For the Defense - Volume 3, Issue 1 - 2018 - 25

becomes final at the conclusion of direct review,
including discretionary review in the Supreme
Court of the United States and the Supreme
Court of Pennsylvania, or at the expiration of
time for seeking the review."16,17
The PCRA's timeliness requirements are
"jurisdictional in nature."18 Because "the PCRA's
time restrictions are jurisdictional, ... the period
for filing a PCRA petition is not subject to
the doctrine of equitable tolling, save to the
extent the doctrine is embraced by [one of the
timeliness exceptions set forth at] § 9545(b)(1)
(i)-(iii)."19
An in-depth discussion of these timeliness
exceptions is beyond the scope of this article.
It at least bears mention, however, that a
petitioner who files his petition more than one
year after his judgment becomes final must also
contend with § 9545(b)(2), which provides that
any "petition invoking an exception provided in
paragraph (1) shall be filed within 60 days of the
date the claim could have been presented." The
determination of the date a claim first "could
have been presented" can involve fact-intense
questions that Pennsylvania courts continue to
grapple with.20
Two final comments on timeliness issues:
First, PCRA counsel should be aware that,
under the unique circumstances described at 42
Pa.C.S. § 9543(b), a petitioner otherwise eligible
for relief runs the risk of having his petition
dismissed if he delays in filing, and, as a result,
the Commonwealth is prejudiced. Second,
counsel should also be aware of the timeliness
requirements in federal habeas proceedings
- the federal analogue to PCRA proceedings
- which have a 1-year statute of limitations.21
Generally speaking, the longer a petitioner waits
to file his PCRA petition, the less time he will
have to file a habeas petition in federal court
should his efforts to secure relief in state court
prove unsuccessful.22
In the end, at least this much is clear: PCRA
counsel should act promptly.
Convicted of a Pennsylvania Crime and
Serving a Sentence
To be eligible for PCRA relief, a petitioner

must have "been convicted of a crime under the
laws of this Commonwealth."23 That's usually
easy enough to meet.
Additionally, "at the time relief is granted,"
the petitioner must be "currently serving a
sentence of imprisonment, probation or parole
for the crime" or "serving a sentence which must
expire before the [petitioner] may commence
serving the disputed sentence."24 The key phrase
is "at the time relief is granted." Thus, even
if a petition is filed while petitioner serves his
sentence, if petitioner's sentence then expires
before the PCRA court rules on the petition, he
will no longer be eligible for relief.25 While one
may question the fairness of this interpretation,
the practice lesson is to be aware of this
potential issue if your client is serving a relatively
short sentence, and to expedite the filing and
litigation if necessary.
Petitioner's Claims Show Entitlement to
Relief under the PCRA
This is the substantive requirement of the
PCRA. The types of claims available through the
PCRA are discussed in the next section.
Claims Weren't Previously Litigated or
Waived
The petitioner must show that "the
allegation of error has not been previously
litigated or waived."26 An issue "has been
previously litigated if ... the highest appellate
court in which the petitioner could have had
review as a matter of right has ruled on the
merits of the issue[] or it has been raised and
decided in a proceeding collaterally attacking
the conviction or sentence."27 An issue "is
waived if the petitioner could have raised it
but failed to do so before trial, at trial, during
unitary review, on appeal or in a prior state
postconviction proceeding."28
These requirements aren't difficult to
meet. To avoid waiver in particular, to the
extent petitioner wants to raise an issue that
could have been raised at the original trial but
wasn't - such as an improper jury instruction
- the petitioner may couch it as an ineffectiveassistance-of-counsel claim (for failing to object

Vol. 3, Issue 1

l

For The Defense

25



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
For the Defense - Volume 3, Issue 1 - 2018 - 36
For the Defense - Volume 3, Issue 1 - 2018 - 37
For the Defense - Volume 3, Issue 1 - 2018 - 38
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
For the Defense - Volume 3, Issue 1 - 2018 - 44
For the Defense - Volume 3, Issue 1 - 2018 - 45
For the Defense - Volume 3, Issue 1 - 2018 - 46
For the Defense - Volume 3, Issue 1 - 2018 - 47
For the Defense - Volume 3, Issue 1 - 2018 - 48
For the Defense - Volume 3, Issue 1 - 2018 - 49
For the Defense - Volume 3, Issue 1 - 2018 - 50
For the Defense - Volume 3, Issue 1 - 2018 - 51
For the Defense - Volume 3, Issue 1 - 2018 - 52
For the Defense - Volume 3, Issue 1 - 2018 - 53
For the Defense - Volume 3, Issue 1 - 2018 - 54
For the Defense - Volume 3, Issue 1 - 2018 - 55
For the Defense - Volume 3, Issue 1 - 2018 - 56
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol7_issue4_2022
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol7_issue3_2022
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol7_issue2_2022
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol7_issue1_2022
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol6_issue4_2021
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol6_issue3_2021
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol6_issue2_2021
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol6_issue1_2021
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol5_issue4_2020
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol5_issue3_2020
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol5_issue2_2020
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol5_issue1_2020
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol4_issue4_2019
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol4_issue3_2019
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol4_issue2_2019
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol4_issue1_2019
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol3_issue4_2018
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol3_issue3_2018
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol3_issue2_2018
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol3_issue1_2018
https://www.nxtbook.com/nxtbooks/pacdl/FORTHEDEFENSE_vol2_issue4_2017
https://www.nxtbook.com/nxtbooks/pacdl/FORTHEDEFENSE_vol2_issue3_2017
https://www.nxtbook.com/nxtbooks/pacdl/FORTHEDEFENSE_vol2_issue2_2017
https://www.nxtbook.com/nxtbooks/pacdl/FORTHEDEFENSE_vol2_issue1_2017
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol1_issue4_2016
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol1_issue3_2016
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol1_issue2_2016
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol1_issue1_2016
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