1658 Order rescinding Rule 85; adopting new Rule 85; and amending Rules 75, 76, 83, 84 and 86; no. 227; doc. no. 2

[234 PA. CODE CH. 50]

Order Rescinding Rule 85; Adopting New Rule 85; and Amending Rules 75, 76, 83, 84 and 86; No. 227; Doc. No. 2

[27 Pa.B. 5408]

   The Criminal Procedural Rules Committee has prepared a Final Report explaining the Supreme Court's changes to Chapter 50, which (1) clarify the process by which an issuing authority sets fines and restitution in the first instance, to increase the likelihood that the amount imposed will be paid, (2) provide that, in a summary case, an arrest warrant should not be issued for a default unless the defendant has been given notice that failure to pay or appear may result in the issuance of an arrest warrant, and (3) encourage defendants to seek adjustments in payment schedules before a default occurs. The Final Report follows the Court's Order.

Order

Per Curiam:

   Now, this 1st day of October, 1997, upon the recommendation of the Criminal Procedural Rules Committee, the proposal having been published before adoption at 25 Pa.B. 937 (March 18, 1995), and in the Atlantic Reporter (Second Series Advance Sheets, Vol. 652-653), with a Final Report to be published with this Order:

   It Is Ordered pursuant to Article V, Section 10 of the Constitution of Pennsylvania that:

   (1)  Rule of Criminal Procedure 85 is rescinded,

   (2)  New Rule of Criminal Procedure 85 is adopted, and

   (3)  Rules of Criminal Procedure 75, 76, 83, 84, and 86 are amended, all in the following form.

   This Order shall be processed in accordance with Pa.R.J.A. 103(b), and shall be effective October 1, 1998.

Annex A

TITLE 234.  RULES OF CRIMINAL PROCEDURE

PART I.  GENERAL

CHAPTER 50.  PROCEDURE IN SUMMARY CASES

PART V.  PROCEDURES REGARDING ARREST WARRANTS IN SUMMARY CASES

Rule 75.  Issuance of Arrest Warrant.

*      *      *      *      *

   (3)  A warrant for the arrest of the defendant may be issued when:

   (a)  the defendant has entered a guilty plea by mail and the money forwarded with the plea is less than the amount of fine and costs specified in the citation or summons; or

   (b)  the defendant has been sentenced to pay restitution, a fine, or costs and has defaulted on the payment; or

   (c)  the issuing authority has, in the defendant's absence, tried and sentenced the defendant to pay a fine and costs, and the collateral deposited by the defendant is less than the amount of fine and costs imposed.

   (4)  No warrant shall issue under Rule 75(3) unless the defendant has been given notice in person or by first class mail that failure to pay the amount due or to appear for a hearing may result in the issuance of an arrest warrant, and the defendant has not responded to this notice within 10 days. Notice by first class mail shall be considered complete upon mailing to the defendant's last known address.

   Official Note:  Adopted July 12, 1985, effective January 1, 1986; effective date extended to July 1, 1986; amended January 31, 1991, effective July 1, 1991; amended April 18, 1997, effective July 1, 1997; amended October 1, 1997, effective October 1, 1998.

Comment

   Personal service of a citation under paragraph (1)(a) is intended to include the issuing of a citation to a defendant as provided in Rule 51(a) and the rules of Part IIA.

   An arrest warrant may not be issued under paragraph (1)(a) when a defendant fails to respond to a citation or summons that was served by first class mail. See Rule 80.

   Ordinarily, pursuant to Rule 84, the issuing authority must conduct a summary trial in the defendant's absence. However, if the issuing authority determines that there is a likelihood that the sentence will be imprisonment or that there is other good cause not to conduct the summary trial, the issuing authority may issue a warrant for the arrest of the defendant pursuant to paragraph (2) in order to bring the defendant before the issuing authority for the summary trial.

   [An] The arrest warrant issued under paragraph (3) should state the amount required to satisfy the sentence.

   When contempt proceedings are also involved, see Chapter 30 for the issuance of arrest warrants.

Committee Explanatory Reports:

   Report explaining the January 31, 1991 amendments published at 20 Pa.B. 4788 (September 15, 1990); Supplemental Report published at 21 Pa.B. 621 (February 16, 1991).

   Final Report explaining the April 18, 1997 amendments concerning arrest warrants when defendant fails to appear for trial published with the Court's Order at 27 Pa.B. 2117 ( May 3, 1997).

   Final Report explaining the October 1, 1997, amendments in paragraph (3) and the provisions of new paragraph (4) published with the Court's Order at 27 Pa.B. (October 18, 1997).

Rule 76.  Procedure when Defendant Arrested with Warrant.

   [(a)](A)  ***

   [(b)] (B)  ***

*      *      *      *      *

   (3)  accept from the defendant the amount of fine and costs due as specified in the warrant if the warrant is for collection of fine and costs after a guilty plea or conviction; or

*      *      *      *      *

   [(c)](C))  When the police officer accepts fine and costs or collateral under [subparagraphs] paragraphs [(b)](B)(1), (2), or (3), the officer shall issue a receipt to the defendant setting forth the amount of fine and costs or collateral received [to the defendant] and return a copy of the receipt, signed by the defendant and the police officer, to the proper issuing authority.

   [(d)] (D)  When the defendant is taken before the issuing authority under [subparagraph] paragraph [(b)] (B)(4), the defendant shall be given an immediate trial unless:

*      *      *      *      *

   Official Note:  Adopted July 12, 1985, effective January 1, 1986; Comment revised September 23, 1985, effective January 1, 1986; January 1, 1986 effective date extended to July 1, 1986; Comment revised January 31, 1991, effective July 1, 1991; amended August 9, 1994, effective January 1, 1995; amended October 1, 1997, effective October 1, 1998.

Comment

   [This rule is derived from the arrest warrant procedures in previous Rules 60, 61, and 65(g), (h).

   Under former Rule 61, when a defendant was arrested in a summary case with a warrant outside the judicial district where the warrant was issued, the defendant was first taken before an issuing authority in the judicial district where the arrest was made for the purpose of posting bail. Thereafter, the defendant appeared or was taken for trial before the proper issuing authority in the judicial district where the warrant was issued. This procedure was deleted with the general revision of the summary case rules in 1985.]

