HOUSE AMENDED
PRIOR PRINTER'S NOS. 107, 109, 131, PRINTER'S NO. 164
147
No. 81 Special Session No. 1 of 1995
INTRODUCED BY GREENLEAF, O'PAKE, ANDREZESKI, DELP, KASUNIC,
MOWERY, PETERSON, ROBBINS, SALVATORE, WENGER AND FISHER,
MARCH 15, 1995
AS REPORTED FROM COMMITTEE ON JUDICIARY, HOUSE OF
REPRESENTATIVES, AS AMENDED, OCTOBER 17, 1995
AN ACT
1 Amending Title 42 (Judiciary and Judicial Procedure) of the
2 Pennsylvania Consolidated Statutes, further providing for
3 postconviction relief; and providing for unitary review in
4 death penalty cases.
5 The General Assembly of the Commonwealth of Pennsylvania
6 hereby enacts as follows:
7 Section 1. Sections 9542, 9543, 9544, 9545 and 9546 of Title
8 42 of the Pennsylvania Consolidated Statutes are amended to
9 read:
10 § 9542. Scope of subchapter.
11 This subchapter provides for an action by which persons
12 convicted of crimes they did not commit [or] and persons serving
13 [unlawful] illegal sentences may obtain collateral relief [and
14 for an action by which persons can raise claims which are
15 properly a basis for Federal habeas corpus relief]. The action
16 established in this subchapter shall be the sole means of
17 obtaining collateral relief and encompasses all other common law
1 and statutory remedies for the same purpose that exist when this
2 subchapter takes effect, including habeas corpus and coram
3 nobis. This subchapter is not intended to limit the availability
4 of remedies in the trial court or on direct appeal from the
5 judgment of sentence, nor is this subchapter intended to provide
6 a means for raising issues waived in prior proceedings. Except
7 as specifically provided otherwise, all provisions of this
8 subchapter shall apply to capital and noncapital cases.
9 § 9543. Eligibility for relief.
10 (a) General rule.--To be eligible for relief under this
11 subchapter, [a person] the petitioner must plead and prove by a
12 preponderance of the evidence all of the following:
13 (1) That the [person] petitioner has been convicted of a
14 crime under the laws of this Commonwealth and is:
15 (i) currently serving a sentence of imprisonment,
16 probation or parole for the crime;
17 (ii) awaiting execution of a sentence of death for
18 the crime; or
19 (iii) serving a sentence which must expire before
20 the person may commence serving the disputed sentence.
21 (2) That the conviction or sentence resulted from one or
22 more of the following:
23 (i) A violation of the Constitution [of Pennsylvania
24 or laws] of this Commonwealth or the Constitution or laws
25 of the United States which, in the circumstances of the
26 particular case, so undermined the truth-determining
27 process that no reliable adjudication of guilt or
28 innocence could have taken place.
29 (ii) Ineffective assistance of counsel which, in the
30 circumstances of the particular case, so undermined the
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1 truth-determining process that no reliable adjudication
2 of guilt or innocence could have taken place.
3 (iii) A plea of guilty unlawfully induced where the
4 circumstances make it likely that the inducement caused
5 [an individual] the petitioner to plead guilty and the
6 petitioner is innocent.
7 (iv) The improper obstruction by [Commonwealth]
8 government officials of the petitioner's right of appeal
9 where a meritorious appealable issue existed and was
10 properly preserved in the trial court.
11 [(v) A violation of the provisions of the
12 Constitution, law or treaties of the United States which
13 would require the granting of Federal habeas corpus
14 relief to a State prisoner.]
15 (vi) The unavailability at the time of trial of
16 exculpatory evidence that has subsequently become
17 available and [that] would have [affected] changed the
18 outcome of the trial if it had been introduced.
19 (vii) The imposition of a sentence greater than the
20 lawful maximum.
21 (viii) A proceeding in a tribunal without
22 jurisdiction.
23 (3) That the allegation of error has not been
24 [previously litigated and one of the following applies:
25 (i) The allegation of error has not been waived.
26 (ii) If the allegation of error has been waived, the
27 alleged error has resulted in the conviction or
28 affirmance of sentence of an innocent individual.
