Title 234--RULES OF CRIMINAL PROCEDURE PART I. GENERAL [234 PA. CODE CH. 1400] Order Adopting Amendments to Rule 1410; No. 247 Criminal Procedural Rules Doc. No. 2 [29 Pa.B. 3835] The Criminal Procedural Rules Committee has prepared a Final Report explaining the July 9, 1999 amendments to Rule 1410 (Post-Sentence Procedures; Appeal). These changes (1) fill a gap in the rule by addressing, inter alia, the time for appeal following a withdrawal of a post-sentence motion; (2) clarify that Rule 1410 does not address Pa.R.C.P. 1925(b) nor waiver of appellate issues once an appeal is filed; and (3) add a citation to Commonwealth v. Lord, 719 A.2d 306 (Pa. 1998). The Final Report follows the Court's Order.
Order Per Curiam:
Now, this 9th day of July, 1999, upon the recommendation of the Criminal Procedural Rules Committee; this proposal having been submitted without publication pursuant to Pa.R.J.A. 103(a)(3), 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 Pa.R.Crim.P. 1410 is hereby amended as follows.
This Order shall be processed in accordance with Pa.R.J.A. 103(b), and shall be effective January 1, 2000.
Annex A TITLE 234. RULES OF CRIMINAL PROCEDURE CHAPTER 1400. SENTENCING Rule 1410. Post-Sentence Procedures; Appeal.
(A) Timing.
* * * * * (2) If the defendant files a timely post-sentence motion, the notice of appeal shall be filed:
(a) within 30 days of the entry of the order deciding the motion; [, or,]
(b) [if the judge fails to decide the motion,] within 30 days of the entry of the order denying the motion by operation of law in cases in which the judge fails to decide the motion; or[.]
(c) within 30 days of the entry of the order memorializing the withdrawal in cases in which the defendant withdraws the motion.
(3) If the defendant does not file a post-sentence motion, the defendant's notice of appeal shall be filed within 30 days of imposition of sentence, except as provided in subsection (A)(4).
(4) If the Commonwealth files a motion to modify sentence pursuant to Rule 1411, the defendant's notice of appeal shall be filed within 30 days of the entry of the order disposing of the Commonwealth's motion.
(B) Optional Post-Sentence Motion.
* * * * * (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 subsection.
* * * * * (c) When a post-sentence motion is denied by operation of law, the clerk of courts shall forthwith enter an order on behalf of the court, and shall forthwith furnish a copy of the order by mail or personal delivery to the attorney for the Commonwealth, the defendant(s), and defense counsel that the post-sentence motion is deemed denied. This order is not subject to reconsideration.
(d) If the defendant withdraws a post-sentence motion, the judge promptly shall enter an order memorializing the withdrawal. The order shall include the information required by paragraph (B)(4).
(4) Contents of Order.
An order denying a post-sentence motion, whether signed by the judge or entered by the clerk of courts, or an order entered following a defendant's withdrawal of the post-sentence motion, shall include notice to the defendant of the following:
* * * * * 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.
Comment This rule is derived from previous Rules 321, 1123, and 1410. See also Rules 1122, 1124, and 1125.
For post-sentence procedures after a sentence of death has been imposed, see Rule 360.
The purpose of this rule is to promote the fair and prompt disposition of all issues relating to guilty pleas, trial, and sentence by consolidating all possible motions to be submitted for trial court review, and by setting reasonable but firm time limits within which the motion must be decided. Because the post-sentence motion is optional, the defendant may choose to raise any or all properly preserved issues in the trial court, in the appellate court, or both.
Timing
* * * * * When a defendant files a timely post-sentence motion, the 30-day period for the defendant's direct appeal on all matters in that case--including all issues related to any informations and any charges consolidated against the defendant for trial--is triggered by the trial judge's decision on the post-sentence motion, [or] the denial of the motion by operation of law, or the withdrawal of the post-sentence motion. The appeal period runs from the entry of the order. As to the date of entry of orders, see Pa.R.A.P. 108. See also Commonwealth v. Miller, 715 A.2d 1203 (Pa. Super. 1998), concerning the time for appeal following the withdrawal of a post-sentence motion. No direct appeal may be taken by a defendant while his or her post-sentence motion is pending. See subsection (A)(2).
