[27 Pa.B. 4298]
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FINAL REPORT
New Pa.Rs.Crim.P. 1500 and 1509; Renumbering Rule 1509 as 1510; Amendments to Pa.Rs.Crim.P. 1501--1508, 1510
PROCEDURES UNDER THE POST CONVICTION RELIEF ACT I. Introduction
On August 11, 1997, upon the recommendation of the Criminal Procedural Rules Committee, the Supreme Court of Pennsylvania adopted new Rules of Criminal Procedure 1500 (Scope) and 1509 (Procedures for Petitions in Death Penalty Cases; Hearing; Disposition), renumbered present Rule 1509 as 1510, and amended Rules 1501--1508 and 1510, effective immediately.1
The changes to Chapter 1500 serve three purposes. First, they align the rules and Comments with the 1995 statutory amendments to the Post Conviction Relief Act (hereinafter PCRA). Second, several additions to the Comments are intended to alert judges and lawyers to new provisions under the PCRA related to pleading and discovery. Third, the changes fill in the procedural gaps created by the suspension of the Capital Unitary Review Act, 42 Pa.C.S. §§ 9570--9579 (hereinafter CURA).
This Final Report highlights the Committee's considerations in formulating these amendments.2
II. Background
Chapter 1500 provides the procedural framework for proceedings under the PCRA, as it did for the Post Conviction Hearing Act. As such, the rules contained in Chapter 1500 have served, over time, to implement the various procedures for collateral review established by the Legislature.
In 1995, the Governor signed into law Act 1995-32(SS1), effective January 16, 1996. This Act amended the PCRA, 42 Pa.C.S. §§ 9542--9546, and enacted CURA, 42 Pa.C.S. §§ 9570--9579. Early in 1996, the Committee reviewed Act 1995-32 (SS1), and agreed that changes to Chapter 1500 were necessary to align Rules 1501--1509 with the amendments to the PCRA.
III. Discussion
1. Substitution of ''petition'' for ''motion'' throughout Chapter.
When new Chapter 1500 was drafted in 1988, see 18 Pa.B. 4235 (September 17, 1988), the Committee agreed to use the term ''motion'' throughout Chapter 1500 in accordance with the Court's express preference for that term. Id., at 4240. After reviewing the rules in Chapter 1500 and the 1995 PCRA amendments, the Committee concluded that the use of the term ''motion,'' while contributing to uniformity in one way, was confusing in light of the PCRA's consistent use of the word ''petition.'' For this reason, the term ''petition'' replaces ''motion'' throughout Chapter 1500. This is the only change in the text of Rules 1503--1505 and Rule 1510.
2. Rule Changes
a. New Rule 1500 (Scope)
New Rule 1500 references the PCRA as amended in 1995, and makes it clear that the rules in Chapter 1500 apply to capital and noncapital cases under the PCRA.
b. Rule 1501 (Initiation of Post-Conviction Collateral Proceedings)
Present Rule 1501 contains the filing procedures for initiating PCRA proceedings. The text of the rule has been amended by the addition of a new paragraph (1), which implements the time limits for filing PCRA petitions mandated by 42 Pa.C.S. §§ 9545(b)(1) and (2).
The Rule 1501 Comment has been expanded to alert the reader to several of the PCRA amendments related to the initiation of PCRA proceedings.
(a) There is a new paragraph cautioning about the statutory prohibition on entertaining a request for any form of relief in anticipation of the filing of a PCRA petition. See 42 Pa.C.S. § 9545(a). In addition, in view of the applicability of the rules to capital and noncapital cases under the PCRA, a cross-reference to the statutory provision for stays of execution has been included. See 42 Pa.C.S. § 9545(c).
(b) As explained in greater detail in the discussion of Rule 1502(e), in section c below, the rules address discovery in capital and noncapital cases, and provide a separate ''good cause'' discovery standard for the first counseled petition in a death penalty case. Cf. 42 Pa.C.S. § 9545(d)(2). In all other cases, the statutory prohibition on discovery at any stage of the proceedings, except upon leave of court with a showing of exceptional circumstances, would apply. This is made clear in the Comment, which includes a cross-reference to Rule 1502(e)(1), which implements 42 Pa.C.S. § 9545(d)(2), and to Rule 1502(e)(2).
(c) Several new paragraphs in the Comment summarize the new PCRA timing requirements.
(i) The Comment refers the reader to the general one-year time limit for petitions filed on or after the effective date of the amendments to the PCRA, 42 Pa.C.S. § 9545(b)(1), and to the exceptions to that requirement, 42 Pa.C.S. §§ 9545(b)(1)(i)--(iii) and 42 Pa.C.S. § 9545(b)(2).
