1058 Order amending Rules 408, 413, 423, 452, 455 and 1031 of the Rules of Criminal Procedure; No. 474 criminal procedural rules doc.
Title 234—RULES OF
CRIMINAL PROCEDURE[ 234 PA. CODE CHS. 4 AND 10 ] Order Amending Rules 408, 413, 423, 452, 455 and 1031 of the Rules of Criminal Procedure; No. 474 Criminal Procedural Rules Doc. [46 Pa.B. 3235]
[Saturday, June 25, 2016]Order Per Curiam
And Now, this 10th day of June, 2016, upon the recommendation of the Criminal Procedural Rules Committee; the proposal having been published before adoption at 45 Pa.B. 1846 (April 11, 2015), and in the Atlantic Reporter (Third Series Advance Sheets, Vol. 110), 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 amendments to Pennsylvania Rules of Criminal Procedure 408, 413, 423, 452, 455, and 1031 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 August 1, 2016.
Annex A TITLE 234. RULES OF CRIMINAL PROCEDURE CHAPTER 4. PROCEDURES IN SUMMARY CASES PART B(1). Procedures When Citation Is Issued to Defendant Rule 408. Not Guilty Pleas—Notice of Trial.
(A) A defendant may plead not guilty by:
(1) appearing before the issuing authority, entering the plea, and depositing such collateral for appearance at trial as the issuing authority shall require; or
(2) notifying the issuing authority in writing of the plea and forwarding as collateral for appearance at trial an amount equal to the fine and costs specified in the citation, plus any additional fee required by law. If the fine and costs are not specified, the defendant shall forward the sum of $50 as collateral for appearance at trial.
(B) The issuing authority, upon receiving a plea of not guilty, shall:
(1) fix a date and hour for trial;
(2) notify the defendant and the law enforcement officer of the date and hour fixed for trial; and
(3) advise the defendant that failure to appear for trial shall constitute consent to trial in the defendant's absence and if the defendant is found guilty, the collateral deposited shall be forfeited and applied toward the fine [and], costs, and restitution, and the defendant shall have the right to appeal within [thirty] 30 days for a trial de novo.
Comment It is intended that the defendant will appear in person before the issuing authority to plead not guilty when the defendant cannot afford to deposit the amount of collateral specified in the citation or the $50 when no amount is specified. A plea entered by mail must be accompanied by the full amount of collateral. See Rule 452. All checks deposited as collateral shall be made payable to the magisterial district number set forth on the citation.
When fixing the date and hour for trial, the issuing authority should determine whether the trial must be delayed because the defendant's criminal record must be ascertained prior to trial as specifically required by statute for purposes of grading the offense charged.
Paragraph (B)(3) was amended in 2016 to clarify that collateral may be forfeited for the payment of restitution as well as for the fine and costs that have been assessed by an issuing authority. See 18 Pa.C.S. § 1106(d) for the authority of a magisterial district judge to impose restitution on a defendant.
Official Note: Previous Rule 58, adopted September 18, 1973, effective January 1, 1974; amended to correct printing error June 28, 1976, effective immediately; rescinded July 12, 1985, effective January 1, 1986, and not replaced in the present rules. Present Rule 58 adopted July 12, 1985, effective January 1, 1986. The January 1, 1986 effective dates all are extended to July 1, 1986; amended January 31, 1991, effective July 1, 1991; renumbered Rule 408 and amended March 1, 2000, effective April 1, 2001; amended June 10, 2016, effective August 1, 2016.
Committee Explanatory Reports:
Report explaining the January 31, 1991 amendments published at 20 Pa.B. 4788 (September 15, 1990); Supplemental Report published at 21 Pa.B. 621 (February 16, 1991).
Final Report explaining the March 1, 2000 reorganization and renumbering of the rules published with the Court's Order at 30 Pa.B. 1478 (March 18, 2000).
