For the Defense - Volume 3, Issue 1 - 2018 - 32

showed that he asked trial counsel to prepare an
affidavit explaining his strategy, but the request
was denied. The case was remanded for an
evidentiary hearing.

Superior Court of Pennsylvania
Decisions
Commonwealth v. Chester, 163 A.3d 470 (Pa.
Super. 2017) (Philadelphia County). Allegation
of abandonment by counsel in failing to file a
requested direct appeal was sufficient to invoke
newly-discovered fact exception to the PCRA's
timeliness requirement.
The Court held that, while defendant's PCRA
petition was facially untimely because it was
filed more than one year after the judgment of
sentence became final, defendant successfully
invoked the newly-discovered fact exception at
42 Pa.C.S. § 9545(b)(1)(ii) through his claim that
(1) probation-revocation counsel abandoned him
by failing to file a requested direct appeal and (2)
defendant did not learn that probation counsel
failed to timely file a notice of appeal until he
received a letter from the Public Defender's
Office nearly two years after his judgment
became final.
While the allegations in defendant's petition
"sufficiently invoked the timeliness exception
at section 9545(b)(1)(ii)," the Court explained
that defendant was nevertheless still required
to "prove that the facts [relating to counsel's
abandonment] were [previously] unknown to him
and that he could not uncover the facts earlier
with due diligence." As such, the Court remanded
with instructions for the PCRA court to hold an
evidentiary hearing.
Commonwealth v. Domek, 167 A.3d 761 (Pa.
Super. 2017) (Allegheny County). Counsel was
ineffective in failing to object to jury instruction
that permitted the jury to convict defendant
under a lesser mens rea standard.
In his PCRA petition, defendant challenged
trial counsel's failure to object to an inaccurate
jury charge. Specifically, trial counsel failed
to object to the court's aggravated assault
instruction under 18 Pa.C.S. § 2702(a)(3),
which erroneously told the jury that it could
find defendant guilty if it believed defendant

32

For The Defense

l

Vol. 3, Issue 1

recklessly caused bodily injury. The instruction
was incorrect because the mens rea required to
convict under this subsection is intentionally or
knowingly, not recklessly. Though the PCRA court
dismissed defendant's petition without a hearing,
the Superior Court reversed and remanded for
a new trial. In doing so, the Court implicitly
accepted defendant's argument that there could
have been no reasonable basis for trial counsel's
failure to object to the instruction, because
there was no possible benefit to the defendant
in allowing the jury to convict him under a
less onerous standard of culpability. Further,
defendant established prejudice because the jury
acquitted him of assault by prisoner, an offense
requiring a finding that defendant intentionally
or knowingly caused bodily injury; as such, if the
jury had been properly instructed on the required
mens rea for aggravated assault, it's reasonably
likely that the jury likewise would have acquitted
defendant of that charge.
Commonwealth v. Green, 168 A.3d 173 (Pa.Super.
2017) (Philadelphia County). Counsel ineffective
for failing to adequately consult with defendant
about whether to appeal a suppression ruling
after the suppression issue was deliberately
preserved for appellate review.
In Roe v. Florez-Ortega, 528 U.S. 470 (2000),
the U.S. Supreme Court addressed counsel's duty
to consult with a client concerning the filing
of an appeal when the client has not clearly
conveyed one way or the other whether he
desires to do so. Though the Court declined to
impose either a per se duty to file an appeal
or a per se duty to consult with a client about
whether to file an appeal, it noted that in the
vast majority of cases, at least a consultation is
necessary, and where no consultation takes place,
reviewing courts must ask whether the failure
to consult constitutes ineffective assistance. In
Green, the Superior Court applied the FloresOrtega framework to determine whether trial
counsel rendered deficient performance by
failing to adequately consult with his client
about whether to appeal an issue that had been
deliberately and expressly preserved for appellate
review - namely, the trial court's ruling denying
defendant's suppression motion.



