1435 Order approving the revisions to the comments to Rules 409, 414, 424, 454 and 455 of the Rules of Criminal Procedure; no. 436 criminal procedural rules doc.

Title 234—RULES OF CRIMINAL PROCEDURE

[ 234 PA. CODE CH. 4 ]

Order Approving the Revisions to the Comments to Rules 409, 414, 424, 454 and 455 of the Rules of Criminal Procedure; No. 436 Criminal Procedural Rules Doc.

[43 Pa.B. 4323]
[Saturday, August 3, 2013]

Order

Per Curiam

 And Now, this 17th day of July, 2013, upon the recommendation of the Criminal Procedural Rules Committee; the proposal having been published before adoption at 42 Pa.B. 6529 (October 13, 2012), and in the Atlantic Reporter (Second Series Advance Sheets, Vol. 967), 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 revisions to the Comments to Pennsylvania Rules of Criminal Procedure 409, 414, 424, 454, and 455 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 17, 2013.

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 409. Guilty Pleas.

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Comment

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 [When the defendant is under 18 years of age at the time of the offense and appears as provided in paragraph (C), if a mandatory sentence of imprisonment is prescribed by statute, the issuing authority must foreward the case to the court of common pleas for disposition. See the Juvenile Act, 42 Pa.C.S. §§ 6302 and 6303. For the procedure upon default in payment of fine or costs, see Rule 456.]

 When the defendant was under 18 years of age at the time of the offense and is charged with a summary offense that would otherwise carry a mandatory sentence of imprisonment as prescribed by statute, the issuing authority is required to conduct the summary trial but may not sentence the defendant to a term of imprisonment. See 42 Pa.C.S. §§ 6302 and 6303 and 75 Pa.C.S. § 6303(b).

 For the procedure upon default in payment of the fine or costs, see Rule 456.

 For appeal procedures in summary cases, see Rules 460, 461, and 462.

 For procedures regarding arrest warrants, see Rules 430 and 431.

 With regard to the defendant's right to counsel and waiver of counsel, see Rules 121 and 122.

 Official Note: Previous Rule 59 adopted September 18, 1973, effective January 1, 1974; rescinded July 12, 1985, effective January 1, 1986, and replaced by present Rule 430. Present Rule 59 adopted July 12, 1985, effective January 1, 1986; amended September 23, 1985, effective January 1, 1986. The January 1, 1986 effective dates are all extended to July 1, 1986; amended May 28, 1987, effective July 1, 1987; amended January 31, 1991, effective July 1, 1991; renumbered Rule 409 and amended March 1, 2000, effective April 1, 2001; Comment revised August 7, 2003, effective July 1, 2004; amended January 26, 2007, effective February 1, 2008; Comment revised July 17, 2013, effective August 17, 2013.

Committee Explanatory Reports:

*  *  *  *  *

 Final Report explaining the July 17, 2013 Comment revision concerning mandatory incarceration offenses and juveniles published with the Court's Order at 43 Pa.B. 4325 (August 3, 2013).

PART B(2). Procedures When Citation Filed

Rule 414. Guilty Pleas.

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Comment

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 [When the defendant is under 18 years of age at the time of the offense and appears as provided in paragraph (C), if a mandatory sentence of imprisonment is prescribed by the statute, the issuing authority must foreward the case to the court of common pleas for disposition. See the Juvenile Act, 42 Pa.C.S. §§ 6302 and 6303.]

 When the defendant was under 18 years of age at the time of the offense and is charged with a summary offense that would otherwise carry a mandatory sentence of imprisonment as prescribed by statute, the issuing authority is required to conduct the summary trial but may not sentence the defendant to a term of imprisonment. See 42 Pa.C.S. §§ 6302 and 6303 and 75 Pa.C.S. § 6303(b).

 For the procedure upon default in payment of the fine or costs, see Rule 456.

 For appeal procedures in summary cases, see Rules 460, 461, and 462.

 For arrest warrant procedures, see Rules 430 and 431.

 With regard to the defendant's right to counsel and waiver of counsel, see Rules [122 and 121] 121 and 122.

 Official Note: Previous rule, originally numbered Rule 136, adopted January 31, 1970, effective May 1, 1970; renumbered Rule 64 September 18, 1973, effective January 1, 1974; rescinded July 12, 1985, effective January 1, 1986, and replaced by present Rule [455] 84. Present Rule 64 adopted July 12, 1985, effective January 1, 1986; amended September 23, 1985, effective January 1, 1986. The January 1, 1986 effective dates all are extended to July 1, 1986; amended May 28, 1987, effective July 1, 1987; amended January 31, 1991, effective July 1, 1991; renumbered Rule 414 and amended March 1, 2000, effective April 1, 2001; Comment revised August 7, 2003, effective July 1, 2004; amended January 26, 2007, effective February 1, 2008; Comment revised July 17, 2013, effective August 17, 2013.

Committee Explanatory Reports:

*  *  *  *  *

 Final Report explaining the July 17, 2013 Comment revision concerning mandatory incarceration offenses and juveniles published with the Court's Order at 43 Pa.B. 4325 (August 3, 2013).

