THE COURTS
Title 234--RULES OF CRIMINAL PROCEDURE
[ 234 PA. CODE CHS. 4 AND 5 ]
Proposed Amendments to Pa.R.Crim.P. 409 (Guilty Pleas), 414 (Guilty Pleas), 424 (Guilty Pleas), 460 (Notice of Appeal), 462 (Trial De Novo), and 550 (Pleas of Guilty Before Magisterial District Judge in Court Cases)
[38 Pa.B. 6878]
[Saturday, December 20, 2008]Introduction
The Criminal Procedural Rules Committee is planning to recommend that the Supreme Court of Pennsylvania amend Rules 409, 414, 424, 460, 462 and 550 to provide, in summary and court cases in which a defendant withdraws a plea or appeals for a trial de novo, for the reinstatement of charges dismissed as a result of a plea agreement. 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 amendments to the Rules 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, January 23, 2009.
By the Criminal Procedural
Rules CommitteeD. PETER JOHNSON,
Chair
Annex A
TITLE 234. RULES OF CRIMINAL PROCEDURE
PART I. GENERAL
CHAPTER 4. PROCEDURES IN SUMMARY CASES
PART B(1). Procedures When Citation Is Issued to Defendant Rule 409. Guilty Pleas.
* * * * * (C) When the defendant is required to personally appear before the issuing authority to plead guilty pursuant to paragraph (A)(2), the issuing authority shall:
(1) advise the defendant of the right to counsel when there is a likelihood of imprisonment and give the defendant, upon request, a reasonable opportunity to secure counsel;
(2) when a plea agreement has been reached between the Commonwealth and the defendant to withdraw one or more of the original summary offenses in exchange for a plea to one or more other summary charges, advise the defendant that, if the defendant withdraws the plea or appeals for a trial de novo, the original charges will be reinstated and the case will proceed on the original charges;
[(2)] (3) determine by inquiring of the defendant that the plea is voluntarily and understandingly entered;
[(3)] (4) have the defendant sign the plea form with a representation that the plea is entered voluntarily and understandingly;
[(4)] (5) impose sentence, or, in cases in which the defendant may be sentenced to intermediate punishment, the issuing authority may delay the proceedings pending confirmation of the defendant's eligibility for intermediate punishment; and
[(5)] (6) provide for installment payments when a defendant who is sentenced to pay a fine and costs is without the financial means immediately to pay the fine and costs.
Comment * * * * * Paragraph (C) [(4)] (5) was added in 2007 to permit an issuing authority to delay imposition of sentence in order to investigate a defendant's eligibility for intermediate punishment. For example, under 42 Pa.C.S. § 9763 and § 9804, defendants may be sentenced to intermediate punishment for certain offenses, including summary violations of 75 Pa.C.S. § 1543(b) (driving while license is under a DUI-related suspension) but only if they meet certain eligibility requirements, such as undergoing a drug and alcohol assessment. Often this information will not be available to the issuing authority at the time of sentencing, especially when the defendant appears personally to enter a guilty plea. Paragraph (D) would permit the issuing authority to delay proceedings until the defendant's eligibility has been determined.
* * * * * Official Note: Previous Rule 59 adopted September 18, 1973, effective January 1, 1974; rescinded July 12, 1985, effective January 1, 1986, and replaced by present Rule [430] 75. Present Rule 59 adopted July 12, 1985, effective January 1, 1986; amended September 23, 1985, effective January 1, 1986. The January 1, 1986 effective dates are all extended to July 1, 1986; amended May 28, 1987, effective July 1, 1987; amended January 31, 1991, effective July 1, 1991; renumbered Rule 409 and amended March 1, 2000, effective April 1, 2001; Comment revised August 7, 2003, effective July 1, 2004; amended January 26, 2007, effective [August] February 1, [2007] 2008; amended , 2009, effective , 2009.
Committee Explanatory Reports:
* * * * * Final Report explaining the January 26, 2007 amendments to paragraphs (A)(2), (B)(3) and (C)(4) published at with the Court's Order at 37 Pa.B. 760 (February 17, [2007] 2008).