(ii) The Comment also references the timing provision for those petitioners whose judgment became final on or before the effective date of the amendments, i.e., the petition is deemed to have been timely filed if the first petition is filed within one year of the effective date of the Act. See Act 1995-32(SS1), Section 3.
(iii) Finally, the Comment contains a cross-reference to 42 Pa.C.S. § 9545(b)(3), explaining that, for the purposes of the PCRA, a judgment becomes final at the conclusion of direct review, which includes discretionary review in the Supreme Court of the United States and the Supreme Court of Pennsylvania.
c. Rule 1502 (Content of Petition for Post-Conviction Collateral Relief; Request for Discovery)
(1) Discovery
The Committee extensively discussed the issue of discovery in the context of PCRA proceedings in view of both 42 Pa.C.S. § 9545(d)(2), which prohibits discovery except upon leave of court with a showing of exceptional circumstances, and 42 Pa.C.S. § 9573(d), which provides, for first petitions in death penalty cases, that ''[d]iscovery shall be permitted, and no reasonable discovery request of the petitioner shall be denied except upon demonstration of exceptional circumstances justifying denial of discovery requests.'' We considered whether discovery should be addressed in the rules, particularly in view of the suspension of CURA, and if so, what the standard should be--the more flexible standard of 42 Pa.C.S. § 9573(d), or the stricter standard of 42 Pa.C.S. § 9545(d)(2). Ultimately, the Committee settled upon a compromise position, as reflected in paragraphs (a)(16) and (e).
Paragraph (a)(16) requires that any request for discovery must be made in the petition. Paragraph (e)(2) provides that for the first counseled petition only in a death penalty case, a ''good cause'' standard applies, i.e., a standard less stringent than § 9545(d)(2) but stricter than § 9573(d). In all other cases, paragraph (e)(1) applies the stricter standard in § 9545(d)(2).
These new provisions are underscored in the Comment. In addition, the Comment explains that ''first counseled petitions'' as used in paragraph (e)(2) include petitions on which a petitioner elects to proceed pro se. The Committee agreed that the new discovery standard in death penalty cases should also apply when a defendant elects to proceed pro se.
(2) In addition to the changes related to discovery, the text of Rule 1502, which, inter alia, sets forth in considerable detail the requisite contents of a PCRA petition, has been amended in several other ways.
(a) First, paragraph (8) has been amended to require that the petition include the court, caption, term, and number of any prior post-conviction proceedings in the case. This provision is intended to alert the parties to the stricter standards for second and subsequent petitions enunciated in the new Rule 1502 Comment reference to Commonwealth v. Lawson and Commonwealth v. Szuchon, explained in detail in paragraph (3)(d) below.
(b) Paragraph (a)(15) implements 42 Pa.C.S. § 9545(d)(1), which requires, if the petitioner wants an evidentiary hearing, that the petitioner include that request in the petition, accompanied by (1) a signed certification as to each intended witness, stating the witness's name, address, and date of birth, and the substance of the witness's testimony, and (2) any documents material to the witness's testimony.
(c) Paragraph (b) has been amended by the deletion of the word ''subsequent'' to make it clearer that if the defendant does not state a ground relied upon in the petition, the defendant may not raise it later in a proceeding on that petition or in a proceeding on any subsequent petition.
(3) The Comment has been revised in several ways.
(a) The first paragraph, which contains rule history, has been deleted as no longer necessary.
(b) The paragraph which discusses the sentencing information required by paragraph (a)(6) has been revised to more completely mirror the statute, 42 Pa.C.S. § 9543(a).
(c) The present Comment sets forth, verbatim, the pleading requirements contained in 42 Pa.C.S. § 9543(a)(2) prior to the 1995 amendments. These paragraphs have been completely deleted, and replaced with the provisions in 42 Pa.C.S. §§ 9543(a)(2)--(4), as amended in 1995. Because the Comment tracks the statute verbatim, in view of the suspension of CURA, and to minimize confusion, ellipses have been substituted for the ''unitary review'' language in paragraph (4), and a Note explaining the deletion follows the provision.
