Croyle returned, his materials were not at the site, and Appellant

denied knowledge of their whereabouts. Croyle reported the I-beams missing to the

Hermitage Police Department. When Deputy Chief Eric Jewel questioned Appellant

about the I-beams, he reiterated that he did not know where they had gone. With

Appellant’s authorization, Deputy Chief Jewel searched the premises to no avail.

      Several months later, Appellant told his father that he had Croyle’s I-beams and

asked for his father’s assistance in hiding them in the woods. Five to seven years

thereafter, Appellant and his father used the I-beams to build a porch onto Appellant’s

house. In April of 2014, Hermitage police received a report that the I-beams were on

Appellant’s property.   Appellant’s father subsequently told Deputy Chief Jewel that

Appellant had used Croyle’s I-beams in the construction of his porch.

      Deputy Chief Jewel went to Appellant’s residence and saw the I-beams

supporting the porch roof in plain view. After obtaining a warrant, photographs and

samples of the I-beams were taken, which indicated that the beams were made of

aluminum. When Croyle was asked about his prior claim that the missing beams were

made of magnesium, he explained that he thought the beams were magnesium, but that

they could have been aluminum. Based on holes present in the I-beams, however,




                                    [J-80-2017] - 2
Croyle identified the I-beams photographed in Appellant’s porch as being those that

went missing years earlier.

      Appellant was thereafter charged with the third degree felony of receiving stolen

property.   Following a jury trial, Appellant was convicted of this offense and was

sentenced to pay restitution in the amount of $2,800.00, and a fine of $15,000.00.

Appellant obtained new counsel and filed post-sentence motions seeking a new trial

and/or arrest of judgment, raising the following contentions: (1) the prosecution was

barred by the applicable statute of limitations; (2) the evidence was insufficient to

support his conviction; (3) the verdict was against the weight of the evidence; (4) trial

counsel was ineffective for failing to introduce evidence regarding the value of the I-

beams for purposes of lowering the grade of the offense; and (5) trial counsel was

ineffective for failing to seek suppression of the search warrant. Appellant requested an

evidentiary hearing on the ineffectiveness claims.

      The trial court granted oral argument and ordered briefing on the questions

presented in the post-sentence motions. Thereafter, the trial court rejected Appellant’s

first three substantive claims on their merits. As to the remaining two claims, alleging

trial counsel’s ineffectiveness, the trial court denied Appellant's request for an

evidentiary hearing. The court held that Appellant was not entitled to relief because the

assertions of ineffectiveness constituted collateral claims that could only be raised

pursuant to the PCRA. Trial Court Opinion at 7. The court reasoned that the PCRA

requires a petitioner to be “currently serving a sentence of imprisonment, probation or

parole for the crime” at the time relief is granted, 42 Pa.C.S. § 9543(a)(1)(i), and that

Appellant was never incarcerated, on probation, or on parole as he was sentenced only




                                     [J-80-2017] - 3
to pay a fine.1 Trial Court Opinion at 7 (citing Commonwealth v. Fisher, 703 A.2d 714

(Pa. Super. 1997) (holding that Subsection 9543(a)’s eligibility requirement of current

incarceration, probation or parole precludes PCRA relief for those petitioners who were

sentenced only to pay a fine)).

       On appeal to Superior Court, Appellant contended, inter alia, that the trial court

erred by declining to entertain his ineffective assistance of counsel claims. Appellant

argued that while this Court in Commonwealth v. Grant, 813 A.2d 726, 738 (Pa. 2002),

set forth a general rule deferring ineffective assistance of counsel claims to collateral

review under the PCRA, we created exceptions to that rule permitting ineffectiveness

claims to be presented in post-sentence motions and on direct appeal under limited

circumstances.    See Commonwealth v. Holmes, 79 A.3d 562, 563-64 (Pa. 2013)

