Post-Conviction Relief Act Petition Lawyers in Philadelphia, PA

If you have been wrongfully convicted of a crime or your loved one has been sentenced to an excessive sentence following a criminal trial or guilty plea, we can help. Our experienced PCRA lawyers know that a criminal case does not necessarily have to end with the jury's verdict or the judge's imposition of sentence. Pennsylvania and federal law provide a number of different ways to appeal a wrongful conviction whether that wrongful conviction occurred as a result of a legal error made by the trial judge or due to the ineffective assistance of counsel provided by your defense attorney at trial or on appeal. 

One way to appeal a wrongful conviction or excessive sentence in Pennsylvania is by filing a Post-Conviction Relief Act Petition. Pennsylvania’s Post-Conviction Relief Act provides a mechanism for petitioners to attack their criminal convictions in the Court of Common Pleas and obtain a new trial or sentencing. PCRA Petitions are extremely complicated and technical, and in most cases, a defendant can typically only file one of them. If the court grants your petition, however, your conviction or sentence could be vacated for a new trial or sentencing hearing depending on the type of error that occurred during the original proceedings. 

The most important thing to know is that just as with direct appeals, there are extremely strict time limits for filing a petition. If you miss those key deadlines, your opportunity to challenge your conviction could be waived forever. Therefore, if you are considering filing an appeal or a petition for post-conviction relief, you should speak with a criminal defense attorney immediately. Our Philadelphia criminal appeals lawyers have extensive experience with direct appeals to the Superior Court and PCRA Petitions. Call 267-225-2545 to speak with one of our award-winning defense attorneys today.   

What is the difference between a PCRA Petition and a direct appeal?

If you lost a criminal trial in the Court of Common Pleas or pleaded guilty and are unhappy with the outcome, there are two types of appeals which could get you another trial or sentencing.

The first type of appeal is called a direct appeal. A direct appeal is filed in the Superior Court. A direct appeal in the Pennsylvania Superior Court deals with legal errors committed by the trial court. This means that if the trial court improperly denied pre-trial motions such as motions to suppress or motions in limine, gave improper jury instructions, or made erroneous evidentiary rulings, the Superior Court could reverse your conviction or sentence in a direct appeal. The Superior Court will typically not receive new evidence, re-weigh the evidence that prosecutors presented at trial, or review issues which were not preserved (usually by way of objection) by trial counsel.

The second type of appeal is actually filed in the Court of Common Pleas as a Post-Conviction Relief Act Petition. A PCRA Petition asks the same judge who heard the case at trial to vacate the conviction or sentence and grant a new trial or sentencing hearing due to the ineffective performance of defense counsel, a retroactive change in constitutional law which has occurred since the trial, or the discovery of new evidence which would have led to a different result.

There are important differences between the two types of appeals. A direct appeal will be heard and decided by a different panel of higher-ranking judges in the Superior Court, but a PCRA Petition is usually heard by the same trial judge who originally presided over the case unless the judge has retired or otherwise left the bench. In that case, a different judge would be assigned to rule on any petitions. Although this may seem unfair to the defendant because that judge has already been part of finding him or her guilty, it can make the proceedings move more quickly because the judge presumably already has some familiarity with the case. The biggest difference between the two types of litigation is that the direct appeal focuses on legal errors made by the judge, while petitions for post-conviction relief usually focus on mistakes made by the defense attorney who represented the defendant at trial on appeal. 

What types of claims can I bring in a PCRA Petition?

The most common claims which you can bring in a PCRA Petition are that you should receive a new trial or sentencing due to the ineffective assistance of counsel, the discovery of new evidence, or a change in constitutional law. The Act also allows for the DNA testing of evidence under certain circumstances. In general, direct appeals address some sort of legal error committed by the trial court, while PCRAs are more likely to challenge the performance of the defense lawyer at trial or address the discovery of new evidence. There are some similarities in the claims that can be brought, however, as even in a petition, you still cannot ask the court to simply re-weigh the evidence and find that witnesses were not telling the truth at trial. You can, however, attempt to present new evidence if you can show either that the new evidence was unavailable at the time of trial and was recently discovered or if you can show that defense counsel did not find or chose not to present the evidence at the time of trial but should have.  

What is Ineffective Assistance of Counsel?

