Title 234--RULES OF CRIMINAL PROCEDURE [234 PA. CODE CH. 7] Order Amending Rule 720; No. 297 Criminal Procedure Rules; Doc. No. 2 [33 Pa.B. 4436] On August 21, 2003, effective January 1, 2004, upon the recommendation of the Criminal Procedural Rules Committee, the Court adopted amendments to Rule of Criminal Procedure 720. The Criminal Procedural Rules Committee has prepared a Final Report explaining the amendments to Pa.R.Crim.P. 720 (Post-Sentence Procedures; Appeal). These amendments provide further clarification that (1) the time for an appeal when a post-sentence motion is not filed timely is the date of the imposition of sentence; (2) the judge's order denying a post-sentence motion must be entered promptly and must contain the notice information required by the rule; and (3) the judge may not vacate sentence. The Final Report follows the Court's Order.
Order Per Curiam:
Now, this 21st day of August, 2003, upon the recommendation of the Criminal Procedural Rules Committee; the proposal having been published before adoption at 32 Pa.B. 6077 (December 14, 2002), and in the Atlantic Reporter (Second Series Advance Sheets, Vol. 811), 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 Rule of Criminal Procedure 720 is hereby amended in the following form.
This Order shall be processed in accordance with Pa.R.J.A. 103(b), and shall be effective January 1, 2004.
Annex A TITLE 234. RULES OF CRIMINAL PROCEDURE CHAPTER 7. POST-TRIAL PROCEDURES IN COURT CASES PART B. Post-Sentence Procedures Rule 720. Post-Sentence Procedures; Appeal.
(A) TIMING.
* * * * * (3) If the defendant does not file a timely post-sentence motion, the defendant's notice of appeal shall be filed within 30 days of imposition of sentence, except as provided in paragraph (A)(4).
(4) If the Commonwealth files a timely motion to modify sentence pursuant to Rule 721, 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 paragraph.
* * * * * (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], as provided in Rule 114, forthwith [furnish] shall serve a copy of the order [by mail or personal delivery to] on the attorney for the Commonwealth, the [defendant(s)] defendant's attorney, [and defense counsel] or if unrepresented the defendant, that the post-sentence motion is deemed denied. This order is not subject to reconsideration.
(d) If the judge denies the post-sentence motion, the judge promptly shall issue an order and the order shall be filed and served as provided in Rule 114.
(e) If the defendant withdraws a post-sentence motion, the judge promptly shall [enter] issue an order memorializing the withdrawal, and the order shall be filed and served as provided in Rule 114. [The order shall include the information required by paragraph (B)(4).]
(4) Contents of Order.
An order denying a post-sentence motion, whether [signed] issued by the judge pursuant to paragraph (B)(3)(d) or entered by the clerk of courts pursuant to paragraph (B)(3)(c), or an order [entered] issued following a defendant's withdrawal of the post-sentence motion, shall include notice to the defendant of the following:
* * * * * Comment See Rules [622,] 606, [and] 608, and 622.
* * * * * TIMING
* * * * * If no timely post-sentence motion is filed, the defendant's appeal period runs from the date sentence is imposed. See paragraph (A)(3). Under paragraph (A)(4), however, when the defendant has not filed a post-sentence motion but the Commonwealth files a timely motion to modify sentence under Rule 721, it is the entry of the order disposing of the Commonwealth's motion that commences the 30-day period during which the defendant's notice of appeal must be filed. See Rule 721(B)(2)(b).
* * * * * DISPOSITION
* * * * * If the trial judge decides the motion within the time limits of this rule, the judge may [reconsider that decision] grant reconsideration on the post-sentence motion pursuant to 42 Pa.C.S. § 5505 or Pa.R.A.P. 1701.1, but the judge may not vacate the sentence pending reconsideration. Rule 720(B)(3). The reconsideration period may not be used to extend the timing requirements set forth in paragraph (B)(3) for decision on the post-sentence motion: the time limits imposed by paragraphs (B)(3)(a) and (B)(3)(b) continue to run from the date the post-sentence motion was originally filed. The trial judge's reconsideration must therefore be resolved within the 120-day decision period of paragraph (B)(3)(a) or the 30-day extension period of paragraph (B)(3)(b), whichever applies. If a decision on the reconsideration is not reached within the appropriate period, the post-sentence motion, including any issues raised for reconsideration, will be denied pursuant to paragraph (B)(3)(c).