(holding that a trial court retained discretion to entertain ineffectiveness claims on post-

verdict motions and direct appeal where: (1) the claim of ineffectiveness is apparent

from the record and meritorious to the extent that immediate consideration best serves

the interests of justice; or (2) where there is good cause shown and the defendant

knowingly and expressly waives his entitlement to seek subsequent PCRA review from

1Subsection 9543(a) provides, in relevant part, that to be eligible for PCRA relief, the
petitioner must plead and prove by a preponderance of the evidence . . . :
       (1) That the petitioner has been convicted of a crime under the laws of
       this Commonwealth and is at the time relief is granted:
              (i) currently serving a sentence of imprisonment, probation or
              parole for the crime;
              (ii) awaiting execution of a sentence of death for the crime;
              or
              (iii) serving a sentence which must expire before the person
              may commence serving the disputed sentence.
42 Pa.C.S. § 9543(a)(1).



                                      [J-80-2017] - 4
his conviction and sentence). Appellant argued that he was entitled to review of his

ineffectiveness claims under both of the Holmes’ exceptions. He further maintained

that, absent the opportunity to challenge his trial counsel’s stewardship in post-sentence

motions, he would be denied the opportunity to litigate his Sixth Amendment right to

competent representation at trial, thereby depriving him of due process.

      The Superior Court affirmed Appellant’s judgment of sentence in a memorandum

opinion rejecting, inter alia, his contention that the trial court erred by refusing to

entertain his ineffectiveness claims.    Regarding the first Holmes’ exception to the

general deferral rule, the Superior Court held that neither of Appellant’s ineffectiveness

claims (alleging a failure to challenge the value of the stolen property and a failure to

challenge the validity of the search warrant) were apparent from the record and

meritorious. The intermediate appellate court went on to hold that the second Holmes

exception (good cause/waiver of future PCRA review) presumed that the defendant

would subsequently be entitled to PCRA review. Because Appellant was sentenced to

a fine and was not incarcerated, on probation, or on parole, the Superior Court held that

Appellant would never be entitled to PCRA review under Subsection 9543(a)(1)(i), and,

thus, could not satisfy Holmes’ second exception to obtain merits review of post-

sentence claims of ineffective assistance of counsel.

      Finally, the Superior Court declined to find a due process violation resulting from

Appellant’s total inability to obtain review of his ineffectiveness claims, citing

Commonwealth v. Turner, 80 A.3d 754, 764-67 (Pa. 2013), for the proposition that there

is no due process right to non-custodial collateral review. Superior Court Memorandum

at 11-12.   Similarly, the intermediate appellate court cited its previous decision in

Commonwealth v. Fisher, supra, which held that a PCRA petitioner sentenced only to

pay a fine is ineligible for collateral relief under Subsection 9543(a) of the PCRA. The




                                     [J-80-2017] - 5
Superior Court did not observe any distinction between Appellant’s attempt to raise

ineffectiveness claims in post-sentence motions and the attempts made by the PCRA

petitioners in Turner and Fisher to obtain review of ineffectiveness claims presented in a

PCRA petition governed by the statutory requisites.2

      As noted, this Court granted allocatur to address whether Appellant, who is

ineligible for collateral review under the PCRA because he was sentenced only to pay a

fine, is entitled to review of ineffective assistance of counsel claims presented in post-

sentence motions. This question constitutes a question of law; thus, our standard of

review is de novo and our scope of review is plenary. Commonwealth v. Baldwin, 58

A.3d 754, 762 (Pa. 2011).

                                   II. The Parties’ Arguments

      Appellant contends that he is entitled to the right to counsel under the Sixth

Amendment to the United States Constitution and Article I, Section 9 of the

Pennsylvania Constitution. He submits that this right encompasses the fundamental

right to effective trial counsel. According to Appellant, his right to due process was

violated when the lower courts declined to provide him an opportunity to litigate his

challenges to trial counsel’s representation, particularly considering that he can never

present ineffectiveness claims on collateral review due to his ineligibility under

Subsection 9543(a)(1).

