THE COURTS
Title 234--RULES OF CRIMINAL PROCEDURE
[234 PA. CODE CH. 1]
Filing of Appointment Order Enters Appearance; Contents and Service of Appointment Order
[32 Pa.B. 1039]
Introduction The Criminal Procedural Rules Committee is planning to recommend that the Supreme Court of Pennsylvania amend Pa.Rs.Crim.P. 120 (Attorneys--Appearances and Withdrawals) and 122 (Assignment of Counsel). These proposed rule changes would (1) provide the filing of the order appointing counsel to represent a defendant would enter appointed counsel's appearance in the case, (2) set forth the minimum contents for the appointment order, and (3) set forth the requirements for the service of the appointment order. 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. Additions are shown in bold; deletions are in bold and brackets.
We request that interested persons submit suggestions, comments, or objections concerning this proposal in writing to the Committee through counsel, Anne T. Panfil, Chief Staff Counsel, Supreme Court of Pennsylvania, Criminal Procedural Rules Committee, 5035 Ritter Road, Suite 800, Mechanicsburg, PA 17055, fax: (717) 795-2106, e-mail: criminal.rules@supreme.court.state.pa.us, no later than Monday, March 25, 2002.
JOSEPH P. CONTI,
Chair
Annex A
TITLE 234. RULES OF CRIMINAL PROCEDURE
CHAPTER 1. SCOPE OF RULES, CONSTRUCTION AND DEFINITIONS, LOCAL RULES
PART B. Counsel Rule 120. Attorneys--Appearances and Withdrawals.
(A) Counsel for defendant shall enter an appearance in writing with the clerk of courts promptly after being retained [or appointed] and serve a copy [thereof] of the entry of appearance on the attorney for the Commonwealth. If a [firm] firm's name is entered, the name of an individual lawyer shall be designated as being responsible for the conduct of the case.
(B) When counsel has been appointed pursuant to Rule 122 (Appointment of Counsel), the filing of the appointment order shall enter the appearance of appointed counsel.
[(B)] (C) * * *
[(C)] (D) * * *
Comment * * * * * Paragraph (B) was added in 2002 to make it clear that the filing of an order appointing counsel to represent a defendant enters the appearance of appointed counsel. Appointed counsel does not have to file a separate entry of appearance. Rule 122 (Appointment of Counsel) requires the judge to include in the appointment order the name, address, and phone number of appointed counsel, and serve the order on the defendant, appointed counsel, the previous attorney of record, if any, and the attorney for the Commonwealth pursuant to Rule 114 (Notice and Docketing of Orders).
Under paragraph [(C)] (D), the court should make a determination of the status of a case before permitting counsel to withdraw.
* * * * * Official Note: Adopted June 30, 1964, effective January 1, 1965; formerly Rule 303, renumbered Rule 302 and 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; amended March 22, 1993, effective January 1, 1994; renumbered Rule 120 and amended March 1, 2000, effective April 1, 2001; amended ______ , 2002, effective ______ , 2002.
Committee Explanatory Reports:
* * * * * Final Report explaining the February 23, 2002 amendments concerning the filing of an appointment order as entry of appearance for appointed counsel published with the Court's Order at 32 Pa.B. 1041 (February 23, 2002).
Rule 122. [Assignment] Appointment of Counsel.
[(A) IN SUMMARY CASES.]
(A) Counsel shall be [assigned] appointed:
(1) in all summary cases, [to] for all defendants who are without financial resources or who are otherwise unable to employ counsel when there is a likelihood that imprisonment will be imposed[.] ;
[(B) IN COURT CASES.]
(2) [In] in all court cases [counsel shall be assigned], prior to the preliminary hearing [to] for all defendants who are without financial resources or who are otherwise unable to employ counsel[.] ;
[(C) IN ALL CASES.
(1) The] (3) in all cases, by the court, [of] on its own motion, [shall assign counsel to represent a defendant] [whenever] when the interests of justice require it.
[(2) A motion for change of counsel by a defendant to whom counsel has been assigned shall not be granted except for substantial reasons.
(3) Where] (B) When counsel has been [assigned] appointed,
(1) the judge shall enter an order indicating the name, address, and phone number of the appointed counsel, and the order shall be served on the defendant, the appointed counsel, the previous attorney of record, if any, and the attorney for the Commonwealth pursuant to Rule 114 (Notice and Docketing of Orders), and
(2) [such] the [assignment] appointment shall be effective until final judgment, including any proceedings upon direct appeal.
(C) A motion for change of counsel by a defendant for whom counsel has been appointed shall not be granted except for substantial reasons.
Comment * * * * * [Assignment] Appointment of counsel can be waived, if such waiver is knowing, intelligent, and voluntary. See Faretta v. California, 422 U.S. 806 (1975). Concerning the appointment of standby counsel for the defendant who elects to proceed pro se, see Rule 121.
In both summary and court cases, the [assignment] appointment of counsel to represent indigent defendants remains in effect until all appeals on direct review have been completed.
Ideally, counsel should be [assigned to] appointed to represent 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)(1) 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] appointed for 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)] (A)(2) requires counsel to be [assigned] appointed 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] appointed 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] appointed counsel. In such cases it is expected that the defendant's right to [assigned] appointed counsel will be effectuated at the earliest appropriate time.
[Subparagraph (C)(1)] Paragraph (A)(3) retains in the issuing authority or judge the power to [assign] appoint counsel regardless of indigency or other factors when, in the issuing authority's or the judge's opinion, the interests of justice require it.
