THE COURTS
Title 234--RULES OF CRIMINAL PROCEDURE
[234 PA. CODE CHS. 1 AND 5]
Proposed Amendments to Pa.Rs.Crim.P. 121 and 590
[36 Pa.B. 4597]
[Saturday, August 19, 2006]The Criminal Procedural Rules Committee is planning to recommend that the Supreme Court of Pennsylvania amend Rules 121 and 590 to emphasize the minimum areas of inquiry that are required for colloquies into waiver of counsel and entry of pleas of guilty or nolo contendere. 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 changes to Rules 121 and 590 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 100
Mechanicsburg, PA 17055
fax: (717) 795-2106
e-mail: criminal.rules@pacourts.usno later than Friday, September 22, 2006.
By the Criminal Procedural Rules Committee
NICHOLAS T. NASTASI,
Chair
Annex A
TITLE 234. RULES OF CRIMINAL PROCEDURE
CHAPTER 1. SCOPE OF RULES, CONSTRUCTION AND DEFINITIONS, LOCAL RULES
PART B. Counsel Rule 121. Waiver of Counsel.
(A) GENERALLY.
(1) The defendant may waive the right to be represented by counsel.
(2) To ensure that the defendant's waiver of the right to counsel is knowing, voluntary, and intelligent, the judge or issuing authority, at a minimum, shall elicit the following information from the defendant:
(1) That the defendant understands that he or she has the right to be represented by counsel, and the right to have free counsel appointed if the defendant is indigent.
(2) That the defendant understands the nature of the charges against the defendant and the elements of each of those charges.
(3) That the defendant is aware of the permissible range of sentences and/or fines for the offenses charged.
(4) That the defendant understands that if he or she waives the right to counsel, the defendant will still be bound by all the normal rules of procedure and that counsel would be familiar with these rules.
(5) That the defendant understands that there are possible defenses to these charges which counsel might be aware of, and if these defenses are not raised at trial, they may be lost permanently.
(6) That the defendant understands that, in addition to defenses, the defendant has many rights that, if not timely asserted, may be lost permanently; and that if errors occur and are not timely objected to, or otherwise timely raised by the defendant, these errors may be lost permanently.
(3) The judge or issuing authority may permit the attorney for the Commonwealth or defendant's attorney to conduct the examination of the defendant pursuant to paragraph (A)(2). The judge or issuing authority shall be present during this examination.
* * * * *
Comment Paragraph (A) recognizes that the right to self-representation is guaranteed by the sixth amendment to the Federal Constitution when a valid waiver is made, Faretta v. California, 422 U.S. 806 (1975).
Court decisions contain broad language in referring to the areas and matters to be encompassed in determining whether the defendant understands the full impact and consequences of his or her waiver of the right to counsel, but is nevertheless willing to waive that right. The appellate courts require, however, that at a minimum, the judge or issuing authority ask questions to elicit the information set forth in paragraph (A)(2).
Although it is advisable that the judge or issuing authority conduct the examination of the defendant, the rule does not prevent the attorney for the Commonwealth or an already-appointed or retained defense counsel from conducting all or part of the examination of the defendant as permitted by the judge or issuing authority. See Commonwealth v. McDonough, 571 Pa. 232, 812 A.2d 504.
On the issue of waiver of counsel in general, see, e.g., Commonwealth v. Tyler, 468 Pa. 193, 360 A.2d 617 (1976); Commonwealth ex rel. Fairman v. Cavell, 423 Pa. 138, 222 A.2d 722 (1966) (mere execution of a waiver of counsel form, without more, is insufficient to establish a valid waiver); Commonwealth ex rel. McCray v. Rundle, 415 Pa. 65, 202 A.2d 303 (1964); Commonwealth ex rel. O'Lock v. Rundle, 415 Pa. 515, 204 A.2d 439 (1964).
In referring to summary cases, paragraph (B) refers only to those summary cases in which there exists a right to counsel. See Rule 122.
While the rule continues to require a written waiver of counsel incorporating the contents specified in paragraph (B), in proceedings before an issuing authority, the form of waiver was deleted in 1985 because it is no longer necessary to control the specific form of written waiver by rule.
[In the state of the law existing at the time this rule was drafted, it is difficult to formulate a comprehensive list of questions which must be asked of the defendant in determining whether the defendant's tendered waiver of counsel is knowing, intelligent, and voluntary. Court decisions contain broad language in referring to the areas and matters to be encompassed in determining whether the defendant understands the full impact and consequences of his waiver of the right to counsel, but is nevertheless willing to waive that right. It is recommended, however, that at a minimum, the judge or issuing authority ask questions to elicit the following information:
(1) That the defendant understands that he or she has the right to be represented by counsel, and the right to have free counsel appointed if the defendant is indigent.