      Appellant asserts that the lower courts erred by concluding that his constitutional

right to challenge trial counsel's stewardship was subordinate to or dependent upon the

2 The Superior Court below additionally relied upon Commonwealth v. Reigel, 75 A.3d
1284 (Pa. Super. 2013), which involved ineffectiveness claims presented in a direct
appeal from the imposition of a fine. In Reigel, the Superior Court affirmed the trial
court’s refusal to address the ineffectiveness claims, holding that while it was not
unsympathetic to the defendant’s total inability to pursue such claims, the current law
did not allow for their review on direct appeal. Id. at 1289.



                                     [J-80-2017] - 6
eligibility requirements of the PCRA. He contends that the evolution of this Court’s case

law regarding the general deferral rule supports his position that ineffectiveness claims

should be addressed during the appellate process when those claims cannot be

asserted under the PCRA. Specifically, Appellant relies on Holmes, which affords trial

courts discretion to review ineffectiveness claims where there is good cause shown and

the defendant knowingly and expressly waives his entitlement to seek subsequent

PCRA review of his conviction or sentence.          He contends that the Holmes Court

recognized that review of ineffectiveness claims during direct appeal proceedings was

advantageous when it allowed defendants with shorter sentences, who would be

ineligible for PCRA review when they were no longer incarcerated, the ability to litigate

their ineffectiveness claims on direct appeal. Appellant posits that defendants who are

ineligible for PCRA review because they were sentenced only to pay a fine should

likewise be entitled to review of ineffectiveness clams to vindicate their constitutional

right to effective representation at trial, which would otherwise be forfeited.

       Appellant argues that the Superior Court misinterpreted the good cause/PCRA

waiver exception in Holmes by presuming that application of such exception required

compliance with the statutory requisites for PCRA relief. Contrary to the lower court’s

holding, he submits, Holmes in no way suggests that a defendant, convicted of a felony

but sentenced only to pay a fine, should never have an opportunity to challenge his

counsel’s stewardship and/or to demonstrate that counsel ineffectiveness affected the

outcome of his case.      To the contrary, Appellant posits, when read in its entirety,

Holmes recognizes the compelling need for the “short sentence exception” so that

PCRA petitioners will have at least one opportunity for review of ineffectiveness claims

due to their constitutional primacy. He concludes that defendants sentenced to pay a

fine without incarceration or probation should be afforded the same protections.




                                       [J-80-2017] - 7
       Finally, Appellant submits, the Superior Court erred by relying on this Court’s

decision in Commonwealth v. Turner, supra, in support of its holding that his due

process rights were not violated. He argues that Turner is distinguishable because it

did not involve a defendant’s attempt to raise ineffectiveness claims in post-sentence

motions, as occurred here. Rather, Appellant asserts, this Court held in Turner that the

PCRA’s eligibility requirement in Subsection 9543(a)(1), that a petitioner be “currently

serving a sentence of imprisonment, probation or parole,” was not unconstitutional as

applied to a petitioner who was no longer incarcerated, but had prior opportunities to

present ineffectiveness claims. Unlike in Turner, Appellant contends, the lower court’s

decision leaves him no opportunity to challenge trial counsel’s stewardship.

Accordingly, Appellant respectfully requests that we reverse the Superior Court and

remand to the trial court for consideration of his ineffectiveness claims.3

       The Commonwealth responds that the lower courts correctly denied Appellant

review of his ineffectiveness claims because he failed to satisfy any recognized

exception to the general deferral rule. As Appellant relies exclusively on the second

Holmes’ exception (good cause/waiver of PCRA), the Commonwealth asserts that such

exception is inapplicable because to waive PCRA review, a petitioner must be eligible to

assert a claim under the PCRA in the first instance. Appellant is ineligible to do so here,

it submits, because he was sentenced only to pay a fine and, thus, cannot satisfy

Subsection 9543(a)(1).



