554 Order amending Rule 708 and revising the comments to Rules 701, 704 and 707 of the Rules of Criminal Procedure; no. 427 Criminal Procedural Rules doc.
Title 234—RULES OF CRIMINAL PROCEDURE [ 234 PA. CODE CH. 7 ] Order Amending Rule 708 and Revising the Comments to Rules 701, 704 and 707 of the Rules of Criminal Procedure; No. 427 Criminal Procedural Rules Doc. [43 Pa.B. 1702]
[Saturday, March 30, 2013]Order Per Curiam
And Now, this 15th day of March, 2013, upon the recommendation of the Criminal Procedural Rules Committee; the proposal having been published before adoption at 41 Pa.B. 1011 (February 26, 2011), and in the Atlantic Reporter (Second Series Advance Sheets, Vol. 967), 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 the amendment to Pennsylvania Rule of Criminal Procedure 708 is adopted and the revisions to the Comments to Pennsylvania Rules of Criminal Procedure 701, 704, and 707 are approved in the following form.
This Order shall be processed in accordance with Pa.R.J.A. No. 103(b), and shall be effective May 1, 2013.
Annex A TITLE 234. RULES OF CRIMINAL PROCEDURE CHAPTER 7. POST-TRIAL PROCEDURES IN COURT CASES PART A. Sentencing Procedures Rule 701. Pleas of Guilty to Multiple Offenses.
(A) Before the imposition of sentence, the defendant may plead guilty to other offenses that the defendant committed within the jurisdiction of the sentencing court.
(B) When such pleas are accepted, the court shall sentence the defendant for all the offenses.
Comment The objective of this rule is to enable [consolidation of] the court to sentence the defendant on all outstanding charges within the jurisdiction of the sentencing court [for sentencing] at one time.
This rule applies when a defendant is to be sentenced following a finding that the defendant violated probation or intermediate punishment, or when a defendant is to be recommitted following a finding that the defendant violated parole. See Rule 708(D) for the sentencing procedures in probation, intermediate punishment, or parole violation cases.
When a defendant is permitted to plead guilty to multiple offenses as provided in paragraph (A), if any of the other offenses involves a victim, the sentencing proceeding must be delayed to afford the Commonwealth adequate time to contact the victim(s), and to give the victim(s) an opportunity to offer prior comment on the sentencing or to submit a written and oral victim impact statement. See the Crime Victims Act, 18 P. S. § 11.201(5).
Official Note: Rule 1402 adopted July 23, 1973, effective 90 days hence; renumbered Rule 701 and amended March 1, 2000, effective April 1, 2001; Comment revised March 15, 2013, effective May 1, 2013.
Committee Explanatory Reports:
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).
Final Report explaining the March 15, 2013 revision of the Comment concerning probation violation cases and the Crime Victims Act published with the Court's Order at 43 Pa.B. 1705 (March 30, 2013).
Rule 704. Procedure at Time of Sentencing.
* * * * * Comment * * * * * Failure to sentence within the time specified in paragraph (A) may result in the discharge of the defendant. See Commonwealth v. Anders, 555 Pa. 467, 725 A.2d 170 ([Pa.] 1999) (discharge is appropriate remedy for violation of Rule 1405 time limits, but only if the defendant can demonstrate that the delay in sentencing was prejudicial to the defendant).
ORAL MOTION FOR EXTRAORDINARY RELIEF
* * * * * SENTENCING PROCEDURES
Paragraph (C)(1) retains the former requirement that the judge afford the defendant an opportunity to make a statement and counsel the opportunity to present information and argument relative to sentencing. The defendant's right to allocution at sentencing is well established, and the trial judge must inform the defendant of that right. See Commonwealth v. Thomas, 520 Pa. 206, 553 A.2d 918 ([Pa.] 1989).
The duty of the judge to explain to the defendant the rights set forth in paragraph (C)(3) is discussed in Commonwealth v. Wilson, 430 Pa. 1, 5, 241 A.2d 760, 763 ([Pa.] 1968), and Commonwealth v. Stewart, 430 Pa. 7, 8, 241 A.2d 764, 765 ([Pa.] 1968).
The judge should explain to the defendant, as clearly as possible, the timing requirements for making and deciding a post-sentence motion under Rule 720. The judge should also explain that the defendant may choose whether to file a post-sentence motion and appeal after the decision on the motion, or to pursue an appeal without first filing a post-sentence motion.