Final Report explaining the June 10, 2016 amendments clarifying that forfeited collateral may be applied to restitution published with the Court's Order at 46 Pa.B. 3238 (June 25, 2016).
PART B(2). Procedures When Citation Filed Rule 413. Not Guilty Pleas—Notice of Trial.
(A) A defendant may plead not guilty by:
(1) appearing before the issuing authority, entering the plea, and depositing such collateral for appearance at trial as the issuing authority shall require; or
(2) notifying the issuing authority in writing of the plea and forwarding as collateral for appearance at trial an amount equal to the fine and costs specified in the summons, plus any additional fee required by law. If the fine and costs are not specified, the defendant shall forward the sum of $50 as collateral for appearance at trial.
(B) The issuing authority, upon receiving a plea of not guilty, shall:
(1) fix a date and hour for trial;
(2) notify the defendant and the law enforcement officer of the date and hour fixed for the trial; and
(3) advise the defendant that failure to appear for trial shall constitute consent to trial in the defendant's absence and if the defendant is found guilty, the collateral deposited shall be forfeited and applied toward the fine [and], costs, and restitution, and the defendant shall have the right to appeal within [thirty] 30 days for a trial de novo.
Comment It is intended that the defendant will appear in person before the issuing authority to plead not guilty when the defendant cannot afford to deposit the amount of collateral specified in the summons or the $50 when no amount is specified. A plea entered by mail must be accompanied by the full amount of collateral. See Rule 452. All checks for collateral shall be made payable to the magisterial district number set forth on the summons.
When fixing the date and hour for trial, the issuing authority should determine whether the trial must be delayed because the defendant's criminal record must be ascertained prior to trial as specifically required by statute for purposes of grading the offense charged.
Paragraph (B)(3) was amended in 2016 to clarify that collateral may be forfeited for the payment of restitution as well as for the fine and costs that have been assessed by an issuing authority. See 18 Pa.C.S. § 1106(d) for the authority of a magisterial district judge to impose restitution on a defendant.
Official Note: Previous rule, originally numbered Rules 141 and 142, adopted January 31, 1970, effective May 1, 1970; combined, and renumbered Rule 63, and amended September 18, 1973, effective January 1, 1974; amended April 26, 1979, effective July 1, 1979; rescinded July 12, 1985, effective January 1, 1986, and replaced by present Rule 454. Present Rule 63 adopted July 12, 1985, effective January 1, 1986. The January 1, 1986 effective dates all are extended to July 1, 1986; amended January 31, 1991, effective July 1, 1991; renumbered Rule 413 and amended March 1, 2000, effective April 1, 2001; amended June 10, 2016, effective August 1, 2016.
Committee Explanatory Reports:
Report explaining the January 31, 1991 amendments published at 20 Pa.B. 4788 (September 15, 1990); Supplemental Report published at 21 Pa.B. (February 16, 1991).
Final Report explaining the March 1, 2000 reorganization and renumbering of the rules published with the Court's Order at 30 Pa.B. 1478 (March 18, 2000).
Final Report explaining the June 10, 2016 amendments clarifying that forfeited collateral may be applied to restitution published with the Court's Order at 46 Pa.B. 3238 (June 25, 2016).
PART C. Procedures in Summary Cases When Complaint Filed Rule 423. Not Guilty Pleas—Notice of Trial.
(A) A defendant may plead not guilty by:
(1) appearing before the issuing authority, entering the plea, and depositing such collateral for appearance at trial as the issuing authority shall require; or
(2) notifying the issuing authority in writing of the plea and forwarding as collateral for appearance at trial an amount equal to the fine and costs specified in the summons, plus any additional fee required by law. If the fine and costs are not specified, the defendant shall forward the sum of $50 as collateral for appearance at trial.
(B) The issuing authority, upon receiving a plea of not guilty, shall:
(1) fix a date and hour for trial;
(2) notify the defendant and the affiant of the date and hour fixed for the trial; and
(3) advise the defendant that failure to appear for trial shall constitute consent to trial in the defendant's absence and if the defendant is found guilty, the collateral deposited shall be forfeited and applied toward the fine [and], costs, and restitution, and the defendant shall have the right to appeal within 30 days for a trial de novo.
