                            [J-80-2017][M.O. - Baer, J.]
                   IN THE SUPREME COURT OF PENNSYLVANIA
                                WESTERN DISTRICT


COMMONWEALTH OF PENNSYLVANIA , :                No. 27 WAP 2017
                               :
                               :                Appeal from the Order of the Superior
         Appellee              :                Court entered on 12/13/16 at No. 1472
                               :                WDA 2015, affirming the judgment of
                               :                sentence of the Court of Common Pleas
                               :                of Mercer County entered on 6/23/15 at
           v.                  :                No. CP-43-CR-0001496-2014
                               :
EDWARD STEPHEN DELGROS,        :
                               :
         Appellant             :                SUBMITTED: November 21, 2017




                               CONCURRING OPINION


CHIEF JUSTICE SAYLOR                            DECIDED: APRIL 26, 2018


      I agree with the majority’s adoption of an exception to the general deferral rule for

ineffectiveness of counsel claims in instances where the defendant is statutorily

precluded from obtaining subsequent PCRA review, as well as the application of that

exception to Appellant’s circumstances. However, I differ with the majority’s position

that the mandate for the exception can or should be divorced from directly applicable

constitutional requirements. See Majority Opinion, slip op. at 17-18 & n.8. As I have

observed on several occasions since the initial development of the general deferral rule

in Commonwealth v. Grant, 572 Pa. 48, 813 A.2d 726 (2002), the procedures applicable

to the direct review of deficient stewardship claims “implicate due process as

guaranteed by the United States Constitution.” Id. at 72, 813 A.2d at 741 (Saylor, J.,
concurring); see also Commonwealth v. O’Berg, 584 Pa. 11, 28, 880 A.2d 597, 607

(2005) (Saylor, J., dissenting) (“The alternative [to adopting a short-sentence exception]

is to curtail unduly the availability of appellate review to a category of persons relative to

claims predicated on their constitutional right to effective representation, a course which

seems to me to impinge upon the right of direct appeal guaranteed under the

Pennsylvania Constitution.” (citing PA. CONST. art. V, §9.)). In this regard, I believe that

defendants’ constitutional rights to due process, direct appeal, and effective counsel

provide the central justification for the present departure from the general deferral rule.

See Commonwealth v. Turner, 622 Pa. 318, 347, 80 A.3d 754, 771 (2013) (Saylor, J.,

dissenting) (“I find that the due process and right-to-counsel concerns that [appellant]

has asserted overlap with the concern that she should be permitted at least one

opportunity to present her constitutional challenges to her judgment of sentence.”).1

Accordingly, I would credit Appellant’s argument in this respect. See Brief for Appellant

at 7-8.



          Justice Wecht joins this concurring opinion.




1As an ancillary observation, although the exception outlined by the majority purports to
apply generally to those defendants who are statutorily ineligible for PCRA review, the
present matter is predicated on protecting a defendant’s constitutional right to effective
counsel, see Commonwealth v. Holmes, 621 Pa. 595, 622, 79 A.3d 562, 578 (2013),
and thus, I do not view this case as addressing those instances in which the right to
counsel is not implicated. See, e.g., Luis v. United States, __ U.S __, __, 136 S. Ct.
1083, 1089 (2016) (acknowledging the right to counsel when the defendant is “accused
of all but the least serious crimes” (citing Gideon v. Wainwright, 372 U.S. 335, 344, 83
S. Ct. 792, 796 (1963)).


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