924 Order amending rules 120, 122, 704, and 904, and approving the revision of the comment to rule 902; No. 318 criminal procedural rules; doc. no. 2

Title 234--RULES OF
CRIMINAL PROCEDURE

[234 PA. CODE CH. 1, 7 AND 9]

Order Amending Rules 120, 122, 704, and 904, and Approving the Revision of the Comment to Rule 902; No. 318 Criminal Procedural Rules; Doc. No. 2

[35 Pa.B. 2855]

   The Criminal Procedural Rules Committee has prepared a Final Report explaining the April 28, 2005 amendments to Rules of Criminal Procedure 120, 122, 704, and 904, and approved the revision of the Comment to Rule 902. These rule changed clarify the procedures governing the entry and withdrawal of counsel's appearance in criminal cases; provide that the filing of the court's order appointing counsel enters appointed counsel's appearance; and set forth the requirements for the contents of both retained counsel's entry of appearance and the court's appointment order. The Final Report follows the Court's Order.

Order

Per Curiam:

   Now, this 28th day of April, 2005, upon the recommendation of the Criminal Procedural Rules Committee, the proposal having been published before adoption at 32 Pa.B. 1039 (February 23, 2002) and 33 Pa.B. 968 (February 22, 2003), and in the Atlantic Reporter (Second Series Advance Sheets, Vols. 788 and 815), 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 120, 122, 704, and 904 are amended, and

   (2)  the revision of the Comment to Rule of Criminal Procedure 902 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, 2005.

Annex A

TITLE 234. RULES OF CRIMINAL PROCEDURE

CHAPTER 1. SCOPE OF RULES, CONSTRUCTION AND DEFINITIONS, LOCAL RULES

PART B. Counsel

Rule 120. Attorneys--Appearances and Withdrawals.

   (A)  ENTRY OF APPEARANCE

   (1)  Counsel for defendant shall [enter an appearance in writing] file an entry of appearance with the clerk of courts promptly after being retained [or appointed], and serve a copy [thereof] of the entry of appearance on the attorney for the Commonwealth.

   (a)  If a firm name is entered, the name of an individual lawyer shall be designated as being responsible for the conduct of the case.

   (b)  The entry of appearance shall include the attorney's address, phone number, and attorney ID number.

   (2)  When counsel is appointed pursuant to Rule 122 (Appointment of Counsel), the filing of the appointment order shall enter the appearance of appointed counsel.

   [(B)] (3)  Counsel shall not be permitted to represent a defendant following a preliminary hearing unless an entry of appearance is [entered] filed with the clerk of courts.

   (4)  An attorney who has been retained or appointed by the court shall continue such representation through direct appeal or until granted leave to withdraw by the court pursuant to paragraph (B).

   (B)  WITHDRAWAL OF APPEARANCE

   [(C)] (1)  Counsel for a defendant may not withdraw his or her appearance except by leave of court. [Such leave shall be granted only upon motion made and served on the attorney for the Commonwealth and the client, unless the interests of justice otherwise require.]

   (2)  A motion to withdraw shall be:

   (a)  filed with the clerk of courts, and a copy concurrently served on the attorney for the Commonwealth and the defendant; or

   (b)  made orally on the record in open court in the presence of the defendant.

   (3)  Upon granting leave to withdraw, the court shall determine whether new counsel is entering an appearance, new counsel is being appointed to represent the defendant, or the defendant is proceeding without counsel.

Comment

*      *      *      *      *

   Paragraph (A)(2) was added in 2005 to make it clear that the filing of an order appointing counsel to represent a defendant enters the appearance of appointed counsel. Appointed counsel does not have to file a separate entry of appearance. Rule 122 (Appointment of Counsel) requires that (1) the judge include in the appointment order the name, address, and phone number of appointed counsel, and (2) the order be served on the defendant, appointed counsel, the previous attorney of record, if any, and the attorney for the Commonwealth pursuant to Rule 114 (Orders and Court Notices: Filing; Service; and Docket Entries).