3 The Defender Association of Philadelphia (“DAP”) has filed an amicus curie brief in
support of Appellant, reiterating his sentiments that the right to effective counsel is a
fundamental constitutional right necessary to ensure a fair trial. The DAP urges the
Court to treat defendants sentenced only to a fine in the same manner as we treated
defendants with a short sentence in Holmes, i.e., afford them the opportunity to raise
ineffective assistance of counsel claims on direct appeal.



                                      [J-80-2017] - 8
       In the Commonwealth’s view, the inability of a non-custodial defendant to seek

review of ineffectiveness claims does not offend due process because, for a due

process right to attach, a defendant’s liberty interest must in some way be infringed.

Brief for Appellee at 18 (citing Sandin v. Conner, 515 U.S. 472, 484 (1995) (holding that

liberty interests that are protected by due process are generally limited to freedom from

restraint)).   As Appellant was not subject to detention or the threat of detention, the

Commonwealth maintains that there is no deprivation of liberty so as to create a due

process right compelling an opportunity for review of ineffectiveness claims under the

PCRA. It submits that there is no authority to support Appellant’s request for a “fine-

only” exception to the general deferral rule, particularly considering that the PCRA

expressly limits eligibility to those individuals whose liberty is restricted. See Brief of

Appellee at 17 (citing Commonwealth v. Reigel, 75 A.3d at 1288-89 (holding that a

defendant convicted of summary offenses and sentenced to pay fines and costs was

not eligible to litigate ineffective assistance of counsel claims on direct appeal) and

Commonwealth v. Fisher, 703 A.2d 714 (Pa. Super. 1997) (holding that Subsection

9543(a)’s eligibility requirement of current incarceration, probation or parole precludes

PCRA relief for those petitioners who were sentenced only to pay a fine)).

       The Commonwealth further posits that this Court resolved the due process issue

in Turner, where we held that Subsection 9543(a)(1)(i)’s limitation of PCRA review to

individuals serving a sentence of imprisonment, probation, or parole comports with due

process because individuals who are not serving a state sentence have no liberty

interest and, therefore, no due process right to collateral review of that sentence. The

Commonwealth contends that the inability of a non-custodial defendant to obtain review

of ineffectiveness claims is a mere consequence of legislative choice. It argues that

there is no case law or statutory authority obligating this Court to exempt defendants




                                     [J-80-2017] - 9
sentenced to non-custodial, fine-only punishments from the PCRA requirements when

attempting to raise claims challenging the effectiveness of trial counsel. To do so, the

Commonwealth contends, would convert post-sentence practice into quasi-PCRA

proceedings, which this Court rejected in Grant.        It urges this Court to adhere to

precedent by deferring ineffectiveness claims to collateral review.

               III. Evolution of Case Law on Treatment of Ineffectiveness Claims

       A review of case law involving this Court’s historic treatment of ineffective

assistance of counsel claims is helpful to understanding the issue presented.             In

Commonwealth v. Hubbard, 372 A.2d 687 (Pa. 1977), this Court declared that claims

challenging counsel’s effectiveness must be raised at the earliest stage of the

proceedings at which the allegedly ineffective counsel no longer represented the

defendant and, if not so raised, the claims were waived. Id. at 695 n.6.4 Thus, a

dichotomy arose in that the procedural rules traditionally did not permit issues to be

raised for the first time on appeal or provide for supplementation of the record on

appeal, yet the defendant, if represented by new counsel on appeal, was required to

assert and develop a challenge to prior counsel’s stewardship at that point of the

proceedings, upon pain of waiver.

       This Court reconsidered that procedure in Commonwealth v. Grant, 813 A.2d

726 (Pa. 2002), observing the impracticalities of reviewing ineffectiveness claims on

direct appeal including: (1) the absence of a trial court opinion to facilitate meaningful

appellate review; (2) the inability of appellate courts to consider matters outside of the


4 Two years prior to Hubbard, in Commonwealth v. Dancer, 331 A.2d 435 (Pa. 1975),
this Court held that a defendant represented on direct appeal by new counsel waives
his ineffectiveness claim by failing to present the issue on direct appeal, subject to a few
enumerated exceptions. In Hubbard, we made such rule absolute. See Grant, 813
A.2d at 733 (discussing the history of the Hubbard rule).