Report explaining the proposed amendments concerning procedures related to plea agreements published at 38 Pa.B. 6882 (December 20, 2008).
PART B(2). Procedures When Citation Filed Rule 414. Guilty Pleas.
* * * * * (C) When the defendant is required to personally appear before the issuing authority to plead guilty pursuant to paragraph (A)(2) the issuing authority shall:
(1) advise the defendant of the right to counsel when there is a likelihood of imprisonment and give the defendant, upon request, a reasonable opportunity to secure counsel;
(2) when a plea agreement has been reached between the Commonwealth and the defendant to withdraw one or more of the original summary offenses in exchange for a plea to one or more other summary charges, advise the defendant that, if the defendant withdraws the plea or appeals for a trial de novo, the original charges will be reinstated and the case will proceed on the original charges;
[(2)] (3) determine by inquiring of the defendant that the plea is voluntarily and understandingly entered;
[(3)] (4) have the defendant sign the plea form with a representation that the plea is entered voluntarily and understandingly;
[(4)] (5) impose sentence, or, in cases in which the defendant may be sentenced to intermediate punishment, the issuing authority may delay the proceedings pending confirmation of the defendant's eligibility for intermediate punishment; and
[(5)] (6) provide for installment payments when a defendant who is sentenced to pay a fine and costs is without the financial means immediately to pay the fine and costs.
Comment The rule was amended in 2007 to make it clear (1) that a defendant may not enter a guilty plea by mail to an offense that carries a mandatory sentence of imprisonment, and (2) in those cases in which the offense carries a possible sentence of imprisonment, the issuing authority has the discretion whether or not to accept a guilty plea submitted by mail.
* * * * * Paragraph (C) [(4)] (5) was added in 2007 to permit an issuing authority to delay imposition of sentence in order to investigate a defendant's eligibility for intermediate punishment. For example, under 42 Pa.C.S. § 9763 and § 9804, defendants may be sentenced to intermediate punishment for certain offenses, including summary violations of 75 Pa.C.S. § 1543(b) (driving while license is under a DUI-related suspension) but only if they meet certain eligibility requirements, such as undergoing a drug and alcohol assessment. Often this information will not be available to the issuing authority at the time of sentencing, especially when the defendant appears personally to enter a guilty plea. Paragraph (D) would permit the issuing authority to delay proceedings until the defendant's eligibility has been determined.
* * * * * Official Note: Previous rule, originally numbered Rule 136, adopted January 31, 1970, effective May 1, 1970; renumbered Rule 64 September 18, 1973, effective January 1, 1974; rescinded July 12, 1985, effective January 1, 1986, and replaced by present Rule [455] 84. Present Rule 64 adopted July 12, 1985, effective January 1, 1986; amended September 23, 1985, effective January 1, 1986. The January 1, 1986 effective dates all are extended to July 1, 1986; amended May 28, 1987, effective July 1, 1987; amended January 31, 1991, effective July 1, 1991; renumbered Rule 414 and amended March 1, 2000, effective April 1, 2001; Comment revised August 7, 2003, effective July 1, 2004; amended January 26, 2007, effective February 1, 2008; amended , 2009, effective , 2009.
Committee Explanatory Reports:
* * * * *
Final Report explaining the January 26, 2007 amendments to paragraphs (A)(2), (B)(3) and (C)(4) published at with the Court's Order at 37 Pa.B. 760 (February 17, 2007).
Report explaining the proposed amendments concerning procedures related to plea agreements published at 38 Pa.B. 6882 (December 20, 2008).
PART C. Procedures in Summary Cases When Complaint Filed Rule 424. Guilty Pleas.
* * * * * (C) When the defendant is required to personally appear before the issuing authority to plead guilty pursuant to paragraph (A)(2), the issuing authority shall:
(1) advise the defendant of the right to counsel when there is a likelihood of imprisonment and give the defendant, upon request, a reasonable opportunity to secure counsel;
(2) when a plea agreement has been reached between the Commonwealth and the defendant to withdraw one or more of the original summary offenses in exchange for a plea to one or more other summary charges, advise the defendant that, if the defendant withdraws the plea or appeals for a trial de novo, the original charges will be reinstated and the case will proceed on the original charges;
[(2)] (3) determine by inquiring of the defendant that the plea is voluntarily and understandingly entered;
[(3)] (4) have the defendant sign the plea form with a representation that the plea is entered voluntarily and understandingly;
[(4)] (5) impose sentence, or, in cases in which the defendant may be sentenced to intermediate punishment, the issuing authority may delay the proceedings pending confirmation of the defendant's eligibility for intermediate punishment; and
[(5)] (6) provide for installment payments when a defendant who is sentenced to pay a fine and costs is without the financial means immediately to pay the fine and costs.
