COMMONWEALTH of Pennsylvania, Appellee, v. Randy Todd HAAG. Appeal of Naomi Haag, as Next Friend, Appellant.
Supreme Court of Pennsylvania.
Submitted Jan. 23, 2001. Decided Oct. 24, 2002.
809 A.2d 271 | 570 Pa. 289
Robert Brett Dunham, Philadelphia, for Naomi Haag.
Before ZAPPALA, C.J., and CAPPY, CASTILLE, NIGRO, NEWMAN, SAYLOR and EAKIN, JJ.
Justice NEWMAN.
Naomi Haag (Appellant), as next friend of Randy Todd Haag (Haag), appeals from an Order of the Court of Common Pleas of Berks County (PCRA court) denying her motion to stay all Post Conviction Relief Act1 (PCRA) proceedings and requiring her to proceed on the PCRA petition that she had filed on behalf of Haag. Based upon the reasons set forth below, we affirm.
This case involves a somewhat complicated procedural history. On February 7, 1986, a jury found Haag guilty of the first-degree murder and kidnapping of Richard Good. Following a penalty phase hearing, the jury sentenced Haag to death and the trial court imposed a consecutive sentence of ten to twenty years imprisonment for the kidnapping charge. Haag filed a direct appeal with this Court. During the pendency of his direct appeal, Haag‘s attorney at trial and on appeal, Robert L. Van Hoove, Esq. (Van Hoove), died. Subsequent to his death, Van Hoove‘s files regarding Haag‘s case were destroyed. Then, this Court affirmed Haag‘s conviction for murder in the first-degree and the sentence of death. Commonwealth v. Haag, 522 Pa. 388, 562 A.2d 289 (1989).
While Haag remained incarcerated at the State Correctional Institution at Huntington (SCI Huntingdon), the Pennsylvania Department of Corrections (DOC) sought involuntary mental health treatment for Haag pursuant to the Mental Health Procedures Act (Mental Health Act).2 In March of 1991, William J. Love, Acting Superintendent of SCI Huntingdon, filed a petition in the Huntingdon County Court of Common Pleas requesting permission to involuntarily commit Haag in order to treat him for his mental illness. An attorney from the Huntingdon County Public Defender‘s Office represented Haag at the involuntary treatment hearing. By Order dated April 5, 1991, former President Judge Newton C. Taylor denied the Petition for Involuntary Treatment. The judge found evidence that Haag was mentally ill; however, he denied the petition because the DOC had failed to demonstrate that Haag was a danger to himself or others, as required for involuntary treatment orders under the Mental Health Act.3
Then, on November 28, 1995, Norris Gelman, Esq. (PCRA counsel)5 filed a PCRA petition on behalf of Haag alleging that Haag was incompetent to pursue collateral relief and seeking the appointment of Haag‘s mother, Naomi Haag (Appellant), as next friend.6 The Commonwealth contested the appointment of Appellant as next friend and filed a response to Haag‘s PCRA petition.
On April 26, 1996, then-Governor Tom Ridge issued a death warrant for the execution of Haag. Thereafter, the Governor signed a reprieve staying the death warrant pending the resolution of Haag‘s PCRA proceedings.
On March 12, 1997, the PCRA court issued an Order that scheduled a hearing on whether or not Haag had made a conscious and rational decision not to contest the death penalty. Additionally, the court ordered Dr. Robert L. Sadoff (Dr. Sadoff) to act as its impartial psychiatric witness on this issue
At the hearing on April 28, 1997, defense psychologist Dr. Richard G. Dudley, Jr. (Dr. Dudley) testified as to Haag‘s competency. Dr. Dudley reported that Haag was unable to assist his present counsel in post conviction litigation because he did not possess a rational understanding of his present situation and in his present state, he was not able to discuss facts relevant to the case or to answer even the most basic inquiries from counsel. On May 7, 1997, Dr. Sadoff testified that he was in agreement with Dr. Dudley‘s assessment of Haag‘s mental state. Dr. Sadoff opined that, because of Haag‘s psychosis, he was not competent to knowingly and intelligently waive his right to a collateral attack of his sentence and conviction.
On May 19, 1997, the PCRA court issued an Order stating that while Haag was incompetent to stand trial or to be executed, Appellant could not file a PCRA petition as next friend. The court stated that Appellant could pursue PCRA relief on behalf of Haag only as a court-appointed guardian. As part of its May 19, 1997 Order, the court dismissed the next friend petition. Upon request of the parties, on June 11, 1997, the PCRA court vacated its Order of May 19, 1997, and stayed all proceedings pending this Court‘s decision in In re Heidnik, 554 Pa. 177, 720 A.2d 1016 (1998). We issued our decision in Heidnik and the PCRA court granted Appellant next friend status on October 29, 1998.
