THE COURTS
[234 PA. CODE CHS. 300 AND 1500]
Proposed Amendment of Rules 316 and 1504 Relating to Appointed Counsel
[30 Pa.B. 5533]
Introduction The Criminal Procedural Rules Committee is planning to recommend that the Supreme Court of Pennsylvania amend Pa.Rs.Crim.P. 316 and 1504 to clarify that appointed counsel's obligation extends until final judgment, which includes all avenues of appeal through the Supreme Court of Pennsylvania. 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 Report 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, November 27, 2000.
By the Criminal Procedural Rules Committee
J. MICHAEL EAKIN,
Chair
Annex A
TITLE 234. RULES OF CRIMINAL PROCEDURE
CHAPTER 300. PRETRIAL PROCEEDINGS Rule 316. Assignment of Counsel.1
* * * * * (C) In all Cases.
* * * * * (3) [Where] When counsel has been assigned, such assignment shall be effective until final judgment, including any proceedings upon direct appeal.
Official Note: [Adopted] Rule 318 adopted November 29, 1972, effective 10 days hence; replacing prior rule; amended September 18, 1973, effective immediately; [formerly Rule 318,] renumbered Rule 316 and amended June 29, 1977, and October 21, 1977, effective through November 22, 1977, effective as to cases in which the indictment of information is filed on or after January 1, 1978; renumbered Rule 122 and amended March 1, 2000, effective April 1, 2001; Comment revised _____ , 2000, effective _____ , 2000.
Comment This rule is designed to implement the decisions of Argersinger v. Hamlin, 407 U. S. 25 (1972), and Coleman v. Alabama, 399 U. S. 1 (1970), that no defendant in a summary case be sentenced to imprisonment unless [he] the defendant was represented at trial by counsel, and that every defendant in a court case has counsel starting no later than the preliminary hearing stage.
Assignment of counsel can be waived, if such waiver is knowing, intelligent, and voluntary. See Faretta v. California, 422 U. S. 806 (1975). [With regard to] Concerning the appointment of standby counsel for the defendant who elects to proceed pro se, see Rule 318.2
In both summary and court cases, the assignment of counsel to indigent defendants remains in effect until all appeals on direct review have been completed.
Ideally, counsel should be assigned to indigent defendants immediately after they are brought before the issuing authority in all summary cases in which a jail sentence is possible, and immediately after preliminary arraignment in all court cases. This rule strives to accommodate the requirements of the Supreme Court of the United States to the practical problems of implementation. Thus, in summary cases, paragraph [(a)] (A) requires a pretrial determination by the issuing authority as to whether a jail sentence would be likely in the event of a finding of guilt in order to determine whether trial counsel should be assigned to indigent defendants. It is expected that the issuing authorities will in most instances be guided by their experience with the particular offense with which defendants are charged. This is the procedure recommended by the ABA Standards Relating to Providing Defense Services § 4.1 (Approved Draft, 1968) and cited in the United States Supreme Court's opinion in Argersinger, supra. If there is any doubt, the issuing authority can seek the advice of the attorney for the Commonwealth, if one is prosecuting the case, as to whether the Commonwealth intends to recommend a jail sentence in case of conviction.
In court cases, paragraph [(b)] (B) requires counsel to be assigned at least in time to represent the defendant at preliminary hearing. Although difficulty may be experienced in some judicial districts in meeting the Coleman requirement, it is believed that this is somewhat offset by the prevention of many post-conviction proceedings which would otherwise be brought based on the denial of the right to counsel. However, there may be cases in which counsel has not been assigned prior to the preliminary hearing stage of the proceedings; e.g., counsel for the preliminary hearing has been waived, or a then-ineligible defendant subsequently becomes eligible for assigned counsel. In such cases it is expected that the defendant's right to assigned counsel will be effectuated at the earliest appropriate time.