Comment It is intended that the defendant will appear in person before the issuing authority to plead not guilty when the defendant cannot afford to deposit the amount of collateral specified in the summons or the $50 when no amount is specified. A plea entered by mail must be accompanied by the full amount of collateral. See Rule 452. All checks for collateral shall be made payable to the magisterial district number set forth on the summons.
When fixing the date and hour for trial, the issuing authority should determine whether the trial must be delayed because the defendant's criminal record must be ascertained prior to trial as specifically required by statute for purposes of grading the offenses charged.
Paragraph (B)(3) was amended in 2016 to clarify that collateral may be forfeited for the payment of restitution as well as for the fine and costs that have been assessed by an issuing authority. See 18 Pa.C.S. § 1106(d) for the authority of a magisterial district judge to impose restitution on a defendant.
Official Note: Previous Rule 68 adopted September 18, 1973, effective January 1, 1974; rescinded July 12, 1985, effective January 1, 1986, and not replaced in the present rules. Present Rule 68 adopted July 12, 1985, effective January 1, 1986. The January 1, 1986 effective dates all are extended to July 1, 1986; amended January 31, 1991, effective July 1, 1991; renumbered Rule 423 and amended March 1, 2000, effective April 1, 2001; amended June 10, 2016, effective August 1, 2016.
Committee Explanatory Reports:
Report explaining the January 31, 1991 amendments published at 20 Pa.B. 4788 (September 15, 1990); Supplemental Report published at 21 Pa.B. 621 (February 16, 1991).
Final Report explaining the March 1, 2000 reorganization and renumbering of the rules published with the Court's Order at 30 Pa.B. 1478 (March 18, 2000).
Final Report explaining the June 10, 2016 amendments clarifying that forfeited collateral may be applied to restitution published with the Court's Order at 46 Pa.B. 3238 (June 25, 2016).
PART E. General Procedures in Summary Cases Rule 452. Collateral.
* * * * * (G) The collateral deposited may be forfeited after conviction at the summary trial and applied to payment of the fine [and], costs, and restitution.
Comment The term ''collateral'' is intended to convey the dual purpose of the amount of money that is deposited. First, the amount deposited is used as bail to secure the defendant's appearance at the summary trial. Second, the amount deposited is used as security, and may be forfeited in the event of a conviction to satisfy any fine [and], costs, and restitution.
A defendant may not be penalized or denied a hearing because he or she cannot pay the full amount of the fine and costs as collateral.
For the purpose of paragraph (F), any guaranteed arrest bond certificate issued by an automobile club or association pursuant to 40 P.S. § 837 (1959) would constitute a ''cash equivalent.''
Paragraph (G) was amended in 2016 to clarify that collateral may be forfeited for the payment of restitution as well as for the fine and costs that have been assessed by an issuing authority. See 18 Pa.C.S. § 1106(d) for the authority of a magisterial district judge to impose restitution on a defendant.
Official Note: Rule 81 adopted July 12, 1985, effective January 1, 1986; effective date extended to July 1, 1986; Comment revised February 1, 1989, effective July 1, 1989; Comment revised May 14, 1999, effective July 1, 1999; renumbered Rule 452 and Comment revised March 1, 2000, effective April 1, 2001; amended April 10, 2015, effective July 10, 2015; amended June 10, 2016, effective August 1, 2016.
Committee Explanatory Reports:
Final Report explaining the May 14, 1999 Comment revisions published with the Court's Order at 29 Pa.B. 2775 (May 29, 1999).
Final Report explaining the March 1, 2000 reorganization and renumbering of the rules published with the Court's Order at 30 Pa.B. 1478 (March 18, 2000).
