THE COURTS

Title 234--RULES OF CRIMINAL PROCEDURE

PART I.  GENERAL

[234 PA. CODE CH. 50]

Waiver of Stays of Execution of Sentence in Summary Cases

[29 Pa.B. 4859]

Introduction

   The Criminal Procedural Rules Committee is planning to recommend that the Supreme Court of Pennsylvania amend Rule of Criminal Procedure 86 (Appeals), and approve the revision of the Comment to Rule 83 (Trial in Summary Cases). These changes establish a procedure for the waiver of the stay of execution of sentence in summary cases by a defendant who is represented by counsel, or who has waived counsel. This proposal has not been submitted for review by the Supreme Court of Pennsylvania.

   The following explanatory Report highlights the Committee's considerations in formulating this proposal. Please note that the Committee's 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 explanatory Reports.

   The text of the proposed rule changes precedes the Report.

   We request that interested persons submit suggestions, comments, or objections concerning this proposal to the Committee through counsel, Anne T. Panfil, Chief Staff Counsel, Supreme Court of Pennsylvania, Criminal Procedural Rules Committee, P. O. Box 1325, Doylestown, PA 18901, no later than Monday, September 20, 1999.

By the Criminal Procedural Rules Committee

J. MICHAEL EAKIN,   
Chair

Annex A

TITLE 234.  RULES OF CRIMINAL PROCEDURE

PART I.  GENERAL

CHAPTER 50.  PROCEDURE IN SUMMARY CASES

PART VI.  GENERAL PROCEDURES IN
SUMMARY CASES

Rule 83.  Trial in Summary Cases.

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   Official Note:  Adopted July 12, 1985, effective January 1, 1986; amended September 23, 1985, effective January 1, 1986; effective date extended to July 1, 1986; amended February 2, 1989, effective March 1, 1989; amended October 28, 1994, effective as to cases instituted on or after January 1, 1995; Comment revised April 18, 1997, effective July 1, 1997; amended October 1, 1997, effective October 1, 1998; Comment revised February 13, 1998, effective July 1, 1998[.]; Comment revised ______ 1999, effective ______ , 1999.

Comment

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   When a defendant has waived the stay of the sentence of imprisonment pursuant to Rule 86(B), the issuing authority may fix the commencement date of the sentence to be the date of conviction, rather than after the 30-day stay period has expired. The defendant, of course, would still be able to pursue an appeal under Rule 86.

   For the statutory authority to sentence a defendant to pay a fine, see 42 Pa.C.S. § 9726.

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Committee Explanatory Reports:

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   Report explaining the proposed Comment revision concerning waiver of stay of execution of sentence in summary cases published at 29 Pa.B. 4860 (September 18, 1999).

Rule 86.  Appeals.

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   (B)  Stays.

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   (3)  A defendant who is represented by counsel, or a defendant who has waived counsel as provided in Rule 318, may waive the stay. The waiver must be in writing, signed by the defendant and defendant's counsel, if any, and made a part of the record.

   [(3)] (4)  ***

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   Official Note:  Adopted July 12, 1985, effective January 1, 1986; Comment revised September 23, 1985, effective January 1, 1986; January 1, 1986 effective dates extended to July 1, 1986; amended February 2, 1989, effective March 1, 1989; amended March 22, 1993, effective January 1, 1994; amended October 28, 1994, effective as to cases instituted on or after January 1, 1995; amended February 25, 1995, effective July 1, 1995; amended October 1, 1997, effective October 1, 1998; amended May 14, 1999, effective July 1, 1999[.]; amended ______ 1999, effective ______ , 1999.

Comment

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   The stay of the sentence of imprisonment in summary cases recognizes the limited length of the terms of imprisonment. However, there may be situations when the defendant would want the sentence to begin to run immediately following the conviction, and forego the benefits of the stay. To accommodate these extraordinary cases, paragraph (B) was amended in 1999 to permit a defendant who is represented by counsel, or who has waived counsel, to waive the stay of the execution of sentence. The waiver of the stay in no way is to be construed as a waiver of the right to appeal.