                                     [J-80-2017] - 10
record; and (3) the inability of appellate courts to make credibility determinations relating

to ineffectiveness claims based on the cold record. Id. at 733-34. To remedy these

concerns, the Grant Court abrogated the Hubbard rule and adopted a general rule that

a defendant “should wait to raise claims of ineffective assistance of trial counsel until

collateral review proceedings.” Id. at 738.

       The Grant Court opined that generally deferring ineffectiveness claims to

collateral review proceedings was consistent with our procedural rules that prohibit

appellate courts from considering issues that were not raised and developed in the court

below, facilitating meaningful appellate review. Id. at 734; see also Pa.R.A.P. 302(a)

(providing that “[i]ssues not raised in the lower court are waived and cannot be raised

for the first time on appeal”). Additionally, the Court concluded that generally deferring

ineffectiveness claims to collateral review proceedings would allow for better

development of the claims as appellate counsel could focus on reviewing the record for

claims of error within the limited period for filing a direct appeal, while PCRA counsel

would be afforded more time to investigate and develop non-record claims challenging

prior counsel’s performance in collateral proceedings.          Id.; compare 42 Pa.C.S.

§ 9545(b)(1) (setting forth the general rule that a PCRA petition “shall be filed within one

year of the date the judgment becomes final”) with Pa.R.Crim.P. 720(A)(3) (providing

the general rule that “[i]f the defendant does not file a timely post-sentence motion, the

defendant’s notice of appeal shall be filed within 30 days of imposition of sentence”).

Finally, the Grant Court recognized that the trial court is better suited than an appellate

court to make credibility determinations relating to both the quality of trial counsel’s

performance and the impact of any deficiencies in stewardship. Id.

       Concluding that deferral of ineffectiveness claims until collateral review

proceedings offers a defendant “the best avenue to effect his Sixth Amendment right to




                                      [J-80-2017] - 11
counsel,” the Grant Court clarified that “any ineffectiveness claim will be waived only

after a petitioner has had the opportunity to raise that claim on collateral review and has

failed to avail himself of that opportunity.” Id. at 738. Grant recognized the prospect of

exceptions to the general rule in future cases, id. at n.14, and applied the newly-

formulated rule to the parties before it by dismissing the ineffectiveness claims without

prejudice, thereby allowing the defendant to raise the claims on collateral review. Grant

further held that its new rule applies retroactively to “any other cases on direct appeal

where the issue of ineffectiveness was properly raised and preserved.” Id. at 738.

       As occurs with all decisional law, this Court subsequently refined our holding in

Grant when confronted with discrete factual scenarios in subsequent cases.               In

Commonwealth v. Bomar, 826 A.2d 831 (Pa. 2003), we declined to apply Grant’s

general deferral rule where: the defendant’s ineffectiveness claims had been preserved

by new counsel in post-sentence motions prior to our decision in Grant; the trial court

held hearings during which trial counsel testified; and the trial court evaluated the

ineffectiveness claims in its opinion based upon a sufficient record. This Court in Bomar

reviewed such ineffectiveness claims on direct appeal as the concerns that led this

Court in Grant to abrogate the Hubbard doctrine, which affected both the ability of the

defendant to develop his claims and the reviewing court’s ability to consider the claims,

simply did not exist. Bomar, 826 A.2d at 853. This decision resulted in what has been

colloquially referred to as the “Bomar exception” to Grant’s general deferral rule.

