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                                                      PRINTER'S NO. 1779

THE GENERAL ASSEMBLY OF PENNSYLVANIA


HOUSE BILL

No. 1370 Session of 2007


        INTRODUCED BY MANDERINO, BELFANTI, BISHOP, BUXTON, CALTAGIRONE,
           CARROLL, CREIGHTON, CURRY, DALEY, FABRIZIO, FAIRCHILD,
           FRANKEL, FREEMAN, GEORGE, GIBBONS, JAMES, JOSEPHS, KENNEY,
           KIRKLAND, KORTZ, LEACH, LEVDANSKY, LONGIETTI, MAHONEY, MANN,
           MARKOSEK, McGEEHAN, McILHATTAN, MUNDY, M. O'BRIEN, PAYTON,
           RAPP, ROAE, ROSS, K. SMITH, STURLA, SCAVELLO, SHIMKUS, SURRA,
           SWANGER, TANGRETTI, VITALI, WAGNER, WALKO, WATERS,
           YOUNGBLOOD, McILVAINE SMITH AND SIPTROTH, JUNE 5, 2007

        REFERRED TO COMMITTEE ON JUDICIARY, JUNE 5, 2007

                                     AN ACT

     1  Amending Title 42 (Judiciary and Judicial Procedure) of the
     2     Pennsylvania Consolidated Statutes, prohibiting the
     3     imposition of the death sentence in cases of mental
     4     retardation.

     5     The General Assembly of the Commonwealth of Pennsylvania
     6  hereby enacts as follows:
     7     Section 1.  Section 9543(a)(2) of Title 42 of the
     8  Pennsylvania Consolidated Statutes is amended by adding a
     9  subparagraph to read:
    10  § 9543.  Eligibility for relief.
    11     (a)  General rule.--To be eligible for relief under this
    12  subchapter, the petitioner must plead and prove by a
    13  preponderance of the evidence all of the following:
    14         * * *
    15         (2)  That the conviction or sentence resulted from one or
    16     more of the following:

     1             * * *
     2             (ix)  The existence of mental retardation as defined
     3         in section 9711(q) (relating to sentencing procedure for
     4         murder of the first degree).
     5         * * *
     6     Section 2.  Section 9545(b)(1) of Title 42 is amended to
     7  read:
     8  § 9545.  Jurisdiction and proceedings.
     9     * * *
    10     (b)  Time for filing petition.--
    11         (1)  Any petition under this subchapter, including a
    12     second or subsequent petition, shall be filed within one year
    13     of the date the judgment becomes final, unless the petition
    14     alleges and the petitioner proves that:
    15             (i)  the failure to raise the claim previously was
    16         the result of interference by government officials with
    17         the presentation of the claim in violation of the
    18         Constitution or laws of this Commonwealth or the
    19         Constitution or laws of the United States;
    20             (ii)  the facts upon which the claim is predicated
    21         were unknown to the petitioner and could not have been
    22         ascertained by the exercise of due diligence; [or]
    23             (iii)  the right asserted is a constitutional right
    24         that was recognized by the Supreme Court of the United
    25         States or the Supreme Court of Pennsylvania after the
    26         time period provided in this section and has been held by
    27         that court to apply retroactively[.]; or
    28             (iv)  the petitioner claims he is a person with
    29         mental retardation as defined in section 9711(q)
    30         (relating to sentencing procedure for murder of the first
    20070H1370B1779                  - 2 -     

