THE COURTS
PART I. GENERAL
[234 PA. CODE CH. 1400]
Revision of Comment to Rule 1405; no. 202; doc. no. 2
[26 Pa.B. 13]
Order Per Curiam:
Now, this 22nd day of December, 1995, upon the recommendation of the Criminal Procedural Rules Committee, the proposal having been published before adoption at 24 Pa.B. 4074 (August 13, 1994), and in the Atlantic Reporter (Second Series Advance Sheets Vol. 643-644), 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 Comment to Rule 1405, as revised in the following form, is hereby approved.
This Order shall be processed in accordance with Pa.R.J.A. 103(b), and shall be effective February 1, 1996.
Mr. Justice Montemuro is sitting by designation.
The Criminal Procedural Rules Committee has prepared a Final Report explaining the Comment revision which is 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 1400. SENTENCING Rule 1405. Procedure at Time of Sentencing.
A. Time for Sentencing.
* * * * * Official Note: Previous Rule 1405 approved July 23, 1973, effective 90 days hence; Comment amended June 30, 1975, effective immediately; Comment amended and paragraphs (c) and (d) added June 29, 1977, effective September 1, 1977; amended May 22, 1978, effective as to cases in which sentence is imposed on or after July 1, 1978; Comment amended April 24, 1981, effective July 1, 1981; Comment amended November 1, 1991, effective January 1, 1992; rescinded March 22, 1993, effective as to cases in which the determination of guilt occurs on or after January 1, 1994, and replaced by present Rule 1405. Present Rule 1405 adopted March 22, 1993, effective as to cases in which the determination of guilt occurs on or after January 1, 1994; amended January 3, 1995, effective immediately; amended September 13, 1995, effective January 1, 1996. The January 1, 1996 effective date extended to April 1, 1996. Comment revised December 22, 1995, effective February 1, 1996.
Comment * * * * * It is difficult to set forth all the standards which a judge must utilize and consider in imposing sentence. It is recommended that, at a minimum, the judge look to the standards and guidelines as specified by statutory law. See the Judicial Code, 42 Pa.C.S. § 9701 et seq. See also Commonwealth v. Riggins, 377 A.2d 140 (Pa. 1977) and Commonwealth v. Devers, 546 A.2d 12 (Pa. 1988).
In all cases in which restitution is imposed, the sentencing judge must state on the record the amount of restitution if determined at the time of sentencing, or the basis for determining an amount of restitution. See 18 Pa.C.S. § 1106 and 42 Pa.C.S. §§ 9721, 9728.
* * * * * Committee Explanatory Reports: Final Report explaining the provisions of the new rule published with the Court's Order at 23 Pa.B. 1699 (April 10, 1993).
Report explaining the 1995 amendment to paragraph C(3) published with the Court's Order at 25 Pa.B. 236 (January 21, 1995).
Final Report explaining the September 13, 1995 amendments concerning bail published with the Court's Order at 25 Pa.B. 4116 (September 30, 1995).
Final Report explaining the December 22, 1995 Comment revision on restitution published with the Court's Order at 26 Pa.B. 14 (January 6, 1996).
FINAL REPORT Revision of Rule 1405 Comment
Imposition of Restitution at Time of Sentencing
I. Introduction
On December 22, 1995, upon the recommendation of the Criminal Procedural Rules Committee,1 the Supreme Court of Pennsylvania approved a revision of the Comment to Rule 1405 (Sentencing). The new Comment language makes it clear that at the time of sentencing, the judge must state on the record either the amount of restitution, if determined at the time of sentencing, or the basis for determining the amount.
II. Discussion
A. Background
The issue of restitution arose when the Committee was asked to consider amending Rule 1405 to address the issue of restitution in cases involving multiple defendants. Although the Committee believes that the apportioning of restitution--the issue of joint and several restitution liability--is a substantive one, we concluded that it would be useful to examine the procedures by which judges determine the amount of restitution for sentencing purposes.
Early on, our discussion of restitution procedures included a review of 18 Pa.C.S. § 1106(c), which can be read to require that the judge order restitution as part of the order imposing sentence and that the specific amount of restitution must be ordered:2
(c) Authority of sentencing court.--In determining whether to order restitution as a part of the sentence or as a condition of probation or parole, the court:
(1) Shall consider the extent of injury suffered by the victim and such other matters as it deems appropriate.
(2) May order restitution in a lump sum, by monthly installments or according to such other schedule as it deems just, provided that the period of time during which the offender is ordered to make restitution shall not exceed the maximum term of imprisonment to which the offender could have been sentenced for the crime of which he was convicted.
(3) May at any time alter or amend any order of restitution made pursuant to this section providing, however, that the court state its reasons and conclusions as a matter of record for any change or amendment to any previous order.
We also reviewed the prompt sentencing provisions of Pa.R.Crim.P. 1504A and considered the degree to which the rule's time limits would be compromised if sentencing had to be delayed until the specific amount of restitution could be determined, noting that the Legislature appeared to have recognized the need for flexibility by including a section permitting the sentencing judge to alter or amend the restitution order, 18 Pa.C.S. § 1106(c)(3).
