THE COURTS
Title 234--RULES OF CRIMINAL PROCEDURE
PART I. GENERAL
[234 PA. CODE CH. 300]
Order Amending Rule 319 and Approving the Comment to Rule 320; no. 201; doc. no. 2
[26 Pa.B. 8]
Order Per Curiam:
Now, this 22nd day of December, 1995, upon the recommendation of the Criminal Procedural Rules Committee, the proposal having been published in the Pennsylvania Bulletin (Vol. 21 at 2246 et seq.) and in the Atlantic Reporter (Second Series Advance Sheets Vol. 588, No. 3) before adoption, 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:
1) Rule 319 is hereby amended; and
2) The Comment to Rule of Criminal Procedure 320 is hereby approved, all in the form as follows.
This Order shall be processed in accordance with Pa.R.J.A. 103(b), and shall be effective July 1, 1996.
Mr. Justice Montemuro is sitting by designation.
The Criminal Procedural Rules Committee has prepared a Final Report explaining the changes which are the subject of the Court's Order. The Final Report follows the Court's Order.
Annex A
TITLE 234. RULES OF CRIMINAL PROCEDURE
PART I. GENERAL
CHAPTER 300. PRETRIAL PROCEEDINGS Rule 319. Pleas and plea agreements.
(a) Generally.
(1) Pleas shall be taken in open court.
(2) A defendant may plead not guilty, guilty, or, with the consent of the [court] judge, nolo contendere. [The judge may refuse to accept a plea of guilty, and shall not accept it unless he determines after inquiry of the defendant that the plea is voluntarily and understandingly tendered. Such inquiry shall appear on the record.] If the defendant [shall refuse] refuses to plead, the [court] judge shall enter a plea of not guilty on the defendant's behalf.
(3) The judge may refuse to accept a plea of guilty, and shall not accept it unless the judge determines after inquiry of the defendant that the plea is voluntarily and understandingly tendered. Such inquiry shall appear on the record.
(b) Plea agreements.
[(1) The trial judge shall not participate in the plea negotiations preceding an agreement.]
[(2)] (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 [Thereupon the], 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 [an] a separate inquiry of the defendant on the record to determine whether [he] the defendant understands and [concurs in] voluntarily accepts the terms of the plea agreement on which the guilty pleas is based.
[(3) If the judge is satisfied that the plea is understandingly and voluntarily tendered, he may accept the plea. If thereafter the judge decides not to concur in the plea agreement, he shall permit the defendant to withdraw his plea.]
(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 to a charge of murder generally, the judge before whom the plea was entered shall alone determine the degree of guilt.
Official Note: Paragraph (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 [thirty] 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, effective as to cases in which the indictment or information is filed on or after January 1, 1978; paragraph (c) added and Comment amended May 22, 1978, effective July 1, 1978; Comment revised November 9, 1984, effective January 2, 1985; amended December 22, 1995, effective July 1, 1996.
Comment The purpose of paragraph (a)(2) is to codify the requirement that the judge, on the record, ascertain from the defendant that the guilty plea is voluntarily and understandingly tendered. On the mandatory nature of this practice, see Commonwealth v. Ingram, [455 Pa. 198,] 316 A.2d 77 (Pa. 1974); Commonwealth v. Campbell, [451 Pa. 465,] 304 A.2d 121 (Pa. 1973); Commonwealth v. Jackson, [450 Pa. 417,] 299 A.2d 209 (Pa. 1973).
It is difficult to formulate a comprehensive list of questions a judge must ask of a defendant in determining whether the judge should accept the plea of guilty. Court decisions [constantly] may add areas to be encompassed in determining whether the defendant understands the full impact and consequences of [his] the plea, but is nevertheless willing to enter that plea. [However, at] At a minimum the judge should ask questions to elicit the following information:
(1) Does the defendant understand the nature of the charges to which he or she is pleading guilty?
(2) Is there a factual basis for the plea?