* * * * * If the motion is denied by operation of law, paragraph (B)(3)(c) requires that the clerk of courts enter an order denying the motion on behalf of the court and immediately notify the attorney for the Commonwealth, the [defendant(s), and defense counsel] defendant's attorney, or if unrepresented the defendant, that the motion has been denied. This notice is intended to protect the defendant's right to appeal. The clerk of courts must also comply with the notice and docketing requirements of Rule 113.
The disposition of a motion to modify a sentence imposed after a revocation hearing is governed by Rule [408] 708 (Violation of Probation, Intermediate Punishment, or Parole: Hearing and Disposition).
* * * * * MISCELLANEOUS
* * * * * For bail proceedings pending the outcome of the post-sentence motion, see Rules [523 and] 521 and 523.
* * * * * 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 August 21, 2003, effective January 1, 2004.
Committee Explanatory Reports:
* * * * * Final Report explaining the August 21, 2003 changes to Rule 720 concerning the timeliness of filings and the order published at 33 Pa.B. 4438 (September 6, 2003).
FINAL REPORT1 Proposed Amendments to Pa.R.Crim.P. 720 Post-Sentence Motions: Time For Appeal; Court Order; Reconsideration I. Introduction
On August 21, 2003, effective January 1, 2004, upon the recommendation of the Criminal Procedural Rules Committee, the Court amended Pa.R.Crim.P. 720 (Post-Sentence Procedures; Appeal). The amendments to Rule 720 provide further clarification that (1) the time for an appeal when a post-sentence motion is not filed timely is the date of the imposition of sentence; (2) the judge's order denying a post-sentence motion must be entered promptly and must contain the notice information required by the rule; and (3) the judge may not vacate sentence.
II. Discussion
The Committee has continued to monitor Rule 720 (Post-Sentence Procedures; Appeals) since its adoption in 1993. As a result of this monitoring, on several occasions while reaffirming the Rule 720 procedures as adopted, the Committee has recommended a few changes to clarify the intent and purpose of the rule.2 Since the Court's most recent changes in 1999, two additional issues have been raised with the Committee that we concluded necessitate further clarification in Rule 720:3 1) there continues to be some confusion about the time for appeal when a defendant files an untimely post-sentence motion; and 2) there is some confusion about the content of, and the filing and service of, the judge's order denying a post-sentence motion.
The Committee considered these issues and concluded the post-sentence procedures in Rule 720 are meeting the needs of the criminal justice system without unduly burdening the courts. However, in an exercise of caution and as an aid to the trial and appellate courts, as explained below, a few additional changes have been made to Rule 720.
1. Untimely Post-Sentence Motions
An issue that has come up from time to time in the case law concerns the time for appeal when a defendant files a post-sentence motion beyond the 10-day time limit of Rule 720(A)(1), and, notwithstanding the untimeliness of the motion, the trial court disposes of the motion. Although the appellate courts have determined in these cases the time for appeal runs from the imposition of sentence and have quashed the appeals, some concurring and dissenting opinions and some correspondence with the Committee have suggested Rule 720 should provide a mechanism for the trial judge to decide these untimely motions.
The Committee reviewed the case law and the Committee's Rule 720 history,4 and concluded Rule 720 should not be amended to permit the trial judge to dispose of the untimely filed post-sentence motion. Post-sentence motions are optional, and the defendant has not lost the opportunity for post-sentence review if the trial judge is not authorized to dispose of untimely filed post-sentence motions; the review will occur in the Superior Court when the case is appealed. Furthermore, to permit the trial judge to vacate sentence within the 30-day time period permitted by 42 Pa.C.S. § 5505 would be contrary to the purpose of the rule, and would open the door for the potential recurrence of the types of abuses the Court eliminated with the adoption of Rule 720.
The Committee agreed, however, as an aid to the bench and bar, that Rule 720(A)(3) and (A)(4) should be amended by the addition of ''timely'' before ''post-sentence motion.'' Although we believe the rule is clear without these changes, adding ''timely'' will remove any doubt about the intent of these provisions.