   Under paragraph [(C), the] (B)(2), counsel must file a motion to withdraw in all cases, and counsel's obligation to represent the defendant, whether as retained or appointed counsel, remains until leave to withdraw is granted by the court. See, e.g., Commonwealth v. Librizzi, 810 A.2d 692 (Pa. Super. Ct. 2002). The court [should] must make a determination of the status of a case before permitting counsel to withdraw. Although there are many factors considered by the court in determining whether there is good cause to permit the withdrawal of counsel, when granting leave, the court should determine whether new counsel will be stepping in or the defendant is proceeding without counsel, and that the change in attorneys will not delay the proceedings or prejudice the defendant, particularly concerning time limits. In addition, case law suggests other factors the court should consider, such as whether (1) the defendant has failed to meet his or her financial obligations to pay for the attorney's services and (2) there is a written contractual agreement between counsel and the defendant terminating representation at a specified stage in the proceedings such as sentencing. See, e.g., Commonwealth v. Roman. Appeal of Zaiser, 549 A.2d 1320 (Pa. Super. Ct. 1988).

*      *      *      *      *

   For the filing and service procedures, see Rules 575-576.

   For waiver of counsel, see Rule 121.

   For the procedures for appointment of counsel, see Rule 122.

   See Rule 904(A) that requires an attorney who has been retained [or appointed] to represent a defendant during post-conviction collateral proceedings to file a written entry of appearance.

   Official Note: Adopted June 30, 1964, effective January 1, 1965; formerly Rule 303, renumbered Rule 302 and amended June 29, 1977 and November 22, 1977, effective as to cases in which the indictment or information is filed on or after January 1, 1978; amended March 22, 1993, effective January 1, 1994; renumbered Rule 120 and amended March 1, 2000, effective April 1, 2001; Comment revised February 26, 2002, effective July 1, 2002; Comment revised June 4, 2004, effective November 1, 2004; amended April 28, 2005, effective August 1, 2005.

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 April 28, 2005 amendments concerning the filing of an appointment order as entry of appearance for appointed counsel and withdrawal of counsel published with the Court's Order at 35 Pa.B. 2859 (May 14, 2005).

Rule 122. [Assignment] Appointment of Counsel.

   (A)  [IN SUMMARY CASES.] Counsel shall be [assigned] appointed:

   (1)  in all summary cases [to], for all defendants who are without financial resources or who are otherwise unable to employ counsel when there is a likelihood that imprisonment will be imposed[.];

   [(B)  IN COURT CASES. In]

   (2)  in all court cases [counsel shall be assigned], prior to the preliminary hearing to all defendants who are without financial resources or who are otherwise unable to employ counsel[.];

   [(C)  IN ALL CASES.

   (1)  The] (3) in all cases, by the court, [of] on its own motion, [shall assign counsel to represent a defendant whenever] when the interests of justice require it.

   [(2)  A motion for change of counsel by a defendant to whom counsel has been assigned shall not be granted except for substantial reasons.

   (3)] (B)  When counsel [has been assigned] is appointed, [such assignment]

   (1)  the judge shall enter an order indicating the name, address, and phone number of the appointed counsel, and the order shall be served on the defendant, the appointed counsel, the previous attorney of record, if any, and the attorney for the Commonwealth pursuant to Rule 114 (Orders and Court Notices: Filing; Service; and Docket Entries); and

   (2)  the appointment shall be effective until final judgment, including any proceedings upon direct appeal.

   (C)  A motion for change of counsel by a defendant for whom counsel has been appointed shall not be granted except for substantial reasons.

Comment

*      *      *      *      *

   [Assignment] Appointment of counsel can be waived, if such waiver is knowing, intelligent, and voluntary. See Faretta v. California, 422 U. S. 806 (1975). Concerning the appointment of standby counsel for the defendant who elects to proceed pro se, see Rule 121.

   In both summary and court cases, the [assignment] appointment of counsel to represent indigent defendants remains in effect until all appeals on direct review have been completed.