On November 10, 1998, Attorney General Mike Fisher filed a Motion for a Treatment Order, asking the PCRA court to order the DOC to provide treatment to Haag for paranoid schizophrenia. Following a hearing on January 4, 1999, the PCRA court dismissed the motion because the court found that the Attorney General had presented no evidence that Haag was a danger to himself or others as is required for involuntary treatment of all individuals under the Mental Health Act.7
On January 29, 1999, the PCRA court ordered Appellant to proceed with her reinstated petition for post conviction relief on behalf of Haag. Appellant moved the PCRA court to declare next friend remedies inadequate to protect Haag‘s right to challenge his conviction and death sentence and to stay all PCRA proceedings until Haag regained his competence. The court allowed defense psychiatrist Dr. Dudley to re-examine Haag to determine Haag‘s current mental state.
The PCRA court held a hearing on Appellant‘s motion on April 9, 1999. At the hearing, Dr. Dudley again offered the opinion that Haag was incompetent and that his condition remained unchanged from his last evaluation.
On February 4, 2000, the PCRA court issued an Order denying Appellant‘s motion to stay PCRA proceedings. The court declined to declare Haag incompetent to proceed with collateral review of his death sentence because the court found such a determination unnecessary when a next friend had been appointed and had commenced PCRA proceedings on behalf of the prisoner. Finally, the PCRA court ordered Appellant to proceed with her PCRA next friend petition.
In its Opinion in support of its Order, the PCRA court held that a court may decide a PCRA petition on its merits, despite the fact that a prisoner is not competent to assist his next friend or counsel during the proceedings. The court noted that no Pennsylvania or United States Supreme Court decision establishes a standard of competence for a PCRA proceeding. The court reasoned that the whole purpose of appointing a next friend is to secure a prisoner‘s PCRA rights, even when the prisoner cannot secure them for himself or herself. The court concluded that a prisoner could always proceed by next friend regardless of how incompetent he or she may be.
On February 8, 2000, the PCRA court certified that its Order in the present case involved a controlling question of
II. DISCUSSION
A. Competency Requirement
We have addressed the competency required of an individual to proceed through various stages of the criminal justice system. According to our Mental Health Act, an individual must be competent to be tried, convicted, or sentenced.
Whether an individual must possess some level of competency in order to pursue a collateral challenge of his or
Appellant asserts that, in order to proceed through PCRA proceedings, a prisoner must be competent. Additionally, Appellant suggests that this Court adopt, as the competency standard for collateral review, either the standard of competence to be executed or to stand trial.9 Finally, Appellant asserts that the lower court erred when it refused to suspend PCRA proceedings until Haag regains his competence. She claims that a prisoner‘s lack of competency and its effect on communication with counsel may, under certain circumstances, justify a suspension of PCRA proceedings even after the appointment of a next friend.
Today, we hold that when represented by a next friend and counsel, a prisoner‘s incompetence is not a bar to effective collateral review in a death penalty case. We arrive at our decision based upon our line of precedent dealing with next friend standing.
A next friend is a person who appears in a lawsuit to act for the benefit of an incompetent or minor plaintiff, but who is not a party to the lawsuit and not appointed as a guardian. BLACK‘S LAW DICTIONARY 1065 (7th ed.1999); see generally Bertinelli v. Galoni, 331 Pa. 73, 200 A. 58 (1938). The United
First, a “next friend” must provide an adequate explanation—such as inaccessibility, mental incompetence, or other disability—why the real party in interest cannot appear on his own behalf to prosecute the action. Second, the “next friend” must be truly dedicated to the best interests of the person on whose behalf he seeks to litigate, and it has been further suggested that a “next friend” must have some significant relationship with the real party in interest.
Id. at 163-64 (citations omitted). Through a series of cases, which relied upon the reasoning of Whitmore, we recognized that our law permits a next friend to bring a PCRA action on behalf of a prisoner. See Commonwealth v. White, 557 Pa. 408, 734 A.2d 374 (1999); Bronshtein, 729 A.2d at 1102; Heidnik, 720 A.2d at 1016.