29 (iii) If the allegation of error has been waived,
30 the waiver of the allegation of error during pretrial,
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1 trial, post-trial or direct appeal proceedings does not
2 constitute a State procedural default barring Federal
3 habeas corpus relief.] previously litigated or waived.
4 (4) That the failure to litigate the issue prior to or
5 during trial, during unitary review or on direct appeal could
6 not have been the result of any rational, strategic or
7 tactical decision by counsel.
8 (b) Exception.--Even if the petitioner [meets] has met the
9 requirements of subsection (a), the petition shall be dismissed
10 if it appears at any time that, because of delay in filing the
11 petition, the Commonwealth has been prejudiced either in its
12 ability to respond to the petition or in its ability to re-try
13 the petitioner. This subsection does not apply if the petitioner
14 shows that the petition is based on grounds of which the
15 petitioner could not have [had knowledge] discovered by the
16 exercise of reasonable diligence before the delay became
17 prejudicial to the Commonwealth.
18 § 9544. Previous litigation and waiver.
19 (a) Previous litigation.--For [the purpose] purposes of this
20 subchapter, an issue has been previously litigated if:
21 [(1) it has been raised in the trial court, the trial
22 court has ruled on the merits of the issue and the petitioner
23 did not appeal;]
24 (2) the highest appellate court in which the petitioner
25 could have had review as a matter of right has ruled on the
26 merits of the issue; or
27 (3) it has been raised and decided in a proceeding
28 collaterally attacking the conviction or sentence.
29 (b) Issues waived.--For [the] purposes of this subchapter,
30 an issue is waived if the petitioner could have raised it but
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1 failed to [raise it and if it could have been raised] do so
2 before [the] trial, at [the] trial, during unitary review, on
3 appeal[,] or in a [habeas corpus] prior state postconviction
4 proceeding [or other proceeding actually conducted or in a prior
5 proceeding actually initiated under this subchapter].
6 § 9545. Jurisdiction and proceedings.
7 (a) Original jurisdiction.--Original jurisdiction over a
8 proceeding under this subchapter shall be in the court [in which
9 the conviction was obtained.] of common pleas. No court shall
10 have authority to entertain a request for any form of relief in
11 anticipation of the filing of a petition under this subchapter.
12 [(b) Rules governing proceedings.--The Supreme Court may, by
13 general rule, prescribe procedures to implement the action
14 established under this subchapter but shall not expand, contract
15 or modify the grounds for relief set forth in this subchapter.]
16 (b) Time for filing petition.--
17 (1) Any petition under this subchapter, including a
18 second or subsequent petition, shall be filed within one year
19 of the date the judgment becomes final, unless the petition
20 alleges and the petitioner proves that:
21 (i) the failure to raise the claim previously was
22 the result of interference by government officials with
23 the presentation of the claim in violation of the
24 Constitution or laws of this Commonwealth or the
25 Constitution or laws of the United States;
26 (ii) the facts upon which the claim is predicated
27 were unknown to the petitioner and could not have been
28 ascertained by the exercise of due diligence; or
29 (iii) the right asserted is a constitutional right
30 that was recognized by the Supreme Court of the United
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1 States or the Supreme Court of Pennsylvania after the
2 time period provided in this section and has been held by
3 that court to apply retroactively.
4 (2) Any petition invoking an exception provided in
5 paragraph (1) shall be filed within 60 days of the date the
6 claim could have been presented.
7 (3) For purposes of this subchapter, a judgment becomes
8 final at the conclusion of direct review, including
9 discretionary review in the Supreme Court of the United
10 States and the Supreme Court of Pennsylvania, or at the
11 expiration of time for seeking the review.
12 (4) For purposes of this subchapter, "government
13 officials" shall not include defense counsel, whether
14 appointed or retained.
15 (c) Stay of execution.--
16 (1) No court shall have the authority to issue a stay of
17 execution in any case except as allowed under this
18 subchapter.
19 (2) No stay may be issued unless a petition for
20 postconviction relief which meets all the requirements of
21 this subchapter has been filed and is pending and the
22 petitioner makes a strong showing of likelihood of success on
23 the merits.
24 (3) If a stay of execution is granted, all limitations
25 periods set forth under sections 9574 (relating to answer to
26 petition), 9575 (relating to disposition without evidentiary
27 hearing) and 9576 (relating to evidentiary hearing), shall
28 apply to the litigation of the petition.
