THE COURTS
[234 PA. CODE CH. 5]
Proposed Amendments to Pa.Rs.Crim.P. 590 (Pleas and Plea Agreements)
[39 Pa.B. 991]
[Saturday, February 21, 2009]Introduction
The Criminal Procedural Rules Committee is planning to recommend that the Supreme Court of Pennsylvania amend Rule 590 to provide for more detailed standards regarding the areas of inquiry that are required to be part of all guilty plea colloquies. 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. 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, April 10, 2009.
By the Criminal Procedural
Rules CommitteeD. PETER JOHNSON,
Chair
Annex A
TITLE 234. RULES OF CRIMINAL PROCEDURE
PART I. GENERAL
CHAPTER 5. PRETRAIL PROCEDURES IN COURT CASES
PART G. Plea Procedures Rule 590. Pleas and Plea Agreements.
* * * * * (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, and is willing to enter that plea, the following information shall be elicited as part of an oral examination on the record:
(i) confirmation of the identity of the defendant;
(ii) the defendant's capacity to comprehend and communicate in the proceedings;
(iii) the defendant's understanding of the nature and elements of the charges to which he or she is pleading guilty or nolo contendere, as well as the maximum sentences, including fines, for the offenses charged and any applicable mandatory sentence;
(iv) the factual basis for the plea; and
(v) the defendant's satisfaction with the representation afforded by his or her attorney.
(c) In addition to the information required to be elicited under paragraph (b), the following information shall be elicited, either orally or in writing, on the record:
(i) the defendant's understanding that he or she has certain rights with regard to the charges, including but not limited to the filing and litigation of pretrial motions; the right to counsel; the right to trial by jury before twelve jurors the defendant would assist in selecting; the right to challenge potential jurors; the requirement of a unanimous verdict; that he or she is presumed innocent and can only be found guilty if the prosecution proves guilt beyond a reasonable doubt; that he or she has the right to cross-examine the prosecution witnesses; and the right to call his or her own witnesses; and
(ii) the defendant's understanding that, if the judge accepts the plea and finds the defendant guilty, the defendant's right to appeal is limited to the legality of the sentence, the voluntariness of the plea, and the jurisdiction of the court.
(d) Counsel for the defendant shall certify on the record, either orally or in writing, that he or she has had the opportunity to discuss the case with the defendant, and that the defendant has been advised of his or her rights and the effects of entry of a plea of guilty or nolo contendere.
(e) 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.
(B) PLEA AGREEMENTS.
* * * * * (2) The judge shall conduct a separate inquiry of the defendant on the record to determine whether the defendant understands and voluntarily accepts the terms of the plea agreement on which the guilty plea or plea of nolo contendere is based, and that the judge is not bound by the terms of the tendered plea agreement unless the judge accepts the plea agreement.
* * * * *
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 (1974); Commonwealth v. Campbell, 451 Pa. 198, 304 A.2d 121 (1973); Commonwealth v. Jackson, 450 Pa. 417, 299 A.2d 209 (1973).
Paragraph (A)(3) was added in 2009 to provide further instructions to judges accepting pleas of guilty or nolo contendere. Under Commonwealth v. Willis, 471 Pa. 50, 369 A.2d 1189 (1977), and Commonwealth v. Dilbeck, 466 Pa. 543, 353 A.2d 824 (1976), judges are required to make inquiry on the record into six areas, at a minimum, to ensure that a defendant is entering the plea voluntarily and understandingly. Paragraphs (A)(3)(b) and (c) elaborate on these areas of inquiry.
Paragraph (A)(3)(b) recognizes that certain elements of the colloquy are so critical to assuring the judge that the defendant understands the plea and that the colloquy is in compliance with this rule that the inquiry must be performed orally on the record.
Paragraph (A)(3)(c) requires two additional areas of inquiry. Nothing in the rule would preclude the use of a written colloquy for inquiry into these areas that is read, completed, signed by the defendant, and made part of the record of the plea proceedings. Similarly, areas of inquiry not listed in the rule but that the court deems necessary for the acceptance of the plea may be addressed in a written colloquy. The written colloquy may have to be supplemented by some on-the-record oral examination. Its use would not, of course, change any other requirements of law, including these rules, regarding the prerequisites of a valid guilty plea or plea of nolo contendere.
Some areas of inquiry that require oral inquiry do not necessarily need to be performed as a direct examination of the defendant. For example, the factual basis of the plea and the nature of the charges are case-specific and therefore an oral inquiry must be conducted into the specific facts of the case. This may be accomplished by the defendant confirming on the record a recitation of the facts by the attorney for the Commonwealth or defense counsel. In such a situation, however, the judge must be assured that the defendant fully understands and agrees with such a recitation.
Paragraph (A)(3)(d) requires that, in addition to the colloquy conducted of the defendant, counsel for the defendant also must certify on the record that the defendant has been fully advised of the nature and effects of his or her plea.
