A blog of the Philadelphia Bar Association’s Criminal Justice Section

By Burt Rose

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The Supreme Court of Pennsylvania has decided the case of COMMONWEALTH of Pennsylvania, Appellant v. Jules JETTE, 2011 WL 2464780, No. 40 EAP 2009 (June 22, 2011). This was an appeal from the Order and Opinion of the Superior Court, 965 A.2d 296 (Table),
No. 2834 EDA 2006, dated December 11, 2008, vacating and remanding the order of the Philadelphia County Court of Common Pleas, Criminal Division, No. 0101–1188 1/1, dated September 28, 2006. Justice ORIE MELVIN wrote the Opinion for the Court.

On October 1, 2001, following a bench trial, the Appellee was found guilty of involuntary deviate sexual intercourse, endangering the welfare of a child, and corruption of minors for repeated sexual assaults against an eight-year-old boy. Appellee was sentenced to a term of imprisonment of ten to twenty years, with consecutive terms of probation of seven and five years. On direct appeal, Appellee, who was represented by new counsel, challenged the sufficiency of the evidence and trial counsel’s effectiveness in failing to move to dismiss the charges due to pre-arrest delay. The Superior Court affirmed in a published opinion filed on February 24, 2003, and the Court denied allocatur on September 3, 2003. Commonwealth v. Jette, 818 A.2d 533 (Pa.Super.2003), appeal denied, 833 A.2d 141 (Pa.2003).

Appellee filed timely pro se PCRA petitions. Counsel was appointed, who subsequently filed a no-merit letter. Appellee responded by filing lengthy objections to counsel’s no-merit letter. On September 28, 2006, the PCRA court dismissed Appellee’s PCRA petition finding no merit to any of the claims raised. Appellee filed an appeal with the Superior Court, and counsel filed a brief on Appellee’s behalf asserting that the PCRA court erred in failing to find that trial counsel was ineffective for failing to object to certain evidence. When counsel chose not to pursue other issues that had been presented to the PCRA court, the Appellee filed a pro se petition for remand raising counsel’s ineffectiveness for not pursuing all of the issues Appellee wished to have reviewed on appeal. The Superior Court denied the pro se petition but directed counsel to file a petition for remand responding to Appellee’s ineffectiveness claims. Ultimately, the Superior Court found that Appellee was entitled to appointment of new counsel and remanded the case to the PCRA court.

The issue was whether the Superior Court erred in requiring court-appointed PCRA counsel to file a petition for remand to address claims asserted in a pro se petition for remand that challenged counsel’s choice of issues and representation on appeal.

Justice Orie Melvin ruled that, absent a motion for change of counsel where the appellant can demonstrate he has an irreconcilable difference with counsel, a timely petition for self-representation or the retention of private counsel, the appellant must remain with appointed counsel through the conclusion of the appeal. The proper judicial response to any pro se pleading is to refer the pleading to counsel, and to take no further action on the pro se pleading unless counsel forwards a motion. Moreover, once the brief has been filed, any right to insist upon self-representation has expired. Accordingly, the Superior Court’s creation of another option, i.e., to seek appointment of new counsel by requiring current counsel to file a petition for remand, was contrary to precedent and was disapproved.

The Criminal Justice Section Student Research Center is open to help you in your court appointed and CJA cases. The hours of operation are Monday through Thursday from 9 a.m. to 3 p.m. The SRC, located in Room 303 of the Criminal Justice Center (The Jack Meyer’s lawyer’s lounge), offers free case law research for court appointed and CJA counsel. The research is provided by law students from local area law schools. Attorneys wishing to request research assistance on a court appointed case can do so either by visiting the lawyer’s lounge directly and meeting with a law student in person or they may submit a research request online at http://www.philadelphiabar.org/page/CJResearch?appNum=1. To make sure a law student will be available for your project, first contact the lounge at 3-7538 or 3-7539 (CJC internal only) or phillysrc1@gmail.com to check student availability.

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