THE COURTS
Title 234--RULES OF CRIMINAL PROCEDURE
PART I. GENERAL
[234 PA. CODE CH. 300]
Order Amending Rules 319 and 320; No. 249 Criminal Procedural Rules Doc. No. 2
[29 Pa.B. 4055] The Criminal Procedural Rules Committee has prepared a Final Report explaining the July 15, 1999 amendments to Rules of Criminal Procedure 319 (Pleas and Plea Agreements) and 320 (Withdrawal of Plea of Guilty or Nolo Contendere) that clarify in the rules the procedures for a defendant to withdraw a guilty plea or plea of nolo contendere, and provide the attorney for the Commonwealth a 10-day opportunity within which to respond to the defendant's motion to withdraw. The Final Report follows the Court's Order.
Order Per Curiam:
Now, this 15th day of July, 1999, upon the recommendation of the Criminal Procedural Rules Committee;
It Is Ordered pursuant to Article V, Section 10 of the Constitution of Pennsylvania that Rules of Criminal Procedure 319 and 320 are hereby amended, all in the following form.
This Order shall be processed in accordance with Pa.R.J.A. 103(b), and shall be effective January 1, 2000.
Annex A
TITLE 234. RULES OF CRIMINAL PROCEDURE
PART I. GENERAL
CHAPTER 300. PRETRIAL PROCEEDINGS Rule 319. Pleas and Plea Agreements.
[(a)] (A) Generally.
* * * * * (3) The judge may refuse to accept a plea of guilty or nolo contendere, 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)] (B) Plea agreements.
(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, 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 a separate inquiry of the defendant on the record to determine whether the defendant understands and voluntarily accepts the terms of the plea agreement on which the guilty plea or plea of nolo contendere is based.
[(c)] (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 or nolo contendere 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 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, and November 22, 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 [.]; amended July 15, 1999, effective January 1, 2000.
Comment The purpose of paragraph [(a)] (A)(3) is to codify the requirement that the judge, on the record, ascertain from the defendant that the guilty plea or plea of nolo contendere is voluntarily and understandingly tendered. On the mandatory nature of this practice, see Commonwealth v. Ingram, 316 A.2d 77 (Pa. 1974); Commonwealth v. Campbell, 304 A.2d 121 (Pa. 1973); and Commonwealth v. Jackson, 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 or a plea of nolo contendere. Court decisions may add areas to be encompassed in determining whether the defendant understands the full impact and consequences of the plea, but is nevertheless willing to enter that plea. 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 or nolo contendere?
* * * * * It is advisable that the judge conduct the examination of the defendant. However, paragraph [(a)] (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 or plea of nolo contendere.
The ''terms'' of the plea agreement, referred to in paragraph [(b)] (B)(1), frequently involve the attorney for the Commonwealth--in exchange for the defendant's plea of guilty or nolo contendere, and perhaps for the defendant's promise to cooperate with law enforcement officials--promising concessions such as a reduction of a charge to a less serious offense, the dropping of one or more additional charges, a recommendation of a lenient sentence, or a combination of these. In any event, paragraph [(b)] (B) is intended to insure that all terms of the agreement are openly acknowledged for the judge's assessment. See, e.g., Commonwealth v. Wilkins, 277 A.2d 341 (Pa. 1971).
The 1995 amendment deleting former paragraph [(b)] (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)] (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, or plea of nolo contendere, includes a plea agreement, the 1995 amendment to paragraph [(b)] (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)] (B)(3) was deleted in 1995 for two reasons. The first sentence merely reiterated an earlier provision in the rule. See [(a)] (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 or plea of nolo contendere 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).
For the procedures governing the withdrawal of a plea of guilty or nolo contendere, see Rule 320.
Paragraph [(c)] (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.
Committee Explanatory Reports:
* * * * * Final Report explaining the July 15, 1999 amendments concerning references to nolo contendere pleas and cross-referencing Rule 320 published with the Court's Order at 29 Pa.B. 4057 (July 31, 1999).
Rule 320. Withdrawal of plea of guilty or nolo contendere.
(A) At any time before the imposition of sentence, the court may, in its discretion, permit, upon motion of the defendant, or direct, sua sponte, the withdrawal of a plea of guilty or nolo contendere [to be withdrawn] and the substitution of a plea of not guilty [substituted].
(B) When a defendant moves for the withdrawal of a plea of guilty or nolo contendere, the attorney for the Commonwealth shall be given 10 days to respond.
