Pennsylvania Coram Nobis
In Pennsylvania, there are two types of Coram Nobis appeals: a direct appeal and a petition under the Post Conviction Relief Act (PCRA). The PCRA petition is completely separate from a direct appeal with its own rules, deadlines, and regulations.
Under PCRA, defendants may be able to appeal their case when their appeal to the Superior Court of Pennsylvania has been denied. PCRA petitions must be filed within one year from the date the judgment becomes final, but there are some limited exceptions to this 1 year rule:
- government interference with presenting the claim,
- newly discovered evidence, or
- a newly recognized constitutional right which applies retroactively.
In 1966, Pennsylvania legislature enacted the Post Conviction Hearing Act (PCHA). The PCHA incorporated habeas corpus and coram nobis petitions for review and was meant to establish a post-conviction review procedure for those who had been convicted and sentenced without due process of law. In 1988, the PCHA was modified into the PCRA. The PCRA creates the process where a prisoner can make a collateral attack on his/her conviction and/or sentence.
Pennsylvania, as with many other states, created its post-conviction appeals process in response to the United States Supreme Court. This type of appeal generally occurs after an initial appeal with the Pennsylvania courts is not successful. A person is eligible to file a PCRA petition if he/she has been convicted of a criminal offense and he/she is on probation or parole, currently serving a prison sentence, or has received a death sentence. The overall success rate for PCRA action is around 2% statewide, because most trial court errors are addressed on direct appeal.
Subchapter § 9542 of the PCRA provides a method for an action by which persons convicted of crimes they did not commit and persons serving illegal sentences may obtain collateral coram nobis relief. Individuals who were wrongfully convicted of a crime or who believe that their sentence is unlawful may pursue collateral relief.
The action established shall be the sole means of obtaining collateral relief and encompasses all other common law and statutory remedies for the same purpose that exist when this subchapter takes effect, including habeas corpus and coram nobis. The subchapter is not intended to limit the availability of remedies in the trial court or on direct appeal from the judgment of sentence, to provide a means for raising issues waived in prior proceedings or to provide relief from collateral consequences of a criminal conviction, such as deportation. Except as specifically provided otherwise, all provisions of this subchapter shall apply to capital and noncapital cases.
The PCRA creates eight bases for coram nobis relief; the conviction or sentence must have 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 petitioner’s right of appeal where a meritorious appealable issue existed and was properly preserved in the trial court.
(v) (Deleted by amendment).
(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.
The burden is on the defendant to prove that he/she deserves some kind of relief. You only have one year to file a PCRA petition and it is highly important to have an attorney handling your appeal. The process is complex, the time limitations are strict, and you are only guaranteed one chance at relief in state court. An experienced criminal appeals attorney knows there are different types of appeals possible following a conviction.
Your attorney will complete an investigation of the case and be able to accurately recognize the relevant questions and possible errors in the trial and present a persuasive written and oral argument.
Connecticut Coram Nobis
In Connecticut, a person convicted of a crime after a trial may be entitled to a new trial if new evidence was available at the time of the trial and was a substantial effect on the outcome. Post-conviction cases involve claims that legal errors were made during lower court proceedings.
Most commonly are the collateral attacks of ineffective assistance of counsel. It can also be used for claims of actual innocence, court or corrections department errors, a change in law that can be applied retroactively, and for other possibly new reasons. Moreover, if a Motion for Withdrawal of Guilty Plea or nolo contendere, is made before sentencing is imposed, the court may permit withdrawal of the plea upon a showing by the defendant of any fair and just reason. Examples of grounds for withdrawal of guilty plea are, but not limited to:
- Claim of ineffective assistance of counsel;
- Plea was involuntary or under threat, duress, coercion or confusion;
- Prosecutor’s inducement to plead guilty that was unfulfilled;
- Court’s failure to apprise defendant of maximum possible sentence and any mandatory minimum sentence;
- Erroneous factual basis for guilty plea;
- Constitutionality of the statute defining the charged offense;
- Erroneous information given to defendant by government, the court and defense counsel concerning applicable guideline sentencing range;
- Denial of immigration benefits, such as dual citizenship;
- Counsel’s failure to inform defendant of legal basis for charge; or
- Any fair and just reason.
Audita Querela is a latin term meaning “the complaint having been heard”.
The writ of Audita Querela was found to be for use in civil matters when enforcement of a judgment would be contrary to the ends of justice due to matters that have arisen since its rendition (State v. Cotto, 111 Conn. App. 818, 820, 960 A.2d 1113, 1114, 2008). In State of Connecticut v. Cotto, the defendant Elizer Tito Cotto appeals from the judgment dismissing his petition for a writ of error coram nobis or audita querela. The defendant claims impropriety in the court’s holding that it lacked jurisdiction to hear his petition. The judgment of the trial court was affirmed.