(2) That the defendant understands the nature of the charges against the defendant and the elements of each of those charges.
(3) That the defendant is aware of the permissible range of sentences and/or fines for the offenses charged.
(4) That the defendant understands that if he or she waives the right to counsel, the defendant will still be found by all the normal rules of procedure and that counsel would be familiar with these rules.
(5) That the defendant understands that there are possible defenses to these charges which counsel might be aware of, and if these defenses are not raised at trial, they may be lost permanently.
(6) That the defendant understands that, in addition to defenses, the defendant has many rights that, if not timely asserted, may be lost permanently; and that if errors occur and are not timely objected to, or otherwise timely raised by the defendant, these errors may be lost permanently.
This area is presently one of some flux in the law; therefore, it is intended that what is set out above is only a beginning and, depending on the circumstances of the particular case, may not necessarily be sufficient to assure a valid waiver of counsel. On the issue in general, see, e.g., Commonwealth v. Tyler, 360 A.2d 617 (1976); Commonwealth ex rel. Fairman v. Cavell, 222 A.2d 722 (1966) (mere execution of a waiver of counsel form, without more, is insufficient to establish a valid waiver); Commonwealth ex rel. McCray v. Rundle, 202 A.2d 303 (1964); Commonwealth ex rel. O'Lock v. Rundle, 204 A.2d 439 (1964).]
* * * * * [Although it is advisable that the judge or issuing authority should conduct the examination of the defendant, the rule does not prevent the attorney for the Commonwealth or an already-appointed or retained defense counsel from conducting all or part of the examination of the defendant as permitted by the judge or issuing authority.]
With respect to trials in court cases, when the defendant waives the right to counsel and elects to proceed pro se, it is generally advisable that standby counsel be appointed to attend the proceedings and be available to the defendant for consultation and advice. See Commonwealth v. Africa, 353 A.2d 855 (1976). This is particularly true in cases expected to be long or complicated, or in which there are multiple defendants. See ABA Standards, The Function of the Trial Judge § 6.7 (Approved Draft 1972). The ability of standby counsel to assume control of the defense will minimize delay and disruption of the proceedings in the event that the defendant's self-representation terminates, e.g., either because such termination becomes necessary as a result of the defendant's unruly behavior, or because the defendant seeks to withdraw the waiver and be represented by counsel. With respect to pretrial proceedings or summary case trials it is intended that standby counsel may be appointed at the discretion of the presiding judicial officer.
Official Note: Rule 318 adopted October 21, 1977, effective January 1, 1978; amended November 9, 1984, effective January 2, 1985; renumbered Rule 121 and amended March 1, 2000, effective April 1, 2001; amended , 2006 effective , 2006.
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. [1477] 1478 (March 18, 2000).
Report explaining the proposed changes to paragraph (A) published at 36 Pa.B. 4600 (July 19, 2006).
CHAPTER 5. PRETRIAL PROCEDURES IN COURT CASES
PART G. Plea Procedures RULE 590. Pleas and Plea Agreements.
(A) GENERALLY.
* * * * * (3) Guilty Pleas.
(a) The judge may refuse to accept a plea of guilty or nolo contendere, and shall not accept it unless the judge determines after inquiry of the defendant that the plea is voluntarily and understandingly tendered. [Such inquiry shall appear on the record.]
(b) To ensure that the defendant understands the full impact and consequences of the plea, but is nevertheless willing to enter that plea, the judge on the record shall, at a minimum, elicit the following information from the defendant:
(i) That the defendant understands the nature of the charges to which he or she is pleading guilty or nolo contendere.
(ii) That there is a factual basis for the plea.
(iii) That the defendant understands that he or she has the right to trial by jury.
(iv) That the defendant understands that he or she is presumed innocent until found guilty beyond a reasonable doubt.
(v) That the defendant is aware of the permissible range of sentences and/or fines for the offenses charged.
(vi) That the defendant is aware that the judge is not bound by the terms of any plea agreement tendered unless the judge accepts such agreement.
(c) The judge may permit the attorney for the Commonwealth or defendant's attorney to conduct the examination of the defendant pursuant to paragraph (A)(3)(b). The judge shall be present during this examination.
* * * * *
Comment The purpose of paragraph (A)(2) is to codify the requirement that the judge, on the record, ascertain from the defendant that the guilty plea or plea of nolo contendere is voluntarily and understandingly tendered. On the mandatory nature of this practice, see Commonwealth v. Ingram, 455 Pa. 198, 316 A.2d 77 ([Pa.] 1974); Commonwealth v. Campbell, 451 Pa. 465, 304 A.2d 121 ([Pa.] 1973); Commonwealth v. Jackson, 450 Pa. 417, 299 A.2d 209 ([Pa.] 1973).