   For the procedure in court cases following arrest with a warrant, see Rules 123 and 124.

   Section 8953 of the Judicial Code, 42 Pa.C.S. § 8953, provides for the execution of warrants of arrest beyond the territorial limits of the police officer's primary jurisdiction. See also Commonwealth v. Mason, [507 Pa 396,] 490 A.d. 421 (Pa. 1985).

   Delay of trial under [subparagraph] paragraph [(d)](D)(1) is required by statutes such as 18 Pa.C.S. § 3929 (pretrial fingerprinting and record-ascertainment requirements).

   Although the defendant's trial may be delayed under this rule, the requirement that an arrested defendant be taken without unnecessary delay before the proper issuing authority remains unaffected.

   For the procedures required before an arrest warrant may issue for a defendant's failure to pay restitution, a fine, or costs, see Rule 75(4). When contempt proceedings are also involved, see Chapter 30 for the issuance of arrest warrants.

   For what constitutes a [the] ''proper'' issuing authority, see Rule 21.

   [On] Concerning the defendant's right to counsel and waiver of counsel, see Rules 316 and 318.

Committee Explanatory Reports:

   Report explaining the January 31, 1991 [amendments] revision published at 20 Pa.B. 4788 (September 15, 1990); Supplemental Report published at 21 Pa.B. 621 (February 16, 1991).

   Final Report explaining the August 9, 1994 amendments published at 22 Pa.B. 6 (January 4, 1992); Final Report published with the Court's Order at 24 Pa.B. 4342 (August 27, 1994).

   Final Report explaining the October 1, 1997 amendments published with the Court's Order at 27 Pa.B. 5414 (October 18, 1997).

PART VI.  GENERAL PROCEDURES IN SUMMARY CASES

Rule 83.  Trial in Summary Cases.

*      *      *      *      *

   (D)  The verdict and sentence, if any, shall be announced in open court immediately upon the conclusion of the trial. [When the defendant is sentenced to pay fine and costs and is found to be without the financial means to pay immediately, the issuing authority shall provide for installment payments as provided in Rule 85.]

   (E)  At the time of sentencing, the issuing authority shall:

   (1)  if the defendant's sentence includes restitution, a fine, or costs, state the date on which payment is due. If the defendant is without the financial means to pay the amount in a single remittance, the issuing authority may provide for installment payments and shall state the date on which each installment is due;

   (2)  advise the defendant of the right to appeal within 30 days for a trial de novo in the court of common pleas, [and trial de novo, of the time within which to exercise that right,] and that if an appeal is filed:

   (a)  the execution of sentence will be stayed and the issuing authority may set bail or collateral; and

   (b)  the defendant must appear for the de novo trial or the appeal may be dismissed [.] ;

   (3)  if a sentence of imprisonment has been imposed, direct the defendant to appear for the execution of sentence on a date certain unless the defendant files a notice of appeal within the 30-day period; and

   (4)  issue a written order imposing sentence, signed by the issuing authority. The order shall include the information specified in paragraphs (E)(1) through (E)(3), and a copy of the order shall be given to the defendant.

   Official Note:  Adopted July 12, 1985, effective January 1, 1986; amended September 23, 1985, effective January 1, 1986; effective date extended to July 1, 1986; amended February 2, 1989, effective March 1, 1989; amended October 28, 1994, effective as to cases instituted on or after January 1, 1995; Comment revised April 18, 1997, effective July 1, 1997; amended October 1, 1997, effective October 1, 1998.

Comment

   The defendant has a right to counsel at trial in all summary cases in which the issuing authority determines there is a likelihood of imprisonment. See Rules 316 and 318.

   The affiant may be permitted to withdraw the charges pending before the issuing authority. See Rule 87 (Withdrawal of Charges in Summary Cases).

   Paragraph (E)(2)(b) is included in the rule in light of North v. Russell, 427 U.S. 328 (1976). For the procedures for taking, perfecting, and handling an appeal, see Rule 86.

   Although the scheduling of summary trials is left by the rules to the discretion of the issuing authority, it is intended that trial will be scheduled promptly upon receipt of a defendant's plea or promptly after a defendant's arrest. When a defendant is incarcerated pending a summary trial, it is incumbent upon the issuing authority to schedule trial for the earliest possible time.

   Under paragraph (E)(2)(a), the issuing authority should explain to the defendant that if an appeal is filed, any sentence, including imprisonment, fines, or restitution, will be stayed.

   When setting the specific date for the defendant to appear for execution of a sentence of imprisonment pursuant to paragraph (E)(3), the issuing authority should set the earliest possible date for sentencing after the appeal period expires.

   For the statutory authority to sentence a defendant to pay a fine, see 42 Pa.C.S. § 9726.

   For the statutory authority to sentence a defendant to pay restitution, see 42 Pa.C.S. § 9721(c) and 18 Pa.C.S. §  1106(c). See also 18 Pa.C.S. § 1106(c)(2)(iv), which prohibits the court from ordering the incarceration of a defendant for failure to pay restitution if the failure results from the defendant's inability to pay.

   Before imposing both a fine and restitution, the issuing authority must determine that the fine will not prevent the defendant from making restitution to the victim. 42 Pa.C.S. § 9726(c)(2) and § 9730(b)(3).

   See Rule 85 for the procedures when a defendant defaults in the payment of restitution, fines, or costs.

   A defendant should be encouraged to seek an adjustment of a payment schedule for restitution, fines, or costs before a default occurs. See Rule 85(A).

Committee Explanatory Reports:

   Final Report explaining the October 28, 1994 amendments published with the Court's Order at 24 Pa.B. 5841 (November 26, 1994).

   Final Report explaining the April 18, 1997 Comment revision cross-referencing new Rule 87 published with the Court's Order at 27 Pa.B. 2119 (May 3, 1997).