* * * * * Optional Post-Sentence Motion
* * * * * Under subsection (B)(1)(c), any issue raised before or during trial is deemed preserved for appeal whether or not the defendant chooses to raise the issue in a post-sentence motion. It follows that the failure to brief or argue an issue in the post-sentence motion would not waive that issue on appeal as long as the issue was properly preserved, in the first instance, before or during trial. Nothing in this rule, however, is intended to address Pa.R.A.P. 1925(b) or the preservation of appellate issues once an appeal is filed. See Commonwealth v. Lord, 719 A.2d 306 (Pa. 1998) (any issues not raised in a 1925(b) statement will be deemed waived).
* * * * * Contents of Order
Subsection (B)(4) protects the defendant's right to appeal by requiring that the judge's order denying the motion, [or] the clerk of courts' order denying the motion by operation of law, or the order entered memorializing a defendant's withdrawal of a post-sentence motion, contain written notice of the defendant's appeal rights. This requirement insures adequate notice to the defendant, which is important given the potential time lapse between the notice provided at sentencing and the resolution of the post-sentence motion. See Rule 1405.C(3). See also Commonwealth v. Miller, 715 A.2d 1203 (Pa. Super. 1998), concerning the contents of the order memorializing the withdrawal of a post-sentence motion.
When a defendant withdraws a post-sentence motion in open court and on the record, the judge should orally enter an order memorializing the withdrawal for the record, and give the defendant notice of the information required by paragraph (B)(4). See Commonwealth v. Miller, supra.
* * * * * Committee Explanatory Reports:
* * * * * Final Report explaining the July 9, 1999 amendments to subsections (A)(2) and (B)(4) concerning time for appeal and contents of the order entered following withdrawal of post-sentence motion, and revision of the Comment adding the citation to Commonwealth v. Lord, published with the Court's Order at 29 Pa.B. 3836 (July 24, 1999).
FINAL REPORT1 Amendments to Pa.R.Crim.P. 1410 Withdrawal of Post-Sentence Motions; Commonwealth v. Lord On July 9, 1999, effective January 1, 2000, upon the recommendation of the Criminal Procedural Rules Committee, the Court amended Rule 1410 (Post-Sentence Procedures; Appeal) to fill a gap in the rule by addressing, inter alia, the time for appeal following a withdrawal of a post-sentence motion. In addition, the Court approved the revision of the Comment (1) to clarify that Rule 1410 does not address Pa.R.A.P. 1925(b) nor waiver of appellate issues once an appeal is filed, and (2) by adding a citation to Commonwealth v. Lord, 719 A.2d 306 (Pa. 1998).
Discussion
1. Withdrawal of Post-Sentence Motions
As part of the Committee's review of cases addressing Rule 1410 and post-sentence procedures, the Committee considered Commonwealth v. Miller, 715 A.2d 1203 (Pa. Super. 1998), in which the Superior Court applied the procedures of Rule 1410 to cases in which the defendant withdraws a post-sentence motion. Because Rule 1410 did not cover withdrawals of post-sentence motions, the Superior Court held that
the withdrawal of a post-sentence motion is the equivalent of a denial of that motion either by the trial court or by operation of law for purposes of the requirements for filing a timely notice of appeal under Pa.R.Crim.P. 1410.
The court also determined that
if the defendant withdraws a post-sentence motion, the court shall issue an order memorializing the withdrawal and notifying the defendant of his or her appellate rights pursuant to Rule 1410(B)(4). Consistent with our earlier conclusion, this notice should state that the appeal period expires thirty days following the date of the withdrawal of the post-sentence motion.
