PRINTER'S NO.  380

  

THE GENERAL ASSEMBLY OF PENNSYLVANIA

  

SENATE BILL

 

No.

397

Session of

2011

  

  

INTRODUCED BY M. WHITE, EARLL, KITCHEN, ERICKSON, GORDNER, D. WHITE, ROBBINS, FONTANA, ORIE, TARTAGLIONE, LEACH, COSTA, YUDICHAK, WILLIAMS, WOZNIAK AND FARNESE, FEBRUARY 4, 2011

  

  

REFERRED TO JUDICIARY, FEBRUARY 4, 2011  

  

  

  

AN ACT

  

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Amending Title 42 (Judiciary and Judicial Procedure) of the

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Pennsylvania Consolidated Statutes, in post-trial matters,

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prohibiting the imposition of the death sentence in cases of

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mental retardation.

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The General Assembly of the Commonwealth of Pennsylvania

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hereby enacts as follows:

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Section 1.  Sections 9543(a)(2) and 9545(b)(1) of Title 42 of

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the Pennsylvania Consolidated Statutes are amended to read:

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§ 9543.  Eligibility for relief.

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(a)  General rule.--To be eligible for relief under this

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subchapter, the petitioner must plead and prove by a

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preponderance of the evidence all of the following:

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* * *

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(2)  That the conviction or sentence resulted from one or

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more of the following:

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(i)  A violation of the Constitution of this

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Commonwealth or the Constitution or laws of the United

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States which, in the circumstances of the particular

 


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case, so undermined the truth-determining process that no

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reliable adjudication of guilt or innocence could have

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taken place.

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(ii)  Ineffective assistance of counsel which, in the

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circumstances of the particular case, so undermined the

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truth-determining process that no reliable adjudication

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of guilt or innocence could have taken place.

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(iii)  A plea of guilty unlawfully induced where the

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circumstances make it likely that the inducement caused

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the petitioner to plead guilty and the petitioner is

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innocent.

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(iv)  The improper obstruction by government

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officials of the petitioner's right of appeal where a

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meritorious appealable issue existed and was properly

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preserved in the trial court.

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(vi)  The unavailability at the time of trial of

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exculpatory evidence that has subsequently become

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available and would have changed the outcome of the trial

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if it had been introduced.

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(vii)  The imposition of a sentence greater than the

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lawful maximum.

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(viii)  A proceeding in a tribunal without

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jurisdiction.

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(ix)  The existence of mental retardation as defined

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in section 9711(q) (relating to sentencing procedure for

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murder of the first degree).

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* * *

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§ 9545.  Jurisdiction and proceedings.

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* * *

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(b)  Time for filing petition.--

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(1)  Any petition under this subchapter, including a

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second or subsequent petition, shall be filed within one year

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of the date the judgment becomes final, unless the petition

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alleges and the petitioner proves that:

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(i)  the failure to raise the claim previously was

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the result of interference by government officials with

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the presentation of the claim in violation of the

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Constitution or laws of this Commonwealth or the

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Constitution or laws of the United States;

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(ii)  the facts upon which the claim is predicated

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were unknown to the petitioner and could not have been

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ascertained by the exercise of due diligence; [or]

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(iii)  the right asserted is a constitutional right

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that was recognized by the Supreme Court of the United

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States or the Supreme Court of Pennsylvania after the

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time period provided in this section and has been held by

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that court to apply retroactively[.]; or

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(iv)  the petitioner claims he is a person with

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mental retardation as defined in section 9711(q)

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(relating to sentencing procedure for murder of the first

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degree), and the time for raising that claim has expired

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as of the effective date of this subparagraph. Any

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petition invoking this exception must be filed within 365

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days of the effective date of this subparagraph or of the

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conclusion of any appeal pending on the effective date of

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this subparagraph from the judgment of sentence or from

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the denial of a previous petition under this chapter.

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* * *

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Section 2.  Sections 9546 and 9711 of Title 42 are amended by

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adding subsections to read:

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§ 9546.  Relief and order.

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* * *

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(a.1)  Mental retardation.--Upon a finding that evidence has

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been presented that is sufficient to establish, by a

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preponderance of the evidence, that the petitioner is a person

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with mental retardation as defined in section 9711(q) (relating

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to sentencing procedure for murder of the first degree), the

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court shall direct that the sentence of death be vacated and

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that the defendant be sentenced to life imprisonment.

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* * *

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§ 9711.  Sentencing procedure for murder of the first degree.

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* * *

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(e.1)  Mental retardation.--

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(1)  No person with mental retardation shall be eligible

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for the death penalty.

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(2)  (i)  Counsel for the defendant may file a written

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motion alleging reasonable cause to believe that the

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defendant is a person with mental retardation and

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requesting an order directing that a hearing be conducted

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prior to trial to determine if the defendant is not

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eligible for the death penalty.

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(ii)  The motion shall be filed at least 90 days

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before the commencement of the trial or later upon just

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cause shown to the court.

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(iii)  The motion shall set forth in particular the

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reasons and grounds to support the reasonable cause to

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believe that the defendant is a person with mental

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retardation.

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(iv)  Upon receipt of the motion that the defendant

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is not eligible for the death penalty, the trial court

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shall conduct a hearing for the presentation of evidence

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regarding the defendant's mental retardation. Both the

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Commonwealth and the defendant shall have the opportunity

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to present evidence, including expert testimony. The

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court shall order an expert psychiatric or psychological

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examination of the defendant to be performed by a

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licensed psychiatrist or licensed psychologist who is an

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expert in the diagnosis and evaluation of mental

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retardation.

