For the Defense - Vol. 8, Issue 4 - 49

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appeal.
raised separately).
Discuss this waiver with your client with the same
seriousness you would discuss the waiver of any
constitutional right.30
* 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 intention of the study and the forthcoming article is not to
cast doubt on the ability or quality of the representation provided
by individual public defenders, but rather to identify the structural
barriers defense counsel face in their day-to-day work, as well
as the systemic shortcomings that prevent them from providing
constitutionally adequate representation. Even with limited county
coffers and paltry state support, public defenders continue their
tireless and important work relying on the resources they have.
One vital resource available is the " Guide to Representing NonCitizen
Criminal Defendants in Pennsylvania, " produced by the
Defender Association of Philadelphia, which analyzes the potential
immigration consequences for specific Pennsylvania offenses and
provides alternative pleas and practice tips for defense counsel
throughout the Commonwealth.27
This type of collaboration and
resource-sharing is vital for defense counsel struggling to meet their
obligations in the absence of sufficient county and state funding.
Conclusion
Padilla practice in Pennsylvania has fallen below national
* All motions to dismiss pursuant to Rule 600 must be
made in writing.31
File your client's motion after the
* All motions to dismiss pursuant to Rule 600 must be
made in writing.31
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.
File your client's motion after the15
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.
PANTONE
standards and pales in comparison with most of our neighbors. As a
legal community, we have an obligation to raise the bar and ensure
that all Pennsylvania residents-citizens and noncitizens alike-
have access to quality defense representation. Practitioners should
continue to challenge narrow state interpretations of Padilla which
have watered down and confused defense counsel's obligations. And
the state should provide resources to equip the defense bar with the
tools they need to comply with current ABA standards and provide
constitutionally adequate representation.
* 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.
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2 Id.
3 Id. at 364.
4 Id. at 366.
5 ABA Crim. juSt. StandardS: def. funCtion, 4-5.4 (am. Bar aSS'n, 4th ed. 2017).
6 Id.
* 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.
7 Id.
8 Id. at 4-5.5.
9 Id. at 4-5.4.
10 Id. at 4-5.5.
Press Release, Governor Josh Shapiro, Governor Shapiro Signs Into Law
Commonsense Budget that Makes Historic Investments to Create a Stronger
Economy, Safer and Healthier Communities, and Better Schools, (Aug. 3,
Padilla, 559 U.S. at 357.
Commonwealth v. Escobar, 70A.3d 838, 841 (Pa. Super. Ct. 2013), appeal
denied, 86 A.3d 232 (2014); Commonwealth v. McDermitt, 66 A.3d 810, 814
(Pa. Super. Ct. 2013).
11
2023), https://pacast.com/m?p=23546
12
13 Id.
14
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Padilla v. Kentucky, 559 U.S. 356, 274 (2010).
* 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.
5
NOTES:
1
Commonwealth v. Mills, 162 A.3d 323 (Pa. 2017).
2 U.S. ConSt. Amend. VI; PA. CONST. art. 1, § 9.
About the Authors
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About the Author
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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).
Given the Commonwealth's recent step of providing some-
though not enough-state funding to county public defenders'
offices, now is the time to highlight the increased obligations
imposed by Padilla on defense attorneys and the corresponding need
for additional resources to fulfill these obligations. The amount and
quality of advice a noncitizen client receives should not vary based
on the county in which they reside or in which they are charged
with a crime. As Pennsylvania's immigrant population continues to
grow, the Commonwealth must do more to ensure that defenders
have the resources they need to provide high-quality representation
to noncitizen clients across the Commonwealth-wherever they may
choose to live.
* 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.
About the Author
Click here to view and/or print the
full notes section for this article.
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Mikaela Wolf-Sorokin is a third-year
law student at the University of
Pennsylvania Carey Law School. Her
research focuses on crimmigration
issues including access to counsel
in immigration proceedings and
Padilla practices. She is the lead
researcher on a forthcoming article
on Padilla practices in Pennsylvania.
She obtained her B.A. from Carnegie
Mellon University.
Liz Bradley is an Appellate Attorney
with the Florence Immigrant
& Refugee Rights Project and
a Lecturer in Law with the
Transnational Legal Clinic at the
University of Pennsylvania Carey Law
School. Her research and practice
focus on deportation defense, the
intersection between criminal and
immigration law, due process in
immigration court, and appellate
litigation. She obtained her Juris
Doctorate from the University of
Whitney Viets is an Adjunct
Professor of Law at the Charles
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
Vol. 8, Issue 4 l For The Defense 49
Widger School of Law at
Villanova University. She is also
the Immigration Counsel for
the Defender Association of
Philadelphia and a Staff Attorney
at the Nationalities Service Center
in Philadelphia. In her current
roles, Ms. Viets advises and trains
attorneys throughout Pennsylvania
on the immigration consequences
of criminal convictions, represents
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
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.
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
State v. Hutton, 776 S.E.2d 621, 638 (W. Va. 2015); State v. Gaitan, 209
N.J. 339, 380, 37 A.3d 1089, 1113-14 (2012); State v. Romero, 129 N.E.3d 404,
412-13 (Ohio 2019); Zemene v. Clarke, 768 S.E.2d 684 (Va. 2015); People v.
Abdallah, 153 A.D.3d 1424, 1426 (N.Y. App. Div. 2017).
Wisconsin Law School and B.A. from McGill University.
Vol. 4, Issue 4 l For The Defense 9
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
non-citizens facing removal from the United States, and assists in
appellate litigation on a wide range of issues in immigration law.
She obtained both her law degree and undergraduate degree from
the University of Pennsylvania.
https://nxt-staging-books.s3.amazonaws.com/nxtbooks/PACDL/FORTHEDEFENSE_vol8_issue4_2023/src/docs/Pennsylvanias_Padilla_Problem.Wolf_FINAL.pdf https://pacast.com/m?p=23546
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