THE COURTS
PART I. GENERAL
[234 PA. CODE CH. 1500]
Petition for Post-Conviction Collateral Relief Disposition: Time Limit Extensions, Deemed Denied
[29 Pa.B. 6462]
Introduction The Criminal Procedural Rules Committee is planning to recommend that the Supreme Court of Pennsylvania amend Pa.Rs.Crim.P. 1507, 1508, and 1509. These proposed rule changes add to Rules 1507 and 1508 a 90-day time limit for disposition of petitions for post-conviction collateral relief in noncapital cases comparable to the time limits in Rule 1509 in capital cases, and in both capital and noncapital cases, permit the judge to grant a 30-day extension of the time limits and, when a judge fails to dispose of the petition within the time limits, provide that the petition will be deemed denied. This proposal has not been submitted for review by the Supreme Court of Pennsylvania.1
The following explanatory Report highlights the Committee's considerations in formulating this proposal. Please note that the Committee's 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 explanatory Reports.
The text of the proposed rule changes precedes the Report.
We request that interested persons submit suggestions, comments, or objections concerning this proposal to the Committee through counsel, Anne T. Panfil, Chief Staff Counsel, Supreme Court of Pennsylvania, Criminal Procedural Rules Committee, P. O. Box 1325, Doylestown, PA 18901, no later than Monday, January 24, 2000.
By the Criminal Procedural Rules Committee
J. MICHAEL EAKIN,
Chair
Annex A
TITLE 234. RULES OF CRIMINAL PROCEDURE
PART I. GENERAL
CHAPTER 1500. POST-CONVICTION COLLATERAL PROCEEDINGS Rule 1507. Disposition Without Hearing.
[(a)] Except as provided in Rule 1509 for death penalty cases[,] :
(A) [the] The judge shall promptly review the petition, any answer by the attorney for the Commonwealth, and other matters of record relating to the defendant's claim(s). [If the judge is satisfied from this review that there are no genuine issues concerning any material fact and that the defendant is not entitled to post-conviction collateral relief, and no purpose would be served by any further proceedings, the judge shall give notice to the parties of the intention to dismiss the petition and shall state in the notice the reasons for the dismissal. The defendant may respond to the proposed dismissal within 20 days of the date of the notice. The judge thereafter shall order the petition dismissed, grant leave to file an amended petition, or direct that the proceedings continue.]
[(b)] (B) [A] If an answer has been filed, a petition for post-conviction collateral relief may be granted without a hearing when the petition and answer show that there is no genuine issue concerning any material fact and that the defendant is entitled to relief as a matter of law.
[(c)] (C) * * *
[(d) When the petition is dismissed without a hearing, the judge shall issue an order to that effect and shall advise the defendant by certified mail, return receipt requested, of the right to appeal from the final order disposing of the petition and of the time within which the appeal must be taken.]
(D) If the judge is satisfied from the review that there are no genuine issues concerning any material fact and that the defendant is not entitled to post-conviction collateral relief, and no purpose would be served by any further proceedings, the judge shall give notice to the parties of the intention to dismiss the petition and shall state in the notice the reasons for the dismissal. The defendant may respond to the proposed dismissal within 20 days of the date of the notice.
(E) No later than 90 days from the date of the notice in paragraph (D), or from the date of the defendant's response, the judge shall:
(1) dismiss the petition and issue an order to that effect;
(2) grant the defendant leave to file an amended petition; and/or
(3) order that an evidentiary hearing be held on a date certain.
(F) When the 90-day time period must be delayed, the judge, for good cause shown, may order an extension for a period not longer than 30-days, and shall promptly notify the clerk of courts of the order.
(G) If the judge fails to take action pursuant to this paragraph within the 90-day time period, or the 30-day extension, the petition for post-conviction collateral relief shall be deemed denied by operation of law.
(H) When a petition for post-conviction collateral relief is denied by operation of law pursuant to paragraph (G), the clerk of courts shall forthwith enter an order on behalf of the judge that the petition for post-conviction collateral relief is deemed denied. The order is not subject to reconsideration.
(I) When a petition for post-conviction collateral relief is denied by operation of law, or dismissed by order of the court,
(1) the clerk shall forthwith furnish a copy of the order by mail or personal delivery to the attorney for the Commonwealth, the defendant, and defense counsel, if any.