In comparing our collective experience as judges, prosecutors, and lawyers, we agreed that the determination of the restitution amount cannot always be completed consistent with prompt sentencing. For example, some victims will incur medical expenses related to the crime months after sentence is imposed. On the other hand, it became increasingly clear during our discussion that the prompt imposition of sentence was a primary factor to be considered when evaluating possible procedural requirements for determining restitution. Present practice reflects these competing considerations. We learned that in some judicial districts, the amount of restitution is invariably made part of the record of the sentencing proceeding. In other judicial districts, however, if the specific amount of restitution is not available at the time of sentencing, the probation/parole department is given the responsibility for determining the amount after sentence is imposed. Although some of us felt strongly that permitting the county department of probation and parole to determine the amount of restitution was specifically disapproved by case law, others were sympathetic with the logistical/practical reasons giving rise to such procedures.
Ultimately, because judicial districts appear to be using procedures which work and which comply with the spirit, if not the letter, of the statute, the Committee concluded that an amendment to the text of the rule which mapped out a set of required procedures for determining the exact amount of restitution at or before sentencing was not necessary. However, we did agree that the Comment should make it clear that the sentencing judge must control the method by which that determination is made. The new language appears in the ''Sentencing Procedures'' section of the Rule 1405 Comment and reads:
In all cases in which restitution is imposed, the sentencing judge must state on the record the amount of restitution if determined at the time of sentencing, or the basis for determining an amount of restitution. See 18 Pa.C.S. § 1106 and 42 Pa.C.S. §§ 9721, 9728.
B. Post-publication review of proposal and statutory developments
We received one letter in response to the proposal. The correspondent thought that the Comment achieved a fair balance between the statutory requirements and practice, but expressed concern that the proposed language might run afoul of case law limiting a sentencing judge's ability to delegate sentencing decisions to a probation department, citing Commonwealth v. Kioske, 487 A.2d 420 (Pa. Super. 1985) and Commonwealth v. Erb, 428 A.2d 574 (Pa. Super. 1981). Although the Committee had considered this issue during the development of the proposal, as discussed above, we reviewed the correspondent's concerns and concluded that no changes to the proposed language should be made, because we believe that the Comment revision adequately addresses the problem. As long as the sentencing judge controls the method by which the amount of restitution is to be determined, the Committee believes that the ''sentencing decision'' is not being delegated.
While the proposal was being prepared for submission to the Court, legislation was introduced3 amending, inter alia, 18 Pa.C.S. § 1106(c). Because this was a key statutory provision considered during the development of this proposal, we held up submission of the proposal to the Court in order to review the legislation in final form.4
As amended, 18 Pa.C.S. § 1106(c) reads:
(c) Mandatory restitution.--
(1) The court shall order full restitution:
(i) Regardless of the current financial resources of the defendant, so as to provide the victim with the fullest compensation for the loss. The court shall not reduce a restitution award by any amount that the victim has received from the Crime Victim's Compensation Board or other governmental agency, but shall order the defendant to pay any restitution ordered for loss previously compensated by the board to the Crime Victim's Compensation Fund or other designated account when the claim involves a government agency in addition to or in place of the board. The court shall not reduce a restitution award by any amount that the victim has received from an insurance company, but shall order the defendant to pay any restitution ordered for loss previously compensated by an insurance company to the insurance company.
(ii) If restitution to more than one person is set at the same time, the court shall set priorities of payment. However, when establishing priorities, the court shall order payment in the following order:
(A) The victim.
(B) The Crime Victim's Compensation Board.
(C) Any other government agency which has provided reimbursement to the victim as a result of the defendant's criminal conduct.
(D) Any insurance company which has provided reimbursement to the victim as the result of the defendant's criminal conduct.
(2) In determining the amount and method of restitution, the court:
(i) Shall consider the extent of injury suffered by the victim and such other matters as it deems appropriate.
(ii) May order restitution in a lump sum, by monthly installments or according to such other schedule as it deems just, provided that the period of time during which the offender is ordered to make restitution shall not exceed the maximum term of imprisonment to which the offender could have been sentenced for the crime of which he was convicted.
(iii) May at any time alter or amend any order of restitution made pursuant to this section providing, however, that the court state its reasons and conclusions as a matter of record for any change or amendment to any previous order.
(iv) Shall not order incarceration of a defendant for failure to pay restitution if the failure results from the defendant's inability to pay.
(v) Shall consider any preexisting orders imposed on the defendant, including, but not limited to, orders imposed under this title or any other title.
Although the amendments to 18 Pa.C.S. § 1106(c) now require the court to order ''full'' restitution, the Committee concluded that the amendments did not require any substantial alteration of the Comment revision as proposed. If the full amount of restitution is not determined at the time of sentencing, the judge will nevertheless be able to specify how the full amount will be determined. The Committee did agree, however, that the cross-reference to the Judicial Code should be expanded to include 42 Pa.C.S. § 9721 (Sentencing Generally), which has been amended by the Act to make it clear that restitution is mandatory. 42 Pa.C.S. § 9721(c).
[Pa.B. Doc. No. 96-3. Filed for public inspection January 5, 1996, 9:00 a.m.] _______
1The proposal was published for comment at 24 Pa.B. 4074 (August 13, 1994).
2When this proposal was being developed, 18 Pa.C.S. § 1106(c) had not been amended by Act No. 1995-12 (SS1).
3 HB 18 (SS-1).
4 ACT NO. 1995-12 (SS1), enacted May 3, 1995.
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