For the Defense - Volume 3, Issue 1 - 2018 - 24

professionally trained in the law - may identify
some. Conversely, while a petitioner may
ardently believe his claims have merit, counsel's
professional judgment may differ, and a nomerit letter may be in order. In other words,
PCRA counsel cannot simply rely upon her client
to identify potentially meritorious claims; rather,
counsel must engage in her own comprehensive
review of petitioner's case.
Notably, "[t]he quintessential [PCRA] claim
... is a claim of [trial] counsel ineffectiveness."7
But ineffective-assistance-of-counsel claims can
be difficult for PCRA counsel. The local criminal
defense bar is frequently intimate, and, as such,
there is a likelihood that PCRA counsel will
personally know, or at least be professionally
familiar with, her client's prior lawyer. PCRA
counsel may even hold the prior lawyer in
high regard. Yet PCRA counsel cannot allow
this familiarity to impede her independent
assessment of whether petitioner received
effective legal representation. Simply because
a lawyer has a great reputation generally does
not automatically mean that the lawyer was
effective in this specific petitioner's case.
Successful PCRA counsel, in short, must be
willing to turn over every stone on her client's
behalf-even when it may seem too time
consuming or uncomfortable to turn over a
particular stone. And while effective PCRA
counsel must have a combination of appellate
skills (research and writing) and trial skills (to
be able to understand what trial counsel should
have done and effectively communicate the
client's position at an evidentiary hearing),
perhaps the most important trait of the PCRA
lawyer is this: she must have the courage to
stand up in open court and state that another
lawyer made a mistake. This is easier said than
done. But it must be done when appropriate,
and it can be done in a professional and
respectful manner to prior counsel.
With this background in mind, the remainder
of this article is designed to give PCRA counsel
(particularly inexperienced counsel) a primer
for investigating, drafting, and litigating a
successful PCRA petition. This is achieved by
answering eight fundamental questions about

24

For The Defense

l

Vol. 3, Issue 1

PCRA litigation. We aim here to (1) provide
a few checklists to help PCRA counsel ensure
compliance with the Act's requirements, (2)
identify common legal issues that arise in PCRA
litigation as well as provide extensive citations
to caselaw, and (3) both list the types of claims
available under the PCRA and offer specific
examples.8

What is the Post-Conviction Relief
Act, What Laws and Rules Govern its
Proceedings, and What Type of Relief
is Available?
The PCRA provides convicted persons a
mechanism to seek collateral relief from their
conviction or sentence.9 To initiate a PCRA
proceeding, the convicted person - referred to
as a petitioner - must file a petition in the court
where he was convicted.10 If a petitioner files
pro se, and he can show both that the petition is
his first and he is indigent, the petitioner will be
appointed counsel to represent him.11
PCRA proceedings are governed by 42 Pa.C.S.
ยงยง 9541-9546 and Pa.R.Crim.P. Rules 900-910.
There is also a large and growing body of caselaw
interpreting these provisions.
Many petitioners seek a new trial through
the PCRA.12 Alternative forms of relief are also
available, such as reinstatement of appellate
rights13 or correction of an illegal sentence.14

Who is Eligible for Relief?
In order to be eligible for PCRA relief, a
petitioner must show that:
*	He timely filed his PCRA petition,
*	He was convicted of a Pennsylvania crime
and is serving a sentence,
*	His claims show that he is entitled to relief
under the PCRA,
*	The claims weren't previously litigated or
waived, and
*	His prior attorney(s) had no good reason for
failing to raise the claims earlier.
Timeliness
To be timely, a PCRA petition must generally
be filed within one year from the date judgment
of sentence becomes final.15 A "judgment



Table of Contents for the Digital Edition of For the Defense - Volume 3, Issue 1 - 2018

Contents
For the Defense - Volume 3, Issue 1 - 2018 - 1
For the Defense - Volume 3, Issue 1 - 2018 - 2
For the Defense - Volume 3, Issue 1 - 2018 - Contents
For the Defense - Volume 3, Issue 1 - 2018 - 4
For the Defense - Volume 3, Issue 1 - 2018 - 5
For the Defense - Volume 3, Issue 1 - 2018 - 6
For the Defense - Volume 3, Issue 1 - 2018 - 7
For the Defense - Volume 3, Issue 1 - 2018 - 8
For the Defense - Volume 3, Issue 1 - 2018 - 9
For the Defense - Volume 3, Issue 1 - 2018 - 10
For the Defense - Volume 3, Issue 1 - 2018 - 11
For the Defense - Volume 3, Issue 1 - 2018 - 12
For the Defense - Volume 3, Issue 1 - 2018 - 13
For the Defense - Volume 3, Issue 1 - 2018 - 14
For the Defense - Volume 3, Issue 1 - 2018 - 15
For the Defense - Volume 3, Issue 1 - 2018 - 16
For the Defense - Volume 3, Issue 1 - 2018 - 17
For the Defense - Volume 3, Issue 1 - 2018 - 18
For the Defense - Volume 3, Issue 1 - 2018 - 19
For the Defense - Volume 3, Issue 1 - 2018 - 20
For the Defense - Volume 3, Issue 1 - 2018 - 21
For the Defense - Volume 3, Issue 1 - 2018 - 22
For the Defense - Volume 3, Issue 1 - 2018 - 23
For the Defense - Volume 3, Issue 1 - 2018 - 24
For the Defense - Volume 3, Issue 1 - 2018 - 25
For the Defense - Volume 3, Issue 1 - 2018 - 26
For the Defense - Volume 3, Issue 1 - 2018 - 27
For the Defense - Volume 3, Issue 1 - 2018 - 28
For the Defense - Volume 3, Issue 1 - 2018 - 29
For the Defense - Volume 3, Issue 1 - 2018 - 30
For the Defense - Volume 3, Issue 1 - 2018 - 31
For the Defense - Volume 3, Issue 1 - 2018 - 32
For the Defense - Volume 3, Issue 1 - 2018 - 33
For the Defense - Volume 3, Issue 1 - 2018 - 34
For the Defense - Volume 3, Issue 1 - 2018 - 35
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For the Defense - Volume 3, Issue 1 - 2018 - 37
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For the Defense - Volume 3, Issue 1 - 2018 - 39
For the Defense - Volume 3, Issue 1 - 2018 - 40
For the Defense - Volume 3, Issue 1 - 2018 - 41
For the Defense - Volume 3, Issue 1 - 2018 - 42
For the Defense - Volume 3, Issue 1 - 2018 - 43
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For the Defense - Volume 3, Issue 1 - 2018 - 45
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For the Defense - Volume 3, Issue 1 - 2018 - 55
For the Defense - Volume 3, Issue 1 - 2018 - 56
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