   Final Report explaining the October 1, 1997 amendments to paragraph (E) and the Comment concerning the procedures at the time of sentencing published with the Court's Order at 27 Pa.B. 5414 (October 18, 1997).

Rule 84.  Trial in Defendant's Absence.

*      *      *      *      *

   (D)  If the defendant is found guilty, the issuing authority shall impose sentence, and shall [notify] give notice to the defendant of the conviction and sentence by first class mail. In those cases in which the amount of collateral deposited does not satisfy the fine and costs imposed or the issuing authority imposes a sentence of restitution, the notice shall also state that failure within 10 days of the date on the notice to pay the amount due or to appear for a hearing to determine whether the defendant is financially able to pay the amount due may result in the issuance of an arrest warrant.

   (E)  Any collateral previously deposited shall be forfeited and applied only to the payment of the fine and costs. When the amount of collateral deposited is more than the fine and costs, the balance shall be returned to the defendant. [When the amount of collateral deposited does not satisfy the fine and costs,]

   (F)  If the defendant does not respond within 10 days to the notice in paragraph (D), the issuing authority may issue a warrant for the defendant's arrest.

   Official Note:  Adopted July 12, 1985, effective January 1, 1986; effective date extended to July 1, 1986; amended February 1, 1989, effective July 1, 1989; amended April 18, 1997, effective July 1, 1997, 27 Pa.B. 2116.; amended October 1, 1997, effective October 1, 1998.

*      *      *      *      *

Committee Explanatory Reports:

   Final Report explaining the April 18, 1997 amendments mandating a summary trial in absentia with certain exceptions published with the Court's Order at 27 Pa.B. 2117 (May 3, 1997).

   Final Report explaining the October 1, 1997 amendments to paragraphs (D) and (E) published with the Court's Order at 27 Pa.B. 5414 (October 18, 1997).

[Rule 85. Procedures Regarding Default in Payment of Fine and Costs after Conviction.] Rescinded.

   [(a)  When a defendant defaults in the payment of a fine or costs after a finding of guilt, the issuing authority shall conduct a hearing to determine whether the defendant is financially able to pay the fine or costs.

   (b)  If the issuing authority determines that the defendant is financially able to pay the fine or costs, the issuing authority may impose imprisonment for nonpayment, as provided by law.

   (c)  If the issuing authority determines that the defendant is without the financial means to pay the fine or costs immediately or in a single remittance, the issuing authority may provide for payment in installments. In determining the appropriate installments, the issuing authority shall consider the defendant's financial resources, the defendant's ability to make restitution and reparations, and the nature of the burden payment will impose on the defendant.

   (d)  When installment payments are ordered, and the defendant is in default of a payment or advises the issuing authority that such default is imminent, the issuing authority may schedule a rehearing on the payment schedule. At the rehearing the defendant shall have the burden of proving changes of financial condition such that the defendant is without the means to meet the payment schedule. The issuing authority may extend or accelerate the schedule or leave it unaltered, as the issuing authority finds to be just and practicable under the circumstances.

   (e)  The defendant may appeal the issuing authority's determination in (b), (c), or (d) by filing a notice of appeal within thirty (30) days after the date of the default hearing. The appeal shall proceed as provided in Rule 86.]

   Official Note:  Adopted July 12, 1985, effective January 1, 1986; amended September 23, 1985, effective January 1, 1986; effective date extended to July 1, 1986. Comment revised February 1, 1989, effective July 1, 1989.; rescinded October 1, 1997, effective October 1, 1998, and replaced by new Rule 85.

[Comment

   This rule replaces previous Rule 65(a)--(d).]

   [When a ''child'' fails to pay a fine levied for a summary offense, notice of that fact shall be certified to the court of common pleas and the Juvenile Act would then apply, rather than these rules. Juvenile Act §§ 6302--6303, 42 Pa.C.S. §§ 6302--6303 (1982).

   If the hearing on the default can not be held immediately, the issuing authority may set bail as provided in Chapter 4000 or may fix collateral as provided in Rule 81.

   It is intended, pursuant to paragraph (d), that when the defendant is in default of an installment payment, the issuing authority on his or her own motion or at the request of the defendant or the attorney for the Commonwealth may schedule a rehearing to determine the cause of the default. Before an issuing authority may impose a sentence of imprisonment as provided by law for nonpayment of fine and costs a hearing or rehearing must be held whenever a defendant alleges that his or her ability to pay has been diminished. See 42 Pa.C.S. §  9730(b). See also Rules 316 and 318 (dealing with the right to counsel).

   This rule contemplates that when there has been an appeal pursuant to paragraph (e), the case would return to the issuing authority who presided at the default hearing for completion of the collection process.]

Committee Explanatory Reports:

   Final Report explaining the October 1, 1997 rescission published with the Court's Order at 27 Pa.B. 5414 (October 18, 1997).

   (Editor's Note:  The following rule is new. It is printed in regular type to enhance readability.)

Rule 85.  Default Procedures: Restitution, Fines, and Costs.

   (A)  When a defendant advises the issuing authority that a default on a single remittance or installment payment of restitution, fines, or costs is imminent, the issuing authority may schedule a hearing on the defendant's ability to pay. If a new payment schedule is ordered, the order shall state the date on which each payment is due, and the defendant shall be given a copy of the order.

   (B)  If a defendant defaults on the payment of fines and costs, or restitution, as ordered, the issuing authority shall notify the defendant in person or by first class mail that, unless within 10 days of the date on the default notice, the defendant pays the amount due as ordered, or appears before the issuing authority to show cause why the defendant should not be imprisoned for nonpayment as provided by law, a warrant for the defendant's arrest may be issued.

   (C)  If the defendant appears as provided in paragraph (B), the issuing authority shall conduct a hearing to determine whether the defendant is financially able to pay as ordered.

   (1)  Upon a determination that the defendant is financially able to pay as ordered, the issuing authority may impose any sanction provided by law.

   (2)  Upon a determination that the defendant is financially unable to pay as ordered, the issuing authority may order a schedule or reschedule for installment payments, or alter or amend the order as otherwise provided by law.

