Title 234--RULES OF CRIMINAL PROCEDURE [234 PA. CODE CHS. 1 AND 7] Post-Sentence Ineffectiveness Assistance of Trial Counsel Claims [33 Pa.B. 2161] The Criminal Procedural Rules Committee is planning to recommend that the Supreme Court of Pennsylvania amend Pa.R.Crim.P. 720 (Post-Sentence Procedures; Appeal) and revise the Comments to Rules 120 (Attorneys--Appearances and Withdrawals) and 122 (Assignment of Counsel) to provide guidance in the Criminal Rules concerning raising ineffective assistance of counsel claims post-sentence in view of Commonwealth v. Grant, 813 A.2d 726 (Pa. 2002). This proposal has not been submitted for review by the Supreme Court of Pennsylvania.
The following explanatory Report highlights the Committee's considerations in formulating this proposal. Please note that the Committee's Report 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 explanatory Reports.
The text of the proposed rule changes precedes the Report. Additions are shown in bold; deletions are in bold and brackets.
We request that interested persons submit suggestions, comments, or objections concerning this proposal in writing to the Committee through counsel,
Anne T. Panfil, Chief Staff Counsel
Supreme Court of Pennsylvania
Criminal Procedural Rules Committee
5035 Ritter Road, Suite 800
Mechanicsburg, PA 17055
fax: (717) 795-2106
e-mail: criminal.rules@supreme.court.state.pa.usno later than Friday, June 6, 2003.
By the Criminal Procedural Rules Committee
JOHN J. DRISCOLL,
ChairAnnex 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.
* * * * * Comment * * * * * Under paragraph (C), the court should make a determination of the status of a case before permitting counsel to withdraw.
The court should not replace appointed counsel at the post-verdict stage for the purpose of challenging trial counsel's effectiveness unless new counsel is prepared to preserve ineffectiveness issues pursuant to Rule 720.
* * * * * 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 , 2003, effective , 2003.
Committee Explanatory Reports:
* * * * * Report explaining the proposed Comment revision concerning appointment of counsel published at 33 Pa.B. 2162 (May 3, 2003).
Rule 122. Assignment of Counsel.
* * * * * Comment * * * * * The court should not replace appointed counsel at the post-verdict stage for the purpose of challenging trial counsel's effectiveness unless new counsel is prepared to preserve ineffectiveness issues pursuant to Rule 720.
For suspension of Acts of Assembly, see Rule 1101.
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; Comment revised , 2003, effective , 2003.
Committee Explanatory Reports:
* * * * * Report explaining the proposed Comment revision concerning post-verdict appointment of counsel published at 33 Pa.B. 2162 (May 3, 2003).
CHAPTER 7. POST-TRIAL PROCEDURES IN COURT CASES PART B. Post-Sentence Procedures Rule 720. Post-Sentence Procedures; Appeal.
* * * * * (B) OPTIONAL POST-SENTENCE MOTION.
(1) Generally.
* * * * * (c) Issues raised before or during trial shall be deemed preserved for appeal whether or not the defendant elects to file a post-sentence motion on those issues. If, after the verdict, the defendant retains new counsel or receives new appointed counsel at his or her request, issues of trial counsel's ineffectiveness must be raised in a post-sentence motion to be preserved for further review.
* * * * * (3) Time Limits for Decision on Motion.
The judge shall not vacate sentence pending decision on the post-sentence motion, but shall decide the motion as provided in this paragraph.
* * * * * (b) Upon motion of the defendant within the 120-day disposition period, for good cause shown, the judge may grant one 30-day extension for decision on the motion. If the post-sentence motions include claims of trial counsel's ineffectiveness, and the judge determines that the existing record is inadequate to resolve the claims, the judge may grant an additional extension of up to 60 days for further proceedings. If the judge fails to decide the motion within the [30-day] extension period, the motion shall be deemed denied by operation of law.
* * * * * Comment * * * * * OPTIONAL POST-SENTENCE MOTION
* * * * * The judge's discretion to permit supplemental motions should be exercised liberally when new counsel seeks to raise the ineffectiveness of trial counsel.
For procedures governing post-sentence challenges to the sufficiency of the evidence, see Rule 606(A)(6) and (A)(7). For challenges to the weight of the evidence, see Rule 606(A).
* * * * * 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 , 2003, effective , 2003.
Committee Explanatory Reports:
* * * * * Report explaining the proposed changes concerning post-sentence ineffective assistance of counsel claims published at 33 Pa.B. 2162 (May 3, 2003).