Subparagraph [(c)] (C)(1) retains in the issuing authority or judge the power to assign counsel regardless of indigency or other factors when, in [his] issuing authority's or judge's opinion, the interests of justice require it.
Subparagraph [(c)(iii)] (C)(3) [implements the decisions of Douglas v. California, 372 U. S. 353 (1963), and Commonwealth v. Hickox, 249 A.2d 777 (Pa. 1969), by providing] makes it clear that appointed counsel [appointed originally shall retain] retains his or her assignment until final judgment, which includes [appellate procedure] all avenues of appeal through the Supreme Court of Pennsylvania. See Commonwealth v. Daniels, 420 A.2d 1323 (Pa. 1980).
This rule neither addresses counsel's obligations as appointed counsel, see Jones v. Barnes, 463 U. S. 745, nor ineffective assistance of counsel, see Wainwright v. Torna, 455 U. S. 586 (1982).
For suspension of Acts of Assembly, see Rule 340.3
Committee Explanatory Reports:
Final Report explaining the March 1, 2000 reorganization and renumbering of the rules published with the Court's Order at 30 Pa.B. 1478 (March 18, 2000).
Report explaining the proposed Comment revision concerning duration of counsel's obligation published at 30 Pa.B. 5535 (October 28, 2000).
CHAPTER 1500. POST-CONVICTION COLLATERAL PROCEEDINGS Rule 1504. Appointment of Counsel; in Forma Pauperis.4
* * * * * (F) Appointment of Counsel in Death Penalty Cases.
* * * * * (2) The appointment of counsel shall be effective throughout the post-conviction collateral proceedings, including any appeal from disposition of the petition for post-conviction collateral relief.
* * * * * Official Note: Previous Rule 1504 adopted January 24, 1968, effective August 1, 1968; rescinded December 11, 1981, effectie June 27, 1982; rescission vacated June 4, 1982; rescinded February 1, 1989, effective July 1, 1989, and replaced by Rule 1507. Present Rule 1504 adopted February 1, 1989, effective July 1, 1989; amended August 11, 1997, effective immediately; amended January 21, 2000, effective July 1, 2000; renumbered Rule 904 and amended March 1, 2000, effective April 1, 2001; Comment revised _____ , 2000, effective _____ , 2000.
Comment * * * * * Consistent with Pennsylvania post-conviction practice [under former Rules 1503 and 1504], it is intended that counsel be appointed in every case in which a defendant has filed a petition for post-conviction collateral relief for the first time and is unable to afford counsel or otherwise procure counsel. However, the rule now limits appointment of counsel on second or subsequent petitions so that counsel should be appointed only if the judge determines that an evidentiary hearing is required. Of course, the judge has the discretion to appoint counsel in any case when the interests of justice require it.
Paragraph (D) makes it clear that appointed counsel retains his or her assignment until final judgment, which includes all avenues of appeal through the Supreme Court of Pennsylvania. See Commonwealth v. Daniels, 420 A.2d 1323 (Pa. 1980).
This rule neither addresses counsel's obligations as appointed counsel, see Jones v. Barnes, 463 U. S. 745, nor ineffective assistance of counsel, see Wainwright v. Torna, 455 U. S. 586 (1982).
* * * * * Committee Explanatory Reports:
Final Report explaining the August 11, 1997 amendments published with the Court's Order at 27 Pa.B. 4305 (August 23, 1997).
Final Report explaining the January 21, 2000 amendments adding paragraph (F) concerning appointment of counsel published with the Court's Order at 30 Pa.B. 624 (February 5, 2000).
Final Report explaining the March 1, 2000 reorganization and renumbering of the rules published with the Court's Order at 30 Pa.B. 1478 (March 18, 2000).
Report explaining the proposed Comment revision concerning duration of counsel's obligation published at 30 Pa.B. 5535 (October 28, 2000).
Report
Proposed Amendments to Pa.Rs.Crim.P.
