Ineffective Assistance of Counsel Claim Under the Post Conviction Relief Act

In Commonwealth v. Wolfe, 398 Pa. Super. 94, 580 A.2d 857 (Pa. Super. 1990), the appellant's prior appellate counsel had filed a timely direct appeal on behalf of the appellant that did not result in a decision in the appellant's favor. After receiving the decision of this Court on the appeal, the appellant sought to challenge the ineffectiveness of his prior counsel for failing to preserve any challenge to the discretionary aspects of sentencing. Specifically, the appellant raised the following concerns. First, whether his appellate counsel was ineffective for failing to raise the issue of ineffectiveness of his trial counsel for failing to raise and preserve the excessiveness of sentence. Secondly, the same layered ineffectiveness as to the failure of the trial judge to indicate on the record the court's interpretation of the sentencing guidelines. Thirdly, the same layered ineffectiveness as to the failure of the trial judge to state sufficient reasons on the record why the sentence exceeded the guidelines. Wolfe, 580 A.2d at 858. In addition, the petitioner contended that his appellate counsel was ineffective in failing to present mitigating evidence at sentencing. Id. The Court held in Wolfe that the claims of a petitioner under the Post Conviction Relief Act (PCRA), that both prior appellate and trial counsel had been ineffective in failing to challenge the discretionary aspects of his sentence, were not cognizable under the PCRA. The Court found that the petitioner's claims failed to meet the requirement of the PCRA that counsel's ineffectiveness "so undermined the truth determining process that no reliable adjudication of guilt or innocence could have taken place." 42 Pa.C.S.A. 9543(a)(2)(ii). The Court held: As appellant's instant claim relates only to ineffective assistance in failing to challenge discretionary aspects of sentence, and because no ineffective assistance of counsel claims may be heard under the PCRA unless such claim would undermine the truth determining process so as to render unreliable the adjudication of guilt or innocence, appellant's claim is not herein reviewable. Wolfe, 580 A.2d at 860.