THE COURTS
Title 234--RULES OF CRIMINAL PROCEDURE
PART I. GENERAL
[234 PA. CODE CH. 1500]
Order Adopting Amendments to Rule 1504 and Approving the Revision of the Comments to Rules 1502, 1503 and 1506; No. 259 Criminal Procedural Rules; Doc. No. 2
[30 Pa.B. 622] The Criminal Procedural Rules Committee has prepared a Final Report explaining the January 21, 2000 amendments to Rule 1504 (Appointment of Counsel; In Forma Pauperis), and the correlative revision of the Comments to Rules 1502, 1503, and 1506, that provide for the prompt appointment of counsel in death penalty cases following the conclusion of direct appeal. The Final Report follows the Court's Order.
Order Per Curiam:
Now, this twenty-first day of January, 2000, upon the recommendation of the Criminal Procedural Rules Committee; this proposal having been submitted without publication pursuant to Pa.R.J.A. 103(a)(3), and a Final Report to be published with this Order:
It Is Ordered pursuant to Article V, Section 10 of the Constitution of Pennsylvania that:
(1) Pa.R.Crim.P. 1504 is hereby amended; and
(2) the revisions of the Comments to Pa.Rs.Crim.P. 1502, 1503, and 1506 are approved,
all in the following form.
This Order shall be processed in accordance with Pa.R.J.A. 103(b), and shall be effective July 1, 2000.
Annex A
TITLE 234. RULES OF CRIMINAL PROCEDURE
PART I. GENERAL
CHAPTER 1500. POST-CONVICTION COLLATERAL PROCEEDINGS Rule 1502. Content of Petition for Post-Conviction Collateral Relief; Request for Discovery.
* * * * * Official Note: Previous Rule 1502 adopted January 24, 1968, effective August 1, 1968; rescinded December 11, 1981, effective June 27, 1982; rescission vacated June 4, 1982; rescinded February 1, 1989, effective July 1, 1989, and replaced by present Rules 1503 and 1505. Present Rule 1502 adopted February 1, 1989, effective July 1, 1989; amended August 11, 1997, effective immediately; amended July 23, 1999, effective September 1, 1999; Comment revised January 21, 2000, effective July 1, 2000.
Comment * * * * * Paragraphs (A)(16) and (E) were added in 1997 to address requests for discovery. Paragraph (A)(16) requires that a request for discovery be included in the petition, if applicable. Paragraph (E) sets forth the standards for permitting discovery. Under paragraph (E)(1), which applies in all cases except on the first counseled petition in a death penalty case, 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). Under paragraph (E)(2), which applies to first counseled petitions in death penalty cases, discovery is permitted only upon leave of court for good cause shown. For purposes of paragraph (E)(2), ''first counseled petition'' includes petitions on which defendants have elected to proceed pro se pursuant to Rule 1504(F)(1)(a).
* * * * * Committee Explanatory Reports:
* * * * * Final Report explaining the January 21, 2000 Comment revision cross-referencing Rule 1504(F)(1)(a) published with the Court's Order at 30 Pa.B. 624 (February 5, 2000).
Rule 1503. Docketing and Assignment.
[(a)] (A) * * *
[(b)] (B) * * *
[(c)] (C) * * *
[(d)] (D) * * *
Official Note: Previous Rule 1503 adopted January 24, 1968, effective August 1, 1968; rescinded December 11, 1981, effective June 27, 1982; rescission vacated June 4, 1982; rescinded February 1, 1989, effective July 1, 1989, and replaced by present Rule 1504. Present Rule 1503 adopted February 1, 1989, effective July 1, 1989; amended June 19, 1996, effective July 1, 1996; amended August 11, 1997, effective immediately; Comment revised January 21, 2000, effective July 1, 2000.
Comment * * * * * The transmittal of the petition to the attorney for the Commonwealth does not require a response unless one is ordered by the judge as provided in these rules, or required by Rule 1506[(e)] (E).
* * * * * If a defendant in a death penalty case files a petition before the trial judge has made a determination concerning the appointment of counsel as required by Rule 1504(F), the clerk must promptly forward the docketed petition to the trial judge for that determination.
Committee Explanatory Reports:
* * * * * Final Report explaining the January 21, 2000 Comment revisions published with the Court's Order at 30 Pa.B. 624 (February 5, 2000).
