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.

Your Rights at a DUI Stop: Sobriety Checkpoints and DUI Roadblocks

Sobriety checkpoints and DUI roadblocks are increasingly used to enforce DUI laws. The courts have found that if the police follow specific guidelines, a systematic checkpoint is constitutional. The police must follow certain roadblock guidelines and respect your individual rights.

If the guidelines set out by the courts are not followed, then the DUI arrest may be invalid. You should discuss with your attorney the process that you underwent regarding the arrest: from the initial stop, up until the arrest and Miranda Warnings.

What guidelines are there?

The United States Supreme Court case Michigan v. Sitz established many of the guidelines that police officers must follow in a roadblock or DUI checkpoint. Pennsylvania has established a number of other cases which largely follow these guidelines.

  • The police may not choose vehicles at random: The officers conducting the checkpoint musty have a pre-established neutral mathematical formula for which cars to stop. For example, officers may determine ahead of time that they will stop only every third car. This prevents potential discrimination by stopping individuals based on appearance.
  • Checkpoints must be established to ensure safety of police and the drivers: The roadblock must be highly visible to ensure time for stopping or slowing down to a safe speed. The roadblock must also be done in a way that minimizes the amount of time each driver is at a checkpoint.
  • You may turn around prior to the checkpoint: So long as you do not break any traffic laws or regulations, you have the right to turn around and take a different prior to being stopped at the checkpoint. That is, if you can turn off one block ahead of the actual checkpoint, you may do so to avoid the sobriety check.
  • The stop may not last long enough to constitute an unreasonable seizure of the person without reasonable suspicion: when a driver is stopped, the initial interaction with police may last only long enough to ask a few questions and determine reasonable suspicion. Reasonable suspicion may include slurred speech, an odor of alcohol, glassy or bloodshot eyes. If the officer cannot cite reasonable suspicion within that brief initial meeting, the driver should be allowed to leave.
  • Sobriety Checkpoints and DUI Roadblocks are only permitted if they are planned and a part of an on-going safe driving program and the checkpoint follows established protocol: You should discuss with your attorney whether the protocol was established and if so whether a judge or a representative from the district attorney’s office participated in it.

The Supreme Court deemed that a car stopped at a roadblock is a seizure, but, if the purpose of the roadblock is to ensure the safety of all drivers, and the interaction is brief, then the seizure is not unreasonable. Sobriety Checkpoints are not meant to identify criminal behavior and are considered a part of regulatory law, not criminal law.

What are your rights?

As an individual faced with a Sobriety Checkpoint or a DUI Roadblock, you have certain rights. Your rights fall mainly under the Fourth Amendment, the right against unreasonable search and seizure. The government may not intrude beyond the point of a reasonable seizure.

A Sobriety Checkpoint must meet five criteria:

  1. Vehicle stops must be brief and may not entail a physical search
  2. There  must be sufficient warning of the stop prior to arrival and you have the right to avoid the DUI stop if you may do so lawfully
  3. Decisions for the checkpoint, time, conduct, etc. are subject to prior administrative approval
  4. Timing and placement of the checkpoint must be based on experience as to when and where intoxicated drivers have been found previously
  5. Decisions as to which vehicle to stop must be predetermined and is not to be left to officer discretion.

Knowing these rights ahead of time can help you when faced with a Sobriety Checkpoint or DUI Roadblock. If you believe that your rights have been violated, or that you have a challenge to the roadblock, please contact our office today for a free consultation.

What is a “Search” Under the Fourth Amendment?

The broad rules for what a “search”is are determined by whether a person has a privacy interest. Searches can be a physical search of items or a person, and can also be of conversations. Any evidence which could be considered incriminating can be discovered by a search, whether tangible or intangible. When a search is “reasonable” the evidence will be permitted in court. When a search is deemed unreasonable, the evidence will probably be excluded (there are exceptions to this rule).

The appropriateness of a search is determined by the nature of the privacy interest, the scope, conduct, and duration of the search. Therefore, beyond a few generalizations, the “reasonableness” of a search is an inquiry into the facts around the search.

I promised some broad generalizations. So here they are, but take them with a grain of salt. The law is filled with exceptions and that holds true for the rules for a reasonable search.

  1. Generally privacy interests exist:
  • Where a person has an expectation that his words or actions are private. (This includes the home or where conversations being held are otherwise intended to be kept private, such as a phone booth.)
  • Where a person is invited or temporarily residing.
  1. Generally privacy interests do not exist/ are lessened:
  • Where and item is in plain view and the criminality of the item is immediately apparent.
  • In public places holding a conversation which others could reasonably overhear.
  • In registered vehicles on public highways or vehicles capable of moving on public highways (including RV’s).
  • Where a police or peace officer’s safety is in question.
  • At a person’s place of business has a lesser expectation of privacy
  • In a field surrounding a home or in an area around a home which is in plain view from the street.

A search is generally reasonably begun in 2 situations: when there is a warrant for the search, and when there is probable cause and exigent circumstances allowing a peace officer to avoid getting a warrant.

  1. A warrant requires an affidavit of probable cause (a sworn statement that shows why there is probable cause to believe criminal activity or criminal paraphernalia exists) and a precise description of the persons, places, and items to be search and what can be expected to be found. Having a warrant generally means the search will be reasonable.
  2. Alternatively, a search can be reasonable at its inception when the is probable cause and exigent circumstances. Again probable cause refers to the probability that criminal activity is taking/has taken place and/or that criminal paraphernalia will be found on location. This probable cause must be combined with an exigent circumstance. There is a long list of court cited exigent circumstances, including officer safety, a need for immediate response to a situation, community safety, invitation to search, and others. The inquiry of reasonableness of this search is always fact based.

However, even a search that is “lawful at its inception can violate the Fourth Amendment if its execution unreasonably infringes interests protected by the Constitution.” (Illinois v. Caballes, United States Supreme Court) Therefore, even when there is a warrant or probable cause combined with exigent circumstances, if the search goes beyond a reasonable scope, duration or if conduct of the officers involved is unreasonable, then the search may not be reasonable.