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PCRA Nunc Pro Tunc

February 8, 2012

2. Law, 7. Post-Trial

PCRA Nunc Pro Tunc

So you got toasted at trial, and now you have all the time in the world on your hands as you sit in prison either for a couple of decades before your first parole hearing or the rest of your natural life.  The direct appeals have washed away.  Your conviction is sealed as surely as if cast in concrete.  Has it been over a year since all the lawyers stopped visiting?  Try a decade, eh?  What to do … what to do … what to do …

The weight of the system is against you.  Don’t for a moment think otherwise.  You’ll be one in a hundred if your new PCRA even gets heard, and one in thousands if it gets you anywhere.  But here’s the drill:  You sit for 20 years only to be denied parole or you sit and die 40+ years from now – or you do something.  It doesn’t matter if it’s a long shot.  Assume you are starving and a deer – the first animal of any kind you’ve seen in days – is twice as far away as you’re comfortable plugging it with the thirty-aught-six in your hands.  Do you lower your head and whimper, or do you apply every ounce of concentration you can muster then pull the trigger?  Let’s move on …

A PCRA, as you know since you googled it to get here, is functionally the same as a Writ of Habeas Corpus filing you might do at the federal level – but this is at the state level.  The acronym stands for Post-Conviction Rights Act.  Your PCRA filing is done within one year of finishing off your direct appeals – that is, one year after your judgment becomes final.  But you know that, too, because you added nunc pro tunc to your google search.

Nunc pro tunc is Latin meaning “Now for then.”  It’s a request to the court to hear your argument even though your time limit has passed.  You are asking the court to reinstate your appeal rights.  Concerning PCRAs or any other nunc pro tunc filing, the basis for the late request is rather narrow – you have to prove that you could not have filed the request in a timely fashion.  If the court doesn’t agree, then the true substance of your PCRA never gets its day in court.  That sucks.  Best of luck with a federal Habeas.

We need to do this in two pieces.  A PCRA – timely filed – can rely upon the following :

(2) That the conviction or sentence resulted from one or more of the following:

(i) A violation of the Constitution of this Commonwealth or the Constitution or laws of the United States which, in the circumstances of the particular case, so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place.

(ii) Ineffective assistance of counsel which, in the circumstances of the particular case, so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place.

(iii) A plea of guilty unlawfully induced where the circumstances make it likely that the inducement caused the petitioner to plead guilty and the petitioner is innocent.

(iv) The improper obstruction by government officials of the petitioners right of appeal where a meritorious appealable issue existed and was properly preserved in the trial court.”

Deleted by statute.

“(vi) The unavailability at the time of trial of exculpatory evidence that has subsequently become available and would have changed the outcome of the trial if it had been introduced.

(vii) The imposition of a sentence greater than the lawful maximum.

(viii) A proceeding in a tribunal without jurisdiction.”

“(3) That the allegation of error has not been previously litigated or waived.”

“(4) That the failure to litigate the issue prior to or during trial or on direct appeal could not have been the result of any rational, strategic or tactical decision by counsel.”

The second piece are those bases specific to a nunc pro tunc filing:

  • The facts upon which the claim is predicated were unknown to the petitioner and could not have been ascertained by the exercise of due diligence;
  • The failure to raise the issue was a result of governmental interference; or
  • The right asserted was a constitutional right that was recognized by this Court or the United States Supreme Court and declared retroactive.

That first item is where ineffective assistance of counsel claims fall.

IAC claims are tough.  The courts don’t nail counsel for strategic decisions even if those decisions were poorly made.  Go to the source – Strickland v Washington:

(1) that their trial lawyer’s performance fell below an “objective standard of reasonableness” and

(2) “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.

Did counsel decide not to cross-examine certain witnesses?  Perhaps strategy, albeit poor.  Not a winner.  Did counsel fail to investigate witnesses or circumstances?  Now we’re getting somewhere.

But the issue is when the knowledge came to the defendant.  The court wants the untimely PCRA to be filed within 60 days of learning of the new information.

There’s a lot to filing either a PCRA or NPT.  Get a lawyer before you do.  Going pro se is a tough road, and could prejudice you in the long run.  If you can’t afford one, get a competent filing done then ask the court for counsel.

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About Clyde

Clyde is the lead attorney in the firm. Licensed to practice in 1993, he's also taught Constitutional and Criminal Law for several years at a private university, primarily at the Master's level.

View all posts by Clyde

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