The Pennsylvania and United States Constitutions both require defense counsel to be competent. Although counsel is presumed to be effective and competent, if your trial lawyer was legally ineffective and you were prejudiced as a result, then you could receive a new trial or sentencing. Ineffectiveness claims vary and could raise all sorts of deficiencies in trial counsel’s performance. For example, ineffectiveness claims could include:  

  1. The failure to thoroughly investigate the case, interview defense or alibi witnesses, and call those witnesses at trial,

  2. The failure to object to legal errors made by the trial judge or improper questioning or argument from the prosecution which results in the trial court making erroneous legal rulings or those issues being waived on appeal. For example, if a detective gave his personal opinion that the defendant was guilty and the trial attorney failed to object, that could be the basis for a claim of ineffective assistance of counsel,

  3. The failure to file pre-trial motions such as Motions to Suppress or Motions in Limine which would have made a difference in the case,

  4. The failure to request certain jury instructions or object to improper jury instructions,

  5. The failure to raise meritorious issues on appeal where those issues were properly preserved by the defense attorney at trial,

  6. The failure to hire an expert witness when necessary for the defense; and

  7. The failure to file post-sentence motions or a direct appeal when requested by the defendant.

There are countless other issues which could potentially be raised, and identifying strong issues requires a thorough review of the transcripts as well as a full investigation of the case to see if there was something that original defense lawyer missed.

What is the standard for ineffective assistance of counsel? 

In order to win on an ineffective assistance of counsel claim, the petitioner must show three things. First, the petitioner must identify something defense counsel did that was ineffective. Once the petitioner identifies a potential error, the petitioner must be able to show that the claim

  1. has arguable merit,

  2. that there was no reasonably strategic basis for defense counsel's decision or omission with respect to that claim, and

  3. the petitioner was prejudiced by defense counsel's actions or omissions.

This makes filing a petition very technical and complicated because the petitioner must be able to establish all three prongs of this test. It is not enough to simply allege that something happened that was unfair, or that the defense attorney did not properly investigate or prepare witnesses to testify. A claim that a witness lied and the jury should not have believed them will usually not be viable either unless there is some evidence that the prosecution or police actually hid evidence or there are new witnesses who would contradict the witness. Instead, because the act requires the petitioner to establish prejudice, the petitioner has to be able to show what would have happened if the defense attorney had done things the right way. Thus, a claim that the defense attorney failed to obtain video will not usually not merit relief unless the video still exists and it can be shown to the court that the video would exonerate the defendant. 

What happens when I file a PCRA Petition? 

Post-Conviction Relief Act Lawyer Demetra Mehta, Esq.

Post-Conviction Relief Act Lawyer Demetra Mehta, Esq.

In general, courts do not have any real time limit for resolving the claims raised in a petition, and the litigation can take some time. Depending on the allegations in the petition, the petitioner may request an evidentiary hearing which could result in witnesses testifying in a court hearing. For example, if the petition alleges that defense counsel should have called an alibi witness at trial, then an evidentiary hearing would be necessary for the trial judge to hear from and rule on the credibility of the alibi witness. The court would also hear from trial counsel as to why counsel did not call the alibi witness to testify.

In cases in which the petitioner alleges only some sort of legal error by counsel such as the failure to object to a clearly improper jury instruction, a hearing may not be necessary and a petition could be granted without a hearing. In most cases, the petitioner will file a petition requesting a hearing and/or relief and the Commonwealth will respond with a Motion to Dismiss the Petition. The trial court could then dismiss the petition without a hearing, schedule argument on the Motion to Dismiss, or schedule an evidentiary hearing on the allegations in the petition. If the trial court grants an evidentiary hearing, then the defense would call witnesses at the hearing and both sides would make argument before the court would rule on the merits of the petition. Even if the defense would not present new witnesses as part of the PCRA, the court will often want to hear from the trial, plea, or appellate attorney as to why the attorney made the decisions that the attorney made when the case was being litigated.

How long does a PCRA Petition take to litigate?

The amount of time that will likely pass before a petition will be resolved varies in every case, and it depends on how complex the issues are and whether the trial court grants an evidentiary hearing. In Philadelphia, for example, the courts will often grant a number of continuances for each side to file petitions, write briefs, and prepare for evidentiary hearings, and the resolution of a case could take a year or more. In other counties, the judges are more efficient in resolving them in a reasonable amount of time.