In Heidnik, this Court focused upon how a third party may raise the issue of a prisoner‘s competency to be executed.10
While the third party in Heidnik, an attorney for the Center for Legal Advocacy and Defense Assistance, had not sought next friend standing before the common pleas court, we looked to the requirements of next friend standing as set forth in Whitmore as the procedural framework for how a third party could bring the matter of competency to be executed before a court. Id. at 1019-21. We also suggested that the standards of Whitmore would apply if a third party sought to initiate PCRA litigation as a next friend on behalf of a prisoner. Id. at 1020.
Less than a year later, we again addressed next friend standing; this time within the context of a third party‘s ability to appeal an Order of a PCRA court dismissing the PCRA petition of a death row inmate. Bronshtein, 729 A.2d at 1102. Antuan Bronshtein (Bronshtein) informed the PCRA court that he wished to waive his right to seek PCRA relief. Following several hearings, the PCRA court entered an Order dismissing his PCRA petition. Bronshtein‘s mother and sister, as next friends, filed an appeal of the Order. After reviewing the standards for next friend standing in Whitmore, we held that Bronshtein‘s mother and sister lacked standing as next friends. Id. at 1106-07. We held that because Bronshtein was competent and had knowingly, intelligently, and voluntarily waived his right to pursue PCRA relief, his family members failed to meet the first requirement of next friend standing by showing that Bronshtein could not appear on his own behalf and pursue PCRA relief. Id.
Then, in White, we reviewed the challenge of Maxine Davidson White (White) to an Order of the PCRA court denying her standing as a next friend to file a PCRA petition on behalf of her father, Gary Heidnik. Relying upon Bronshtein and
Based upon this line of cases, a putative next friend must demonstrate that the prisoner is incompetent, such that the prisoner is incapable of making a rational decision as to whether to pursue PCRA relief. Id.; Bronshtein, 729 A.2d at 1106-07. Also, a putative next friend must prove that he or she is truly dedicated to the prisoner‘s best interests and shares a significant relationship with the prisoner in order to obtain standing to pursue post conviction relief on behalf of the prisoner. White, 734 A.2d at 376; Bronshtein, 729 A.2d at 1106; Heidnik, 720 A.2d at 1020. It logically follows that a prisoner need not be competent to proceed through PCRA proceedings when a next friend has been appointed to act on his or her behalf because of such incompetence.
In the present case, it is indisputable that Haag is incompetent to waive his right to PCRA relief and that Appellant has standing as next friend to pursue such relief for him. Appellant seeks to suspend PCRA proceedings because Haag cannot aid her and PCRA counsel in an investigation of possible avenues for relief. It appears that, in any situation where a next friend initiates PCRA proceedings, the prisoner will be unwilling or unable to assist in identifying issues to raise on collateral review. A prisoner‘s inability to participate in next friend PCRA proceedings due to incompetence is not a
B. Constitutional Considerations
Appellant claims that the Order of the PCRA court, which directs her to proceed in her pursuit of PCRA relief, violates the constitutional ban on cruel and unusual punishment, Haag‘s right to effective assistance of counsel, and Haag‘s right to due process. As discussed infra, the Order of the PCRA court does not violate Haag‘s constitutional rights and therefore we affirm.
1. Right to be free from cruel and unusual punishment
Relying upon the decision of the United States Supreme Court in Ford v. Wainwright, 477 U.S. 399, 106 S.Ct. 2595, 91 L.Ed.2d 335 (1986), Appellant asserts that the Eighth Amendment12 provides grounds to suspend adversarial proceedings in a capital post conviction case during the period in which the prisoner‘s mental illness prevents him or her from comprehending the reasons for his or her sentence or its implications. She claims that forcing an incompetent prisoner to proceed through PCRA proceedings and toward his or her death is tantamount to cruel and unusual punishment.
Ford addresses only the imposition of the death penalty and does not examine any limitation on a state‘s power to require a next friend to proceed with the post conviction proceedings that he or she has initiated. In the present case, the Commonwealth is not inflicting cruel and unusual punishment upon Haag. The Commonwealth has yet to punish Haag by carrying out his death sentence. We conclude that the Eighth Amendment ban on executing the insane does not prohibit an incompetent individual from using a system of collateral review to challenge an allegedly fundamentally unfair conviction before the imposition of sentence. Consequently, Haag is not entitled to relief under the Eighth Amendment.
2. Right to effective assistance of PCRA counsel
Appellant argues that due to his mental illness, Haag cannot effectively communicate and work with PCRA counsel during the collateral review process. Consequently, Appellant claims that PCRA counsel cannot investigate claims outside of the record due to Haag‘s incompetence, the death of previous counsel, and destruction of Haag‘s file. Therefore, Appellant asserts that forcing PCRA counsel to proceed, despite his inability to investigate all possible claims for PCRA relief, denies Haag effective assistance of counsel.