In Connecticut, a defendant can seek a rehearing of a decided matter due to the newly discovered evidence or newly existing legal defenses, through the writ of Audita Querela. A writ of Audita Querela attacks a judgment that becomes incorrect later because of circumstances that arose after the judgment was issued. It enables a defendant to reopen a judgment in certain circumstances. The writ of Audita Querela provides relief from a judgment at law because of events occurring subsequently which should cause discharge of a judgment debtor.
Audita querela is a remedy granted in favor of one against whom execution has issued on a judgment, the enforcement of which would be contrary to justice because of:
(1) matters arising subsequent to its rendition, or
(2) prior existing defenses that were not available to the judgment debtor in the original action, or (3) the judgment creditor’s fraudulent conduct or circumstances over which the judgment debtor had no control.
Audita Querela is a limited and extraordinary legal remedy, based on equity, to inhibit the unconscionable use of a lawful judgment because of matters arising subsequent to the judgment. The broad issue becomes not comparative inconvenience but comparative hardship. Courts have a longstanding general power of equity to afford relief against unreasonable conduct even when the activity is otherwise lawful.
The writ of Audita Querela, stems from English common law and permits a defendant who has had a judgment rendered against him/her, to seek relief of the consequences of such a judgment where there is some new evidence or legal defense that was not previously available. There is neither practice book rule regarding Writs of Audita Querela nor statute authorizing it. The Writ of Audita Querela is common law and precedes the first appellate statute in Connecticut passed in 1882. There is no statutory right of appeal from a Writ of Audita Querela.
The history of the writ of Audita Querela in Connecticut reveals its limited applicability to civil judgments. The ancient writ of Audita Querela has been defined as a writ of Coram Nobis issued to afford a remedy to a defendant against whom judgment had been rendered, but who had new matter in defense arising, or at least raisable for the first time, after judgment.
Because the writ of Audita Querela is regularly filed in the housing courts of Connecticut, judges there have had occasion to develop the doctrine further.
In State of Connecticut v. Francisco Figueroa (AC 24298), defendant Francisco Figueroa, appeals from the judgment of conviction, rendered after his plea of guilty pursuant to the Alford doctrine 1 of robbery in the first degree in violation of General Statutes § 53a-134 (a) (3) and assault of public safety personnel in violation of General Statutes § 53a-167c (a) (1). On appeal, the defendant claims that the trial court improperly denied his motion to withdraw his guilty plea and he was denied effective assistance of counsel. On March 26, 2003, the defendant entered a guilty plea pursuant to North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970), to the charges of robbery in the first degree and assault of public safety personnel. On the same day, the court sentenced the defendant to a total effective term of ten years imprisonment, execution suspended after four years, with three years probation. On April 24, 2003, counsel for the defendant filed a motion to withdraw the defendant’s guilty plea and to withdraw as counsel. The court denied the motion to withdraw the plea on April 30, 2003.
The defendant first claims that the court improperly denied his motion to withdraw his guilty plea. According to the defendant, he was entitled to withdraw his guilty plea because it was neither knowingly nor intelligently given.
Under limited circumstances, a defendant may withdraw a plea after the conclusion of the sentencing proceeding.
In State of Connecticut v. Xiaojuan Hu (CR02-046583S ), defendant Xiaojuan Hu moved the Court on September 19, 2005 to vacate a guilty plea entered on October 1, 2002 on the grounds it was not made “knowingly, intelligently and voluntarily” and in violation of her constitutional rights.
The State objects and claims the Court lacks authority to grant relief on defendant’s motion.
On August 26, 2002, defendant was arrested and charged with Larceny in the Third Degree and Risk of Injury to a Minor for shoplifting at Filene’s Store in Milford. On October 1, 2002, defendant appeared in Court and pled guilty to Larceny in the Fourth Degree (a lesser charge) and was sentenced to one year execution suspended and two years probation.
She was not represented by an attorney and was not canvassed on waiving her right to an attorney. Defendant completed her probation successfully. She thereafter was refused readmission to the United States based on this conviction, presumably because any larceny is a deemed to be a crime of “moral turpitude” and she received a sentence in excess of 6 months.
The writ of Audita Querela affords relief in criminal cases, but only in very limited circumstances. Before filing a post-conviction petition, your attorney must review your record (trial transcripts and exhibits, motions, and rulings) to identify relevant facts and issues, and research those claims that might provide a basis for judicial relief.
Florida Coram Nobis
The Florida Rules of Criminal Procedure provide several basis for Coram Nobis relief, vacating the conviction through a Rule 3.850 Motion or a Rule 3.800 Motion.