Can I appeal if the judge denies the Petition?

Yes, the denial or dismissal of a PCRA Petition may be appealed to the Pennsylvania Superior Court by filing a notice of appeal within thirty days of the dismissal or denial of the petition. The Pennsylvania Superior Court will review the allegations in the petition and any transcripts from hearings in the Court of Common Pleas for legal error. For example, if the Common Pleas Judge concludes that the jury instructions used were proper, the Superior Court could rule on appeal that the jury instructions were not actually proper and a new trial should have been awarded by the PCRA court.

Can I file a PCRA Petition if I pleaded guilty? 

PCRA Attorney Zak T. Goldstein, Esq.

PCRA Attorney Zak T. Goldstein, Esq.

Yes, you can file a petition if you pleaded guilty. However, these are the most difficult types of PCRAs to win. The same rules apply to a PCRA attacking a guilty plea as a petition attacking a loss at trial. However, during the guilty plea colloquy, the defendant is typically questioned as to whether the defendant is making a knowing, intentional, and voluntary decision to plead guilty and whether the defendant is happy with the performance of his or her criminal defense lawyer. Because the guilty plea would have been rejected if the defendant did not seem to know what he or she was doing or if they were unhappy with the trial lawyer, it is much more difficult to win after a guilty plea because the defendant has already testified under oath that the defendant was happy with the defense attorney and was guilty.

Nonetheless, it is still possible to file a Post-Conviction Relief Act Petition alleging that trial counsel was ineffective in recommending a plea or in presenting mitigation evidence at sentencing. For example, if trial counsel had video or should have had video showing that the defendant was innocent, but trial counsel instead recommended that the defendant plead guilty, then it may be that trial counsel was ineffective in recommending a plea instead of a trial. Additionally, it may be possible to file a successful claim in cases in which constitutional law changes after the guilty plea or if the defendant uncovers newly discovered evidence which would have made a difference in the trial court. For example, if an eyewitness comes forward who was unknown to the defense who could have credibly testified that someone else committed the crime, the existence of the witness could be the basis for attacking the guilty plea.

What are the deadlines for filing a PCRA Petition?

A Post-Conviction Relief Act Petition generally must be filed 1) while the defendant is still serving his or her sentence and 2) within one year of the sentence becoming final. This means that if a defendant received a lengthy sentence, a petition typically does not have to be filed until after direct appeals to the Superior Court and/or Pennsylvania Supreme Court have been exhausted. There is also a sixty-day exception to the one year rule in cases where the law changes. Additionally, the statute was recently amended to give criminal defendants a year to file a PCRA from the date on which the defendant learned of new evidence which could not have reasonably been discovered prior to trial or a guilty plea. This means that if the defendant learns of a previously unknown witness who would have been helpful to the defense, the defendant could file a petition within one year of learning of that witness even if the normal one-year deadline has expired. However, once the defendant has finished serving the sentence, it is no longer possible to file a PCRA Petition, and the only remedy for a wrongful conviction at the state level would be a pardon. In a limited number of cases cases, it may still be possible to file a federal habeas petition prior to the expiration of probation if it looks like probation or parole will expire prior to the litigation of a state court petition.

In a recent case, the Pennsylvania Supreme Court held that where a defendant receives a sentence of time served or no further penalty, it may still be possible to raise claims of ineffective assistance of counsel by filing post-sentence motions raising those claims. If the post-sentence motions include a claim of ineffective assistance of counsel, then it may also be possible to have those claims reviewed by the Superior Court.  

Should I file a PCRA Petition or Direct Appeal?

Whether you should file a petition under the Post-Conviction Relief Act or pursue a direct appeal is heavily fact-specific and depends on the exact circumstances of your case. You should always consult with an experienced appellate attorney before making that decision as it not always possible to file both types of appeals. In general, it usually makes sense to pursue a direct appeal first because a direct appeal must be filed within thirty days of sentencing or the denial of post-sentence motions if post-sentence motions were filed. This means that if you do not file a direct appeal, you will waive your right to have the Superior Court review the proceedings forever. 

