THE COURTS

[234 PA. CODE CH. 5]

Order Amending Rule 535; No. 340 Criminal Procedural Rules; Doc. No. 2

[36 Pa.B. 1397]

Order

Per Curiam:

   Now, this 9th day of March, 2006, upon the recommendation of the Criminal Procedural Rules Committee; the proposal having been published before adoption at 33 Pa.B. 6408 (December 27, 2003) and in the Atlantic Reporter (Second Series Advance Sheets, Vol. 835), 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 Rule of Criminal Procedure 535 is amended in the following form.

   This Order shall be processed in accordance with Pa.R.J.A. 103(b), and shall be effective August 1, 2006.

   Madame Justice Baldwin did not participate in the decision of this matter.

Annex A

TITLE 234.  RULES OF CRIMINAL PROCEDURE

CHAPTER 5.  PRETRIAL PROCEDURES
IN COURT CASES

PART C(2).  General Procedures in all Bail Cases

Rule 535.  Receipt for Deposit; Return of Deposit.

   (A)  Any deposit of cash in satisfaction of a monetary condition of bail shall be given to the issuing authority, the clerk of courts, or another official designated by the president judge by local rule pursuant to Rule 117(C). The issuing authority, clerk, or other official who accepts the deposit shall give the depositor an itemized receipt, and shall note on the bail bond the amount deposited and the name of the person who made the deposit. The defendant shall sign the bail bond, and be given a copy of the signed bail bond.

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   (4)  At the time bail is being deposited, no inquiry shall be made of the depositor whether he or she consents to have the deposit retained to be applied toward the defendant's fines, costs, or restitution, if any.

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Comment

   [This rule is not intended to change current practice.]

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   [A] Paragraph (A) was amended in 2006 to make it clear that the clerk of courts or other official accepting a deposit of cash bail is not permitted to request that the depositor agree to have the cash bail deposit retained after the full and final disposition of the case to be applied toward the payment of the defendant's fines, costs, or restitution, if any. See, e.g., Commonwealth v. McDonald, 476 Pa. 217, 382 A.2d 124 (1978), which held that a deposit of cash to satisfy a defendant's monetary bail condition that is made by a person acting as a surety for the defendant may not be retained to pay for the defendant's court costs and/or fines. [See Commonwealth v. McDonald, 476 Pa. 217, 382 A.2d 124 (1978).]

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   Official Note:  Former Rule 4015, previously Rule 4009, adopted November 22, 1965, effective June 1, 1966; renumbered Rule 4015, former paragraph (b) integrated into paragraph (a) and new paragraph (b) adopted July 23, 1973, effective 60 days hence; rescinded September 13, 1995, effective January 1, 1996, and replaced by present Rule 4015. Present Rule 4015 adopted September 13, 1995, effective January 1, 1996. The January 1, 1996 effective dates extended to April 1, 1996; the April 1, 1996 effective dates extended to July 1, 1996; renumbered Rule 535 and amended March 1, 2000, effective April 1, 2001; amended April 20, 2000, effective July 1, 2000; amended March 3, 2004, effective July 1, 2004; amended June 30, 2005, effective August 1, 2006; amended March 9, 2006, effective August 1, 2006.

Committee Explanatory Reports:

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   Final Report explaining the March 9, 2006 changes to paragraph (A) concerning deposits of bail published with the Court's Order at 36 Pa.B. 1398 (March 25, 2006).

FINAL REPORT¹

Amendments to Pa.R.Crim.P. 535
(Receipt for Deposit; Return of Deposit)

Application of Bail Deposit to
Fines, Costs, Restitution

   On March 9, 2006, effective August 1, 2006, upon the recommendation of the Criminal Procedural Rules Committee, the Court amended Pa.R.Crim.P. 535 (Receipt for Deposit; Return of Deposit) to make it clear that the clerk of courts or other individual accepting a deposit of bail may not ask the depositor to consent to have the bail money applied toward fines and costs.