   (3)  At the conclusion of the hearing, the issuing authority shall:

   (a)  if the issuing authority has ordered a schedule of installment payments or a new schedule of installment payments, state the date on which each installment payment is due;

   (b)  advise the defendant of the right to appeal within 30 days for a hearing de novo in the court of common pleas, and that if an appeal is filed:

   (i)  the execution of the order will be stayed and the issuing authority may set bail or collateral; and

   (ii)  the defendant must appear for the hearing de novo in the court of common pleas or the appeal may be dismissed;

   (c)  if a sentence of imprisonment has been imposed, direct the defendant to appear for the execution of sentence on a date certain unless the defendant files a notice of appeal within the 30-day period; and

   (d)  issue a written order imposing sentence, signed by the issuing authority. The order shall include the information specified in paragraphs (C)(3)(a) through (C)(3)(c), and a copy of the order shall be given to the defendant.

   (D)  A defendant may appeal an issuing authority's determination pursuant to this rule by filing a notice of appeal within 30 days of the issuing authority's order. The appeal shall proceed as provided in Rule 86.

   Official Note:  Adopted July 12, 1985, effective January 1, 1986; amended September 23, 1985, effective January 1, 1986; January 1, 1996 effective dates extended to July 1, 1986. Comment revised February 1, 1989, effective July 1, 1989; rescinded October 1, 1997, effective October 1, 1998. New Rule 85 adopted October 1, 1997, effective October 1, 1998.

Comment

   The purpose of this rule is to provide the procedures governing defaults in the payment of restitution, fines, and costs.

   Although most of this rule concerns the procedures followed by the issuing authority after a default occurs, paragraph (A) makes it clear that a defendant should be encouraged to seek a modification of the payment order when the defendant knows default is likely, but before it happens. For fines and costs, see 42 Pa.C.S. § 9730(b)(3).

   An issuing authority may at any time alter or amend an order of restitution. See 18 Pa.C.S. § 1106(c)(2) and (3).

   When a defendant defaults on a payment of restitution, fines, or costs, paragraph (B) requires the issuing authority to notify the defendant of the default, and to provide the defendant with an opportunity to pay the amount due or appear within 10 days to show cause why the defendant should not be imprisoned for nonpayment. Notice by first class mail is considered complete upon mailing to the defendant's last known address. See Rule 75(4).

   If the default hearing cannot be held immediately, the issuing authority may set bail as provided in Chapter 4000.

   Under paragraph (C)(1), when the issuing authority determines that a defendant is able to pay as ordered, the issuing authority may, as provided by law, impose imprisonment or other sanctions. In addition, delinquent fines or court costs may be turned over to a private collection agency, 42 Pa.C.S. § 9730(b)(2).

   When a ''child'' fails to pay a fine levied for a summary offense, notice of that fact must be certified by the court of common pleas and the Juvenile Act would then apply, rather than these rules. 42 Pa.C.S. §§ 6302--6303.

   When a defendant is in default of an installment payment, the issuing authority on his or her own motion or at the request of the defendant or the attorney for the Commonwealth must schedule a rehearing to determine the cause of the default. Before an issuing authority may impose a sentence of imprisonment as provided by law for nonpayment of fines or costs, a hearing or rehearing must be held whenever a defendant alleges that his or her ability to pay has been diminished. See 42 Pa.C.S. § 9730(b). See also Rules 316 and 318 (dealing with the right to counsel).

   When a rehearing is held on a payment schedule for fines or costs, the issuing authority may extend or accelerate the payment schedule, leave it unaltered, or sentence the defendant to a period of community service, as the issuing authority finds to be just and practicable under the circumstances. 42 Pa.C.S. § 9730(b)(3).

   This rule contemplates that when there has been an appeal pursuant to paragraph (D), the case would return to the issuing authority who presided at the default hearing for completion of the collection process.

   Nothing in this rule is intended to preclude an issuing authority from imposing punishment for indirect criminal contempt when a defendant fails to pay fines and costs in accordance with an installment payment order, 42 Pa.C.S. §§ 4137(a)(4), 4138(a)(3), and 4139(a)(3), or fails to pay restitution, 42 Pa.C.S. § 4137(a)(3). Separate Rules of Criminal Procedure govern contempt adjudications. See Chapter 30.

Committee Explanatory Reports:

   Final Report explaining the new rule published with the Court's Order at 27 Pa.B. 5414 (October 18, 1997).

Rule 86.  Appeals [From Summary Judgments].

   [(a)] (A)  When an appeal is authorized by law in a summary proceeding, including a prosecution for violation of a municipal ordinance which provides for imprisonment upon conviction or upon failure to pay a fine, an appeal shall be perfected by filing a notice of appeal within 30 days after the conviction or other final order from which the appeal is taken and by appearing in the court of common pleas for the trial de novo. The notice of appeal shall be filed with the clerk of courts.

   [(b)] (B)  Stays.

   [In all cases where a sentence of imprisonment is imposed, the execution of sentence shall be stayed until the time for appeal expires, and the issuing authority may set bail or collateral. The issuing authority shall direct the defendant to appear for the execution of sentence on a date certain unless a notice of appeal is filed within the period prescribed.]

   (1)  In all cases in which a sentence of imprisonment has been imposed, execution of sentence shall be stayed until the time for appeal expires.

   (2)  In any case in which a notice of appeal is filed, the execution of sentence shall be stayed.

   (3)  Whenever the execution of sentence is stayed pursuant to this paragraph, the issuing authority may set bail or collateral.

   (C)  During the 30-day appeal period, failure to pay fines and costs, or restitution, shall not be grounds for imprisonment and shall not be grounds to preclude the taking of an appeal.

   [(c)] (D)  The notice of appeal shall contain the following information:

*      *      *      *      *

   (7)  the sentence imposed, [if any,] and if the sentence includes a fine, [and] costs, or restitution, whether the [same have] amount due has been paid;

*      *      *      *      *

   [(d)] (E)  ***

   [(e)] (F)  ***

   [(f)] (G)  ***

   [(g)] (H)  ***

   (I)  This rule shall not apply to appeals from contempt adjudications.