   Under paragraph (B)(2), the stay applies to all ''sentences'' imposed after conviction, including sentences of imprisonment, fines and costs, or restitution, and sentences of imprisonment for defaults in payment pursuant to Rule 85.

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Committee Explanatory Reports:

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   Final Report explaining the October 1, 1997 amendments to paragraphs (B), (D)(7), and (I) published with the Court's Order at 27 Pa.B. 5414 (October 18, 1997).

*      *      *      *      *

   Report explaining the proposed amendments to paragraph (B) adding the provision for waiver of stay of execution of sentence published at 29 Pa.B. 4860 (September 18, 1999).

REPORT

Proposed Amendments to Pa.R.Crim.P. 86 (Appeals),

Revision of the Rule 83 Comment

Waiver of Stays of Execution of Sentence
in Summary Cases

   The Committee is proposing that Rule 86 (Appeals) be amended, and the Comment to Rule 83 (Trial in Summary Cases) be revised, to establish procedures for permitting a defendant, who is represented by counsel or who has waived counsel, to waive the stay of the execution of sentence in a summary case.

   The Committee undertook a review of the stay of execution of sentence provisions in Rule 86(B) in response to correspondence from members of the minor judiciary.¹ The correspondents pointed out that there may be situations when a defendant, who has been sentence to imprisonment, would want to waive the 30-day stay of execution of that sentence in order to start serving the sentence of imprisonment immediately upon conviction. They noted that this situation arises when, for example, a defendant is currently incarcerated on other charges. If the defendant is able to waive the stay, the new sentence could run concurrently with the other sentence. Because the summary cases rules do not permit a waiver of the stay, and because the Administrative Offices of Pennsylvania Courts' District Justice Computer System, in implementing the stay provisions, sets the date for the execution of sentence to occur after the expiration of the 30-day appeal period, the correspondents requested that the rules be amended to permit a defendant to waive the 30-day stay in Rule 86(B).

   The Committee, persuaded by the correspondents' reasoning, agreed that it makes sense to permit the minor judiciary to exercise some discretion in the area of commencement of sentences, and that a waiver provision would give them a certain amount of flexibility. At the same time, the Committee was concerned about possible abuses, such as unwary defendants being pressured into waiving the 30-day stay, so the defendants end up serving their sentences of imprisonment before they have an opportunity to appeal, thereby abrogating the purpose of the stay provisions. The Committee also was concerned that, if the rules permit a waiver of the stay, this might be interpreted as a waiver of the right to appeal. We agreed that any procedure proposed that would permit the waiver of the stay would have to address these issues too.

   Accordingly, to provide for a waiver and to address these issues, the Committee has settled on the following proposed changes:

   1.  Rule 86(B) would be amended by adding a waiver of the stay provision. See paragraph (B)(3). As a means of protecting against abuses, the waiver provision would be limited to those defendants who are represented by counsel, or who have waived counsel pursuant to Rule 318. The Committee feels strongly that the waiver should only be by defendants who are represented, but recognizes the realities of summary case proceedings in which many defendants elect to proceed without counsel, even when there is a likelihood of a sentence of imprisonment. We, therefore, agreed that these pro se defendants should be given the same benefits of a waiver as represented defendants.

   2.  The amendment would require that the waiver of the stay be in writing, signed by the defendant and defendant's counsel, if any, and made a part of the record. The Committee is proposing this requirement because the minor judiciary courts are courts not of record, and we agreed that it is important to have a written record of all waivers to provide a means to monitor waivers.

   3.  The Rule 86 Comment would elaborate on the situations when it would be appropriate for a defendant to waive the stay, and would make it clear that the waiver of the stay in no way affects the defendant's right to appeal.

   4.  The Rule 83 Comment would be revised to alert the minor judiciary to the waiver of stay of execution of sentence provisions in Rule 86, and that they may fix the commencement date of the sentence of imprisonment to be the date of conviction when there is a waiver. The provision also clarifies that the waiver does not preclude the defendant from appealing the conviction.

[Pa.B. Doc. No. 99-1568. Filed for public inspection September 17, 1999, 9:00 a.m.]

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¹  The correspondence was forwarded to the Committee from District Justice Fred Pierantoni, Chair of the Minor Court Rules Committee.

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