(d) The Committee considered whether it should incorporate language from Commonwealth v. Lawson, 549 A.2d 107, 112 (Pa. 1988), where appropriate, to address standards for second and subsequent petitions in order to avoid repeated filings of frivolous PCRA petitions. During the course of the Committee's discussion, we reviewed the reference to Commonwealth v. Lawson presently included in the Comment to Rule 1507(Disposition without Hearing), and considered whether the standards for second and subsequent petitions should be included in a rule, in a Comment, or both. Ultimately, we concluded that the explanation of the standards more appropriately belonged in a Comment. The Rule 1507 Comment has been revised accordingly, and identical language has been included in the Rule 1502 Comment.
d. Rule 1503 (Docketing and Assignment)
As explained in the discussion of Rule 1506(e) below, the Commonwealth is required to file an answer in response to the first counseled petition in a death penalty case. Rule 1506(e) has been cross-referenced in the Rule 1503 Comment.
e. Rule 1504 (Appointment of Counsel; In Forma Pauperis)
No substantive changes have been made to the rule. See discussion concerning petitions in Section 1 above.
f. Rule 1505 (Amendment and Withdrawal of Petition for Post-Conviction Collateral Relief)
The first paragraph of the Comment, which contains rule history, has been deleted as no longer necessary. Other changes to the Comment are stylistic only.
g. Rule 1506 (Answer to Petition for Post-Conviction Collateral Relief)
In order to facilitate the disposition of PCRA petitions in death penalty cases in view of the suspension of CURA, the Committee agreed, after much discussion, that the Commonwealth should be required to file an answer in response to the first counseled petition in a death penalty case, reasoning that the Commonwealth's answer should serve to hone the issues presented to the judge for disposition. See paragraph (e)(1). Paragraph (e)(2) makes it clear that the Commonwealth is not required to answer a second or subsequent petition in these cases unless ordered by the judge. Paragraph (e)(3) authorizes the judge to permit the Commonwealth to amend an answer.
Both this rule and new Rule 1509 (Procedures for Petitions in Death Penalty Cases: Hearing; Disposition) contain time limits intended to move death penalty cases forward in an orderly fashion. The time limits are derived from CURA. See, e.g., 42 Pa.C.S. §§ 9574, 9575(a), and 9576(a)--(c). Rule 1506(e)(1)(ii) requires Commonwealth answers to be filed in 120 days, but permits the judge to grant extensions of up to 90 days for each extension. The time limits imposed on the Commonwealth's answer, in turn, trigger the time limits for disposition in new Rule 1509.
The Comment includes an explanation of the general purpose of paragraph (e). In addition, the Comment explains that ''first counseled petitions'' as used in paragraph (e)(1) includes petitions on which a petitioner elects to proceed pro se. The Committee agreed that the requirement should still apply, because the rationale for requiring a Commonwealth answer on first counseled petitions, i.e., the answer will serve to hone the issues submitted to the judge for disposition, is equally valid in a pro se context.
h. Rule 1507 (Disposition Without Hearing)
There are two substantive changes to Rule 1507. First, Rule 1509 is excepted from the provisions of Rule 1507 to the extent that Rule 1509 contains timing requirements for the disposition of petitions in death penalty cases. Second, paragraph (d) has been amended to reflect changes in the PCRA requirements concerning the content of a court's order dismissing a petition without a hearing. Present paragraph (d) contains a requirement that when a judge dismisses a petition without a hearing, the judge must state, in the order, the grounds ''on which the case was determined.'' Pa.R.Crim.P. 1507(d)(1). This language was originally added to implement a statutory requirement to the same effect. See Committee Report at 18 Pa.B. 4239, 4242 (September 17, 1988). Because the 1995 PCRA amendments deleted this requirement, 42 Pa.C.S. § 9546, the Committee agreed to delete the parallel requirement from the rule.
The Rule 1507 Comment has been revised in several ways.
(a) The first paragraph containing rule history has been deleted as no longer necessary.
(b) A cross-reference to 42 Pa.C.S. § 9545(b) has been added to alert the reader to the timing requirements for second and subsequent petitions.
(c) As more fully discussed in the explanation of the Rule 1502 Comment above in Section c (3)(d), the paragraph concerning Commonwealth v. Lawson has been replaced by a new paragraph which incorporates the standards for disposition of second and subsequent petitions.
(d) Cross-references to Rule 1508 (Hearing) and to 42 Pa.C.S. § 9543(b) have been added to make it clear that a PCRA petition may be dismissed due to delay in filing only upon a Commonwealth motion to dismiss and only after a hearing.
(e) The paragraph referencing Rule 1508(d) has been deleted as unnecessary, because the provisions of Rule 1507(e), as amended, cover the applicable provisions of Rule 1508(d).
i. Rule 1508 (Hearing)
Formerly, Rule 1508(a) only required a hearing on issues of material fact raised by the petition and answer, if any. However, in view of the requirements of 42 Pa.C.S. § 9543(b) that there be a hearing whenever the Commonwealth moves to dismiss a petition due to the defendant's delay in filing the petition, paragraph (a) has been amended to incorporate this requirement.