29 (d) Evidentiary hearing.--
30 (1) Where a petitioner requests an evidentiary hearing,
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1 the petition shall include a signed certification as to each
2 intended witness stating the witness's name, address, date of
3 birth and substance of testimony and shall include any
4 documents material to that witness's testimony. Failure to
5 substantially comply with the requirements of this paragraph
6 shall render the proposed witness's testimony inadmissible.
7 (2) No discovery, at any stage of proceedings under this
8 subchapter, shall be permitted except upon leave of court
9 with a showing of exceptional circumstances.
10 (3) When a claim for relief is based on an allegation of
11 ineffective assistance of counsel as a ground for relief, any
12 privilege concerning counsel's representation as to that
13 issue shall be automatically terminated.
14 § 9546. Relief and order.
15 (a) General rule.--If the court [finds] rules in favor of
16 the petitioner, it shall order appropriate relief and issue
17 supplementary orders as to rearraignment, retrial, custody,
18 bail, discharge, correction of sentence or other matters that
19 are necessary and proper.
20 [(b) Grounds to be stated.--The order finally disposing of
21 the petition shall state grounds on which the case was
22 determined.
23 (c) Status of order.--The order constitutes a final judgment
24 for purposes of review.]
25 (d) Review of order in death penalty cases.--[A final court]
26 An order under this subchapter granting the petitioner final
27 relief in a case in which the death penalty has been imposed
28 shall be directly appealable [only] by the Commonwealth to the
29 Supreme Court pursuant to its rules. An order under this
30 subchapter denying a petitioner final relief in a case in which
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1 the death penalty has been imposed shall be reviewable only by
2 petition for allowance of appeal to the Supreme Court.
3 Section 2. Chapter 95 of Title 42 is amended by adding a
4 subchapter to read:
5 SUBCHAPTER D
6 UNITARY REVIEW IN DEATH PENALTY CASES
7 Sec.
8 9570. Short title of subchapter.
9 9571. Scope of subchapter.
10 9572. Representation of counsel.
11 9573. Time for petition; contents of petition.
12 9574. Answer to petition.
13 9575. Disposition without evidentiary hearing.
14 9576. Evidentiary hearing.
15 9577. Disposition and appeal.
16 9578. Subsequent petitions.
17 9579. Certification.
18 § 9570. Short title of subchapter.
19 This subchapter shall be known and may be cited as the
20 Capital Unitary Review Act.
21 § 9571. Scope of subchapter.
22 (a) Capital unitary review.--This subchapter establishes the
23 sole means of challenging proceedings that resulted in a
24 sentence of death. The unitary review proceeding provided by
25 this subchapter shall replace postappeal collateral review of
26 death penalty cases with preappeal collateral review.
27 (b) Appointment of collateral counsel.--Under the action
28 provided in this subchapter, a person sentenced to death shall
29 be immediately entitled to new counsel for purposes of
30 collateral review. The collateral proceeding shall occur in the
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1 trial court after the imposition of sentence and before appeal.
2 The petitioner may raise any claim that could not have been
3 raised previously, including claims of ineffective assistance of
4 counsel.
5 (c) Capital appeal.--Direct appeal shall occur after the
6 trial court has concluded collateral review. Claims raised on
7 direct appeal shall be limited to those claims that were
8 preserved at trial and that may be resolved on the basis of the
9 record created up to and including sentencing. Collateral appeal
10 shall occur simultaneously with direct appeal. Claims raised on
11 collateral appeal shall be limited to claims that were preserved
12 in the collateral proceeding in the trial court and to any other
13 claim that could not have been raised previously, including
14 claims of ineffective assistance of counsel on direct appeal.
15 (d) Limitation on subsequent petitions.--No further review
16 shall be available except as provided in this subchapter.
17 (e) Capital case in which death penalty not imposed.--This
18 subchapter does not apply to capital cases in which the death
19 penalty was not imposed.
20 § 9572. Representation of counsel.
21 (a) Collateral counsel.--Immediately after the formal
22 imposition of sentence on all charges or within 30 days of the
23 verdict of the death penalty, whichever occurs later, the court
24 shall appoint new counsel for the purposes of collateral review,
25 unless:
26 (1) the petitioner has elected to proceed pro se and the
27 court finds, after a colloquy on the record, that the
28 petitioner's election is knowing, intelligent and voluntary;
29 or
30 (2) the petitioner retains counsel for the unitary
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1 review proceeding.