Paragraph (C)(3) requires the judge to ensure the defendant is advised of his or her rights concerning post-sentence motions and appeal, and the right to proceed with counsel. See, e.g., Commonwealth v. Librizzi, 810 A.2d 692 (Pa. Super. 2002).
The rule permits the use of a written colloquy that is read, completed, signed by the defendant, and made part of the record of the sentencing proceeding. This written colloquy must be supplemented by an on-the-record oral examination to determine that the defendant has been advised of the applicable rights enumerated in paragraph (C)(3) and that the defendant has signed the form.
Other, additional procedures are required by statute. See, e.g., 42 Pa.C.S. [§ 9795 (b), which] § 9756(b)(3) that imposes requirements on the judge when a defendant may be eligible to participate in a re-entry plan and 42 Pa.C.S. § 9756(b.1) that imposes requirements on the judge when a defendant may be eligible for a recidivism risk reduction incentive (RRRI) minimum sentence; 42 Pa.C.S. § 9795.3 that requires the judge to inform certain offenders of the duty to register; and 42 Pa.C.S. § 9813 that imposes requirements on the judge when a defendant may be eligible for work release.
After sentencing, following a conviction in a trial de novo in a summary case, the judge should advise the defendant of the right to appeal and the time limits within which to exercise that right, the right to proceed in forma pauperis and with appointed counsel to the extent provided in Rule 122(A), and of the qualified right to bail under Rule 521(B). See paragraphs (C)(3)(a), (b), and (e). See also Rule 720(D) (no post-sentence motion after a trial de novo).
After sentencing, the judge should inquire whether the defendant intends to file a post-sentence motion or to appeal, and if so, should determine the defendant's bail status pursuant to paragraph (C)(3)(e) and Rule 521. It is recommended, when a state sentence has been imposed, that the judge permit a defendant who cannot make bail to remain incarcerated locally, at least for the 10-day period during which counsel may file the post-sentence motion. When new counsel has been appointed or entered an appearance for the purpose of pursuing a post-sentence motion or appeal, the judge should consider permitting the defendant to remain incarcerated locally for a longer period to allow new counsel time to confer with the defendant and become familiar with the case. See also Rule 120 (Attorneys—Appearances and Withdrawals).
It is difficult to set forth all the standards that a judge must utilize and consider in imposing sentence. It is recommended that, at a minimum, the judge look to the standards and guidelines as specified by statutory law. See the Judicial Code, 42 Pa.C.S. § 9701 et seq. See also Commonwealth v. Riggins, 474 Pa. 115, 377 A.2d 140 ([Pa.] 1977) and Commonwealth v. Devers, 519 Pa. 88, 546 A.2d 12 ([Pa.] 1988). The judge also should consider other preexisting orders imposed on the defendant. See 18 Pa.C.S. § 1106(c)(2)(iv). And see 42 Pa.C.S. § 9728.
In all cases in which restitution is imposed, the sentencing judge must state on the record the amount of restitution, if determined at the time of sentencing, or the basis for determining an amount of restitution. See 18 Pa.C.S. § 1106 and 42 Pa.C.S. §§ 9721, 9728.
For the right of a victim to have information included in the pre-sentence investigation report concerning the impact of the crime upon him or her, see 71 P. S. § 180-9.3(1) and Rule 702(A)(4).
For the duty of the sentencing judge to state on the record the reasons for the sentence imposed, see Commonwealth v. Riggins, 474 Pa. 115, 377 A.2d 140 ([Pa.] 1977) and Commonwealth v. Devers, 519 Pa. 88, 546 A.2d 12 ([Pa.] 1988). If the sentence initially imposed is modified pursuant to Rule 720(B)(1)(a)(v), the sentencing judge should ensure that the reasons for the ultimate sentence appear on the record. See also Sentencing Guidelines, 204 PA. CODE §§ 303.1(b), 303.1(h), and 303.3(2).
In cases in which a mandatory sentence is provided by law, when the judge decides not to impose a sentence greater than the mandatory sentence, regardless of the number of charges on which the defendant could be sentenced consecutively, and when no psychiatric or psychological examination is required under Rule 702(B), the judge may immediately impose that sentence. But see Rule 702(A)(2), which requires that the court state on the record the reasons for dispensing with a pre-sentence report under the circumstances enumerated therein. See also 42 Pa.C.S. § 9721 et seq.
