THE COURTS

[234 PA. CODE CH. 1400]

Order Approving Comment Revisions to Rules 1403 and 1405; No. 221; Doc. No. 2

[27 Pa.B. 2121]

Order

Per Curiam:

   Now, this 18th day of April, 1997, upon the recommendation of the Criminal Procedural Rules Committee, the proposal having been submitted to the Court without publication pursuant to Pa.R.J.A. 103(a)(3), and a Report to be published with this Order;

   It Is Ordered pursuant to Article V, Section 10 of the Constitution of Pennsylvania that the Comment revisions to Rules of Criminal Procedure 1403 and 1405 are hereby approved, in the following form.

   This Order shall be processed in accordance with Pa.R.J.A. 103(b), and shall be effective immediately.

Annex A

TITLE 234.  RULES OF CRIMINAL PROCEDURE

PART I.  GENERAL

CHAPTER 1400.  SENTENCING

Rule 1403.  Aids in Imposing Sentence.

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   Official Note: Adopted July 23, 1973, effective 90 days hence[,]; amended June 28, 1976, effective January 1, 1977; amended November 1, 1991, effective January 1, 1992; amended March 22, 1993, effective January 1, 1994; Comment revised April 18, 1997, effective immediately.

Comment

   For purposes of subparagraph A(2)(c), whether the defendant has a prior juvenile adjudication is immaterial. Subparagraph A(3) indicates in general terms what the contents of the pre-sentence investigation report must include. With respect to the particularized contents of such reports, see Commonwealth v. Martin, [466 Pa. 118,] 351 A.2d 650 (Pa. 1976).

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   When an incarcerated defendant has undergone any period of voluntary or involuntary confinement for the purpose of examination pursuant to this rule, credit for the period of confinement should be given toward the sentence ultimately imposed. See, e.g., 50 P. S. §§ 7401(b) and 7407(f).

   Additional pre-sentence procedures may be required by statute. For example, see 42 Pa.C.S. §§ 9791--9799.5 (concerning persons convicted of sexually violent offenses) for pre-sentence assessment and hearing procedures. See also 42 Pa.C.S. § 9714(c) for hearing to determine high risk dangerous offender status.

   Under the provisions of Rule 1404 (Disclosure of Pre-Sentence Reports), full disclosure of reports to defense counsel and the Commonwealth is required. See Rule 1404(a)(2). Reports may also be disclosed under Rule 1404 to other designated persons or agencies, unless the sentencing judge otherwise orders. See Rule 1404(c), (d), and (e).

Committee Explanatory Reports:

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   Final Report explaining the March 22, 1993 amendments published with the Court's Order at 23 Pa.B. 1699 (April 10, 1993).

   Report explaining the April 18, 1997 Comment revision published with the Court's Order at 27 Pa.B. 2122 (May 3, 1997).

Rule 1405.  Procedure at Time of Sentencing.

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   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 revised April 18, 1997, effective immediately.

Comment

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Time for Sentencing

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   Paragraph A(2) is not intended to sanction pro forma requests for continuances. Rather, it permits the judge to extend the time limit for sentencing under extraordinary circumstances only. For example, additional pre-sentence procedures may be required by statute. See 42 Pa.C.S. §§ 9791--9799.5 for pre-sentence assessment and hearing procedures for persons convicted of sexually violent offenses. See also 42 Pa.C.S. § 9714(c) for hearing to determine high risk dangerous offender status.

   Because such extensions are intended to be the exception rather than the rule, the extension must be for a specific time period, and the judge must include in the record the length of the extension. A hearing need not be held before an extension can be granted. Once a specific extension has been granted, however, some provision should be made to monitor the extended time period to insure prompt sentencing when the extension period expires.

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Sentencing Procedures

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   The rule permits the use of a written colloquy that is read, completed, signed by the defendant, and made part of the record of the sentencing proceeding. This written colloquy must be supplemented by an on-the-record oral examination to determine that the defendant has been advised of the applicable rights enumerated in paragraph C(3) and that the defendant has signed the form.

   Other, additional procedures are required by statute. See, e.g., 42 Pa.C.S. § 9795(b), which requires the judge to inform certain offenders of the duty to register.

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Committee Explanatory Reports:

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   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).

   Report explaining the April 18, 1997 Comment revisions published with the Court's Order at 27 Pa.B. 2122 (May 3, 1997).

REPORT

Recent Enactments related to Sentencing:
Comment Revisions to Rules 1403 and 1405

   On April 18, 1997, upon the recommendation of the Criminal Procedural Rules Committee, the Supreme Court of Pennsylvania approved Comment revisions to Pa.R.Crim.P. 1403 (Aids in Imposing Sentence) and Pa.R.Crim.P. 1405 (Procedure at Time of Sentencing). The Comment revisions alert the bench and bar to statutory enactments containing additional pre-sentencing and sentencing procedures for special classes of offenders. Act 1995-21 (Special Session No. 1) amended 42 Pa.C.S. § 9714(c) to require that a hearing be held for an offender presumed to be a ''high risk dangerous offender.'' Act 1995-24 (Special Session No. 1), 42 Pa.C.S. §§ 9791--9799.5, provides for a pre-sentence assessment and hearing to determine whether an offender is a ''sexually violent predator.''

[Pa.B. Doc. No. 97-674. Filed for public inspection May 2, 1997, 9:00 a.m.]

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