Counsel must consult with client about appeal rights even after a negotiated sentence is imposed if there are appealable issues

Commonwealth v. Rivera, 2017 PA Super 14  ___ A.3d ____ (Pa. Super. Ct. 1/18/2017)

In this case, counsel was held ineffective for failing to discuss, “sua sponte,” whether her client should file an appeal because his sentence— a mandatory sentence now deemed illegal pursuant to Alleyne v. United States, ___ U.S. ____, 133 S.Ct. 2151 (U.S. 2013). The Superior Court affirmed the PCRA court’s reinstatement of the defendant’s post-sentence and appellate rights. The case is significant because it marks a departure from Commonwealth v Reichle, 589 A.2d 1140 (Pa. Super. 1991) which held that when a defendant receives a sentence in accordance with a plea bargain, counsel is not obligated to discuss an appeal with his client. (Reichle’s authority is suspect in the wake of  Roe v. Flores-Ortega, 528 U.S. 470 (2000) and Commonwealth v. Touw, 781 A.2d 1250 (Pa. Super. 2001).) Mr. Rivera did receive the sentence he bargained for, but it was an illegal sentence due to Alleyne v. United States, ____U.S. ___133 S.Ct. 2151 (U.S. 2013).  While counsel was not ineffective for advising her client to agree to an illegal sentence because at the time the law on the matter was far for clear and she achieved a significant reduction of charges in return, she was ineffective for failing to consult with him about an appeal because, notwithstanding the Commonwealth’s and Common Pleas Court’s honoring of the agreement, there was an appealable issue due to Alleyne

The Court rejected the Commonwealth’s argument that Mr. Rivera could seek relief by way of a PCRA challenge to the sentence, noting that due to Commonwealth v. Washington, 142 A.3d 810, 820 (Pa. 2016), he might not be able to overturn the sentence on collateral appeal. By reinstating the direct appeal, he could challenge the legality of the sentence.

Counsel should always discuss appeal rights with clients after sentence and record their understanding of what the client wants to do.  Commonwealth v. Touw contains the best explanation of counsel’s obligations under Article V, §9 of the Pa. Constitution to “consult” with a client about an appeal.

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