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PA Bulletin, Doc. No. 02-562

THE COURTS

Title 210--APPELLATE PROCEDURE

PART I.  RULES OF APPELLATE PROCEDURE

[210 PA. CODE CH. 25]

Order Amending Rule 2521; No. 137 Appellate Court Rules; Doc. No. 1

[32 Pa.B. 1839]

Order

Per Curiam:

   Now, this 26th day of March, 2002, upon recommendation of the Appellate Court Procedural Rules Committee, this proposal having been submitted without publication pursuant to Pa.R.J.A. 103(a)(3) in the interest of justice:

   It is Ordered pursuant to Article V, Section 10 of the Constitution of Pennsylvania that Rule of Appellate Procedure 2521 is amended in the following form.

   This Order shall be processed in accordance with Pa.R.J.A. 103(b) and shall be effective July 1, 2002.

   Chief Justice Zappala files a dissenting statement in which Mr. Justice Nigro joins.

Annex A

TITLE 210.  APPELLATE PROCEDURE

PART I.  RULES OF APPELLATE PROCEDURE

CHAPTER 25.  POST-SUBMISSION PROCEEDINGS IN GENERAL

Rule 2521.  Entry of Judgment or Other Orders.

   (a)  General Rule. Subject to the provisions of Rule 108 (date of entry of orders), the notation of a judgment or other order of an appellate court in the docket constitutes entry of the judgment or other order. The prothonotary of the appellate court shall prepare, sign and enter the judgment following receipt of the opinion of the court unless the opinion is accompanied by an order signed by the court, or unless the opinion directs settlement of the form of the judgment, in which event the prothonotary shall prepare, sign and enter the judgment following settlement by the court. If a judgment is rendered without an opinion or an order signed by the court, the prothonotary shall prepare, sign and enter the judgment following instruction from the court. The prothonotary shall, on the date a judgment or other order is entered, send by first class mail to all parties a copy of the opinion, if any, or of the judgment or other order if no opinion was written, and notice of the date of entry of the judgment or other order.

   (b)  Notice in Death Penalty Cases. Pursuant to Pa.R.Crim.P. 900(B), in all death penalty cases upon the Supreme Court's affirmance of the judgment of a death sentence, the prothonotary shall include in the mailing required by subdivision (a) of this Rule the following information concerning the Post Conviction Relief Act and the procedures under Chapter 9 of the Rules of Criminal Procedure. For the purposes of this notice, the term ''parties'' in subdivision (a) shall include the defendant, the defendant's counsel, and the attorney for the Commonwealth.

   (1)  A petition for post-conviction collateral relief must be filed within one year of the date the judgment becomes final, except as otherwise provided by statute.

   (2)  As provided in 42 Pa.C.S. § 9545(b)(3), a judgment becomes final at the conclusion of direct review, which includes discretionary review in the Supreme Court of the United States and the Supreme Court of Pennsylvania, or at the expiration of time for seeking the review.

   (3)  (A)  If the defendant fails to file a petition within the one-year limit, the action may be barred. See 42 Pa.C.S. § 9545(b).

   (B)  Any issues that could have been raised in the post-conviction proceeding, but were not, may be waived. See 42 Pa.C.S. § 9544(b).

   (4)  Pursuant to Rule 904 (Appointment of Counsel; In Forma Pauperis), the trial judge will appoint new counsel for the purpose of post-conviction collateral review, unless:

   (A)  the defendant has elected to proceed pro se or waive post-conviction collateral proceedings, and the judge finds, after a colloquy on the record, that the defendant is competent and the defendant's election is knowing, intelligent and voluntary;

   (B)  the defendant requests continued representation by original trial counsel or direct appeal counsel, and the judge finds, after a colloquy on the record, that the petitioner's election constitutes a knowing, intelligent and voluntary waiver of a claim that counsel was ineffective; or

   (C)  the judge finds, after a colloquy on the record, that the defendant has engaged counsel who has entered, or will promptly enter, an appearance for the collateral review proceedings.

   Official Note: See Pa.R.Crim.P. 900(B), which also includes the identical requirement in death penalty cases that notice of the information concerning the statutory time limitations for filing petitions for post-conviction collateral relief and the right to counsel enumerated in subdivision (b) of this rule be sent by the prothonotary with the order or opinion sent pursuant to subdivision (a) of this rule. Because of the importance of this notice requirement to judges, attorneys and defendants, the requirement that the Supreme Court Prothonotary mail the aforesaid notice has been included in both the Rules of Criminal Procedure and the Rules of Appellate Procedure.

   Amended Dec. 11, 1978, effective Dec. 30, 1978; amended March 26, 2002, effective July 1, 2002.

Dissenting Statement

Mr. Justice Zappala            Decided: March 26, 2002

   I dissent from that portion of the amendment that requires the Supreme Court Prothonotary to provide notice of relevant Post Conviction Relief Act provisions to the capital defendant himself, rather than solely to defense counsel, because I believe it creates an unnecessary administrative burden.

   The amendment directs the Prothonotary to include such a notice in its mailing of the copy of our Court's opinion affirming the judgment of a death sentence. Currently, however, the Prothonotary only sends a copy of our opinion to the defendant's counsel. Amending the rule to require personal notice raises legitimate concerns over locating the defendant and effectuating service. Also, because copies of the opinion are sent by first class mail, there will be no way of ensuring that the death row inmate in fact received the notice.

   I believe a better approach would be to require the Prothonotary to send the notice of PCRA rights to the defendant's counsel and charge counsel with the duty of furnishing such information to the defendant. Personal notice to the defendant, himself, would only be necessary in cases where the defendant is proceeding pro se. This approach would alleviate the administrative burden placed on the Prothonotary's Office while still ensuring that the defendant receives notice of his PCRA rights.

   Mr. Justice Nigro joins in this dissenting statement.

[Pa.B. Doc. No. 02-562. Filed for public inspection April 12, 2002, 9:00 a.m.]


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