Final Report explaining the April 10, 2015 amendment concerning the setting of collateral published with the Court's Order at 45 Pa.B. 2045 (April 25, 2015).
Final Report explaining the June 10, 2016 addition of ''restitution'' to the list of items for which collateral may be forfeited after conviction published with the Court's Order at 46 Pa.B. 3238 (June 25, 2016).
Rule 455. Trial in Defendant's Absence.
* * * * * (E) Any collateral previously deposited shall be forfeited and applied only to the payment of the fine [and], costs, and restitution. When the amount of collateral deposited is more than the fine [and], costs, and restitution, the balance shall be returned to the defendant.
(F) If the defendant does not respond within 10 days to the notice in paragraph (D), the issuing authority may issue a warrant for the defendant's arrest.
Comment * * * * * If the defendant is 18 years of age or older and fails to pay or appear as required in paragraph (D), the issuing authority must proceed under these rules.
Paragraph (E) was amended in 2016 to clarify that collateral may be forfeited for the payment of restitution as well as for the fine and costs that have been assessed by an issuing authority. See 18 Pa.C.S. § 1106(d) for the authority of a magisterial district judge to impose restitution on a defendant.
Concerning the appointment or waiver of counsel, see Rules 121 and 122.
For arrest warrant procedures in summary cases, see Rules 430 and 431.
Official Note: Rule 84 adopted July 12, 1985, effective January 1, 1986; January 1, 1986 effective date extended to July 1, 1986; amended February 1, 1989, effective July 1, 1989; amended April 18, 1997, effective July 1, 1997; amended October 1, 1997, effective October 1, 1998; renumbered Rule 455 and Comment revised March 1, 2000, effective April 1, 2001; Comment revised August 7, 2003, effective July 1, 2004; Comment revised April 1, 2005, effective October 1, 2005; amended August 15, 2005, effective February 1, 2006; Comment revised January 17, 2013, effective May 1, 2013; Comment revised July 17, 2013, effective August 17, 2013 ; Comment revised March 9, 2016, effective July 1, 2016; amended June 10, 2016, effective August 1, 2016.
Committee Explanatory Reports:
* * * * * Final Report explaining the March 9, 2016 Comment revision cross-referencing the sentencing provisions in Rule 454(F) published with the Court's Order at 46 Pa.B. 1540 (March 26, 2016).
Final Report explaining the June 10, 2016 amendments clarifying that forfeited collateral may be applied to restitution published with the Court's Order at 46 Pa.B. 3238 (June 25, 2016).
CHAPTER 10. RULES OF CRIMINAL PROCEDURE FOR THE PHILADELPHIA MUNICIPAL COURT AND THE PHILADELPHIA MUNICIPAL COURT TRAFFIC DIVISION PART B. Philadelphia Municipal Court Traffic Division Procedures Rule 1031. Institution of Proceedings in Summary Traffic Cases.
(A) Summary traffic cases in Philadelphia shall be instituted by:
(1) issuing a citation to the defendant as provided in Rules 405—409;
(2) filing a citation with the Philadelphia Municipal Court Traffic Division as provided in Rules 410—414; or
(3) arresting without a warrant when arrest is specifically authorized by law as provided in Rules 440 and 441.
(B) When provided by local rule as an exception to the trial notice procedures in Rule 408(B), the law enforcement officer also shall give the defendant written notice of the date and time and location set for the summary trial when a citation is issued to the defendant as provided in Rule 405.
(1) The trial notice shall include an explanation that if the defendant enters a guilty plea and pays the fine and costs indicated on the citation within the specified time, the summary trial will be cancelled.
(2) The trial notice also shall include notice to the defendant that:
(a) failure to appear for the trial shall constitute consent for the trial to be conducted in the defendant's absence;
(b) if the defendant is found guilty, the collateral deposited will be forfeited and applied [toward the fine and costs] to payment of the fine, costs, and restitution; and
(c) the defendant will have the right to appeal within 30 days for a trial de novo in the court of common pleas.
