Pennsylvania Act 1995-32 (session 1) — JUDICIAL CODE (42 PA.C.S.) - AMEND

Act text

JUDICIAL CODE (42 PA.C.S.) - AMEND
        Act of Nov. 17, 1995, Special Session 1, P.L. 1118, No. 32    Cl. 42
                      Special Session No. 1 of 1995
                               No. 1995-32

     SB 81

                                  AN ACT

     Amending Title 42 (Judiciary and Judicial Procedure) of the
        Pennsylvania Consolidated Statutes, further providing for
        postconviction relief; and providing for unitary review in
        death penalty cases.

        The General Assembly of the Commonwealth of Pennsylvania
     hereby enacts as follows:

        Section 1.  Sections 9542, 9543, 9544, 9545 and 9546 of Title
     42 of the Pennsylvania Consolidated Statutes are amended to
     read:
      § 9542.  Scope of subchapter.
        This subchapter provides for an action by which persons
     convicted of crimes they did not commit [or] and persons serving
     [unlawful] illegal sentences may obtain collateral relief [and
     for an action by which persons can raise claims which are
     properly a basis for Federal habeas corpus relief]. The action
     established in this subchapter shall be the sole means of
     obtaining collateral relief and encompasses all other common law
     and statutory remedies for the same purpose that exist when this
     subchapter takes effect, including habeas corpus and coram
     nobis. This subchapter is not intended to limit the availability
     of remedies in the trial court or on direct appeal from the
     judgment of sentence, nor is this subchapter intended to provide
     a means for raising issues waived in prior proceedings. Except
     as specifically provided otherwise, all provisions of this
     subchapter shall apply to capital and noncapital cases.
      § 9543.  Eligibility for relief.
        (a)  General rule.--To be eligible for relief under this
     subchapter, [a person] the petitioner must plead and prove by a
     preponderance of the evidence all of the following:
            (1)  That the [person] petitioner has been convicted of a
        crime under the laws of this Commonwealth and is:
                (i)  currently serving a sentence of imprisonment,
            probation or parole for the crime;
                (ii)  awaiting execution of a sentence of death for
            the crime; or
                (iii)  serving a sentence which must expire before
            the person may commence serving the disputed sentence.
            (2)  That the conviction or sentence resulted from one or
        more of the following:
                (i)  A violation of the Constitution [of Pennsylvania
            or laws] of this Commonwealth or the Constitution or laws
            of the United States which, in the circumstances of the
            particular case, so undermined the truth-determining
            process that no reliable adjudication of guilt or
            innocence could have taken place.
                (ii)  Ineffective assistance of counsel which, in the
            circumstances of the particular case, so undermined the
            truth-determining process that no reliable adjudication
            of guilt or innocence could have taken place.
                (iii)  A plea of guilty unlawfully induced where the
            circumstances make it likely that the inducement caused
            [an individual] the petitioner to plead guilty and the
            petitioner is innocent.
                (iv)  The improper obstruction by [Commonwealth]
            government officials of the petitioner's right of appeal
            where a meritorious appealable issue existed and was
            properly preserved in the trial court.
                [(v)  A violation of the provisions of the
            Constitution, law or treaties of the United States which
            would require the granting of Federal habeas corpus
            relief to a State prisoner.]
                (vi)  The unavailability at the time of trial of
            exculpatory evidence that has subsequently become
            available and [that] would have [affected] changed the
            outcome of the trial if it had been introduced.
                (vii)  The imposition of a sentence greater than the
            lawful maximum.
                (viii)  A proceeding in a tribunal without
            jurisdiction.
            (3)  That the allegation of error has not been
        [previously litigated and one of the following applies:
                (i)  The allegation of error has not been waived.
                (ii)  If the allegation of error has been waived, the
            alleged error has resulted in the conviction or
            affirmance of sentence of an innocent individual.
                (iii)  If the allegation of error has been waived,
            the waiver of the allegation of error during pretrial,
            trial, post-trial or direct appeal proceedings does not
            constitute a State procedural default barring Federal
            habeas corpus relief.] previously litigated or waived.
            (4)  That the failure to litigate the issue prior to or
