J-S96003-16



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA


                    v.

ANTHONY PHILLIP PELUSO

                         Appellant                  No. 1283 WDA 2015


            Appeal from the Judgment of Sentence July 9, 2015
             In the Court of Common Pleas of Allegheny County
            Criminal Division at No(s): CP-02-CR-0014213-2014


BEFORE: BENDER, P.J.E., BOWES, J., AND SOLANO, J.

MEMORANDUM BY BOWES, J.:                            FILED MARCH 23, 2017

      Anthony Phillip Peluso appeals from the judgment of sentence of two

to four years incarceration, followed by two years probation, imposed after

he pled guilty to possession with intent to deliver a controlled substance,

possession of a controlled substance, and tampering with physical evidence.

We remand this matter with instructions for the trial court.

      The pertinent facts are as follows. On July 9, 2015, Appellant entered

a guilty plea to the aforementioned offenses.       At the plea hearing, the

prosecutor informed the court that Appellant was entering a general plea.

Appellant did not object. The trial court conducted a colloquy, and accepted

Appellant’s guilty plea as knowing, intelligent, and voluntary. The court then

proceeded directly to sentencing. After hearing argument, and considering
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the nature of the charges and Appellant’s history, the court sentenced

Appellant to two to four years state incarceration, plus two years probation.

       Appellant filed a post-sentence motion seeking to withdraw his guilty

plea, claiming that counsel was ineffective.       In that motion, plea counsel,

Hart Hillman, Esquire, averred that he had conferred with the prosecutor and

reached an agreement where Appellant would only be sentenced to a term of

county imprisonment. He asserted that he had communicated this plea deal

to Appellant immediately prior to the hearing. He then noted his failure to

object during the hearing when the prosecutor indicated that Appellant was

entering a general plea.         As a result of own his alleged ineffectiveness,

Attorney Hillman concluded that Appellant’s guilty plea had not been entered

knowingly, intelligently, and voluntarily since he ultimately received a

sentence to state imprisonment contrary to counsel’s pre-hearing advice.

       The trial court held a hearing on Appellant’s motion to withdraw on

July 21, 2015.      After hearing testimony from the prosecutor and Attorney

Hillman, the court denied Appellant’s motion to withdraw his plea, thus

finding that Appellant’s claim of ineffectiveness was not meritorious.

Appellant filed a timely pro se notice of appeal to this Court.            After

conducting a Grazier hearing,1 the court permitted Appellant to pursue this

appeal pro se with the aid of standby counsel. Appellant complied with the
____________________________________________


1
    Commonwealth v. Grazier, 713 A.3d 81 (Pa. 1998).



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court’s directive to file a Rule 1925(b) statement of errors complained of on

appeal, and the court authored its Rule 1925(a) opinion.                       On appeal,

Appellant presents one issue for our review:

        I.     Did the lower court err and/or abuse its discretion by
               denying [Appellant’s] motion to withdraw his guilty plea
               insofar as the plea was not knowing, intelligent or
               voluntary,    but    was    based     on    the  admitted
               misrepresentation of defense counsel that an agreement
               had been reached with the Commonwealth, whereby
               [Appellant] would receive a county-length sentence, when
               in fact no such agreement had been made, making
               [Appellant’s] plea unlawfully induced by counsel’s
               ineffectiveness which is apparent on the record?

Appellant’s brief at 5.

        Before we reach the merits of this appeal, we must first determine

whether it is properly before us.             At the outset, we are mindful of our

Supreme Court’s well-established principle that a petitioner should only raise

a claim of counsel ineffectiveness on collateral review. Commonwealth v.

Grant, 813 A.3d 726 (Pa. 2002). In light of its holding in Grant, the High

Court in Commonwealth v. Holmes, 79 A.3d 562 (Pa. 2013), considered

whether a trial court could ever consider an ineffectiveness claim in the

context of post-sentence motions, and, concomitantly, whether this Court

could entertain the claim on direct appeal. The Court concluded that a trial

court    may    permit    review    of   an    ineffectiveness   claim    in    only    two

circumstances.       First,   the   Court      observed   that   “there   may      be    an

extraordinary case where the trial court, in the exercise of its discretion,



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determines that a claim (or claims) of ineffectiveness is both meritorious and

apparent from the record so that immediate consideration and relief is

warranted.”   Holmes, supra at 577.      Second, the Court permitted a trial

court, in its discretion, and “for good cause shown,” to review an

ineffectiveness claim so long as it was “accompanied by a waiver of PCRA

rights appropriately tailored.” Id. at 578. The Court emphasized that a trial

court could agree to review an ineffectiveness claim “only upon good cause

shown and after a full PCRA waiver colloquy.” Id. at 580. Indeed, the Court

underscored that the trial court’s discretion was contingent upon a waiver

of PCRA review.    Id.   Beyond these two scenarios, ineffectiveness claims

must be deferred to collateral review.

      We find that the procedural rule established in Grant and modified in

Holmes must be observed in order for this Court to exercise jurisdiction

over a claim of ineffective assistance of counsel on direct appeal. Although

the trial court addressed Appellant’s claim on the merits after holding a

hearing, permitting further review, even for the sake of judicial economy,

would create an exception to Grant in contravention to prevailing case law.

The Supreme Court has made it abundantly clear that any exception to

Grant’s general rule must be furnished by the High Court.                See

Commonwealth v. Liston, 977 A.2d 1089, 1094 (Pa. 2009) (stating “we

have explicitly reiterated the general rule in Grant and further directed that

any exception to that general rule be accomplished only by this Court[.]”).

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Thus, as the Holmes exceptions establish a procedural requirement, the

trial court’s failure to ensure this matter was procedurally sound must be

remedied if this Court is to exercise jurisdiction over the matter.

      Here, Appellant failed to establish either of the Holmes’ exceptions.

First, we observe that the trial court did not find that Appellant’s claim was

meritorious. Since it scheduled a hearing on the matter, it failed to find the

merits of the claim were apparent based upon the existing record.        Thus,

neither of the two elements of the first Holmes exception was met.

Likewise, the record does not indicate that Appellant waived his rights to

collateral review. Therefore, Appellant did not fulfill the procedural dictates

enumerated in Holmes to properly raise a claim of counsel’s ineffectiveness

before the trial court.   Accordingly, we retain jurisdiction and remand this

matter to permit Appellant, if he so chooses, to waive his rights to PCRA

review under Holmes, and permit the trial court to assess that waiver.

Failing this, we cannot entertain the merits of Appellant’s ineffectiveness

claim presented herein.

      Case remanded with instructions. Jurisdiction retained.

      Judge Solano joins the memorandum.

      President Judge Emeritus Bender files a dissenting memorandum.




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