THE COURTS
Title 234--RULES OF CRIMINAL PROCEDURE
[234 PA. CODE CHS. 1 AND 4]
Order Amending Rule 454 and Approving the Revision of the Comments to Rules 122, 140, 141, and 462; No. 305 Criminal Procedural Rules; Doc. No. 2
[34 Pa.B. 1929] The Criminal Procedural Rules Committee has prepared a Final Report explaining the March 26, 2004 changes to Rule of Criminal Procedure 454 and revision of the Comments to Rules 122, 140, 141, and 462 that make it clear that no defendant in a summary trial or summary contempt hearing may be imprisoned or sentenced to probation if the right to counsel was not afforded at the trial or contempt hearing. The Final Report follows the Court's Order.
Order Per Curiam:
Now, this 26th day of March, 2004, upon the recommendation of the Criminal Procedural Rules Committee; the proposal having been published before adoption at 32 Pa.B. 6247 (December 21, 2002), and in the Atlantic Reporter (Second Series Advance Sheets, Vol. 811), and a Final Report to be published with this Order:
It Is Ordered pursuant to Article V, Section 10 of the Constitution of Pennsylvania that:
1) Rule of Criminal Procedure 454 is amended; and
2) the revision of the Comments to Rules 122, 140, 141, and 462 is approved,
all in the following form.
This Order shall be processed in accordance with Pa.R.J.A. 103(b), and shall be effective July 1, 2004.
Annex A
TITLE 234. RULES OF CRIMINAL PROCEDURE
CHAPTER 1. SCOPE OF RULES, CONSTRUCTION AND DEFINITIONS, LOCAL RULES
PART B. Counsel Rule 122. Assignment of Counsel.
* * * * *
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 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.
No defendant may be sentenced to imprisonment or probation if the right to counsel was not afforded at trial. See Alabama v. Shelton, 535 U. S. 654 (2002) and Scott v. Illinois, 440 U. S. 367 (1979). See Rule 454 (Trial in Summary Cases) concerning the right to counsel at a summary trial.
* * * * * 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 March 12, 2004, effective July 1, 2004; Comment revised March 26, 2004, effective July 1, 2004.
Committee Explanatory Reports:
* * * * * Final Report explaining the March 26, 2004 Comment revision concerning Alabama v. Shelton published with the Court's Order at 34 Pa.B. 1931 (April 10, 2004).
PART D. Procedures Implementing 42 Pa.C.S. §§ 4137, 4138, and 4139: Criminal Contempt Powers of District Justices, Judges of the Pittsburgh Magistrates Court, and Judges of the Traffic Court of Philadelphia Rule 140. Contempt Proceedings Before District Justices, Pittsburgh Magistrates Court Judges, and Philadelphia Traffic Court Judges.
* * * * *
Comment * * * * * Although 42 Pa.C.S. §§ 4137(a)(4), 4138(a)(3), and 4139(a)(3) permit an issuing authority to impose summary punishments for indirect criminal contempt when a defendant fails to comply with an order of the issuing authority directing the defendant to pay fines and costs in accordance with an installment payment order, nothing in this rule is intended to preclude an issuing authority from proceeding pursuant to Rule [85] 456 (Default Procedures: Restitution, Fines, and Costs).
No defendant may be sentenced to imprisonment if the right to counsel was not afforded at the contempt hearing. See Alabama v. Shelton, 535 U. S. 654 (2002), Scott v. Illinois, 440 U. S. 367 (1979), and Argersinger v. Hamlin, 407 U. S. 25 (1972). Also see Rule 454 concerning counsel in summary cases. The Supreme Court in Commonwealth v. Abrams, 336 A.2d 308 (Pa. 1975) held that the right to counsel applies in cases of criminal contempt. See also Commonwealth v. Crawford, 352 A.2d 52 (Pa. 1976).
* * * * * Official Note: Rule 30 adopted October 1, 1997, effective October 1, 1998; renumbered Rule 140 and amended March 1, 2000, effective April 1, 2001; Comment revised March 26, 2004, effective July 1, 2004.
Committee Explanatory Reports:
* * * * * Final Report explaining the March 26, 2004 Comment revision concerning right to counsel published with the Court's Order at 34 Pa.B. 1931 (April 10, 2004).
Rule 141. Appeals from Contempt Adjudications by District Justices, Pittsburgh Magistrates Court Judges, or Philadelphia Traffic Court Judges.
* * * * *
Comment * * * * * The procedures set forth in Rule 462 (Trial de Novo) for a trial de novo on a summary case should be followed when a contempt adjudication is appealed to the common pleas court.
No defendant may be sentenced to imprisonment if the right to counsel was not afforded at the de novo contempt hearing. See Alabama v. Shelton, 535 U. S. 654 (2002), Scott v. Illinois, 440 U. S. 367 (1979), and Argersinger v. Hamlin, 407 U. S. 25 (1972).