Paragraph [(C)(3)] (B)(2) 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] appointment until final judgment, which includes appellate procedure.
For suspension of Acts of Assembly, see Rule 1101.
Official Note: Rule 318 adopted November 29, 1972, effective 10 days hence; replacing prior rule; amended September 18, 1973, effective immediately; renumbered Rule 316 and amended June 29, 1977, and October 21, 1977, effective January 1, 1978; renumbered Rule 122 and amended March 1, 2000, effective April 1, 2001; amended ______ , 2002, effective ______ , 2002.
Committee Explanatory Reports:
* * * * * Report explaining the proposed changes concerning the contents of the appointment order published at 32 Pa.B. 1041 (February 23, 2002).
REPORT
Proposed Amendments to Pa.Rs.Crim.P. 120 and 122
FILING OF APPOINTMENT ORDER ENTERS APPEARANCE; CONTENTS AND SERVICE OF APPOINTMENT ORDER The Committee was asked by the Supreme Court's Common Pleas Project1 Staff whether the filing of an order appointing counsel pursuant to Rule 122 (Assignment of Counsel)2 satisfies the entry of appearance requirements of Rule 120 (Attorneys--Appearances and Withdrawals). During the Committee's consideration of this issue, we also noted there are no requirements concerning the appointment order. Accordingly, we are proposing the following changes to Rules 120 and 122.
1) Rule 120 (Attorneys--Appearances and Withdrawals)
The issue of whether the filing of an order appointing counsel enters appointed counsel's appearance arose during one of the sessions of the Common Pleas Project. The project members had learned that in a number of judicial districts, appointed counsel is not required to file a formal entry of appearance; these judicial districts consider the filing of the appointment order to be tantamount to the entry of appearance. Because Rule 120 requires appointed counsel to file an entry of appearance, the project members requested a clarification.
During the Committee's consideration of the issue, a few Committee members expressed concerns about changing the rule. First, they questioned whether providing for the filing of the order to enter appointed counsel's appearance would create difficulties in the situation in which the appointed attorney does not want the appointment or has a conflict and cannot accept the appointment. The members concluded (1) this was not a problem because counsel would communicate with the judge and the judge would appoint a different attorney, which would satisfy the requirements of Rule 120; (2) the change would be beneficial in situations in which the defendant is trying to hire counsel but has not done so; and (3) appointed counsel, being counsel of record, is available to represent the defendant if a critical stage, such as a request for a handwriting exemplar or a line up, arises.
The other concern was with the timeliness of the notice to counsel of the appointment. These members suggested permitting the filing of the order to also enter the appearance would cause problems for the appointed attorney who does not know that he or she has been appointed and his or her appearance entered. Again, the members did not think this would be a significant problem with automation because once the attorney's name, address, and phone number is entered into the automated system for the case, which would occur when either the appointment order or an entry of appearance is filed, the notices would be sent to that attorney.
Satisfied the members' concerns are addressed; agreeing that an entry of appearance that is filed as early as possible in a case is a benefit to the defendant, the attorneys, and the court; and recognizing that by having the filing of the appointment order enter appointed counsel's appearance, the prompt entry of appearance in these cases is ensured, the Committee is proposing that Rule 120 be amended by adding a new paragraph (B) specifically providing that the filing of the appointment order enters the appearance of appointed counsel. We also have added a paragraph to the Rule 120 Comment reiterating that appointed counsel does not have to file a separate entry of appearance, and cross-referencing Rule 122 (Assignment of Counsel) with regard to the contents and service of the appointment order.
2) Rule 122 (Assignment of Counsel)
During the Committee's consideration of Rule 120, several members noted the difficulty they have experienced obtaining the name and address of appointed counsel, and expressed concern this would be exacerbated without a formal entry of appearance. The Committee agreed this could be a problem, and concluded the rules should require the appointment order include the name, address, and phone number of the appointed attorney. In addition, to ensure proper notice to not only appointed counsel and the attorney for the Commonwealth, but also the defendant and any previous counsel of record, the Committee agreed the rules should require service of the appointment order on these additional people.
Rule 122 currently only sets forth the procedures for the appointment of counsel; it does not address the appointment order. Accordingly, the Committee is proposing Rule 122 be amended by adding a paragraph requiring (1) the judge to include in the appointment order the name, address, and phone number of the appointed counsel, and (2) the order be served on the defendant, appointed counsel, the previous attorney of record, if any, and the attorney for the Commonwealth.
Finally, while the Committee was ''tinkering'' with Rule 122, the members agreed to reorganize the rule by deleting the paragraph headings, and (1) moving paragraphs (A), (B), and (C) with regard to when counsel should be appointed into new paragraphs (A)(1), (2), and (3); (2) adding the new language concerning the content and service of the appointment order as new paragraph (B)(1); (3) moving current paragraph (C)(3) to paragraph (B)(2); and (4) making paragraph (C)(2) paragraph (C). In addition, because the terms ''assignment'' and ''appointment'' are used interchangeably throughout Rules 120 and 122, we agreed one term should be used, and are proposing ''appointment'' replace ''assignment'' in both Rules 120 and 122.
[Pa.B. Doc. No. 02-293. Filed for public inspection February 22, 2002, 9:00 a.m.] _______
1 The Common Pleas Project is developing a statewide automated case management system for the common pleas criminal courts.
2 As part of this proposal, the title to Rule 122 is being changed to ''Appointment of Counsel.'' This change is explained below in Part (2).
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