(3) Does the defendant understand that he or she has the right to trial by jury?
(4) Does the defendant understand that he or she is presumed innocent until [he is] found guilty?
(5) Is the defendant aware of the permissible range of sentences and/or fines for the offenses charged?
(6) Is the defendant aware that the judge is not bound by the terms of any plea agreement tendered unless the judge accepts such agreement?
Inquiry into the above six areas is mandatory during a guilty plea colloquy[,] under Commonwealth v. Willis, [471 Pa. 50,] 369 A.2d 1189 (Pa. 1977), and Commonwealth v. Dilbeck, [466 Pa. 543,] 353 A.2d 824 (Pa. 1976).
Many, though not all, of the areas to be covered by such questions are set forth in a footnote to the Court's opinion in Commonwealth v. Martin, [445 Pa. 49, 54--56,] 282 A.2d 241, 244--245 (Pa. 1971), in which the colloquy conducted by the trial judge is cited with approval. See also Commonwealth v. Minor, [467 Pa. 230,] 356 A.2d 346 (Pa. 1976), and Commonwealth v. Ingram, [455 Pa. 198,] 316 A.2d 77 (Pa. 1974). As to the requirement that the judge ascertain that there is a factual basis for the plea, see Commonwealth v. Jackson, [450 Pa. 417,] 299 A.2d 209 (Pa. 1973) and Commonwealth v. Maddox, [450 Pa. 406,] 300 A.2d 503 (Pa. 1973).
It is advisable that the judge [should] conduct the examination of the defendant. However, paragraph (a) does not prevent defense counsel or the attorney for the Commonwealth from conducting part or all of the examination of the defendant, as permitted by the judge. In addition, nothing in the rule would preclude the use of a written colloquy that is read, completed, signed by the defendant, and made part of the record of the plea proceedings. This written colloquy would have to be supplemented by some on-the-record oral examination. Its use would not, of course, change any other requirements of law, including these rules, regarding the prerequisites of a valid guilty plea.
[Paragraph (b) is intended to alter the process of what is commonly known as ''plea bargaining'' so as to make it a matter of public record and to insure that it does not involve prejudicing or compromising the independent position of the judge. See Commonwealth v. Alvarado, 442 Pa. 516, 276 A.2d 526 (1971); Santobello v. New York, 404 U. S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971); Commonwealth v. Wilkins, 442 Pa. 524, 277 A.2d 341 (1971); Commonwealth v. Evans, 434 Pa. 52, 252 A.2d 689 (1969); cf. Commonwealth v. Scoleri, 415 Pa. 218, 202 A.2d 521 (1964); A.B.A. Minimum Standards Relating to Pleas of Guilty § 3.3(a), at 71-74 (Approved Draft 1968); President's Commission on Law Enforcement and the Administration of Justice, ''The Challenge of Crime in a Free Society'' at 134 (1967).]
The ''terms'' of the plea agreement, referred to in [subparagraph] paragraph (b) [(2)] (1), frequently involve the attorney for the Commonwealth--in exchange for the defendant's plea of guilty, and perhaps for the defendant's promise to cooperate with law enforcement officials--promising [such] concessions such as a reduction of a charge to a less serious offense, [or] the dropping of one or more additional charges, [or] a recommendation of a lenient sentence, or a combination of these. In any event, paragraph (b) is intended to [assure] insure that all terms of the [quid pro quo] agreement are openly acknowledged for the [court's] judge's assessment. See, e.g., Commonwealth v. Wilkins, 277 A.2d 341 (Pa. 1971).
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.
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 305 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.
When a guilty plea includes a plea agreement, the 1995 amendment to paragraph (b)(2) requires that the judge conduct a separate inquiry on the record to determine that the defendant understands and accepts the terms of the plea agreement. See Commonwealth v. Porreca, 595 A.2d 23 (Pa. 1991).