2 (b) Prior attorney.--No petitioner may be represented on
3 collateral review, either in the trial court or on appeal, by an
4 attorney, whether retained or appointed, who has represented the
5 petitioner at any other stage of the proceedings, including
6 direct appeal, unless the court finds, after a colloquy on the
7 record, that the petitioner has knowingly, intelligently and
8 voluntarily waived his right to challenge the effectiveness of
9 that attorney's representation.
10 (c) Standards for appointment of counsel.--The Supreme Court
11 shall adopt standards for the appointment of counsel in capital
12 cases. When adopting the standards, the Supreme Court shall
13 consider, where practicable, the following criteria:
14 (1) Counsel is admitted to practice in Pennsylvania.
15 (2) Counsel is an experienced and active trial
16 practitioner with at least five years' litigation experience
17 in the field of criminal law.
18 (3) Counsel has prior experience as counsel in a
19 specified number of trials or other relevant proceedings.
20 (4) Counsel is familiar with the practice and procedure
21 of the appropriate courts, including Federal courts of the
22 jurisdiction.
23 (5) Counsel has demonstrated the necessary proficiency
24 and commitment which exemplify the quality of representation
25 appropriate to capital cases.
26 (6) LOCAL PRACTICE FOR THE APPOINTMENT OF COUNSEL IN <--
27 CAPITAL CASES.
28 Absent standards established under this subsection, the court
29 may appoint such counsel as it deems qualified, in accordance
30 with any local rules or practices. The existence or
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1 applicability of, or failure to comply with, such standards
2 shall not provide a basis for relief.
3 § 9573. Time for petition; contents of petition.
4 (a) Filing date.--Any petition under this subchapter shall
5 be filed within 120 days of the date the trial transcript is
6 filed with the court. The court may, for good cause shown, grant
7 extensions of time totaling no more than 90 days.
8 (b) Subsequent or untimely claims.--Any claim raised after
9 the time specified in subsection (a) shall be dismissed unless
10 it satisfies section 9578 (relating to subsequent petitions).
11 (c) Evidentiary hearing.--Where the petitioner requests an
12 evidentiary hearing, the petition shall include a signed
13 certification as to each intended witness stating the witness's
14 name, address, date of birth and substance of testimony and
15 shall include any documents material to that witness's
16 testimony. Failure to substantially comply with the requirements
17 of this subsection shall render the proposed witness's testimony
18 inadmissible.
19 (d) Other materials.--No discovery, at any stage of
20 proceeding under this subchapter, shall be permitted except upon
21 leave of court with a showing of exceptional circumstances.
22 (e) Claim for relief.--When a claim for relief is based on
23 an allegation of ineffective assistance of counsel as a ground
24 for relief, any privilege concerning counsel's representation as
25 to that issue shall be automatically terminated.
26 § 9574. Answer to petition.
27 The Commonwealth may file a written answer to the petition
28 within 120 days of the filing and service of the petition. For
29 good cause shown, the court may grant an extension of time of up
30 to 90 days. Failure to file an answer shall not constitute an
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1 admission of any facts alleged in the petition.
2 § 9575. Disposition without evidentiary hearing.
3 (a) Evidentiary hearing.--No more than 20 days after the
4 Commonwealth answers the petition, or, if no answer is filed, 20
5 days after the deadline for answering, the court shall determine
6 whether or not an evidentiary hearing is warranted. An
7 evidentiary hearing shall not be warranted unless controverted,
8 previously unresolved factual issues material to petitioner's
9 conviction or sentence exist.
10 (b) Written order.--Failure of the court to issue a written
11 order within the period prescribed under subsection (a) shall
12 constitute a determination that no evidentiary hearing is
13 warranted.
14 (c) Disposing of petition.--If the determination is made
15 that no evidentiary hearing is warranted, the court shall, no
16 later than 90 days from the date of that determination, dispose
17 of the petition, after oral argument if requested, and any
18 postsentence motions filed under the Pennsylvania Rules of
19 Criminal Procedure.
20 § 9576. Evidentiary hearing.