It is difficult to formulate a comprehensive list of questions a judge must ask of a defendant in determining whether the judge should accept the plea of guilty or a plea of nolo contendere. Court decisions may add areas to be encompassed in determining whether the defendant understands the full impact and consequences of the plea, but is nevertheless willing to enter that plea. At a minimum the judge should ask questions to elicit the [following information:] information set forth in paragraph (A)(3)(b).
[(1) Does the defendant understand the nature of the charges to which he or she is pleading guilty or nolo contendere?
(2) Is there a factual basis for the plea?
(3) Does the defendant understand that he or she has the right to trial by jury?
(4) Does the defendant understand that he or she is presumed innocent until found guilty?
(5) Is the defendant aware of the permissible range of sentences and/or fines for the offenses charged?
(6) Is the defendant aware that the judge is not bound by the terms of any plea agreement tendered unless the judge accepts such agreement?]
Inquiry into the [above] six areas set forth in paragraph (A)(3)(b) is mandatory during a guilty plea colloquy under Commonwealth v. Willis, 471 A.2d 50, 369 A.2d 1189 ([Pa.] 1977), and Commonwealth v. Dilbeck, 466 Pa. 543, 353 A.2d 824 ([Pa.] 1976).
Many, though not all, of the areas to be covered by such questions are set forth in a footnote to the Court's opinion in Commonwealth v. Martin, 445 Pa. 49, 282 A.2d 241, 244-245 ([Pa.] 1971), in which the colloquy conducted by the trial judge is cited with approval. See also Commonwealth v. Minor, 467 Pa. 230, 356 A.2d 346 ([Pa.] 1976), and Commonwealth v. Ingram, 455 Pa. 198, 316 A.2d 77 ([Pa.] 1974). As to the requirement that the judge ascertain that there is a factual basis for the plea, see Commonwealth v. Maddox, 450 Pa. 406, 300 A.2d 503 ([Pa.] 1973) and Commonwealth v. Jackson, 450 Pa. 417, 299 A.2d 209 ([Pa.] 1973).
* * * * * The ''terms'' of the plea agreement, referred to in paragraph (B)(1), frequently involve the attorney for the Commonwealth--in exchange for the defendant's plea of guilty or nolo contendere, and perhaps for the defendant's promise to cooperate with law enforcement officials--promising concessions such as a reduction of a charge to a less serious offense, the dropping of one or more additional charges, a recommendation of a lenient sentence, or a combination of these. In any event, paragraph (B) is intended to insure that all terms of the agreement are openly acknowledged for the judge's assessment. See, e.g., Commonwealth v. Wilkins, 442 Pa. 524, 277 A.2d 341 ([Pa.] 1971).
* * * * * When a guilty plea, or plea of nolo contendere, includes a plea agreement, the 1995 amendment to paragraph (B)(2) requires that the judge conduct a separate inquiry on the record to determine that the defendant understands and accepts the terms of the plea agreement. See Commonwealth v. Porreca, 528 Pa. 46, 595 A.2d 23 ([Pa.] 1991).
Former paragraph (B)(3) was deleted in 1995 for two reasons. The first sentence merely reiterated an earlier provision in the rule. See paragraph (A)(3). The second sentence concerning the withdrawal of a guilty plea was deleted to eliminate the confusion being generated when that provision was read in conjunction with Rule 591. As provided in Rule 591, it is a matter of judicial discretion and case law whether to permit or direct a guilty plea or plea of nolo contendere to be withdrawn. See also Commonwealth v. Porreca, 528 Pa. 46, 595 A.2d 23 ([Pa.] 1991) (the terms of a plea agreement may determine a defendant's right to withdraw a guilty plea).
* * * * * Official Note: Rule 319(a) adopted June 30, 1964, effective January 1, 1965; amended November 18, 1968, effective February 3, 1969; paragraph (b) adopted and title of rule amended October 3, 1972, effective 30 days hence; specific areas of inquiry in Comment deleted in 1972 amendment, reinstated in revised form March 28, 1973, effective immediately; 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; paragraph (c) added and Comment revised May 22, 1978, effective July 1, 1978; Comment revised November 9, 1984, effective January 2, 1985; amended December 22, 1995, effective July 1, 1996; amended July 15, 1999, effective January 1, 2000; renumbered Rule 590 and Comment revised March 1, 2000, effective April 1, 2001; amended , 2006, effective , 2006.
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. [1477] 1478 (March 18, 2000).
Report explaining the proposed changes to subparagraph (A)(3) published at 36 Pa.B. 4600 (July 19, 2006).
