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

By Burt Rose
Click to read Opinion S21012_11
THE SUPERIOR COURT OF PENNSYLVANIA has decided the case of COMMONWEALTH OF PENNSYLVANIA v. GEORGE HAROLD FINK, SR., Appellant, No. 1808 MDA 2010, J-S21012-11, 2011 PA Super 141 (7/7/11). This was a PCRA appeal from the Court of Common Pleas of Luzerne County Criminal Division at No. CP-40-CR-0001974-2006. The Panel was composed of Judges

BENDER, FREEDBERG and COLVILLE. Judge Bender wrote the Opinion.

In the direct appeal of his case, the Superior Court affirmed after finding that Fink’s brief was insufficient to advocate his Miranda claim regarding his police statement. Commonwealth v. Fink, No. 451 MDA 2008, unpublished memorandum (Pa. Super. 2009). Fink then filed the PCRA petition underlying this appeal, requesting that the trial court reinstate his right to direct appeal so that new counsel might have an opportunity to develop his claim in a proper advocate’s brief. The petition was denied.

In this pro se appeal, Fink contended that the inadequacy of counsel’s brief to the Court on direct appeal rendered his

representation ineffective per se, so that his appeal counsel should be presumed ineffective, his post-conviction claim of IAC should have been granted and his right to direct appeal must be reinstated nunc pro tunc.

Judge Bender agreed. Application of the Cronic per se default standard for briefing deficiencies on direct appeal depends on the extent to which the Superior Court had considered the merits of the claims. If no merits analysis was conducted, then there has been a waiver of the issue that was due to counsel’s failure to file a competent brief or other procedural default. Under such circumstances, the defendant would be eligible for post-conviction relief on resulting IAC claims without having to satisfy the usual three-pronged test imposed by the Strickland/Pierce line of cases.

The Panel concluded that Fink was entitled to the presumption that he was constitutionally prejudiced by counsel’s omissions on direct appeal and that he was thereby entitled to reinstatement of his direct appeal right.

Judge Colville filed a dissenting opinion.

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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