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 July 1, 1996, effective July 1, 1996 [.] ; amended July 15, 1999, effective January 1, 2000.
Comment Under paragraph (A), when a defendant moves to withdraw a plea of guilty or nolo contendere, ordinarily the motion should be filed in writing before the date of the sentencing hearing. For the procedures governing motions, see Chapter 9000. However, nothing in this rule would preclude a defendant from making an oral and on-the-record motion to withdraw a plea at the sentencing hearing prior to the imposition of sentence.
When the defendant orally moves to withdraw a plea of guilty or nolo contendere at the sentencing hearing, the court should conduct an on-the-record colloquy to determine whether a fair and just reason to permit the withdrawal of the plea exists. If the court finds that there is not a fair and just reason, then the motion should be denied, and the court should proceed to sentencing. If the court finds that there may be a fair and just reason, then pursuant to paragraph (B), the court must give the attorney for the Commonwealth 10 days to respond to the motion.
Under paragraph (B), the trial court may not permit the withdrawal of a guilty plea or plea of nolo contendere until the expiration of the 10 days from the date on which the attorney for the Commonwealth receives the defendant's motion to withdraw the plea, unless the attorney for the Commonwealth responds prior to the expiration, nor may it compel the attorney for the Commonwealth to respond prior to the expiration of the 10-day period.
After the attorney for the Commonwealth has had an opportunity to respond, a request to withdraw a plea made before sentencing should be liberally allowed. See Commonwealth v. Randolph, 718 A.2d 1242 (Pa. 1998); Commonwealth v. Forbes, 299 A.2d 268 (Pa. 1973).
When a defendant [withdraws] is permitted to withdraw a guilty plea or plea of nolo contendere 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 or plea of nolo contendere includes a plea agreement, see the Comment to Rule 319.
Committee Explanatory Reports:
* * * * * Final Report explaining the July 15, 1999 amendments concerning the requirements for the withdrawal of a plea published with the Court's Order at 29 Pa.B. 4057 (July 31, 1999).
FINAL REPORT1
Amendments to Rules 319 and 320 Introduction
On July 15, 1999, upon the recommendation of the Criminal Procedural Rules Committee, the Supreme Court adopted amendments to Rules of Criminal Procedure 319 (Pleas and Plea Agreements) and 320 (Withdrawal of Plea of Guilty or Nolo Contendere). These changes, which will become effective on January 1, 2000, clarify in the rules the procedures for a defendant to withdraw a guilty plea or plea of nolo contendere, and provide the attorney for the Commonwealth a 10-day opportunity within which to respond to the defendant's motion to withdraw. This Final Report highlights the Committee's considerations in formulating these amendments.
Background
The Committee's consideration of plea withdrawals in court cases began in response to correspondence suggesting that the Criminal Rules be amended to provide a notice to the attorney for the Commonwealth in those situations in which a defendant requests to withdraw a plea of guilty. The correspondence pointed out that, often, a defendant requests to withdraw the guilty plea immediately before sentencing, and that in many cases, the attorney for the Commonwealth is not adequately prepared to argue the motion, or the court grants a continuance, and the sentencing is delayed. As a solution to this problem, the correspondence suggested that Rule 320 be amended to require that a defendant who wants to withdraw a plea provide reasonable notice, in writing, to the attorney for the Commonwealth prior to the time of the sentencing hearing.
The Committee reviewed Rule 320, which provides a minimum of procedure, only stating that the court may permit or direct a plea of guilty to be withdrawn, and the case law, which provides that 1) the withdrawal of a guilty plea is to be liberally allowed, particularly prior to sentencing, see Commonwealth v. Forbes, 299 A.2d 268 (Pa. 1973), and 2) the ''preferred procedure'' is for a defendant to file a motion for leave to withdraw the plea, and the trial court, in its discretion, will decide the matter on the basis of the petition and answer, or make an on-the-record determination after an evidentiary hearing, see Commonwealth v. Zakrewski, 333 A.2d 898 (Pa. Super. 1975). Considering the rule and case law, the Committee acknowledged that a defendant may move for the withdrawal in advance of the sentencing hearing, a defendant may orally make the motion as late as immediately before the imposition of sentence, or the trial court may sua sponte direct the withdrawal of the plea. In view of these considerations, and the suggestion to amend Rule 320 to require a defendant to provide notice to the attorney for the Commonwealth before the sentencing date, the Committee concluded that a more detailed procedure providing the attorney for the Commonwealth an opportunity to respond to a defendant's motion to withdraw a plea would allay the concerns of being ''blindsided'' or caught off guard, and ensure the court has the benefit of both positions before ruling.