        during trial, during unitary review or on direct appeal could
        not have been the result of any rational, strategic or
        tactical decision by counsel.
        (b)  Exception.--Even if the petitioner [meets] has met the
     requirements of subsection (a), the petition shall be dismissed
     if it appears at any time that, because of delay in filing the
     petition, the Commonwealth has been prejudiced either in its
     ability to respond to the petition or in its ability to re-try
     the petitioner. A petition may be dismissed due to delay in the
     filing by the petitioner only after a hearing upon a motion to
     dismiss. This subsection does not apply if the petitioner shows
     that the petition is based on grounds of which the petitioner
     could not have [had knowledge] discovered by the exercise of
     reasonable diligence before the delay became prejudicial to the
     Commonwealth.
      § 9544.  Previous litigation and waiver.
        (a)  Previous litigation.--For [the purpose] purposes of this
     subchapter, an issue has been previously litigated if:
            [(1)  it has been raised in the trial court, the trial
        court has ruled on the merits of the issue and the petitioner
        did not appeal;]
            (2)  the highest appellate court in which the petitioner
        could have had review as a matter of right has ruled on the
        merits of the issue; or
            (3)  it has been raised and decided in a proceeding
        collaterally attacking the conviction or sentence.
        (b)  Issues waived.--For [the] purposes of this subchapter,
     an issue is waived if the petitioner could have raised it but
     failed to [raise it and if it could have been raised] do so
     before [the] trial, at [the] trial, during unitary review, on
     appeal[,] or in a [habeas corpus] prior state postconviction
     proceeding [or other proceeding actually conducted or in a prior
     proceeding actually initiated under this subchapter].
      § 9545.  Jurisdiction and proceedings.
        (a)  Original jurisdiction.--Original jurisdiction over a
     proceeding under this subchapter shall be in the court [in which
     the conviction was obtained.] of common pleas. No court shall
     have authority to entertain a request for any form of relief in
     anticipation of the filing of a petition under this subchapter.
        [(b)  Rules governing proceedings.--The Supreme Court may, by
     general rule, prescribe procedures to implement the action
     established under this subchapter but shall not expand, contract
     or modify the grounds for relief set forth in this subchapter.]
        (b)  Time for filing petition.--
            (1)  Any petition under this subchapter, including a
        second or subsequent petition, shall be filed within one year
        of the date the judgment becomes final, unless the petition
        alleges and the petitioner proves that:
                (i)  the failure to raise the claim previously was
            the result of interference by government officials with
            the presentation of the claim in violation of the
            Constitution or laws of this Commonwealth or the
            Constitution or laws of the United States;
                (ii)  the facts upon which the claim is predicated
            were unknown to the petitioner and could not have been
            ascertained by the exercise of due diligence; or
                (iii)  the right asserted is a constitutional right
            that was recognized by the Supreme Court of the United
            States or the Supreme Court of Pennsylvania after the
            time period provided in this section and has been held by
            that court to apply retroactively.
            (2)  Any petition invoking an exception provided in
        paragraph (1) shall be filed within 60 days of the date the
        claim could have been presented.
            (3)  For purposes of this subchapter, a judgment becomes
        final at the conclusion of direct review, including
        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.
            (4)  For purposes of this subchapter, "government
        officials" shall not include defense counsel, whether
        appointed or retained.
        (c)  Stay of execution.--
            (1)  No court shall have the authority to issue a stay of
        execution in any case except as allowed under this
        subchapter.
            (2)  Except for first petitions filed under this
        subchapter by defendants whose sentences have been affirmed
        on direct appeal by the Supreme Court of Pennsylvania between
        January 1, 1994, and January 1, 1996, no stay may be issued
        unless a petition for postconviction relief which meets all
        the requirements of this subchapter has been filed and is
        pending and the petitioner makes a strong showing of
        likelihood of success on the merits.
            (3)  If a stay of execution is granted, all limitations
        periods set forth under sections 9574 (relating to answer to
