For the Defense - Vol. 6, Issue 4 - 8

Discuss this waiver with your client with the same
seriousness you would discuss the waiver of any
constitutional right.30
case, that means a defendant has 13 months from
the imposition of sentence to file a PCRA petition.7
If a defendant filed a direct appeal but no allocatur
petition, the PCRA deadline is 13 months after the
Superior Court decision.8
If allocatur was sought in
* Request discovery early and in writing. That way,
if the Commonwealth fails to provide requested
discovery, any required continuance will be on
the prosecution. If you have to follow-up with the
Commonwealth about discovery they have failed to
hand over, be sure to memorialize such requests in
a writing such as an email.
* If a continuance is required due to the
Commonwealth's failure of diligence, be sure to
put that on the record at the time the continuance
is requested. Even if the judge does not rule in
your favor, you have at least preserved the issue for
appeal.
365-day period has elapsed. If the trial judge rules
against you and subsequently the Commonwealth
causes another substantial period of delay, file
a new Rule 600 motion based on this additional
time and litigate it prior to any trial to preserve an
objection to the additional time period.
the Pennsylvania Supreme Court, there is considerably
more time to timely file a PCRA petition.9
Only the PCRA petition needs to be timely filed,
not the Simmons claim, which can later be raised in
an amended petition.10
2. Untimely PCRA Petitions
There is a narrow subset of illegal sentencing
claims that lower courts have the inherent power to
correct beyond the 30-day jurisdictional time limit of
42 Pa.C.S. § 5505. The error must be a patent one,
blatant on the face of the record or with little record
examination.11
* All motions to dismiss pursuant to Rule 600 must be
made in writing.31
A Simmons illegal sentence issue seems to fit
under this narrow subset of claims based on a
blatant, patent error.
File your client's motion after the Further, if jurisdictional time
limits under 42 Pa.C.S. § 5505 do not limit a judge's
inherent authority to correct such errors arguably the
PCRA jurisdictional time limits likewise should not
constrain a judge's inherent authority. The Superior
Court has rejected this argument.12
* At the Rule 600 hearing, after the defense has
made a prima facie showing that the defendant
has not been brought to trial within 365 days,
the Commonwealth bears the burden of proving
that they have nonetheless acted with diligence.
This means that after the defense has made such
a prima facie showing, it is the Commonwealth
who should be required to put on its evidence
and the defense should only argue after the
Commonwealth has done so. Essentially, a Rule 600
hearing should proceed in form almost identically
to a suppression hearing. If the judge asks you
to argue prior to the Commonwealth's evidence,
make it clear that you could not possibly argue
on behalf of your client until you know what the
Commonwealth's evidence of diligence is.
A Caveat
New Violation Proceedings with an Old Simmons
Violation
Unfortunately, we often have clients who have
had at least one prior revocation and now face new
violation proceedings in the same case. Even if the
present revocation proceedings appear lawful (e.g.,
violative conduct occurred during probation), the
Superior Court has held that if the term of probation
that was allegedly violated had been illegally
imposed at some point in the past, then any new
revocation sentence would also be illegal.13
* If the Commonwealth appears at the Rule 600
hearing and does not present any evidence that
it acted with diligence-for instance, they did not
bring in the officer to testify to the attempts made
to find and apprehend the defendant-argue that
they have not met their burden because the burden
of proof includes the burden of production and
arguments of counsel are not evidence.
What this should mean is that if your examination
of the record shows a past revocation of probation
and resulting sentence that were illegal because of
Simmons (or for any other reason), you can claim
that all subsequent revocations, including the
current revocation proceedings, are tainted by this
past illegality and that revocation is barred.
To be sure, there are Simmons violations that
tactically benefitted our clients and should not
be disturbed, as well as situations where Simmons
relief could possibly cause more harm than good.
Using the strategy above, people both in and
outside my office have had tremendous success with
Rule 600 motions. Oftentimes, just making it plain
to the Commonwealth that you intend to seriously
litigate this issue can get you results. It is only one
weapon in your arsenal, but because a win means
discharge, it is a potent weapon that should never
be overlooked.
NOTES:
1
2021) (en banc).
2
PANTONE
2955C
7406C
CMYK
Id. at *1.
90/78/39/30
9/22/91/0
NOTES:
1
RGB
4 Id. at *1 n.3 (quoting Commonwealth v. Tanner, 61 A.3d 1043, 1046
Commonwealth v. Mills, 162 A.3d 323 (Pa. 2017).
2 U.S. ConSt. Amend. VI; PA. CONST. art. 1, § 9.
22/58/92
(Pa. Super. 2013)).