The Committee reviewed the Committee history of the development of Rule 1410 and found that the issue of waivers had not been addressed at that time. Although some members noted that the Miller case was the first time the issue of withdrawals of post-sentence motions has come before the Committee, and questioned whether any rule changes were necessary, after discussing this matter in more detail, the Committee agreed that, although it is apparent that withdrawal issues do not arise frequently, this was a gap in post-sentence procedures that should be closed in Rule 1410 to avoid further confusion.
Using the process for proceeding following a waiver set forth by the Superior Court in Miller as the starting point for the development of the changes, the Committee drafted amendments to paragraphs (A)(2) and (B)(3) and (4) that clarify the time for appeal following a withdrawal, and require the trial judge to issue an order memorializing the withdrawal. We also proposed correlative changes to other parts of Rule 1410 and the Comment. These changes are more fully explained in the Rule 1410 annotations as follows. (The annotations are indicated in italics preceding the changes.)
Rule 1410. Post-Sentence Procedures; Appeal.
(A) Timing.
(1) Except as provided in Section D, a written post-sentence motion shall be filed no later than 10 days after imposition of sentence.
The Committee added the withdrawal provision to paragraph (A)(2). With the addition of the withdrawal provision, the Committee thought that paragraph (2) should be reorganized to make the three provisions more distinct, and that the wording of the provisions should be reorganized so each one begins with the 30-day time period.
The Committee used ''entry of the order'' for two reasons. First, the entry of the order is consistent with the other two provisions in paragraph (A)(2). Second, it seemed to us that the date that an order is entered is more likely to be a date certain than the date of a withdrawal.
(2) If the defendant files a timely post-sentence motion, the notice of appeal shall be filed:
(a) within 30 days of the entry of the order deciding the motion; [, or,]
(b) [if the judge fails to decide the motion,] within 30 days of the entry of the order denying the motion by operation of law in cases in which the judge fails to decide the motion; or[.]
(c) within 30 days of the entry of the order memorializing the withdrawal in cases in which the defendant withdraws the motion.
(3) If the defendant does not file a post-sentence motion, the defendant's notice of appeal shall be filed within 30 days of imposition of sentence, except as provided in subsection (A)(4).
(4) If the Commonwealth files a motion to modify sentence pursuant to Rule 1411, the defendant's notice of appeal shall be filed within 30 days of the entry of the order disposing of the Commonwealth's motion.
(B) Optional Post-Sentence Motion.
The Committee agreed that ''file'' more accurately describes what a defendant does with a post-sentence motion, and paragraph (1)(a) has been amended accordingly.
(1) Generally.
(a) The defendant in a court case shall have the right to [make] file a post-sentence motion. All requests for relief from the trial court shall be stated with specificity and particularity, and shall be consolidated in the post-sentence motion, which may include:
* * * * * The Superior Court in Commonwealth v. Miller held that the trial court must issue an order memorializing the withdrawal and notifying the defendant of the appellate rights set forth in Rule 1410(B)(4). The Committee has included the requirement in this section because the section applies to court action following the filing of the post-sentence motion. Again, for purposes of consistency with other Rule 1410 provisions, we have used ''enter'' instead of ''issue'' with regard to the court's order.
(B)(3)(d) In cases in which the defendant withdraws a post-sentence motion, the judge promptly shall enter an order memorializing the withdrawal. The order shall include the information required by paragraph (B)(4).
As noted above, the Superior Court held that the order memorializing the withdrawal must also include a notice to the defendant of the requirements of Rule 1410(B)(4). In view of this holding, the Committee has added the requirement to paragraph (B)(4).
(4) Contents of Order.
An order denying a post-sentence motion, whether signed by the judge or entered by the clerk of courts, or an order entered following a defendant's withdrawal of the post-sentence motion, shall include notice to the defendant of the following:
Comment * * * * * Timing
Section (A) contains the timing requirements for filing the optional post-sentence motion and taking an appeal. Under subsection (A)(1), the post-sentence motion must be filed within 10 days of imposition of sentence.
The following paragraph has been revised to add the withdrawal provision to the triggering mechanisms, and includes the citation to the Miller case.