        petition), 9575 (relating to disposition without evidentiary
        hearing) and 9576 (relating to evidentiary hearing) shall
        apply to the litigation of the petition.
        (d)  Evidentiary hearing.--
            (1)  Where a petitioner requests an evidentiary hearing,
        the petition shall include a signed certification as to each
        intended witness stating the witness's name, address, date of
        birth and substance of testimony and shall include any
        documents material to that witness's testimony. Failure to
        substantially comply with the requirements of this paragraph
        shall render the proposed witness's testimony inadmissible.
            (2)  No discovery, at any stage of proceedings under this
        subchapter, shall be permitted except upon leave of court
        with a showing of exceptional circumstances.
            (3)  When a claim for relief is based on an allegation of
        ineffective assistance of counsel as a ground for relief, any
        privilege concerning counsel's representation as to that
        issue shall be automatically terminated.
      § 9546.  Relief and order.
        (a)  General rule.--If the court [finds] rules in favor of
     the petitioner, it shall order appropriate relief and issue
     supplementary orders as to rearraignment, retrial, custody,
     bail, discharge, correction of sentence or other matters that
     are necessary and proper.
        [(b)  Grounds to be stated.--The order finally disposing of
     the petition shall state grounds on which the case was
     determined.
        (c)  Status of order.--The order constitutes a final judgment
     for purposes of review.]
        (d)  Review of order in death penalty cases.--[A final court]
     An order under this subchapter granting the petitioner final
     relief in a case in which the death penalty has been imposed
     shall be directly appealable [only] by the Commonwealth to the
     Supreme Court pursuant to its rules. An order under this
     subchapter denying a petitioner final relief in a case in which
     the death penalty has been imposed shall be reviewable only by
     petition for allowance of appeal to the Supreme Court.
        Section 2.  Chapter 95 of Title 42 is amended by adding a
     subchapter to read:
                               SUBCHAPTER D
                  UNITARY REVIEW IN DEATH PENALTY CASES
     Sec.
     9570.  Short title of subchapter.
     9571.  Scope of subchapter.
     9572.  Representation of counsel.
     9573.  Time for petition; contents of petition.
     9574.  Answer to petition.
     9575.  Disposition without evidentiary hearing.
     9576.  Evidentiary hearing.
     9577.  Disposition and appeal.
     9578.  Subsequent petitions.
     9579.  Certification.
      § 9570.  Short title of subchapter.
        This subchapter shall be known and may be cited as the
     Capital Unitary Review Act.
      § 9571.  Scope of subchapter.
        (a)  Capital unitary review.--This subchapter establishes the
     sole means of challenging proceedings that resulted in a
     sentence of death. The unitary review proceeding provided by
     this subchapter shall replace postappeal collateral review of
     death penalty cases with preappeal collateral review.
        (b)  Appointment of collateral counsel.--Under the action
     provided in this subchapter, a person sentenced to death shall
     be immediately entitled to new counsel for purposes of
     collateral review. The collateral proceeding shall occur in the
     trial court after the imposition of sentence and before appeal.
     The petitioner may raise any claim that could not have been
     raised previously, including claims of ineffective assistance of
     counsel.
        (c)  Capital appeal.--Direct appeal shall occur after the
     trial court has concluded collateral review. Claims raised on
     direct appeal shall be limited to those claims that were
     preserved at trial and that may be resolved on the basis of the
     record created up to and including sentencing. Collateral appeal
     shall occur simultaneously with direct appeal. Claims raised on
     collateral appeal shall be limited to claims that were preserved
     in the collateral proceeding in the trial court and to any other
     claim that could not have been raised previously, including
     claims of ineffective assistance of counsel on direct appeal.
        (d)  Limitation on subsequent petitions.--No further review
     shall be available except as provided in this subchapter.
        (e)  Capital case in which death penalty not imposed.--This
     subchapter does not apply to capital cases in which the death
     penalty was not imposed.
      § 9572.  Representation of counsel.
        (a)  Collateral counsel.--Immediately after the formal
     imposition of sentence on all charges or within 30 days of the
     verdict of the death penalty, whichever occurs later, the court
     shall appoint new counsel for the purposes of collateral review,
     unless:
            (1)  the petitioner has elected to proceed pro se and the
        court finds, after a colloquy on the record, that the