(2) The order shall advise the defendant of the right to appeal from the final order disposing of the petition, and of the time within which the appeal must be taken.
Official Note: Previous Rule 1507 adopted January 24, 1968, effective August 1, 1968; rescinded December 11, 1981, effective June 27, 1982; rescission vacated June 4, 1982; amended January 28, 1983, effective July 1, 1983; rescinded February 1, 1989, effective July 1, 1989, and not replaced. Present Rule 1507 adopted February 1, 1989, effective July 1, 1989; amended August 11, 1997, effective immediately; amended _____ , 2000, effective _____ , 2000.
Comment Relief may be granted without a hearing under paragraph (B) only after an answer has been filed either voluntarily or pursuant to court order.
The judge is permitted, pursuant to paragraph [(a)] (D), to summarily dismiss a petition for post-conviction collateral relief in certain limited cases. To determine whether a summary dismissal is appropriate, the judge should thoroughly review the petition, the answer, if any, and all other relevant information that is included in the record. If, after this review, the judge determines that the petition is patently frivolous and without support in the record, or that the facts alleged would not, even if proven, entitle the defendant to relief, or that there are no genuine issues of fact, the judge may dismiss the petition as provided herein.
A summary dismissal would also be authorized under this rule if the judge determines that a previous petition involving the same issue or issues was filed and was finally determined adversely to the defendant. See 42 Pa.C.S. § 9545(b) for the timing requirements for filing second and subsequent petitions.
* * * * * [Relief may be granted without a hearing under paragraph (b) only after an answer has been filed either voluntarily or pursuant to court order.]
A [PCRA] petition for post-conviction collateral relief may not be dismissed pursuant to 42 Pa.C.S. § 9543(b) due to delay in filing except after a hearing on a motion to dismiss [, 42 Pa.C.S. § 9543(b)]. See Rule 1508.
Paragraph (E) was added in 2000 to provide a time limit within which the judge must act pursuant to this rule. Pursuant to paragraph (F), the judge may order one 30-day extension of time, and promptly must notify the clerk of courts of the order.
If the judge fails to act, the petition for post-conviction collateral relief is deemed denied by operation of law. If the petition is denied by operation of law, paragraph (H) requires that the clerk of courts enter an order denying the petition on behalf of the judge.
Paragraph (I) requires that the clerk of courts immediately notify the attorney for the Commonwealth, the defendant, and defense counsel, if any, that the petition has been denied either by court order or operation of law. This notice is intended to protect the defendant's right to appeal.
The clerk of courts must comply with the notice and docketing requirements of Rule 9025 with regard to any orders entered pursuant to this rule.
Committee Explanatory Reports
Final Report explaining the August 11, 1997 amendments published with the Court's Order at 27 Pa.B. 4305 (August 23, 1997).
Report explaining the proposed amendments concerning time limits on dispositions, extensions of time, and the deemed denied provisions published with the Court's Order at 29 Pa.B. 6466 (December 25, 1999).
Rule 1508. Hearing.
[(a)] (A) Except as provided in Rule 1507, the judge shall order a hearing:
(1) whenever the Commonwealth files a motion to dismiss pursuant to 42 Pa.C.S. § 9543(b) due to the defendant's delay in filing the petition[,]; or
(2) when the petition for post-conviction collateral relief or the Commonwealth's answer, if any, raises material issues of fact. However, the judge may deny a hearing on a specific issue of fact when a full and fair evidentiary hearing upon that issue was held at trial or at any proceeding before or after trial.
* * * * * [(b)] (B) * * *
[(c)] (C) * * *
[(d)] (D) Upon the conclusion of the hearing, the judge shall:
(1) determine all material issues raised by the defendant's petition and the Commonwealth's answer, or by the Commonwealth's motion to dismiss, if any; and
(2) issue an order denying relief or granting a specific form of relief and issue any supplementary orders appropriate to the proper disposition of the case.
[(e)] (E) If the judge disposes of the case in open court at the conclusion of the hearing, the judge shall advise the defendant on the record of [the] any right to appeal from [the] a final order disposing of the petition and of the time within which the appeal must be taken. [If the case is taken under advisement, the judge shall advise the defendant of the right to appeal by certified mail, return receipt requested.]
