THE COURTS
PART I. GENERAL
[234 PA. CODE CH. 1400]
Order Amending Rule 1409 and Approving Comment Revisions to Rules 1405 and 1410: Sentencing; No. 213; Doc. No. 2
[26 Pa.B. 4898]
Order Per Curiam:
Now, this 26th day of September, 1996, upon the recommendation of the Criminal Procedural Rules Committee, the proposal having been published in the Pennsylvania Bulletin (24 Pa.B. 6137 et seq. and 25 Pa.B. 3236 et seq.), and in the Atlantic Reporter (Second Series Advance Sheets Vol. 649 and Vols. 660-661) 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 of Criminal Procedure 1409 is amended; and
2) The Comments to Rules of Criminal Procedure 1405 and 1410 are approved, as follows.
This Order shall be processed in accordance with Pa.R.J.A. 103(b), and shall be effective January 1, 1997.
Annex A
TITLE 234. RULES OF CRIMINAL PROCEDURE
PART I. GENERAL
CHAPTER 1400. SENTENCING Rule 1405. Procedure at Time of 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Comment amended April 24, 1981, effective July 1, 1981; Comment amended November 1, 1991, effective January 1, 1992; rescinded March 22, 1993, effective as to cases in which the determination of guilt occurs on or after January 1, 1994, and replaced by present Rule 1405.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. The April 1, 1996 effective date extended to July 1, 1996. Comment revised September 26, 1996, effective January 1, 1997.
Comment This rule is derived in part from previous Rule 1405.
The rule is intended to promote prompt and fair sentencing procedures by providing reasonable time limits for those procedures, and by requiring that the defendant be fully informed of his or her post-sentence rights and the procedural requirements which must be met to preserve those rights.
Rule 1409 (Violation of Probation, Intermediate Punishment, or Parole: Hearing and Disposition) governs sentencing procedures after a revocation of probation, intermediate punishment, or parole.
* * * * * 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 explaining the September 26, 1996 Comment revision on Rule 1409 procedures published with the Court's Order at 26 Pa.B. 4900 (October 12, 1996).
Rule 1409. Violation of Probation, Intermediate Punishment, or Parole: Hearing and Disposition.
(A) A written request for revocation shall be filed with the clerk of courts.
(B) Whenever a defendant has been [placed on] sentenced to probation or intermediate punishment, or placed on parole, the judge shall not revoke such probation, intermediate punishment, or parole as allowed by law unless there has been:
(1) a hearing held as speedily as possible at which the defendant is present and represented by counsel; and
(2) [there has been] a finding of record that the defendant violated a condition of probation, intermediate punishment, or parole. [In the event that probation is revoked and sentence is reimposed, the judge shall comply with the pertinent provisions of Rule 1405.]
(C) Sentencing Procedures
(1) At the time of sentencing, the judge shall afford the defendant the opportunity to make a statement in his or her behalf and shall afford counsel for both parties the opportunity to present information and argument relative to sentencing.
(2) The judge shall state on the record the reasons for the sentence imposed.
(3) The judge shall advise the defendant on the record:
(a) of the right to file a motion to modify sentence and to appeal, of the time within which the defendant must exercise those rights, and of the right to assistance of counsel in the preparation of the motion and appeal; and
(b) of the rights, if the defendant is indigent, to proceed in forma pauperis and to proceed with assigned counsel as provided in Rule 316.
(4) The judge shall require that a record of the sentencing proceeding be made and preserved so that it can be transcribed as needed. The record shall include:
(a) the record of any stipulation made at a pre-sentence conference; and
(b) a verbatim account of the entire sentencing proceeding.
(D) Motion to Modify Sentence
A motion to modify a sentence imposed after a revocation shall be filed within 10 days of the date of imposition.
Official Note: Adopted July 23, 1973, effective 90 days hence; amended May 22, 1978, effective as to cases in which sentence is imposed on or after July 1, 1978; Comment revised November 1, 1991, effective January 1, 1992; amended September 26, 1996, effective January 1, 1997.
Comment This rule addresses Gagnon II revocation hearings only, and not the procedures for determining probable cause (Gagnon I). See Gagnon v. Scarpelli, 411 U. S. 778 (1973).
Paragraph (A) requires that the Gagnon II proceeding be initiated by a written request for revocation filed with the clerk of courts.
The judge may not revoke probation or parole on arrest alone, but only upon a finding of a violation thereof after a hearing, as provided in this rule. However, the judge need not wait for disposition of new criminal charges to hold such hearing. See Commonwealth v. Kates, [452 Pa. 102,] 305 A.2d 701 (Pa. 1973).