No later than 30 days after the date of sentencing, a Pennsylvania Commission on Sentencing Guideline Sentence Form must be completed at the judge's direction and made a part of the record. In addition, a copy of the form must be forwarded to the Commission on Sentencing. 204 PA. CODE § 303.1(e)[, effective July 13, 1997. See 27 Pa.B. 1254 (March 15, 1997)].
With respect to the recording and transcribing of court proceedings, including sentencing, see Rule 115.
Official Note: Previous Rule 1405 approved July 23, 1973, effective 90 days hence; Comment amended June 30, 1975, effective immediately; Comment amended and paragraphs (c) and (d) added June 29, 1977, effective September 1, 1977; amended May 22, 1978, effective as to cases in which sentence is imposed on or after July 1, 1978; Comment amended April 24, 1981, effective July 1, 1981; Comment amended November 1, 1991, effective January 1, 1992; 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 1405. Present Rule 1405 adopted March 22, 1993, effective as to cases in which the determination of guilt occurs on or after January 1, 1994; amended January 3, 1995, effective immediately; amended September 13, 1995, effective January 1, 1996. The January 1, 1996 effective date extended to April 1, 1996. Comment revised December 22, 1995, effective February 1, 1996. The April 1, 1996 effective date extended to July 1, 1996. Comment revised September 26, 1996, effective January 1, 1997; Comment revised April 18, 1997, effective immediately; Comment revised January 9, 1998, effective immediately; amended July 15, 1999, effective January 1, 2000; renumbered Rule 704 and amended March 1, 2000, effective April 1, 2001; Comment revised March 27, 2003, effective July 1, 2003; amended April 28, 2005, effective August 1, 2005; Comment revised March 15, 2013 effective May 1, 2103.
Committee Explanatory Reports:
* * * * * Final Report explaining the March 15, 2013 revision of the Comment adding citations to the Sentencing Code published with the Court's Order at 43 Pa.B. 1705 (March 30, 2013).
Rule 707. Documents Transmitted to Prison.
* * * * * Comment It is intended that the confidentiality of such reports remain as secure after they have been delivered pursuant to this rule as at any previous stage. Cf. Rule 703.
See also 42 Pa.C.S. § 9764(b) that requires the court within 10 days of sentencing to provide specified information to the county correctional facility.
Official Note: Rule 1408 adopted July 23, 1973, effective 90 days hence; renumbered Rule 707 and amended March 1, 2000, effective April 1, 2001; Comment revised March 15, 2013, effective May 1, 2013.
Committee Explanatory Reports:
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).
Final Report explaining the March 15, 2013 revision of the Comment adding citations to the Sentencing Code published with the Court's Order at 43 Pa.B. 1705 (March 30, 2013).
Rule 708. Violation of Probation, Intermediate Punishment, or Parole: Hearing and Disposition.
(A) A written request for revocation shall be filed with the clerk of courts.
(B) Whenever a defendant has been sentenced to probation or intermediate punishment, or placed on parole, the judge shall not revoke such probation, intermediate punishment, or parole as allowed by law unless there has been:
(1) a hearing held as speedily as possible at which the defendant is present and represented by counsel; and
(2) a finding of record that the defendant violated a condition of probation, intermediate punishment, or parole.
(C) Before the imposition of sentence,
(1) the defendant may plead guilty to other offenses that the defendant committed within the jurisdiction of the sentencing court.
(2) When such pleas are accepted, the court shall sentence the defendant for all the offenses.
(D) Sentencing Procedures
* * * * * [(D)] (E) Motion to Modify Sentence
A motion to modify a sentence imposed after a revocation shall be filed within 10 days of the date of imposition. The filing of a motion to modify sentence will not toll the 30-day appeal period.
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 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. §§ [763] 9763 and 9773. Rules 704, 720, and 721 do not apply to revocation cases.
The objective of the procedures enumerated in paragraph (C) is to enable the court to sentence the defendant on all outstanding charges within the jurisdiction of the sentencing court at one time. See Rule 701.
When a defendant is permitted to plead guilty to multiple offenses as provided in paragraph (C), if any of the other offenses involves a victim, the sentencing proceeding must be delayed to afford the Commonwealth adequate time to contact the victim(s), and to give the victim(s) an opportunity to offer prior comment on the sentencing or to submit a written and oral victim impact statement. See the Crime Victims Act, 18 P. S. § 11.201(5).
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, 444 Pa. Super. 295, 663 A.2d 790, 791-2, n.1 ([Pa. Super.] 1995). As a general rule, the motion to modify sentence under paragraph [(D)] (E) 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).