PART C. Procedures in Summary Cases When Complaint Filed

Rule 424. Guilty Pleas.

*  *  *  *  *

Comment

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 [When the defendant is under 18 years of age at the time of the offense and appears as provided in paragraph (C), if a mandatory sentence of imprisonment is prescribed by statute, the issuing authority must foreward the case to the court of common pleas for disposition. See the Juvenile Act, 42 Pa.C.S. §§ 6302 and 6303.]

 When the defendant was under 18 years of age at the time of the offense and is charged with a summary offense that would otherwise carry a mandatory sentence of imprisonment as prescribed by statute, the issuing authority is required to conduct the summary trial but may not sentence the defendant to a term of imprisonment. See 42 Pa.C.S. §§ 6302 and 6303 and 75 Pa.C.S. § 6303(b).

 For the procedure upon default in payment of the fine or costs, see Rule 456.

 For appeal procedures in summary cases, see Rules 460, 461, and 462.

 For procedures regarding arrest warrants, see Rules 430 and 431.

 With regard to the defendant's right to counsel and waiver of counsel, see Rules [122 and 121] 121 and 122.

 Official Note: Previous rule, originally numbered Rule 140, adopted January 31, 1970, effective May 1, 1970; renumbered Rule 69 September 18, 1973, effective January 1, 1974; Comment revised January 28, 1983, effective July 1, 1983; rescinded July 12, 1985, effective January 1, 1986, and not replaced in these rules. Present Rule 69 adopted July 12, 1985, effective January 1, 1986; amended September 23, 1985, effective January 1, 1986. The January 1, 1986 effective dates are all extended to July 1, 1986; amended May 28, 1987, effective July 1, 1987; amended January 31, 1991, effective July 1, 1991; renumbered Rule 424 and amended March 1, 2000, effective April 1, 2001; Comment revised August 7, 2003, effective July 1, 2004; amended January 26, 2007, effective February 1, 2008; Comment revised July 17, 2013, effective August 17, 2013.

Committee Explanatory Reports:

*  *  *  *  *

 Final Report explaining the July 17, 2013 Comment revision concerning mandatory incarceration offenses and juveniles published with the Court's Order at 43 Pa.B. 4325 (August 3, 2013).

PART E. General Procedures in Summary Cases

Rule 454. Trial in Summary Cases.

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Comment

*  *  *  *  *

 [When the defendant was under 18 years of age at the time of the offense, if a mandatory sentence of imprisonment is prescribed by statute, the issuing authority may not conduct the trial, but must forward the case to the court of common pleas for disposition. See the Juvenile Act, 42 Pa.C.S. §§ 6302 and 6303.]

 When the defendant was under 18 years of age at the time of the offense and is charged with a summary offense that would otherwise carry a mandatory sentence of imprisonment as prescribed by statute, the issuing authority is required to conduct the summary trial but may not sentence the defendant to a term of imprisonment. See 42 Pa.C.S. §§ 6302 and 6303 and 75 Pa.C.S. § 6303(b).

 Under paragraph (F)(2)(a), the issuing authority should explain to the defendant that if an appeal is filed, any sentence, including imprisonment, fines, or restitution, will be stayed.

*  *  *  *  *

 For the statutory authority to sentence a defendant to pay restitution, see 42 Pa.C.S. § 9721(c) and 18 Pa.C.S. § 1106(c). See also [18 Pa.C.S. § 1106(c)(2)(iv)] 18 Pa.C.S. § 1106(c)(2)(iii), which prohibits the court from ordering the incarceration of a defendant for failure to pay restitution if the failure results from the defendant's inability to pay.

*  *  *  *  *

 Official Note: Rule 83 adopted July 12, 1985, effective January 1, 1986; amended September 23, 1985, effective January 1, 1986; January 1, 1986 effective dates extended to July 1, 1986; amended February 2, 1989, effective March 1, 1989; amended October 28, 1994, effective as to cases instituted on or after January 1, 1995; Comment revised April 18, 1997, effective July 1, 1997; amended October 1, 1997, effective October 1, 1998; Comment revised February 13, 1998, effective July 1, 1998; renumbered Rule 454 and Comment revised March 1, 2000, effective April 1, 2001; amended February 28, 2003, effective July 1, 2003; Comment revised August 7, 2003, effective July 1, 2004; amended March 26, 2004, effective July 1, 2004; amended January 26, 2007, effective February 1, 2008; Comment revised July 17, 2013, effective August 17, 2013.

Committee Explanatory Reports:

*  *  *  *  *

 Final Report explaining the July 17, 2013 Comment revision concerning mandatory incarceration offenses and juveniles published with the Court's Order at 43 Pa.B. 4325 (August 3, 2013).

Rule 455. Trial in Defendant's Absence.

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Comment

 In those cases in which the issuing authority determines that there is a likelihood that the sentence will be imprisonment or that there is other good cause not to conduct the trial in the defendant's absence, the issuing authority may issue a warrant for the arrest of the defendant in order to have the defendant brought before the issuing authority for the summary trial. See Rule 430(B). The trial would then be conducted with the defendant present as provided in these rules. See Rule 454.