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(v)  Prior to the time set for the hearing on the

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pretrial motion, the Commonwealth shall have the same

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rights of discovery as exist under the Pennsylvania Rules

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of Criminal Procedure, including, but not limited to, the

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production of reports from experts and production of any

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information that will further a full, fair and

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expeditious resolution of the determination of whether

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the defendant is a person with mental retardation.

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(vi)  The court shall find that the defendant is not

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eligible for the death penalty if it finds that the

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defendant is a person with mental retardation. If the

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court finds that the defendant is eligible for the death

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penalty, the trial may proceed as a capital case. If the

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court finds that the defendant is a person with mental

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retardation, the trial shall proceed as a noncapital

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trial.

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(vii)  If the court enters an order under

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subparagraph (vi) finding that the defendant is a person

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with mental retardation, the Commonwealth may appeal as

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of right from the order under Pa.R.A.P. 311 (a)(9)

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(relating to interlocutory appeals as of right). The

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taking of an appeal by the Commonwealth under this

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subsection stays the effectiveness of the court's order

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and any order fixing a date for trial for purposes of

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Pa.R.Crim.P. 600 (relating to prompt trial) and speedy

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trial rights under the Constitution of the United States

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and the Constitution of Pennsylvania.

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(viii)  The pretrial determination of the court shall

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not preclude the defendant from raising any legal defense

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or factual evidence including, but not limited to, the

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existence of mental retardation during the trial or the

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sentencing phase of a capital trial under this section.

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(ix)  The jury shall not be informed of the prior

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proceedings or the court's findings concerning the

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defendant's motion with respect to the issue of mental

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retardation.

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(3)  If a defendant has already been sentenced to death

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as of the effective date of this subsection and postsentence

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motions are still pending or a direct appeal is still

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pending, under rule of court, a defendant may file a motion

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raising a claim that he is ineligible for a death sentence

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because he is a person with mental retardation. The trial

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court that imposed the sentence on the defendant shall

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conduct an evidentiary hearing on the motion and determine

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whether the defendant is a person with mental retardation as

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defined in subsection (q).

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* * *

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(p)  Burden of proof.--

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(1)  A defendant who raises a claim of mental retardation

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must prove the elements of subsection (q) by a preponderance

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of the evidence.

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(2)  A defendant who raises a claim of mental retardation

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waives confidentiality and privileges. The following apply:

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(i)  The defendant's medical, corrections, military

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and scholastic records may be reviewed by the parties.

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(ii)  The defendant's previous physicians, teachers

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and mental health providers may be contacted by the

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parties and current mental health examiners to learn of

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the defendant's background relative to the claim of

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mental retardation.

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(q)  Definition.--As used in this section, the term "person

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with mental retardation" means a person who has a mental

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disability characterized by significant limitations in

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intellectual functioning and in adaptive behavior as expressed

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in conceptual, social and practical adaptive skills, which the

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defendant must prove by establishing all of the following

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elements by a preponderance of the evidence:

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(1)  That his full-scale intelligence quotient is two

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standard deviations below the mean, as determined by a

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standardized test generally accepted in the profession and

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individually administered by a licensed psychologist.

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(2)  That he has significant limitations, as determined

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by a standardized test generally accepted in the profession

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and individually administered by a licensed psychologist, in

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adaptive behavior as manifested by performance that is at

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least two standard deviations below the mean of:

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(i)  conceptual, social or practical adaptive

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behavior; or

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(ii)  an overall score on a standardized measure of

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conceptual, social and practical skills.

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(3)  That his mental disability was present before the

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age of 18 as demonstrated by contemporaneous written records.

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However, contemporaneous written records shall not be

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required where the defendant establishes that such written

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records are lost or missing or that the defendant was

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deprived of schooling or other social services contacts in

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which such contemporaneous records would be created.

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Section 3. (a)  The amendment or addition of 42 Pa.C.S. §§

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9543(a)(2), 9545(b)(1), 9546 (a.1) and 9711(e.1), (p) and (q)

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shall apply to persons who are sentenced on or after the

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effective date of this section.

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(b)  If a defendant who has already been sentenced to death

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as of the effective date of this section wishes to raise the

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issue of mental retardation and postsentence motions are still

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pending, the defendant may, under court rule, amend the

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postsentence motions to raise the claim that imposition of the

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death penalty would have been barred under 42 Pa.C.S. §

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9711(e.1) if it had been in effect at the time of the sentencing

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hearing. The trial court that imposed the sentence on the

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defendant shall conduct an evidentiary hearing on the motion.

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Upon a finding that evidence has been presented sufficient to

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establish that the defendant is a person with mental retardation

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as provided under 42 Pa.C.S. § 9711(e.1), the court shall vacate

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the sentence of death and shall sentence the defendant to life

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imprisonment.

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(c)  If a defendant who has already been sentenced to death

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as of the effective date of this section wishes to raise the

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issue of mental retardation and direct appeal is still pending,

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the defendant may, pursuant to court rule, after disposition of

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the appeal, raise the issue in a petition under 42 Pa.C.S. §

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9545(b) after the disposition of the appeal.

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Section 4.  This act shall take effect immediately.

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