Under this rule, the mere filing of a motion to modify sentence does not affect the running of the 30-day period for filing a timely notice of appeal. Any appeal must be filed within the 30-day appeal period unless the sentencing judge within 30 days of the imposition of sentence expressly grants reconsideration or vacates the sentence. See Commonwealth v. Coleman, 721 A.2d 798, 799, fn.2 (Pa. Super. 1998). See also Pa.R.A.P. 1701(b)(3).
Once a sentence has been modified or [reimposed] re-imposed pursuant to a motion to modify sentence under paragraph [(D)] (E), 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] re-imposed.
Official Note: Former Rule 1409 adopted July 23, 1973, effective 90 days hence; amended May 22, 1978, effective as to cases in which sentence is imposed on or after July 1, 1978; Comment revised November 1, 1991, effective January 1, 1992; amended September 26, 1996, effective January 1, 1997; Comment revised August 22, 1997, effective January 1, 1998; renumbered Rule 708 and amended March 1, 2000, effective April 1, 2001; amended February 26, 2002, effective July 1, 2002; amended March 15, 2013, effective May 1, 2013.
Committee Explanatory Reports:
* * * * * 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).
Final Report explaining the February 26, 2002 amendments concerning the 30-day appeal period published with the Court's Order at 32 Pa.B. 1394 (March 16, 2002).
Final Report explaining the March 15, 2013 amendments to paragraph (C) concerning multiple guilty pleas and the Comment concerning the Crime Victims Act published at 43 Pa.B. 1705 (March 30, 2013).
FINAL REPORT1 Amendments to Pa.R.Crim.P. 708 and Revision of the Comments to Pa.Rs.Crim.P. 701, 704, and 707 Pleas of Guilty to Multiple Offenses; Crime Victims Act; Citations to Sentencing Code On March 15, 2013, effective May 1, 2013, upon the recommendation of the Criminal Procedural Rules Committee, the Court approved several changes to the rules in Chapter 7 of the Rules of Criminal Procedure. The first part of these changes is the amendment of Rule of Criminal Procedure 708 and the revision of the Comment to Rule of Criminal Procedure 701 to make it clear that a defendant at the time of sentencing in probation, intermediate punishment, or parole violation cases also may plead guilty to other offenses the defendant has committed that are within the jurisdiction of the sentencing court. The second part is the revision of the Comments to Rules 701 and 708 to alert the bench and bar to the requirements of the Crime Victims Act in the context of guilty pleas to multiple offenses. The third part is the revision of the Comments to Rules 704 and 707 to alert the bench and bar to changes to the Sentencing Code.
Part I
The Committee undertook a review of Rules 701 (Pleas of Guilty to Multiple Offenses) and 708 (Violation of Probation, Intermediate Punishment, or Parole: Hearing and Disposition) after receiving inquiries asking whether a defendant who is being sentenced for a probation, intermediate punishment, or parole violation would be permitted to plead guilty to other offenses pursuant to Rule 701.
Rule 701 permits a defendant, before the imposition of sentence, to plead guilty to other offenses the defendant has committed that are within the jurisdiction of the sentencing court. The Rule 701 Comment explains the objective of this rule is ''to enable consolidation of all outstanding charges within the jurisdiction of the sentencing court for sentencing at one time.''
When Rule 701 was adopted in 1973,2 the Committee observed that the rule reflected sound sentencing policy, noting that this is consistent with the positions of the American Bar Association, the Pennsylvania Bar Association, and the Task Force on Corrections of the National Advisory Commission on Criminal Justice Standards and Goals. The benefits of this policy are stated in the ABA Standards for Criminal Justice, Chapter 14—Pleas of Guilty, Standard 14.1.2 (1999) Commentary:
Allowing for consolidated guilty pleas enables a defendant to be sentenced simultaneously on all charges that he or she is facing in that government's courts. This reduces the governmental resources that must be devoted to the cases, while also allowing the defendant to take full advantage of any concurrent sentencing options that may be available. By pleading to all offenses simultaneously, the defendant can complete his or her sentence without facing these additional charges, and can avoid the risk of having a detainer filed against the defendant on these other charges while serving his or her sentence.
