THE COURTS
[ 234 PA. CODE CHS. 5 AND 8 ]
Order Amending Rules 590, 803 and 804; Criminal Procedural Rules; No. 369; Doc. No. 2
[38 Pa.B. 5429]
[Saturday, October 4, 2008]
Order Per Curiam:
And Now, this 18th day of September, 2008, upon the recommendation of the Criminal Procedural Rules Committee; the proposal having been submitted without publication pursuant to Pa.R.J.A. No. 103(a)(3) in the interests of justice and efficient administration because the changes merely conform the rules to the law, 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 the amendments to Rules of Criminal Procedure 590, 803, and 804 are adopted in the following form.
This Order shall be processed in accordance with Pa.R.J.A. No. 103(b), and shall be effective November 1, 2008.
Annex A
TITLE 234. RULES OF CRIMINAL PROCEDURE
PART I. GENERAL
CHAPTER 5. PRETRIAL PROCEDURES IN COURT CASES
PART G. Plea Procedures Rule 590. Pleas and Plea Agreements.
* * * * * (C) MURDER CASES.
In cases in which the imposition of a sentence of death is not authorized, when a defendant enters a plea of guilty or nolo contendere to a charge of murder generally, the degree of guilt shall be determined by a jury unless the attorney for the Commonwealth elects to have the judge, before whom the plea was entered, [shall] alone determine the degree of guilt.
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. 198, 304 A.2d 121 ([Pa.] 1973); Commonwealth v. Jackson, 450 Pa. 417, 299 A.2d 209 ([Pa.] 1973).
* * * * * (7) Does the defendant understand that the Commonwealth has a right to have a jury decide the degree of guilt if the defendant pleads guilty to murder generally?
The Court in Commonwealth v. Willis, 471 Pa. 50, 369 A.2d 1189 (1977), and Commonwealth v. Dilbeck, 466 Pa. 543, 353 A.2d 824 (1976), mandated that, during a guilty plea colloquy, judges must elicit the information set forth in paragraphs (1) through (6) above. In 2008, the Court added paragraph (7) to the list of areas of inquiry.
[Inquiry into the above six areas is mandatory during a guilty plea colloquy under Commonwealth v. Willis, 369 A.2d 1189 (Pa. 1977), and Commonwealth v. Dilbeck, 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, 54-55, 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. 542, 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).
For the procedures governing the withdrawal of a plea of guilty or nolo contendere, see Rule 591.
Paragraph (C) reflects a change in Pennsylvania practice, [which] that formerly required the judge to convene a panel of three judges to determine the degree of guilt in murder cases in which the imposition of a sentence of death was not statutorily authorized. The 2008 amendment to paragraph (C) and the Comment recognizes the Commonwealth's right to have a jury determine the degree of guilt following a plea of guilty to murder generally. See Article I, § 6 of the Pennsylvania Constitution that provides that ''the Commonwealth shall have the same right to trial by jury as does the accused.'' See also Commonwealth v. White, 589 Pa. 642, 910 A.2d 648 (2006).
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 September 18, 2008, effective November 1, 2008.
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 (March 18, 2000).
Final Report explaining the September 18, 2008 amendments to paragraph (C) concerning juries determining degree of guilt published with the Court's Order at 38 Pa.B. 5431 (October 4, 2008).
CHAPTER 8. SPECIAL RULES FOR CASES IN WHICH DEATH SENTENCE IS AUTHORIZED Rule 803. Guilty Plea Procedure.
(A) When a defendant charged with murder enters a plea of guilty to a charge of murder generally, the degree of guilt shall be determined by a jury unless the attorney for the Commonwealth elects to have the judge, before whom the plea is entered, [shall] alone determine the degree of guilt.
(B) If the crime is determined to be murder of the first degree the sentencing proceeding shall be conducted as provided by law.
Comment For the procedure for the entry of guilty pleas, see Rule 590. For the sentencing procedure if the crime is determined to be murder of the first degree, see Sentencing Code, 42 Pa.C.S. § 9711(b).
The 2008 amendment to paragraph (A) recognizes the Commonwealth's right to have a jury determine the degree of guilt following a plea of guilty to murder generally. See Article I, § 6 of the Pennsylvania Constitution that provides that ''the Commonwealth shall have the same right to trial by jury as does the accused.'' See also Commonwealth v. White, 589 Pa. 642, 910 A.2d 648 (2006).
Official Note: Original Rule 352 adopted September 22, 1976, effective November 1, 1976; amended May 26, 1977, effective July 1, 1977; rescinded April 2, 1978, effective immediately. Former Rule 352 adopted July 1, 1985, effective August 1, 1985; renumbered Rule 353 February 1, 1989, effective July 1, 1989; renumbered Rule 802 and amended March 1, 2000, effective April 1, 2001; renumbered Rule 803 June 4, 2004, effective November 1, 2004; amended September 18, 2008, effective November 1, 2008.
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).
Final Report explaining the September 18, 2008 amendments to paragraph (A) concerning juries determining degree of guilt published with the Court's Order at 38 Pa.B. 5431 (October 4, 20008).
Rule 804. Procedure When Jury Trial is Waived.
(A) [When a defendant charged with murder waives a jury trial,] In all cases in which the defendant is charged with murder, the defendant and the attorney for the Commonwealth may waive a jury trial with approval by a judge of the court in which the case is pending. In these cases, the trial judge shall alone hear the evidence, determine all questions of law and fact, and render a verdict [which] that shall have the same force and effect as a verdict of a jury.
