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PA Bulletin, Doc. No. 96-2002

THE COURTS

Title 234--RULES OF CRIMINAL PROCEDURE

PART I.  GENERAL

[234 PA. CODE CH. 1400]

Order Amending Rule 1406:  Imposition of Sentence; No. 216; Doc. No. 2

[26 Pa.B. 5694]

Order

Per Curiam:

   Now, this 7th day of November, 1996, upon the recommendation of the Criminal Procedural Rules Committee, the proposal having been published in the Pennsylvania Bulletin (Vol. 24 at 4077 et seq. and Vol. 25 at 2270 et seq.), and in the Atlantic Reporter (Second Series Advance Sheets Vols. 643-644 and Vols. 657--658) 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 Rule of Criminal Procedure 1406 is amended 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 1406.  Imposition of Sentence[:  Computation and Service].

   [(a)]  Whenever more than one sentence is imposed at the same time on a defendant, or whenever a sentence is imposed on a defendant who is [incarcerated] sentenced for another offense, [such sentences shall be deemed to run concurrently unless the judge states otherwise.] the judge shall state whether the sentences shall run concurrently or consecutively.

   [(b)  A sentence to imprisonment shall be deemed to commence and shall be computed from the date of commitment for the offense or offenses for which such sentence is imposed, which date shall be specified by the judge. Credit, to be calculated by the clerk of court, shall be given as provided by law for any days spent in custody by the defendant for such offense or offenses prior to the imposition of sentence.]

   [(c)  When, at the time sentence is imposed, the defendant is imprisoned under a sentence imposed for any other offense or offenses, the instant sentence which the judge is imposing shall be deemed to commence from the date of imposition thereof unless the judge states that it shall commence from the date of expiration of such other sentence or sentences.]

   Official Note:  Adopted July 23, 1973, effective 90 days hence; amended March 21, 1975, effective March 31, 1975; amended November 7, 1996, effective January 1, 1997.

Comment

   [Statutory authority for credit pursuant to paragraph (b) is found in Act of August 14, 1963, P. L. 841 §1, 19 P. S. § 898.

   The 1975 amendment deleted the original second paragraph of this Rule, dealing with the simultaneous imposition of two or more sentences. This matter is now the subject of § 1357 of the Act of December 30, 1974, P. L. 1052, 18 Pa.C.S. § 1357.

   For suspension of Acts of Assembly, see Rule 1415(c).]

   In 1996, paragraph (a) was amended and paragraph (c) was deleted to eliminate language which created a presumption that certain sentences run concurrently unless the judge states otherwise. Paragraph (a) now requires the judge to state whether sentences run concurrently or consecutively. Paragraph (b) was deleted as unnecessary. The computation of sentences and credit for time served are governed by the Sentencing Code. See 42 Pa.C.S. §§ 9760 and 9761.

Committee Explanatory Reports:

   Final Report explaining the November 7, 1996 amendments published with the Court's Order at 26 Pa.B. 5694 (November 23, 1996).

FINAL REPORT

Amendments to Pa.R.Crim.P. 1406
(Imposition of Sentence)

   On November 7, 1996, effective January 1, 1997, upon the recommendation of the Criminal Procedural Rules Committee, the Supreme Court of Pennsylvania adopted amendments to Rule 1406 (Imposition of Sentence: Computation and Service) which require that judges state in the sentencing order whether the sentence or sentences imposed run concurrently or consecutively, and eliminate the sentence presumptions created by the present rule.

I.  Summary of Amendments

   (a)  Paragraph (a) has been amended:

   (1)  to eliminate language that creates a presumption that certain sentences run concurrently unless the judge states otherwise; and

   (2)  to add a requirement that when the sentencing judge is imposing more than one sentence at the same time, or imposing a sentence on a defendant incarcerated for another offense, the judge must state whether the sentences will run concurrently or consecutively.