Comment The rule was amended in 2007 to make it clear (1) that a defendant may not enter a guilty plea by mail to an offense that carries a mandatory sentence of imprisonment, and (2) in those cases in which the offense carries a possible sentence of imprisonment, the issuing authority has the discretion whether or not to accept a guilty plea submitted by mail.
Nothing in this rule is intended to require that an issuing authority should proceed as provided in paragraph (C) when the defendant returns the written guilty plea and the fine and costs in person to the issuing authority's office pursuant to paragraphs (A)(1) and (B). The issuing authority's staff should record receipt of the plea and monies in the same manner as those received by mail.
Paragraph (C)[(4)] (5) was added in 2007 to permit an issuing authority to delay imposition of sentence in order to investigate a defendant's eligibility for intermediate punishment. For example, under 42 Pa.C.S. § 9763 and § 9804, defendants may be sentenced to intermediate punishment for certain offenses, including summary violations of 75 Pa.C.S. § 1543(b) (driving while license is under a DUI-related suspension) but only if they meet certain eligibility requirements, such as undergoing a drug and alcohol assessment. Often this information will not be available to the issuing authority at the time of sentencing, especially when the defendant appears personally to enter a guilty plea.
* * * * * Official Note: Previous rule, originally numbered Rule 140, adopted January 31, 1970, effective May 1, 1970; renumbered Rule 69 September 18, 1973, effective January 1, 1974; Comment revised January 28, 1983, effective July 1, 1983; rescinded July 12, 1985, effective January 1, 1986, and not replaced in these rules. Present Rule 69 adopted July 12, 1985, effective January 1, 1986; amended September 23, 1985, effective January 1, 1986. The January 1, 1986 effective dates are all extended to July 1, 1986; amended May 28, 1987, effective July 1, 1987; amended January 31, 1991, effective July 1, 1991; renumbered Rule 424 and amended March 1, 2000, effective April 1, 2001; Comment revised August 7, 2003, effective July 1, 2004; amended January 26, 2007, effective February 1, [2007] 2008; amended , 2009, effective , 2009.
Committee Explanatory Reports:
* * * * *
Final Report explaining the August 7, 2003 new Comment language concerning defendants under the age of 18 published with the Court's Order at 33 Pa.B. [4289] 4293 (August 30, 2003).
Final Report explaining the January 26, 2007 amendments to paragraphs (A)(2), (B)(3) and (C)(4) published at with the Court's Order at 37 Pa.B. 760 (February 17, 2007).
Report explaining the proposed amendments concerning procedures related to plea agreements published at 38 Pa.B. 6882 (December 20, 2008).
PART F. Procedures in Summary Cases for Appealing to Court of Common Pleas for a
Trial De NovoRule 460. Notice of Appeal.
* * * * * (C) Within 5 days after filing the notice of appeal, a copy shall be served either personally or by mail by the clerk of courts upon the issuing authority, the affiant, and the appellee or appellee's attorney, if any.
(D) When a defendant appeals from a summary proceeding in any case in which a plea agreement has been reached between the Commonwealth and the defendant in which any of the original summary charges is withdrawn in exchange for a plea to one or more other summary charges, the magisterial district judge shall reinstate any charges withdrawn as part of a plea agreement, and the case shall proceed upon the original charges.
[(D)] (E) The issuing authority shall, within 20 days after receipt of the notice of appeal, file with the clerk of courts:
(1) the transcript of the proceedings;
(2) if the charges are reinstated pursuant to paragraph (D), a statement to that effect;
(3) the original complaint or citation, if any;
[(3)] (4) the summons or warrant of arrest, if any; and
[(4)] (5) the bail bond, if any.