This rule does not govern parole cases under the jurisdiction of the Pennsylvania Board of Probation and Parole, but applies only to the defendants who can be paroled by a judge. See [Act of June 11, 1911, P. L. 1059, § 1, as amended by the Acts of May 5, 1921, P. L. 379, § 1, and May 11, 1923, P. L. 204, § 1,] 61 P. S. § 314. See also Georgevich v. Court of Common Pleas of Allegheny County, [510 Pa. 285,] 507 A.2d 812 (Pa. 1986).
This rule was amended in 1996 to include sentences of intermediate punishment. See 42 Pa.C.S. §§ 9763 and 9773.
Paragraphs (C) and (D), also added in 1996, provide greater flexibility in revocation cases than is permitted under Rules 1405 and 1410.
Committee Explanatory Reports:
Report explaining the January 1, 1992 amendments published at 21 Pa.B. 2246 (May 11, 1990); Supplemental Report published with the Court's Order at 21 Pa.B. 5329 (November 16, 1991).
Final Report explaining the September 26, 1996 amendments published with the Court's Order at 26 Pa.B. 4900 (October 12, 1996).
Rule 1410. Post-Sentence Procedures; Appeal.
* * * * * 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.
Comment This rule is derived from previous Rules 321, 1123, and 1410. See also Rules 1122, 1124, and 1125.
* * * * * Disposition
Under subsection B(3), once the defendant makes a timely written post-sentence motion, the judge retains jurisdiction for the duration of the disposition period. It is not necessary for the judge to vacate the sentence imposed.
* * * * * If the motion is denied by operation of law, subsection 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 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 9024.
The disposition of a motion to modify a sentence imposed after a revocation hearing is governed by Rule 1409 (Violation of Probation, Intermediate Punishment, or Parole: Hearing and Disposition).
* * * * * Miscellaneous
When the defendant is represented by new counsel on the post-sentence motion, the defendant must raise any claim that prior counsel was ineffective, and the court must consider and decide the claim. Furthermore, unless the existing record is adequate for a determination of the claim, the judge must hold an evidentiary hearing. See Commonwealth v. Hubbard, 372 A.2d 687 (Pa. 1977); Commonwealth v. Dancer, 331 A.2d 435 (Pa. 1975). For procedures governing the appearance and withdrawal of counsel, see Rule 302.
Under subsection B(1)(a), the grounds for the post-sentence motion should be stated with particularity. Motions alleging insufficient evidence, for example, must specify in what way the evidence was insufficient, and motions alleging that the verdict was against the weight of the evidence must specify why the verdict was against the weight of the evidence.
Because the post-sentence motion is optional, the failure to raise an issue with sufficient particularity in the post-sentence motion will not constitute a waiver of the issue on appeal as long as the issue was preserved before or during trial. See subsection B(1)(c).
Under [paragraph] subsection B(1)(a)(ii), a challenge to the sufficiency of the evidence would be made in a motion for judgment of acquittal. See Rule 1124.
* * * * * 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 December 17, 1993 amendments published with the Court's Order at 24 Pa.B. 334 (January 15, 1994).
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 September, 1996 Comment revision on Rule 1409 procedures published at 26 Pa.B. 4900 (October 12, 1996).
FINAL REPORT Amendments to Rule 1409: Procedures after Violation of Probation, Intermediate Punishment, or Parole; Correlative Comment Revisions to Rules 1405 and 1410
On September 26, 1996, upon the recommendation of the Criminal Procedural Rules Committee, the Supreme Court amended Rule 1409 (1) to incorporate intermediate punishment, (2) to provide a clear procedure for initiating Gagnon II proceedings, and (3) to clearly distinguish sentence-related procedures after a revocation from sentencing under Rule 1405 and challenges to sentence under Rule 1410. The Court also approved Comment revisions to Rule 1405 (Procedures at Time of Sentencing) and Rule 1410 (Post-Sentence Procedures; Appeal) cross-referencing Rule 1409 sentencing procedures.
I. Procedures for Initiating a Gagnon II Hearing
The Committee began its reexamination of Rule 1409 in response to questions that arose during the Court's project on the automation of the criminal division of the courts of common pleas. One of the matters brought to our attention was the problem created by the absence of a consistent Statewide procedure for notifying clerks of courts that a Gagnon II revocation hearing will take place. Because a Gagnon II hearing may result in the revocation of parole, or, if probation is revoked, in a sentence of imprisonment, it is imperative that clerks of courts be given advance notice of a possible change in a defendant's sentence or custodial status. For this reason, the Committee agreed that Rule 1409 should be amended to require that a request for revocation be filed with the clerk of courts. See new paragraph (A).
As part of our review of the Rule 1409 procedures, we also surveyed the various practices Statewide for Gagnon I probable cause determinations. Although some counties have more formal Gagnon I proceedings than others, the Committee has concluded that the variations in local practice are justified, and we see no need for the Court to require uniform Gagnon I procedures at this time. As a cautionary measure, however, we have added a paragraph to the Comment to make it clear that Rule 1409 applies only to Gagnon II proceedings. Finally, we have also included a citation to the United States Supreme Court decision establishing the requirements for the two-step ''Gagnon'' process, Gagnon v. Scarpelli, 411 U. S. 778 (1973).
