2085 Order amending Rule 1409 and approving comment revisions to Rules 1405 and 1410: Sentencing; no. 213; doc. no. 2

Title 234--RULES OF CRIMINAL PROCEDURE

PART I.  GENERAL

[234 PA. CODE CH. 1400]

Order Amending Rule 1409 and Approving Comment Revisions to Rules 1405 and 1410: Sentencing; No. 213; Doc. No. 2

[26 Pa.B. 5948]

Amendatory Order

Per Curiam:

   Now, this 22nd day of November, 1996, upon the recommendation of the Criminal Procedural Rules Committee,

   It Is Ordered, pursuant to Article V, Section 10 of the Constitution of Pennsylvania, that the Comment to Rule of Criminal Procedure 1409, as it appears in Order No. 213 (September 26, 1996) (26 Pa.B. 4898 (October 12, 1996)), is hereby corrected to read as follows:

Annex A

TITLE 234.  RULES OF CRIMINAL PROCEDURE

PART I.  GENERAL

CHAPTER 1400.  SENTENCING

Rule 1409. Violation of Probation, Intermediate Punishment, or Parole: Hearing and Disposition.

*      *      *      *      *

   Comment: This rule addresses Gagnon II revocation hearings only, and not the procedures for determining probable cause (Gagnon I). See Gagnon v. Scarpelli, 411 U.S. 778 (1973).

   Paragraph (A) requires that the Gagnon II proceeding be initiated by a written request for revocation filed with the clerk of courts.

   The judge may not revoke probation or parole on arrest alone, but only upon a finding of a violation thereof after a hearing, as provided in this rule. However, the judge need not wait for disposition of new criminal charges to hold such hearing. See Commonwealth v. Kates, [452 Pa. 102,] 305 A.2d 701 (Pa. 1973).

   This rule does not govern parole cases under the jurisdiction of the Pennsylvania Board of Probation and Parole, but applies only to the defendants who can be paroled by a judge. See [Act of June 11, 1911, P. L. 1059, § 1, as amended by the Acts of May 5, 1921, P. L. 379, § 1, and May 11, 1923, P. L. 204, § 1,] 61 P. S. § 314. See also Georgevich v. Court of Common Pleas of Allegheny County, [510 Pa. 285,] 507 A.2d 812 (Pa. 1986).

   This rule was amended in 1996 to include sentences of intermediate punishment. See 42 Pa.C.S. §§ 9763 and 9773.

   Rules 1405 and 1410 do not apply to revocation cases.

   Issues properly preserved at the sentencing proceeding need not, but may, be raised again in a motion to modify sentence in order to preserve them for appeal. In deciding whether to move to modify sentence, counsel must carefully consider whether the record created at the sentencing proceeding is adequate for appellate review of the issues, or the issues may be waived. See Commonwealth v. Jarvis, 663 A.2d 790, 791-2, n. 1 (Pa. Super. 1995). As a general rule, the motion to modify sentence under paragraph (D) gives the sentencing judge the earliest opportunity to modify the sentence. This procedure does not affect the court's inherent powers to correct an illegal sentence or obvious and patent mistakes in its orders at any time before appeal or upon remand by the appellate court. See, e.g., Commonwealth v. Jones, 554 A.2d 50 (Pa. 1989) (sentencing court can, sua sponte, correct an illegal sentence even after the defendant has begun serving the original sentence) and Commonwealth v. Cole, 263 A.2d 339 (Pa. 1970) (inherent power of the court to correct obvious and patent mistakes).

   Once a sentence has been modified or reimposed pursuant to a motion to modify sentence under paragraph (D), a party wishing to challenge the decision on the motion does not have to file an additional motion to modify sentence in order to preserve an issue for appeal, as long as the issue was properly preserved at the time sentence was modified or reimposed.

   This Amendatory Order shall be processed in accordance with Pa.R.J.A. 103(b), and shall be effective January 1, 1997.

[Pa.B. Doc. No. 96-2085. Filed for public inspection December 13, 1996, 9:00 a.m.]