Effectuating the Right to Effective Assistance of Post-Conviction Counsel

It has long been recognized that Pennsylvania post-conviction petitioners enjoy a right to effective assistance of post-conviction counsel. Unfortunately, however, Pennsylvania courts have struggled to establish a workable standard for petitioners to vindicate this right when post-conviction counsel is ineffective—that is, until now. On Oct. 20, the Pennsylvania Supreme Court held the current procedure for raising claims of ineffective assistance of post-conviction counsel could no longer “bear the weight of judicial scrutiny,” was “pure dicta” when established, and ultimately, “deeply flawed.” In a 40-page opinion, the court abolished long-standing Pennsylvania caselaw in favor of a “modified and flexible” approach designed to allow first time post-conviction petitioners to raise claims of ineffective assistance of post-conviction counsel at the first opportunity to do so, even if on appeal. See Commonwealth v. Bradley, No. 37 EAP 2020 (Pa. Oct. 20, 2021).

Since the Supreme Court’s 2002 holding in Commonwealth v. Grant, 813 A.2d 776 (Pa. 2002), and 2009 holding in Commonwealth v. Pitts, 981 A.2d 875 (Pa. 2009), Pennsylvania post-conviction petitioners, under threat of permanently losing the opportunity to raise these claims in the future, have been required to raise all challenges to post-conviction counsel’s effectiveness in their response to the court’s Pennsylvania Rule of Criminal Procedure 907 notice of intent to dismiss their PCRA petitions—the very petitions in which they might be represented by ineffective counsel. The Supreme Court acknowledged that the Rule 907 mandate created several “almost insurmountable” obstacles to both counseled and pro se petitioners alike. Notably, while disagreeing on the method upon which changes should be made, all parties to this appeal as well as all of the amici curiae (the Pennsylvania Innocence Project, the Defender Association of Philadelphia, the Pennsylvania Attorney General and the Pennsylvania District Attorney’s Association) agreed that the 907 waiver rule was inadequate and required significant revisions.

Relevant Factual and Procedural History