Post-Conviction Relief • Ineffective Assistance of Counsel • Collateral Consequences of Plea Agreements
Commonwealth v. Lippert, PICS Case No. 14-0285 (Pa. Super. Feb. 13, 2014) Strassburger, J. (13 pages).
Where trial counsel misinforms defendant as to the collateral consequences of his guilty plea, such misinformation may constitute cognizable ineffective assistance of counsel sufficient to sustain a PCRA claim. Vacated and remanded.
Appellant Eric Lippert entered a plea of nolo contendere to one count of indecent assault. Lippert alleged that his trial counsel informed him that he would not have to register as a sex offender as a result of his plea; however, the state legislature had already passed a law that, when it later came into effect, required Lippert to register as a sex offender. Lippert brought a PCRA petition alleging that his guilty plea was unknowing, involuntary, and/or unintelligent and alleging ineffective assistance of counsel based on his trial counsel’s misinformation as to the collateral consequence of his plea.
After the PCRA court dismissed his petition without evidentiary hearing, Lippert appealed to the instant court. The PCRA court and Commonwealth argued that Lippert had waived his appellate issues as a result of vagueness in his Pa.R.A.P. 1925(b) statement. The instant court noted that Lippert’s witness certification was technically deficient in several ways, but that the PCRA court failed to allow Lippert to correct the deficiencies. The instant court also found that Lippert’s 1925(b) statement, while somewhat vague, is clear enough to provide sufficient notice of the issues Lippert intended to raise on appeal; therefore, Lippert had not waived his appellate issues.
In support of his claim of ineffective assistance of counsel, Lippert alleged that, had he known prior to entering his plea that he would have to register as a sex offender, he would have not entered a plea but insisted on going to trial.
The commonwealth argued that Lippert’s claim was without merit, asserting that knowledge of the registration requirement was collateral to the guilty plea, and lack of knowledge of collateral consequences cannot undermine a guilty plea. The commonwealth also argued that, as the registration requirement was not yet in effect at the time of Lippert’s plea, it would have been unforeseeable by his trial counsel that Lippert would ultimately have to register as a sex offender.
The court agreed with the commonwealth’s assertion that lack of knowledge of collateral consequences cannot undermine a guilty plea. However, the court found that in the instant case, Lippert did not lack knowledge of the consequence that he would have to register as a sex offender, nor did his counsel fail to inform him of such consequence. Instead, Lippert was misinformed by his trial counsel that he would not have to register as a sex offender as a result of his plea; the court ruled that, in contrast to lack of knowledge of collateral consequences, such a claim has arguable merit. The court also rejected the commonwealth’s argument that Lippert’s trial counsel could not foresee changes in the sex offender registration requirements, noting that the statute authorizing the change was passed several months before Lippert entered his plea.