21 (a) Order.--If the court determines that an evidentiary
22 hearing is warranted, the court shall enter an order, no more
23 than 20 days after the Commonwealth answers the petition, or, if
24 no answer is filed, 20 days after the deadline for answering,
25 setting a date for the hearing.
26 (b) Date.--The hearing shall be scheduled to occur not less
27 than ten days and not more than 45 days from the date of the
28 order setting the hearing. The court may, for good cause shown,
29 grant leave to continue the hearing.
30 (c) Disposing of petition.--Not later than 90 days after the
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1 evidentiary hearing, the court shall dispose of the petition and
2 any postsentence motions filed under the Pennsylvania Rules of
3 Criminal Procedure.
4 § 9577. Disposition and appeal.
5 (a) Capital unitary review.--Review by the Supreme Court
6 under section 9711(h) (relating to review of death sentence)
7 shall comprise direct appeal and collateral appeal. The common
8 pleas court order disposing of the petition under this
9 subchapter shall constitute the final judgment for purposes of
10 this review.
11 (b) Briefs for petitioner.--Unless the petitioner has waived
12 the right to new counsel on collateral review, separate briefs
13 shall be filed for direct appeal and collateral appeal. The time
14 for filing the collateral appeal brief shall begin to run from
15 service of the petitioner's brief on direct appeal.
16 (c) Brief for the Commonwealth.--The Commonwealth shall file
17 a brief in response to the petitioner's direct and collateral
18 appeal briefs. The time for filing the Commonwealth's brief
19 shall begin to run from service of the petitioner's brief on
20 collateral appeal.
21 § 9578. Subsequent petitions.
22 (a) Further review.--No further review shall be available
23 unless a petition is filed under Subchapter B (relating to post
24 conviction relief) alleging that:
25 (1) the failure to raise the claim previously was the
26 result of interference by government officials with the
27 presentation of the claim in violation of the Constitution of
28 the United States or laws of the United States or the
29 Constitution of Pennsylvania or laws of this Commonwealth;
30 (2) the facts upon which the claim is predicated were
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1 unknown to the petitioner and could not have been ascertained
2 in the exercise of due diligence; or
3 (3) the right asserted is a constitutional right that
4 was recognized by the Supreme Court of the United States or
5 the Supreme Court of Pennsylvania after the time period
6 provided in this section and has been held by that court to
7 apply retroactively.
8 (b) Exception petition.--Any petition invoking an exception
9 provided in subsection (a) shall be filed within 60 days of the
10 date the claim could have been presented.
11 § 9579. Certification.
12 (a) General rule.--By presenting to the court, whether by
13 signing, filing, submitting, or later advocating, a pleading,
14 written motion or other papers regarding a petition for
15 collateral relief, an attorney or unrepresented party is
16 certifying that, to the best of the person's knowledge,
17 information and belief, formed after an inquiry reasonable under
18 the circumstances, the following:
19 (1) it is not being presented for any improper purpose,
20 such as to harass or to cause unnecessary delay or needless
21 increase in the cost of litigation;
22 (2) the claims and other legal contentions in it are
23 warranted by existing law or by a nonfrivolous argument for
24 extension, modification or reversal of existing law or the
25 establishment of new law; and
26 (3) the allegations and other factual contentions have
27 evidentiary support or, if specifically so identified, are
28 likely to have evidentiary support after a reasonable
29 opportunity for further investigation.
30 (b) Sanctions.--If, after notice and a reasonable
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1 opportunity to respond, the court determines that this section
2 has been violated, the court may impose an appropriate sanction
3 on the attorneys, law firms or parties that have violated this
4 section.
5 Section 3. This act shall apply as follows:
6 (1) The amendment or addition of 42 Pa.C.S. §§ 9542,
7 9543, 9544, 9545 and 9546 shall apply to petitions filed
8 after the effective date of this act; however, a petitioner
9 whose judgment has become final on or before the effective
10 date of this act shall be deemed to have filed a timely
11 petition under 42 Pa.C.S. Ch. 95 Subch. B if the petitioner's
12 first petition is filed within one year of the effective date
13 of this act.
14 (2) The addition of 42 Pa.C.S. Ch. 95 Subch. D shall
15 apply in all cases in which the death penalty is imposed on
16 or after September 1, 1995 JANUARY 1, 1996. <--
17 Section 4. This act shall take effect in 60 days.
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