REPORT Proposed Amendments to Pa.R.Crim.P. 720,
Revision of the Comments to Pa.Rs.Crim.P. 120 and 122POST-SENTENCE INEFFECTIVENESS ASSISTANCE OF TRIAL COUNSEL CLAIMS Introduction
The Committee is proposing amendments to Pa.R.Crim.P. 720 (Post-Sentence Procedures; Appeal) and the revision of the Comments to Pa.Rs.Crim.P. 120 (Attorneys--Appearances and Withdrawals) and 122 (Assignment of Counsel) that will provide guidance to the bench and bar concerning the post-verdict appointment of new counsel to raise trial counsel's ineffectiveness, and the procedures for raising trial counsel's ineffectiveness in a post-sentence motion. The Committee concluded these changes are necessary after reviewing the Court's decision in Commonwealth v. Grant, 813 A.2d 726 (Pa. 2002) holding, inter alia, that ''as a general rule, a petitioner should wait to raise claims of ineffective assistance of trial counsel until collateral review,'' and ''a claim raising trial counsel ineffectiveness will no longer be considered waived because new counsel on direct appeal did not raise a claim related to prior counsel's ineffectiveness,'' at 738. The Court added in a footnote:
The general rule announced today is limited by the issues raised in this case. Appellant does not raise an allegation that there has been a complete or constructive denial of counsel or that counsel has breached his or her duty of loyalty. Under those limited circumstances, this court may choose to create an exception to the general rule and review those claims on direct appeal. However, as there is no issue raising such a question in this case, such a consideration is more appropriately left to another day. Id. at 738, footnote 14.
In analyzing this decision, the Committee made several observations about the interplay of the Grant decision and the Criminal Rules, persuading the members changes to the rules are necessary. First, the members noted that, traditionally, judges have allowed lawyers to withdraw from a case at the post-trial stage when the defendant wishes to challenge trial counsel's ineffectiveness, which, until Grant was decided, was consistent with the case law that required new counsel to fulfill the purpose of the appointment by actually raising ineffectiveness at the first opportunity. Now, with the Court's holding in Grant that ineffectiveness claims generally should be postponed until the post-conviction collateral review process, no purpose is served by appointing new counsel at the post-verdict stage to litigate ineffective assistance of counsel when a defendant wishes to proceed pursuant to the new ''general rule'' promulgated in Grant. In view of this, the Committee reasoned that without referencing this change in procedure, judges by ''force of habit'' may continue to make new appointments at the post-verdict stage, resulting in extra expense to the court's already limited resources and unnecessary delay, with no benefit for the defendant or the system.
On the other hand, as the Court acknowledged in Grant, there may be cases in which the defendant does not wish to delay ineffectiveness litigation for the year or more necessary to complete the direct appeal process. The Committee agreed in these cases, if the defendant seeks to litigate ineffectiveness of trial counsel as soon as possible, the appointment of new counsel would be appropriate at the post-verdict stage. We also concluded in these limited cases when new counsel is appointed at the post-verdict stage, new counsel must raise the ineffectiveness claim in the post-sentence motion in order to preserve the issue for appeal.
Discussion of Rule Changes
A. Amendments to Rule 720
The Committee is proposing that Rule 720(B)(1)(c) be amended by the addition of the requirement that if new counsel is retained or appointed at the post-verdict stage of the proceedings, the issues of trial counsel's ineffectiveness must be raised in a post-sentence motion to be preserved for appeal. Recognizing that there may be legitimate needs in some of the cases raising counsel's ineffectiveness for extended hearings or additional time to review the trial transcript because the existing record is inadequate to resolve the claims, the Committee is proposing the judge be authorized to grant one extension to the 120-day time limit on the disposition of the post-sentence motion of up to 60 days for further proceedings on the ineffectiveness claim only. Paragraph (B)(3)(b). The Committee also is proposing a new paragraph be added to the Comment suggesting that supplemental motions should be liberally allowed when new counsel intends to raise trial counsel's ineffectiveness.
B. Correlative Revision of the Comments to Rules 120 and 122
The Committee is proposing cautionary language be added to the Comments to Rules 120 and 122 to alert the bench and bar that if new counsel is retained or appointed at the post-verdict stage, pursuant to Rule 720, the new attorney must raise trial counsel's ineffectiveness in the post-sentence motion.
[Pa.B. Doc. No. 03-817. Filed for public inspection May 2, 2003, 9:00 a.m.]
