THE COURTS
[ 234 PA. CODE CH. 9 ]
Proposed Amendments to Pa.Rs.Crim.P. 907, 908 and 909, and the Revision of the Comment to Pa.R.Crim.P. 910
[40 Pa.B. 4147]
[Saturday, July 24, 2010]The Criminal Procedural Rules Committee is planning to recommend that the Supreme Court of Pennsylvania amend Rules of Criminal Procedure 907—909 (relating to disposition without hearing; hearing; and procedures for petitions in death penalty cases: stays of execution of sentence; hearing; disposition), and approve the revision of the Comment to Rule of Criminal Procedure 910 (relating to appeal). The proposed changes clarify that a new notice of appeal has to be filed within 30 days of the order reinstating the direct appeal rights nunc pro tunc. The proposed changes also clarify the requirements for issuing and filing orders following a PCRA disposition. This proposal has not been submitted for review by the Supreme Court of Pennsylvania.
The following explanatory Report highlights the Committee's considerations in formulating this proposal. Note that the Committee's Report 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 amendments to the Rules precedes the Report. Additions are shown in bold; deletions are in bold and brackets.
We request that interested persons submit suggestions, comments or objections concerning this proposal in writing to the Committee through counsel:
Anne T. Panfil, Counsel
Supreme Court of Pennsylvania
Criminal Procedural Rules Committee
Pennsylvania Judicial Center
601 Commonwealth Avenue, Suite 6200
P. O. Box 62635
Harrisburg, PA 17106-2635
fax: (717) 231-9521
e-mail: criminalrules@pacourts.usno later than Friday, September 17, 2010.
By the Criminal Procedural Rules Committee
RISA VETRI FERMAN,
Chair
Annex A
TITLE 234. RULES OF CRIMINAL PROCEDURE
CHAPTER 9. POST-CONVICTION COLLATERAL PROCEEDINGS Rule 907. Disposition Without Hearing.
Except as provided in Rule 909 for death penalty cases,
* * * * * (4) When the petition is dismissed without a hearing, the judge promptly 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 limits within which the appeal must be [taken] filed. The order shall be filed and served as provided in Rule 114.
(5) When the petition is granted without a hearing, the judge promptly shall issue an order granting a specific form of relief, and issue any supplementary orders appropriate to the proper disposition of the case. The order shall be filed and served as provided in Rule 114.
Comment * * * * * Second or subsequent petitions will not be entertained unless a strong prima facie showing is offered to demonstrate that a miscarriage of justice may have occurred. See Commonwealth v. Szuchon, 534 Pa. 483, 486, 633 A.2d 1098, 1099 ([Pa.] 1993) (citing Commonwealth v. Lawson, 519 Pa. 504, 549 A.2d 107 ([Pa.] 1988)). This standard is met if the petitioner can demonstrate either: (1) that the proceedings resulting in the petitioner's conviction were so unfair that a miscarriage of justice occurred which no civilized society can tolerate; or (2) that the petitioner is innocent of the crimes charged. See Commonwealth v. Szuchon, 534 Pa. 483, 487, 633 A.2d 1098, 1100 ([Pa.] 1993).
When the disposition granting a petition reinstates a defendant's direct appeal rights nunc pro tunc, the judge must advise the defendant by certified mail, return receipt requested that a new notice of appeal must be filed within 30 days of the order.
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.
* * * * * 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; renumbered Rule 907 and amended March 1, 2000, effective April 1, 2001; Comment revised September 18, 2008, effective February 1, 2009; amended , 2010, effective , 2010.
Committee Explanatory Reports:
* * * * * Final Report explaining the March 1, 2000 reorganization and renumbering of the rules published with the Court's Order at 30 Pa.B. [1477] 1478 (March 18, 2000).
Final Report explaining the September 18, 2008 revision of the Comment concerning the United States Postal Service's return receipt electronic option published with the Court's Order at 38 Pa.B. [5428] 5431 (October 4, 2008).
Report explaining the proposed amendments to paragraph (4) and the addition of paragraph (5) concerning orders and the proposed revision of the Comment concerning appeals nunc pro tunc published at 40 Pa.B. 4149 (July 24, 2010).
Rule 908. Hearing.
* * * * * (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[;].
[(2)] (1) If the judge dismisses the petition, the judge promptly shall issue an order denying relief [or]. The order shall be filed and served as provided in Rule 114.
(2) If the judge grants the petition, the judge promptly shall issue an order granting a specific form of relief, and issue any supplementary orders appropriate to the proper disposition of the case. The order shall be filed and served as provided in Rule 114.