The court may inquire of counsel for the defendant if he or she knows of any reason why the defendant cannot voluntarily and understandingly giving up his or her rights and pleading guilty or nolo contendere.
Similarly, paragraph (B)(1) requires that counsel for the defendant and for the Commonwealth state on the record the terms of any plea agreement. Under paragraph (B)(2), the defendant's understanding of the terms of the agreement also must be elicited. This inquiry should include discussion of whether the court is bound by the agreement, the ability to withdraw the plea if it is not accepted, and that no coercion or other promises outside of the plea agreement have led to the defendant's willingness to enter a plea.
[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:
(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?]
* * * * * It is advisable that the judge conduct the examination of the defendant. However, paragraph (A)(3)(e) [does not prevent] authorizes the judge to permit defense counsel or the attorney for the Commonwealth [from conducting] to conduct part or all of the examination of the defendant[, as permitted by the judge. In addition, nothing in the rule would preclude the use of a written colloquy, that is read, completed, signed by the defendant, and made part of the record of the plea proceedings. This written colloquy would have to be supplemented by some on-the-record oral examination. Its use would not, of course, change any other requirements of law, including these rules, regarding the prerequisites of a valid guilty plea or plea of nolo contendere].
* * * * * 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; amended , 2009, effective , 2009.
Committee Explanatory Reports:
* * * * * 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).
Report explaining the proposed changes to subparagraph (A)(3) concerning plea colloquies published at 39 Pa.B. 993 (February 21, 2009).
REPORT
Proposed Amendments to Pa.Rs.Crim.P. 590
GUILTY PLEA COLLOQUY The Committee began examining guilty plea colloquy practice as a result of the opinion in Commonwealth v. Fowler, 893 A.2d 758 (2006), that 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 six areas of inquiry. The list of these six items is included in the Rule 590 Comment, as well as a cross-reference to the Willis case. The Committee also received anecdotal reports that some courts were not eliciting all of this required information, thereby calling into question the providency of the pleas taken.
Initially, the Committee considered recommending moving these six areas of inquiry from the Comment into the text of Rule 590 to emphasize their mandatory nature. However, the Committee recognized that this relatively simple proposal raised more complex questions regarding the standardization of colloquy procedures, especially with regard to the use of written colloquy forms and the extent to which the colloquy must be performed orally.
The Committee, after conducting a statewide survey of colloquy practice, noted the wide divergence in guilty plea colloquy practice throughout the Commonwealth. At first, the Committee considered attempting to create a uniform statewide guilty plea colloquy form that would ensure that the minimum requirements for a provident plea are met. Ultimately, the Committee concluded that practice with regard to written guilty plea colloquies was too diverse to capture in a single form that was still efficient to use. Rather than trying to create a single form that would be applicable to all counties, the Committee concluded that the better option would be to provide fuller guidance as to the elements that should be included in every colloquy.
To that end, the Committee developed a list of the mandatory colloquy components that would be included in the text of Rule 590. The current list of six mandatory colloquy items would be expanded upon and augmented to include a more detailed description of the areas of inquiry that the six areas of inquiry in the Rule 590 Comment are intended to encompass, and that are needed to ensure that the defendant is pleading voluntarily and understandingly.
In developing this proposal, some Committee members expressed the concern that the proposal could be interpreted to require an extensive oral colloquy of each element of the list. Such an interpretation would tie judges' hands and require a far more extensive colloquy than is necessary to ensure that a valid plea has been entered. Therefore, the Committee concluded that the rule should explicitly provide which mandatory items of the colloquy have to be done orally and which could be handled either orally or by a written colloquy form.
To accomplish this, a new paragraph (3)(b) would be added to Rule 590 setting forth the five areas of inquiry that must be conducted orally on the record. The items that are required to be elicited orally relate to confirming the defendant's identity, his or her capacity to understand the nature of the proceedings; the nature, elements, and factual basis of the charges; and his or her satisfaction with his or her representation. New paragraph (3)(c) would set forth two broad areas of inquiry that, while mandatory, may be addressed either orally or through a written colloquy form, and on the record These two areas concern the defendant's understanding of the full panoply of rights that he or she will be giving up if the plea is accepted. One of the elements of the original list of six areas of inquiry, the advice to the defendant that the judge is not bound by the terms of any plea agreement unless the judge accepts the agreement, has been included in paragraph (B) that relates to plea agreements. Taken together, this new expanded list contains all of the original six areas of inquiry, augmented to provide more detailed instructions as to the composition of the colloquy.
The Comment language has been revised to reflect these changes and emphasize that the main purpose of the colloquy is to assure that the plea is entered providently and provide some detail as to how the colloquy requirements might be applied. For example, one area of oral inquiry in which more detailed instructions are provided is that of the factual basis for the plea. Rather than requiring the defendant to provide an oral description of the facts of the case, the rule would permit an oral recitation by the district attorney or defense counsel confirmed by the defendant.
[Pa.B. Doc. No. 09-291. Filed for public inspection February 20, 2009, 9:00 a.m.]
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