THE COURTS
[ 234 PA. CODE CH. 9 ]
Order Amending Rules 907, 908 and 909 and Revising the Comment to Rule 910 of the Rules of Criminal Procedure; No. 415 Criminal Procedural Rules Doc.
[42 Pa.B. 5347]
[Saturday, August 18, 2012]
Order Per Curiam
And Now, this 27th day of July, 2012, upon the recommendation of the Criminal Procedural Rules Committee; the proposal having been published before adoption at 40 Pa.B. 4147 (July 24, 2010), and in the Atlantic Reporter (Second Series Advance Sheets, Vol. 995), 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) Pennsylvania Rules of Criminal Procedure 907, 908, and 909 are amended; and
(2) the Comment to Pennsylvania Rule of Criminal Procedure 910 is revised,
all in the following form.
This Order shall be processed in accordance with Pa.R.J.A. No. 103(b), and shall be effective September 1, 2012.
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 * * * * * 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.
For the requirements for appointment of counsel on second and subsequent petitions, see Rule 904(B).
Relief may be granted without a hearing under paragraph (2) only after an answer has been filed either voluntarily or pursuant to court order.
A PCRA petition may not be dismissed due to delay in filing except after a hearing on a motion to dismiss. See 42 Pa.C.S. § 9543(b) and Rule 908.
Nothing in this rule is intended to preclude a judicial district from utilizing the United States Postal Service's return receipt electronic option, or any similar service that electronically provides a return receipt, when using certified mail, return receipt requested.
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 July 27, 2012, effective September 1, 2012.
Committee Explanatory Reports:
Final Report explaining the August 11, 1997 amendments published with the Court's Order at 27 Pa.B. 4305 (August 23, 1997).
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 (October 4, 2008).
Final Report explaining the July 27, 2012 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 with the Court's Order at 42 Pa.B. 5349 (August 18, 2012).
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 judge's power, under paragraph (A), to deny a hearing on a specific factual issue is intended to apply when an issue of fact already has been heard fully, but has never been determined. The judge need not rehear such an issue, but would be required to determine it under paragraph (D).
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.
See also Rule 909 for procedures in death penalty cases.
Except as provided in Rule 902(E)(2) for first counseled petitions in death penalty cases, 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).
Nothing in this rule is intended to preclude a judicial district from utilizing the United States Postal Service's return receipt electronic option, or any similar service that electronically provides a return receipt, when using certified mail, return receipt requested.
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 July 27, 2012, effective September 1, 2012.
Committee Explanatory Reports:
Final Report explaining the August 11, 1997 amendments published with the Court's Order at 27 Pa.B. 4305 (August 23, 1997).
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 (October 4, 2008).
Final Report explaining the July 27, 2012 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 with the Court's Order at 42 Pa.B. 5349 (August 18, 2012).
Rule 909. Procedures for Petitions in Death Penalty Cases: Stays of Execution of Sentence; 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.
(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,
(a) the judge shall give notice to the parties of the intention to dismiss the petition and shall state in the notice the reasons for the dismissal.
(b) The defendant may respond to the proposed dismissal within 20 days of the date of the notice.
(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.
(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.
* * * * *
Comment Paragraph (A)(1) was added in 1999 to provide the avenue by which a defendant in a death penalty case may request a stay of execution. Failure to include a request for a stay in the petition for post-conviction collateral relief may not be construed as a waiver, and the defendant may file a separate request for the stay. In cases involving second or subsequent petitions when an application for a stay is filed separately from the PCRA petition, Commonwealth v. Morris, 565 Pa. 1, 33-34, 771 A.2d 721, 740-741 (2001), provides that the separate stay application ''must set forth: a statement of jurisdiction; if necessary, a statement that a petition is currently pending before the court; and a statement showing a likelihood of prevailing on the merits.''
* * * * * 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 July 27, 2012, effective September 1, 2012.
Committee Explanatory Reports:
* * * * * Final Report explaining the July 27, 2012 amendments to paragraph (2)(c) concerning orders and the revision of the Comment concerning appeals nunc pro tunc published with the Court's Order at 42 Pa.B. 5349 (August 18, 2012).
Rule 910. Appeal.
An order granting, denying, dismissing, or otherwise finally disposing of a petition for post-conviction collateral relief shall constitute a final order for purposes of 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 July 27, 2012, effective September 1, 2012.
Committee Explanatory Reports:
Final Report explaining the August 11, 1997 amendments published with the Court's Order at 27 Pa.B. 4305 (August 23, 1997).
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 July 27, 2012 Comment revision concerning appeal nunc pro tunc published with the Court's Order at 42 Pa.B. 5349 (August 18, 2012).
FINAL REPORT1
Amendments to Pa.Rs.Crim.P. 907, 908, and 909; and revision of the Comment to Pa.R.Crim.P. 910
Time to File Appeal Nunc Pro Tunc On July 27, 2012, effective September 1, 2012, upon the recommendation of the Criminal Procedural Rules Committee, the Supreme Court amended Rules of Criminal Procedure 907, 908, and 909 and approved the revision of the Comment to Pennsylvania Rule of Criminal Procedure 910.
I. Introduction
The Appellate Court Procedural Rules Committee, during discussions concerning appellate procedures in general, noted from case law and anecdotal information from its members that 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 Procedural 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 of 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 it would be helpful if the rules included a clarification in this regard. However, because this clarification would address 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 have 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 has been added 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 that 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 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 paragraph has been 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) sets 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 included in the Comments to Rules 908 and 909.
In addition, an explanatory paragraph is added to the Comment concerning the obligation of the clerk of courts to comply with the requirements in 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. Paragraph (D) is restructured and amended to enumerate more clearly the judge's responsibilities at the conclusion of the hearing. Current paragraph (D)(1) is moved into the introductory section of paragraph (D). The introductory section now reads:
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) is reorganized into two subparagraphs. New paragraph (D)(1) provides the procedures when the judge dismisses the petition and new paragraph (D)(2) provides 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.
Paragraph (E) permits the judge to announce the decision in open court or to take the matter under advisement. The 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 requirement that the judge's order be filed and served as provided in Rule 114 is added to paragraph (B)(2)(c).
Rule 910
Rule 910 provides that the orders under the PCRA rules granting, denying, dismissing, or otherwise finally disposing of the PCRA petition are final orders for purposes of appeal. The only change to 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. 12-1590. Filed for public inspection August 17, 2012, 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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