THE COURTS
Title 234--RULES OF CRIMINAL PROCEDURE
[234 PA. CODE CHS. 1 AND 9]
Order Amending Rules 902 and 904, and Approving the Revision of the Comment to Rule 120; No. 277; Criminal Procedural Rules Doc. No. 2
[32 Pa.B. 1391] The Criminal Procedural Rules Committee has prepared a Final Report explaining the amendments to Rules of Criminal Procedure 902 (Content of Petition for Post-Conviction Collateral Relief; Request for Discovery) and 904 (Appointment of Counsel; In Forma Pauperis), and approved a correlative revision of the Comment to Rule 120 (Attorneys--Appearances and Withdrawals). The rule changes require (1) the defendant to verify on the petition for post-conviction collateral relief that the attorney filing the petition is authorized to act on the defendant's behalf, and (2) any attorney representing a defendant in post-conviction collateral relief proceedings to file a written entry of appearance. The Final Report follows the Court's Order.
Order Per Curiam:
Now, this 26th day of February, 2002, upon the recommendation of the Criminal Procedural Rules Committee; the proposal having been submitted without publication pursuant to Pa.R.J.A. 103(a)(3) in the interests of justice, 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) Rules of Criminal Procedure 902 and 904 are amended; and
(2) the revisions to the Rule 120 Comment are approved all in the attached form.
This Order shall be processed in accordance with Pa.R.J.A. 103(b), and shall be effective July 1, 2002.
Annex A
TITLE 234. RULES OF CRIMINAL PROCEDURE
CHAPTER 1. SCOPE OF RULES, CONSTRUCTION AND DEFINITIONS, LOCAL RULES
PART B. Counsel Rule 120. Attorneys--Appearances and Withdrawals.
* * * * *
Comment * * * * * See Rule 904(A) that requires an attorney who has been retained or appointed to represent a defendant during post-conviction collateral proceedings to file a written entry of appearance.
Official Note: Adopted June 30, 1964, effective January 1, 1965; formerly Rule 303, renumbered Rule 302 and amended June 29, 1977 and November 22, 1977, effective as to cases in which the indictment or information is filed on or after January 1, 1978; amended March 22, 1993, effective January 1, 1994; renumbered Rule 120 and amended March 1, 2000, effective April 1, 2001; Comment revised February 26, 2002, effective July 1, 2002.
Committee Explanatory Reports:
* * * * * Final Report explaining the February 26, 2002 Comment revision adding the cross-reference to Rule 904 published with the Court's Order at 32 Pa.B. 1393 (March 16, 2002).
CHAPTER 9. POST-CONVICTION COLLATERAL PROCEEDINGS Rule 902. Content of Petition for Post-Conviction Collateral Relief; Request for Discovery.
(A) A petition for post-conviction collateral relief shall bear the caption, number, and court term of the case or cases in which relief is requested and shall contain substantially the folowing information:
* * * * * (14) a verification by the defendant that:
(1) the facts set forth in the petition are true and correct to the best of the defendant's personal knowledge or information and belief and that any false statements therein are made subject to the penalties of the Crimes Code, 18 Pa.C.S. § 4904, relating to unsworn falsification to authorities; and
(2) the attorney filing the petition is authorized by the defendant to file the petition on the defendant's behalf;
* * * * *
Comment Whether privately retained or appointed, the attorney must enter an appearance as provided in Rule 904.
Paragraph (A)(14) was amended in 2002 to require the defendant to include a verification that the attorney is authorized to file the petition.
Pursuant to paragraph (A)(6), the petition should include specific information about the sentence imposed, including whether the defendant is currently serving a sentence of imprisonment or probation for the crime; awaiting execution of a sentence of death for the crime; or serving a sentence which must expire before the defendant may commence serving the disputed sentence; the minimum and maximum terms of the sentence; the amount of fine or restitution, if any; and whether the defendant is released on parole. See 42 Pa.C.S. § 9543(a).
* * * * * [(v)] Deleted by statute.
* * * * * ''(4) That the failure to litigate the issue prior to or during trial . . . , or on direct appeal could not have been the result of any rational, strategic or tactical decision by counsel.'' See 42 Pa.C.S. § 9543(a)(2), (3), and (4). (Note: the statutory reference to unitary review in this paragraph is not shown in view of the Court's 1997 suspension of the Capital Unitary Review Act.)
* * * * * 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 903 and 905. 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; renumbered Rule 902 and Comment revised March 1, 2000, effective April 1, 2001; amended February 26, 2002, effective July 1, 2002.
Committee Explanatory Reports:
* * * * * Final Report explaining the February 26, 2002 amendments concerning verification of counsel published with the Court's Order at 32 Pa.B. 1393 (March 16, 2002).