Table of Contents for the Digital Edition of For the Defense - Volume 3, Issue 1 - 2018

Contents
For the Defense - Volume 3, Issue 1 - 2018 - 1
For the Defense - Volume 3, Issue 1 - 2018 - 2
For the Defense - Volume 3, Issue 1 - 2018 - Contents
For the Defense - Volume 3, Issue 1 - 2018 - 4
For the Defense - Volume 3, Issue 1 - 2018 - 5
For the Defense - Volume 3, Issue 1 - 2018 - 6
For the Defense - Volume 3, Issue 1 - 2018 - 7
For the Defense - Volume 3, Issue 1 - 2018 - 8
For the Defense - Volume 3, Issue 1 - 2018 - 9
For the Defense - Volume 3, Issue 1 - 2018 - 10
For the Defense - Volume 3, Issue 1 - 2018 - 11
For the Defense - Volume 3, Issue 1 - 2018 - 12
For the Defense - Volume 3, Issue 1 - 2018 - 13
For the Defense - Volume 3, Issue 1 - 2018 - 14
For the Defense - Volume 3, Issue 1 - 2018 - 15
For the Defense - Volume 3, Issue 1 - 2018 - 16
For the Defense - Volume 3, Issue 1 - 2018 - 17
For the Defense - Volume 3, Issue 1 - 2018 - 18
For the Defense - Volume 3, Issue 1 - 2018 - 19
For the Defense - Volume 3, Issue 1 - 2018 - 20
For the Defense - Volume 3, Issue 1 - 2018 - 21
For the Defense - Volume 3, Issue 1 - 2018 - 22
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For the Defense - Volume 3, Issue 1 - 2018 - 24
For the Defense - Volume 3, Issue 1 - 2018 - 25
For the Defense - Volume 3, Issue 1 - 2018 - 26
For the Defense - Volume 3, Issue 1 - 2018 - 27
For the Defense - Volume 3, Issue 1 - 2018 - 28
For the Defense - Volume 3, Issue 1 - 2018 - 29
For the Defense - Volume 3, Issue 1 - 2018 - 30
For the Defense - Volume 3, Issue 1 - 2018 - 31
For the Defense - Volume 3, Issue 1 - 2018 - 32
For the Defense - Volume 3, Issue 1 - 2018 - 33
For the Defense - Volume 3, Issue 1 - 2018 - 34
For the Defense - Volume 3, Issue 1 - 2018 - 35
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For the Defense - Volume 3, Issue 1 - 2018 - 37
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For the Defense - Volume 3, Issue 1 - 2018 - 42
For the Defense - Volume 3, Issue 1 - 2018 - 43
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For the Defense - Volume 3, Issue 1 - 2018 - 45
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For the Defense - Volume 3, Issue 1 - 2018 - 56
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol7_issue4_2022
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol7_issue3_2022
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol7_issue2_2022
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol7_issue1_2022
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https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol6_issue3_2021
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol6_issue2_2021
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol6_issue1_2021
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https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol5_issue3_2020
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol5_issue2_2020
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol5_issue1_2020
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol4_issue4_2019
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol4_issue3_2019
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol4_issue2_2019
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol4_issue1_2019
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol3_issue4_2018
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol3_issue3_2018
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol3_issue2_2018
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol3_issue1_2018
https://www.nxtbook.com/nxtbooks/pacdl/FORTHEDEFENSE_vol2_issue4_2017
https://www.nxtbook.com/nxtbooks/pacdl/FORTHEDEFENSE_vol2_issue3_2017
https://www.nxtbook.com/nxtbooks/pacdl/FORTHEDEFENSE_vol2_issue2_2017
https://www.nxtbook.com/nxtbooks/pacdl/FORTHEDEFENSE_vol2_issue1_2017
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol1_issue4_2016
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol1_issue3_2016
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol1_issue2_2016
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol1_issue1_2016
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