316 and 1504
Duration of Appointed Counsel's Obligation The Committee undertook a review of the duration of appointed counsel's obligation provisions in Rule 316 (Assignment of Counsel) at the request of the Court.5 The Court asked the Committee to consider the general issue of whether the provision in Rule 316(C)(3) ''such assignment shall be effective until final judgment, including any proceedings upon direct appeal'' continues through the allocatur process. The Court also asked the Committee to consider whether the Court's May 9, 2000 Order concerning the exhaustion of state remedies for purposes of federal habeas corpus relief should impact on the scope of Rule 316.
A. Duration of Appointed Counsel's Obligation
The Committee considered first the Court's question concerning the duration of appointed counsel's obligation, and reviewed the Rule 316 history and case law interpreting Rule 316. When the Committee recommended the appointment of counsel rule in 1964, the submission to the Court explained that the Committee was proposing that the rule provide counsel's assignment shall be effective until final judgment including any proceedings upon direct appeal, and that the proposal was based on the United States Supreme Court's decision in Douglas v. California, 372 U. S. 353 (1963). The Committee, however, did not explain what was intended by ''any proceedings upon direct appeal.'' Douglas is not conclusive as to the meaning of ''direct appeal'' because the Supreme Court limited the scope of the decision saying ''We are not here concerned with the problems that might arise from the denial of counsel for the preparation of a petition for discretionary review or mandatory review beyond the stage in the appellate process at which the claims have once been presented by a lawyer and passed upon by an appellate court.''
Subsequently, the Court decided Commonwealth v. Hickox, 249 A.2d 777 (Pa. 1969). The Hickox opinion directs appointed counsel following the affirmance of defendant's sentence by the Superior Court ''to proceed in accordance with the Rule,'' suggesting that in 1969 the Court interpreted the use of ''direct appeal'' in Rule 316 to include discretionary appeals. The citation to Hickox was added to the Rule 316 Comment. The Committee concluded the addition of Hickox supported the premise that the intent of the rule is that appointed counsel is to stay in the case through the state courts' discretionary appeal process.
The issue of the length of appointed counsel's obligation has continued to arise in cases. The United States Supreme Court again addressed the issue in 1974 in Ross v. Moffitt, 417 U.S. 600 (1974). The Supreme Court held that there is no constitutional right to appointed counsel for discretionary appeals, noting that the decision should be made at the state level. The Pennsylvania Supreme Court did just that in 1980 when, in Commonwealth v. Daniels, 420 A.2d 1323 (Pa. 1980), it noted ''by this Rule [Rule 316], this Court long has guaranteed that a person seeking allowance of appeal is entitled to the assistance of counsel.'' Since Daniels, there have been several Superior Court cases addressing this issue in the context of ineffective assistance of counsel for failing to seek allowance of appeal to the Supreme Court, all accepting the premise that appointed counsel stays in the case through discretionary appeal. See, e.g., Commonwealth v. Morrow, 474 A.2d 322 (Pa. Super. 1984) and Commonwealth v. West, 482 A.2d 1339 (Pa. Super, 1984).
In view of the Committee rule history and the case law, the Committee reaffirmed that the appointment of counsel pursuant to Rule 316 extends through appeals to the Pennsylvania Supreme Court. Because of the Court's inquiry and the fact that the issue continues to arise, the Committee agreed that Rule 316 should be clarified. Because the sixth paragraph of the Rule 316 Comment currently addresses this issue, the Committee agreed the clarification should be made in that paragraph.