Rule 904. Entry of Appearance and Appointment of Counsel; In Forma Pauperis.
(A) Counsel for defendant shall file a written entry of appearance with the clerk of courts promptly after being retained or appointed, and serve a copy on the attorney for the Commonwealth. If a firm name is entered, the name of an individual lawyer shall be designated as being responsible for the conduct of the case.
[(A)] (B) Except as provided in paragraph [(F)] (G), 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)] (C) * * *
[(C)] (D) * * *
[(D)] (E) * * *
[(E)] (F) * * *
[(F)] (G) * * *
Comment * * * * * Paragraph [(F)] (G) 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.
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 907. 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; renumbered Rule 904 and amended March 1, 2000, effective April 1, 2001; amended February 26, 2002, effective July 1, 2002.
Committee Explanatory Reports:
* * * * * Final Report explaining the February 26, 2002 amendments concerning entry of appearance by counsel published with the Court's Order at 32 Pa.B. 1393 (March 16, 2002).
FINAL REPORT1
Amendments to Pa.Rs.Crim.P. 902 and 904,
Revision of the Comment to Pa.R.Crim.P. 120
POST-CONVICTION COLLATERAL PROCEEDINGS: VERIFICATION OF COUNSEL AND ENTRY OF APPEARANCE On February 26, 2002 effective July 1, 2002, upon the recommendation of the Criminal Procedural Rules Committee, the Court amended Rules of Criminal Procedure 902 (Content of Petition for Post-Conviction Collateral Relief; Request for Discovery) and 904 (Appointment of Counsel; In Forma Pauperis), and approved a correlative revision of the Rule 120 Comment (Attorneys--Appearances and Withdrawals). The rule changes require (1) the defendant to verify on the petition for post-conviction collateral relief that the attorney filing the petition is authorized to act on the defendant's behalf, and (2) any attorney representing a defendant in post-conviction collateral relief proceedings to file a written entry of appearance.
At the request of the Court, the Committee considered (1) what, if any, procedures should be developed to ensure that a petition for post-conviction collateral relief (PCRA) filed in a case has been authorized by the defendant; and (2) whether there should be specific procedures for the entry of appearance of counsel in post-conviction collateral proceedings. These questions arise in the PCRA context when a PCRA petition is filed by an attorney, and the attorney's authority to represent the defendant is questioned.
The Committee reviewed the filing and counsel procedures in Chapter 9 (Post-Conviction Collateral Proceedings) of the Criminal Rules. Rule 902(C) requires the defendant to ''state in the petition the name and address of the attorney who will represent the defendant. . . .'' Although we believe this requirement is clear, in view of the Court's request, the Committee agreed something more was needed in the rule for the defendant to indicate he or she had authorized the attorney to act on the defendant's behalf. Noting that paragraph (A)(14) requires the defendant to verify the truth of the facts in the petition, the Committee concluded the ''something more'' could be the addition of the defendant's verification of counsel.
The Committee also noted there is no entry of appearance provision comparable to Rule 120 (Attorneys--Appearances and Withdrawals) in the PCRA rules, and that Rule 120 is not applicable to collateral proceedings. Given the PCRA counsel-related problems central to the Court's inquiry, the Committee agreed it made sense to fill the void in the PCRA rules.
The following briefly describes the changes adopted to implement these considerations.
1. Rule 902 (Content of Petition for Post-Conviction Collateral Relief; Request for Discovery)
Rule 902(A)(14) is divided into two provisions making it clear that the defendant has two things to verify on the petition: (1) that the facts in the petition are true and correct; and (2) that the attorney filing the petition is authorized to file a petition on the defendant's behalf. In addition, a cross-reference to Rule 904 has been added in the Rule 902 Comment to alert attorneys to the entry of appearance requirements.
2. Rule 904 (Appointment of Counsel; In Forma Pauperis) and Rule 120 Comment (Attorneys--Appearances and Withdrawals)
Rule 904 has been amended by the addition of a new paragraph (A) requiring the attorney formally to enter his or her appearance for purposes of representing the defendant during post-conviction collateral relief proceedings. The language is similar to paragraph (A) of Rule 120 (Attorneys--Appearances and Withdrawals). In addition, the title to Rule 904 has been amended by adding ''Entry of Appearance and'' before ''Appointment of Counsel.''
Finally, to emphasize the need for the filing of an entry of appearance in all PCRA cases, a cross-reference to Rule 904 has been added to the Rule 120 Comment.
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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.
[Pa.B. Doc. No. 02-416. Filed for public inspection March 15, 2002, 9:00 a.m.]
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