* * * * * Official Note: Original Rule 353 adopted September 22, 1976, effective March 1, 1977, effective date extended to April 1, 1977; amended May 26, 1977, effective July 1, 1977; rescinded April 2, 1978, effective immediately. Former Rule 353 adopted July 1, 1985, effective August 1, 1985, renumbered Rule 354 February 1, 1989, effective July 1, 1989; renumbered Rule 803 and amended March 1, 2000, effective April 1, 2001; renumbered Rule 804 June 4, 2004, effective November 1, 2004; amended September 18, 2008, effective November 1, 2008.
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 (March 18, 2000).
Final Report explaining the September 18, 2008 amendments to paragraph (A) concerning waiver of a jury trial published with the Court's Order at 38 Pa.B. 5431 (October 4, 2008).
FINAL REPORT1
Amendments to Pa.Rs.Crim.P. 590, 803 and 804
COMMONWEALTH'S RIGHT TO HAVE JURY DETERMINE DEGREE OF GUILT On September 18, 2008, effective November 1, 2008, upon the recommendation of the Criminal Procedural Rules Committee, the Court amended Rules of Criminal Procedure 590 and 803 to conform the rules with the Court's holding in Commonwealth v. Miriam White, 589 Pa. 642, 910 A.2d 648 (2006). The amendments make it clear in these rules that the Commonwealth has a right to have a jury determine the degree of guilt when the defendant pleads guilty to murder generally. The Court also amended Rule 804 to conform it to the jury waiver provisions in Rule 620.
1. Pa.Rs.Crim.P. 590 and 803
The Committee undertook a review of the guilty plea rules following the Court's decision in Commonwealth v. Miriam White, supra., in which the Court held, inter alia, that the Commonwealth has a right to request that a jury determine the degree of guilt in cases in which the defendant pleads guilty to murder generally. In reaching this decision, Justice Eakin, writing for the majority, noted:
Waiving one's right, however, does not constitute waiver of another's corresponding right; White cannot vitiate the Commonwealth's right by waiving her own. Accordingly, we conclude the Commonwealth retains its right to a jury under Article I, § 6 of the Pennsylvania Constitution, Pa. Const. art. I, § 6 (''in criminal cases the Commonwealth shall have the same right to trial by jury as does the accused.''); . . . and it may request one at the degree of guilt hearing. Id. at 662.Paragraph (C) of Rule 590 (Pleas and Plea Agreements) and paragraph (A) of Rule 803 (Guilty Plea Procedure) provide in cases in which the defendant pleads guilty to murder generally, ''the judge before whom the plea is entered shall alone determine the degree of guilt.'' In view of White, this provision in the rules, without some further elaboration, is no longer procedurally accurate. Accordingly, Rule 590(C) and Rule 803(A) are amended to recognize the 1998 amendment to Article I, § 6 of the Pennsylvania Constitution and alert the bench and bar to the holding in White.
The Committee, in considering how to address the matter in the rules, observed that the right to a jury trial, granted by the Pennsylvania Constitution to both the defendant and the Commonwealth, is the default position. That is, both the defendant and the Commonwealth start with the right to a jury trial. Absent an affirmative waiver of the right to a jury trial by both parties, the case will proceed before a jury. The Committee also noted, as stated in White, supra. at 662, when a defendant enters a guilty plea to murder generally, the defendant is waiving his or her right to have a jury determine the degree of guilt. In view of this analysis, the amendments to Rule 590(C) and Rule 803(A) make it clear when a defendant pleads guilty to murder generally, the jury will determine the degree of guilt unless the Commonwealth elects to have the judge before whom the plea was entered make the determination.
During the Committee's discussions about the proposed rule changes, several members opined that in order to make an informed decision whether to plead guilty to murder generally, the defendant must understand that the Commonwealth has a right to have a jury determine the degree of guilt in these circumstances. The Committee reasoned this information should be elicited as part of the guilty plea colloquy. To accomplish this, the areas of inquiry listed in the Rule 590 Comment have been revised to include a provision that the judge inquire into whether the defendant understands that the Commonwealth has a right to have a jury decide the degree of guilt when the defendant pleads guilty to murder generally.
In addition, the Comments to Rules 590 and 803 have been revised by the addition of references to Article 1 § 6 of the Pennsylvania Constitution and to Commonwealth v. White, supra.
2. Pa.R.Crim.P. 804
Although not the subject of White, Rule 804 (Procedure When Jury Trial is Waived) also has been amended. Rule 804 provides, inter alia, that ''When a defendant charged with murder waives a jury trial, the trial judge shall alone hear the evidence.'' The Committee, during its discussions of Rules 590 and 803 and the Commonwealth's right to a jury trial, noted that Rule 804 had not been amended at the same time that Rule 620 (Waiver of Jury Trial) was amended to reflect the 1998 amendment to Article I, § 6 of the Pennsylvania Constitution. In view of this, it makes sense at this time to amend Rule 804 to bring the rule into conformity with the waiver of jury trial provisions in Rule 620. Accordingly, paragraph (A) of Rule 804 is amended to provide that both the defendant and the attorney for the Commonwealth may waive a jury trial with the approval of the judge when the defendant is charged with murder.
[Pa.B. Doc. No. 08-1795. Filed for public inspection October 3, 2008, 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.
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