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Starting tomorrow, the rules for who must register as a Megan’s Law sex offender in Pennsylvania will change.  Under the new law, sex offenders are classified by three tiers.  Tier I offenders will have to register for 15 years.  Tier II offenders will have to register for 25 years.  Tier III offenders will have to register for life.  If you are currently serving a period of incarceration for a sexual offense, are currently on parole or probation for a sexual offense, or are currently a Megan’s Law registrant, the new law will affect you.

 Please note that, if you are currently incarcerated or on parole or probation for a sexual offense, you will be forced to register under the new law even if your offense was not a Megan’s Law offense before. 

 If the terms of your registration have changed because of the modification to Megan’s Law or if you were previously not required to register but now have to register because of the change in the law, contact the Post-Conviction Relief Act (PCRA) practice of Bickerton & Bickerton at 412-398-5507 or 412-596-8124 for a consultation.

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Commonwealth v. Joseph Abraham  2010 PA Super 104 (6/08/2010)

Topic: Ineffective Assistance of CounselPCRA – Collateral Consequences

Summary: In view of the U.S. Supreme Court’s ruling in Padilla v. Kentucky, the fact that a consequence of a conviction is a collateral one will not protect an attorney from an ineffective assistance of counsel claim.  To be effective, an attorney must inform his client of any consequences when the “consequences in question are succinct, clear, and distinct….”  Also, an attorney will be found to be ineffective if she fails to give “good advice about a serious consequence.”

http://www.aopc.org/OpPosting/Superior/out/S21023_10.pdf

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Commonwealth v. Herbert Brian Stout 2009 PA Super 122 (7/06/2009)

Topic: PCRA – Timeliness and Right to Counsel for First PCRA

Summary: A defendant has the right to counsel for a first PCRA regardless of whether the action appears untimely on its face.

http://www.pacourts.us/OpPosting/Superior/out/S21039_09.pdf

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Commonwealth v. Jeffrey Williams 2009 PA Super 121 (7/002/2009)

Topic: PCRA – Timeliness – Megan’s Law Registration

Summary: Megan’s Law registration requirements are considered collateral consequences and the period of registration does not extend the time within which an appellant is permitted to file a PCRA petition. (In other words, once an appellant has completed his sentence, he is no longer eligible for PCRA relief, regardless of whether he is a registered Megan’s Law offender.)

http://www.pacourts.us/OpPosting/Superior/out/s19034_09.pdf

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Commonwealth v. Antoine Ligons J-121-2007 (5/27/2009)

Majority Opinion by Justice Baer (joined by Justice Todd, joined by Justice Saylor in parts I-IV, VI, and VIII; joined by Chief Justice Castille, Justice Eakin and Justice McCaffery in parts I, the first half of part V, and the first half of part VII); Concurring Opinion by Chief Justice Castille (joined by Justice Eakin and Justice McCaffery); Concurring and Dissenting Opinion by Justice Saylor; Justice Greenspan did not take part in this case

Topics: 1.) PCRA Counsel Ineffectiveness 2.) Batson Challenge – Racial Makeup of a Jury

Issue 1 Summary: The Majority Opinion concludes that an appellant may raise a claim of PCRA counsel ineffectiveness in the Superior or Supreme Court without having to file a new petition before the PCRA court.

Issue 1 Illustration: Defendant alleged that PCRA counsel was ineffective in his appeal to the Pennsylvania Supreme Court. Defendant did not raise this issue before the PCRA court before raising it in the current appeal. Under the law, Defendant would appear to be barred from raising this claim until the current appeal is complete. However, the delay would put the Defendant outside of the time limitations of the PCRA. Therefore, in order to enforce the Defendant’s right to effective counsel in a first PCRA proceeding, the Supreme Court has no choice but to entertain challenges to PCRA counsel’s effectiveness even where the issue was not previously raised before the PCRA court.

