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

seal_colorBy Burt Rose

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I just read a decision of the Superior Court of Pennsylvania issued on Feb. 13, 2014,   in the case of COMMONWEALTH of Pennsylvania v. Eric LIPPERT, Appellant, 739 WDA 2013, 85 A.3d 1095, 2014 PA Super 25The Judges were FORD ELLIOTT,  WECHT, andSTRASSBURGER, who wrote the Opinion.

Following his conviction on plea of nolo contendere of indecent assault, petitioner sought relief under the Post Conviction Relief Act. The Court of Common Pleas of Allegheny County, Criminal Division, CP–02–CR–0005996–2011, per Judge Rangos, summarily dismissed the petition and the Petitioner appealed.

Appellant had pled nolo contendere to indecent assault, 18 Pa.C.S. § 3126(a)(1), on May 3, 2012. On December 20, 2011, Pennsylvania enacted SORNA which characterizes Subsection 3126(a)(1) as a Tier I sexual offense and that requires individuals convicted of a Tier I sexual offense to register with the Pennsylvania State Police for 15 years. While this law was not in effect when Appellant entered his plea, the law had been enacted several months prior to the plea.


Appellant’s sole claim was that plea counsel was ineffective for misleading and misinforming him that he would not have to register as a sexual offender if he entered his plea of nolo contendere. If Appellant can prove that counsel misinformed him about the consequences of his plea, this claim would have arguable merit. As clear as the law is that counsel’s omission to mention a collateral consequence of a guilty plea does not constitute ineffective assistance of counsel, it is equally clear that counsel’s assistance is constitutionally ineffective when counsel misapprehends the consequences of a given plea and misleads his client accordingly about those consequences, without regard to whether the consequences in question are “direct” or “collateral.”

Therefore, the Appellant was entitled to an evidentiary hearing in order to attempt to prove his claim. The Superior Court vacated the order dismissing Appellant’s PCRA petition and remanded the matter to the PCRA court.


Lee T. Bickerton of Pittsburgh represented the Appellant.


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