156 Order adopting amendments to rules 462 and 721, and approving the revision of the comment to rule 720; no. 353 criminal procedural rules; doc. no. 2

Title 234--RULES OF CRIMINAL PROCEDURE

[234 PA. CODE CHS. 4 AND 7]

Order Adopting Amendments to Rules 462 and 721, and Approving the Revision of the Comment to Rule 720; No. 353 Criminal Procedural Rules; Doc. No. 2

[37 Pa.B. 523]
[Saturday, February 3, 2007]

Order

Per Curiam:

   Now, this 18th day of January, 2007, upon the recommendation of the Criminal Procedural Rules Committee; this proposal having been submitted without publication pursuant to Pa.R.J.A. 103(a)(3) in the interests of justice, and 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)  Rules of Criminal Procedure 462 and 721 are amended, and

   (2)  the revision of the Comment to Rule of Criminal Procedure 720 is approved,

all in the following form.

   This Order shall be processed in accordance with Pa.R.J.A. 103(b), and shall be effective August 1, 2007.

Annex A

Title 234.  RULES OF CRIMINAL PROCEDURE

CHAPTER 4.  PROCEDURES IN SUMMARY CASES

PART F.  Procedures in Summary Cases for Appealing to Court of Common Pleas for Trial De Novo

Rule 462.  Trial De Novo.

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   (G)  At the time of sentencing, the trial judge shall:

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   (2)  advise the defendant of the right to appeal to the Superior Court within 30 days of the imposition of sentence, and that, if an appeal is filed, the execution of sentence will be stayed and the trial judge may set bail;

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Comment

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   The provisions of paragraph (C) that permit the court to continue the case if there is good cause for the officer's unavailability were added in response to Commonwealth v. Hightower, 438 Pa. Super. 400, 652 A.2d 873 ([Pa. Super.] 1995).

   Paragraph (D) makes it clear that the trial judge may dismiss a summary case appeal when the judge determines that the defendant is absent without cause from the trial de novo. If the appeal is dismissed, the trial judge should enter judgment and order execution of any sentence imposed by the issuing authority.

   Pursuant to paragraph (G), if the defendant is convicted, the trial judge must impose sentence, and advise the defendant of the payment schedule, if any, and the defendant's appeal rights. See Rule 704(A)(3) and Rule 720(D). No defendant may be sentenced to imprisonment or probation if the right to counsel was not afforded at trial. See Alabama v. Shelton, 535 U.S. 654 (2002), Scott v. Illinois, 440 U.S. 367 (1979), and Argersinger v. Hamlin, 407 U.S. 25 (1972).

   Once sentence is imposed, paragraph (H) makes it clear that the case is to remain in the court of common pleas for execution of the sentence and collection of any costs, and the case may not be returned to the [district justice] magisterial district judge. The execution of sentence includes the collection of any fines and restitution.

   Official Note:  Former Rule 86 adopted July 12, 1985, effective January 1, 1986; revised September 23, 1985, effective January 1, 1986; the January 1, 1986 effective 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 27, 1995, effective July 1, 1995; amended October 1, 1997, effective October 1, 1998; amended May 14, 1999, effective July 1, 1999; rescinded March 1, 2000, effective April 1, 2001, and paragraph (G) replaced by Rule 462. New Rule 462 adopted March 1, 2000, effective April 1, 2001; amended February 28, 2003, effective July 1, 2003; Comment revised March 26, 2004, effective July 1, 2004; amended January 18, 2007, effective August 1, 2007.

Committee Explanatory Reports:

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NEW RULE 462:

   Final Report explaining the reorganization and renumbering of the rules and the provisions of Rule 462 published at 30 Pa.B. [1477] 1478 (March 18, 2000).

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   Final Report explaining the January 18, 2007 amendment to paragraph (G)(2) published with the Court's Order at 37 Pa.B. 526 (February 3, 2007).

CHAPTER 7.  POST-TRIAL PROCEDURES IN COURT CASES

PART B.  Post-Sentence Procedures

Rule 720.  Post-Sentencing Procedures; Appeal.