Rule 1504. Appointment of Counsel; In Forma Pauperis.
[(a)] (A) Except as provided in paragraph (F), [When] when an unrepresented defendant satisfies the judge that the defendant is unable to afford or otherwise procure counsel, the judge shall appoint counsel to represent the defendant on the defendant's first petition for post-conviction collateral relief.
[(b)] (B) * * *
[(c)] (C) * * *
[(d)] (D) An appointment of counsel shall be effective throughout the post-conviction collateral proceedings, including any appeal from disposition of the petition for post-conviction collateral relief.
[(e)] (E) * * *
(F) Appointment of Counsel in Death Penalty Cases.
(1) At the conclusion of direct review in a death penalty case, which includes discretionary review in the Supreme Court of the United States, or at the expiration of time for seeking the review, upon remand of the record, the trial judge shall appoint new counsel for the purpose of post-conviction collateral review, unless:
(a) the defendant has elected to proceed pro se or waive post- conviction collateral proceedings, and the judge finds, after a colloquy on the record, that the defendant is competent and the defendant's election is knowing, intelligent, and voluntary;
(b) the defendant requests continued representation by original trial counsel or direct appeal counsel, and the judge finds, after a colloquy on the record, that the petitioner's election constitutes a knowing, intelligent, and voluntary waiver of a claim that counsel was ineffective; or
(c) the judge finds, after a colloquy on the record, that the defendant has engaged counsel who has entered, or will promptly enter, an appearance for the collateral review proceedings.
(2) The appointment of counsel shall be effective throughout the post- conviction proceedings, including any appeal from disposition of the petition for post-conviction collateral relief.
(3) When the defendant satisfies the judge that the defendant is unable to pay the costs of the post-conviction collateral proceedings, the judge shall order that the defendant be permitted to proceed in forma pauperis.
Official Note: Previous Rule 1504 adopted January 24, 1968, effective August 1, 1968; rescinded December 11, 1981, effective June 27, 1982; rescission vacated June 4, 1982; rescinded February 1, 1989, effective July 1, 1989, and replaced by Rule 1507. Present Rule 1504 adopted February 1, 1989, effective July 1, 1989; amended August 11, 1997, effective immediately; amended January 21, 2000, effective July 1, 2000.
Comment * * * * *
Paragraph (F) was added in 2000 to provide for the appointment of counsel for the first petition for post-conviction collateral relief in a death penalty case at the conclusion of direct review.
Committee Explanatory Reports:
* * * * * Final Report explaining the January 21, 2000 amendments adding paragraph (F) concerning appointment of counsel published with the Court's Order at 30 Pa.B. 624 (February 5, 2000).
Rule 1506. Answer to Petition for Post-Conviction Collateral Relief.
[(a)] (A) Except as provided in paragraph [(e)] (E), an answer to a petition for post-conviction collateral relief is not required unless ordered by the judge. When the judge has not ordered an answer, the attorney for the Commonwealth may elect to answer, but the failure to file one shall not constitute an admission of the well-pleaded facts alleged in the petition.
[(b)] (B) * * *
[(c)] (C) * * *
[(d)] (D) * * *
[(e)] (E) Answers in Death Penalty Cases
(1) First Counseled Petitions
[(i)] (a) * * *
[(ii)] (b) * * *
(2) Second and Subsequent Petitions
[(i)] (a) * * *
[(ii)] (b) * * *
* * * * * Official Note: Previous Rule 1506 adopted January 24, 1968, effective August 1, 1968; Comment revised April 26, 1979, effective July 1, 1979; rule rescinded December 11, 1981, effective June 27, 1982; rescission vacated June 4, 1982; Comment revised January 28, 1983, effective July 1, 1983; rule rescinded February 1, 1989, effective July 1, 1989, and replaced by Rule 1508. Present Rule 1506 adopted February 1, 1989, effective July 1, 1989; amended August 11, 1997, effective immediately; Comment revised January 21, 2000, effective July 1, 2000.
Comment As used in the Chapter 1500 Rules, ''answer'' is intended to include an amended answer filed pursuant to paragraphs [(d)] (D) and [(e)] (E)(3) of this rule, except where the context indicates otherwise.