(F) If the judge takes the case under advisement, the judge shall dispose of the petition no more than 90 days after the hearing. When the 90-day time period must be delayed, the judge, for good cause shown, may order an extension for a period not longer than 30-days, and promptly shall notify the clerk of courts of the order.
(G) If the judge fails to take action pursuant to paragraph (F) within the 90-day time period, or the 30-day extension, the petition for post-conviction collateral relief shall be deemed denied by operation of law.
(H) When a petition for post-conviction collateral relief is denied by operation of law pursuant to paragraph (G), the clerk of courts shall forthwith enter an order on behalf of the judge that the petition for post-conviction collateral relief is deemed denied. The order is not subject to reconsideration.
(I) When the petition for post-conviction collateral relief is denied by operation of law or dismissed by order of the court,
(1) the clerk shall forthwith furnish a copy of the order by mail or personal delivery to the attorney for the Commonwealth, the defendant, and defense counsel, if any.
(2) The order shall advise the defendant of the right to appeal from the final order disposing of the petition, and of the time within which the appeal must be taken.
Official Note: Adopted February 1, 1989, effective July 1, 1989; amended August 11, 1997, effective immediately; amended _____ , 2000, effective _____ , 2000.
Comment The judge's power, under paragraph [(a)] (A), to deny a hearing on a specific factual issue is intended to apply when an issue of fact has already been heard fully, but has never been determined. The judge need not rehear such an issue, but would be required to determine it under paragraph [(d)] (D).
[The 1997 amendment to paragraph (a)(1) requires 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), as amended in 1995.]
See also Rule 1509 for procedures in death penalty cases.
Except as provided in Rule 1502(e)(2) for first counseled petitions in death penalty cases, no discovery is permitted at any stage of the proceedings, except upon leave of the court with a showing of exceptional circumstances. See 42 Pa.C.S. § 9545(d)(2).
Paragraph (F) was added in 2000 to provide a time limit within which the judge must act pursuant to this rule. The judge may order one 30-day extension of time, and promptly must notify the clerk of courts of the order.
Pursuant to paragraph (G), if the judge fails to act, the petition for post-conviction collateral relief is deemed denied by operation of law. If the petition is denied by operation of law, paragraph (H) requires that the clerk of courts enter an order denying the petition on behalf of the judge. Paragraph (I) requires the clerk to immediately notify the attorney for the Commonwealth, the defendant, and defense counsel, if any, that the petition has been denied by operation of law or dismissed by order of the court. This notice is intended to protect the defendant's right to appeal.
The clerk of courts must comply with the notice and docketing requirements of Rule 9025 with regard to any orders entered pursuant to this rule.
Committee Explanatory Reports:
Final Report explaining the August 11, 1997 amendments published with the Court's Order at 27 Pa.B. 4305 (August 23, 1997).
Report explaining the proposed amendments concerning time limits on dispositions, extensions of time, and the deemed denied provisions published at 29 Pa.B. 6466 ( December 25, 1999).
Rule 1509. Procedures for Petitions in Death Penalty Cases: Stays of Execution of Sentence; Hearing; Disposition
* * * * * (B) Hearing; Disposition
(1) No more than 20 days after the Commonwealth files an answer pursuant to Rule 1506(e)(1) or (e)(2), or if no answer is filed as permitted in Rule 1506(e)(2), within 20 days after the expiration of the time for answering, the judge shall review the petition, the Commonwealth's answer, if any, and other matters of record relating to the defendant's claim(s), and shall determine whether an evidentiary hearing is required.
[(C)] (2) If the judge is satisfied from this review that there are no genuine issues concerning any material fact, [that] the defendant is not entitled to post-conviction collateral relief, and [that] no purpose would be served by any further proceedings,
[(1)] (a) * * *
[(2)] (b) The defendant may respond to the proposed dismissal [by filing a request for oral argument] within 20 days of the date of the notice.