Former paragraph (b)(3) was deleted in 1995 for two reasons. The first sentence merely reiterated an earlier provision in the rule. See (a)(3). The second sentence concerning the withdrawal of a guilty plea was deleted to eliminate the confusion being generated when that provision was read in conjunction with Rule 320. As provided in Rule 320, it is a matter of judicial discretion and caselaw whether to permit or direct a guilty plea to be withdrawn. See also Commonwealth v. Porreca, 595 A.2d 23 (Pa. 1991) (the terms of a plea agreement may determine a defendant's right to withdraw a guilty plea).
Paragraph (c) reflects a change in Pennsylvania practice, which formerly required the judge to convene a panel of three judges to determine the degree of guilt in murder cases in which the imposition of a sentence of death was not statutorily authorized.
[Paragraph (b)(3) requires the judge to permit the defendant to withdraw a plea the judge has accepted when the judge is unable to comply with a plea agreement on which the plea was based. See Rule 320.
When a plea agreement has been negotiated, there must be an inquiry in order to determine whether the plea is made voluntarily and understandingly. However, the terms of the plea agreement should be stated in the record and it should be made clear that the defendant understands the nature and effect of the agreement.
The addition of paragraph (c) changes prior practice in Pennsylvania. Under prior Rule 319A (suspended effective November 1, 1976) the judge could convene a panel of three judges to determine the degree of guilt in murder cases in which the imposition of a sentence of death was not statutorily authorized.]
Committee Explanatory Reports:
Final Report explaining the December 22, 1995 amendments published with the Court's Order at 26 Pa.B. 10 (January 6, 1996).
Rule 320. Withdrawal of Plea of Guilty.
At any time before sentence, the court may, in its discretion, permit or direct a plea of guilty to be withdrawn and a plea of not guilty substituted.
Official Note: Adopted June 30, 1964, effective January 1, 1965; Comment added June 29, 1977, effective September 1, 1977; Comment revised March 22, 1993, effective January 1, 1994; Comment deleted August 19, 1993, effective January 1, 1994; new Comment approved December 22, 1995, effective July 1, 1996.
Comment When a defendant withdraws a guilty plea under this rule and proceeds with a non-jury trial, the court and the parties should consider whether recusal might be appropriate to avoid prejudice to the defendant. See, e.g., Commonwealth v. Pierce, 527 A.2d 973 (Pa. 1987).
For a discussion of plea withdrawals when a guilty plea includes a plea agreement, see the Comment to Rule 319.
Committee Explanatory Reports: Final Report explaining the March 22, 1993 amendments published with the Court's Order at 23 Pa.B. 1699 (April 10, 1993).
Final Report explaining the new Comment approved on December 22, 1995 published with the Court's Order at 26 Pa.B. 10 (January 6, 1996).
FINAL REPORT Amendments to Pa.R.Crim.P. 319--New Comment to Pa.R.Crim.P. 320: Judicial Involvement in Plea Agreements; Sealing of Plea Agreements; Withdrawal of Plea Agreements: Recusal
Introduction
On December 22, 1995, upon the recommendation of the Criminal Procedural Rules Committee, the Supreme Court of Pennsylvania adopted amendments to Rule of Criminal Procedure 319 (Pleas and Plea Agreements) and approved a new Comment to Rule 320 (Withdrawal of Plea of Guilty). One amendment to Rule 319(b) eliminates the absolute prohibition contained in former subsection (b)(1) against any judicial involvement in plea agreements. In the Comment, a paragraph which addressed this prohibition has been deleted, and an extensive cautionary discussion has been added to provide specific guidance on the degree to which judicial involvement in the plea agreement process is appropriate. Another amendment to Rule 319(b) permits, for good cause and with the consent of all parties, the sealing of specific conditions in plea agreements. See new subsection (b)(1). The Comment addresses the discovery and notice requirements which must be observed if this new procedure is utilized. Finally, the new Comment to Rule 320 (Withdrawal of Plea of Guilty) alerts the parties to consider whether recusal might be appropriate when a defendant elects a waiver trial after withdrawing a guilty plea, citing Commonwealth v. Pierce, 527 A.2d 973 (Pa. 1987).
