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PA: Post Conviction Relief: Too Often Overlooked

Kornicki v. Cherniack, 2006 WL 6049500 (2006).

PA: Underlying criminal defense 

Student Contributor: Laura Binski

Facts: In May of 2000, Kornicki (the client) was found to have violated his probation and sentenced to 7 to 14 years in prison. In 2003, Cherniack (the lawyer) was appointed to represent the client. On behalf of the client, the lawyer filed a Post Conviction Relief Act (PCRA) petition. The court denied the petition. The client sued the lawyer for legal malpractice, claiming that the lawyer was negligent because she failed to raise the issue of credit for time served in the client’s PCRA petition. The trial court sided with the lawyer and dismissed the client’s legal malpractice claim. The client now appeals the court’s decision.

Issue: Was the trial court correct to favor the lawyer’s argument that she did not commit malpractice because she was not allowed to bring up credit for time served in the PCRA petition?

Ruling: Yes. The trial court ruled correctly in favor of the lawyer because under Pennsylvania law, lawyers are not permitted to challenge credit for time served in a PCRA petition because it is not the proper forum to do so. Instead, this type of claim must be raised in the Commonwealth Court against the Bureau of Corrections or in a writ of habeas corpus. Thus, the lawyer was not negligent and acted properly by not bringing up this issue in the wrong forum.

Lesson: In order to establish a legal malpractice claim in a criminal case, a client must show (1) employment of the lawyer, (2) the lawyer’s negligent disregard of the client’s interests, (3) that if not for the lawyer’s conduct, the client would have received an acquittal or dismissal, (4) existence of damages, and (5) that the client has sought post-trial remedies for the lawyer’s mistakes. Since the lawyer in this case could not have appropriately raised the miscalculation of credit issue due to the improper forum, the client failed to meet all of the above requirements.  

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Posted in: Criminal Law, Pennsylvania