   Ideally, counsel should be [assigned] appointed to represent indigent defendants immediately after they are brought before the issuing authority in all summary cases in which a jail sentence is possible, and immediately after preliminary arraignment in all court cases. This rule strives to accommodate the requirements of the Supreme Court of the United States to the practical problems of implementation. Thus, in summary cases, paragraph (A)(1) requires a pretrial determination by the issuing authority as to whether a jail sentence would be likely in the event of a finding of guilt in order to determine whether trial counsel should be [assigned] appointed to represent indigent defendants. It is expected that the issuing authorities [will] in most instances will be guided by their experience with the particular offense with which defendants are charged. This is the procedure recommended by the ABA Standards Relating to Providing Defense Services §  4.1 (Approved Draft 1968) and cited in the United States Supreme Court's opinion in Argersinger, supra. If there is any doubt, the issuing authority can seek the advice of the attorney for the Commonwealth, if one is prosecuting the case, as to whether the Commonwealth intends to recommend a jail sentence in case of conviction.

   In court cases, paragraph [(B)] (A)(2) requires counsel to be [assigned] appointed at least in time to represent the defendant at preliminary hearing. Although difficulty may be experienced in some judicial districts in meeting the Coleman requirement, it is believed that this is somewhat offset by the prevention of many post-conviction proceedings [which] that would otherwise be brought based on the denial of the right to counsel. However, there may be cases in which counsel has not been [assigned] appointed prior to the preliminary hearing stage of the proceedings; e.g., counsel for the preliminary hearing has been waived, or a then-ineligible defendant subsequently becomes eligible for [assigned] appointed counsel. In such cases it is expected that the defendant's right to [assigned] appointed counsel will be effectuated at the earliest appropriate time.

*      *      *      *      *

   Paragraph [(C)(1)] (A)(3) retains in the issuing authority or judge the power to [assign] appoint counsel regardless of indigency or other factors when, in the issuing authority's or the judge's opinion, the interests of justice require it.

   Pursuant to paragraph [(C)(3)] (B)(2), counsel retains his or her [assignment] appointment until final judgment, which includes all avenues of appeal through the Supreme Court of Pennsylvania. In making the decision whether to file a petition for allowance of appeal, counsel must (1) consult with his or her client, and (2) review the standards set forth in Pa.R.A.P. 1114 (Considerations Governing Allowance of Appeal) and the note following that rule. If the decision is made to file a petition, counsel must carry through with that decision. See Commonwealth v. Liebel, 825 A.2d 630 (Pa. 2003). Concerning counsel's obligations as appointed counsel, see Jones v. Barnes, 463 U. S. 745 (1983). See also Commonwealth v. Padden, 783 A.2d 299 (Pa. Super. Ct. 2001).

*      *      *      *      *

   Official Note: Rule 318 adopted November 29, 1972, effective 10 days hence, replacing prior rule; amended September 18, 1973, effective immediately; renumbered Rule 316 and amended June 29, 1977, and October 21, 1977, effective January 1, 1978; renumbered Rule 122 and amended March 1, 2000, effective April 1, 2001; amended March 12, 2004, effective July 1, 2004; Comment revised March 26, 2004, effective July 1, 2004; Comment revised June 4, 2004, effective November 1, 2004; amended April 28, 2005, effective August 1, 2005.

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 April 28, 2005 changes concerning the contents of the appointment order published with the Court's Order at 35 Pa.B. 2859 (May 14, 2005).

CHAPTER 7.  POST-TRIAL PROCEDURES IN COURT CASES

PART A.  Sentencing Procedures

Rule 704. Procedure at Time of Sentencing.

*      *      *      *      *

   (C)  SENTENCING PROCEEDING.

*      *      *      *      *

   (3)  The judge shall determine on the record that the defendant has been advised of the following:

*      *      *      *      *

   (b)  of the rights,

   (i)  if the defendant is indigent, to proceed in forma pauperis and to proceed with [assigned] appointed counsel as provided in Rule 122; or,

   (ii)  if represented by retained counsel, to proceed with retained counsel unless the court has granted leave for counsel to withdraw pursuant to Rule 120(B);

*      *      *      *      *

Comment

*      *      *      *      *

   SENTENCING PROCEDURES

*      *      *      *      *

   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.

*      *      *      *      *

   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 [assigned] 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).

*      *      *      *      *

   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.

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 April 28, 2005 amendments to paragraph (C)(3)(b) concerning retained counsel's obligations published with the Court's Order at 35 Pa.B. 2859 (May 14, 2005).

