Pennsylvania’s Post Conviction Relief Act (PCRA)

The PCRA is an indirect method of appeal in criminal cases. A direct appeal is when a criminal case is appealed from the Court of Common Pleas, where the accused lost the case, and wants to challenge some aspect of it. For more on direct appeals, read my post here. An indirect appeal in a PCRA allows the person to have the case reconsidered when a direct appeal to the Superior Court has been denied.

The PCRA must be filed within one year of the denial of the final direct appeal, or after the conviction if the defendant chooses not to use direct appeals. The one year rule does have some exceptions. The basic exceptions include: where counsel effectively abandons the defendant in the PCRA process, where the petition is an extension of a previously filed petition that was within the one year limit, where the government blocked the petition in some manner, where the new evidence could not have been known within the one year limit, and finally, where the court has determined that constitutional rights are such that the extension must be given.

PCRA is limited on its grounds for appeal. The full text of the act can be read here, but I will summarize it briefly. Under 42 Pa.C.S.A. § 9541 et seq, you may only begin the process for the PCRA if your conviction or sentence resulted from:

  • A violation of the Constitution of Pennsylvania or of the United states, or of the laws of the United States, and the violation occurred under circumstances which so undermined the process that no reliable adjudication of truth could have taken place
  • There was ineffective assistance of counsel such that no reliable determination of truth could have taken place
  • A plea of guilty was gotten under circumstances which make it likely that the defendant was induced to falsely make the statement and the defendant is innocent
  • Government officials wrongly obstructed the defendant’s right to appeal where an issue for appeal was present and capable of being appealed
  • New evidence has come to light which would have changed the outcome of the trial
  • A sentence was imposed which was greater than the lawful maximum
  • The court proceeding took place in a tribunal which did not have jurisdiction

Additionally, the statute requires that the allegation in the petition has not been previously litigated in court (it is a new issue) and it has not been waived by a failure to raise the issue (you didn’t bring it up and you were only permitted to bring it up at a certain point of the proceeding). The failure to litigate the issue cannot be the result of a rational or strategic move by the defendant’s attorney at trial.

You may notice the phrase “reliable adjudication of the truth” or “reliable determination of the truth.” These phrases are synonymous and mean that, because of what happened at trial, the facts or process was so distorted that no one could have discovered the truth. The courts have stated that the issue must go directly to the truth-determining process. (Commonwealth v. Bennett, 2007).

Another thing to mention is the process that a person must be given for the court to have properly reviewed the PCRA claim. Although the amount of due process required is less stringent than at trial, a defendant who petitions is still entitled to present his or her claims in a meaningful time and have them considered in a meaningful manner.

A petition for post-conviction relief must conform to certain processes and is subject to parameters defined by statute and the court. When you consider a PCRA, you also need to consider what attorney you will hire, and find one with the experience and the dedication to see the petition through. Failure to obtain the right counsel can result in the denial of your petition.

Call Shannon K. McDonald to discuss your potential PCRA petition today.

The Basics of Oil and Gas Leases: Part I

Exploitation of oil and gas is going through a rebirth in Pennsylvania today, and many attorneys and individuals are new to the field and treading on uncertain ground regarding what they should and should not accept in a lease. Certain things, like royalty payments, are more fact specific, and general advice about that clause depends on land specifications and the location of the reserve the landowner situated on.

In this first post in the oil and gas series we’ll determine what basic things you should know prior to entering an oil and gas lease, especially in Pennsylvania, where much of the legal territory has been unregulated for 100 years.

First, many people don’t know that every plot of land begins with two separate estates (sets of ownership rights), a surface estate and a mineral estate.

  1. A surface estate, which allows use and exploitation of the surface area and the area above it to a reasonable point. An example would be placing your house, your farm, and a windmill on your property: then you are using the surface estate.
  2.  The mineral estate gives use and exploitation rights to all minerals under that piece of property. This would include the right to mine for coal or gold, and drill for gas and oil.