REPORT
Amendments to Pa.Rs.Crim.P. 121 and 590
Waiver of Counsel and Guilty Plea Colloquies I. INTRODUCTION
As part of the Committee's continuing review of the rules and case law, the Committee examined the status of colloquies required when (1) a defendant wants to waive the right to proceed with counsel, Rule 121 (Waiver of Counsel), and (2) a defendant wishes to enter a plea of guilty or nolo contendere, Rule 590 (Pleas and Plea Agreements). The Comments to both rules set forth six areas of inquiry that, at a minimum, a court must investigate before accepting a counsel waiver or a guilty plea. These areas of inquiry are derived from early case law. See, e.g., Commonwealth v. Tyler, 360 A.2d 617 (Pa. 1976); Commonwealth v. Martin, 282 A.2d 241 (Pa 1971). Reflecting that from the case law it appears the lower courts continue to omit from these colloquies one or more of the areas of inquiry, the Committee has concluded that the mandatory nature of these areas of inquiry should be reinforced and is proposing to move the six mandatory areas of inquiry from the Comments to the text of the rules.
At the time these rules were promulgated,1 the listed areas of inquiry were placed in the Comments rather than the text of the rules because the state of the law for each procedure was in flux. The Committee at the time thought it best to allow precedent to develop rather than attempting to codify all possible areas of inquiry. Subsequently, the requirements became firmer as case decisions reinforced the six areas of inquiry as the mandatory minimum requirements for the colloquies.
During the Committee's discussion of Commonwealth v. Payson, 723 A.2d 695 (Pa. Super. 1999), which held that the waiver of counsel colloquy was inadequate, in part, because the trial court did not follow the requirement to inquire into the six areas listed in the Rule 121 Comment, the members considered whether, given the mandatory nature of the six areas of inquiry, the list of the six areas more appropriately belonged in the text of the rule.
The Committee concluded that the mandatory nature of the areas of inquiry needed to be reemphasized and that the best way of accomplishing this is by placing the list in the text of Rule 121 instead of the current location in the Comment.
While examining the issue in connection with Rule 121, the Committee recognized that a similar problem exists for Rule 590--the Comment sets forth the list of six areas of inquiry for entry of pleas of guilty or nolo contendere. Here, as well, recent case law suggests that, despite the mandatory nature of this list, some courts still do not undertake the required inquiries. For example, the Superior Court opinion in Commonwealth v. Fowler, 893 A.2d 758 (2006), discussed the contents of a guilty plea colloquy that are necessary for the plea to be accepted as voluntary. In a concurring opinion, Judge Klein criticizes the majority for not enforcing the requirement, derived from Commonwealth v. Willis, 369 A.2d 1189 (Pa. 1977), that the colloquy include the six areas of inquiry listed in the Rule 590 Comment.
The Committee concluded that both rules are similar in the mandatory nature of the areas of inquiry and in the lack of compliance by certain courts with those requirements and therefore is proposing that both Rules be amended to emphasize the mandatory nature of the inquiry requirements.
II. DISCUSSION OF RULE CHANGES
Rule 121
The Committee is proposing that the six areas of inquiry in the Rule 121 Comment be moved into paragraph (A), which is the general application provision, as new paragraph (A)(2).
In addition, in view of the Supreme Court's decision in Commonwealth v. McDonough, 571 Pa. 232, 812 A.2d 504 (Pa 2002), clarifying that someone other than the judge, such as the attorney for the Commonwealth or defense counsel, may conduct the colloquy so long as the judge was present, the Committee agreed to add as new paragraph (A)(3) a provision making the rule clear that the attorney for the Commonwealth or the defendant's attorney may conduct the examination and that the judge still must be present.
To conform with these proposed changes to paragraph (A), the Comment would be reorganized by moving to the beginning of the Comment the provisions that address the areas of inquiry and the conduct of the colloquy. A cross-reference to the Supreme Court's decision in Commonwealth v. McDonough would be added to the new third paragraph of the Comment.
Rule 590
Similarly, the Committee is proposing that, the six areas of inquiry to determine if a plea of guilty or nolo contendere is knowing and voluntary in Rule 590 be moved into paragraph (A), which is the general application provision, as new paragraph (A)(3). To match the format of Rule 121(A)(2), the language of the list of the areas of the inquiries would be changed, from questions to direct statements of the defendant's understanding of the effects of the plea. The Comment to Rule 590 would be reorganized by removing the list of the six areas and adding minor modifications to the existing cross-references to the cases of Commonwealth v. Willis, 369 A.2d 1189 (Pa. 1977), and Commonwealth v. Dilbeck, 353 A.2d 824 (Pa. 1976) that established the six areas of inquiry.
[Pa.B. Doc. No. 06-1595. Filed for public inspection August 18, 2006, 9:00 a.m.] _______
1 Rule 121 was promulgated in 1977 and Rule 590 was promulgated in 1973.
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