   Official Note:  Adopted July 12, 1985, effective January 1, 1986; revised September 23, 1985, effective January 1, 1986; January 1, 1986 effective [date] dates extended to July 1, 1986; amended February 2, 1989, effective March 1, 1989; amended March 22, 1993, effective January 1, 1994; amended October 28, 1994, effective as to cases instituted on or after January 1, 1995; amended February 25, 1995, effective July 1, 1995; amended October 1, 1997, effective October 1, 1998.

Comment

   This rule [replaces former Rule 67. It] applies to appeals in all summary proceedings, including prosecutions for violations of municipal ordinances which provide for the possibility of imprisonment, and default hearings.

   Appeals from contempt adjudications are governed by Rule 31.

   The Rules of Criminal Procedure are applicable generally to these proceedings. See, e.g., Rule 3, Chapter 50 (Summary Cases), Rule 1117, and Chapter 6000. The narrow holding in City of Easton v. Marra, [230 Pa. Super. 352,] 326 A.d. 637 (Pa. Super. 1974), is not in conflict, since the record before the court did not indicate that imprisonment was possible under the ordinance there in question.

   Under paragraph (B)(2), the stay applies to all ''sentences'' imposed after conviction, including sentences of imprisonment, fines and costs, or restitution, and sentences of imprisonment for defaults in payment pursuant to Rule 85.

   When the only issues on appeal arise solely from an issuing authority's determination after a default hearing pursuant to Rule 85, the matter must be heard de novo by the appropriate judge of the court of common pleas and only those issues arising from the default hearing are to be considered. It is not intended to reopen other issues not properly preserved for appeal. A determination after a default hearing would be a final order for purposes of these rules.

   Certiorari was abolished by former Rule 67 in 1973, pursuant to Article V Schedule Section 26 of the Constitution of Pennsylvania, which specifically empowers the Supreme Court of Pennsylvania to do so by rule. This Schedule section is still viable, and the substance of this Schedule section has also been included in the Judicial Code, [as Section 934.] 42 Pa.C.S. § 934 [(1981)]. The abolition of certiorari, of course, continues.

   Bail, when set in a summary case, [shall] must be set in accordance with the bail rules, Chapter 4000.

Committee Explanatory Reports:

   Final Report explaining the March 22, 1993 amendments published with the Court's Order at 23 Pa.B. 1699 (April 10, 1993).

   Final Report explaining the October 28, 1994 amendments published with the Court's Order at 24 Pa.B. 5843 (November 26, 1994).

   Final Report explaining the February 27, 1995 amendments published with the Court's Order at 25 Pa.B. 935 (March 18, 1995).

   Final Report explaining the October 1, 1997 amendments published with the Court's Order at 27 Pa.B. 5414 (October 18, 1997).

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FINAL REPORT

Imposition of Fines, Costs, and Restitution in Summary Cases; Default Procedures; Appeals

Introduction

   On October 1, 1997, upon the recommendation of the Criminal Procedural Rules Committee, the Supreme Court of Pennsylvania rescinded present Rule 85 (Procedures Regarding Default in Payment of Fine and Costs after Conviction), adopted new Rule 85 (Default Procedures: Restitution, Fines, and Costs), and amended Rule 75 (Issuance of Arrest Warrant), Rule 76 (Procedure When Defendant Arrested with Warrant), Rule 83 (Trial in Summary Cases), Rule 84 (Trial in Defendant's Absence), and Rule 86 (Appeals from Summary Judgments). These changes will become effective on October 1, 1998.

   This Final Report has three parts. The Background section explains how the Committee came to consider the various issues addressed in the proposal, and the manner in which the Committee developed the proposal through research and discussion. The Statutory section discusses the statutes providing the substantive law on sentencing, fines, and restitution, the problems of interpretation encountered as we considered the substantive law, and how the Committee resolved those problems. The Explanation of Rule Changes section contains an overview of the changes and a rule-by-rule discussion.

Background

   The Committee's consideration of restitution procedures in summary cases began in response to an inquiry from the Supreme Court's Minor Courts Rules Committee asking us to consider recommending amendments to the summary case rules to address restitution. This request raised two questions. The first issue was straightforward: should the summary case rules be amended to expressly recognize restitution as a sentence in summary cases? The second issue was more problematic: under 18 Pa.C.S. § 1106, may the summary case rules, under existing law, include a procedure for terminating an order of restitution (or fines) as ''uncollectible''?

   After the Committee reviewed the substantive law governing restitution in the Sentencing Code and the Crimes Code, as discussed more fully below, we readily agreed that the summary case rules should recognize restitution as a sentence. The second question, whether the Legislature intended to authorize issuing authorities to ''terminate'' restitution pursuant to 18 Pa.C.S. § 1106, was far more difficult. Although there is no direct statutory authority for a district justice to terminate a restitution order, 18 Pa.C.S. § 1106(c)(2)(iii) provides that the issuing authority may at any time ''alter or amend any order of restitution'' as long as the reasons for the change are stated. The Committee agreed that, practically speaking, this language could be construed to permit a district justice to ''alter or amend'' an order to reflect the amount already paid by a defendant, a reduction which would effectively terminate the order. Despite this possible interpretation, the Committee concluded that the Rules of Criminal Procedure could not be used to resolve the statute's ambiguities.¹

   Our discussion of these two issues generated a broader consideration of the degree to which the rules should also be amended to more clearly reflect the statutorily required process by which a district justice determines the amount of fine or restitution to impose, because the amount and payment schedule -- relative to a defendant's resources--have a direct impact on the ''collectability'' of those monies.

   Defaults in the payment of fines and restitution occur often in summary cases, and therefore constitute an ongoing problem for all of us concerned with a fair and final resolution of summary cases. On the one hand, fines, costs, and restitution are an important part of the criminal justice system's response to summary criminal violations. They serve to deter and rehabilitate defendants and, in the case of restitution, directly respond to the losses suffered by victims. On the other hand, often a defendant's lack of financial resources, practically speaking, prevents the collection of some or all of the fine or restitution imposed. We are also aware that some district justices, frustrated by the entire process, are too quick to issue warrants for a defendant's arrest for default in payment, a practice which the Committee criticized.