I.  INTRODUCTION

   The amendments to Pa.R.Crim.P. 535 (Receipt for Deposit; Return of Deposit) provide in the text of the rule the specific prohibition that, at the time bail is deposited, the court official who accepts a deposit of bail may not inquire of the depositor whether the depositor consents to have the cash bail deposit retained to be applied toward the defendant's fines, costs, or restitution, if any. This amendment is not a change to the current law concerning the use of bail money deposits, but rather is a clarification of the provision in the Rule 535 Comment that cross-references Commonwealth v. McDonald, 476 Pa. 217, 382 A.2d 124 (1978), in which the Court held that ''a deposit of cash to satisfy a defendant's monetary bail condition that is made by a person acting as a surety for the defendant may not be retained to pay for the defendant's court costs and/or fines.''²

   The Committee undertook a review of the issue of using monetary bail deposits to pay a defendant's court costs and fines following an inquiry from the Common Pleas Case Management System (CPCMS) staff whether the monetary bail deposit may be retained to offset the defendant's fines, costs, restitution, and attorney's fees. The CPCMS staff noted monetary bail deposits are being retained for this purpose in some judicial districts notwithstanding the language in the Rule 535 Comment, and these judicial districts asked that the CPCMS be designed to accommodate the practice.

II.  DISCUSSION

   The Committee approached the issue from two perspectives: (1) whether the practice in some judicial districts of using bail deposits to offset fines, costs, and restitution is permissible under the rules and (2) if not, whether the Criminal Rules should be amended to permit the practice. From a review of the Criminal Rules, the Constitution, and case law, the members concluded that the practice is contrary to the purpose of bail, which is to ensure a defendant's appearance at all court proceedings, and conflicts with Rule 535(D), which provides that ''the deposit shall be returned to the depositor, less any bail-related fees or commissions authorized by law, and the reasonable costs, if any, of administering the percentage cash bail program.'' (Emphasis added.)

   In considering whether Rule 535 should be amended to permit a court official at the time bail is deposited to ask a bail depositor to agree to the use of the bail deposit to offset fines, costs, and restitution, in addition to being contrary to the purpose of bail, the members identified a number of practical concerns about such a practice:

   (1)  requesting the depositor to agree may be coercive on and confusing to the bail depositor, who frequently will not fully understand the nature and consequences of the agreement he or she is being asked to make;

   (2)  requesting the defendant's agreement easily could become an improper condition of release on bail;

   (3)  permitting the practice could lead to the unintended and unacceptable collateral consequences of police officers no longer releasing defendants pursuant to Rule 519(B) or bail authorities no longer utilizing ROR or conditional release in order to ensure the collection of fines and costs; and

   (4)  such a practice is inequitable and unfair because, for example, some defendants are given ROR and others are required to post a monetary condition of bail for the same offenses, such as when you have a resident defendant and a non-resident defendant.

   In view of these considerations, the Committee agreed the rules should not be amended to permit the practice; rather, the rules should be amended to include a specific prohibition against the practice. The Committee further agreed the amendment should be incorporated into the text of Rule 535 and should be limited to a prohibition on the request for consent to use the bail deposit to offset fines, costs, and restitution at the time the monetary baildeposit is made, leaving the questions about when, if ever, the bail deposits may be used to offset fines, costs, and restitution to the courts.

   The new language has been added as new paragraph (A)(4), with a correlative explanatory paragraph added to the current provision in the Comment that cites to Commonwealth v. McDonald. In addition, although the provision in new paragraph (A)(4) is not a change in the law or what has been the intent of the rules, because it is a change in what is the current practice in some judicial districts, the first sentence of the Comment that provides ''this rule is not intended to change current practice'' has been deleted.

[Pa.B. Doc. No. 06-483. Filed for public inspection March 24, 2006, 9:00 a.m.]

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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  This provision was added to the bail rules in 1995 as part of the general reorganization and revision of the bail rules. See Committee explanatory Final Report, 35 Pa.B. 4116 (September 30, 1995).

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