Comment See Rule 403 for the contents of the citation.
The trial notice permitted in paragraph (B) may be added to the citation form.
Paragraph (B)(2)(b) was amended in 2016 to clarify that collateral may be forfeited for the payment of restitution as well as for the fine and costs that have been assessed by an issuing authority.
See Rule 105 for the procedures for promulgating local rules.
Official Note: Adopted September 9, 2005, effective February 1, 2006; amended May 7, 2014, effective immediately; amended June 10, 2016, effective August 1, 2016.
Committee Explanatory Reports:
Final Report explaining the provisions of the new rule published with the Court's Order at 35 Pa.B. 5242 (September 24, 2005).
Final Report explaining the May 7, 2014 amendments concerning the transfer of functions from the Philadelphia Traffic Court to the Philadelphia Municipal Court published with the Court's Order at 44 Pa.B. 3065 (May 24, 2014).
Final Report explaining the June 10, 2016 addition of ''restitution'' to the list of items for which collateral may be forfeited after conviction published with the Court's Order at 46 Pa.B. 3238 (June 25, 2016)
FINAL REPORT1 Amendments to Pa.Rs.Crim.P. 408, 413,
423, 452, 455, and 1031Restitution and Forfeited Collateral in
Summary CasesOn June 15, 2016, effective August 1, 2016, upon the recommendation of the Criminal Procedural Rules Committee, the Court amended Rules 408 (Not Guilty Pleas—Notice of Trial), 413 (Not Guilty Pleas—Notice of Trial), 423 (Not Guilty Pleas—Notice of Trial), 452 (Collateral), 455 (Trial in Defendant's Absence), and 1031 (Institution of Proceedings in Summary Traffic Cases) to clarify that restitution is one of the types of assessments for which collateral may be forfeited after conviction in a summary case.
Retention of summary case collateral has long been permitted under Rule 452(G) which states, ''The collateral deposited may be forfeited after conviction at the summary trial and applied to payment of the fine and costs.'' The Minor Judiciary Education Board asked the Committee to consider whether collateral that had been previously set could be similarly applied to pay restitution awarded in summary cases. This question was prompted by the Court's recent adoption of amendments to Rule 528 (Monetary Condition for Release of Bail) and Rule 535 (Receipt for Deposit; Return of Deposit) that provided procedures in court cases for applying bail that would be otherwise returnable to case assessments including restitution. The Board suggested the Committee consider an amendment to Rule 452 to include specific mention of restitution.
The language regarding forfeiture of collateral has been in Rule 452 (originally Rule 81) since it first was adopted in 1985. It appears that this provision developed in consideration of the traditional summary citation case, usually involving traffic offenses, where the defendant is permitted to post collateral for a fixed fine and costs while awaiting the summary trial. This collateral then could be applied to the fine and costs if the defendant failed to appear or could be applied directly if the defendant were convicted. In these types of cases, restitution was rarely awarded. However, in developing the rule, the Committee did not appear to have considered other summary cases, such as non-traffic offenses, where there is no fixed fine and where restitution can be a factor in the potential sentence.
Additionally, at the time, there was a question among some issuing authorities of their power to impose restitution as part of a summary sentence. Certainly, if there was previously a question on the authority of MDJs to award restitution, that has been addressed statutorily in paragraph (d) of Section 1106 of Title 18, the general restitution provision. Furthermore, the summary case rules contain numerous references to the award of restitution in summary cases. For example, Rule 403 (Contents of Citation), while not requiring restitution to be listed on the citation, contains Comment language making passing reference to the award of restitution as part of a summary sentence. Similarly, Rule 462 (Trial De Novo) references restitution as part of the sentence. Furthermore, the collection of restitution by magisterial district judges in summary cases appears to have been a long-standing practice, particularly in non-traffic summaries such as criminal mischief, bad checks, retail theft and other crimes where there may have been loss of property or damages. In addition, the Magisterial District Justice System (MDJS) currently permits collateral in summary cases to be used to offset restitution.