       In Commonwealth v. O’Berg, 880 A.2d 597 (Pa. 2005), the Court declined to

recognize a categorical exception to Grant’s general deferral rule, which would have

permitted defendants with short sentences of incarceration, who would likely be

ineligible for PCRA review as they would no longer be in custody, to present

ineffectiveness claims on direct appeal. The Court held that the reasons for deferring




                                     [J-80-2017] - 12
review of ineffectiveness claims espoused in Grant (i.e., the lack of a trial court opinion,

lack of a sufficient record, and transformation of an appellate court into a factfinder) are

all present in the short-sentence scenario, thereby suggesting that deferral to collateral

proceedings remained appropriate, even though some defendants may not be eligible

for PCRA review as they would no longer be serving a sentence of imprisonment,

probation or parole under Subsection 9543(a) of the PCRA. O’Berg, 880 A.2d at 601-

02. The O’Berg Court found the concept of a “short sentence” too ambiguous to provide

the lower courts any guidance on how to apply such an exception and feared that

adopting a “short sentence” exception “would undermine the very reasons that led to

our decision in Grant in the first instance.” Id. at 602.5   6


       Notably, this Court again revisited Grant’s general deferral rule in Commonwealth

v. Holmes, supra, where we granted allowance of appeal to address uncertainty that

had arisen regarding whether the Bomar exception could be applied to cases litigated

on direct appeal after Grant;7 and to determine whether ineffectiveness claims could be

5 The O’Berg decision did not address the defendant’s due process claim, finding the
issue to be waived. Id. at 597 n.2.
6 Former Chief Justice Castille filed a concurring opinion in O’Berg in which he asserted
that ineffectiveness claims are quintessentially collateral claims that belong only in
collateral review pursuant to the PCRA. Justice, now Chief Justice, Saylor filed a
dissenting opinion, joined by this author, in which he opined that Grant’s general
deferral rule was premised upon the availability of collateral review, thus, fundamental
fairness supported the recognition of an exception to the general deferral rule for those
ineligible for PCRA consideration.
7 The uncertainty arose when trial courts continued to entertain ineffectiveness claims
after this Court declared in Grant that such claims should generally be deferred to
collateral review.     The result was that appellate courts were presented with
ineffectiveness claims on direct appeal that did not suffer from the impracticalities
discussed in Grant in that they had been addressed by trial courts in their opinions after
supplementation of the record. Upon denial of relief on these claims on direct appeal,
some defendants would then assert additional claims of ineffectiveness in collateral
review proceedings under the PCRA, arbitrarily affording those defendants two separate
opportunities to challenge counsel’s stewardship.



                                      [J-80-2017] - 13
considered by the trial court if accompanied by the defendant’s waiver of subsequent

review under the PCRA. This Court reaffirmed Grant’s general rule of deferral to PCRA

review and disapproved of expansions of the Bomar exception that permitted some, but

not all, defendants to obtain review of ineffectiveness claims during the appellate

process and then proceed to PCRA collateral proceedings for a second opportunity to

present additional ineffectiveness claims. Holmes, 79 A.3d at 563. Accordingly, we

limited the Bomar exception to apply to cases litigated in the trial court prior to our

decision in Grant. Id.

       As noted, in Holmes, we recognized two exceptions to the general rule deferring

ineffectiveness claims to collateral review.    The first exception, not invoked in this

appeal, affords trial courts discretion to entertain ineffectiveness claims in extraordinary

circumstances where a discrete claim of trial counsel ineffectiveness is apparent from

the record and meritorious to the extent that immediate consideration best serves the

interests of justice. Id. The second exception, relied upon by Appellant herein, gives

trial courts discretion to address ineffectiveness claims on post-sentence motions and

direct appeal if there is good cause shown and the defendant knowingly and expressly

waives his entitlement to seek subsequent PCRA review of his conviction and sentence.

Id. at 564.     This waiver of subsequent PCRA review eliminated the unintended

consequence of some defendants obtaining two separate rounds of review of ineffective

assistance of counsel claims.      We emphasized that the paradigm the Court was

adopting sanctioned unitary review only to the extent the review advanced and

exhausted PCRA review, and not as a means to obtain an accelerated, extra round of

collateral attack. Id.