   Finally, as the Committee concluded the development of its proposal, Act 45 of 1994 was signed, permitting issuing authorities to impose sanctions for contempt under certain circumstances, including defaults in payment of fines, costs, and restitution. 42 Pa.C.S. §§ 4137--4139. We agreed that the new contempt sanction was separate and distinct from the Rule 85 default procedures, and accordingly have made that distinction clear in these rule changes.

Statutes Involved

   This section of the Final Report provides an overview of the basic statutory law governing the imposition of fines and restitution in summary cases. Implicit in the statutory law governing the imposition of fines and restitution is the principle that, as a sentence, a fine or restitution can only successfully punish, deter, or rehabilitate a defendant if the defendant can realistically be expected to pay the amount ordered.

   A.  Authority to Impose Sentence of Fines and Restitution: In General

   Both the Sentencing Code, 42 Pa.C.S. § 9701 et seq., and the Crimes Code, 18 Pa.C.S. § 101 et seq., authorize the imposition of sentences by a district justice when the district justice exercises criminal or quasi-criminal jurisdiction pursuant to 42 Pa.C.S. § 1515. See 18 Pa.C.S. § 103; 42 Pa.C.S. § 9702. The imposition of a fine as a sentence is generally governed by the Sentencing Code, 42 Pa.C.S. § 9701 et seq., and the Crimes Code, 18 Pa.C.S. § 1101. Similarly, the imposition of a sentence of restitution is governed by the Crimes Code, 18 Pa.C.S. § 1106, and the Sentencing Code, 42 Pa.C.S. § 9721(c).

   B.  Fines

   1.  When a fine may be imposed. Except for mandatory fines, a district justice may sentence a defendant to pay a fine or to pay a fine in addition to another sentence if (1) the defendant is or will be able to pay the fine; and (2) the fine will not prevent the defendant from making restitution to the victim. See 42 Pa.C.S. § 9726(a), (b), and (c)

   2.  How the amount of a fine and the payment schedule are determined. In determining the amount and method of payment of a fine, the district justice must take into account (1) the financial resources of the defendant, and (2) the nature of the burden that payment of the fine will impose. See 42 Pa.C.S. § 9726(d) and 42 Pa.C.S. § 9730(b)(3).

   3.  What the sentence of a fine must include. When imposing a fine, the district justice must, at the time of sentencing, specify the amount of the fine--up to the amount authorized by law, and must provide when it is to be paid. See 42 Pa.C.S. § 9758(a). The district justice may permit installment payments. See 42 Pa.C.S. § 9758(b) and 42 Pa.C.S. § 9730(b)(3). The sentence may include an alternative sentence in the event of nonpayment. See 42 Pa.C.S. § 9758(c) and 42 Pa.C.S. § 9730(b)(3).

   4.  Defaults in fines. After a fine is imposed, if a defendant defaults in payment, and the district justice determines that the defendant is financially able to pay the fine or costs, the district justice may turn the delinquent account over to a private collection agency or impose imprisonment for nonpayment as provided by law. See 42 Pa.C.S. § 9730(b)(2) and 42 Pa.C.S. § 9728.

   When installment payments have been ordered and a defendant defaults or tells the district justice that a default is imminent, the district justice may schedule a rehearing, and may extend or accelerate the payment schedule, leave it as ordered, or sentence the defendant to a period of community service as is just and practicable. See 42 Pa.C.S. § 9730(b)(3) and 42 Pa.C.S. § 9728.

   C.  Restitution

   1.  When restitution may be imposed. In addition to the other sentencing alternatives, a district justice may sentence a defendant to make restitution to the victim of the criminal conduct for the damage or injury that the victim suffered as a direct result of the defendant's criminal conduct. See 18 Pa.C.S. §§ 1106(a) and 42 Pa.C.S. § 9721(c).

   2.  How the amount of restitution and payment schedule are determined.

   In determining whether to order restitution, the district justice must consider the extent of the injury to the victim, and such other matters as the district justice deems appropriate. See 18 Pa.C.S. § 1106(b)(1). Furthermore, the statute limits the amount of restitution which may be ordered by a district justice. See 18 Pa.C.S. § 1106(d). When a district justice decides to impose restitution, the district justice may order payment in installments. See 18 Pa.C.S. § 1106(b)(2). At any time, the district justice may alter or amend an order of restitution made pursuant to 18 Pa.C.S. § 1106, but must state the reasons and conclusions as a matter of record for any change or amendment to any previous order.

   3.  Defaults in restitution. The statutes do not address defaults in restitution as clearly as they do defaults in fines and costs. Prior to the enactment of the contempt statute, 42 Pa.C.S. § 4137, noncompliance with a restitution order was governed by 18 Pa.C.S. § 1106(f), which provides that when a defendant does not comply with a restitution order, the district justice is required to forward the case to the court of common pleas. To the best of our knowledge, this provision has not been utilized by district justices very often. Rather, most district justices have looked to present Rule 85 default procedures and applied them to restitution matters. We anticipate--despite the availability of the new contempt statute--that district justices will continue to use the Rule 85 procedures when defendants default in payment of fines and costs or restitution, and that the contempt sanction of 42 Pa.C.S. § 4137(a)(3) will only be used as a last resort.

Explanation of Rule Changes

   After reviewing the current rules, the problems raised by correspondents, and the substantive law, the Committee concluded that the following changes were necessary. (1) The rules should clarify the process by which an issuing authority sets fines and restitution in the first instance, to increase the likelihood that the amount imposed will be paid. (2) The rules should provide that, in a summary case, an arrest warrant should not be issued for a default unless the defendant has been given notice that failure to pay or appear may result in the issuance of an arrest warrant. (3) The rules should encourage defendants to seek adjustments in payment schedules before a default occurs.

   A.  Rule 75. Issuance of Arrest Warrant.

   Rule 75 has two distinct provisions. Paragraph (1) governs the circumstances under which an arrest warrant must be issued. Paragraphs (2) and (3) govern those circumstances under which a district justice has the discretion to issue an arrest warrant, including cases in which a defendant has failed to pay monies due after a conviction or plea.

