For the Defense - Volume 3, Issue 1 - 2018 - 28
other hand, if counsel is appointed to represent
a pro se petitioner who has filed a ninth petition
that raises claims identical to those he raised
in the prior seven, counsel will likely need to
conduct less investigation and can quickly move
on to preparing a no-merit letter65 (though
remember to be always remain vigilant and
open-minded to ensure you don't miss something
important).
What Must Be Included in the
Petition?
Under Pa.R.Crim. Rule 902, the petition must,
at minimum, include:
* Grounds for relief (i.e., claims supporting
request for PCRA relief)
* Facts supporting grounds for relief
* Witness certifications
* Client verification
* Exhibits supporting the petition, such as
witness affidavits and other documents
* Request for hearing
* Additional basic case information outlined
at Pa.R.Crim.P. Rule 902(A)
Further, while argument and citation to
authorities is not required under the rules,66 from
a persuasion perspective, PCRA counsel usually
should brief the issues. This is so for a number
of reasons. First, any grounds not raised in the
petition are waived.67 Second, in the context of
a pre-trial motion such as a suppression, counsel
can sometimes ask to brief the issues after a
hearing is held and counsel has built a record. In
the PCRA context, however, a petitioner might
not even get a hearing.68 Third, a much more
complete record is available at the PCRA stage
(including the trial or plea transcripts) than is
available before the filing of a pre-trial motion.
Because much of the evidence is already of record
at the PCRA stage, counsel should have a better
understanding of the facts (and law) before
filing, thus enabling counsel to confidently brief
the issues in the initial filing. For those with civil
practice experience, it may be helpful to think
of a PCRA petition as similar in form, structure,
and purpose to a summary judgment motion and
brief.
28
For The Defense
l
Vol. 3, Issue 1
Note also that, should it become necessary
to amend the petition, requests to amend are
liberally granted.69
Finally, if you'd like to see a sample petition,
please e-mail us. We'd be happy to share a
redacted copy of a petition.
How Do I Prepare for the Hearing?
First, remember that a petitioner does not
have an automatic right to a hearing, and a PCRA
court may dismiss a petition without holding any
hearing.70 Assuming a hearing is granted, counsel
should prepare as they would for any evidentiary
hearing. Counsel should particularly keep in mind
the twist in this context is that the petitioner,
not the Commonwealth, carries the burden of
proof and production. So counsel must ensure
they have their witnesses subpoenaed and ready
to go, and also be prepared to conduct direct
examinations (rather than the typical cross).
What Do I Do If the PCRA Court
Dismisses the Petition?
An "order granting, denying, dismissing,
or otherwise finally disposing of a petition for
post-conviction collateral relief shall constitute a
final order for purposes of appeal."71 Thus, when
a PCRA court dismisses a petition, the petitioner
has 30 days to appeal.
PANTONE
2955C
7406C
CMYK
Notes
90/78/39/30
9/22/91/0
RGB
1. 42 Pa.C.S. ยง 9542.
2. See Commonwealth v. Grant, 813 A.2d 726, 738 (Pa.
2002) ("as a general rule, a petitioner should wait to
raise a claim of ineffective assistance of counsel until
collateral review.").
3. Commonwealth v. Figueroa, 29 A.3d 1177, 1181 (Pa.
Super. 2011); see also Pa.R.Crim.P. 904(C).
4. If, after a thorough and independent review, counsel
determines that petitioner cannot raise any meritorious
claims under the PCRA, counsel may file a "no-merit"
letter. See Pennsylvania v. Finley, 481 U.S. 551 (1987)
and Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988).
A no-merit letter must "detail[] the nature and extent
of counsel's diligent review of the case, list[] the issues
which petitioner wants to have reviewed, explain[]
why and how those issues lack merit, and request[]
permission to withdraw. Counsel must also send to
the petitioner: (1) a copy of the 'no merit' letter[ ];
(2) a copy of counsel's petition to withdraw; and (3) a
statement advising petitioner of the right to proceed
22/58/92
234/194/56
HEXIDECIMAL
#153A5B
#EAC137
Table of Contents for the Digital Edition of For the Defense - Volume 3, Issue 1 - 2018
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For the Defense - Volume 3, Issue 1 - 2018 - 2
For the Defense - Volume 3, Issue 1 - 2018 - Contents
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