Rule 708(C) (Violation of Probation, Intermediate Punishment, or Parole: Hearing and Disposition) provides sentencing procedures comparable to paragraph (C) of Rule 704 (Procedure at Time of Sentencing). The Committee reasoned that the provisions of Rule 701 should apply to sentencing proceedings following trials and probation, intermediate punishment, or parole violations since the sentencing proceeding in a probation violation case is comparable to a sentencing proceeding following a trial. They also believe the same reasons articulated in support of permitting pleas to multiple offenses after trial apply equally well to sentencing in probation, intermediate punishment, and parole violation cases. Furthermore, the members noted that this practice already is occurring in a number of judicial districts. However, because there appears to be confusion among some members of the bench and bar, the Committee members agreed that clarifying language should be added to the Rule 701 Comment and to Rule 708. Accordingly, the Rule 701 Comment has been revised by the addition of a new paragraph that states that Rule 701 applies in sentencing proceedings under Rule 708. Rule 708 is amended by adding a new paragraph (C) that incorporates the procedures in Rule 701 for a defendant to plead guilty to other offenses the defendant has committed within the jurisdiction of the sentencing court.
Part II
During the Committee's consideration of Rules 701 and 708, some members observed that neither rule specifically recognizes the provisions of the Crime Victims Act, 18 P. S. § 11.201(5), that requires, inter alia, that victims be given an opportunity to offer comment about the defendant's sentence prior to the sentencing. Without some accommodation for delay in sentencing in Rules 701 and 708, the case could run afoul of the Crime Victims Act. The addition of a reference to the Crime Victims Act in the Comments to both Rules 701 and 708 would ensure that the bench and bar are aware of their responsibilities under the Crime Victims Act. The new Comment provisions make it clear that the sentencing proceeding must be delayed when there is a victim for any of the other offenses to which the defendant is pleading guilty. The Comment explains the delay is necessary to afford the Commonwealth adequate time to contact the victim and give the victim an opportunity to offer input as required by the Crime Victims Act, and includes a citation to the Act.
As a result of the publication of Parts I and II of these amendments, the Committee was made aware that the terminology used in Rule 708 could be interpreted incorrectly as providing for sentencing following a parole violation and therefore modified the amendment to state that, rather than being ''sentenced,'' the defendant would be recommitted to serve the balance of the sentence.
Part III
As part of the Committee's ongoing monitoring of legislation, the members reviewed the ''prison reform package'' (Acts 81, 82, 83, and 84 of 2008) that amended, inter alia, Title 42 by making changes that relate to place of confinement, aggregation of consecutive sentences, work release, early parole, State Intermediate punishment, prisoner information, recidivism risk reduction incentives (RRRI), and parole guidelines. Other changes were made to Title 44 that relate to the new ''Recidivism Risk Reduction Incentive'' program, and to Title 61 that relate to, inter alia, medical release, temporary transfer of prisoners, administrative parole. The Committee noted that some of the changes impose requirements on judges at the time of sentencing or subsequent to the sentencing proceeding.
Generally, in the past, the Committee has not recommended changes to the rules every time there is a statute enacted imposing requirements for sentencing. Occasionally, however, the Committee has proposed revisions to a Comment to alert the bench and bar to a statute, such as was done in 1997, when the Court approved revisions to the Comments to then-Rules 1403 and 1405 (now Rules 702 and 704) that recognized that there are statutes that require additional sentencing procedures.3
After thoroughly reviewing the ''prison reform package,'' the Committee agreed the rules should reference some of the sentencing provisions as an aide to the bench and bar. The Comment to Rule 704 has been revised to include a cross-reference to 42 Pa.C.S. § 9756(b)(3) concerning the new requirements being imposed on the judge when a defendant may be eligible to participate in a re-entry plan and to 42 Pa.C.S. § 9756 (b.1) concerning the new requirements being imposed on the judge when a defendant may be eligible for a recidivism risk reduction incentive (RRRI) minimum sentence. Additionally, the Rule 704 Comment has been revised to cross-reference 42 Pa.C.S. § 9813 concerning the new requirements being imposed on the judge when a defendant may be eligible for work release.
In addition to the new requirements related to sentencing procedures, the ''prison reform package'' also added the requirement that a judge must provide certain information to the county correctional facility after sentencing. Rule 707 requires that certain documents must be sent to the correctional facility when the sentence imposed includes a sentence of imprisonment of two years or more. Because the statutory provision is more narrowly drawn and imposes a time within which the information is to be provided, the Rule 707 Comment has been revised to add a cross-reference to 42 Pa.C.S. § 9764(b) that requires the court within 10 days of sentencing to provide specified information to the county correctional facility.
[Pa.B. Doc. No. 13-554. Filed for public inspection March 29, 2013, 9:00 a.m.] _______