This Final Report replaces the original explanatory Report1 by which the Committee sought comments on the proposal, and not only contains all relevant portions of the earlier Report, but also explains the changes which were made to the proposal after publication.2
Discussion
Guilty plea procedures have been the focus of Committee discussions with considerable frequency. Most recently, communications from lawyers and judges suggested that the Committee reevaluate the procedures provided in Rules 319 and 320, with a view to permitting some judicial involvement in guilty plea agreements.
The Committee's consideration of whether the rules should permit some limited judicial involvement in plea agreements generated two additional issues: whether the rules should expressly provide procedures for sealing portions of a plea agreement in order to protect a defendant or an ongoing investigation, and whether there should be a specific provision for recusal when a defendant has withdrawn a guilty plea and elects to be tried before a judge alone. Although these three areas overlap somewhat, the Committee's work on each involved different considerations and different aspects of the rules.
A. Judicial Involvement in Plea Negotiations
Prior to the 1972 adoption of the plea agreement procedures contained in Rule 319(b), case law forbade any participation by the trial judge prior to the offering of a guilty plea, an approach which mirrored the ABA standards then in effect. See Commonwealth v. Evans, 252 A.2d 689 (Pa. 1969), citing A.B.A. Minimum Standards, Pleas of Guilty, § 3.3 (Tent. Draft, February, 1967). Despite this prohibition, judges were clearly involved in the plea agreement process.
It has been a frequent practice in Pennsylvania for countless years for a defendant's attorney and the District Attorney and the trial judge to have a conference and in many cases agree on a plea and sentence. Provided this conference is requested by the defendant's attorney and the district attorney is present throughout all these conferences and the agreement was fairly arrived at--and not by chicanery, partiality, politics, or compulsion or concealment of material facts as to each and all of which the burden of proof would be on the defendant--it would result in greatly shortening the time of trial and eliminating the practical possibility that a guilty man may be acquitted. Id., at 252 A.2d 689, 692, Bell, C.J., dissenting (emphasis in original).
Although the courts did not want to proscribe plea bargaining completely, there was great concern about the sensitive and potentially coercive nature of plea bargaining practices. Due process considerations made distinctions between advice to the defendant from defense counsel, bargaining between defense and prosecuting attorneys, and discussions with the judge who ultimately determines the length of sentence imposed.
In 1972, the Supreme Court amended Rule 319 to add a section covering plea agreement procedures, including, inter alia, a provision in paragraph (b)(1) that the ''trial judge shall not participate in the plea negotiations preceding an agreement.'' In general, this early amendment was intended to recognize existing practices while regulating procedures in order to protect the integrity of judges and the rights of defendants. Central to the plea agreement provisions in Rule 319 was the ongoing concern that the slightest judicial involvement in guilty plea negotiations would not only compromise the independent position of the sentencing judge but also taint the voluntariness of the defendant's plea.
The intended scope of the prohibition in paragraph (b)(1), however, was far from clear, and our review of the rule's history failed to provide an explanation of what the original drafters meant by ''participate.'' We therefore examined the approaches in other jurisdictions. We considered the relevant statutes and/or rules in every state, and reviewed numerous secondary materials, including the 1982 A.B.A. Standards on Criminal Justice, Standard 14-3.3, ''Responsibilities of the Judge,'' and an extensive presentation of the arguments for and against judicial involvement in plea agreements. See Bond, Plea Bargaining and Guilty Pleas, Clark Boardman (2d Ed., 1982).
During the course of our discussions, countless questions were raised and debated. Should a plea conference be formalized in the rules? Should the judge be permitted to initiate a plea negotiation? Should any absolute time limits be placed on negotiations? If a judge has been involved in negotiations, in whatever degree, and the negotiations fail, should the same judge preside at trial, or should there be a procedure for assigning the trial to a different judge? If the rules are amended to permit greater judicial participation, should all discussions involving a judge's participation be on the record, even if the discussion takes place in chambers? If the rules permit judicial involvement, how much procedural detail should they include? Conversely, what are the dangers of painting with a broad brush?
