THE COURTS
[234 PA. CODE CHS. 9 AND 1500]
Proposed Amendment to Rule 1509; Procedures for Petitions in Death Penalty Cases; Stays of Execution of Sentence; Hearing; Disposition
[30 Pa.B. 2575]
Introduction The Criminal Procedural Rules Committee is planning to recommend that the Supreme Court of Pennsylvania amend Pa.R.Crim.P. 1509. The proposed amendments permit the judge to grant a 30-day extension of the dispositional time limits. When a judge fails to dispose of the petition within the time limits, the amendments provide a mechanism for notifying the judge that the time limits have expired and, absent action by the judge, for notifying the Supreme Court of the judge's failure to act. This proposal has not been submitted for review by the Supreme Court of Pennsylvania.
The following explanatory Supplemental Report highlights the Committee's considerations in formulating this proposal. Please note that the Committee's Reports and Supplemental 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 or Supplemental Reports.
The text of the proposed amendments to Rule 1509 precedes the Supplemental Report. Additions are shown in bold and are underlined, and deletions are in bold and brackets.
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, June 5, 2000.
By the Criminal Procedural Rules Committee
J. MICHAEL EAKIN,
Chair
Annex A
TITLE 234. RULES OF CRIMINAL PROCEDURE
CHAPTER 1500. POST-CONVICTION COLLATERAL PROCEEDINGS Rule 1509. Procedures for Petitions in Death Penalty Cases: Stays of Execution of Sentence; Hearing; Disposition.1
* * * * * (B) Hearing; Disposition
(1) No more than 20 days after the Commonwealth files an answer pursuant to Rule 1506(E)(1) or (E)(2),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 legitimate 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 [oral argument, if granted], defendant's response, 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) grant the defendant leave to file an amended petition; [and/] or
[(c)] (iii) * * *
[(D)] (3) If the judge determines that an evidentiary hearing is required, the judge shall enter an order setting a date certain for the hearing, which shall not be scheduled for fewer than 10 days or more than 45 days from the date of the order. The judge may, for good cause shown, grant leave to continue the hearing. No more than 90 days after the conclusion of the evidentiary hearing, the judge shall dispose of the petition.
(4) When the 90-day time periods in paragraphs (B)(2)(c) and (B)(3) must be delayed, the judge, for good cause shown, may enter an order extending the period for not longer than 30 days.
(5) If the judge does not act within the 90 days mandated by paragraphs (B)(2)(c) and (B)(3), or within the 30 day-extension permitted by paragraph (B)(4), the clerk of courts shall send a notice to the judge that the time period for disposing of the petition has expired. The clerk shall enter the date and time of the notice on the docket, and shall send a copy of the notice to the attorney for the Commonwealth, the defendant, and defense counsel, if any.
(6) If the judge does not dispose of the defendant's petition within 30 days of the clerk of courts' notice, the clerk immediately shall send a notice of the judge's non-compliance to the Supreme Court. The clerk shall enter the date and time of the notice on the docket, and shall send a copy of the notice to the attorney for the Commonwealth, the defendant, and defense counsel, if any.
(7) When the petition for post-conviction collateral relief is dismissed by order of the court,
(a) the clerk immediately shall 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; renumbered Rule 909 and amended March 1, 2000, effective April 1, 2001; amended _____ , 2000, effective_____, 2000.
Comment * * * * * [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.]
Paragraph (B)(3) permits the judge to continue the hearing when there is good cause, such as when the judge determines that briefing and argument are necessary on any of the issues, or when there is a problem with securing the defendant's appearance.
It is intended that once a determination is made under paragraph (B)(3) of this rule that an evidentiary hearing is required, the provisions of Rule 1508(C), (D), and (E) apply.3
Paragraph (B)(4) was added in 2000 to permit the judge to enter an order for one 30-day extension of the 90-day time limit within which the judge must act pursuant to paragraphs (B)(2)(c) and (B)(3) of this rule. When the judge extends the time, the judge promptly must notify the clerk of courts of the extension order.
Paragraph (B)(5) addresses the situation in which the judge does not comply with the rule's time limits. The clerk of courts is required to give the judge notice that the 90-day time period has expired. Further non-compliance requires the clerk to bring the case to the attention of the Supreme Court, which is responsible for the administration of the unified judicial system.
It is expected, if there are extenuating circumstances why the judge cannot act within the time limits of the rule, the judge will provide a written explanation to the Supreme Court.
Paragraph (B)(7) 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 90254 with regard to any orders entered pursuant to this rule.
Committee Explanatory Reports:
* * * * * Report explaining the proposed amendments concerning extensions of time and sanctions published at 29 Pa.B. 6462 (December 25, 1999). Supplemental Report published at 30 Pa.B. 2578 (May 26, 2000).