5
234/194/56
HEXIDECIMAL
3 Commonwealth v. DeBlase, 665 A.2d 427, 431 (Pa. 1995).
4
42 Pa.C.S. §9545(b)(i).
7
Barker v. Wingo, 407 U.S. 514, 530 (1972) (articulating the
constitutional test); Commonwealth v. Preston, 904 A.2d
1, 10 (Pa. Super. Ct. 2006) (the Barker test is an entirely
separate analysis from Rule 600 and therefore needs to be
raised separately).
Commonwealth v. Infante, 63 A.3d 358, 367-68 (Pa. Super. 2013).
6
Pa.R.Crim.P. Rule 600(2)(a); see also Commonwealth
v. Kearse, 890 A.2d 388, 395 (Pa. Super. Ct. 2005) (no
" prejudice " need be shown to obtain Rule 600 dismissal).
While Rule 600 has a more definitive time period, the sole
focus of Rule 600 is on the action of the Commonwealth.
Thus, a constitutional argument should be forwarded
when a delay prejudices a defendant and that delay was
primarily caused by the courts.
6 Pa.R.Crim.P. Rule 600(D)(1).
5
probation revocation. Pa.R.Crim.P. 708 (E).
8
period for seeking an allowance of appeal).
9
About the Author
Click here to view and/or print the
1259, 1261 (Pa. Super. 1998).
10
justice. " Pa.R.Crim.P. 905 (A).
11
appeal was pending).
12
See, e.g., Commonwealth v. Cappello, 823 A.2d 936 (Pa. Super. 2003)
(judgment final when 30 day statutory period for filing a direct appeal
expired, therefore one year plus 30 days to timely file a PCRA petition).
Regardless of whether a motion to modify sentence was filed, the 30
day period for an appeal begins when sentence is imposed following a
See, e.g., Commonwealth v. Hutchins, 760 A.2d 50, 54 (Pa. Super. 2000)
(judgment final one year after Superior Court denial of relief and 30 day
Whenever the Pennsylvania Supreme Court finally rules on a case
where allocatur is sought, either with a denial of review or a decision on
the merits, the defendant has a year plus 90 days to file a PCRA petition.
That is because there are 90 days to file a petition for certiorari in the
United States Supreme Court, and when that time period expires the
judgment becomes final. See, e.g., Commonwealth v. Perry, 716 A.2d
full notes section for this article.
See, e.g., Commonwealth v. Flanagan, 854 A.2d 489, 499-500 (Pa.
2004). " Amendment shall be freely allowed to achieve substantial
Commonwealth v. Holmes, 933 A.2d 57 (Pa. 2007). See, e.g.,
Commonwealth v. Fitzpatrick, 181 A.3d 368 (Pa. Super. 2018) (even
though sentence was on direct appeal lower court could correct it when
it became illegal because of an appellate court case decided while the
See, e.g., Commonwealth v. Whiteman, 204 A.3d 448 (Pa. Super. 2019).
13 See Commonwealth v. Millhomme, 35 A.3d 1219, 1222 (Pa. Super.
2011); Commonwealth v. Everrett, 419 A.2d 793, 794 (Pa. Super. 1980).
About the Author
Katherine Ernst is an
appellate attorney with the
Montgomery County Public
Defender's Office. She
handles appeals from all
units, juvenile to homicide,
and she also formulates
legal strategy for pre-trial
See, e.g., Commonwealth v. Ford, 217 A.3d 824, 826 (Pa. 2019) (illegal
sentencing claim first raised in an amended PCRA petition decided on
the merits); Commonwealth v. Moore, 247 A.3d 990, 993 (Pa. 2021);
#153A5B
#EAC137
The above discussion addresses when you may be
able to challenge a revocation sentence on Simmons
grounds, not whether you should - a different
question which is beyond the scope of this article.
Commonwealth v. Simmons, ___ A.3d ___, 2021 WL3641859 (Pa. Super.
" Backtime " means whatever unserved portion of the 23 months
maximum remains after proper credit is awarded. See 42 Pa.C.S. §9760;
North Carolina v. Pearce, 395 U.S. 711 (1969) (Double Jeopardy Clause
mandates the awarding of credit for all time spent in custody on the
same offense).
3
and trial units. Katherine graduated Magna Cum
Laude from Loyola Law School, New Orleans
in 2007 and was on law review. She practiced
at Kaufman, Coren & Ress in Philadelphia out
of law school, and thereafter did work in the
intersection of horseracing law and §1983 for a
number of years before following her passion
for indigent criminal defense.
Share this article
Len Sosnov is an attorney
at the Defender Association
of Philadelphia, where he
developed the winning
argument in Simmons. He has
extensive experience as both
a trial and appellate lawyer.
Len is a lifelong Philadelphia
Defender, except for a couple of
decades after his first time there
when he was a law professor at Widener Law School.
For the Defense - Vol. 6, Issue 4

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