Our analysis convinced us that there was considerable merit to permitting some judicial involvement in plea negotiations, although the very same due process concerns that had been raised even before the adoption of the Rule 319(b) plea agreement procedures--the impact of judicial ''coercion'' on the voluntariness of a plea--were again voiced by various Committee members. On the one hand, removing the absolute prohibition against judicial involvement in the plea process made good sense if it would encourage new judges to assist in the plea agreement process--judges who, we were told, would not do so absent an express provision in the rules. Furthermore, if a particular guilty plea is an appropriate resolution for a defendant and for the Commonwealth, permitting some judicial involvement could provide a neutral catalyst for discussion between parties who have reached an impasse. A third advantage considered was that by removing from the rule the absolute prohibition against judicial involvement, the rule would more accurately reflect the responsibility shared by the judge and the attorney for the Commonwealth when a plea agreement is finally accepted. Appropriately handled, in our view, judicial involvement in plea agreements could help the parties reach a fair result without compromising the independent role of the judge.
Committee members nevertheless approached a possible change in the rules permitting judicial involvement in plea agreements with healthy skepticism. Opening the door to greater judicial involvement could create the risk, in some cases, that a judge might force one or both sides into a plea agreement for any number of inappropriate reasons--to avoid a protracted trial or sidestep a decision on a controversial issue, for example. Yet we knew that a rule which primarily sought to guard against the rare situation in which the spirit of the rule is abused would not only offend most judges in Pennsylvania, for whom such proscriptions are unnecessary, but would also result in the rule's demise. Unnecessary burdens placed on the parties and the judge by detailed requirements would quickly outweigh the utility of any judicial involvement.
The Committee finally concluded that the advantages of permitting some judicial involvement in guilty pleas clearly outweighed any potential for abuse. Rule 319 has therefore been amended to eliminate the provision in paragraph (b)(1) prohibiting judicial participation in plea negotiations preceding an agreement. The revised Comment explains that judicial involvement is no longer absolutely prohibited, but cautions that a judge must not suggest to a defendant, defense counsel, or the attorney for the Commonwealth that a plea agreement should be negotiated or accepted.
B. Withdrawal of Guilty Pleas: Recusal
Once the Committee agreed to amend Rule 319 to permit some form of judicial involvement in guilty plea agreements, we reviewed the guilty plea rules generally, looking for problem areas that might arise if the proposed amendment were adopted. One of the procedural issues which we felt should be addressed in this proposal concerned the propriety of a judge's recusal when a defendant elects a waiver trial after withdrawing a guilty plea. Although there is no per se prohibition against a plea judge's presiding over a waiver trial after a plea has been withdrawn, Commonwealth v. Pierce, 527 A.2d 973 (Pa. 1987) (overruling Commonwealth v. Badger, 393 A.2d 642 (Pa. 1978)), the Committee felt that if Rule 319 were amended to permit judicial involvement in the plea agreement process, the issue of recusal might arise more frequently. We therefore decided that a cautionary Comment to Rule 320 should be added to alert judges and attorneys that in cases where a defendant might be prejudiced if the plea judge presides at the non-jury trial, counsel should consider moving for the judge's recusal.
C. Sealing of Specific Conditions of Plea Agreements
Another question raised during our discussion of judicial involvement in plea agreements was whether Rule 319 should permit the sealing of plea agreements. This issue was the logical outgrowth of our general examination of the relationship between Rule 319 procedures and current practice: judges, prosecutors, and defense counsel already use a variety of informal methods in this sensitive area to effectuate plea agreements involving a defendant's cooperation with the Commonwealth or an ongoing investigation. Committee members were troubled by the inconsistencies among the various local approaches, and expressed concern that, without some clear guidance from the rules as to how, when, and for how long portions of a plea agreement may be sealed, serious problems might arise in two areas, first amendment public access and Brady issues.