 [When the defendant was under 18 years of age at the time of the offense, if a mandatory sentence of imprisonment is prescribed by statute, the issuing authority may not conduct the trial, but must forward the case to the court of common pleas for disposition. See the Juvenile Act, 42 Pa.C.S. §§ 6302 and 6303.]

 When the defendant was under 18 years of age at the time of the offense and is charged with a summary offense that would otherwise carry a mandatory sentence of imprisonment as prescribed by statute, the issuing authority is required to conduct the summary trial but may not sentence the defendant to a term of imprisonment. See 42 Pa.C.S. §§ 6302 and 6303 and 75 Pa.C.S. § 6303(b).

 Paragraph (D) provides notice to the defendant of conviction and sentence after trial in absentia to alert the defendant that the time for filing an appeal has begun to run. See Rule 413(B)(3).

*  *  *  *  *

 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.

Committee Explanatory Reports:

*  *  *  *  *

 Final Report explaining the July 17, 2013 Comment vision concerning mandatory incarceration offenses and juveniles published with the Court's Order at 43 Pa.B. 4325 (August 3, 2013).

FINAL REPORT¹

Revisions to the Comments to Pa.Rs.Crim.P. 409, 414, 424, 454, and 455

Juveniles and Mandatory Incarceration in Summary Cases

 On July 17, 2013, effective August 17, 2013, upon the recommendation of the Criminal Procedural Rules Committee, the Court approved the revisions to the Comments to Rules of Criminal Procedure 409, 414, 424, 454, and 455. The revisions clarify that a magisterial district judge (MDJ) may conduct the trial of a defendant who is under the age of 18 and is charged with a violation of 75 Pa.C.S. § 1543(b) (driving under a DUI-related suspended license) but the sentence may not include incarceration.

 The Committee examined a conflict between the Rule 454 Comment and provisions within the Juvenile Act regarding the handling of summary offenses for which there is a mandatory sentence of incarceration when the defendant is a juvenile. The particular Comment language in question states:

When the defendant was under 18 years of age at the time of the offense, if a mandatory sentence of imprisonment is prescribed by statute, the issuing authority may not conduct the trial, but must forward the case to the court of common pleas for disposition. See the Juvenile Act, 42 Pa.C.S. §§ 6302 and 6303.

 This language was added as part of a package developed by the Committee that was adopted by the Court in 2004. The Comment language above addressed the provision in the Juvenile Act, 42 Pa.C.S. § 6303(b) that states:

(b) Minor judiciary.—No child shall be detained, committed or sentenced to imprisonment by a magisterial district judge or a judge of the minor judiciary unless the child is charged with an act set forth in paragraph (2)(i), (ii), (iii) or (v) of the definition of ''delinquent act'' in section 6302 (relating to definitions).

42 Pa.C.S. § 6302 excludes summary offenses from the definition of ''delinquent act.''

 The language was added to the Rule 454 Comment to provide guidance to magisterial district judges (MDJs) on how to dispose of summary cases involving juveniles facing possible mandatory incarceration.² The Committee believed that sending these cases to the common pleas court created the least confusion while ensuring no juvenile would be sentenced to imprisonment by a member of the minor judiciary.

 Shortly after these changes were adopted, the Legislature passed amendments to 75 Pa.C.S. § 6303 (Rights and Liabilities of Minors), so that it now reads:

(a) Except as provided in subsection (b), any person over the age of 16 years charged with the violation of any provisions of this title constituting a summary offense shall have all the rights of an adult and may be prosecuted under the provisions of this title in the same manner as an adult.

(b) No person shall be sentenced to a term of imprisonment for a violation of any provisions of this title constituting a summary offense committed while the person was under the age of 18 years.

 It came to the attention of the Committee that the practice in some counties in cases in which the defendant is a juvenile charged with violations of 75 Pa.C.S. § 1543(b) is for magisterial district judges (MDJs) to hold the summary trial with the sentence for § 1543(b) offenses being limited to fines only, and no sentence to incarceration being imposed.

 The problem was brought to light because the recently redesigned Magisterial District Court System, relying on the language in the Rule 454 Comment, will not permit an MDJ to schedule the summary trial. However, when the MDJs have tried to transfer these cases to the common pleas juvenile court, the juvenile court has rejected these cases because, as noted above, the Juvenile Act excludes summary offenses from the definition of ''delinquent acts'' and summary cases are not within the jurisdiction of the juvenile court.

 The Committee concluded that these cases should be heard before the MDJs. Since the mandatory sentence required by Section 1543(b) now cannot be imposed on a juvenile, there is no need for the case to be referred to the court of common pleas and it can be treated in the same manner as other summary charges against juveniles.

 Therefore, the Rule 454 Comment has been revised to state that the magisterial district judge shall try the summary offense but that no incarceration could be awarded to a defendant under the age of 18. Although this question initially arose concerning Rule 454, identical language is contained in Rules 409, 414, 424, and 455. Similar changes have been made to the Comments to each of those rules.

[Pa.B. Doc. No. 13-1435. Filed for public inspection August 2, 2013, 9:00 a.m.]

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