   The rule has been amended in two ways. First, paragraph (3)(b) makes it clear that an arrest warrant may be issued when a defendant defaults on the payment of restitution, as well as fines or costs. See Rule 75(3)(b).

   Second, new paragraph (4) makes it clear that before an arrest warrant may issue pursuant to paragraph (3), the defendant must be given notice, in person or by first class mail, to pay or appear. To avoid generating litigation on the issue of notice, the new requirement also makes it clear that it is the sending of the notice that completes it. Paragraph (4) was added to discourage a practice which we learned about during the development of these changes. Some district justices, frustrated by their inability to collect money owed, and hence their inability to close out cases, are far too quick to issue a warrant to arrest a defendant for defaulting in payment. The Committee felt that, before a defendant is arrested for failure to pay, he or she should at least be notified that failure to pay or appear may result in an arrest warrant's being issued.

   The Rule 75 Comment has been expanded to include a reference to the separate procedures in new Chapter 30 (Procedures Implementing 42 Pa.C.S. §§ 4137, 4138, and 4139: Criminal Contempt Powers of District Justices, Judges of the Pittsburgh Magistrates Court, and Judges of the Traffic Court of Philadelphia)² for arrest warrants when contempt proceedings are involved.

   B.  Rule 76. Procedure when Defendant Arrested With Warrant.

   The Comment to Rule 76 has been revised to reference the changes to Rule 75 discussed above, and the separate procedures in new Chapter 30 for issuance of arrest warrants when contempt proceedings are involved. A few stylistic changes have been made to the text of the rule.

   C.  Rule 83. Trial in Summary Cases.

   1.  Changes to text of rule. The amendments to Rule 83 affect paragraph (E), which covers procedures at the time of sentencing. New paragraph (E)(1) addresses sentences which include fines, costs, or restitution. We have moved to this paragraph a provision in present Rule 85(C) which permits an issuing authority to order installment payments if a defendant cannot pay the required amount in a single remittance. In addition, paragraph (E)(1) requires the issuing authority to state the date or dates on which payments are due.

   Paragraph (E)(2) covers the appeal-related information which must be communicated to the defendant. The issuing authority must advise the defendant of the right to appeal within thirty days, and of the requirement that the defendant appear for the trial de novo or the appeal may be dismissed. New language requires the issuing authority to advise the defendant that, if an appeal is filed, the execution of the sentence will be stayed, and the issuing authority may set bail or collateral. See Rule 83(E)(2)(a).

   Under paragraph (E)(3), if a sentence of imprisonment has been imposed, the issuing authority is required to direct the defendant to appear for the execution of sentence on a date certain unless the defendant files an appeal within the thirty-day appeal period. This paragraph was moved from Rule 86(B). The Comment notes that the specified date for the execution of sentence should be the earliest date possible after the thirty-day appeal period expires.

   New paragraph (E)(4) requires the issuing authority to issue and sign a written order imposing sentence. The order must include the information in paragraphs (E)(1) through (E)(3), described above, and a copy of the order must be given to the defendant.

   2.  Comment revisions. The Comment to Rule 83 has been revised in several ways. The issuing authority is reminded that under paragraph (E)(2)(a), he or she should explain to the defendant that if an appeal is filed, any sentence -- fines, restitution, or imprisonment -- will be stayed for the appeal period.

   The Comment also references the default procedures in new Rule 85, and includes the common sense recommendation that at the time of sentencing, the defendant should be encouraged to seek an adjustment of a payment schedule before a default occurs.

   Finally, the Rule 83 Comment contains an extensive discussion of the statutory bases for determining the amount of fine or restitution to impose. The discussion includes a citation to Commonwealth v. McLaughlin, 574 A. 2d. 610 (Pa. Super. 1990), appeal denied 590 A. 2d. 756, cert. denied 502 U.S. 916, which discusses the factors which must be considered when determining the amount of restitution to impose and the method of payment. Id. at 617. The Comment also underscores the importance of the statutory requirement that before imposing both a fine and restitution, the issuing authority must determine that the fine will not prevent the defendant from making restitution to the victim, citing 42 Pa.C.S. § 9726(c)(2) and 42 Pa.C.S. § 9730(b)(3).

   D.  Rule 84. Trial in Defendant's Absence.

   The amendments to Rule 84 align the notice and warrant procedures in paragraph (D) with the changes to Rule 75. Paragraph (D) requires that when a defendant has been found guilty in absentia and either the amount of collateral deposited does not satisfy the fine and costs imposed, or restitution has been imposed, the notice of conviction and sentence must also state that failure within ten days to pay or to appear for an ability to pay hearing, may result in the issuance of an arrest warrant. Paragraph (F) makes the defendant's failure to respond to this notice a precondition to the issuance of an arrest warrant.

   E.  Rescission of Present Rule 85. Procedures Regarding Default in Payment of Fine and Costs after Conviction.

   Because of the number of clarifying changes to the default procedures in present Rule 85, the Committee agreed that it would be less confusing to the reader if the changes were shown in a new rule.

   F.  New Rule 85. Default Procedures: Restitution, Fines, and Costs.

   New Rule 85 covers the procedures, both mandatory and discretionary, that the issuing authority must follow when a defendant notifies the issuing authority that a default is imminent, or when a default occurs.

   1.  Text of Rule. Paragraph (A), derived in part from former Rule 85(d), provides that when a defendant notifies the issuing authority that a default on a single remittance or installment payment is imminent, the issuing authority may schedule an ability to pay hearing. If a new payment schedule is ordered, paragraph (A) requires that the order state the date on which each payment is due, and that the defendant be given a copy of the order. These latter requirements, similar to the amendments to Rule 83(E), are intended to insure that the defendant has specific instructions, in writing, for complying with the new installment schedule.

