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    Pennsylvania Post Conviction Relief Act (PCRA) Petition – Ineffective Assistance of Counsel (IAC) During Plea Bargaining

    Last updated: October 19, 2021

    Defendants in Philadelphia criminal cases who are convicted of a crime in Pennsylvania may file a Pennsylvania Post Conviction Relief Act (PCRA) petition to appeal the conviction. PCRA petitions are not the same as direct appeals; rather, they are an indirect method of appeal in criminal cases.

    A defendant can file a direct appeal from the Court of Common Pleas, where he/she is convicted, to the Superior Court.  A PCRA petition is an indirect appeal, essentially asking the court to reconsider the accused’s conviction after a direct appeal to the Superior Court was unsuccessful.

    However, a defendant can also file a PCRA petition after he/she is convicted of a crime in the Court of Common Pleas.  They do not have to file a direct appeal before filing a PCRA petition.

    Criminal appeal cases accepted in Philadelphia, Delaware County, Chester County, Montgomery County & Scranton/Lackawanna County. FREE CONSULTATIONS (215) 564-0644

    42 Pa. Cons. Stat. § 9541 et. seq. specifically spells out when convicted defendants may file PCRA petitions, and some of the limited grounds for appeal include:

    • ineffective assistance of counsel
    • prosecutorial misconduct (i.e., a Brady violation)
    • unlawful guilty plea
    • newly discovered evidence
    • an illegal sentence (i.e., falls outside the maximum allowed under Pennsylvania law)

    For a discussion on some of these claims, see What Claims can be made in a Pennsylvania Post Conviction Relief Act Petition?

    Ineffective Assistance of Counsel (IAC) During Plea Bargaining

    Ineffective assistance of counsel is when the defense attorney’s performance falls below an objective standard of reasonableness when representing his/her client.  There are many different ways a criminal defense lawyer can be ineffective, and this article will address when a lawyer is ineffective during the plea bargaining process.

    Before a criminal case goes to trial or during trial, the prosecutor and the defendant, under his/her lawyer’s guidance may enter into a plea bargain.  For example, if the defendant is charged with multiple charges, the prosecutor may drop some of the charges if the defendant pleads guilty to one of the charges or pleads guilty to the original charge in return of a more lenient sentence as opposed to the mandatory sentence.  When the prosecutor and the defendant enter into a plea bargain, a criminal trial is avoided, thus eliminating the risk of defendant being convicted at trial for a more serious charge.  When the prosecutor offers a plea, the defendant’s lawyer must explain what the offer means and provide advice to the defendant.

    Consider the following scenario: A defendant is charged with Possession with Intent to Deliver (PWID).  The DA’s office offers a plea, with a sentence less harsh than the mandatory sentencing.  Defendant’s lawyer fails to inform him of the favorable plea offer, and a jury finds him guilty of PWID.  He later receives a sentence much harsher than the plea bargain.

    In this situation, the defendant may file a PCRA petition for his counsel’s ineffective assistance during the plea bargaining process.

    Related: PA Criminal Appeals Law – The Basics of Pennsylvania’s Post Conviction Relief Act Part 2

    Pennsylvania Criminal Lawyer PCRA & Appeals – FREE Consultations

    The Nenner Law Firm handles PCRA petitions and appeals. If you have questions about filing a PCRA petition relating to ineffective assistance of counsel, it is important to talk to an experienced criminal defense trial lawyer who has experience handling PCRA petitions and appeals.

    Firm founder David Nenner has over 30 years of criminal trial experience. Call (215) 564-0644 for a free consultation.

    David S. Nenner

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