[(3)] (c) No later than 90 days from the date of the notice, or from the date of the defendant's response [oral argument, if granted], the judge shall:
[(a)] (i) dismiss the petition[,] and issue an order to that effect [, and advise the defendant by certified mail, return receipt requested, of the right to appeal from the final order disposing of the petition and of the time within which the appeal must be taken];
[(b)] (ii) * * *
[(c)] (iii) * * *
[(D)] (4) * * *
(5) When the 90-day time period in paragraphs (B)(3) and (B)(4) must be delayed, the judge, for good cause shown, may order an extension for a period not longer than 30-days, and promptly shall notify the clerk of courts of the order.
(6) If the judge fails to take action pursuant to paragraphs (B)(3) and (B)(4) within the 90-day time period, or the 30-day extension, the petition for post- conviction collateral relief shall be deemed denied by operation of law.
(7) When a petition for post-conviction collateral relief is denied by operation of law pursuant to paragraph (B)(6), the clerk of courts shall forthwith enter an order on behalf of the judge that the petition for post- conviction collateral relief is deemed denied. The order is not subject to reconsideration.
(8) When the petition for post-conviction collateral relief is denied by operation of law or dismissed by order of the court,
(a) the clerk shall forthwith furnish a copy of the order by mail or personal delivery to the Prothonotary of the Supreme Court, the attorney for the Commonwealth, the defendant, and defense counsel, if any.
(b) The order shall advise the defendant of the right to appeal from the final order disposing of the petition, and of the time within which the appeal must be taken.
[(E) Failure of the judge to dispose of the petition within 90 days as required by paragraphs (C)(3) and (D) may result in the imposition of sanctions.]
Official Note: Previous Rule 1509 adopted February 1, 1989, effective July 1, 1989; renumbered Rule 1510 August 11, 1997, effective immediately. Present Rule 1509 adopted August 11, 1997, effective immediately; amended July 23, 1999, effective September 1, 1999; amended _____ , 2000, effective _____ , 2000.
Comment * * * * * Paragraph (A)(2) provides that, if a stay of execution is granted, the stay will remain in effect throughout the PCRA proceedings in the trial court and during the appeal to the Pennsylvania Supreme Court.
It is intended that once a determination is made under paragraph (B)(4) of this rule that an evidentiary hearing is required, the provisions of Rule 1508(C), (D), and (E) apply.
Paragraph (B)(5) was added in 2000 to permit the judge to order one 30-day extension of the 90-day time limit within which the judge must act pursuant to this rule. The judge promptly must notify the clerk of courts of the order.
Pursuant to paragraph (B)(6), if the judge fails to act, the petition for post-conviction collateral relief is deemed denied by operation of law. If the petition is denied by operation of law, paragraph (B)(7) requires the clerk of courts to enter an order denying the petition on behalf of the judge. Paragraph (B)(8) requires the clerk to immediately notify the Prothonotary of the Supreme Court, the attorney for the Commonwealth, the defendant, and defense counsel, if any, that the petition has been denied. This notice is intended to protect the defendant's right to appeal.
The clerk of courts must comply with the notice and docketing requirements of Rule 9025 with regard to any orders entered pursuant to this rule.
[It is intended that once a determination is made under this rule that an evidentiary hearing is required, the provisions of Rule 1508(c), (d), and (e) apply.]
Committee Explanatory Reports:
Final Report explaining the August 11, 1997 adoption of new Rule 1509 published with the Court's Order at 27 Pa.B. 4305 (August 23, 1997).
Final Report explaining the July 23, 1999 amendments concerning stays published with the Court's Order at 29 Pa.B. 4167 (August 7, 1999).
Report explaining the proposed amendments concerning extensions of time and the deemed denied provisions published at 29 Pa.B. 6466 (December 25, 1999).