II. Sentencing Procedures after a Revocation Hearing
Although the Committee received no correspondence in response to the original explanatory Report published on this proposal, related matters were brought to our attention while we were in the process of preparing the proposal for submission to the Court. In particular, the Committee was asked whether the rules governing sentencing generally, Pa.R.Crim.P. 1405, and challenges to sentences, Pa.R.Crim.P. 1410, apply to sentences imposed after a revocation. We reviewed the Committee history on Rules 1405 and 1410, and found that revocation procedures had not been discussed.
Prior to the current amendments, the text of current Rule 1409 stated, in part, that whenever ''probation is revoked and sentence is reimposed, the judge shall comply with the pertinent provisions of Rule 1405.'' This Rule 1405 reference predates the 1993 adoption of present Rule 1405, and gave rise to the central issue leading to the need for additional amendments to the Rule 1409 proposal: should the ''post-sentence'' procedures which apply after a conviction or entry of a plea of guilty apply to revocation cases?
Two procedures arguably could apply to sentencing after a revocation--the 60-day time limit for sentencing imposed by present Rule 1405, and the Rule 1410 time limits for the disposition of a motion to modify sentence. As explained below, we concluded that neither of these time limits should be mandated in revocation cases, and the proposed changes are intended to make this clear.
Rule 1405.A(1) reads:
Except as provided by Rule 1403.B, sentence in a court case shall ordinarily be imposed within 60 days of conviction or the entry of a plea of guilty or nolo contendere.This 60-day time limit was specifically developed to expedite sentencing for cases in a post-verdict posture. See the Final Report published with the Court's Order adopting Rules 1405 and 1410 at 23 Pa.B. 1699 (April 10, 1993). The Committee believes, however, that different considerations come into play when a defendant awaits sentencing after a probation, parole, or intermediate punishment revocation. Often, for example, the sentencing judge may agree to delay imposition of sentence in order to give a defendant the opportunity, aided by the pending possibility of a much more severe sentence, to complete a drug program or to comply with a restitution order. For this reason, we agreed that the rules should not impose a limit on the time period during which sentencing must occur in revocation cases.
Rule 1410 imposes absolute time limits on the disposition of all post-sentence motions, including sentencing challenges. Because the Committee concluded that the primary impetus for the time limits on a post-sentence motion--chronic, unnecessary delay between conviction, resolution of post-verdict motions, and sentencing--was not an issue in a revocation context, and because there were advantages to permitting greater flexibility, as described above, the Committee agreed that time limits were unnecessary for disposition of challenges to sentences imposed after a revocation hearing.
To underscore the difference between Rule 1409 procedures and the time limits imposed by Rule 1405 and 1410, two new paragraphs have been added to Rule 1409 specifically addressing sentencing hearing procedures (paragraph (C)), and challenges to sentences (paragraph (D)), in a revocation context. Correlative revisions to the Comments to Rules 1405 and 1410 alert the bench and bar to these separate procedures.
III. Intermediate Punishment
Finally, Rule 1409 has been amended to incorporate intermediate punishment because, for revocation and resentencing purposes, intermediate punishment is analogous to a sentence of probation. See 42 Pa.C.S. §§ 9763 and 9773.
IV. Summary of Rule Changes
Because the amendments to Rule 1409 constitute a considerable expansion of the present rule, we have organized the text into separate paragraphs.
1. New paragraph (A) contains the requirement that a written request for revocation be filed with the clerk of courts.
2. New paragraph (B) retains much of the text of the present rule, and adds intermediate punishment as a sentence covered by the rule.
3. New paragraph (C) contains the procedures at the time of sentencing on the revocation. There are no time limits within which sentencing must take place.
4. New paragraph (D) covers motions to modify sentence in a revocation context. This provision requires that challenges to sentence be raised within 10 days of the date of imposition, but does not impose a time limit for disposition of such motions. The Comment to this provision distinguishes motions to modify sentence in a revocation case from challenges to sentence under Rule 1410. The Comment also contains an extensive cautionary discussion on the preservation of sentencing issues in light of Commonwealth v. Jarvis, 663 A.2d 790, 791-2, n. 4 (Pa. Super. 1995).
5. The Rule 1409 Comment also cautions that Rules 1405 and 1410 do not apply to revocation cases. The Comments to Rules 1405 and 1410 have been revised to include cross-references which make it clear that Rule 1409 governs sentencing and challenges to sentences in revocation cases.
[Pa.B. Doc. No. 96-1704. Filed for public inspection October 11, 1996, 9:00 a.m.]
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