For the Defense - Vol. 8, Issue 1 - 38

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Discuss this waiver with your client with the same
seriousness you would discuss the waiver of any
constitutional right.30
that motion yourself and ask for new counsel to be appointed
because you have a conflict continuing to represent a client who
has a potential claim alleging your ineffectiveness.
9. Know the federal statute of limitations and act accordingly.
* 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.
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.
Too often PCRA lawyers affirmatively misadvise their clients
about the applicable habeas statute of limitations (SOL) or fail to
advise them at all, with disastrous results. The PCRA and habeas
SOLs are the same (one year) and they begin to run at the same
time (from the date judgment of sentence becomes final). The
federal clock is tolled (or stops running) on the date the prisoner
properly files his PCRA petition and starts up again once his
PCRA appeals are completed. In the typical case where the client
pursues relief through the Pennsylvania Supreme Court on direct
appeal but no further, judgment of sentence becomes final 90
days thereafter, corresponding to the amount of time he gets to
seek certiorari before the United States Supreme Court.
To illustrate-If allocatur on direct appeal is denied on January
15, 2023, judgment of sentence becomes final 90 days later, on
April 20, 2023 (don't forget about leap years!).18
* All motions to dismiss pursuant to Rule 600 must be
made in writing.31
File your client's motion after the
* 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.
* 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.
Conclusion
PCRA practitioners should have been doing all these things
* 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.
38 For The Defense l Vol. 8, Issue 1
before Shinn. The post-Shinn landscape, where our clients no
longer enjoy the protections of Martinez, means that there is
no room for error and your responsibilities as PCRA counsel just
got tougher. If you narrowly define your PCRA role as doing the
minimum to satisfy the PCRA judge so you can move on to the next
case, you are seriously hurting your clients. And after Shinn your
successor can no longer do much of anything to correct your errors
and omissions. State court PCRA is now where the action is.
until April 19, 2024 to file both his PCRA and habeas petitions. If
he files his PCRA petition on April 15, 2024, it may be timely in
state court, but he only has four days to file his habeas petition
once his PCRA appeals are completed. That is not cool, especially
considering that he may not even be notified that his final PCRA
appeal was denied until after the federal SOL has expired. In these
situations, you have a duty to advise the client to file a protective
habeas petition well in advance of the PCRA appellate court's
final decision. Such a petition would set forth all the claims raised
on direct appeal and PCRA, explain that the petition is being
filed during the pendency of the PCRA proceedings because of
the risk that the SOL will otherwise expire, and request that the
federal petition be stayed pending the state court proceedings.
These stay requests are routinely granted. If you are retained for
a PCRA before the client files his pro se petition, you should file
the counseled PCRA petition well in advance of the expiration
of the SOL to give your client adequate time to prepare and
file his federal petition. And it is sad that this even needs to be
mentioned but you must make sure to immediately notify your
client of all court decisions. Their ability to seek habeas relief
depends on it.
* 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.
He then has 5
when a delay prejudices a defendant and that delay was
primarily caused by the courts.
6 Pa.R.Crim.P. Rule 600(D)(1).
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
2
__U.S.__, 142 S.Ct. 1718 (2022).
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3 Commonwealth v. DeBlase, 665 A.2d 427, 431 (Pa. 1995).
4
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).
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).
one way or the other.
4
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About the Author
Click here to view and/or print the
full notes section for this article.
REPORT%20June%2025%202018.pdf.
5
373 U.S. 83 (1963).
6
Commonwealth v. Grant, 813 A.2d 726, 738 (Pa. 2002). In
Commonwealth v. Bradley, 261 A.3d 381 (Pa. 2021) the court
abrogated that aspect of Grant that operated to disallow raising
claims that initial PCRA counsel was ineffective. Bradley, 261 A.3d
at 402. We discuss infra the significant opportunities Bradley
affords our clients. In addition, Commonwealth v. Holmes, 79
A.3d 562, 577 (Pa. 2013) approved a very limited exception to
the general rule of Grant to permit defendants to raise in postsentence
motions allegations that trial counsel was ineffective.
Practitioners should be wary of litigating ineffective assistance
claims at the post-sentence motion stage, because the client
must waive his right to pursue PCRA relief in exchange for the
privilege. Id. at 564.
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
Vol. 4, Issue 4 l For The Defense 9
Prior to the Civil War, the constitutional right to habeas corpus
applied only to the federal government. In the immediate
aftermath of the war, distrusting that Southern states and their
judiciaries would protect the federal rights accorded formerly
enslaved persons, Congress passed the Habeas Corpus Act of
1867. This amended the Judiciary Act of 1789 to give federal
courts authority to grant habeas relief to state prisoners.
Throughout Reconstruction, the Jim Crow era, and beyond, state
courts routinely failed to ensure that African American citizens
were protected under the law, prompting federal habeas courts
to sometimes intervene. For a fascinating read on how the extrajudicial
lynching of Ed Johnson in 1906, following his false arrest
for rape, landed Tennessee law enforcement officials before
the United States Supreme Court to face contempt charges,
illustrating the unshakable resistance to federal habeas authority
states often display, see Contempt of Court: The Turn-of-theCentury
Lynching that Launched a Hundred Years of Federalism,
About the Author
Click here to view and/or print the
full notes section for this article.
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
by Mark Curriden & Leroy Phillips, Jr., Anchor Books, 2001.
3
James Liebman, et al., A Broken System: Error Rates in Capital
Cases 1973-1995, columbia laW school Public laW and legal Theory
Working PaPer grouP no. 15, (2000) (error rate of 68%); Barry
Latzer and James Cauthen, Meaning of Capital Appeals: A
Rejoinder to Liebman, Fagan & West, 84 JudicaTure, Issue 3 (2000)
(error rate of 52%). Although these studies are from 2000, there
is little reason to think errors in capital cases have changed much,
See, Pennsylvania State Government Commission, Capital
Punishment in Pennsylvania: The Report of the Task Force and
Advisory Committee (June 18, 2018, available at http://jsg.legis.
state.pa.us/resources/documents/ftp/publications/2018-06-25%20
SR6%20(Capital%20Punishment%20in%20PA)%20FINAL%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.
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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Daniel Silverman has 37 years
of experience as a criminal
defense attorney. Since
1994, he has concentrated
his practice on representing
inmates convicted of homicide
who are pursuing their
post-conviction remedies in
state and federal court. Mr.
Silverman is also an associate
professor in the Department of Criminal Justice at
Temple University.
https://nxt-staging-books.s3.amazonaws.com/nxtbooks/PACDL/FORTHEDEFENSE_vol8_issue1_2023/src/docs/FINAL_Magazine_notes_Shinn_v._Ramirez_Daniel_Silverman.pdf http://jsg.legis.state.pa.us/resources/documents/ftp/publications/2018-06-25%20SR6%20(Capital%20Punishment%20in%20PA)%20FINAL%20REPORT%20June%2025%202018.pdf
For the Defense - Vol. 8, Issue 1

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