Under first amendment case law, the press and public have a right of access to court proceedings and documents generally. See, e.g., United States v. Criden, 648 F.2d 814 (3rd Cir. 1981); Richmond Newspapers, Inc. v. Virginia, 448 U. S. 555 (1980) (plurality opinion); Gannett Co. v. De Pasquale, 443 U. S. 368 (1979). This right of access extends to plea agreements, Oregonian Pub. v. U. S. Dist. Court for Dist. of Or., 920 F.2d 1462 (9th Cir. 1990). However, as with other first amendment issues arising in the criminal justice context, the right is not absolute. Id. A competing tradition permits the courts, in the exercise of their supervisory powers, to balance the right to public trials against the defendant's need for a fair trial and the court's need to restrict public access to court proceedings or court documents when countervailing interests in the administration of justice come into play, such as the protection of informants, the protection of an ongoing investigation, or the protection of a proceeding from unfair pretrial publicity. Nixon v. Warner Communications, Inc., 435 U. S. 589 (1978).
In view of the case law's recognition of these competing concerns, we concluded that Rule 319 could be amended to provide a procedure for sealing portions of plea agreements, but debated at length whether such an amendment should be made, for we saw that discovery and impeachment problems might arise when the contents of a sealed plea agreement became material to the cooperating defendant's/Commonwealth witness' credibility in another defendant's case.
In order to determine whether to permit the sealing of plea agreements at all, the Committee examined the most likely situation--when a plea agreement contemplates a defendant's cooperation with the Commonwealth and is sealed--and considered the competing concerns of the parties. 1) A defendant desires to plead guilty and cooperate with the Commonwealth in return for concessions, but wants the agreement sealed in order to be protected from those against whom the defendant will be working or testifying. 2) The attorney for the Commonwealth prosecuting the defendant wants the pertinent portions of the agreement sealed either to protect the defendant as a witness or informant for a later case or cases, or to shield an ongoing investigation from public exposure, or both. 3) A ''third party'' defendant who may not know of a plea agreement between a Commonwealth witness and the Commonwealth, or who may not know that a cooperating defendant/witness exists at all, may have a right to know of the agreement and the identity of the cooperating defendant under Rule 305 and Brady. In this context, the attorney for the Commonwealth will be obligated at some point to disclose the agreement to the ''third party'' defendant.
These competing interests raised a number of other questions. At what point should a ''third party'' defendant learn of the agreement's existence? Must the attorney for the Commonwealth move to have the record unsealed? Is the attorney for the Commonwealth required to notify the cooperating defendant that soon the sealed agreement will no longer be protected?
We were well aware that, without proper limits, a rule providing for sealing guilty plea agreements might encourage unwarranted secrecy. In fact, we were troubled by reports that under current practice, plea agreements were too frequently formalized by a mere wink and a nod in order to shield the nature of the agreement from public exposure. On the other hand, we also knew that a rule which permitted judicial involvement in plea agreements but continued to be silent on the issue of sealed plea agreement would be interpreted by new judges as precluding the sealing of plea agreements altogether--in spite of local ''informal'' practices to the contrary.
Having weighed the advantages and disadvantages of the competing interests and identified the related issues involved in sealing plea agreements, we concluded that Rule 319 should permit the sealing of portions of a plea agreement, for good cause shown and with the consent of the parties.
In order to address the various considerations discussed above, Rule 319(b)(2), renumbered (b)(1), has been amended to provide that once a plea agreement is reached, the terms of the agreement must be stated on the record in open court, unless the judge orders, for good cause shown and with the consent of the parties, that specific conditions in the agreement be placed on the record in camera and the record sealed. The proposed Comment revision explains that these sealing procedures do not eliminate the obligation of the attorney for the Commonwealth to comply in a timely manner with Rule 305 and Brady v. Maryland, 373 U. S. 83 (1963). The Comment also notes that the attorney for the Commonwealth must 1) notify the cooperating defendant in a timely manner that the terms of the agreement sealed pursuant to Rule 319(b)(1) are to be disclosed to one or more third parties; and 2) afford the cooperating defendant an opportunity to object to the unsealing of the record or to any other form of disclosure of the plea agreement.
