Section 1035. Appointment of Counsel

(A) When the Traffic Division judge or hearing officer has preliminarily determined that there is a likelihood that imprisonment will be imposed at the conclusion of a summary traffic proceeding,

(1) a hearing may be held if retained or appointed counsel is available; or

(2) if the defendant is without financial resources or is otherwise unable to employ counsel, the judge shall continue the proceeding, issue a scheduling order, and either appoint counsel or direct the defendant to report for a financial interview to determine eligibility to court-appointed counsel.

(B) When the defendant reports for the financial interview to determine eligibility to court-appointed counsel, the defendant shall provide supporting documentation, such as a driver’s license, a DPW card, pay stubs, and any other relevant information. Upon review of the information provided by the defendant during the financial interview, the Traffic Division judge or hearing officer shall enter an appropriate order.

(C) Counsel’s appointment shall terminate at the conclusion of the Traffic Division proceeding, unless the Traffic Division judge sentences the defendant to a period of incarceration, in which case, counsel’s appointment shall continue through any appeal for a trial de novo in the Court of Common Pleas.

(D) At the time a sentence is imposed that includes a period of incarceration, if the defendant is represented by private counsel, the Traffic Division judge shall advise the defendant that, in the event private counsel ceases to represent the defendant after the imposition of the sentence and before the sentence is carried out, if the defendant is unable to afford counsel, he or she has the right to have counsel appointed to represent the defendant to file an appeal for a trial de novo, and if appointed, counsel’s appointment shall continue through the trial de novo in the Court of Common Pleas.

Comment

No defendant may be sentenced to imprisonment or probation if the right to counsel was not afforded at trial. See Alabama v. Shelton, 535 U. S. 654 (2002), Scott v. Illinois, 440 U. S. 367 (1979), and Argersinger v. Hamlin, 407 U. S. 25 (1972).

See Rules 460, 461, and 462 for the procedures for summary case appeals.

Official Note

Adopted September 9, 2005, effective February 1, 2006; amended May 7, 2014, effective immediately.

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).

The provisions of this Rule 1035 adopted September 9, 2005, effective February 1, 2006, 35 Pa.B. 5239; amended May 7, 2014, effective immediately, 44 Pa.B. 3056. Immediately preceding text appears at serial pages (346227) to (346228).