Initially, the Committee agreed that Rule 320 should:
1. Retain the present procedure that a defendant move, orally or by written motion, to withdraw a plea at any time prior to the imposition of sentence;
2. Provide for a notice to the attorney for the Commonwealth before the date scheduled for sentencing; and
3. Provide the attorney for the Commonwealth with an opportunity to address the fair and just reason claimed by the defendant, and investigate whether a withdrawal of the plea would substantially prejudice its case. While drafting the Rule 320 amendments, however, the Committee realized that the focus on requiring the defendant to provide notice to the attorney for the Commonwealth in advance of sentencing was confusing because the amendment would be open to interpretation that it was a change in the substantive law that a defendant is permitted to make a motion to withdraw a plea at any time until the imposition of sentence. After considering various means to accomplish notice, the Committee settled on providing the attorney for the Commonwealth with a 10-day opportunity to respond. This procedure is a more logical solution, and promotes the two-pronged standard for deciding whether to allow a plea withdrawal espoused in Forbes, supra, and reiterated in Commonwealth v. Randolph, 718 A.2d 1242 (Pa. 1988): first, the judge must determine that there is a fair and just reason for the withdrawal; second, the judge must determine that, if the withdrawal is allowed, there will be a lack of substantial prejudice to the Commonwealth. The Committee also concluded that the ''10-day opportunity to respond'' approach would be more consistent with current practice and case law, and would provide an adequate opportunity for the attorney for the Commonwealth to investigate whether the withdrawal would prejudice the case.
Finally, the Committee agreed that it is important not to create waiver issues or to ''cut off'' a defendant by mandating that a motion to withdraw a plea be ''filed in writing.'' Rule 320, therefore, maintains a defendant's ability to make an oral motion to withdraw a plea immediately prior to sentencing. This approach promotes consistency throughout the Criminal Rules, and corresponds with the motion requirements of Rule 9022.
Discussion of Rule Changes
1. Rule 320 (Withdrawal of Plea of Guilty or Nolo Contendere)
Rule 320 has been divided into two paragraphs. New paragraph (A) incorporates the current provisions of Rule 320, providing that the court in its discretion may permit or direct the withdrawal of a plea of guilty or nolo contendere. Paragraph (A) also includes the qualifiers ''upon motion of the defendant'' referring to the situations in which the court may ''permit'' the withdrawal of a plea of guilty, and ''sua sponte'' in which the court may ''direct'' the withdrawal of a plea of guilty.
A new paragraph (B) provides that the attorney for the Commonwealth shall be given 10 days to respond to a defendant's motion to withdraw a plea of guilty or nolo contendere.
The Rule 320 Comment contains several revisions. First, the Comment clarifies that, although the filing of a written motion to withdraw a plea of guilty is the preferred procedure, oral motions that are made on the record are acceptable. It also explains that, following an oral motion, if the judge determines that no fair and just reason exists to permit the withdrawal, the judge should proceed with the sentencing. If the court finds, however, that there may be a fair and just reason to substantiate a withdrawal, then before proceeding to sentencing, the court must give the attorney for the Commonwealth 10 days to respond to the defendant's motion. Finally, the Comment clarifies that the trial judge may not permit the withdrawal of a plea of guilty before the 10-day period expires, unless the attorney for the Commonwealth responds to the motion prior to the expiration of the 10 days, and that the court may not compel the attorney to respond in less than 10 days.
2. Rule 319 (Pleas and Plea Agreements)
Rule 319 provides the procedures for entering pleas. The Comment has been revised to include a cross-reference to Rule 320 concerning the procedure governing the withdrawal of a guilty plea or plea of nolo contendere.
3. Pleas of Nolo Contendere
Rules 319 and 320 have been modified to include references to nolo contendere pleas because, in Pennsylvania criminal courts, a plea of nolo contendere is considered the same as a plea of guilty. See Commonwealth v. Nelson, 666 A.2d 714 (Pa. Super. 1995) and Commonwealth v. West, 378 A.2d 1289 (Pa. Super. 1977).
[Pa.B. Doc. No. 99-1221. Filed for public inspection July 30, 1999, 9:00 a.m.] _______
1 The Committee's Final Reports should not be confused with the official Committee Comments to the rules. Also note that the Supreme Court does not adopt the Committee's Comments or the contents of the Committee's explanatory Final Reports.
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