CHAPTER 9. POST-CONVICTION COLLATERAL PROCEEDINGS

Rule 902. Content of Petition for Post-Conviction Collateral Relief; Request for Discovery.

   (A)  A petition for post-conviction collateral relief shall bear the caption, number, and court term of the case or cases in which relief is requested and shall contain substantially the following information:

*      *      *      *      *

   (14)  a verification by the defendant that:

   [(1)] (a)  *  *  *

   [(2)] (b)  *  *  *

*      *      *      *      *

Comment

   [Whether privately retained or appointed, the attorney] All privately retained counsel must enter an appearance as provided in Rule 904.

*      *      *      *      *

   Official Note: Previous Rule 1502 adopted January 24, 1968, effective August 1, 1968; rescinded December 11, 1981, effective June 27, 1982; rescission vacated June 4, 1982; rescinded February 1, 1989, effective July 1, 1989, and replaced by present Rules [903 and 905] 1503 and 1505. Present Rule 1502 adopted February 1, 1989, effective July 1, 1989; amended August 11, 1997, effective immediately; amended July 23, 1999, effective September 1, 1999; Comment revised January 21, 2000, effective July 1, 2000; renumbered Rule 902 and Comment revised March 1, 2000, effective April 1, 2001; amended February 26, 2002, effective July 1, 2002; Comment revised April 28, 2005, effective August 1, 2005.

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 April 28, 2005 Comment revision published with the Court's Order at 35 Pa.B. 2859 (May 14, 2005).

Rule 904. Entry of Appearance and Appointment of Counsel; In Forma Pauperis.

   (A)  Counsel for defendant shall file a written entry of appearance with the clerk of courts promptly after being retained [or appointed], and serve a copy on the attorney for the Commonwealth.

   (1)  If a firm name is entered, the name of an individual lawyer shall be designated as being responsible for the conduct of the case.

   (2)  The entry of appearance shall include the attorney's address, phone number, and attorney ID number.

   (B)  When counsel is appointed, the filing of the appointment order shall enter the appearance of appointed counsel.

   (C)  Except as provided in paragraph [(G)] (H), when an unrepresented defendant satisfies the judge that the defendant is unable to afford or otherwise procure counsel, the judge shall appoint counsel to represent the defendant on the defendant's first petition for post-conviction collateral relief.

   [(C)] (D)  *  *  *

   [(D)] (E)  *  *  *

   (F)  When counsel is appointed,

   (1)  the judge shall enter an order indicating the name, address, and phone number of the appointed counsel, and the order shall be served on the defendant, the appointed counsel, the previous attorney of record, if any, and the attorney for the Commonwealth pursuant to Rule 114 (Orders and Court Notices: Filing; Service; and Docket Entries); and

   [(E) An] (2)  the appointment of counsel shall be effective throughout the post-conviction collateral proceedings, including any appeal from disposition of the petition for post-conviction collateral relief.

   [(F)] (G)  *  *  *

   [(G)] (H)  Appointment of Counsel in Death Penalty Cases.

*      *      *      *      *

   (2)  [The] When counsel is appointed,

   (a)  the judge shall enter an order indicating the name, address, and phone number of the appointed counsel, and the order shall be served on the defendant, the appointed counsel, the previous attorney of record, if any, and the attorney for the Commonwealth pursuant to Rule 114 (Orders and Court Notices: Filing; Service; and Docket Entries); and

   (b)  the appointment of counsel shall be effective throughout the post-conviction collateral proceedings, including any appeal from disposition of the petition for post-conviction collateral relief.

*      *      *      *      *

Comment

*      *      *      *      *

   Paragraph (B) was added in 2005 to make it clear that the filing of an order appointing counsel to represent a defendant enters the appearance of appointed counsel. Appointed counsel does not have to file a separate entry of appearance.

   Paragraphs (F)(1) and (H)(2)(a) require that (1) the judge include in the appointment order the name, address, and phone number of appointed counsel, and (2) the order be served on the defendant, appointed counsel, the previous attorney of record, if any, and the attorney for the Commonwealth pursuant to Rule 114 (Orders and Court Notices: Filing; Service; and Docket Entries).