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Comment

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TIMING

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   When a defendant files a timely post-sentence motion, the 30-day period for the defendant's direct appeal on all matters in that case--including all issues related to any informations and any charges consolidated against the defendant for trial--is triggered by the trial judge's decision on the post-sentence motion, the denial of the motion by operation of law, or the withdrawal of the post-sentence motion. The appeal period runs from the entry of the order. As to the date of entry of orders, see Pa.R.A.P. 108. See also Commonwealth v. Miller, 715 A.2d 1203 (Pa. Super. [Ct.] 1998), concerning the time for appeal following the withdrawal of a post-sentence motion. No direct appeal may be taken by a defendant while his or her post-sentence motion is pending. See paragraph (A)(2).

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CONTENTS OF ORDER

   Paragraph (B)(4) protects the defendant's right to appeal by requiring that the judge's order denying the motion, the clerk of courts' order denying the motion by operation of law, or the order entered memorializing a defendant's withdrawal of a post-sentence motion, contain written notice of the defendant's appeal rights. This requirement ensures adequate notice to the defendant, which is important given the potential time lapse between the notice provided at sentencing and the resolution of the post-sentence motion. See Rule 704(C)(3). See also Commonwealth v. Miller, 715 A.2d 1203 (Pa. Super. [Ct.] 1998), concerning the contents of the order memorializing the withdrawal of a post-sentence motion.

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MISCELLANEOUS

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   Unlike ineffective counsel claims, which are the subject of Commonwealth v. Grant, 572 Pa. 48, 813 A.2d 726 (2002), paragraph (C) requires that any claim of after-discovered evidence must be raised promptly after its discovery. Accordingly, after-discovered evidence discovered during the post-sentence stage must be raised promptly with the trial judge at the post-sentence stage; after-discovered evidence discovered during the direct appeal process must be raised promptly during the direct appeal process, and should include a request for a remand to the trial judge; and after-discovered evidence discovered after completion of the direct appeal process should be raised in the context of the PCRA. See 42 Pa.C.S. § 9545(b)(1)(ii) and (b)(2) (PCRA petition raising after-discovered evidence must be filed within 60 days of date claim could have been presented). Commonwealth v. Kohan, 825 A.2d 702 (Pa. Super. [Ct.] 2003), is superseded by the 2005 amendments to paragraphs (A) and (C) of the rule.

   Although there are no post-sentence motions in summary appeals following the trial de novo pursuant to paragraph (D), nothing in this rule is intended to preclude the trial judge from acting on a defendant's petition for reconsideration. See the Judicial Code, 42 Pa.C.S. § 5505. See also Commonwealth v. Dougherty, 451 Pa. Super. 248, 679 A.2d 779, 784 (1996). The time for appeal in summary cases following a trial de novo runs from the imposition of sentence.

   Official Note:  Previous Rule 1410, adopted May 22, 1978, effective as to cases in which sentence is imposed on or after July 1, 1978; rescinded March 22, 1993, effective as to cases in which the determination of guilt occurs on or after January 1, 1994, and replaced by present Rule 1410. Present Rule 1410 adopted March 22, 1993 and amended December 17, 1993, effective as to cases in which the determination of guilt occurs on or after January 1, 1994; amended September 13, 1995, effective January 1, 1996. The January 1, 1996 effective date extended to April 1, 1996; the April 1, 1996 effective date extended to July 1, 1996. Comment revised September 26, 1996, effective January 1, 1997; amended August 22, 1997, effective January 1, 1998; Comment revised October 15, 1997, effective January 1, 1998; amended July 9, 1999, effective January 1, 2000; renumbered Rule 720 and amended March 1, 2000, effective April 1, 2001; amended August 21, 2003, effective January 1, 2004; amended March 3, 2004, effective July 1, 2004; Comment revised June 4, 2004, effective November 1, 2004; amended June 8, 2005, effective August 1, 2005; Comment revised January 18, 2007, effective August 1, 2007.

Committee Explanatory Reports:

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   Final Report explaining the January 18, 2007 revision of the last paragraph of the Comment clarifying the time for appeal following a trial de novo published with the Court's Order at 37 Pa.B. 526 (February 3, 2007).

Rule 721.  Procedures for Commonwealth Challenges to Sentence; Sentencing Appeals.

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   (B)  Timing

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   (2)  Appeal of Sentence.

   (a)  Appeal Directly from Order Imposing Sentence.

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   (ii)  If the defendant has not filed a post-sentence motion, the Commonwealth's notice of appeal shall be filed within 30 days of the [entry of the order imposing] imposition of sentence.