[(E)] (F) This rule shall provide the exclusive means of appealing from a summary guilty plea or conviction. Courts of common pleas shall not issue writs of certiorari in such cases.
[(F)] (G) This rule shall not apply to appeals from contempt adjudications.
Comment This rule is derived from former Rule 86(A), (D), (E), (F), (H), and (I).
* * * * * Paragraph (D) was added in 2009 to provide for the reinstatement of charges withdrawn as part of a plea agreement when the defendant subsequently appeals for a trial de novo.
This rule is not applicable to cases that originated as court cases but all misdemeanor or felony charges are withdrawn in exchange for a plea to one or more summary charges. These cases will proceed under Rule 550.
* * * * * 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 paragraphs (A), (D), (E), (F), (H), and (I) replaced by Rule 460. New Rule 460 adopted March 1, 2000, effective April 1, 2001; amended March 3, 2000, effective July 1, 2000; amended February 6, 2003, effective July 1, 2003; Comment revised February 28, 2003, effective July 1, 2003; amended , 2009, effective , 2009.
Committee Explanatory Reports:
FORMER RULE 86:
Final Report explaining the March 22, 1993 amendments to former Rule 86 published with the Court's Order at 23 Pa.B. 1699 (April 10, 1993).
* * * * * Final Report explaining the March 3, 2000 amendments concerning appeals from guilty pleas published with the Court's Order at 30 Pa.B. 1509 (March 18, 2002).
NEW RULE 460:
Final Report explaining the reorganization and renumbering of the rules and the provisions of Rule 460 published at 30 Pa.B. 1478 (March 18, 2000).
* * * * * Report explaining the proposed amendments concerning plea agreements published at 38 Pa.B. 6882 (December 20, 2008).
Rule 462. Trial De Novo.
* * * * * (C) When a defendant appeals from a summary proceeding in any case in which a plea agreement has been reached between the Commonwealth and the defendant in which any of the original summary offenses is withdrawn in exchange for a plea to one or more other summary charges and the issuing authority has reinstated the withdrawn charges as provided in Rule 460(D), the case shall proceed upon the original charges.
[(C)] (D) In appeals from summary proceedings arising under the Vehicle Code or local traffic ordinances, other than parking offenses, the law enforcement officer who observed the alleged offense must appear and testify. The failure of a law enforcement officer to appear and testify shall result in the dismissal of the charges unless:
* * * * * [(D)] (E) If the defendant fails to appear, the trial judge may dismiss the appeal and enter judgment in the court of common pleas on the judgment of the issuing authority.
[(E)] (F) If the defendant withdraws the appeal, the trial judge shall enter judgment in the court of common pleas on the judgment of the issuing authority.
[(F)] (G) The verdict and sentence, if any, shall be announced in open court immediately upon the conclusion of the trial.
[(G)] (H) At the time of sentencing, the trial judge shall:
* * * * * [(H)] (I) After sentence is imposed by the trial judge, the case shall remain in the court of common pleas for the execution of sentence, including the collection of any fine and restitution, and for the collection of any costs.
Comment This rule is derived from former Rule 86(G) and former Rule 1117(c).
The procedures for conducting the trial de novo in the court of common pleas set forth in paragraphs (B), [(F)] (G), and [(G)] (H) are comparable to the summary case trial procedures in Rule 454 (Trial in Summary Cases).
* * * * * The provisions of paragraph [(C)] (D) that permit the court to continue the case if there is good cause for the officer's unavailability were added in response to Commonwealth v. Hightower, 438 Pa. Super. 400, 652 A.2d 873 (1995).
Paragraph [(D)] (E) makes it clear that the trial judge may dismiss a summary case appeal when the judge determines that the defendant is absent without cause from the trial de novo. If the appeal is dismissed, the trial judge should enter judgment and order execution of any sentence imposed by the issuing authority.
Pursuant to paragraph [(G)] (H), 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) and Rule 720(D). 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).
Once sentence is imposed, paragraph [(H)] (I) makes it clear that the case is to remain in the court of common pleas for execution of the sentence and collection of any costs, and the case may not be returned to the magisterial district judge. The execution of sentence includes the collection of any fines and restitution.