       Germane to the issue presented in this appeal, the Court in Holmes softened its

steadfast position adopted in O’Berg (prohibiting a categorical short sentence exception




                                     [J-80-2017] - 14
to Grant’s general deferral rule) and observed that “unitary review offers defendants

who receive shorter prison sentences or probationary sentences the prospect of

litigating their constitutional claims sounding in trial counsel ineffectiveness; for many of

these defendants, post-appeal PCRA review may prove unavailable.”               Id. at 578.

Considering that the United States Supreme Court had recently emphasized “the

constitutional primacy of claims involving the ineffectiveness of trial counsel,” id. (citing

e.g., Martinez v. Ryan, 566 U.S. 1 (2012) and Trevino v. Thaler, 569 U.S. 413 (2013)),

the Holmes Court found unitary review in short sentence cases to be valuable. Id.

Accordingly, we directed trial courts to “err on the side of favoring the vindication of

constitutional rights otherwise susceptible to forfeiture,” and conveyed confidence that

trial courts in short sentence cases will recognize these concerns and liberally permit

unitary review. Holmes, 79 A.3d at 578.

                                           IV. Analysis

       While our decision in Holmes did not address the particular facts currently before

us, i.e., where the defendant is ineligible for PCRA review because he was sentenced

only to pay a fine, we agree with Appellant that the reasoning in Holmes applies with

equal force to these circumstances. Recognizing the “bedrock” importance of effective

assistance of trial counsel and the derivative importance of opportunities to litigate

claims of ineffectiveness, id., at 583 (citing Martinez, 132 S.Ct. at 1317-18), the Holmes

Court crafted an exception affording trial courts discretion to entertain challenges to trial

counsel’s stewardship where the defendants may not have the ability to raise such

claims in collateral proceedings due to their potential ineligibility for PCRA review.

Here, Appellant’s ineligibility for PCRA review is more than potential; it is definitive, as

he can never satisfy Subsection 9543(a)(1) because he was sentenced only to pay a

fine. This PCRA ineligibility eliminates the concern addressed in Holmes regarding a




                                      [J-80-2017] - 15
defendant obtaining a second opportunity to raise additional ineffectiveness claims on

collateral review.

       Accordingly, to ensure that defendants are afforded an opportunity to challenge

trial counsel’s stewardship, we adopt an additional exception to Grant’s general deferral

rule, requiring trial courts to address claims challenging trial counsel’s performance

where the defendant is statutorily precluded from obtaining subsequent PCRA review.

While we have cautioned lower courts against creating exceptions to Grant’s general

deferral rule, there is no impediment to this Court establishing a change in procedure

where, as here, it serves the interests of justice. See Grant, 813 A.2d at 738 n. 14

(reserving in this Court the authority to create an exception to the general rule of

deferral); Commonwealth v. O'Berg, 880 A.2d 597, 602 (Pa. 2005) (same);

Commonwealth v. Liston, 977 A.2d 1089, 1094 (Pa. 2009) (same).

       We reach this conclusion in recognition that Grant’s general deferral rule was

motivated in large part by an intent to enhance a defendant’s ability to effectuate his

constitutional right to competent representation at trial, and not to restrict that

opportunity.   See Grant, 813 A.2d at 738 (providing that deferral of ineffectiveness

claims until collateral review proceedings offers a defendant “the best avenue to effect

his Sixth Amendment right to counsel”).         We further acknowledge that our general

deferral rule was initially premised upon the assumption that the defendant would

subsequently be eligible to obtain review of such claims in collateral proceedings. See

Grant, 813 A.2d at 738 (providing that “any ineffectiveness claim will be waived only

after a petitioner has had the opportunity to raise that claim on collateral review and has

failed to avail himself of that opportunity”). Id. at 738.

       Significantly, and contrary to the lower court’s reasoning herein, sanctioning

review of Appellant’s post-sentence motions, which challenge trial counsel’s




                                       [J-80-2017] - 16
stewardship, does not afford him “collateral review” outside the confines of the PCRA.