While a PCRA petitioner does not have a Sixth Amendment right to assistance of counsel during collateral review, this Commonwealth, by way of procedural rule, pro-
Requiring counsel to pursue PCRA relief on Haag‘s behalf with the assistance of a next friend is sufficient to protect any “right” to counsel. There is no indication that PCRA counsel will not raise all meritorious claims capable of investigation. The mere possibility that an undiscoverable basis for relief exists does not render counsel ineffective. Consequently, we hold that the order of the PCRA court does not violate Haag‘s right to effective assistance of counsel.
3. Right to due process of law
Lastly, Appellant claims that Haag has a due process right13 to suspend PCRA proceedings while extreme mental
incompetence prevents him from meaningfully defending his life. Referring to Evitts v. Lucey, 469 U.S. 387, 105 S.Ct. 830, 83 L.Ed.2d 821 (1985), Appellant argues that Pennsylvania has created a due process interest in meaningful post conviction review and that such review is not possible while Haag remains incompetent.States have no constitutional obligation to provide a means for collaterally attacking convictions; however, if they do, then such procedures must comport with the fundamental fairness mandated by the Due Process Clause. Finley, 481 U.S. at 557, 107 S.Ct. 1990 (holding that due process does not require that PCRA counsel‘s actions comport with the procedures set forth in Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967)); see also Evitts, 469 U.S. at 401, 105 S.Ct. 830 (stating with respect to direct appeal that, “when a State opts to act in a field where its action has significant discretionary elements, it must nonetheless act in accord with the dictates of the Constitution--and in particular, in accord with the Due Process Clause“). States have “substantial discretion to develop and implement programs to aid prisoners seeking to secure postconviction review.” Finley, 481 U.S. at 559, 107 S.Ct. 1990. See also Murray v. Giarratano, 492 U.S. 1, 13, 109 S.Ct. 2765, 106 L.Ed.2d 1 (1989) (plurality) (O‘Connor, J., concurring). Additionally, post conviction programs need not extend “the full panoply of procedural protections that the Constitution requires be given to defendants who are in a fundamentally different position-at trial and on first appeal as of right.” Finley, 481 U.S. at 559, 107 S.Ct. 1990. See also Murray, 492 U.S. at 13, 109 S.Ct. 2765 (plurality) (O‘Connor, J., concurring).
While the criminal trial of an incompetent defendant violates due process, Cooper v. Oklahoma, 517 U.S. 348, 354, 116 S.Ct. 1373, 134 L.Ed.2d 498 (1996); Commonwealth v. Hughes, 521 Pa. 423, 555 A.2d 1264, 1270 (1989), PCRA proceedings involving an incompetent prisoner do not because of the significant differences between trial and collateral review. During trial, the Commonwealth hales a defendant into
The PCRA system is not part of the criminal proceeding itself, but is, in fact, civil in nature. Finley, 481 U.S. at 557, 107 S.Ct. 1990. The purpose of the PCRA is to provide an action for “persons convicted of crimes they did not commit and persons serving illegal sentences” to obtain relief.
We hold that permitting an incompetent prisoner, who is represented by a next friend and counsel, to pursue PCRA relief comports with the fundamental fairness of the Due Process Clause. Historically, there have been hundreds of reported cases where a next friend sued on behalf of individuals that had been deemed legally incompetent to sue in their own right. See Heidnik, 720 A.2d at 1020. A next friend in the PCRA context is no different. Unlike trial, collateral review may effectively proceed despite a prisoner‘s incompetence. The ability of a next friend to investigate and raise all cognizable claims on behalf of an incompetent prisoner so that the prisoner may promptly seek relief, and the ability of the petitioner to raise undiscoverable claims if he or she regains competence, sufficiently protects the limited due process rights of the prisoner. We hold that the Order of the PCRA court does not violate Haag‘s constitutional rights and, therefore, Appellant is not entitled to indefinitely suspend PCRA proceedings.
III. CONCLUSION
In light of the above discussion, we affirm the Order of the PCRA court denying Appellant‘s motion to stay all proceedings and requiring her to proceed on the PCRA petition that she had filed on behalf of Haag.15 We remand this matter to
Mr. Justice CASTILLE files a concurring opinion.
Mr. Chief Justice ZAPPALA files a dissenting opinion in which Mr. Justice NIGRO joins.