     1         degree) and the time for raising that claim has expired
     2         as of the effective date of this subparagraph. Any
     3         petition invoking this exception must be filed within 365
     4         days of the effective date of this subparagraph or of the
     5         conclusion of any appeal pending on the effective date of
     6         this subparagraph from the judgment of sentence or from
     7         the denial of a previous petition under this chapter.
     8         * * *
     9     Section 3.  Sections 9546 and 9711 of Title 42 are amended by
    10  adding subsections to read:
    11  § 9546.  Relief and order.
    12     * * *
    13     (a.1)  Mental retardation.--Upon a finding that evidence has
    14  been presented that is sufficient to establish, by a
    15  preponderance of the evidence, that the petitioner is a person
    16  with mental retardation as defined in section 9711(q) (relating
    17  to sentencing procedure for murder of the first degree), the
    18  court shall direct that the sentence of death be vacated and
    19  that the defendant be sentenced to life imprisonment.
    20     * * *
    21  § 9711.  Sentencing procedure for murder of the first degree.
    22     * * *
    23     (e.1)  Mental retardation.--
    24         (1)  No person with mental retardation shall be eligible
    25     for the death penalty.
    26         (2) The following apply:
    27             (i)  At least 90 days before the commencement of
    28         trial or later upon just cause shown to the court,
    29         counsel for the defendant may, upon written motion
    30         alleging reasonable cause to believe that the defendant
    20070H1370B1779                  - 3 -     

     1         is a person with mental retardation, apply for an order
     2         directing that a hearing to determine if the defendant is
     3         not eligible for the death penalty because the defendant
     4         is a person with mental retardation be conducted prior to
     5         trial. The written motion must set forth in particular
     6         the reasons and grounds to support the reasonable cause
     7         to believe that the defendant is a person with mental
     8         retardation.
     9             (ii)  Upon receipt of a motion for a determination
    10         that the defendant is not eligible for the death penalty
    11         because the defendant is a person with mental
    12         retardation, the trial court shall conduct a hearing for
    13         the presentation of evidence regarding the defendant's
    14         mental retardation. Both the Commonwealth and the
    15         defendant shall have the opportunity to present evidence,
    16         including expert testimony. The court shall order an
    17         expert psychiatric or psychological examination of the
    18         defendant to be performed by a licensed psychiatrist or
    19         licensed psychologist who is an expert in the diagnosis
    20         and evaluation of mental retardation. The defendant must
    21         prove that the defendant is a person with mental
    22         retardation by a preponderance of the evidence.
    23             (iii)  Prior to the time set for the hearing on the
    24         pretrial motion, the Commonwealth shall have the same
    25         rights of discovery as exist under the Pennsylvania Rules
    26         of Criminal Procedure, including the production of
    27         reports from experts and production of any information
    28         that will further a full, fair and expeditious resolution
    29         of the determination of whether the defendant is a person
    30         with mental retardation.
    20070H1370B1779                  - 4 -     

     1             (iv)  At the hearing on the pretrial motion to
     2         determine whether the defendant is a person with mental
     3         retardation, the defendant has the burden of proving that
     4         the defendant is a person with mental retardation by a
     5         preponderance of the evidence. The court shall consider
     6         the existence or absence of documentation and any reasons
     7         for the existence or absence of documentation of the
     8         manifestation of mental retardation before 18 years of
     9         age.
    10             (v)  The court shall find that the defendant is not
    11         eligible for the death penalty if it finds, by a
    12         preponderance of the evidence, that the defendant is a
    13         person with mental retardation. If the court finds that
    14         the defendant is a person with mental retardation, the
    15         trial shall proceed as a noncapital trial.
    16             (vi)  If the court enters an order under subparagraph
    17         (v) finding that the defendant is a person with mental
    18         retardation, the Commonwealth may appeal as of right from
    19         the order under Pa.R.A.P. 311(a)(9) (relating to
    20         interlocutory appeals as of right). The taking of an
    21         appeal by the Commonwealth under this subparagraph stays
    22         the effectiveness of the court's order and any order
    23         fixing a date for trial for purposes of Pa.R.Crim.P. 600
    24         (relating to prompt trial) and speedy trial rights under
    25         the Constitution of the United States and the
    26         Constitution of Pennsylvania.
    27             (vii)  If the court finds that the defendant is
    28         eligible for the death penalty, the trial may proceed as
    29         a capital case.
    30             (viii)  The pretrial determination of the court shall
    20070H1370B1779                  - 5 -     