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Comment

   Rule 721 clarifies the procedures for Commonwealth challenges to sentences in light of the post-sentence procedures adopted in 1993. See [Pa.R.Crim.P.] Rule 720. This rule does not address any other type of Commonwealth challenge or Commonwealth appeals generally.

   Historically, the Commonwealth has been required to raise a discretionary sentencing issue at the sentencing hearing or in a post-trial motion to modify sentence in order to preserve the issue for appellate review. See Commonwealth v. Eyster, 401 Pa. Super. 477, 585 A.2d 1027 ([Pa. Super.] 1991) (en banc), appeal denied 529 Pa. 646, 602 A.2d 857 ([Pa.] 1992). Challenges to the legality of a sentence, however, are not waived if the Commonwealth fails to timely file a motion for modification. See Commonwealth v. Smith, 529 Pa. 380, 598 A.2d 268 ([Pa.] 1991).

   Under Rule 721, the Commonwealth's motion for modification of sentence is optional, as long as any discretionary sentencing issue is properly preserved at the time sentence was imposed. Before forgoing trial court review and proceeding with a direct appeal, the attorney for the Commonwealth must therefore be sure that the record created at the sentencing proceeding is adequate for appellate review of the issue, or the issue may be waived. See Commonwealth v. Jarvis, 444 Pa. Super. 295, 663 A.2d 790 ([Pa. Super.] 1995), at n. 1.

   As a general rule, a motion for modification of sentence 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, 520 Pa. 385, 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, 437 Pa. 288, 263 A.2d 339 ([Pa.] 1970) (inherent power of the court to correct obvious and patent mistakes).

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No Commonwealth Motion to Modify Sentence Filed

   Paragraph (B)(2)(a) covers the time for filing a notice of appeal when the Commonwealth has elected not to file a motion to modify sentence with the trial judge. The time for filing the Commonwealth's notice of appeal under this paragraph depends on whether the defendant has filed a post-sentence motion. When the defendant files a post-sentence motion, paragraph (B)(2)(a)(i) provides that the entry of the order disposing of the defendant's post-sentence motion triggers the 30-day period during which the Commonwealth's notice of appeal must be filed. If no post-sentence motion is filed, it is the [entry of the order imposing] imposition of sentence that triggers the Commonwealth's 30-day appeal period. See Rule 721(B)(2)(a)(ii).

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   Official Note:  Rule 1411 adopted August 22, 1997, effective January 1, 1998; renumbered Rule 721 and amended March 1, 2000, effective April 1, 2001; Comment revised March 3, 2004, effective July 1, 2004; amended January 18, 2007, effective August 1, 2007.

Committee Explanatory Reports:

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   Final Report explaining the March 1, 2000 reorganization and renumbering of the rules published with the Court's Order at 30 Pa.B. [1477] 1478 (March 18, 2000).

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   Final Report explaining the January 18, 2007 amendments clarifying the time for appeal in paragraph (B)(2)(a)(ii) published with the Court's Order at 37 Pa.B. 526 (February 3, 2007).

FINAL REPORT¹

Amendments to Pa.Rs.Crim.P. 462 and 721, and revision of the Comment to Pa.R.Crim. P. 720

Time for Appeal When No Post-Sentence Motion Filed

   On January 18, 2007, effective August 1, 2007, upon the recommendation of the Criminal Procedural Rules Committee, the Court amended Rules of Criminal Procedure 462 (Trial De Novo) and 721 (Procedures For Commonwealth Challenges To Sentence; Sentencing Appeals), and approved the revision of the Comment to Rule 720 (Post-Sentence Procedures; Appeals). The changes further emphasize and clarify that the time for appeal when no post-sentence motion is filed in a criminal proceeding is within 30 days of the date of the imposition of sentence.

INTRODUCTION

   The Committee has continued to monitor Rule 720 (Post-Sentence Procedures; Appeals) since its adoption in 1993. As part of our review, the Committee discussed at some length the Superior Court's decision in Commonwealth v. Green, 862 A.2d 613 (Pa. Super. 2004) (en banc), allocatur denied, 584 Pa. 692, 882 A.2d 477, as well as several post-Green communications we received that questioned the imposition of sentence provision in Rule 720(A).