See Trial Court Opinion at 7 (holding that claims alleging the ineffective assistance of

counsel are “collateral claims” reviewable only if the statutory requisites of the PCRA

are satisfied).   A claim does not become “collateral” merely because it alleges the

ineffectiveness of trial counsel; rather, a claim is collateral when raised after the direct

appeal process has concluded. See Wall v. Kholi, 562 U.S. 545, 553 (2011) (holding

that “collateral review” of a judgment or claim is ordinarily understood as “a judicial

reexamination of a judgement or claim in a proceeding outside of the direct appeal

process”). Thus, Appellant’s challenges to trial counsel’s stewardship set forth in post-

sentence motions are not “collateral claims” subject to the requirements of the PCRA.

       The express language of the PCRA confirms this observation by acknowledging

that the statute does not govern procedures applicable to a defendant’s direct appeal.

See 42 Pa.C.S. § 9542 (providing the scope of the PCRA and stating that “[t]his

subchapter is not intended to limit the availability of remedies in the trial court or on

direct appeal from the judgment of sentence”).        Thus, the Superior Court erred by

holding that Appellant’s inability to satisfy Subsection 9543(a)(1) of the PCRA precluded

him from obtaining review of his post-sentence claims of ineffective assistance of

counsel. The statutory requisites for obtaining collateral relief pursuant to the PCRA are

relevant to our determination herein only to the extent that they inform us of the

consequences resulting from our adoption of a particular direct appeal procedure.

       Having determined that an exception to the general deferral rule in Grant best

serves the interests of justice when the defendant is ineligible to obtain subsequent

PCRA review, we need not address Appellant’s claim that due process requires such

result as it is the policy of this Court to avoid deciding a matter on constitutional grounds

if the issue can be decided on other grounds. See Liston, 977 A.2d at 1094 (citing




                                      [J-80-2017] - 17
Commonwealth v. Long, 922 A.2d 892, 897 (Pa. 2007) (providing that “[i]t is the policy

of this Court to avoid deciding a matter on constitutional grounds if the issue can be

decided on other grounds”)).8

      Finally, as this appeal involves the examination of ineffectiveness claims

presented in post-sentence motions, prior decisions governed by the PCRA that

construe that statute’s eligibility requirements are left undisturbed.        See, e.g.,

Commonwealth v. Fisher, 703 A.2d 714 (Pa. Super. 1997) (holding that Subsection

9543(a)’s eligibility requirement of current incarceration, probation or parole precludes

PCRA relief for those petitioners who were sentenced only to pay a fine). In a similar

vein, we find that this Court’s ruling in Commonwealth v. Turner, which involved a

PCRA petitioner and not a defendant presenting ineffectiveness claims in post-sentence

motions, has no bearing on our decision.9

      Accordingly, for the reasons set forth herein, we vacate the judgment of the

Superior Court and remand to the trial court for consideration of Appellant’s post-

sentence claims of ineffective assistance of counsel.

      Justices Todd, Donohue, Dougherty and Mundy join the opinion.

      Chief Justice Saylor files a concurring opinion in which Justice Wecht joins.


8 Consistent with his dissenting opinion in Commonwealth v. Turner, supra, Chief
Justice Saylor would base the Court’s holding in this appeal on constitutional grounds.
See Saylor, C.J., Concurring, at 2-3. While we appreciate Chief Justice Saylor’s
concern, we find it unnecessary to issue a constitutional mandate. This Court’s
previous holdings in Grant and Holmes, which altered the procedure for reviewing
ineffectiveness claims on direct appeal, were likewise equitable determinations and not
constitutional rulings.
9As noted, this Court in Turner held that the PCRA’s eligibility requirement that the
petitioner be “serving a sentence of imprisonment, probation or parole” did not deny the
petitioner due process where she was no longer in custody and had previous
opportunities to present ineffectiveness claims.



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