Justice CASTILLE, Concurring.
I join the majority opinion with the exception of its suggestion that, if and when Randy Todd Haag regains competence, he will be able to invoke the after-discovered evidence exception to the PCRA‘s time restriction, see
I fully agree with the majority‘s determination that appellant must proceed with her next friend PCRA petition now, and that this Court should not stay the pending PCRA action. As the majority aptly notes, Randy Todd Haag may be entitled to immediate relief on one or more of the substantive claims that his mother, acting as his “next friend,” has raised in the PCRA petition filed on his behalf. A prisoner should not have to await a return to competence at some indeterminate time in the future to secure review of a claim that may entitle him to immediate relief now. See Muhammad v. Strassburger, McKenna, Messer, Shilobod and Gutnick, 526 Pa. 541, 587 A.2d 1346, 1350 (1991) (“Justice delayed is justice denied.“); Stottlemyer v. Stottlemyer, 458 Pa. 503, 329 A.2d 892, 901 (1974) (Roberts, J., dissenting) (same); see also
I also agree with the majority that it is incongruous to stay the PCRA proceedings where a next friend has been appointed. The very reason that courts permit such vicarious litigation by a next friend is so that third-parties may pursue matters on behalf of parties who are unable to do so themselves. See Whitmore v. Arkansas, 495 U.S. 149, 163, 110 S.Ct. 1717, 109 L.Ed.2d 135 (1990) (“A ‘next friend’ does not himself become a party to the... action in which he participates, but simply pursues the cause on behalf of the detained person, who remains the real party in interest.“) (emphasis added). The test for next friend status is designed to ensure that the party who would conduct the vicarious litigation is one who truly has the disabled litigant‘s best interests at heart. Where a qualified next friend (here, Haag‘s mother) and competent counsel stand ready to pursue the cause on an incompetent PCRA petitioner‘s behalf, the matter should proceed so that the petitioner may promptly have the claims reviewed and reap the benefit of any claim deemed meritorious. The indefinite suspension of Haag‘s PCRA proceedings would perversely effect the very result that the next friend doctrine is meant to prevent: the effective abandonment of a potentially meritorious cause of action merely because the PCRA petitioner is personally incapable of pursuing the matter at the time. Not surprisingly, while many decisions in this jurisdiction and elsewhere have recognized the propriety of a next friend stepping into the shoes of an incompetent capital defendant and vicariously litigating a cause on his behalf, appellant cites no authority holding that the true purpose of next friend standing is to immediately halt
As the majority also recognizes, a perpetual stay is problematic because it could effectively destroy the notion of finality in capital cases. The inability of a party to meaningfully participate in any vicariously litigated cause has a potentially adverse effect upon the cause, but that would be no reason to abandon or delay a cause especially where the alleged harm-here, wrongful conviction and punishment is not merely a past episode but is present and ongoing by the fact of incarceration. It is difficult to imagine a non-capital prisoner, whether pursuing the matter in his own right or represented by a next friend, filing a PCRA petition and then insisting that it be placed in indeterminable stasis: the notion of vindication after many years wrongly served in prison is anathema to a system of justice. In capital cases, however, the calculus is inherently different, since “delay is often an end in itself for the death-sentenced prisoner.” Commonwealth v. Michael, 562 Pa. 356, 755 A.2d 1274, 1284 (2000) (Castille, J., concurring); see id. (noting that capital prisoners, unlike other defendants, have an incentive “to utilize every means possible to delay the carrying out of their sentence“), quoting Lindh v. Murphy, 521 U.S. 320, 340, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997) (Rehnquist, C.J., dissenting). I think it is obvious that potential next friends, and capital litigation counsel, are as likely, if not more likely, to view delay as inherently beneficial in a capital case and, accordingly, I would not overdramatize the alleged difficulties in proceeding with the matter now despite Haag‘s present incompetence.