(E) If the judge disposes of the case in open court in the presence of the defendant at the conclusion of the hearing, the judge shall advise the defendant on the record of the right to appeal from the final order disposing of the petition and of the time within which the appeal must be taken. If the case is taken under advisement, or when the defendant is not present in open court, the judge, by certified mail, return receipt requested, shall advise the defendant of the right to appeal from the final order disposing of the petition and of the time limits within which the appeal must be filed.
Comment * * * * * 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.
When the disposition reinstates a defendant's direct appeal rights nunc pro tunc, the judge, pursuant to paragraph (E), also must advise the defendant that a new notice of appeal must be filed within 30 days of the order reinstating the direct appeal rights.
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.
* * * * * Official Note: Rule 1508 adopted February 1, 1989, effective July 1, 1989; amended August 11, 1997, effective immediately; renumbered Rule 908 and amended March 1, 2000, effective April 1, 2001; Comment revised September 18, 2008, effective February 1, 2009; amended , 2010, effective 2010.
Committee Explanatory Reports:
* * * * * Final Report explaining the March 1, 2000 reorganization and renumbering of the rules published with the Court's Order at 30 Pa.B. [1477] 1478 (March 18, 2000).
Final Report explaining the [Setpember] September 18, 2008 revision of the Comment concerning the United States Postal Service's return receipt electronic option published with the Court's Order at 38 Pa.B. [5428] 5431 (October 4, 2008).
Report explaining the proposed amendments to paragraphs (D) and (E) concerning orders and notice to the defendant, and the proposed revision of the Comment concerning appeals nunc pro tunc published at 40 Pa.B. 4149 (July 24, 2010).
Rule 909. Procedures for Petitions in Death Penalty Cases: Stays of Execution of Sentence; Hearing; Disposition.
* * * * * (B) Hearing; Disposition
* * * * * (2) If the judge is satisfied from this review that there are no genuine issues concerning any material fact, the defendant is not entitled to post-conviction collateral relief, and no legitimate purpose would be served by any further proceedings,
* * * * * (c) No later than 90 days from the date of the notice, or from the date of the defendant's response, the judge shall issue an order:
(i) [dismiss] dismissing the petition [and issue an order to that effect];
(ii) [grant] granting the defendant leave to file an amended petition; or
(iii) [order] ordering that an evidentiary hearing be held on a date certain.
The order shall be filed and served as provided in Rule 114.
* * * * *
Comment * * * * * When the disposition reinstates a defendant's direct appeal rights nunc pro tunc, the judge must advise the defendant either in person or by certified mail, return receipt requested that a new notice of appeal must be filed within 30 days of the order.
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.
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 February 12, 2002, effective July 1, 2002, 32 Pa.B. 1173; amended October 7, 2005, effective February 1, 2006; amended , 2010, effective , 2010.
Committee Explanatory Reports:
* * * * * Report explaining the proposed amendments to paragraph (2)(c) concerning orders and the revision of the Comment concerning appeals nunc pro tunc published at 40 Pa.B. 4149 (July 24, 2010).
Rule 910. Appeal.
* * * * *
Comment Disposition without a hearing under Rule 907(A) and (B), or under Rule 909(C)(3)(a), constitutes a final order under this rule. A partial disposition under Rule 907(C) is not a final order until the judge has fully disposed of all claims.
When the disposition reinstates a defendant's direct appeal rights nunc pro tunc, a new notice of appeal must be filed within 30 days of the order.
Official Note: Previously Rule 1509, adopted February 1, 1989, effective July 1, 1989; renumbered Rule 1510 and amended August 11, 1997, effective immediately; renumbered Rule 910 and Comment revised March 1, 2000, effective April 1, 2001; Comment revised , 2010, effective , 2010.
Committee Explanatory Reports:
* * * * * Final Report explaining the March 1, 2000 reorganization and renumbering of the rules published with the Court's Order at 30 Pa.B. [1477] 1478 (March 18, 2000).
Report explaining the proposed Comment revision concerning appeal nunc pro tunc published at 40 Pa.B. 4149 (July 24, 2010).
REPORT
Proposed Amendments to Pa.Rs.Crim.P. 907, 908, and 909, and the Revision of the Comment to Pa.R.Crim.P. 910
Time to File Appeal Nunc Pro Tunc I. Introduction
The Committee is planning to propose to the Supreme Court revisions of the Comments to Rules of Criminal Procedure 907 (Disposition Without Hearing), 908 (Hearing), 909 (Procedures for Petitions in Death Penalty Cases: Stays of Execution of Sentence; Hearing; Disposition), and 910 (Appeal) that clarify that a new notice of appeal must be filed within 30 days of the order reinstating the defendant's direct appeal rights nunc pro tunc. The Committee also is proposing amendments to Rules of Criminal Procedure 907, 908, and 909 that clarify the procedures for the issuing and filing of orders in PCRA dispositions.