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 amended January 18, 2007, effective August 1, 2007; amended , 2009, effective , 2009.
* * * * *
NEW RULE 462:
Final Report explaining the reorganization and renumbering of the rules and the provisions of Rule 462 published at 30 Pa.B. 1478 (March 18, 2000).
* * * * * Report explaining the proposed amendments concerning procedures following plea agreements published at 38 Pa.B. 6882 (December 20, 2008).
CHAPTER 5. PRETRIAL PROCEDURES
IN COURT CASES
PART D. Proceedings in Court Cases Before Issuing Authorities Rule 550. Pleas of Guilty Before Magisterial District Judge in Court Cases.
(A) In a court case in which a magisterial district judge is specifically empowered by statute to exercise jurisdiction, or in which a plea agreement has been reached between the Commonwealth and the defendant and all misdemeanor or felony charges are withdrawn in exchange for a plea to one or more summary charges, a defendant may plead guilty before a magisterial district judge at any time up to the completion of the preliminary hearing or the waiver thereof.
* * * * * (D) A defendant who enters a plea of guilty under this rule may, within 10 days after sentence, change the plea to not guilty by so notifying the magisterial district judge in writing. In such event, the magisterial district judge shall vacate the plea and judgment of sentence, shall reinstate any charges withdrawn as part of a plea agreement, and the case shall proceed in accordance with Rule 547, as though the defendant had been held for court.
(E) Ten days after the acceptance of the guilty plea and the imposition of sentence, the magisterial district judge shall,
(1) in a court case in which a magisterial district judge is specifically empowered by statute to exercise jurisdiction, certify the judgment, and shall forward the case to the clerk of courts of the judicial district for further proceedings[.] ; or
(2) in a court case in which a plea agreement has been reached between the Commonwealth and the defendant and all misdemeanor or felony charges are withdrawn in exchange for a plea to only summary charges, the magisterial district judge shall enter a final disposition.
Once the case has been forwarded to the court of common pleas, the case shall not be remanded to the issuing authority.
Comment In certain cases, what would ordinarily be a court case within the jurisdiction of the court of common pleas has been placed within the jurisdiction of magisterial district judges. See Judicial Code, 42 Pa.C.S. § 1515(a)(5), (5.1), (6), (6.1), and (7). This rule provides the procedures to implement this expanded jurisdiction of magisterial district judges.
* * * * * This rule also applies in any court case in which the Commonwealth agrees to withdraw all misdemeanor or felony charges in exchange for the defendant's plea to one or more summary charges. Even though only summary charges remain, the case still is considered a court case. The procedures for appeal for a trial de novo in summary cases set forth in Rules 460-462 are not applicable.
Once the 10-day period for withdrawal of the guilty plea has expired, the case will not be forwarded to the court of common pleas, but will have a final disposition entered in the magisterial district court. However, if the guilty plea takes place after the case is held for court, the case shall remain in the court of common pleas and thereafter would proceed in the same manner as any other court case, which would include, for example, the collection of restitution, fines, and costs; the establishment of time payments; and the supervision of probation.
* * * * * Official Note: Rule 149 adopted June 30, 1977, effective September 1, 1977; Comment revised January 28, 1983, effective July 1, 1983; amended November 9, 1984, effective January 2, 1985; amended August 22, 1997, effective January 1, 1998; renumbered Rule 550 and amended March 1, 2000, effective April 1, 2001; amended December 9, 2005, effective February 1, 2006; amended , 2009, effective , 2009.
Committee Explanatory Reports:
Final Report explaining the August 22, 1997 amendments that clarify the procedures following a district justice's acceptance of a guilty plea and imposition of sentence in a court case published with the Court's [order] Order at 27 Pa.B. 4549 (September 6, 1997).
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).
Final Report explaining the December 9, 2005 changes to the rule clarifying the magisterial district judges' exercise of jurisdiction published with the Court's Order at 35 Pa.B. 6896 (December 24, 2005).
Report explaining the proposed amendments concerning procedures following plea agreements published at 38 Pa.B. 6882 (December 20, 2008).