Finally, and perhaps most importantly, the indeterminate stay requested by appellant and approved by the dissenting opinion is not authorized by the PCRA, which is the authority under which appellant seeks relief. In addition to the fact that the PCRA does not specifically authorize perpetual stays, such a suspension would be squarely at odds with the PCRA‘s one-year time restriction. See
The PCRA time restriction, moreover, is jurisdictional. See, e.g., Commonwealth v. Fahy, 558 Pa. 313, 737 A.2d 214 (1999); Commonwealth v. Banks, 556 Pa. 1, 726 A.2d 374 (1999). For this reason, this Court has specifically held that it is not subject to equitable tolling. Fahy, 737 A.2d at 222-23 (“Jurisdictional time limits go to a court‘s right or competency to adjudicate a controversy. These limitations are mandatory and interpreted literally; thus, a court has no authority to extend filing periods except as the statute permits.“). To permit this PCRA petition to be filed by a next friend, but then to hold it in abeyance for some indeterminate time would have the very same effect as tolling the time restriction. It would subvert the language and intention of the PCRA and our governing precedent. Consistently with principles of separation of powers and stare decisis, I do not believe we have the power to place the petition in repose. Our job is not to innovate creative ways to defeat the limitations period. The petition having been timely filed and the next friend being qualified to pursue the matter, it should be pursued now, or discontinued.
For all of the above reasons, I join the portion of the majority opinion holding that Haag‘s PCRA proceedings cannot be stayed. I also join the portion of the majority opinion which holds that such a result does not violate Haag‘s right to be free from cruel and unusual punishment under the Eighth
I respectfully disassociate myself, however, from the majority‘s suggestion that, if Haag later becomes competent and there prove to be claims known only to him, which would have been cognizable under the PCRA now, but which he was unable to communicate to his next friend and counsel because of his incompetence, he will be able to raise those claims under the PCRA. Although the majority recognizes that “this issue is not ripe, and may never be,” and that the Court consequently “must leave it for another day,” id. at 12 n. 11, 737 A.2d 214, the majority nevertheless gives a strong indication that it would deem such claims cognizable under the after-discovered evidence exception to the PCRA‘s time restriction. See id. at 12, 737 A.2d 214 (“[I]f Haag regains competency, he may seek review of any such claims through a second PCRA petition.“); id. at 12-13 n. 11, 737 A.2d 214 (“Under our understanding of the current PCRA, which the General Assembly may change before we ever have the opportunity to address the matter, Haag would have the opportunity to seek review of claims otherwise available under the PCRA, but unraisable in his first petition due to his incompetence.“). Moreover, the majority cites the putative availability of PCRA review in the future as one reason to reject appellant‘s due process claim, thereby suggesting that it has not entirely left the matter for another day. Id. at 20, 737 A.2d 214.
The difficulty in addressing this futuristic scenario is that anything we might say is necessarily both speculative and ephemeral. Haag may be granted relief in this action; even if he is not, he may never be competent again or, if he is, there may in fact be no non-waived, cognizable PCRA claims for him to pursue. In short, the issue posed may never ripen into an actual case or controversy. More importantly, as the majority recognizes, the standards that govern the availability of collat
The point is that it is impossible to state with any degree of certainty, at this time, what will happen if and when a serial petition is filed under the PCRA. The PCRA court will be obliged to survey the legal landscape in existence at that time to determine the availability of review and relief.
My comments in this regard are not intended to call into question the propriety of the Court inquiring into the future
I tend to agree with Mr. Chief Justice Zappala‘s dissenting opinion that such claims would not be cognizable under the PCRA in its current form. The after-discovered evidence exception found in
Furthermore, as Chief Justice Zappala also notes in his dissent, there is no automatic right to counsel upon a second PCRA petition. See
Such an uncounseled defendant would be required in 60 days to identify and raise any and all claims for relief which were not available to his next friend and counsel on his first petition.
There is another possible avenue of further review for Haag, however: Pennsylvania‘s habeas corpus statute. See
If Haag returns to competence and wishes to challenge his conviction based upon a non-waived constitutional claim which, due to his mental illness, he was previously unable to communicate to his next friend and counsel and assuming that the version of the PCRA then in effect does not permit review of that claim-Haag may be able to pursue the claim in a petition for state habeas corpus relief. See Commonwealth v. Isabell, 503 Pa. 2, 467 A.2d 1287, 1291 (1983) (since challenge to action of Bureau of Corrections in computing prisoner‘s sentence was “not a direct or collateral attack on the conviction or sentence imposed by the trial court,” it was not properly brought under predecessor to PCRA and, consequently, prisoner could “re
The state habeas corpus statute, which corroborates the exclusivity of the PCRA remedy in the sphere in which it operates, provides that, “Where a person is restrained by virtue of sentence after conviction for a criminal offense, the writ of habeas corpus shall not be available if a remedy may be had by post-conviction hearing proceedings authorized by law.”