(Editor's Note: The following shows amendments to new Rule 909. See 30 PaB. 1477 (March 18, 2000).)
Rule 909. Procedures for Petitions in Death Penalty Cases; Stays of Execution of Sentences; Hearing Disposition.
* * * * * (B) Hearing; Disposition
(1) No more than 20 days after the Commonwealth files an answer pursuant to Rule 906(E)(1) or (E)(2), or if no answer is filed as permitted in Rule 906(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 legitimate 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 [oral argument, if granted] defendant's response, 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) grant the defendant leave to file an amended petition; [and/or]
[(c)] (iii) * * *
[(D)] (3) If the judge determines that an evidentiary hearing is required, the judge shall enter an order setting a date certain for the hearing, which shall not be scheduled for fewer than 10 days or more than 45 days from the date of the order. The Judge may, for good cause shown, grant leave to continue the hearing. No more than 90 days after the conclusion of the evidentiary hearing, the judge shall dispose of the petition.
(4) When the 90-day time periods in paragraphs (B)(2)(c) and (B)(3) must be delayed, the judge, for good cause shown, may enter an order extending the period for not longer than 30 days.
(5) If the judge does not act within the 90 days mandated by paragraphs (B)(2)(c) and (B)(3), or within the 30 day-extension permitted by paragraph (B)(4), the clerk of courts shall send a notice to the judge that the time period for disposing of the petition has expired. The clerk shall enter the date and time of the notice on the docket, and shall send a copy of the notice to the attorney for the Commonwealth, the defendant, and defense counsel, if any.
(6) If the judge does not dispose of the defendant's petition within 30 days of the clerk of courts' notice, the clerk immediately shall send a notice of the judge's non-compliance to the Supreme Court. The clerk shall enter the date and time of the notice on the docket, and shall send a copy of the notice to the attorney for the Commonwealth, the defendant, and defense counsel, if any.
(7) When the petition for post-conviction collateral relief is dismissed by order of the court,
(a) the clerk immediately shall 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 910 August 11, 1997, effective immediately. Present Rule 1509 adopted August 11, 1997, effective immediately; amended July 23, 1999, effective September 1, 1999; renumbered Rule 909 and amended March 1, 2000, effective April 1, 2001; amended _____ , 2000, effective _____ , 2000.
Comment * * * * * [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.]
Paragraph (B)(3) permits the judge to continue the hearing when there is good cause, such as when the judge determines that briefing and argument are necessary on any of the issues, or when there is a problem with securing the defendant's appearance.
It is intended that once a determination is made under paragraph (B)(3) of this rule that an evidentiary hearing required, the provisions of Rule 908(C), (D), and (E) apply.
Paragraph (B)(4) was added in 2000 to permit the judge to enter an order for one 30-day extension of the 90-day time limit within which the judge must act pursuant to paragraphs (B)(2)(c) and (B)(3) of this rule. When the judge extends the time, the judge promptly must notify the clerk of courts of the extension order.
Paragraph (B)(5) addresses the situation in which the judge does not comply with the rule's time limits. The clerk of courts is required to give the judge notice that the 90-day time period has expired. Further non-compliance requires the clerk to bring the case to the attention of the Supreme Court, which is responsible for the administration of the unified judicial system.
It is expected, if there are extenuating circumstances why the judge cannot act within the time limits of the rule, the judge will provide a written explanation to the Supreme Court.
Paragraph (B)(7) 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 114 with regard to any orders entered pursuant to this rule.
Committee Explanatory Reports:
* * * * * Report explaining the proposed amendments concerning extensions of time and sanctions published at 29 Pa.B. 6462 (December 25, 1999). Supplemental Report published at 30 Pa.B. 2578 (May 26, 2000).
SUPPLEMENTAL REPORT
Proposed Amendments to Pa.R.Crim.P. 1509
POST-CONVICTION COLLATERAL RELIEF PETITION--DEATH PENALTY CASES DISPOSITION: TIME LIMITS; EXTENSIONS; SANCTIONS I. Background
On December 25, 1999, the Committee published for comment a proposal for changes that (1) would have added 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 (2) in both capital and noncapital cases, would have permitted 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, provided the petition be deemed denied. The proposed deemed denied procedures were similar to the Rule 1410 (Post-Sentence Procedures; Appeal) deemed denied procedure, and were intended to insure the judge acted within the time limits set by the rules.