   Pursuant to paragraphs [(E)] (F)(2) and [(G)] (H)(2)(b), appointed counsel retains his or her assignment until final judgment, which includes all avenues of appeal through the Supreme Court of Pennsylvania. In making the decision whether to file a petition for allowance of appeal, counsel must (1) consult with his or her client, and (2) review the standards set forth in Pa.R.A.P. 1114 (Considerations Governing Allowance of Appeal) and the note following that rule. If the decision is made to file a petition, counsel must carry through with that decision. See Commonwealth v. Liebel, 825 A.2d 630 (Pa. 2003). Concerning counsel's obligations as appointed counsel, see Jones v. Barnes, 463 U.S. 745 (1983). See also Commonwealth v. Padden, 783 A.2d 299 (Pa. Super. Ct. 2001).

   Paragraph [(G)] (H) was added in 2000 to provide for the appointment of counsel for the first petition for post-conviction collateral relief in a death penalty case at the conclusion of direct review.

   An attorney may not [be appointed to] represent a defendant in a capital case unless the attorney meets the educational and experiential requirements set forth in Rule 801 (Qualifications for Defense Counsel in Capital Cases).

   Official Note: Previous Rule 1504 adopted January 24, 1968, effective August 1, 1968; rescinded December 11, 1981, effective June 27, 1982; rescission vacated June 4, 1982; rescinded February 1, 1989, effective July 1, 1989, and replaced by Rule 1507. Present Rule 1504 adopted February 1, 1989, effective July 1, 1989; amended August 11, 1997, effective immediately; amended January 21, 2000, effective July 1, 2000; renumbered Rule 904 and amended March 1, 2000, effective April 1, 2001; amended February 26, 2002, effective July 1, 2002; Comment revised March 12, 2004, effective July 1, 2004; Comment revised June 4, 2004, effective November 1, 2004; amended April 28, 2005, effective August 1, 2005.

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 April 28, 2005 amendments concerning entry of appearance and content of appointment order published with the Court's Order at 35 Pa.B. 2859 (May 14, 2005).

FINAL REPORT¹

Amendments to Pa.Rs.Crim.P. 120, 122, 704, and 904; Revision of the Comment to Pa.R.Crim.P. 902

Entry of Appearance and Withdrawal of Appearance; Filing of Appointment Order Enters Appearance; Contents and Service of Appointment Order

   On April 28, 2005, effective August 1, 2005, upon the recommendation of the Criminal Procedural Rules Committee, the Court amended Rules of Criminal Procedure 120, 122, 704, and 904 and approved the revision of the Comment to Rule 902. These rule changes clarify the procedures governing the entry and withdrawal of counsel's appearance in criminal cases; provide that the filing of the court's order appointing counsel enters appointed counsel's appearance; and set forth the requirements for the content of both retained counsel's entry of appearance and the court's appointment order.

   I.  BACKGROUND

   This Recommendation was developed in two parts in response to questions posed to the Committee by the Common Pleas Court Joint Application Design (JAD) Staff during JAD's study of the Criminal Rules and the practice and procedures in criminal cases in the judicial districts for the development of the Common Pleas Case Management System (CPCMS).

   The first issue posed by JAD concerned the entry of appearance by appointed counsel and whether the filing of an order appointing counsel pursuant to Rule 122 (Assignment of Counsel) satisfies the entry of appearance requirements of Rule 120 (Attorneys--Appearances and Withdrawals). Resolution of this issue was important to the JAD Staff because their research revealed that in a number of judicial districts appointed counsel is not required to file a formal entry of appearance; these judicial districts consider the filing of the appointment order to be tantamount to the entry of appearance notwithstanding the current provision in Rule 120(A) that ''counsel for defendant shall enter an appearance in writing with the clerk of courts promptly after being retained or appointed.'' Because the procedures in these judicial districts conflict with the Rule 120 requirement that appointed counsel file an entry of appearance, the JAD Staff requested a clarification, and asked the Committee to consider proposing a change to the rule.