In sum, while I have serious reservations as to the availability of PCRA review for constitutional claims known to Haag but presently incapable of communication due to his incompetence, as the PCRA is currently constituted, I am not convinced that review of such claims is entirely foreclosed under present Pennsylvania law. And that consideration, in turn, reinforces my resolve that the majority‘s holding that the next friend should go forward now is both correct and constitutionally sound.
Chief Justice ZAPPALA, Dissenting.
I respectfully dissent from the majority‘s holding that “a prisoner need not be competent to proceed through PCRA
While it is well established that entitlement to counsel under the Sixth Amendment of the United States Constitution does not extend to a PCRA petitioner during collateral review, see, e.g., Commonwealth v. Travaglia, 541 Pa. 108, 661 A.2d 352, 367 (1995) (citing Pennsylvania v. Finley, 481 U.S. 551, 107 S.Ct. 1990, 95 L.Ed.2d 539 (1987)), cert. denied, 516 U.S. 1121, 116 S.Ct. 931, 133 L.Ed.2d 858 (1996), a PCRA petitioner is entitled to the effective assistance of counsel during a first PCRA petition; this right has been provided to a PCRA petitioner by the Commonwealth through a procedural rule. See
For the right to effective assistance of counsel in a first PCRA petition not to be illusory, a PCRA petitioner must, at a minimum, be able to consult with counsel and aid counsel in identifying any potential claims cognizable under the PCRA. Since PCRA counsel‘s function is to identify any potential claims cognizable under the PCRA and properly present such claims to the court, it logically follows that a prisoner who is able to meaningfully consult with counsel is competent to participate in post-conviction proceedings. Conversely, a pris
In this case, it is undisputed that Haag‘s incompetence prevents him from meaningfully consulting with PCRA counsel and thereby participating in post-conviction proceedings. Although the majority recognizes “that this case involves unusual factual circumstances such that it may be impossible to discover cognizable claims outside of the record“, Majority Op. at 280, Appellant is nevertheless ordered to proceed with any legal and record-based claims through Haag‘s first PCRA petition as next friend because “if Haag regains competency, he may seek review of any undiscoverable claims through a second PCRA petition.” Id.
If Haag regains his competency and seeks to file a second PCRA petition, the PCRA court will have no jurisdiction to entertain the petition unless Haag can establish: (1) that one of the three statutory exceptions provided in
I do not believe that the restricted class of claims over which the PCRA court will have jurisdiction to address in a second PCRA petition under the exception found in Section 9545(b)(1)(ii) includes all potential cognizable PCRA claims which are presently unidentifiable by the next friend or PCRA counsel due to the inability of PCRA counsel to engage in meaningful consultation with Haag regarding his case, but would be capable of identification and development should Haag regain his competence and be able to consult with PCRA counsel. The exception found at Section 9545(b)(1)(ii) is a narrow one; the class of claims which fall under the exception is extremely limited. See Gamboa-Taylor, 753 A.2d at 785 (“conclusion that previous counsel was ineffective is not the type of after-discovered evidence encompassed by the exception“); see also Commonwealth v. Breakiron, 566 Pa. 323, 781 A.2d 94 (2001); Commonwealth v. Pursell, 561 Pa. 214, 749 A.2d 911 (2000); Commonwealth v. Lark, 560 Pa. 487, 746 A.2d 585 (2000).
Fahy narrowly interprets the exceptions to what is contained literally in the PCRA statute. See [Fahy, 737 A.2d at 222.] The statute does not include mental illness as an exception. See
42 Pa.C.S.A. § 9545(b)(1)(i)-(iii) . Although other areas of the law may be structured to accommodate mental illness, the PCRA time restrictions are not. Our Supreme Court has interpreted the statutory filing exceptions literally, clearly stating that if an exception is not in the statute, then it does not exist. See Fahy, supra. Additionally, equitable principles such as equitable tolling are not applicable due to the jurisdictional nature of the PCRA time limits. Id. Thus, the time limits cannot be extended, except as the statute contemplates. Id. If we were to grant Appellant‘s request in this case, we would effectively create a new exception not permitted under the PCRA statute. We decline to do so.
Id., 780 A.2d at 703. Apparently, under the majority opinion, the Superior Court‘s reasoning in Hoffman has been rejected sub silentio.
Additionally, the right to counsel in a second or subsequent PCRA petition is not co-extensive with the right to counsel in a first PCRA petition. While
The procedure suggested by the majority effectively requires the PCRA court to adjudicate that portion of the PCRA proceeding that involves legal and record-based claims that the next friend and counsel are able to identify and postpone consideration of claims that are unidentifiable without the petitioner‘s participation until the petitioner becomes competent. This Court‘s rules and the PCRA itself neither contemplate nor authorize a bifurcation of a PCRA adjudication. Such a bifurcated procedure does not insure that claims not identified in the first petition can be properly presented in a second PCRA petition and therefore violates petitioner‘s right to effective assistance of PCRA counsel.