Rule 3.850 (Motion to vacate, Set aside, or Correct sentence) usually applies when there is ineffective assistance of counsel.
Many 3.850 motions seek to vacate a conviction, judgment and sentence, after a criminal defendant has pled guilty or no contest, or has received an unfavorable ruling in a trial by judge or jury. Although it is a common allegation that a defendant received ineffective assistance of counsel, it is insufficient to make such a claim in conclusory form. This rule does not authorize relief based on grounds that could have or should have been raised at trial and, if properly preserved, on direct appeal of the judgment and sentence.
The grounds for Motion are the following:
(1) The judgment was entered or sentence was imposed in violation of the Constitution or laws of the United States or the State of Florida.
(2) The court did not have jurisdiction to enter the judgment.
(3) The court did not have jurisdiction to impose the sentence.
(4) The sentence exceeded the maximum authorized by law.
(5) The plea was involuntary.
(6) The judgment or sentence is otherwise subject to collateral attack.
The grounds may be claims for relief from judgment or release from custody by a person who has been tried and found guilty or has entered a plea of guilty or nolo contendere before a court established by the laws of Florida.
The motion must be under oath stating that the defendant has read the motion or that it has been read to him/her, that the defendant understands its content, and that all of the facts stated therein are true and correct.
The filing of successive post-conviction motions is typically not permitted. A second or successive motion (titled: “Second or Successive Motion for Postconviction Relief.”) is an extraordinary pleading.
A Rule 3.850 Coram Nobis motion must be filed within two years of the final judgment and sentence. Although there are some exceptions to the time limit, they are very narrow
(1) the facts on which the claim is predicated were unknown to the movant or the movant’s attorney, and could not have been ascertained by the exercise of due diligence, and the claim is made within 2 years of the time the new facts were or could have been discovered with the exercise of due diligence, or
(2) the fundamental constitutional right asserted was not established within the period provided for herein and has been held to apply retroactively, and the claim is made within 2 years of the date of the mandate of the decision announcing the retroactivity, or
(3) the defendant retained counsel to timely file a 3.850 motion and counsel, through neglect, failed to file the motion. A claim based on this exception shall not be filed more than 2 years after the expiration of the time for filing a motion for postconviction relief.
Rule 3.850 also applies to claims that there is new evidence, that could not have been discovered during the original proceedings. This evidence must have been unobtainable during trial, and also have had the ability to result in a different outcome.
Examples of new evidence are witness recantation, additional physical evidence (DNA or fingerprints), or the discovery of new witnesses that weren’t known during the original proceeding.
If the defendant is filing a newly discovered evidence claim based on recanted trial testimony or on a newly discovered witness, the defendant shall include an affidavit from that person as an attachment to his/her motion.
When the court has entered an order, granting the defendant an opportunity to amend the motion, any amendment to the motion must be served within 60 days. A motion may otherwise be amended at any time prior to either the entry of an order. Notwithstanding the timeliness of an amendment, the court need not consider new factual assertions contained in an amendment unless the amendment is under oath. New claims for relief contained in an amendment need not be considered by the court unless the amendment is filed within the time frame.
Any party may file a motion for rehearing of any order addressing a motion under the rule within 15 days of the date of service of the order. A motion for rehearing is not required to preserve any issue for review in the appellate court. A motion for rehearing must be based on a good faith belief that the court has overlooked a previously argued issue of fact or law or an argument based on a legal precedent or statute not available prior to the court’s ruling.
A response may be filed within 10 days of service of the motion. The trial court’s order disposing of the motion for rehearing shall be filed within 15 days of the response but not later than 40 days from the date of the order of which rehearing is sought.
An appeal may be taken to the appropriate appellate court only from the final order disposing of the motion. All final orders denying motions for post conviction relief shall include a statement that the defendant has the right to appeal within 30 days of the rendition of the order.
An application for writ of habeas corpus or coram nobis on behalf of a prisoner who is authorized to apply for relief by motion pursuant to the rule shall not be entertained if it appears that the applicant has failed to apply for relief, by motion, to the court that sentenced the applicant or that the court has denied the applicant relief, unless it also appears that the remedy by motion is inadequate or ineffective to test the legality of the applicant’s detention.
It is the defendant’s burden to establish that his/her counsel failed to render effective assistance of counsel, and that had counsel offered effective assistance, the ultimate result could have been different. The defendant’s presence shall not be required at any hearing or conference held, except at the evidentiary hearing on the merits of any claim.
If you have been convicted in a criminal case, you have to find an appellate attorney that can properly advise you of your appellate coram nobis rights and remedies.