   The second issue posed by the JAD Staff concerned the duration of retained counsel's obligation to represent the defendant.² They questioned whether the requirements for retained counsel were the same as the requirements for appointed counsel, and asked the Committee to consider clarifying this in the rules.

   II.  DISCUSSION

   A.  Entry of Appearance; Filing Appointment Order: Rules 120 (Attorneys--Appearances and Withdrawals), 122 (Appointment of Counsel), 902 (Content of Petition for Post-Conviction Collateral Relief; Request for Discovery), and 904 (Entry of Appearance and Appointment of Counsel; In Forma Pauperis)

   During the Committee's consideration of the issue of whether the filing of an order appointing counsel enters appointed counsel's appearance, some members expressed concerns about changing the rule, questioning whether providing for the filing of the order to enter appointed counsel's appearance would create difficulties in the situation in which the appointed attorney does not want the appointment or has a conflict and cannot accept the appointment. The Committee concluded (1) this was not a problem because counsel would communicate with the judge and the judge would appoint a different attorney, which would satisfy the requirements of Rule 120; (2) the change would be beneficial in situations in which the defendant is trying to hire counsel but has not done so; and (3) appointed counsel, being counsel of record, is available to represent the defendant if a critical stage, such as a request for a handwriting exemplar or a line-up, arises.

   Another concern was the timeliness of the notice to counsel of the appointment. Some members posited that permitting the filing of the order also to enter the appearance would cause problems for the appointed attorney who does not know that he or she has been appointed and his or her appearance entered. Ultimately, the Committee concluded this would not be a significant problem because once the CPCMS is in place, when the attorney's name, address, and phone number is entered into the automated system for the case, which would occur when either the appointment order or an entry of appearance is filed, the appointment order would be sent to that attorney pursuant to Rule 114 (Orders and Court Notices: Filing; Service; and Docket Entries).

   After considerable debate about these issues, the Committee was satisfied the members' concerns were addressed, noting (1) an entry of appearance that is filed as early as possible in a case is a benefit to the defendant, the attorneys, and the court; and (2) by having the filing of the appointment order enter appointed counsel's appearance, the prompt entry of appearance in these cases is ensured.

   During the Committee's consideration of Rule 120, several members noted the difficulty they have experienced obtaining the name and address of appointed counsel, and expressed concern this would be exacerbated without a formal entry of appearance. The Committee agreed this could be a problem, and concluded the rules should require the appointment order include the name, address, and phone number of the appointed attorney. In addition, to ensure proper notice to not only appointed counsel and the attorney for the Commonwealth, but also the defendant and any previous counsel of record, the Committee agreed the rules should require service of the appointment order on these additional people.

   The amendments to Rules 120, 122, 902, and 904 address these considerations, as follows.

(1)  Rule 120 (Attorneys--Appearance and Withdrawals)

   Rule 120 has been be amended by adding a new paragraph (A)(2) specifically providing that the filing of the appointment order enters the appearance of appointed counsel, with an explanatory paragraph added to the Rule 120 Comment reiterating that appointed counsel does not have to file a separate entry of appearance, and cross-referencing Rule 122 (Assignment of Counsel) with regard to the contents and service of the appointment order. In addition, Rule 120 has been amended to include the requirement that the entry of appearance form include the attorney's address, phone number, and attorney ID number so this information is readily available to the clerk of courts who is responsible pursuant to Rule 113 (Criminal Case File and Docket Entries) for including this information in the list of docket entries. Similarly, Rule 904 has been amended to conform the counsel provisions in the context of a post-conviction collateral proceeding with these Rule 120 changes, and a correlative change has been made to the Rule 902 Comment.

   In addition to the changes related to the entry of appointed counsel's appearance, paragraph (A) has been amended by (1) replacing ''enter an appearance in writing'' with ''file an entry of appearance,'' which conforms to the filing terminology in Rule 576 (Filing and Service by Parties), to bring Rule 120 in line with the motions rules, and (2) making other housekeeping changes.

(2)  Rule 122 (Appointment of Counsel)

   Rule 122 currently only sets forth the procedures for the appointment of counsel; it does not address the appointment order. Rule 122 has been amended to address the contents of the appointment order and the service requirements with the addition of a paragraph requiring (1) the judge to include in the appointment order the name, address, and phone number of the appointed counsel, and (2) the order be served on the defendant, appointed counsel, the previous attorney of record, if any, and the attorney for the Commonwealth. Comparable changes also have been made in Rule 904.