The allowance under Rule 452(G) that collateral may be forfeited to be applied to case assessments was, until recently, one of the major differences between summary collateral and court case bail. As noted in the Comment to Rule 452, collateral has a dual purpose as bail to secure the defendant's appearance at the summary trial, and as security for the payment of fines and costs. With the Court's recent approval of the changes to Rules 528 and 535, that permits returnable bail money to be retained to pay case assessments, that distinction has become less pronounced.
The Committee therefore concluded that there is not a compelling reason why collateral should not be used to satisfy restitution. Furthermore, it is inconsistent to permit the application of bail money to restitution in court cases but not collateral for restitution in summary cases. This is especially compelling in light of the Court's recent adoption of Rule 705.1 and associated correlative rule changes designed to enhance the collection of restitution in court cases.2 Finally, the amendment to Rule 452(G) codifies current practice.
The Committee considered whether the amendments should include procedures similar to those contained in the amendments to Rules 528 and 535 for the retention of bail, such as requiring a motion by the attorney for the Commonwealth. The Committee concluded that, given the relatively small amount of money set for collateral in summary cases which is limited under Rule 452(A) to the full amount of fines and costs, incorporating such extensive procedures would needlessly complicate a process currently being accomplished without reported problem.
As a result of post-submission comments from the Court, the Committee considered the advisability of making changes to Rules 408, 413, 423, and 455. Paragraph (B)(3) of Rules 408, 413, and 423 provide for several notices to be given to a defendant in response to a not guilty plea being entered. In addition to notice of when the summary trial will take place, the defendant is advised that the collateral will be forfeited if he or she fails to appear for the trial. Restitution usually would not be calculated when setting the collateral because that would usually occur at sentencing. However, there is a potential in some cases in which the defendant is tried in absentia and restitution awarded as part of the sentence. Then a court could have the collateral forfeited which could then be applied to the restitution owed. Therefore, the Committee concluded that inclusion of restitution in the notice would avoid any possible confusion. Accordingly, changes similar to those made to Rule 452 have been made to these three rules.
During the development of these rule changes, the Committee discovered that Paragraph (B)(3) of Rule 423 contained a typographical error in that it failed to state the number of days that a defendant has in which to file an appeal for a trial de novo. It appears that this error occurred during the renumbering of the rules in 2000. As part of those amendments, when numbers were contained in the rules, they were converted from text to Arabic numerals. It appears that the term ''thirty'' was removed from Rule 423(B)(3) but that the numeral ''30'' had not been added. Also, the term ''thirty'' in the identical paragraphs in Rules 408 and 413 had not been converted to the numeral ''30.'' This technical correction has been made to all three of these rules.
Rule 455(E)3 describes the handling of collateral following a trial in absentia including the distribution of forfeited collateral. As the language of this paragraph mirrors Rule 452(B), the Committee determined that the language of the rules should be consistent. Therefore, amendments comparable to the changes to Rule 452(B) have been made to Rule 455(E).
The Committee also considered a similar change to Rule 1031(B)(2)(b) that governs the institution of summary traffic cases in the Philadelphia Municipal Court Traffic Division. Although currently restitution sentences are not being awarded in these cases, the Committee considered whether the changes should be included for consistency. Committee members consulted with representatives of the Traffic Division who indicated that while sentences of restitution are not currently issued in traffic cases, they did not want to preclude the possibility of using forfeited collateral for any such awards should they be used in the future. It should be noted that, while 18 Pa.C.S. § 1106 does not specifically provide for restitution in traffic cases, there are several provisions of the Motor Vehicle Code that permits restitution to be awarded for certain cases. See, e.g., 75 Pa.C.S. § 6126. Therefore, amendments similar to the other rules have been made to Rule 1031.
[Pa.B. Doc. No. 16-1058. Filed for public inspection June 24, 2016, 9:00 a.m.] _______