The present Comment provides:
Paragraph (C)(3) implements the decisions of Douglas v. California, 372 U.S. 353 (1963), and Commonwealth v. Hickox, 249 A.2d 777 (Pa. 1969), by providing that counsel appointed originally shall retain his or her assignment until final judgment, which includes appellate procedure.The Committee initially considered merely substituting ''which includes appellate procedure'' in the last line of the paragraph with a phrase such as ''which includes discretionary appeal.'' We reconsidered this because the Douglas and Hickox opinions involved cases in which the appeal was an appeal as of right, and both Courts appear to use ''direct appeal'' in that context. The Committee agreed a reasonable interpretation of the ''implements'' language would be that ''direct appeal'' only goes through the appeal as of right stage. Although paragraph (C)(3) initially was the result of those two cases, subsequent Pennsylvania cases have clearly interpreted Rule 316 as applying through discretionary appeals to the Pennsylvania Supreme Court. In view of this, and because Pennsylvania courts have gone in a different direction than the federal courts since Ross v. Moffitt, the Committee was concerned the ''implements'' language in the Rule 316 Comment was confusing. Accordingly, we are proposing the ''implements'' language be deleted. In addition, to make the provision clearer concerning the duration of appointed counsel's obligation, we are proposing the paragraph be revised to explain that paragraph (C)(3) ''makes it clear that appointed counsel retains his or her assignment until final judgement, which includes all avenues of appeal through the Supreme Court of Pennsylvania.''6 We are proposing a citation to Commonwealth v. Daniels be added because this is the most recent decision in which the Court has addressed the issue, and more clearly states the proposition.
During the course of our discussions concerning these proposed changes, several members expressed concern that the changes would result in an appointed attorney being forced to file a petition for allowance of appeal even when counsel, in exercising his or her professional judgment, determines it is inappropriate. Although the Committee agreed that Rule 316 only addresses the appointment of counsel, not counsel's professional responsibilities, the members were sensitive to the concerns being raised, and are proposing an additional paragraph be added to the Comment to clarify this point. This new paragraph includes cross-references to Jones v. Barnes, 463 U.S. 745 (1983), concerning counsel's professional obligations, and Wainwright v. Torna, 455 U. S. 586 (1982), concerning ineffective assistance of counsel.
As we discussed Rule 316, we noted that comparable issues arise in the context of Rule 1504 (Appointment of Counsel; In Forma Pauperis), and are proposing the same changes to the Rule 1504 Comment.
B. Court's May 9, 2000 Order
Turning to the second part of the Court's inquiry concerning the impact of its May 9, 2000 Order on Rule 316, the Committee reviewed O'Sullivan v. Boerckel, 526 U.S. 838 (1999). In Boerckel, the Supreme Court addressed the exhaustion doctrine, holding, inter alia, ''state prisoners must give the state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State's established appellate review process,'' and when that process is two-tiered, both tiers should be utilized if the discretionary review is a normal part of the established review process. The Supreme Court went on to say ''nothing in our decision today requires exhaustion of any specific state remedy when a State has provided that that remedy is unavailable,'' suggesting the states can by rule or statute provide that a given procedure is not available. Based on our review of this case and the Court's Order, the Committee concluded that no changes to Rule 316 with regard to the May 9, 2000 Order were necessary.
[Pa.B. Doc. No. 00-1851. Filed for public inspection October 27, 2000, 9:00 a.m.] _______
1 Rule 316 will become Rule 122 as part of the reorganization and renumbering of the rules adopted March 1, 2000, effective April 1, 2001.
2 Rule 318 will become Rule 121 as part of the reorganization and renumbering of the rules adopted March 1, 2000, effective April 1, 2001.
3 Rule 340 will become Rule 1101 as part of the reorganization and renumbering of the rules adopted March 1, 2000, effective April 1, 2001.
4 Rule 1504 will be renumbered Rules 904 as part of the renumbering and reorganization of the Rules of Criminal Procedure the Court adopted on March 1, 2000, effective April 1, 2001.
5 References in the Report to ''Supreme Court'' mean the U. S. Supreme Court, and references to ''Court'' mean the Pennsylvania Supreme Court.
6 Rule 75 will become Rule 430 as part of the reorganization and renumbering of the rules adopted March 1, 2000, effective April 1, 2001.
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