   In Green, the Superior Court addresses the timeliness of filing post-sentence motions and appeals. The majority upheld, inter alia, the Rule 720(A) requirements that the time for filing post-sentence motions and the time for filing an appeal when no post-sentence motions are filed runs from the imposition of sentence, i.e. the date the sentence is pronounced in open court, not the date the sentence is entered on the docket. Judge Joyce, writing for the majority, points out that this construction of Rule 720(A) has been indirectly acknowledged in prior cases:

Although the specific issue of whether the date of imposition of sentence and not the date of docketing of the sentence should be utilized in computing the ten-day period for filing a post-sentence motion has not been addressed by our Courts, in computing this ten-day period, our Courts have often utilized the date of imposition of sentence as the reference point. These instances constitute implicit recognition that the date of imposition of the sentence should be used in the computation.²

Id. at 616.

   In a concurring and dissenting opinion, Judge Ford Elliott disagrees. She opines the Rule 720(A) provision that imposition of sentence is the trigger date for filing is inconsistent with the provisions of Rule of Appellate Procedure 903(A).³ She also observes that Rule 721(B)(2)(a)(ii) uses the date the sentence is entered on the docket for the trigger thereby providing more time to the Commonwealth for filing an appeal when no post-sentence motion is filed than is afforded a defendant under Rule 720(A)(3), which she finds incongruous ''given the parallel provisions of 720 and 721.'' Id. at 624.

   The members discussed Commonwealth v. Green in general and Judge Ford Elliott's concurring and dissenting opinion in particular, and reviewed the Committee's Rule 720 history. The members agreed that Criminal Rule 720 and Appellate Rule 903 could be read as being in conflict.⁴ However, they noted the intent of Rule 720 as adopted was that setting the time for appeal to run from the date of the imposition of sentence in the Rule 720 context ensures that the defendant and defendant's attorney, both of whom are present at the time sentence is imposed, receive notice of the time for filing post sentence motions and when that time begins to run. See paragraph (C)(3) of Rule 704 (Procedure at Time of Sentencing). In addition, the members pointed out that when the sentence is imposed, the sentence is recorded by the stenographer and is entered on the transcript of the case maintained in the court room.⁵

   Given the salutary benefits of such a procedure in criminal cases, the Committee concluded that no changes to Rule 720 in this regard are necessary. However, in view of other inquiries the Committee received concerning the time for appeal in summary cases, we concluded some additional clarification that the time for appeals in summary cases runs from the imposition of sentence should be added to the Rule 720 Comment and to paragraph (G)(2) and the Comment to Rule 462 (Trial De Novo) would aid the bench and bar.

   Finally, the Committee agreed with Judge Ford Elliott that there is no reason for Rule 720(A)(3) and Rule 721(B)(2)(a)(ii) to provide different triggering times for the filing of appeals when no post-sentence motion is filed, and agreed the imposition of sentence trigger should be applicable in both instances.

II.  DISCUSSION

A.  Rules 720 and 462.

   Pursuant to Rule 720(D) (Summary Case Appeals), there are no post-sentence motions in summary case appeals following a trial de novo in the court of common pleas, and the imposition of sentence immediately following the determination of guilty at the conclusion of the trial de novo constitutes a final order for purposes of appeal. Rule 462 provides the procedures for the trial de novo, and requires the trial judge to announce the verdict and sentence in open court immediately upon the conclusion of the trial, paragraph (F), and at the time of sentence, to advise the defendant of the right to appeal ''within 30 days,'' paragraph (G)(2). So there is no confusion about the triggering event for the time for appeal in summary cases, Rule 462(G)(2) has been amended by the addition of ''of the imposition of sentence'' after ''within 30 days''. In addition, a cross-reference to Rule 720 has been added at the end of the first sentence of the sixth paragraph of the Rule 462 Comment. A correlative revision to the last paragraph of the Rule 720 Comment also has been made by adding ''the time for appeal in summary cases following a trial de novo runs from the imposition of sentence.''⁶

Rule 721

   After reviewing the Committee history of Rule 721,⁷ the Committee agreed that the time for appeal when no post-sentence motion is filed should be the same for both the defendant and the Commonwealth. The Committee reaffirmed that the time for appeal for both the defendant and the Commonwealth when no post-sentence motions are filed should run from the date of the imposition of sentence. Accordingly, Rule 721(B)(2)(b)(ii) has been amended by replacing ''entry of the order imposing sentence'' with ''imposition of sentence.''

[Pa.B. Doc. No. 07-156. Filed for public inspection February 2, 2007, 9:00 a.m.]

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