Closing Direct Appeal to Ineffectiveness Claims: The Pennsylvania Supreme Court's Denial of State Constitutional Rights

48 Pages Posted: 2 Sep 2011

Date Written: September 1, 2011


The article addresses an important issue involving rights protected by the Pennsylvania Constitution. Today, thousands of defendants in Pennsylvania are denied any opportunity to challenge their convictions on the grounds that their trial lawyer was ineffective. This occurs even though the Pennsylvania Constitution guarantees every defendant the right to direct appeal. The fact that an increasingly large number of defendants are without a remedy to protect their right to effective assistance of counsel at trial is the result of the Pennsylvania Supreme Court’s decision to bar direct appeals of claims of trial counsel ineffectiveness and instead, defer such claims to the statutory post-conviction process which is closed to defendants who are no longer in custody. If a defendant receives a sentence of short duration, increasingly common in Pennsylvania (more than 14,000 sentences imposed in 2009 were for less than one year), and the defendant completes his sentence while direct appeal or the post-conviction process is pending, the defendant has no remedy to challenge the effectiveness of trial counsel.

The attached article argues that the Pennsylvania Supreme Court’s decision in O’Berg to reject an exception to the rule closing direct appeal to ineffectiveness claims for defendants who receive sentences of short duration unconstitutionally denies such defendants their rights under the Pennsylvania Constitution to direct appeal and to due process and equal protection of the laws. Simply put, the judiciary exceeds its rule making authority under the Pennsylvania Constitution when it deprives defendants with short sentences of the constitutional right to appeal if there is no alternative procedure for review of ineffectiveness claims available.

Because defendants with short sentences have a constitutional right to a post-trial forum to present their claims of trial counsel ineffectiveness, the article argues that until a short-sentence exception to the deferral rule is recognized, defendants with short sentences are entitled to present their ineffectiveness claims to the trial court by petition for writ of coram nobis. The article further argues that defendants unable to obtain state court review of their ineffectiveness claims should seek declaratory relief in a civil rights action on grounds that Pennsylvania Supreme Court’s rule of deferral unconstitutionally restricts their right under the Pennsylvania Constitution to direct appeal.

Suggested Citation

Place, Thomas M., Closing Direct Appeal to Ineffectiveness Claims: The Pennsylvania Supreme Court's Denial of State Constitutional Rights (September 1, 2011). Available at SSRN: or

Thomas M. Place (Contact Author)

Penn State Law ( email )

Katz Building
University Park, PA 16802
United States

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