     1         not preclude the defendant from raising any legal defense
     2         or factual evidence, including the existence of mental
     3         retardation, during the trial or the sentencing phase of
     4         a capital trial under this section.
     5             (ix)  The jury shall not be informed of the prior
     6         proceedings or the court's findings concerning the
     7         defendant's motion with respect to the issue of mental
     8         retardation.
     9         (3)  If a defendant has already been sentenced to death
    10     as of the effective date of this subsection and postsentence
    11     motions are still pending or a direct appeal is still
    12     pending, pursuant to rule of court, a defendant may file a
    13     motion raising a claim of ineligibility for a death sentence
    14     because the defendant is a person with mental retardation.
    15     The trial court that imposed the sentence on the defendant
    16     shall conduct an evidentiary hearing on the motion and
    17     determine whether the defendant is a person with mental
    18     retardation.
    19     * * *
    20     (p)  Burden of proof.--
    21         (1)  A defendant who raises a defense of mental
    22     retardation must prove the elements of the definition of
    23     "person with mental retardation" in subsection (q) by a
    24     preponderance of the evidence.
    25         (2)  A defendant who raises a claim of mental retardation
    26     waives confidentiality and privileges. The following apply:
    27             (i)  The defendant's medical, corrections, military
    28         and scholastic records may be reviewed by the parties.
    29             (ii)  The defendant's previous physicians, teachers
    30         and mental health providers may be contacted by the
    20070H1370B1779                  - 6 -     

     1         parties and current mental health examiners to learn of
     2         the defendant's background relative to the claim of
     3         mental retardation.
     4     (q)  Definition.--As used in this section, the term "person
     5  with mental retardation" means a person who has a mental
     6  disability characterized by significant limitations in
     7  intellectual functioning and in adaptive behavior as expressed
     8  in conceptual, social and practical adaptive skills, to whom all
     9  of the following apply:
    10         (1)  The person's full-scale intelligence quotient is two
    11     standard deviations below the mean as determined by a
    12     standardized test generally accepted in the profession and
    13     individually administered by a licensed psychologist.
    14         (2)  The person has significant limitations, as
    15     determined by a standardized test generally accepted in the
    16     profession and individually administered by a licensed
    17     psychologist, in adaptive behavior as manifested by
    18     performance which is at least two standard deviations below
    19     the mean of:
    20             (i)  conceptual, social or practical adaptive
    21         behavior; or
    22             (ii)  an overall score on a standardized measure of
    23         conceptual, social and practical skills.
    24         (3)  The person's mental disability was present before 18
    25     years of age as demonstrated by contemporaneous written
    26     records. However, contemporaneous written records shall not
    27     be required where the defendant establishes that such written
    28     records are lost or missing or that the defendant was
    29     deprived of schooling or other social services contacts in
    30     which such contemporaneous records would be created.
    20070H1370B1779                  - 7 -     

     1     Section 4.  This act shall apply as follows:
     2         (1)  This act shall apply to persons who are sentenced on
     3     or after the effective date of this section.
     4         (2)  If a defendant who has already been sentenced to
     5     death as of the effective date of this section wishes to
     6     raise the issue of mental retardation and postsentence
     7     motions are still pending, the defendant may, pursuant to
     8     court rule, amend the postsentence motions to raise the claim
     9     that imposition of the death penalty would have been barred
    10     under 42 Pa.C.S. § 9711(e.1) if it had been in effect at the
    11     time of the sentencing hearing. The trial court that imposed
    12     the sentence on the defendant shall conduct an evidentiary
    13     hearing on the motion. Upon a finding that evidence has been
    14     presented sufficient to establish that the defendant is a
    15     person with mental retardation as provided under 42 Pa.C.S. §
    16     9711(e.1), the court shall vacate the sentence of death and
    17     shall sentence the defendant to life imprisonment.
    18         (3)  If a defendant who has already been sentenced to
    19     death as of the effective date of this section wishes to
    20     raise the issue of mental retardation and direct appeal is
    21     still pending, the defendant may, pursuant to rule of court,
    22     after disposition of the appeal, raise the issue in a Post
    23     Conviction Relief Act petition under 42 Pa.C.S. § 9545(b)
    24     after the disposition of the appeal.
    25     Section 5.  This act shall take effect immediately.




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