   In addition, Rule 122 has been reorganized by deleting the paragraph headings, and (1) moving paragraphs (A), (B), and (C) with regard to when counsel should be appointed into new paragraphs (A)(1), (2), and (3); (2) adding the new language concerning the content and service of the appointment order as new paragraph (B)(1); (3) moving current paragraph (C)(3) to paragraph (B)(2); and (4) making paragraph (C)(2) paragraph (C). Because the terms ''assignment'' and ''appointment'' are used interchangeably throughout Rules 120 and 122, the Committee agreed one term should be used. Accordingly ''appointment'' replaces ''assignment'' in both Rules 120 and 122.

   B.  Duration of Retained Counsel's Representational Obligation: Rules 120 (Attorneys--Appearances and Withdrawals) and 704 (Procedure at Time of Sentencing)

   The Committee has spent a great deal of time considering the issues related to counsel's representational obligations in developing the proposal that resulted in the 2004 revision of the Comments to Rules 122 and 904,³ which clarified that appointed counsel retains his or her assignment until final judgment, which includes all avenues of appeal through the Supreme Court of Pennsylvania. In making the decision whether to file a petition for allowance of appeal, counsel must (1) consult with his or her client, and (2) review the standards set forth in Pa.R.A.P. 1114 (Considerations Governing Allowance of Appeal) and the note following that rule. If the decision is made to file a petition, counsel must carry through with that decision. See Commonwealth v. Liebel, 825 A.2d 630 (Pa. 2003). Concerning counsel's obligations as appointed counsel, see Jones v. Barnes, 463 U.S. 745 (1983). See also Commonwealth v. Padden, 783 A.2d 299 (Pa. Super. Ct. 2001).

   In our review of the case law concerning retained counsel's obligations, the Committee found that the same requirements that apply for appointed counsel apply--counsel is required to continue to represent the defendant through direct appeal unless the court grants counsel leave to withdraw. The case law recognizes there are other considerations that affect retained counsel's obligations, such as counsel and the defendant entering into a contractual agreement establishing the duration of the representation or the defendant is not paying counsel. On the other hand, the courts are required to consider the defendant's right to representation and the time limits for filing motions or appeals that could be jeopardized if retained counsel terminates the representation.

   In considering these points, the Committee observed Rule 120 already recognizes the need to balance counsel's rights and defendant's rights, as well as to provide administratively a mechanism to ensure the defendant, counsel, and the court are aware of the nature of the defendant's representation, by requiring that the defendant's attorney file an entry of appearance and seek the court's permission to withdraw. However, the members pointed out, in their experience they have found, notwithstanding the requirements of Rule 120, retained counsel frequently does not file a motion to withdraw or obtain the court's leave when he or she has entered into an agreement with the defendant to terminate representation at a specified point. Some members also pointed out the concerns retained counsel have that judges will not grant leave to withdraw thereby forcing counsel to remain in the case beyond the contractual agreement he or she has with the defendant or when the defendant is not paying the attorney. In view of these considerations, the Committee agreed Rule 120 should be amended to more clearly enumerate the procedures concerning the withdrawal of counsel.

(1)  Rule 120 (Attorneys--Appearance and Withdrawals)

   Rule 120 has been divided into two sections: paragraph (A) addressing entry of appearance and paragraph (B) addressing withdrawal of appearance. Paragraph (A)(4) clarifies that counsel, whether retained or appointed, is required to continue representation through direct appeal or until granted leave to withdraw.⁴

   New paragraph (B) incorporates as paragraph (1) the first sentence of present paragraph (C). Paragraph (2) retains the requirement in the second sentence of current paragraph (C) that there be a motion to withdraw, and that the motion to withdraw must be filed with the clerk of courts and served on the attorney for the Commonwealth and the defendant, paragraph (B)(2)(a), thereby ensuring the relevant information concerning defendant's representation and changes in representation are properly recorded on the docket and that the defendant and attorney for the Commonwealth have notice.