The Appellate Court Procedural Rules Committee noted from case law and anecdotal information from its members that apparently there is confusion about the procedures for proceeding with a direct appeal nunc pro tunc. Specifically, some defendants do not understand that they must file a new notice of appeal and that the time for filing is within 30 days of the order reinstating the direct appeal right. The Appellate Court Rules Committee asked the Criminal Procedural Rules Committee to consider clarifying this issue in the Criminal Rules when the reinstatement of appellate rights occurs in procedures under the Post Conviction Relief Act (PCRA).
The Committee reviewed the rules in Chapter 9 (Post-Conviction Collateral Relief Proceedings), noting that Rules 907, 908, and 909 require the judge to advise the defendant of his or her appeal rights following the disposition the PCRA petition. The members initially thought the rules already provide adequate notice even for the reinstated appeal case following the granting of a PCRA petition. After further consideration, because there is confusion in practice, the members agreed something should be said in the rules. However, because this clarification would be how to handle a particular type of case—appeals nunc pro tunc—that already is covered generally in the rule requirements that the judge advise the defendant of his or her right to appeal, the clarification should be in the Comments to the rules. Accordingly, the Comments to Rules 907, 908, and 909 would be revised to emphasize that, when appellate rights have been reinstated, the PCRA judge must advise the defendant that a new notice of appeal is required to be filed within 30 days of the order reinstating the direct appeal rights nunc pro tunc. In addition, because Rule 910 addresses appeals following a PCRA disposition, a comparable provision would be add to the Rule 910 Comment.
During the Committee's examination of Rules 907, 908, and 909, several members opined that the provisions concerning the issuing of orders following the disposition of a petition are incomplete because the rules do not explicitly require an order when the petition is granted nor do the rules require the orders be filed. The Committee agreed the rules should be amended to clarify the procedures governing the issuing and filing of orders in PCRA cases to ensure there is no confusion about these procedures.
II. Discussion of Proposed Rule Changes
Rule 907
Rule 907 sets forth the procedures for the disposition of a PCRA petition without a hearing. Paragraph (4) requires a judge to issue an order when the petition is dismissed. The Committee is proposing the paragraph be amended to include the requirement that the judge act promptly and that the order be filed and served as provided in Rule 114. A new paragraph (5) would be added to set forth the procedures when a petition is granted. This new paragraph conforms with the provisions in Rule 908(D)(2) with regard to issuing supplementary orders appropriate to the disposition of the cases.
The Comment includes the new language emphasizing the judge's responsibility to advise the defendant to file a new notice of appeal when the disposition is the reinstatement of the defendant's appellate rights and that the notice of appeal must be filed within 30 days of the order reinstating the appellate rights. Similar language is being included in the Comments to Rules 908 and 909.
In addition, an explanatory paragraph is added concerning the obligation of the clerk of courts to comply with the requirements for Rule 114 comparable to the paragraph in the Rule 909 Comment.
Rule 908
Rule 908 sets forth the procedures for the hearing on a PCRA petition. Paragraph (D) addresses what is to occur at the conclusion of the hearing. The Committee is proposing that the paragraph be restructured and amended to more clearly enumerate the judge's responsibilities at the conclusion of the hearing. Current paragraph (D)(1) would be moved into paragraph (D) to read:
Upon the conclusion of the hearing, the judge shall 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.Current paragraph (D)(2) would be reorganized into two subparagraphs. New paragraph (D)(1) would provide the procedures when the judge dismisses the petition and new paragraph (D)(2) would provide the procedures when the judge grants the petition. In both situations, the judge is required to act promptly and the order must be filed and served as provided in Rule 114.
The Committee also is proposing some clarifying amendments to paragraph (E). Paragraph (E) permits the judge to announce the decision in open court or to take the matter under advisement. The proposed amendments emphasize the difference in the method of providing notice to the defendant of the appellate rights (1) when the decision is announced in open court with the defendant present and (2) when the defendant is not present, or when the matter is taken under advisement.
Rule 909
Rule 909 governs procedures specifically related to death penalty cases. Paragraph (B)(2)(c) sets forth the actions the judge must take following giving notice of an intention to dismiss the petition. The Committee is proposing a few housekeeping amendments and the addition of the requirement that the judge's order be filed and served as provided in Rule 114.
Rule 910
Rule 910 provides that the orders under the PCRA rules granting, denying, dismissing, or otherwise finally disposing of the PCRA petition is a final order for purposes of appeal. The only change being proposed for Rule 910 is the addition to the Comment of the provision clarifying that when the disposition is the reinstatement of the defendant's appellate rights, the new notice of appeal must be filed within 30 days of the order.
[Pa.B. Doc. No. 10-1319. Filed for public inspection July 23, 2010, 9:00 a.m.]
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