These two estates are both included in your land parcel, unless they have been severed at some point. As the country expanded west it was common for developers or even the states themselves to retain the mineral estate. For most Pennsylvanians, unless the mineral estate was sold by a prior owner, the landowner is probably the owner of both estates. A title attorney can check for full or partial ownership of the mineral estate.

The fact that most Pennsylvanians still own their mineral estate, gives the individual more control over the decisions for a lease. Although you will feel a lot of pressure from neighbors or the company attempting to lease your mineral estate, you should be cautious when accepting the terms of a lease and always consult an oil and gas law attorney.

You should be exceptionally careful if approached about outright selling your mineral estate, as that removes the right to valuable royalty payments for yourself and future generations. When it does come time to divide your estate, you may divide the ownership interests in the mineral estate, just as you would in the surface estate. However, you must be careful because when you do this, because it severs the mineral estate from the surface estate.

The division of the two estates creates an undivided interest in the whole of the mineral estate. So, where a person gives the mineral estate to her two children, each child owns half of the mineral estate, but niether can point to one half of the property and say, “That’s MY half of the mineral estate!”

One of the children is free to subsequently sell his half, or sell one quarter and retain one quarter. The effect of the sale, and the conveyance of a mineral estate, requires extremely precise language. Any ambiguous statements will not be used to your advantage in court-and a mistake in an oil and gas conveyance can be very costly!

In the next post we will discuss some of the more common clauses in leases, and what effect they have on your mineral estate and your rights. Although this portion makes mention of Pennsylvania, and I am only licensed to practice in Pennsylvania and Wyoming, the information in the second post in this series is broad and merely informative; it is not intended to be state specific.

Shannon K. McDonald studied oil and gas law while in school in the state of Wyoming. Wyoming has a thriving oil and gas industry, and has been regulating the exploitation of minerals while preserving the rights of individuals and the beauty of the land for twenty years. While in Wyoming, Shannon K. McDonald learned some of the nuances of the leasing system and how to negotiate and form oil and gas leases to benefit the landowner.

Contact Shannon K. McDonald for assistance with your mineral leasing situation today.

Top Six Reasons to Consult an Attorney

I started out with just five, but folks, the reasons just keep coming, and number six is truly what people are looking for from those they do business with.

  1. Avoid your exposure to risk- You want to move forward, you want to prosper, and you want to succeed. If fortune does “favor the bold,” then what you should do is be bold. However, when you embark on a new venture, you face risks. Consider these risks before you move forward with any venture, whether business or personal, and use an attorney’s expertise to help you overcome these risks.
  2. Solutions to your problems- I have worked with many diverse clients while working in the law, and prior to that, while working in the business world. The experiences I have had are a valuable asset to you. My work with others can only serve to benefit you: perspective from others is a good way to help solve problems.
  3. Study of the law and facts- when you consult with me, you will benefit from a thorough review of the facts and law in your issue. After an in-depth interview with you, to gather the facts of your specific situation, and detailed research into any and all cases and laws that might affect your next move. Making an appointment with this office will secure a comprehensive study of the law and facts to help you solve your problems.
  4. Communication on your behalf- Let’s face it, sometimes you have to be the bad guy. When you need to take an aggressive posture in a dispute or a negotiation, that is a position in which your attorney, in their capacity as zealously representing you, can help you in that situation. Alternatively, when you find you may need to back down on an issue, having a proxy, such as an attorney, can help you to save face.
  5. Timely performance- When you pay for an attorney, you pay for someone who has the time and resources to make sure an issue gets done when it needs to be done. A good attorney makes your urgent and important matter, their urgent and important matter.

AND

6.   Ongoing support- When you retain an attorney, the attorney should be available, the attorney should be accessible, and the attorney should provide sound advice- these three things comprise support. With me as your attorney, this support goes beyond the first issue you discuss with me. The support continues, throughout aspects of your life and other future issues you may run into. Whether legal or not, having a person you can trust, and who is unquestioningly on your side, is crucial to your wellbeing.