Title 234—RULES OF CRIMINAL PROCEDURE [ 234 PA. CODE CH. 5 ] Proposed Amendments of Pa.R.Crim.P. 590 [46 Pa.B. 3636]
[Saturday, July 9, 2016]The Criminal Procedural Rules Committee is planning to propose to the Supreme Court of Pennsylvania the amendment of Rules 590 (Pleas and Plea Agreements) for the reasons set forth in the accompanying explanatory report. Pursuant to Pa.R.J.A. No. 103(a)(1), the proposal is being published in the Pennsylvania Bulletin for comments, suggestions, or objections prior to submission to the Supreme Court.
Any reports, notes, or comments in the proposal have been inserted by the Committee for the convenience of those using the rules. They neither will constitute a part of the rules nor will be officially adopted by the Supreme Court.
Additions to the text of the proposal are bolded; deletions to the text are bolded and bracketed.
The Committee invites all interested persons to submit comments, suggestions, or objections in writing to:
Jeffrey M. Wasileski, Counsel
Supreme Court of Pennsylvania
Criminal Procedural Rules Committee
601 Commonwealth Avenue, Suite 6200
Harrisburg, PA 17106-2635
fax: (717) 231-9521
e-mail: criminalrules@pacourts.usAll communications in reference to the proposal should be received by no later than Friday, September 16, 2016. E-mail is the preferred method for submitting comments, suggestions, or objections; any e-mailed submission need not be reproduced and resubmitted via mail. The Committee will acknowledge receipt of all submissions.
By the Criminal Procedural
Rules CommitteeJEFFREY A. MANNING,
ChairAnnex A TITLE 234. RULES OF CRIMINAL PROCEDURE CHAPTER 5. PRETRIAL PROCEDURES IN COURT CASES PART H. Plea Procedures Rule 590. Pleas and Plea Agreements.
* * * * * (B) PLEA AGREEMENTS.
(1) [When] At any time prior to the verdict, when counsel for both sides have arrived at a plea agreement, they shall state on the record in open court, in the presence of the defendant, the terms of the agreement, unless the judge orders, for good cause shown and with the consent of the defendant, counsel for the defendant, and the attorney for the Commonwealth, that specific conditions in the agreement be placed on the record in camera and the record sealed.
(2) The judge shall conduct a separate inquiry of the defendant on the record to determine whether the defendant understands and voluntarily accepts the terms of the plea agreement on which the guilty plea or plea of nolo contendere is based.
(3) Any local rule that is inconsistent with the provisions of this rule is prohibited, including any local rule mandating deadline dates for the acceptance of a plea entered pursuant to a plea agreement.
(C) MURDER CASES.
In cases in which the imposition of a sentence of death is not authorized, when a defendant enters a plea of guilty or nolo contendere to a charge of murder generally, the degree of guilt shall be determined by a jury unless the attorney for the Commonwealth elects to have the judge, before whom the plea was entered, alone determine the degree of guilt.
Comment * * * * * The 1995 amendment deleting former paragraph (B)(1) eliminates the absolute prohibition against any judicial involvement in plea discussions in order to align the rule with the realities of current practice. For example, the rule now permits a judge to inquire of defense counsel and the attorney for the Commonwealth whether there has been any discussion of a plea agreement, or to give counsel, when requested, a reasonable period of time to conduct such a discussion. Nothing in this rule, however, is intended to permit a judge to suggest to a defendant, defense counsel, or the attorney for the Commonwealth, that a plea agreement should be negotiated or accepted.
Paragraph (B)(1) was amended and paragraph (B)(3) was added in 2016 to clarify that the intent of this rule is that a plea made pursuant to an agreement may be entered any time prior to verdict. Any local rule that places a time limit for the entry of such pleas prior to verdict is in conflict with this rule and therefore invalid.
Under paragraph (B)(1), upon request and with the consent of the parties, a judge may, as permitted by law, order that the specific conditions of a plea agreement be placed on the record in camera and that portion of the record sealed. Such a procedure does not in any way eliminate the obligation of the attorney for the Commonwealth to comply in a timely manner with Rule 573 and the constitutional mandates of Brady v. Maryland, 373 U.S. 83 (1963), and its progeny. Similarly, the attorney for the Commonwealth is responsible for notifying the cooperating defendant that the specific conditions to which the defendant agreed will be disclosed to third parties within a specified time period, and should afford the cooperating defendant an opportunity to object to the unsealing of the record or to any other form of disclosure.
