Regular Session 2015-2016 House Bill 2406 P.N. 4026

PRINTER'S NO. 4026

THE GENERAL ASSEMBLY OF PENNSYLVANIA

HOUSE BILL

No.

2406

Session of

2015

INTRODUCED BY COHEN, BARBIN AND ROTHMAN, OCTOBER 17, 2016

REFERRED TO COMMITTEE ON JUDICIARY, OCTOBER 17, 2016

AN ACT

Amending Title 42 (Judiciary and Judicial Procedure) of the

Pennsylvania Consolidated Statutes, in post-trial matters,

further providing for eligibility for relief, providing for

postconviction review for veterans with traumatic brain

injury or post-traumatic stress disorder and further

providing for jurisdiction and proceedings; and, in

sentencing, further providing for sentencing procedure for

murder of the first degree.

The General Assembly of the Commonwealth of Pennsylvania

hereby enacts as follows:

Section 1. Section 9543(a)(2) of Title 42 of the

Pennsylvania Consolidated Statutes is amended by adding a

subparagraph to read:

§ 9543. Eligibility for relief.

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

subchapter, the petitioner must plead and prove by a

preponderance of the evidence all of the following:

* * *

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

more of the following:

* * *

(ix) Failure to consider evidence that the

petitioner is suffering from a traumatic brain injury or

post-traumatic stress disorder as a result of service in

the United States Armed Forces in a combat zone or other

similar hazardous duty area.

* * *

Section 2. Title 42 is amended by adding a section to read:

§ 9543.2. Postconviction review for veterans with traumatic

brain injury or post-traumatic stress disorder.

(a) Motion.--The following apply:

(1) An individual convicted of a criminal offense in a

court of this Commonwealth and serving a term of imprisonment

or awaiting execution because of a sentence of death may

apply by making a written motion to the sentencing court for

the performance or review of a mental health evaluation to

determine whether the individual is suffering from traumatic

brain injury or post-traumatic stress disorder. The

individual must have sustained the injury while performing

service for the United States Armed Forces in a combat zone

or other similar hazardous duty area and be serving a term of

imprisonment to be eligible for postconviction review.

(2) The diagnosis of a traumatic brain injury or post-

traumatic stress disorder may have been determined either:

(i) prior to the applicant's conviction, provided

that the evidence of traumatic brain injury or post-

traumatic stress disorder was not considered by the court

during the proceedings that resulted in the applicant's

conviction and sentencing; or

(ii) after the applicant's conviction.

(3) The applicant shall ensure that all necessary forms

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authorizing the release of medical records have been

completed as of the date of the motion.

(b) Notice to the Commonwealth.--Upon receipt of a motion

under subsection (a), the court shall notify the Commonwealth

and shall afford the Commonwealth an opportunity to respond to

the motion.

applicant shall:

(1) In a capital case, assert that the outcome of the

mental health evaluation will establish a mitigating

circumstance under section 9711(e)(7.1) (relating to

sentencing procedure for murder of the first degree).

(2) Present a prima facie case demonstrating that a

mental health evaluation would establish that the applicant's

traumatic brain injury or post-traumatic stress disorder was

a contributing factor in the applicant's conviction for the

underlying offense.

(d) Order.--

(1) Except as provided in paragraph (2), the sentencing

court shall order the performance or review of the mental

health evaluation requested in a motion under subsection (a)

upon a determination, after review of the record of the

applicant's trial, that the:

(i) requirements of subsection (c) have been met;

(ii) applicant is a veteran who served in the United

States Armed Forces in a combat zone or other similar

hazardous duty area; and

(iii) motion is not made to delay the execution of

sentence or administration of justice.

(2) The court shall not order the performance or review

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of the mental health evaluation requested in a motion under

subsection (a) if, after review of the record of the

applicant's trial, the court determines that there is no

reasonable possibility that the evaluation would produce

evidence that the individual is suffering from traumatic

brain injury or post-traumatic stress disorder that may be a

contributing factor in the applicant's conviction for the

underlying offense.

(3) Upon issuance of an order under paragraph (1), the

the president judge of the court of common pleas having

jurisdiction shall assign the motion for postconviction

relief for review to:

(i) a veterans court; or

(ii) a judge trained to review matters pertaining to

veterans.

(4) If the court orders the performance or review of the

mental health evaluation requested in a motion under

subsection (a), the Department of Military and Veterans

Affairs may work with the United States Department of

Veterans Affairs to ensure that the applicant has the

opportunity to have a complete mental health evaluation

performed or reviewed by a health care practitioner with

expertise in traumatic brain injuries or post-traumatic

stress disorders.

(e) Mental health evaluation procedures.--

(1) After the mental health evaluation conducted or

reviewed under this section has been completed, the applicant

may, pursuant to section 9545(b)(2) (relating to jurisdiction

and proceedings), during a 60-day period beginning on the

date on which the applicant is notified of the evaluation

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results, petition to the court under subsection (d)(3) for

postconviction relief pursuant to section 9543(a)(2)(ix)

(relating to eligibility for relief).

(2) Upon receipt of a petition filed under paragraph

(1), the court shall consider the petition along with any

answer filed by the Commonwealth and shall conduct a hearing.

(3) In any hearing on a petition for postconviction

relief filed under paragraph (1), the court shall determine

whether any evidence resulting from the mental health

evaluation conducted or reviewed under this section would

have reasonably altered the outcome of the trial or sentence.

(4) If the mental health evaluation indicates that the

petitioner is suffering from a traumatic brain injury or

post-traumatic stress disorder as a result of service in the

United States Armed Forces in a combat zone or other similar

hazardous duty area, the Commonwealth and the court shall

take the steps reasonably necessary to ensure that the

Department of Corrections is informed of the petitioner's

disability status and ensure that the petitioner receives all

the protections afforded to people with disabilities under

the Americans with Disabilities Act of 1990 (Public Law 101-

336, 104 Stat. 327).

(f) Effect of motion.--The filing of a motion for a mental

health evaluation for a traumatic brain injury or post-traumatic

stress disorder pursuant to subsection (a) shall have the

following effect:

(1) The filing of the motion shall constitute the

applicant's consent to undergo a mental health evaluation.

(2) The data from any evaluation obtained as a result of

the motion may not be entered into law enforcement databases,

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may not be used in the investigation of other crimes and may

not be used as evidence against the applicant in any manner.

Section 3. Section 9545(b)(1) of Title 42 is amended to

read:

§ 9545. Jurisdiction and proceedings.

* * *

(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[.]; or

(iv) evidence that the petitioner's diagnosis of

traumatic brain injury or post-traumatic stress disorder

as a result of service in the United States Armed Forces

in a combat zone or other similar hazardous duty area was

not considered by the court during the proceedings that

resulted in the petitioner's conviction and sentencing.

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* * *

Section 4. Section 9711(e) of Title 42 is amended by adding

a paragraph to read:

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

* * *

(e) Mitigating circumstances.--Mitigating circumstances

shall include the following:

* * *

(7.1) The defendant has undergone a mental health

evaluation and has been found to be suffering from a

traumatic brain injury or post-traumatic stress disorder as a

result of service in the United States Armed Forces in a

combat zone or other similar hazardous duty area.

* * *

Section 5. The Supreme Court shall have the power to adopt

rules as deemed necessary to carry out the provisions of this

act.

Section 6. This act shall take effect in 60 days.

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