REPORT Proposed Amendments to Pa.Rs.Crim.P. 409, 414, 424, 460, 462 and 550
SUMMARY PLEA AGREEMENTS The Committee recently examined the procedures when a court case1 is brought before an magisterial district judge, presumably for a preliminary hearing or other proceeding, and the defendant enters into a plea agreement with the Commonwealth. The defendant enters a guilty plea before the magisterial district judge to one or more summary offenses in exchange for the withdrawal of the misdemeanor or felony charges, and subsequently appeals the summary conviction to the court of common pleas. In this procedural posture, the issue is whether an appeal for a trial de novo should be permitted and what charges should go forward.
The Committee believes that it would be unfair for the defendant to enjoy the benefit of a bargain of reduced charges that was premised upon the entry of a guilty plea and then attempt to defeat the reduce charge on appeal. If the defendant desires to withdraw his or her plea, there should be a mechanism to reinstate the original charges.
The Committee concluded that, since these types of cases initially included misdemeanors or felonies, the cases should be treated as court cases throughout. This is consistent with the definition of ''court case'' in Rule 103 that states that a ''court case is a case in which one or more offenses charged is a misdemeanor, felony, or murder of the first, second, or third degree (emphasis added).'' Therefore, the defendant should not be permitted to appeal for a trial de novo. Rather, these cases should be treated as being akin to the acceptance of a third degree misdemeanor guilty plea as provided in Rule 550.
The Committee is proposing amendments to Rule 550 that would broaden the types of cases that would be covered by the Rule 550 procedures to include the acceptance by the magisterial district judges of guilty pleas to summary charges in cases that originally included felony or misdemeanor charges. If the defendant subsequently withdraws his or her plea, as is currently provided in Rule 550(D), the magisterial district judge must reinstate the charges withdrawn as part of the plea agreement, and thereafter the case will proceed in accordance with Rule 547, as though the defendant had been held for court.
As a procedural point, the Committee noted that Rule 550(E) requires that, if the defendant has not withdrawn his or her guilty plea within ten days of its entry, the magisterial district judge is required to certify the judgment and forward the case to the clerk of courts. The Committee recognized that the purpose of this procedure was to ensure the subsequent supervision by the probation department in a misdemeanor case and was therefore unnecessary in the situation of a plea to summary charges. Therefore, language has been added to Rule 550(E) that would provide, in cases involving the entry of a summary plea pursuant to a plea agreement, that once the period for withdrawal of the plea has passed, the case would remain with the magisterial district judge.
Recognizing that the approach set forth in the proposed procedure could be confusing, especially when the case is sent to the court of common pleas, the Committee also is proposing an addition to the Comment to Rule 460 explaining that the Rule 460 procedures are not applicable to a plea taken under Rule 550 in the context of a court case with a plea agreement to summary offenses only.
The Committee also examined the situation in which the case originates entirely as a summary case and one or more summary offenses are dismissed or reduced based upon an agreement to plead to one or more other summary charges.
The Committee believes that these cases should be treated in the same manner as the court cases discussed previously. If the defendant subsequently withdraws the plea or appeals for a trial de novo, the original charges should be reinstated. This would be consistent with the holding in Commonwealth v. Rose, 820 A.2d 164 (Pa. Super. 2003), a case in which the Superior Court found that the Commonwealth's voluntary withdrawal of three Motor Vehicle Code citations against the defendant in exchange for a guilty plea to two remaining citations did not constitute a dismissal, and therefore, the original citations could be reinstated when the defendant filed a summary appeal. The proposal includes language to be added to Rules 460 and 462 that would require the magisterial district judge to reinstate the original charges if the charges had been withdrawn as part of a plea agreement that the defendant subsequently abrogates by withdrawing his or her plea or filing an appeal for a trial de novo. The proposal also adds a requirement to the summary guilty plea rules, Rules 409, 414, and 424, that the defendant be given notice of the consequences of a withdrawal from such a plea agreement at the time of the entry of the plea.
[Pa.B. Doc. No. 08-2278. Filed for public inspection December 19, 2008, 9:00 a.m.] _______
1 The case originates by charging misdemeanor, felony or murder offenses.
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