* * * * * Official Note: Rule 319(a) adopted June 30, 1964, effective January 1, 1965; amended November 18, 1968, effective February 3, 1969; paragraph (b) adopted and title of rule amended October 3, 1972, effective 30 days hence; specific areas of inquiry in Comment deleted in 1972 amendment, reinstated in revised form March 28, 1973, effective immediately; 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; paragraph (c) added and Comment revised May 22, 1978, effective July 1, 1978; Comment revised November 9, 1984, effective January 2, 1985; amended December 22, 1995, effective July 1, 1996; amended July 15, 1999, effective January 1, 2000; renumbered Rule 590 and Comment revised March 1, 2000, effective April 1, 2001; amended September 18, 2008, effective November 1, 2008; Comment revised March 9, 2016, effective July 1, 2016; amended , 2016, effective , 2016.
Committee Explanatory Reports:
* * * * * Final Report explaining the March 9, 2016 Comment revision concerning the Rule 705.1 restitution procedures published with the Court's Order at 46 Pa.B. 1540 (March 26, 2016).
Report explaining the proposed amendments concerning plea agreement deadlines published for comment at 46 Pa.B. 3637 (July 9, 2016).
REPORT Proposed amendment of Pa.R.Crim.P. 590 Plea Bargain Deadline It has come to the Committee's attention that several counties have local rules that contain a date after which a defendant may not enter a plea pursuant to an agreement.1 These rules provide that if this date is missed, the defendant is then required to enter an open plea or take a trial.
The Committee has concluded that these provisions are in conflict with statewide Rule 590(B) that provides the procedures for the entry of pleas made pursuant to a plea agreement. Rule 590(B) provides:
(1) When counsel for both sides have arrived at a plea agreement, they shall state on the record in open court, in the presence of the defendant, the terms of the agreement, unless the judge orders, for good cause shown and with the consent of the defendant, counsel for the defendant, and the attorney for the Commonwealth, that specific conditions in the agreement be placed on the record in camera and the record sealed.
(2) The judge shall conduct a separate inquiry of the defendant on the record to determine whether the defendant understands and voluntarily accepts the terms of the plea agreement on which the guilty plea or plea of nolo contendere is based.
Statewide Rule 590(B) does not contain a temporal limit for the entry of a negotiated plea. The creation of such a deadline in a local rule constitutes an additional local requirement not contemplated by the statewide rule and creates an inconsistency with practice elsewhere in the Unified Judicial System.
The Committee recognizes that there is no right to a plea bargain and a trial judge has a great amount of discretion in whether to accept a plea bargain. The Committee also appreciates that the main rationale of these local deadlines is to more effectively administer a court's trial case load. However, from a practical standpoint, there are a number of circumstances in which a negotiated plea may be entered late in a case, even during trial. For example, the way in which the evidence develops may significantly alter the parties' positions on a negotiated plea. An absolute bar on the acceptance of post-deadline agreements is counter-productive. While some ''down-time'' may result when a scheduled trial is resolved by a plea, it seems far less inefficient than forcing the parties into a trial that they are willing to forego for a negotiated plea. The Committee members believe that a trial judge should exercise individualized consideration on the merits of a negotiated plea in determining whether to accept or reject it rather than reliance on a set deadline. Therefore, the Committee has concluded that the prerogative of the parties to freely enter into a negotiated disposition of a case should not be summarily refused solely because of the timing of the presentation of the agreement to the court.
Although the Committee has concluded that such local rules are already in conflict with statewide Rule 590, it was believed that some clarification of this point would be beneficial. Therefore, Rule 590(B)(1) would be amended by the addition of a prefatory statement that a plea pursuant to an agreement may be entered any time prior to the verdict. The prohibition against plea entry deadlines would be further elaborated in the Comment.
[Pa.B. Doc. No. 16-1157. Filed for public inspection July 8, 2016, 9:00 a.m.] _______
1 It appears that most of these rules were in place prior to 2009 when Rule 105 was amended to require approval from the Committee prior to a local rule being adopted.
