THE COURTS
Title 234--RULES OF CRIMINAL PROCEDURE
[234 PA. CODE CH. 9]
Order Amending Rule 900; No. 280 Criminal Procedural Rules; Doc. No. 2
[32 Pa.B. 1840] The Criminal Procedural Rules Committee has prepared a Final Report explaining the amendments to Rule of Criminal Procedure 900 (Scope; Notice in Death Penalty Cases). The rule changes require the Supreme Court's Prothonotary in capital cases to provide in the mailing required by Appellate Rule 2521(a) notice of the information concerning the Post Conviction Relief Act (PCRA) and the procedures under Chapter 9 of the Criminal Rules with regard to the time for filing a PCRA petition and counsel. These changes will ensure defendants in death penalty cases receive timely notice of the PCRA information. The Final Report follows the Court's Order.
Order Per Curiam
Now, this 26th day of March, 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 Rule of Criminal Procedure 900 is amended in the following form.
This Order shall be processed in accordance with Pa.R.J.A. 103(b), and shall be effective July 1, 2002.
Chief Justice Zappala files a dissenting statement in which Mr. Justice Nigro joins.
Annex A
TITLE 234. RULES OF CRIMINAL PROCEDURE
CHAPTER 9. POST-CONVICTION COLLATERAL PROCEEDINGS Rule 900. Scope; Notice In Death Penalty Cases.
(A) The rules in Chapter 9 apply to capital and noncapital cases under the Post Conviction Relief Act, 42 Pa.C.S. §§ 9541--9546, as amended by Act 1995-32 (SS1).
(B) Notice in Death Penalty Cases
In all death penalty cases upon the Supreme Court's affirmance of the judgment of a death sentence, the Prothonotary shall include in the mailing required by Pa.R.A.P. 2521 (Entry of Judgment or Other Order) the following information concerning the Post Conviction Relief Act and the procedures under Chapter 9 of the Rules of Criminal Procedure. ''Parties'' as used in Pa.R.A.P. 2521 shall include the defendant, the defendant's counsel, and the attorney for the Commonwealth for the purposes of this rule.
(1) A petition for post-conviction collateral relief must be filed within one year of the date the judgment becomes final, except as otherwise provided by statute.
(2) As provided in 42 Pa.C.S. § 9545(b)(3), 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, or at the expiration of time for seeking the review.
(3) (a) If the defendant fails to file a petition within the one-year time limit, the action may be barred. See 42 Pa.C.S. § 9545(b).
(b) Any issues that could have been raised in the post-conviction proceeding, but were not, may be waived. See 42 Pa.C.S. § 9544(b).
(4) Pursuant to Rule 904 (Appointment of Counsel; in Forma Pauperis), the trial judge will 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.
Comment * * * * * Under the 1995 amendments to the PCRA, a petition for post-conviction relief, including second and subsequent petitions, must be filed ''within one year of the date the judgment becomes final,'' 42 Pa.C.S. § 9545(b)(1), unless one of the statutory exceptions applies, see 42 Pa.C.S. § 9545(b)(1)(i)--(iii). Any petition invoking one of these exceptions must be filed within 60 days of the date the claim could have been presented. See 42 Pa.C.S. § 9545(b)(2).
See Rule 904 for the procedures for the appointment of counsel.
Pursuant to paragraph (B), the Supreme Court's Prothonotary must include with the mailing required by Rule of Appellate Procedure 2521 (Entry of Judgment or Other Order) the information set forth in paragraph (B)(1)--(4). Rule 2521 requires, inter alia, on the date a judgment or order is entered, that the prothonotary is to send to all parties by first class mail a copy of any opinion, or judgment, or order.
Official Note: Rule 1500 adopted August 11, 1997, effective immediately; Comment revised July 23, 1999, effective September 1, 1999; renumbered Rule 900 and amended March 1, 2000, effective April 1, 2001; amended March 26, 2002, effective July 1, 2002.
Committee Explanatory Reports:
* * * * * Final Report explaining the March 26, 2002 amendments providing for notice in death penalty cases published with the Court's Order at 32 Pa.B. 1841 (April 13, 2002).