Paragraph (F) makes it clear that the judge assigned to conduct the de novo hearing may dismiss an appeal of the action of an issuing authority in a contempt proceeding when the judge determines that the appellant is absent without cause from the de novo hearing. If the appeal is dismissed, the judge should enter judgment and order execution of any punishment imposed by the issuing authority. [The procedures set forth in Rule 462 (Trial De Novo) for a trial de novo in a summary case should be followed when a contempt adjudication is appealed to the common pleas court.]
* * * * * Official Note: Rule 31 adopted October 1, 1997, effective October 1, 1998; renumbered Rule 141 and Comment revised March 1, 2000, effective April 1, 2001; amended February 28, 2003, effective July 1, 2003; Comment revised March 26, 2004, effective July 1, 2004.
Committee Explanatory Reports:
* * * * * Final Report explaining the March 26, 2004 Comment revision concerning right to counsel published with the Court's Order at 34 Pa.B. 1931 (April 10, 2004).
CHAPTER 4. PROCEDURES IN SUMMARY CASES
PART E. General Procedures in Summary Cases Rule 454. Trial in Summary Cases.
(A) Immediately prior to trial in a summary case:
* * * * * (2) [when] if, in the event of a conviction, there is a reasonable likelihood of a sentence of imprisonment or probation, the defendant shall be advised of the right to counsel and [shall,]
(a) upon request, the defendant shall be given a reasonable opportunity to secure counsel [; and]; or
(b) if the defendant is without financial resources or is otherwise unable to employ counsel, counsel shall be assigned as provided in Rule 122; and
* * * * *
Comment [The defendant has a right to counsel at trial in all summary cases in which the issuing authority determines there is a likelihood of imprisonment.] No defendant may be sentenced to imprisonment or probation if the right to counsel was not afforded at trial. See Alabama v. Shelton, 535 U. S. 654 (2002), Scott v. Illinois, 440 U. S. 367 (1979), and Argersinger v. Hamlin, 407 U. S. 25 (1972). See Rules 121 and 122 [and 121].
* * * * * When a defendant has waived the stay of the sentence of imprisonment pursuant to Rule 461 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, still would [still] be able to pursue an appeal under Rules 460--462.
* * * * * Official Note: Rule 83 adopted July 12, 1985, effective January 1, 1986; amended 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 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; renumbered Rule 454 and Comment revised March 1, 2000, effective April 1, 2001; amended February 28, 2003, effective July 1, 2003; Comment revised August 7, 2003, effective July 1, 2004; amended March 26, 2004, effective July 1, 2004.
Committee Explanatory Reports:
* * * * * Final Report explaining the March 26, 2004 changes concerning Alabama v. Shelton published with the Court's Order at 34 Pa.B. 1931 (April 10, 2004).
PART F. Procedures in Summary Cases Under the Vehicle Code Rule 462. Trial De Novo.
* * * * *
Comment * * * * * Pursuant to paragraph (G), if the defendant is convicted, the trial judge must impose sentence, and advise the defendant of the payment schedule, if any, and the defendant's appeal rights. See Rule 704(A)(3). No defendant may be sentenced to imprisonment or probation if the right to counsel was not afforded at trial. See Alabama v. Shelton, 535 U. S. 654 (2002), Scott v. Illinois, 440 U. S. 367 (1979), and Argersinger v. Hamlin, 407 U. S. 25 (1972).
* * * * * Official Note: Former Rule 86 adopted July 12, 1985, effective January 1, 1986; revised September 23, 1985, effective January 1, 1986; the 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 27, 1995, effective July 1, 1995; amended October 1, 1997, effective October 1, 1998; amended May 14, 1999, effective July 1, 1999; rescinded March 1, 2000, effective April 1, 2001, and paragraph (G) replaced by Rule 462. New Rule 462 adopted March 1, 2000, effective April 1, 2001; amended February 28, 2003, effective July 1, 2003; Comment revised March 26, 2004, effective July 1, 2004.
Committee Explanatory Reports:
* * * * * NEW RULE 462:
* * * * * Final Report explaining the March 26, 2004 Comment revision published with the Court's Order at 34 Pa.B. 1931 (April 10, 2004).
FINAL REPORT1
Amendments to Pa.R.Crim.P 454, and Revision of the Comments to Rules 122, 140, 141, and 462
Right to Counsel at Summary Trial and Summary Contempt Hearing On March 26, 2004, effective July 1, 2004, upon the recommendation of the Criminal Procedural Rules Committee, the Court amended Rule of Criminal Procedure 454 (Trial in Summary Cases), and approved the revision of the Comments to Rules 122 (Assignment of Counsel), 140 (Contempt Proceedings Before District Justices, Pittsburgh Magistrates Court Judges, and Philadelphia Traffic Court Judges), 141 (Appeals From Contempt Adjudications by District Justices, Pittsburgh Magistrates Court Judges, or Philadelphia Traffic Court Judges), and 462 (Trial de Novo). These changes make it clear that no defendant in a summary trial or summary contempt hearing may be imprisoned or sentenced to probation if the right to counsel was not afforded at the trial or contempt hearing.
