For the Defense - Vol. 8, Issue 1 - 13

p
made in writing.31 File your client's motion after the
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.
high to overcome a moderate level of preparedness for release.
" Negative recommendation of DA " is a sign that the prosecutor
made a compelling argument for the board to reject the matrix.
* 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.
The LSI-R score is totally beyond your client's control, and he
has little if any ability to change negative recommendations after
sentencing. Success in parole release requires a post sentencing
focus on the things he can control. Given the length of the process,
he needs to get into the state prison system in a timely fashion. The
Board's formal process of state parole release begins 8 months prior
to his minimum date, but a good deal of the information that is
collected at that time consists of progress reports from institutional
programming he may have had to wait a year or more to get into.
Every state prison I have ever visited is completely different from
every other one. An inmate needs time to acclimate and learn the
ropes unique to that facility to be a model inmate and avoid the
misconducts which can sink a parole application. He needs to invest
his time into not only the prescriptive programming the institution
demands of him but also educational and vocational opportunities
as they arise. If fortunate enough to find block work in the prison,
he needs to give it his all as his supervisor will be providing reports
on his work. He needs to stay connected with responsible members
of his family and community. He must be able to document that he
has a plan for successful reentry into society.
* 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.
If those tasks are not hard enough, he must not only acquire
insight and empathy, but he must convince the Board that he is
sincere in his expressions. He cannot say things that minimize his
involvement in the crime or shift any amount of responsibility to a
victim or a co-defendant. The crime, as the Board understands it, is
his and he must own it. A claim of innocence or reduced culpability
is for trials, appeals, post-conviction petitions and clemency pleas.
At a parole interview this claim not only falls on deaf ears, but it
also hardens the heart of the decision maker.
The last thing a sentenced state inmate needs to acquire or
refine is perseverance. It is rare that a state inmate will only get one
shot at parole release. His next interview might only be 6 months
or 1 year away. He has been given a list of the things he needed to
either work on or maintain prior to the next interview. He needs
to accept those challenges and welcome every opportunity to
show the Board that he has done his homework and is prepared
to reenter society.
PANTONE
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CMYK
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90/78/39/30
NOTES:
1
RGB
9/22/91/0
22/58/92
Com. v. Halloway, 42 Pa. 446 (1862).
2 Com. ex rel. Banks v. Cain, 345 Pa. 581, 586 n.2 (1942).
3 Act of May 10, 1909, P.L. 495.
#153A5B
#EAC137
4 12 TimoThy P. Wile, WesT's Pa. Prac., laW of ProbaTion and Parole § 2:6 (3d
ed.).
5
Banks, supra, 345 Pa. at 587.
6 61 Pa.C.S.A. § 6137(a)(3).
7 52 Pa. Bull. 6353 (October 8, 2022).
8
61 Pa.C.S.A. § 6132.
9 Rivenbark v. Pennsylvania Board of Probation and Parole, 509 Pa. 248,
501 A.2d 1110 (1985).
10
(1999).
12
61 Pa.C.S.A. § 6139 (a)(1).
11 Rogers v. Pennsylvania Bd. of Prob. & Parole, 555 Pa. 285, 724 A.2d 319
Winklespecht v. Pennsylvania Bd. of Prob. & Parole, 571 Pa. 685, 813
A.2d 688 (2002).
13
Passaro v. Pennsylvania Bd. of Prob. & Parole, 56 Pa. Cmwlth. 32,
424 A.2d 561 (1981); Brewer v. Pennsylvania Bd. of Prob. & Parole, 90
Vol. 8, Issue 1 l For The Defense 13
234/194/56
HEXIDECIMAL
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).
Pa.Cmwlth. 75, 494 A.2d 36 (1985).
14
42 Pa.C.S.A. § 9776.
15 61 Pa.C.S.A. § 6139 (a) (4).
16 12 TimoThy P. Wile, WesT's Pa. Prac., laW of ProbaTion & Parole § 8:3 (3d
About the Author
Click here to view and/or print the
ed.).
17
full notes section for this article.
19 61 Pa.C.S.A. § 6139(b).
61 Pa.C.S.A. § 6140.
42 Pa.C.S.A. § 2154.5.
57177, at *3-4 (Pa.Cmwlth. Jan. 6, 2020).
18
20
21
22
Majority%20Vote%20Offenses.pdf.
23
61 Pa. C.S.A. § 6137.1.
24 37 PA CODE § 61.2.
25
Lord v. Com., Pennsylvania Bd. of Prob. & Parole, 135 Pa.Cmwlth. 225,
229, 580 A.2d 463, 464-65 (1990).
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
Hill v. Pennsylvania Bd. of Prob. & Parole, 1136 C.D. 2018, 2020 WL
61 Pa.C.S.A. § 6135.
Board Designated Majority Vote Offenses, https://www.parole.
pa.gov/Information/procedures/Documents/Board%20Designated%20
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.
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Vol. 4, Issue 4 l For The Defense 9
David Crowley has been a
PACDL member since 1988, was
its secretary for the first decade
of this millennium and is the
proud recipient of its 2006
Alan Jay Josel Advocacy Award.
He has been the chief public
defender of Centre County
since 1989 where his practice
currently focuses on appellate work and the state parole
revocation hearings held at SCI Rockview and SCI Benner
Township.
https://www.parole.pa.gov/Information/procedures/Documents/Board%20Designated%20Majority%20Vote%20Offenses.pdf
For the Defense - Vol. 8, Issue 1

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