A correlative revision to the fourth paragraph of the ''Disposition'' section of the Comment also has been made. The Committee reviewed the rule and Comment, and the Rule 720 history, in view of (1) the suggestions theCommittee received that, pursuant to 42 Pa.C.S. § 5505, the trial judge should be able to vacate sentence to decide an untimely-filed post-sentence motion, and (2) the fact that some trial judges have been using 42 Pa.C.S. § 5505 to vacate sentence to extend the time for decision on the post-sentence motion. We noted as part of the 1997 changes to Rule 720, which had been intended to make it clear that the trial judge may not vacate sentence under Rule 720, that the specific references to 42 Pa.C.S. § 5505 and Pa.R.A.P. 1701 had been deleted. The Committee agreed, given the obvious and continuing confusion, these references must be again included in the Comment.
2. Judge's Order
The other issue addressed by the changes concerns the judge's order denying a post-sentence motion. Apparently, because Rule 720(B)(3) does not address the trial judge issuing an order, there is some confusion about the procedures for the entry, filing, and service of the judge's order and the contents of the order. The Committee reaffirmed that it is important to ensure the defendant receives notice of the denial of the post-sentence motion as soon as possible in view of the 30-day appeal period.5 Accordingly, Rule 720 has been amended by adding a new paragraph (B)(3)(d) that makes it clear that (1) the trial judge must promptly issue his or her order and (2) the order must be filed and served as provided in Rule 114 (Notice and Docketing of Orders).
3. Correlative Clarifying Amendments
The Committee noted the apparent continued confusion concerning the application of the Rule 114 filing and service requirements to Rule 720 orders. To address this, references to Rule 114 have been added to paragraphs (B)(3)(c) and (B)(3)(e).
Another area of confusion seems to be the application of paragraph (B)(4) to the orders entered or issued pursuant to paragraph (B)(3). Accordingly, the introductory statement in paragraph (B)(4) has been amended by adding specific references to the orders required in paragraphs (B)(3)(d) and (B)(3)(e).
During the Committee's discussion of the need to clarify Rule 720 concerning orders, some members suggested the term ''enter'' when used in reference to the judge's order was inaccurate and could cause confusion. They thought the more accurate term in these circumstances is ''issue.'' Accordingly, ''enter'' in paragraphs (B)(3)(d) and (e) has been changed to ''issue.'' For the sake of clarity and conformity, the term ''signed'' that is used in paragraph (B)(4) also has been changed to ''issued.''
Finally, paragraph (B)(3)(c) concerning whom is to be served has been amended to make it clear that service is necessary on a defendant's attorney only unless the defendant is unrepresented, in which case service is on the defendant.
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1 The Committee's Final Reports 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 Committee's explanatory Final Reports.
2 For example, in 1997, the Court amended Rule 720, inter alia, to make it clear that the judge may not vacate sentence, see Committee's explanatory Final Report at 27 Pa.B. 4553 (September 6, 1997), and in 1999, amended the rule to clarify the procedures when a defendant withdraws a post-sentence motion, see Committee's explanatory Final Report at 29 Pa.B. 3836 (July 24, 1999).
3 Another issue raised in correspondence concerns the ongoing problem with obtaining trial transcripts in a timely manner. This is an issue that continues to concern the Committee, but we have concluded these problems cannot be resolved by the Criminal Rules. See, e.g., the Committee's discussion in section (3)(b) (Transcript Preparation) of the Final Report at 23 Pa.B. 1701, 1704 (April 10, 1993).
4 See Committee Final Reports explaining the provisions of new Rule 1410 (now Rule 720) and the 1997 amendments, in particular the explanation of the optional nature of the post-sentence motion and the interplay of Rule 720 with 42 Pa.C.S. § 5505 and Pa.R.A.P. 1701, at 23 Pa.B. 1699 (April 10, 1993), 24 Pa.B. 334 (January 15, 1994), and 27 Pa.B. 4553 (September 6, 1997).
5 The appeal period runs from the entry of the order, whether it is the judge's order denying the motion or the order entered by the clerk of courts denying the motion by operation of law. See 24 Pa.B. 334 (January 15, 1994). The Comment refers to Pa.R.A.P. 108 (Date of Entry of Orders) that provides ''in computing any period of time under these rules involving the date of entry of an order . . . , the day of entry shall be the day the clerk of court . . . mails or delivers copies of the order to the parties. . . .''
[Pa.B. Doc. No. 03-1734. Filed for public inspection September 5, 2003, 9:00 a.m.]