Issue 2 Summary: Where a district attorney uses 9 of 20 peremptory challenges to eliminate African-American jurors, 7 African-Americans were impaneled, there were no overt signs of racial discrimination, and the case was not racially sensitive a Batson challenge failed.

http://www.pacourts.us/OpPosting/Supreme/out/J-121-2007mo.pdf

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Commonwealth v. Marvin Jamine Robinson 2009 PA Super 65 (4/09/2009)

Topic: Post-Conviction Relief Act – Pro se Representation

Summary: Where an appellant wishes to represent himself in a PCRA proceeding, the court must conduct a full colloquy pursuant to Pa.R.Crim.P. 121 before permitting the appellant to proceed pro se.

Note: This decision overrules the opinion in Commonwealth v. Murray, 836 A.2d 956 (Pa.Super. 2003) concluding that a hearing is not required when an appellant wishes to represent himself in a PCRA proceeding.

http://www.pacourts.us/OpPosting/Superior/out/e05001_08.pdf

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Commonwealth v. William Mikell 2009 PA Super 44 (3/17/2009)

Topic: PCRA – Waiver – Reinstatement of Right to a Direct Appeal

Summary: When an issue is waived on direct appeal, an appellant cannot later claim that he was denied the right to a direct appeal.

Illustration: On direct appeal, Mikell’s counsel failed to properly preserve the issue for appeal. The appellate court reviewed the appeal and determined that the issues were waived. The Superior Court concluded that, since the appellate court reviewed the case and found that the issues were waived, Mikell was not deprived of his right to a direct appeal.

http://www.pacourts.us/OpPosting/Superior/out/s03038_09.pdf

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After a defendant has been convicted, he has a few options to challenge the conviction. Along with a post-sentencing motion and a direct appeal, one of the methods a defendant may use to challenge his conviction is a petition under the Post-Conviction Relief Act (PCRA).

What is a PCRA petition?

A PCRA petition is used to challenge the validity of a conviction where the defendant believes that he was subjected to:

1.) A constitutional violation
2.) Ineffective assistance of counsel
3.) He was illegally compelled to plead guilty
4.) There was governmental obstruction
5.) Evidence that would have helped prove his innocence is now available and was unavailable at the time of trial
6.) A sentence that is longer than the statute allows
7.) The court that convicted him did not have jurisdiction

Who is eligible to file a PCRA petition?

A defendant who: 1.) is currently serving a sentence for the conviction being challenged (or a sentence that must be served before the sentence for the challenged conviction starts), 2.) alleges one of the seven errors listed above, 3.) has filed the petition on time, 4.) has exhausted all other remedies, 4.) didn’t waive or otherwise lose his right to raise the issue.

When can a defendant file a PCRA petition?

A defendant can file a PCRA petition after his direct appeal has ended.

How do I know if an attorney is qualified to do a PCRA?

To determine if an attorney is qualified to represent you for a PCRA action, you should follow the same steps used to hire a criminal defense attorney outlined here: http://bickerton-law.blogspot.com/2009/02/commentary-how-to-pick-criminal-defense.html

Specifically, you will want to ask the attorney how many PCRA’s she has dealt with, what training she has received in doing a PCRA, whether she stays up to date on the case law for PCRAs, and whether she reads through all of the trial transcripts when creating the petition. Also, you will want to have a lawyer who will explain what issues you may have and whether your issues “have merit.” Even if the attorney chooses not to take your case, he should, at the minimum, explain why he feels your issues would fail in court.

How long can it take for my PCRA petition to be heard?

This can take from a few months to a year.

If the judge does not rule in my favor, can I appeal?

Yes. You will have the option of appealing the case to the Superior and Supreme courts.

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Commonwealth v. Boyer 2008 PA Super 279

Topic: PCRA-Ineffectiveness-Miranda Warnings

Summary: A defendant was Mirandized and refused to talk to a first police officer. A second police officer came in and began asking the defendant questions without giving him his Miranda warnings again. The defendant confessed. The defendant’s trial attorney did not attempt to have the confession suppressed on the grounds of a Miranda violation. The Superior Court applied Commonwealth v. Russell, 938 A.2d 1082 (Pa. Super. 2007), and found that there was a Miranda violation, and determined that the defendant’s claim of attorney ineffectiveness had merit.

http://www.pacourts.us/OpPosting/Superior/out/s67030_08.pdf

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