I. BACKGROUND
These rule changes were developed following the request of the Court that the Committee 1) review Alabama v. Shelton, 535 U. S. 654 (2002)2 with a focus on whether Pennsylvania practice is consistent with the case, and 2) consider whether, in view of Shelton, any changes to the Criminal Rules concerning the right to counsel in summary cases are necessary. The Court raised the specific concern ''that in Pennsylvania there may be cases where an individual may have been incarcerated or subject to a suspended sentence on the basis of a summary offense, and the individual was not provided with counsel.''
During our discussions of Shelton and its impact on the Criminal Rules in Pennsylvania, the Committee agreed that although the rules are clear concerning the right to counsel in court cases, the right to counsel as set forth in the rules concerning summary cases now might be ambiguous: Rule 122 provides that counsel in a summary case is required when ''there is a likelihood that imprisonment will be imposed.'' The Committee, in view of Shelton, thought this language with nothing more could result in confusion for members of the bench and bar. We agreed, therefore, a reference should be added in the rules to further underscore when counsel must be appointed for a defendant in a summary case and highlight the potential consequences when counsel is not afforded at the summary trial.
II. DISCUSSION OF RULE CHANGES
A. Rules 122, 454, and 462
The Committee first considered amending Rule 122 by adding language that would make it clear counsel must be assigned when there is a likelihood that a sentence to a period of probation will be imposed and including a reference to Shelton in the Comment. During our discussion of this possible change, we agreed Rule 122, which addresses the circumstances when counsel should be assigned, merely should acknowledge Shelton in the Comment, and Rule 454 should be amended since the holding in Shelton directly applies to the defendant's right to counsel at the time of the conviction for the offense charged (imprisonment may not be imposed if the defendant was not afforded counsel at the time of trial). Accordingly, Rule 454(A) has been amended to make it clear that if there is a reasonable likelihood of a sentence of imprisonment or probation in a summary case, the defendant shall be given an opportunity to secure counsel or have counsel assigned pursuant to Rule 122.3
In addition, the Comments to Rules 122, 454, and 4624 also have been revised by the language ''No defendant may be sentenced to imprisonment or probation if the right to counsel was not afforded at trial. See Alabama v. Shelton, 535 U. S. 654 (2002) and Scott v. Illinois, 440 U. S. 367 (1979).'' The cross-reference to Scott has been included in the Rule 122 Comment because the Supreme Court in Shelton relied on both Scott and Argersinger v. Hamlin, 407 U. S. 25 (1972). For the same reason, the Comments to Rules 454 and 462 also include cross-references to Argersinger.
B. Revision of the Comments to Rules 140 and 141
Rules 140 and 141 respectively provide the procedures governing summary contempt proceedings and appeals from summary contempt adjudications. The Committee considered whether Shelton has any impact upon these summary contempt rules. After fully discussing this issue, the Committee agreed that Shelton does apply and changes to Rules 140 and 141 comparable to the changes in Rule 122, 454, and 462 should be made. During our discussion, however, the Committee encountered some difficulty reconciling in the contempt rules the terms ''trial'' and ''probation'' that are in the changes to Rules 122, 454, and 462: the contempt rules provide that a defendant who is charged with contempt shall be given a hearing, not a trial, and the statutory punishment for a finding of contempt only includes a fine or imprisonment, not probation.5 In addition, Shelton talks about summary trials and trials generally, and contempt hearings are not trials. The Committee agreed that using the terms ''trial'' and ''probation'' in the contempt rules could cause confusion. Accordingly, the revisions to the Comments to Rules 140 and 141 use ''contempt hearing'' instead of ''trial,'' and do not reference ''probation.''
[Pa.B. Doc. No. 04-592. Filed for public inspection April 9, 2004, 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.
2 In Shelton the Supreme Court held, inter alia, (1) that a sentence that may end up in actual deprivation of personal liberty, e.g., imprisonment following probation violation, may not be imposed ''unless the accused . . . receive the benefit of ''the guiding hand of counsel'' so necessary when one's liberty is in jeopardy'' (quoting Argersinger v. Hamlin, 407 U. S. 25, 40 (1972); (2) ''without a knowing and intelligent waiver, no person may be imprisoned for any offense . . . unless he was represented by counsel at his trial'' (quoting Argersinger v. Hamlin, 407 U. S. 25, 37 (1972)); and (3) imprisonment following a probation violation does not result from the violation itself but from the underlying conviction.
3 One issue of particular concern to the Committee members concerned the costs to the counties of providing counsel in summary cases. Although sensitive to this issue, we noted that these changes do not significantly change what has been the law since Argersinger, and we concluded that defendant's right to counsel as clearly articulated by the Supreme Court in Shelton outweighs these concerns.
4 The Committee agreed to add this change to the Rule 462 Comment in view of correspondence we received following the publication of our proposal at 32 Pa.B. 6248 (December 21, 2002). The correspondent questioned whether the same right concerning the defendant's right to counsel when there is a likelihood of imprisonment or probation applies at a trial de novo. Although the members thought this was clear, in view of the question and to avoid potential confusion, we agreed to include in the Comment to Rule 462 the same language being added to the Comments to Rules 122 and 454.
5 See 42 Pa.C.S. 4137, 4138, and 4139.
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