A PCRA Petition, however, may be filed after the Superior Court rules on the direct appeal so long as the defendant is still serving the sentence. Therefore, unless there are truly no legitimate issues to raise in the direct appeal or the defendant’s sentence is going to expire before a direct appeal would be resolved and a PCRA is more likely to be successful, it usually makes sense to pursue the direct appeal first.

Both areas of law are extremely complex, so you should always consult with an experienced Pennsylvania criminal appeals attorney before making a decision on which type of appeal to file.   

Case Study - Successful PCRA Petition in Commonwealth v. Z.S. 

Attorney Goldstein recently obtained a new sentencing hearing and ultimately immediate parole eligibility for a client who had been sentenced to 15-30 years in jail for a direct violation of probation. Z.S. was on probation for selling drugs when he was arrested and convicted of robbery. After receiving a sentence of 7.5 - 20 years for the robbery case which violated his probation, the probation judge held a violation of probation hearing. At that hearing, the judge sentenced Z.S. to 15-30 years consecutive to the sentence for the robbery charges. This led to an overall sentence which could have kept the defendant in jail for up to 50 years despite his young age at the time of the robbery conviction. 

Attorney Goldstein reviewed the transcripts from the Gagnon II hearing and realized that the judge committed significant legal errors during the hearing. It was apparent from the transcript that Z.S.'s original attorney should have promptly objected to these errors during the hearing and filed a timely appeal. Recognizing that the Post-Conviction Relief Act could provide Z.S. with a new sentencing hearing, Mr. Goldstein filed a Post-Conviction Relief Act Petition amending the defendant’s initial pro se filings and arguing that Z.S. should receive a new sentencing because defense counsel had been ineffective at the original hearing.

All criminal defendants have a constitutional right to the effective assistance of counsel under both the Pennsylvania and United States constitutions, and an ineffective performance by counsel at the trial, appeal, or probation levels can lead to a new trial, appeal, sentencing, or probation hearing. In this case, Z.S.'s defense counsel at the initial hearing failed to object when the probation judge found on the record that the defendant’s expressions of remorse were hollow solely because the defendant refused to waive his right to an in-person probation violation hearing and allow the hearing to be conducted by video from the state prison. The attorney also failed to file a motion to reconsider the sentence or appeal the excessive sentence to the Superior Court by way of direct appeal. Attorney Goldstein argued that all defendants have a constitutional right to be present for important hearings in their cases and that courts may not legally punish defendants for exercising those rights. When courts rely on illegal sentencing factors such as the decision to exercise a constitutional right, the defendant is entitled to a new sentencing hearing.

The Commonwealth filed a Motion to Dismiss the PCRA Petition, arguing both that the petition was untimely because Z.S. did not formally title his pro se filing as a PCRA Petition and that original counsel was not required to object or litigate the issues on appeal in order to be effective. The Court agreed with Attorney Goldstein, denied the prosecution’s Motion to Dismiss, and granted the Amended Petition. The court ordered that the defendant receive a new sentencing hearing which, due to the passage of time since the original sentence, occurred in front of a different judge from the one who placed the defendant on probation and later sentenced him to 30 years in state prison. 

However, at the new sentencing hearing, the judge had the same authority to impose any type of sentence he saw fit. The judge could have re-sentenced the defendant to the same 15-30 year sentence or reduced the sentence to something substantially less. Due to the persuasive arguments of counsel and the compelling testimony from the defendant and his family members, the judge instead imposed a sentence of 3.5 – 7 years, which the defendant has already served. Accordingly, the defendant became immediately eligible for parole instead of having to serve another 10 years before reaching parole eligibility.

Contact a Philadelphia PCRA Lawyer Today

Goldstein Mehta LLC Criminal Defense Lawyers

Goldstein Mehta LLC Criminal Defense Lawyers

The preceding information is no substitute for legal advice from an experienced criminal defense lawyer who regularly handles PCRA Petitions and direct appeals. This area of law is particularly complex and often changes. There are also extremely strict deadlines which must be observed or critical rights could be waived forever. Our Philadelphia Criminal Defense Lawyers have successfully represented clients in post-conviction relief litigation and direct appeals to the Superior Court. We offer a free, 15-minute criminal defense strategy session to anyone who is considering appealing a wrongful conviction or filing a Post-Conviction Relief Act Petition. Call 267-225-2545 to speak with one of our award-winning defense attorneys today.