   In addition, as an alternative to the written motion procedure, a provision has been added providing that the motion may be made orally on the record in open court in the presence of the defendant, paragraph (B)(2)(b). Several members questioned whether the motion to withdraw should ever be made orally. After thoroughly debating this point, the Committee ultimately concluded oral motions should be permitted in the limited circumstances of an open-court proceeding when the defendant is present because it promotes judicial efficiency. Furthermore, in these circumstances, the oral motion will be on the record, and the clerk of courts will be able to transfer the fact of the withdrawal to the list of docket entries as provided in Rule 113.

   One issue debated at length by the Committee concerned whether the rule should provide guidance to the judges for determining whether to permit an attorney to withdraw. The members reasoned some guidance would be helpful, and concluded it was important to emphasize in the rule that the judge should make the decision to permit withdrawal based on what will happen next in the case, i.e. whether new counsel is entering an appearance, new counsel is being appointed to represent the defendant, or the defendant is proceeding without counsel, rather than based on the attorney's reasons for wanting to withdraw. New paragraph (B)(3) incorporates this idea.

   Included in the Comment are additional explanations about the withdrawal requirements and counsel's obligation to remain in the case until leave to withdraw is granted, citing Commonwealth v. Librizzi, 810 A.2d 692 (Pa. Super. Ct. 2002). In addition, the Comment emphasizes the judge must make a determination about the status of the case before permitting withdrawal. The Comment also incorporates the principles espoused in the case law with regard to the withdrawal of counsel, (1) emphasizing that the judge, when determining whether to permit a withdrawal by counsel, must ensure that the defendant has counsel to proceed and that the change in attorneys will not delay the proceedings, and (2) highlighting other factors the judge should consider including whether there is a written contractual agreement between counsel and the defendant, and whether the defendant is able to meet his or her financial obligations to pay for the attorney's services, citing by way of example, Commonwealth v. Roman, Appeal of Zaiser, 549 A.2d 1320 (Pa. Super. Ct. 1988).

(2)  Rule 704 (Procedure at Time of Sentencing)

   During our discussion of Rule 120 and the issue of retained counsel's representational obligations to defendants, the Committee observed that in many cases, an attorney is retained to represent a defendant through sentencing, which raises at the time of sentencing the issue of counsel's withdrawal and future representation of the defendant, and the impact of this on defendant's ability to meet the time limits for post-sentence motions and appeals. The members expressed concern about the delays that can occur and the prejudice to the defendant, as well as the impact on the court system. In view of these considerations, we looked at Rule 704(C) (Sentencing Proceeding). Noting the importance of emphasizing the need for the defendant and the court to revisit the issue of counsel at this critical stage, i.e. post-sentence or appeal, to ensure defendant's post-trial rights are protected, and that the judge is required in paragraph (C)(3)(b) to advise the defendant of the right, if indigent, ''to proceed in forma pauperis and to proceed with assigned counsel as provided in Rule 122,'' the Committee agreed Rule 704 should provide a similar notice concerning the defendant's rights when proceeding with retained counsel. Accordingly, paragraph (C)(3)(b) has been amended by the addition of a new paragraph (b)(ii) requiring the judge to give the defendant who is represented by retained counsel notice of the right to proceed with retained counsel ''unless the court has granted leave for counsel to withdraw pursuant to Rule 120(B).'' A provision has been added to the Comment emphasizing the judge must advise defendant of his or her rights concerning counsel at the post-sentence and appeal stage of the proceedings, cross-referencing Commonwealth v. Librizzi, supra.

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¹ The Committee's Final Reports should not be confused with the official Committee Comments to the rules. Also note that the Supreme Court does not adopt the Committee's Comments or the contents of the Committee's explanatory Final Reports.

² In 2004, the Court approved the revision of the Comments to Rules 122 and 904 clarifying the duration of appointed counsel's obligation. See 34 Pa.B. 1671 (March 27, 2004).

³ See footnote 1.

⁴ See Section (II)(A) above for discussion of the remainder of the changes in paragraph (A).

[Pa.B. Doc. No. 05-924. Filed for public inspection May 13, 2005, 9:00 a.m.]