   (b)  Paragraph (b) has been deleted because the computation of sentences and credit for time served is a substantive matter and, as such, should be governed by statute and case law. See 42 Pa.C.S. §§ 9760, 9761.

   (c)  Paragraph (c) has been deleted, because, like the language being deleted from paragraph (a), it creates a presumption on sentencing that should be left to statute and case law.

II.  Development of Original Proposal

   From its earliest stages, the Committee's development of the amendments to Rule 1406 reflected one underlying principle:  the length of sentence which a judge intends to impose on a defendant is a substantive matter governed by statute and case law, not a procedural matter to be governed by rule. This view is supported by the history of Rule 1406, which reveals that, because the rule was originally intended to restate holdings construing now-repealed statutes, much of the rule's language has been out of date for a long time. See, for example, Commonwealth v. Pristas, 295 A.2d 114, 117 (Pa. Super. 1972) (construing 19 P. S. § 894). But see Commonwealth ex rel. Pitts v. Myers, 175 A.2d 331 (Pa. Super. 1961) (under 19 P. S. § 894, presumption that sentences run concurrently has no application where sentences imposed by different courts are to be served in separate and distinct institutions). Furthermore, the case law has continued to wrestle with the rule's sentencing presumptions, raising questions about the precedential validity of earlier case law, and the intended scope of present Rule 1406. See Commonwealth v. Lundberg, 619 A.2d 1066 (Pa. Super. 1993), citing with approval Commonwealth v. Pfeiffer, 579 A.2d 897 (Pa. Super. 1990).

   In view of the apparent confusion and the Committee's position that sentencing presumptions should be created by statute or case law, and not by rule, the Committee proposed amendments to Rule 1406 which deleted the sentencing presumptions contained in paragraphs (a) and (c). We also added a requirement that whenever more than one sentence is imposed at the same time on a defendant, or whenever a sentence is imposed on a defendant who is already sentenced for another offense, the judge must state whether the sentences run concurrently or consecutively.

III.  Post-publication Additions to Proposal

   Our post-publication review of the proposal resulted in further modification of the rule.

   A.  Deletion of Paragraph (b). Paragraph (b) addressed when a sentence is deemed to ''commence,'' and required the judge to state a ''date of commitment.'' Paragraph (b) also required the clerk of courts to calculate the amount of credit that the defendant is due on a sentence, ''as provided by law.''

   The Committee reexamined this paragraph in view of the realities of sentencing proceedings. Despite the Sentencing Code's requirement that information must be made available to judges on all outstanding charges and sentences in any court, 42 Pa.C.S. § 9737, judges and clerks of court often lack information about a defendant's total sentencing picture at the time of sentencing. Without knowledge of (1) the sentences currently being served; (2) the sentences which have been imposed but have not yet begun to run; and (3) any parole or probation detainers which may come into play, a judge simply cannot make an informed decision about what length of sentence to impose. For the same reason, the judge is incapable of specifying an accurate ''date of commitment,'' and the clerk of courts cannot calculate credit for time served, as paragraph (b) required.

   In keeping with the rationale behind the other proposed changes to Rule 1406, the Committee agreed that the computation of sentences and credit for time served are substantive issues which should not be solved by rule. See 42 Pa.C.S. §§ 9760, 9761. This view, in conjunction with our recognition that sentencing computations continue to be highly problematic, led us to reevaluate the efficacy of Rule 1406(b) and to conclude that it should be deleted altogether. As a corollary to this change, we also deleted the references to computation and service in the rule's title.

   B.  Clarifying Change to Paragraph (a). Paragraph (a) addressed, in part, the circumstance in which ''a sentence is imposed on a defendant who is incarcerated for another offense. . . . '' Because a defendant can be incarcerated on charges without being sentenced, the paragraph has been clarified by substituting the word sentenced for the broader term incarcerated.

[Pa.B. Doc. No. 96-2002. Filed for public inspection November 22, 1996, 9:00 a.m.]

   


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