REPORT
Proposed Amendments to Pa.Rs.Crim.P. 1507, 1508, and 1509
Petition for Post-Conviction Collateral Relief Disposition: Time Limits, Extensions, Deemed Denied I. Background
In 1997, the Committee submitted to the Court a proposal for amendments to Rules 1507, 1508, and 1509 intended to fill in some procedural gaps related to the 1997 suspension of the Capital Unitary Review Act (CURA) and the correlative amendments to Chapter 1500 of the Criminal Rules. Specifically, the proposal imposed time limits on the disposition of petitions for post-conviction collateral relief in noncapital cases, permitted extensions of the time for disposition, and provided for sanctions.2 In 1999, at the request of the Court, the Committee reexamined that portion of the proposal concerning extensions. Our reexamination expanded to take in the question of sanctions, and whether the rules should provide specific sanctions. Keeping in mind the principle purpose of the original proposal--to reduce delays and promote judicial economy, thereby moving cases along expeditiously yet fairly--the Committee agreed that the original proposal should be withdrawn, and the original proposal modified to reduce the time for an extension from 90 days to 30 days and to implement a deemed denied procedure when the judge fails to act on the petition within the 90 days plus the 30-day extension.
II. Discussion of Proposed Rule Changes
A. Background
1. Time Limits
Following the Court's suspension of ''CURA'' and the amendments to Chapter 1500 that included time limits on the judge's disposition of the petition for post- conviction collateral review in death penalty cases, the Committee was advised by the Court that it wanted the PCRA rules to include a time limit on the trial court's disposition of PCRA petitions in noncapital cases. In deciding on a time limit, the Committee looked to Rule 1509 (Procedures for Petitions in Death Penalty Cases: Hearing; Disposition), promulgated in August 1997, which provides a 90-day time limit for the disposition of petitions in death penalty cases, and agreed it makes sense to have uniform dispositional time limits for all PCRA cases--a uniform time limit makes it easier for the trial judges to monitor their PCRA dispositions, and reduces delays. Concluding that a 90-day time limit is reasonable, the Committee is proposing the same 90-day time limit in noncapital cases. See Rules 1507(E) and 1508(F).
2. Extensions of the 90-Day Time Limit on Disposition in Capital and Noncapital Cases
The original proposal had included a provision for the trial judge to petition the Court for an extension of time for cause shown. The Committee had reasoned if the Court was going to mandate deadlines, i.e., the 90-day time limit on disposition of the PCRA petition, with the possibility of sanctions for failing to comply with the time limits, then, in certain circumstances, extensions of the deadline would be appropriate. We agreed that there would be cases in which the judge would need additional time to fully and fairly consider all the information before disposing of the petition, and that the rules should include some type of safety valve for these exceptional circumstances.
The Court asked the Committee to reconsider this portion of the proposal. The Committee briefly considered whether there were any viable alternatives to a petition to the Court. We rejected possible alternative procedures that would have the judge file a petition with the president judge or the court administrator in favor of a procedure that would permit the trial court, on its own motion, to extend the time limit. Although the original proposal had provided a 90-day extension, on reflection, consistent with the principle of moving these cases along, the Committee concluded that a 30-day extension would afford the judge adequate additional time for the disposition of the petition. See Rules 1507(F), 1508(F), and 1509(B)(5).
3. Deemed Denied Provisions
The Committee's discussion concerning sanctions resulted in the members considering various means of insuring that the judge acted within the time limits set by the rule. We settled upon a procedure that is comparable to the Rule 1410 (Post-Sentence Procedures; Appeal) deemed denied procedure. In all cases, if the judge fails to act within the time limits, the petition for post-conviction collateral relief would be deemed denied and the clerk of courts would issue an order to that effect. See Rules 1507(G), (H), (I), 1508(G), (H), (I), and Rule 1509(B)(6), (7), (8).
4. ''Housekeeping'' Changes
In the course of our discussions, the Committee agreed to several changes that are editorial or ''housekeeping'' in nature. These include conforming the Rules 1507, 1508, and 1509 by changing references to ''PCRA petition'' or ''petition for post-conviction relief'' to ''petition for post-conviction collateral relief,'' and adding ''if any'' after ''defense counsel'' in all three rules.
B. Rule 1507
Rule 1507 has been reorganized to more clearly distinguish the procedures in the rule. Paragraph (A) consists of what is currently the first sentence, thereby setting forth only the requirement that the judge review the petition, any answer, and other matters of record relating to the defendant's claim. The second two sentences of current paragraph (A) concerning the procedures before a dismissal without a hearing have been moved to become new paragraph (D). The Committee agreed that it made sense to have current paragraphs (B) and (C) concerning granting petitions or portions of petitions precede the provisions for dismissing petitions. The last sentence of current paragraph (A) has been moved into new paragraph (E). Current paragraph (D) has been deleted and the notice provisions have been incorporated into new paragraph (I).