D. Changes Made after Publication
(1) Responses to Publication. The responses to the original proposal were extensively reviewed by the Committee, and the consensus was that no modification of the original proposal was required in light of this correspondence because the issues raised had been thoroughly researched, debated, and resolved before publication. In particular, respondents questioned the constitutionality of the in camera and sealing procedures in proposed new subsection (b)(1). This specific issue was not only discussed at length by the Committee prior to publication, but is directly addressed in the Comment, which makes it clear that these procedures are subject to the limitations imposed by case law:
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. (emphasis added)
(2) Changes in Case Law. During our discussion of the responses to the proposal, the Rule 319 Comment revision citing Commonwealth v. Porreca, 567 A.2d 1044 (Pa. Super. 1989), was updated. The original Comment citation to the Superior Court opinion had been included to alert counsel to the procedural pitfalls which arise when a defendant's cooperation is contingent upon the judge's acceptance of all the terms of a plea agreement. Shortly after the Supreme Court reversed the Superior Court's Porreca decision, Commonwealth v. Porreca, 595 A.2d 23 (Pa. 1991), the Court requested that the Committee review the proposal in light of its Porreca opinion. In particular, we took a closer look at the apparent inconsistency between Rules 319(b)(3) and 320. Rule 320 (Withdrawal of Plea of Guilty) leaves to the judge's discretion the determination of whether to permit a plea withdrawal. Rule 319(b)(3), however, appears to limit that discretion by requiring the judge to ''permit'' the withdrawal of a plea if the judge cannot concur in the plea agreement:
If the judge is satisfied that the plea is understandingly and voluntarily tendered, he may accept the plea. If thereafter the judge decides not to concur in the plea agreement, he shall permit the defendant to withdraw his plea. (emphasis added)
Our analysis of these two provisions led, in turn, to the consideration of whether the rules themselves should address the scope of a judge's discretion to permit a plea withdrawal. In light of the extensive discussion of plea withdrawals in Porreca and our reexamination of the case law generally, we concluded that Rule 319(b)(3) should be deleted to eliminate any inconsistency with Rule 320, thereby clearly deferring to the case law on the scope of judicial discretion in this area. The Comment revision addressing this change reads:
Paragraph (b)(3) was deleted in 1995 for two reasons. The first sentence merely reiterated an earlier provision in the rule. See (a)(3). The second sentence concerning the withdrawal of a guilty plea was deleted to eliminate the confusion being generated when that provision was read in conjunction with Rule 320. As provided in Rule 320, it is a matter of judicial discretion and case law whether to permit or direct a guilty plea to be withdrawn. See also Commonwealth v. Porreca, 595 A.2d 23 (Pa. 1991) (the terms of a plea agreement may determine a defendant's right to withdraw a guilty plea).
We also agreed, in light of Porreca, to amend Rule 319(b)(2) to make it clear that the judge must conduct a separate inquiry to insure that the defendant understands and accepts the terms which form the basis of the plea agreement:
The judge shall conduct a[n] separate inquiry of the defendant on the record to determine whether [he] the defendant understands and [concurs in] voluntarily accepts the terms of the plea agreement on which the guilty plea is based.
[Pa.B. Doc. No. 96-2. Filed for public inspection January 5, 1996, 9:00 a.m.] _______
1 21 Pa.B. 2246 (May 11, 1991) and Atlantic Reporter (Second Series Vol. 588, No. 3).
2 Please note: the Supreme Court does not adopt the Committee's Comments or the contents of this Final Report. Also note that the Final Report should not be confused with the official Committee Comments which follow the rules.
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