Paragraph (d) sets forth the actions which the court must take at the conclusion of a hearing held under the rule. Paragraph (d)(1) has been amended to make it clear that the judge must determine all issues raised, not only issues raised by the defendant's petition, but also issues raised by the Commonwealth's answer, and issues raised by the Commonwealth's motion to dismiss, if any.
The requirement in paragraph (d)(2) that the judge state in the order the grounds on which the case was determined has been deleted, because this statutory requirement was deleted when the PCRA was amended in 1995. See 42 Pa.C.S. § 9546(b). Finally, paragraph (d)(3) has been deleted because the Committee's review of its history revealed that it was an anomaly inadvertently carried over from original Rule 1506, adopted in 1968.
The Rule 1508 Comment has been revised in several ways.
(a) The first paragraph, which was intended as an aid to the bench and bar when the rule was new, contains case law concerning what constitutes ''material issues'' under the rule. The Committee agreed that it was no longer necessary and should therefore be deleted.
(b) Several new paragraphs have been added to the Comment to highlight the 1995 amendments to the PCRA.
(i) The Comment underscores the statutory requirement that there must be a hearing on every Commonwealth motion to dismiss due to delay in the filing of a PCRA petition. See 42 Pa.C.S. § 9543(b).
(ii) A cross-reference to new Rule 1509, which provides the timing requirements for the hearing and disposition of petitions in death penalty cases, has been added.
(iii) The Comment cross-references the express statutory limitations on discovery, 42 Pa.C.S. § 9545(d)(2), and the exception in the rules for first counseled petitions in death penalty cases, Rule 1502(e)(2).
j. Rule 1509 (Procedures for Petitions in Death Penalty Cases: Hearing; Disposition)
In view of the suspension of CURA, and in keeping with the rationale for requiring a Commonwealth answer on the first counseled death penalty petition within 120 days, see Rule 1506(e) and 42 Pa.C.S. § 9574, the Committee concluded that there was a need--for all parties and for the judicial system as a whole--to impose time limits on the disposition of petitions in death penalty cases. To this end, the Committee agreed that there should be a separate rule, Rule 1509, governing hearings and dispositions in death penalty cases. We examined the timing provisions in CURA, 42 Pa.C.S. §§ 9575--9576, and agreed to incorporate similar requirements in new Rule 1509, which applies to first, second, and subsequent petitions in death penalty cases. Accordingly, new Rule 1509 provides the following time frames for death penalty cases.
(a) Pursuant to paragraph (a), the filing of the Commonwealth's answer, or if no answer is required or filed, the expiration of the time limit for filing an answer, triggers the 20-day time limit on the judge's determination concerning whether an evidentiary hearing is required.
(b) If no evidentiary hearing is required, the judge proceeds under paragraph (b), which, except for the oral argument provision in (b)(2), largely parallels Rule 1507(a). Paragraph (b)(2) poses a 20-day limit on the time within which the defendant may respond to a proposed dismissal by filing a request for oral argument. The Committee agreed that 20 days was sufficient time for the defendant to respond to the judge's notice to dismiss.
(c) Paragraph (b)(3) sets forth a 90-day time limit for disposition of the petition under paragraph (b). This time limit is triggered by the judge's notice in paragraph (b)(1), when no oral argument has been requested, or by the date of oral argument, if granted pursuant to paragraph (b)(2).
(d) Paragraph (c) sets forth a 90-day time limit for the disposition of the petition following the evidentiary hearing.
(e) Paragraph (d) cautions that sanctions may be imposed if the judge fails to dispose of the petition within 90 days, as required by paragraphs (b)(3) and (c).
Because Rule 1509 is a timing rule, the Comment explains that the provisions of Rule 1508(c), (d), and (e), concerning the defendant's presence at the hearing and counsel, the judge's responsibilities at the conclusion of the hearing, and notice of appeal rights, apply in death penalty cases when an evidentiary hearing is to be conducted.
k. Rule [1509] 1510 (Appeal)
Former Rule 1509 has been renumbered Rule 1510, and the Comment has been revised to include a cross-reference to Rule 1509(b)(3)(i) for purposes of what constitutes a final order.
[Pa.B. Doc. No. 97-1341. Filed for public inspection August 22, 1997, 9:00 a.m.] _______
1 The Court also suspended the Capital Unitary Review Act, 42 Pa.C.S. §§ 9570--9579, and sections of the Post Conviction Relief Act, 42 Pa.C.S. §§ 9543--9546. See the Court's August 11, 1997 order, which precedes this Final Report.
2 The Committee's Final Reports should not be confused with the official Committee Comments to the rules. Also note that the Supreme Court does not adopt the Committee's Comments or the contents of the Committee's explanatory Final Reports.
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