The Committee received a number of publication responses expressing concerns about the deemed denied portion of the proposal as it applied in death penalty cases. In view of these comments, the Committee agreed to take another look at the issue in the death penalty context. As a result of this reexamination, the Committee is proposing another approach to the problem of delays in the disposition of petitions for post-conviction collateral relief in death penalty cases, as explained in this Supplemental Report.5
II. Discussion
The Committee is proposing as an alternative to the deemed denied provision a procedure whereby the clerk of courts will notify the judge when the 90-day time limit for disposition of the petition, or the 30-day extension, if any, has expired. This notice will start another 30-day clock running. If the judge does not dispose of the petition within this 30-day grace period, the clerk will be required to notify the Supreme Court.6 This procedure provides the judge with a ''friendly'' reminder in case the time just slipped by, and an opportunity to dispose of the petition before more severe consequences occur. In those few cases in which a judge fails to comply within the time limits after notice, the procedure gets the case squarely before the governing authority charged with supervising judges and the unified judicial system--the Supreme Court. The Committee thinks this proposed procedure will work well to move cases along without the dire consequences of an automatic deemed denied provision.7
The Committee agreed the clerk of courts should be responsible for the notification since this is an issue of tracking cases, and it is reasonable for the clerk to remind the judge of the dead lines imposed by the Supreme Court. Furthermore, the clerk of courts is a judicial officer and already has similar responsibilities in the context of Rule 1410 with regard to tracking the time limits for post-sentence motions and issuing the orders. The members also noted that there are not that many death penalty cases, so adding this responsibility to the duties of the clerk of courts would not create an onerous burden, particularly outside Philadelphia.
The changes to implement the notice procedure would appear as new paragraphs (B)(5) and (6). Paragraph (5) would require the clerk of courts to send a notice to the judge, enter the date and time of the notice on the docket, and send a copy of the notice to the attorney for the Commonwealth, the defendant, and defense counsel, if any. Paragraph (6) would require the clerk to send a notice to the Supreme Court if the judge does not dispose of the petition within a 30-day grace period after the clerks' notice, and similarly requires entry of the date and time of the notice on the docket, and copies of the notice to the parties. The Comment suggests in those cases in which the judge has a justification for the non-compliance, it would be prudent for the judge to provide the Court with a written explanation for the delay.
During the Committee's discussions of the time limits and the notice procedures, we noted that the addition of the time limits has generated questions about whether a PCRA hearing may be continued to allow, for example, for briefing and argument on certain points or for time to have a defendant returned from a state prison facility, and what effect these ''delays'' would have on the time limits. The Committee agreed that the hearing could be continued without impacting on the time limits. Accordingly, as part of this proposal, we are adding a Comment provision explaining the judge may continue a hearing and the 90-day time limit would not start to run until after the hearing is concluded.
______
1 Rule 1509 will become Rule 909 as part of the reorganization and renumbering of the rules adopted March 1, 2000, effective April 1, 2001.
2 Rule 1506 will become Rule 906 as part of the reorganization and renumbering of the rules adopted March 1, 2000, effective April 1,2001.
3 Rule 1508 will become Rule 908 as part of the reorganization and renumbering of the rules adopted March 1, 2000, effective April 1, 2001.
4 Rule 9025 will become Rule 114 as part of the reorganization and renumbering of the rules adopted March 1, 2000, effective April 1, 2001.
5 All the other proposed changes to Rule 1509 explained at 29 Pa.B. 6466 (December 25, 1999) remain the same, and are not re-discussed in this Supplemental Report.
6 The Committee considered, but rejected, placing the notice requirements with the Commonwealth. We agreed that this notice procedure was one of judicial administration, a function that should not be place on the attorney for the Commonwealth. In addition, there was some concern that the mere filing of a ''failure to act'' petition could result in some judges reacting negatively and taking action adverse to the Commonwealth.
7 The Committee has limited this proposal to death penalty cases, and has tabled the deemed denied proposal as to all other PCRA cases until we see how the notice provisions in death penalty cases work in practice. If the proposed procedure accomplishes the goal of moving these cases along and reduces judicial delay in disposition of the petitions, the Committee may consider proposing this procedure for all PCRA cases. In the interim, as an aid to the Committee in monitoring the delays in disposition of PCRA petitions, arrangements are being made through the acting State Court Administrator and Chief Justice for the Administrative Office of Pennsylvania Courts to conduct a statewide survey concerning the amount of time that lapses between the filing of the PCRA petition and the hearing on the petition. (The post-hearing delay already is reported by judges on the judges R.J.A. 703 reports.)
[Pa.B. Doc. No. 00-875. Filed for public inspection May 26, 2000, 9:00 a.m.]
No part of the information on this site may be reproduced for profit or sold for profit.This material has been drawn directly from the official Pennsylvania Bulletin full text database. Due to the limitations of HTML or differences in display capabilities of different browsers, this version may differ slightly from the official printed version.