When a defendant files a timely post-sentence motion, the 30-day period for the defendant's direct appeal on all matters in that case--including all issues related to any informations and any charges consolidated against the defendant for trial--is triggered by the trial judge's decision on the post-sentence motion, [or] the denial of the motion by operation of law, or the withdrawal of the post-sentence motion. The appeal period runs from the entry of the order. As to the date of entry of orders, see Pa.R.A.P. 108. See also Commonwealth v. Miller, 715 A.2d 1203 (Pa. Super. 1998), concerning the time for appeal following the withdrawal of a post-sentence motion. No direct appeal may be taken by a defendant while his or her post-sentence motion is pending. See subsection (A)(2).
* * * * * Contents of Order
The following paragraph has been revised to add the withdrawal order to the list of orders, and to include another citation to the Miller case.
Subsection (B)(4) protects the defendant's right to appeal by requiring that the judge's order denying the motion, [or] the clerk of courts' order denying the motion by operation of law, or the order entered memorializing a defendant's withdrawal of a post-sentence motion, contain written notice of the defendant's appeal rights. This requirement insures adequate notice to the defendant, which is important given the potential time lapse between the notice provided at sentencing and the resolution of the post-sentence motion. See Rule 1405.C(3). See also Commonwealth v. Miller, 715 A.2d 1203 (Pa. Super. 1998), concerning the contents of the order memorializing the withdrawal of a post-sentence motion.
The Superior Court also held that, when the defendant withdraws the motion in open court on the record, the court need not issue a written order, and that it is sufficient to explain the provisions of paragraph (B)(4) on the record. The Committee added this concept to the Comment rather than the rule because we thought it was more a gloss on the procedure the court was establishing than an actual requirement.
When a defendant withdraws a post-sentence motion in open court and on the record, the judge should orally enter an order memorializing the withdrawal for the record, and give the defendant notice of the information required by paragraph (B)(4). See Commonwealth v. Miller, supra.
2. Pa.R.Crim.P. 1410 Comment Revision--Commonwealth v. Lord
Another part of our ongoing review of post-sentence practice since the implementation of the procedures in 1994 has been to follow the development of the case law related to the courts' interpretation of the interplay between Criminal Rule 1410 and Pa.R.A.P. 1925. We noted that there was concern about the possible incompatibility between Criminal Rule 1410, which eliminated the ''double waiver'' rule at the trial level, and Appellate Rule 1925(b), which permitted an appellate court to find waiver of issues not included in a 1925(b) statement of matters complained of on appeal. After an extensive review of the Committee's history on the development of Rule 1410 and the case law decided after 1994, the Committee did not think that an amendment to the text of Rule 1410 or Rule 1925(b) was necessary. However, because the issue continues to come up in case law, indicating that there is still some confusion, the Committee agreed that a clarifying statement should be added to the Rule 1410 Comment as an aid to the bench and bar.
As the Committee was developing this Comment revision, the Supreme Court handed down its decision in Commonwealth v. Lord, supra., and directed that this decision be referenced in the rules. Accordingly, the Rule 1410 Comment has been revised, as follows, to make it clear that Rule 1410 does not address the preservation of issues in a 1925(b) statement, and to include the Court-requested reference to Commonwealth v. Lord.
Under subsection (B)(1)(c), any issue raised before or during trial is deemed preserved for appeal whether or not the defendant chooses to raise the issue in a post-sentence motion. It follows that the failure to brief or argue an issue in the post-sentence motion would not waive that issue on appeal as long as the issue was properly preserved, in the first instance, before or during trial. Nothing in this rule, however, is intended to address Pa.R.A.P. 1925(b) or the preservation of appellate issues once an appeal is filed. See Commonwealth v. Lord, 719 A.2d 306 (Pa. 1998), (any issues not raised in a 1925(b) statement will be deemed waived).
[Pa.B. Doc. No. 99-1172. Filed for public inspection July 23, 1999, 9:00 a.m.] _______