FINAL REPORT1
Amendments to Pa.R.Crim.P. 900
POST CONVICTION COLLATERAL PROCEEDINGS: NOTICE IN DEATH PENALTY CASES Introduction
On March 26, 2002, effective July 1, 2002, upon the recommendation of the Criminal Procedural Rules Committee, the Court amended Rule of Criminal Procedure 900 (Scope; Notice in Death Penalty Cases). The rule changes require the Supreme Court's Prothonotary in capital cases to provide in the mailing required by Appellate Rule 2521(a) notice of the information concerning the time for filing a PCRA petition under the Post Conviction Relief Act (PCRA) and the procedures concerning counsel under Chapter 9 of the Criminal Rules.2 The notice is to be given to the defendant, defense counsel, and the attorney for the Commonwealth.3 These changes will ensure defendants in death penalty cases receive timely notice of the PCRA information.
Discussion
1. Placement
The first consideration concerning the new PCRA notice provision was placement. The Committee agreed that the provision should be in Chapter 9, because this is the first section of rules that concerns post-conviction procedures. In addition, because we had been advised that the Court thought the notice should be given upon the affirmance by the Court of the judgment of a death sentence, we noted that the time for the notice precedes all the procedures in Chapter 9, and therefore should be placed at the beginning of the Chapter. The new procedures have been incorporated into Rule 900: the title has been amended to ''Scope; Notice in Death Penalty Cases;'' and a new subsection (B) has been added.
2. Service of the Notice
The next consideration was who should be required to provide the PCRA notice. The Committee identified four choices: the Supreme Court's Prothonotary, the trial judge, the clerk of courts for the judicial district in which the trial had been held, or the defendant's counsel.
As the Committee evaluated the choices, we noted that Pa.R.A.P. 2521 (Entry of Judgment or Other Order) requires, inter alia, that
The prothonotary shall, on the date a judgment or other court order is entered, send by first class mail to all parties a copy of the opinion, if any, or of the judgment or other order if no opinion was written.Therefore, there already is in place a mechanism for providing the PCRA notice, since the Supreme Court's Prothonotary is required to mail information upon the affirmance of the judgment of a death sentence. The Committee did not think that adding the PCRA notice to the information required by Appellate Rule 2521 would be a significant change from the present practice, and this seemed the most efficient means of getting the notice to the defendant.
In addition to the existing Appellate Rule 2521 mailing requirement, several other considerations persuaded the Committee that the Supreme Court's Prothonotary should serve this PCRA notice. These considerations are:
(1) because the number of death penalty cases is relatively few, the additional requirement of service on the defendant will not place an undue burden on the Prothonotary;4
(2) the requirement would reduce the likelihood of confusion, delays, and mistakes that otherwise might arise if the Criminal Rules required the clerk of courts or trial judge to give the PCRA notice, while the Appellate Rules required the Supreme Court's Prothonotary to give notice of the judgment;
(3) the Supreme Court is the last body in which there has been an entry of appearance for defense counsel, so the Prothonotary knows who counsel is, and where to locate him or her for purposes of providing notice;
(4) not all defendants are represented at this stage of the proceedings, which would necessitate an alternative procedure for unrepresented defendants, and having two procedures would lead to confusion;
(5) it has been the experience of some members that the Department of Corrections (DOC) does not forward mail from counsel, and the Committee anticipated that mail from the Supreme Court's Prothonotary would receive more respect;5 and
(6) the reality that service on the attorney unfortunately is no assurance that the defendant will get the notice.6
A final consideration examined by the Committee was the impact of Rule 904(F) concerning the appointment of counsel in death penalty cases that was adopted by the Court in 2000. Although in one respect, the immediate appointment of counsel may appear to diminish the need for the notice, because of the timing of the appointment of counsel under Rule 904(F), in fact there is a great need for prompt notice to the defendant.7 Accordingly, the Committee concluded Rule 904(F) further supports its view that the Prothonotary should serve the defendant because (1) new counsel is likely to be appointed at some point in death penalty cases, which diminishes present counsel's sense of responsibility to ensure the defendant receives the notice, and (2) ensuring the defendant receives prompt notice will encourage the defendant at the earliest time to request counsel, and will promote discussion between the defendant and counsel.
3. Coordination with Appellate Rules
Having agreed upon the Supreme Court's Prothonotary as the individual to provide the PCRA notice as part of the Appellate Rule 2521 mailing, the Committee discussed whether this matter should be addressed by the Appellate Rules Committee instead of the Criminal Rules Committee. We considered that this is an area that is an intersection of the scope of the Criminal and Appellate Rules, because the PCRA notice would go out at the completion of direct review, but before collateral review begins. The Committee ultimately agreed that, since the PCRA notice concerned a defendant's rights and requirements under the PCRA and Chapter 9 of the Criminal Rules, and, therefore, was inextricably tied to the PCRA procedures, it was appropriate for the PCRA notice provision to appear in the Criminal Rules.