Except as provided in paragraph [(e)] (E), when determining whether to order that the attorney for the Commonwealth file an answer, the judge should consider whether an answer will promote the fair and prompt disposition of the issues raised by the defendant in the petition for post-conviction collateral relief.
Paragraph [(e)] (E)(1) was added in 1997 to require that the Commonwealth file an answer to the first counseled petition in a death penalty case. For second and subsequent petitions, paragraph [(e)] (E)(2) would apply.
''First counseled petition,'' as used in paragraph [(e)] (E)(1), includes petitions on which defendants have elected to proceed pro se pursuant to Rule 1504(F)(1)(a). See also the Comment to Rule 1503.
Committee Explanatory Reports:
* * * * * Final Report explaining the January 21, 2000 Comment revisions published with the Court's Order at 30 Pa.B. 624 (February 5, 2000).
FINAL REPORT1
Amendments to Pa.R.Crim.P. 1504 and Correlative Revisions of the Comments to Pa.Rs.Crim.P. 1502, 1503, and 1506
Appointment of Counsel in Death Penalty Cases On January 21, 2000, effective July 1, 2000, upon the recommendation of the Criminal Procedural Rules Committee, the Court amended Rule of Criminal Procedure 1504 (Appointment of Counsel; In Forma Pauperis), and approved the revision of the Comments to Rules 1502, 1503, and 1506. The Rule 1504 amendment adds a new paragraph (F) to provide for the prompt appointment of counsel in death penalty cases following the conclusion of direct appeal.
Background
The Committee, at the Court's request following communications from the Third Circuit Court's Task Force on Management of Death Penalty Litigation, considered whether Rule 1504 should be amended to provide procedures for the prompt appointment of counsel in death penalty cases. The Committee concluded that such procedures would be beneficial for the defendant and the criminal justice system--by ensuring the prompt appointment of counsel to handle first petitions in capital cases, the procedures would likewise ensure that the first petition for post-conviction collateral relief in a capital case is timely filed and properly prepared, thereby minimizing, if not eliminating, second and subsequent petitions. Similarly, the procedures protect the defendant and promote judicial economy.
Discussion
(1) Rule 1504
A new paragraph (F) has been added to Rule 1504 that requires the trial judge to appoint new counsel for the purpose of post-conviction collateral review at the conclusion of direct review, which includes discretionary review in the Supreme Court of the United States, in all death penalty cases, except as otherwise provided in paragraphs (1)(a)--(c). Paragraph (F)(1)(a) permits a defendant to proceed pro se or waive post-conviction collateral proceedings, but only after the trial judge conducts a colloquy on the record, and makes a finding that the defendant is competent and the election is knowing, intelligent, and voluntary.
Paragraphs (F)(1)(b) and (1)(c) set forth the exceptions to the mandatory appointment of counsel, and respect the defendant's right to counsel of his or her own choosing or to waive counsel by recognizing the possibility that a defendant may want to continue with his or her original trial counsel or direct appeal counsel or engage new counsel for collateral review. In both instances, the new procedure injects the court's supervision into the process by requiring the trial judge to conduct an on-the-record colloquy. With reference to the retention of previous counsel, the judge must determine that the defendant's election constitutes a knowing, intelligent, and voluntary waiver of an ineffective counsel claim. See Rule 1504(F)(1)(b). When the defendant intends to engage new counsel, the judge must determine that the attorney has entered, or will promptly enter, an appearance for the collateral review proceedings. See Rule 1504(F)(1)(c).
Paragraphs (F)(2) and (F)(3) parallel the procedures for all other cases in the rule. See Rule 1504(D) and (E).
(2) Correlative Comment Revisions
During the Committee's discussion about the procedures for the immediate appointment of counsel, the question arose as to what the clerk of courts should do if the defendant files a pro se petition for post-conviction collateral relief before the trial judge has had an opportunity to make a Rule 1504(F) determination. Agreeing that this issue should be addressed, the Committee added a clarifying statement to the Rule 1503 Comment advising the clerks of courts that they must promptly forward to the judge any petition that is filed before the judge appoints counsel.
Finally, the Comments to Rules 1502 and 1506 have been revised to cross-reference Rule 1504(F) concerning ''first counseled petitions'' in death penalty cases.
[Pa.B. Doc. No. 00-209. Filed for public inspection February 4, 2000, 9:00 a.m.] _______
1 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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