In addition to the reorganizational changes, the Committee is proposing a number of substantive and clarifying changes. Paragraph (B) has been amended by adding ''if an answer has been filed'' to the beginning. This amendment and the correlative provision added to the Comment are intended to make it clear that the judge may not grant a petition without a hearing unless an answer has been filed either voluntarily or pursuant to court order.
New paragraphs (E) and (F) establish the time limits on judges' dispositions of petitions for post-conviction collateral relief. Paragraph (E) requires that the judge act within a 90-day period following the notice required in paragraph (D) or the defendant's response, if any, and requires the judge to either dismiss the petition, grant leave for the defendant to file an amended petition, or order an evidentiary hearing. Paragraph (F) permits the judge to order an extension of the 90-day time period for good cause. The extension may not be longer than 30-days. When the judge orders the extension, he or she must insure that the clerk of courts receives a copy of the order for purposes of the deemed denied provisions in new paragraphs (G) and (H).
New paragraphs (G) and (H) set forth the deemed denied procedures. When the judge fails to act within the 90-day time limit set forth in paragraph (G) or the 30-day extension, the petition will be deemed denied by operation of law. When this occurs, paragraph (H) requires that the clerk of courts forthwith enter an order on behalf of the judge that the petition is deemed denied.
New paragraph (I) requires the clerk of courts to send a copy of the judge's order dismissing a petition or the order denying the petition by operation of law to the attorney for the Commonwealth, the defendant, and the defendant's attorney, if any. The order must advise the defendant of the right to appeal from the final order disposing of the petition and the time within which to appeal.
Finally, correlative changes have been made to the Comment.
C. Rule 1508
For the most part, the proposed changes to Rule 1508(F), (G), (H), and (I) are the same as the proposed changes to Rule 1507(F), (G), (H), and (I) discussed above. In addition to these changes, the Committee agreed that Rule 1508(E), which provides for the judge either to dispose of a case in open court or take the case under advisement, would have to be amended in order to incorporate the 90-day time limit. We have deleted the provision for the judge to take the case under advisement from paragraph (E), and added it to new paragraph (F), which also includes the 90-day time limit for the disposition of the petition after the evidentiary hearing. Paragraph (E) also has been modified by changing ''the right'' to ''any right'' and ''the final order'' to ''a final order'' to clarify that the provision only applies to cases in which the petition is dismissed in part or in its entirety.
Finally, paragraph (A)(1) has been amended by adding ''pursuant to 42 Pa.C.S. § 9543(b)'' after ''motion to dismiss'' and the correlative comment provision has been deleted to emphasize this statutory provision, and make it clear that the hearing requirement only applies to motions to dismiss due to a Section 9543(b) delay.
D. Rule 1509
The proposed changes to Rule 1509(B)(5), (6), (7), and (8) are the same as the proposed changes to Rule 1507(F), (G), (H), and (I) discussed above. Correlative to the addition of the deemed denied provisions in paragraphs (B)(6) and (B)(7), the language after ''that effect'' to the semi-colon in current paragraph (C)(3)(a) and current paragraph (E) have been deleted as no longer necessary.
In addition to these changes, the Committee is proposing the deletion of ''by filing a request for oral argument'' from paragraph (B)(2)(b). During our reexamination of Rule 1509, we considered this requirement. The Committee agreed that the form of answer need not be limited to a request for oral argument, and noted that the judge may hear argument in the appropriate case.
[Pa.B. Doc. No. 99-2164. Filed for public inspection December 23, 1999, 9:00 a.m.] _______
1 In 1997, the Committee had recommended a different procedure for addressing extensions and sanctions within the context of these rules, but reexamined this recommendation at the request of the Court. In October 1999, the Committee withdrew this earlier proposal in favor of the procedures that are the subject of this Report.
2 Because of the close interrelationship between the ''CURA'' suspension, the 1997 amendments to Chapter 1500, and this 1997 proposal, the Committee had submitted the proposal to the Court without publication pursuant to Pa.R.J.A. 103.
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