At the same time, we recognized that because of the close interrelationship with the Appellate Rules, it made sense to coordinate the Rule 900 changes with the Appellate Court Procedural Rules Committee. Given the gravity of death penalty cases, the respective Committees agreed the identical notice requirements should be spelled out in both rules, with correlative cross-references in the Rule 900 Comment and the Rule 2521 Note.
4. Description of Rule 900(B) Provisions
New paragraph (B) is titled ''Notice in Death Penalty Cases.'' The introductory paragraph includes an explanation that ''[f]or purposes of this rule, 'parties' as used in Pa.R.A.P. 2521 shall include the defendant, defendant's counsel, and the attorney for the Commonwealth.'' The Committee agreed that this provision was necessary because we had learned during our development of these changes that, although Appellate Rule 2521 provides for the mailing to go to the ''parties,'' the Prothonotary ordinarily does not send the Appellate Rule 2521 information to the defendant, and we wanted to ensure the defendant would receive a copy even if represented.
The required contents of the PCRA notice are set forth in new paragraphs (B)(1)-(4), and include the PCRA's time requirements and the Rule 904 notice of the right to counsel for the first petition. Paragraph (B)(1) gives notice of the one-year filing requirements of the PCRA. For purposes of uniformity, the Committee has used the Rule 901(A) wording to explain this one-year time limit for filing, and has added a Comment explanation with a citation to the relevant statutory provisions, comparable to the Rule 901 Comment. The statutory definition of ''final judgment'' is set forth in paragraph (B)(2).
Paragraph (B)(3) provides the information about the consequences of failing to file a timely petition, and of failing to raise an issue in the petition. Because the statute is silent concerning the consequences of failing to file a PCRA petition within the one-year time limit, subparagraph (B)(3)(a) explains that the PCRA action may be barred if the defendant fails to file a timely petition, with a citation to 42 Pa.C.S. § 9545(b), which provides the time limitations and the exceptions. Similarly, subparagraph (B)(3)(b) explains that issues that were not raised may be waived, with a citation to 42 Pa.C.S. § 9544(b), which addresses waiver of issues.
The Committee also agreed that the PCRA notice should advise the defendant of the Rule 904 counsel provisions for first petitions. The Committee believes, especially in death penalty cases, that the importance of counsel in the preparation of the first PCRA petition cannot be minimized, and the addition of the Rule 904(F) counsel information to the PCRA notice is vital. Furthermore, the counsel notice is consistent with the reason for providing PCRA notice upon the affirmance of the judgment of a sentence of death--the defendant should receive notice of the information concerning time limits on filing and counsel at the earliest time to ensure that first petitions are timely filed and properly prepared. This we believe, in turn, will minimize, if not eliminate, second and subsequent petitions.
[Pa.B. Doc. No. 02-563. Filed for public inspection April 12, 2002, 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.
2 Appellate Rule 2521 (Entry of Judgment or Other Order) also has been amended to include the same notice requirements.
3 Chief Justice Zappala and Justice Nigro dissented from that portion of the amendments that requires the Prothonotary to provide notice to the defendant, rather than solely to defense counsel.
4 The Committee confirmed that annually there are relatively few death penalty cases for which the Rule 900 notice would be sent. In 1999, there were 42 affirmances of the judgment of the sentence of death, in 2000, there were 19, and, as of the end of July 2001, there had been five.
5 From communications with the DOC, it is the Committee's understanding that the PCRA notices in death penalty cases would be treated in the same manner as the death warrants; they would be delivered by the institutions' personnel directly to the defendants, and a log of the delivery would be kept for purposes of proof of service.
6 Point (6) is more difficult to quantify, yet is the most troubling and most difficult to correct. The members noted their experience has been that some attorneys are not as conscientious about communicating with their clients, particularly after the client has been sentenced, even in death penalty cases. The members are concerned both about the delay attorneys might create if required to provide the notice, and also about the potential for lack of any transfer of the notice by the attorneys, thereby resulting in a defendant losing the opportunity to pursue collateral review of the death sentence.
7 It has been the members' experience since Rule 904(F) became effective, that it is not being followed in every case. We believe by promptly serving the defendant with the PCRA notice, the defendant then will request counsel, thus alerting the trial court to the need to proceed pursuant to Rule 904(F).
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.