        petitioner's election is knowing, intelligent and voluntary;
        or
            (2)  the petitioner retains counsel for the unitary
        review proceeding.
        (b)  Prior attorney.--No petitioner may be represented on
     collateral review, either in the trial court or on appeal, by an
     attorney, whether retained or appointed, who has represented the
     petitioner at any other stage of the proceedings, including
     direct appeal, unless the court finds, after a colloquy on the
     record, that the petitioner has knowingly, intelligently and
     voluntarily waived his right to challenge the effectiveness of
     that attorney's representation.
        (c)  Standards for appointment of counsel.--The Supreme Court
     shall adopt standards for the appointment of counsel in capital
     cases. These standards shall apply for the appointment of trial
     counsel, collateral review counsel and appellate counsel. When
     adopting the standards, the Supreme Court shall consider, where
     practicable, the following criteria:
            (1)  Counsel is admitted to practice in Pennsylvania.
            (2)  Counsel is an experienced and active trial
        practitioner with at least five years' litigation experience
        in the field of criminal law.
            (3)  Counsel has prior experience as counsel in a
        specified number of trials or other relevant proceedings.
            (4)  Counsel is familiar with the practice and procedure
        of the appropriate courts, including Federal courts of the
        jurisdiction.
            (5)  Counsel has demonstrated the necessary proficiency
        and commitment which exemplify the quality of representation
        appropriate to capital cases.
            (6)  Local practice for the appointment of counsel in
        capital cases.
     Absent standards established under this subsection, the court
     may appoint such counsel as it deems qualified, in accordance
     with any local rules or practices. The existence or
     applicability of or failure to comply with such standards shall
     not provide a basis for relief.
      § 9573.  Time for petition; contents of petition.
        (a)  Filing date.--Any petition under this subchapter shall
     be filed within 120 days of the date the trial transcript is
     filed with the court. The court may, for good cause shown, grant
     extensions of time totaling no more than 90 days.
        (b)  Subsequent or untimely claims.--Any claim raised after
     the time specified in subsection (a) shall be dismissed unless
     it satisfies section 9578 (relating to subsequent petitions).
        (c)  Evidentiary hearing.--Where the petitioner requests an
     evidentiary hearing, the petition shall include a signed
     certification as to each intended witness stating the witness's
     name, address, date of birth and substance of testimony and
     shall include any documents material to that witness's
     testimony. Failure to substantially comply with the requirements
     of this subsection shall render the proposed witness's testimony
     inadmissible.
        (d)  Discovery.--Discovery shall be permitted, and no
     reasonable discovery request of the petitioner shall be denied
     except upon demonstration of exceptional circumstances
     justifying denial of the discovery requests.
        (e)  Claim for relief.--When a claim for relief is based on
     an allegation of ineffective assistance of counsel as a ground
     for relief, any privilege concerning counsel's representation as
     to that issue shall be automatically terminated.
      § 9574.  Answer to petition.
        The Commonwealth may file a written answer to the petition
     within 120 days of the filing and service of the petition. For
     good cause shown, the court may grant an extension of time of up
     to 90 days. Failure to file an answer shall not constitute an
     admission of any facts alleged in the petition.
      § 9575.  Disposition without evidentiary hearing.
        (a)  Evidentiary hearing.--No more than 20 days after the
     Commonwealth answers the petition or, if no answer is filed, 20
     days after the deadline for answering, the court shall determine
     whether or not an evidentiary hearing is warranted. An
     evidentiary hearing shall not be warranted unless controverted,
     previously unresolved factual issues material to petitioner's
     conviction or sentence exist.
        (b)  Written order.--Failure of the court to issue a written
     order within the period prescribed under subsection (a) shall
     constitute a determination that an evidentiary hearing is
     warranted on any controverted, previously unresolved factual
     issues material to petitioner's conviction or sentence.
        (c)  Disposing of petition.--If the determination is made
     that no evidentiary hearing is warranted, the court shall, no
     later than 90 days from the date of that determination, dispose
     of the petition, after oral argument if requested, and any
     postsentence motions filed under the Pennsylvania Rules of
     Criminal Procedure.
      § 9576.  Evidentiary hearing.