Furthermore, if claims which are capable of development only after meaningful consultation with PCRA counsel ultimately fall outside the scope of claims which overcome the jurisdictional bar to their review in a second PCRA petition, the petitioner would suffer a violation of his limited due process rights. The majority recognizes that although the Commonwealth is under no constitutional obligation to provide a means for collaterally attacking convictions, because the Commonwealth has provided the PCRA as the sole vehicle to
The majority holds that Haag‘s right to fundamental fairness under the Due Process Clause is not violated, reasoning that “[t]he ability of a next friend to investigate and raise all cognizable claims on behalf of an incompetent prisoner so that the prisoner may promptly seek relief, and the ability of the petitioner to raise undiscoverable claims if he or she regains competence, sufficiently protects the limited due process rights of the prisoner.” Majority Op. at 285 (emphasis added). I do not believe that the procedure suggested by the majority will prevent the waiver of claims which are presently unidentifiable due to the inability of PCRA counsel to engage in meaningful consultation with Haag regarding his case, but would be capable of identification and development should Haag regain his competence and be able to consult with PCRA counsel. I cannot therefore agree with the majority‘s conclusion that Haag‘s due process rights are sufficiently protected.6
The Commonwealth asserts that “[n]o purpose would be served by appointment of a next friend if the litigation for which the next friend was appointed were to remain stalemated by the very condition which made appointment of a next friend appropriate.” Brief for Appellee at 12-13. I disagree. Appellant as next friend has raised the issues of: (1) whether Haag is competent to waive the filing of a first PCRA petition;7 and (2) whether forcing Haag to proceed
Accordingly, because I conclude that forcing a PCRA petitioner to proceed with his first PCRA petition when he is incompetent violates a PCRA petitioner‘s rights to effective assistance of PCRA counsel and due process of law, the PCRA proceedings at issue in the instant case should be stayed until such time as Randy Haag becomes competent. I therefore respectfully dissent.
Mr. Justice NIGRO joins this dissenting opinion.
Notes
(b) Time for filing petition.—
(1) Any petition under this subchapter, including a second or subsequent petition, shall be filed within one year of the date the judgment
continues:becomes final, unless the petition alleges and the petitioner proves that:
* * *
(ii) the facts upon which the claim is predicated were unknown to the petitioner and could not have been ascertained through the exercise of due diligence;
(A) Except as provided in paragraph (F), when an unrepresented defendant satisfies the judge that the defendant is unable to afford or otherwise procure counsel, the judge shall appoint counsel to repre-
continues:sent the defendant on the defendant‘s first petition for post-conviction collateral relief.
(B) On a second or subsequent petition, when an unrepresented defendant satisfies the judge that the defendant is unable to afford or otherwise procure counsel, and an evidentiary hearing is required as provided in Rule 908, the judge shall appoint counsel to represent the defendant.
assertion of incompetence by a next friend as a result of the 2000 amendment to
(F) Appointment of Counsel in Death Penalty Cases.
(1) At the conclusion of direct review in a death penalty case, which includes discretionary review in the Supreme Court of the United States, or at the expiration of time for seeking review, upon remand of the record, the trial judge shall appoint new counsel for the purpose of post-conviction collateral review, unless:
(a) the defendant has elected to proceed pro se or waive post-conviction collateral proceedings, and the judge finds, after a colloquy on the record, that the defendant is competent and the defendant‘s election is knowing, intelligent, and voluntary;
If Haag files a second petition, that petition would be subject to the requirements for timely filing as found in the current provisions of the PCRA. See Commonwealth v. Peterkin, 554 Pa. 547, 722 A.2d 638, 641 (Pa.1998). Because Haag‘s second petition cannot possibly be filed within one year of the date upon which judgment became final, his second petition will be time barred unless one of three statutory exceptions applies.
As this issue is not ripe, and may never be, we must leave it for another day. Under our understanding of the current PCRA, which the General Assembly may change before we ever have the opportunity to address this matter, Haag would have the opportunity to seek review of claims otherwise available under the PCRA, but unraisable in his first petition due to his incompetence.
The Fourteenth Amendment provides in part, “nor shall any State deprive any person of life, liberty, or property, without due process of Law ...”