   Paragraph (B) contains new default procedures, and mirrors the notice requirement in Rule 75(4), discussed above. If a defendant defaults on the payment of fines, costs, or restitution, this paragraph requires the issuing authority to notify the defendant, in person or by first class mail, that a warrant for the defendant's arrest may be issued unless, within ten days of the date on the default notice, the defendant pays the amount due or appears before the issuing authority to show cause why he or she should not be imprisoned for nonpayment as provided by law. This provision is intended to give the defendant a short grace period to act on the default before the issuing authority decides whether to issue an arrest warrant.

   If a defendant appears in response to this notice, paragraph (C) requires the issuing authority to conduct an ability to pay hearing. Under paragraph (C)(1), if the issuing authority determines that the defendant is able to pay, the issuing authority may then impose any sanction permitted by law. Under paragraph (C)(2), if the issuing authority determines that the defendant cannot pay as ordered, the issuing authority may change the payment schedule, or alter or amend the order as permitted by law. See 18 Pa.C.S. § 1106(c)(3) (an issuing authority may alter or amend an order of restitution at any time), and 42 Pa.C.S. § 9730(b)(3) (as to fines, an issuing authority may extend or accelerate a payment schedule, leave it unaltered, or sentence the defendant to a period of community service, as the issuing authority finds to be just and practicable under the circumstances).

   Under paragraph (C)(3), at the conclusion of the hearing, the issuing authority must do the following:

   1.  state the date on which each installment is due, if a new or first schedule of installments is ordered;

   2.  advise the defendant of the right to appeal within thirty days and that, if an appeal is filed, the execution of the order will be stayed and the issuing authority may set bail or collateral;

   3.  advise the defendant that, if the defendant appeals, he or she must appear for the de novo default hearing in the court of common pleas or the appeal may be dismissed.

   Under paragraph (C)(3)(c), if the issuing authority imposes imprisonment, the defendant must be directed that unless the defendant files a timely appeal, the defendant must appear for the execution of the order of imprisonment on a specific date.

   Finally, the issuing authority is required to issue a written and signed order imposing sentence. The order must include all the information outlined in paragraph (C), and the defendant must be given a copy of the order. See Rule 85(C)(3)(d).

   Paragraph (D) of new Rule 85 provides that appeals of Rule 85 determinations must be filed within thirty days of the order and are governed by Rule 86 (Appeals).

   2.  Comment. The Rule 85 Comment underscores the key provisions of the rule by highlighting the various stages of default proceedings, and by providing the statutory authority for the alternatives available to the issuing authority when a default occurs. The Comment notes, for example, that when the issuing authority determines after a default hearing that a defendant is able to pay as ordered, the issuing authority may not only impose any ''sanction'' provided by law, but also may turn the delinquent fine account over to a private collection agency, as provided in 42 Pa.C.S. § 9730(b)(2). Similarly, the Comment provides the issuing authority with the various actions he or she may take when a defendant is unable to meet a payment schedule on fines, as provided in 42 Pa.C.S. § 9730(b)(3), or when a defendant is unable to pay restitution, as provided in 18 Pa.C.S. § 1106(c)(2) and (3).

   The Comment also contains a recommendation that, pursuant to paragraph (A), defendants should be encouraged to seek an adjustment in a payment schedule before they are in default.

   Finally, the last paragraph of the Comment addresses the new contempt provisions in 42 Pa.C.S. §§ 4137-4139. The Comment makes it clear that Rule 85 default procedures are not intended to preclude an issuing authority from imposing punishment for criminal contempt, and references the separate Rules of Criminal Procedure governing contempt adjudications in Chapter 30.

   G.  Rule 86. Appeals.

   The amendments to Rule 86 contain two significant provisions. First, restitution has been added to the possible sentences subject to an appeal under the rule. Second, new language has been added to address an open question under the present rule: what happens to a sentence of fines and costs, or restitution, when an appeal is filed?

   Formerly, Rule 86 provided that when a sentence of imprisonment was imposed, the execution of that sentence was stayed until the appeal period expired, but made no reference to the disposition of sentences of fines or restitution during the appeal period. Although the Committee recognized that, in practical terms, monies owed should be collected as soon as possible, we debated at length the fairness of treating sentences involving fines and restitution differently from sentences of imprisonment during the appeal period. We were concerned to learn, for example, that in some judicial districts, defendants are precluded from filing an appeal unless fines and costs are paid, and in others, defendants are imprisoned for default in the payment of fines and costs during the thirty-day appeal period. Ultimately, we agreed that the Rule 86 procedures should be amended to address these issues.

   New paragraph (B), which is titled ''Stays,'' contains three sections. Paragraph (B)(1) carries over the present Rule 86(b) requirement that, when a sentence of imprisonment has been imposed, execution of that sentence is stayed for the entire appeal period, regardless of whether the defendant files an appeal. Under paragraph (B)(2), when a notice of appeal is filed, the execution of sentence is stayed. The Comment to this new provision explains that the stay applies to all sentences, including sentences of imprisonment, fines and costs, restitution, and imprisonment ordered after a Rule 85 default hearing. Paragraph (B)(3) contains the provision in former paragraph (b) that, when the execution of sentence is stayed, the issuing authority may set bail or collateral.

   In addition, paragraph (C) states expressly that during the thirty-day appeal period, failure to pay fines, costs, or restitution shall not be grounds for imprisonment or grounds to preclude the taking of an appeal.

   Finally, a new paragraph (I) has been added to make it clear that the appeal procedures in Rule 86 do not apply to appeals from contempt adjudications under the new contempt statutes. See 42 Pa.C.S. §§ 4137--4139.

[Pa.B. Doc. No. 97-1658. Filed for public inspection October 17, 1997, 9:00 a.m.]

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¹ Article 5, § 10(c) of the Pennsylvania Constitution provides, ''The Supreme Court shall have the power to prescribe general rules governing practice, procedure and the conduct of all court . . . if such rules are consistent with this Constitution and neither abridge, enlarge no modify the substantive rights of any litigant, nor affect the right of the General Assembly to determine the jurisdiction of any court or justice of the peace, nor suspend nor alter any statute of limitation or repose.'' (emphasis added)

² See 27 Pa.B. (October 18, 1997) for the Final Report explaining new Chapter 30.