        (a)  Order.--If the court determines that an evidentiary
     hearing is warranted, the court shall enter an order no more
     than 20 days after the Commonwealth answers the petition or, if
     no answer is filed, 20 days after the deadline for answering,
     setting a date for the hearing.
        (b)  Date.--The hearing shall be scheduled to occur not less
     than ten days and not more than 45 days from the date of the
     order setting the hearing. The court may, for good cause shown,
     grant leave to continue the hearing.
        (c)  Disposing of petition.--Not later than 90 days after the
     evidentiary hearing, the court shall dispose of the petition and
     any postsentence motions filed under the Pennsylvania Rules of
     Criminal Procedure.
      § 9577.  Disposition and appeal.
        (a)  Capital unitary review.--Review by the Supreme Court
     under section 9711(h) (relating to review of death sentence)
     shall comprise direct appeal and collateral appeal. The common
     pleas court order disposing of the petition under this
     subchapter shall constitute the final judgment for purposes of
     this review.
        (b)  Briefs for petitioner.--Unless the petitioner has waived
     the right to new counsel on collateral review, separate briefs
     shall be filed for direct appeal and collateral appeal. The time
     for filing the collateral appeal brief shall begin to run from
     service of the petitioner's brief on direct appeal.
        (c)  Brief for the Commonwealth.--The Commonwealth shall file
     a brief in response to the petitioner's direct and collateral
     appeal briefs. The time for filing the Commonwealth's brief
     shall begin to run from service of the petitioner's brief on
     collateral appeal.
      § 9578.  Subsequent petitions.
        (a)  Further review.--No further review shall be available
     unless a petition is filed under Subchapter B (relating to post
     conviction relief) alleging that:
            (1)  the failure to raise the claim previously was the
        result of interference by government officials with the
        presentation of the claim in violation of the Constitution of
        the United States or laws of the United States or the
        Constitution of Pennsylvania or laws of this Commonwealth;
            (2)  the facts upon which the claim is predicated were
        unknown to the petitioner and could not have been ascertained
        in the exercise of due diligence; or
            (3)  the right asserted is a constitutional right that
        was recognized by the Supreme Court of the United States or
        the Supreme Court of Pennsylvania after the time period
        provided in this section and has been held by that court to
        apply retroactively.
        (b)  Exception petition.--Any petition invoking an exception
     provided in subsection (a) shall be filed within 60 days of the
     date the claim could have been presented.
      § 9579.  Certification.
        (a)  General rule.--By presenting to the court, whether by
     signing, filing, submitting or later advocating, a pleading,
     written motion or other papers regarding a petition for
     collateral relief, an attorney or unrepresented party is
     certifying that, to the best of the person's knowledge,
     information and belief, formed after an inquiry reasonable under
     the circumstances, the following:
            (1)  it is not being presented for any improper purpose,
        such as to harass or to cause unnecessary delay or needless
        increase in the cost of litigation;
            (2)  the claims and other legal contentions in it are
        warranted by existing law or by a nonfrivolous argument for
        extension, modification or reversal of existing law or the
        establishment of new law; and
            (3)  the allegations and other factual contentions have
        evidentiary support or, if specifically so identified, are
        likely to have evidentiary support after a reasonable
        opportunity for further investigation.
        (b)  Sanctions.--If, after notice and a reasonable
     opportunity to respond, the court determines that this section
     has been violated, the court may impose an appropriate sanction
     on the attorneys, law firms or parties that have violated this
     section.
        Section 3.  This act shall apply as follows:
            (1)  The amendment of 42 Pa.C.S. §§ 9542, 9543, 9544,
        9545 and 9546 shall apply to petitions filed after the
        effective date of this act; however, a petitioner whose
        judgment has become final on or before the effective date of
        this act shall be deemed to have filed a timely petition
        under 42 Pa.C.S. Ch. 95 Subch. B if the petitioner's first
        petition is filed within one year of the effective date of
        this act.
            (2)  The addition of 42 Pa.C.S. Ch. 95 Subch. D shall
        apply in all cases in which the death penalty is imposed on
        or after January 1, 1996.
        Section 4.  This act shall take effect in 60 days.

     APPROVED--The 17th day of November, A. D. 1995.

     THOMAS J. RIDGE