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PA Bulletin, Doc. No. 10-435

THE COURTS

Title 234—RULES OF
CRIMINAL PROCEDURE

[ 234 PA. CODE CH. 1 ]

In Re: Amendment of Rule of Criminal Procedure 122; No. 388; Criminal Procedural Rules

[40 Pa.B. 1396]
[Saturday, March 13, 2010]

Order

Per Curiam:

 And Now, this 26th day of February, 2010, 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 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 Comment to Rule 122 of the Pennsylvania Rules of Criminal Procedure is revised as follows.

 This Order shall be processed in accordance with Pa.R.J.A. No. 103(b), and shall be effective April 1, 2010.

PATRICIA NICOLA, 
Chief Clerk
Supreme Court of Pennsylvania

Annex A

TITLE 234. RULES OF CRIMINAL PROCEDURE

CHAPTER 1. SCOPE OF RULES, CONSTRUCTION AND DEFINITIONS, LOCAL RULES

PART B. Counsel

Rule 122. Appointment of Counsel.

*  *  *  *  *

Comment

*  *  *  *  *

 In court cases, paragraph (A)(2) requires counsel to be appointed at least in time to represent the defendant at the preliminary hearing. Although difficulty may be experienced in some judicial districts in meeting the Coleman requirement, it is believed that this is somewhat offset by the prevention of many post-conviction proceedings that would otherwise be brought based on the denial of the right to counsel. However, there may be cases in which counsel has not been appointed prior to the preliminary hearing stage of the proceedings[;] , e.g., counsel for the preliminary hearing has been waived, or a then-ineligible defendant subsequently becomes eligible for appointed counsel. In such cases it is expected that the defendant's right to appointed counsel will be effectuated at the earliest appropriate time.

 An attorney may not be appointed to represent a defendant in a capital case unless the attorney meets the educational and experiential requirements set forth in Rule 801 (Qualifications for Defense Counsel in Capital Cases).

 Paragraph (A)(3) retains in the issuing authority or judge the power to appoint counsel regardless of indigency or other factors when, in the issuing authority's or the judge's opinion, the interests of justice require it.

 Pursuant to paragraph (B)(2), counsel retains his or her appointment until final judgment, which includes all avenues of appeal through the Supreme Court of Pennsylvania. In making the decision whether to file a petition for allowance of appeal, counsel must (1) consult with his or her client, and (2) review the standards set forth in Pa.R.A.P. 1114 (Considerations Governing Allowance of Appeal) and the note following that rule. If the decision is made to file a petition, counsel must carry through with that decision. See Commonwealth v. Liebel, 573 Pa. 375, 825 A.2d 630 ([Pa.] 2003). Concerning counsel's obligations as appointed counsel, see Jones v. Barnes, 463 U.S. 745 (1983). See also Commonwealth v. Padden, 783 A.2d 299 (Pa. Super. 2001).

 See Commonwealth v. Alberta, 601 Pa. 473, 974 A.2d 1158 (2009), in which the Court stated that ''[a]ppointed counsel who has complied with Anders [v. California, 386 U.S. 738 (1967),] and is permitted to withdraw discharges the direct appeal obligations of counsel. Once counsel is granted leave to withdraw per Anders, a necessary consequence of that decision is that the right to appointed counsel is at an end.''

 For suspension of Acts of Assembly, see Rule 1101.

 Official Note: Rule 318 adopted November 29, 1972, effective 10 days hence, replacing prior rule; amended September 18, 1973, effective immediately; renumbered Rule 316 and amended June 29, 1977, and October 21, 1977, effective January 1, 1978; renumbered Rule 122 and amended March 1, 2000, effective April 1, 2001; amended March 12, 2004, effective July 1, 2004; Comment revised March 26, 2004, effective July 1, 2004; Comment revised June 4, 2004, effective November 1, 2004; amended April 28, 2005, effective August 1, 2005; Comment revised February 26, 2010, effective April 1, 2010.

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).

 Final Report explaining the March 12, 2004 editorial amendment to paragraph (C)(3), and the Comment revision concerning duration of counsel's obligation, published with the Court's Order at 34 Pa.B. 1671, 1672 (March 27, 2004).

 Final Report explaining the March 26, 2004 Comment revision concerning Alabama v. Shelton published with the Court's Order at 34 Pa.B. 1929, 1931 (April 10, 2004).

 Final Report explaining the April 28, 2005 changes concerning the contents of the appointment order published with the Court's Order at 35 Pa.B. 2855, 2859 (May 14, 2005).

 Final Report explaining the February 26, 2010 revision of the Comment adding a citation to Commonwealth v. Alberta published at 40 Pa.B. 1396, 1397 (March 13, 2010).

FINAL REPORT1

Revision of the Comment to Pa.R.Crim.P. 122

WITHDRAWAL OF COUNSEL:
COMMONWEALTH v. ALBERTA

 On February 26, 2010, effective April 1, 2010, upon the recommendation of the Criminal Procedural Rules Committee, the Court approved the revision of the Comment to Rule of Criminal Procedure 122 (Assignment of Counsel) to add a citation to Commonwealth v. Alberta, 601 Pa. 473, 974 A.2d 1158 (2009).

 The Committee under took a review of Commonwealth v. Alberta, supra, at the request of the Court. The Court asked the Committee to consider ''amending Rule 122 to clarify that during the course of a direct appeal, once counsel has been permitted to withdraw pursuant to Anders, a defendant is not entitled to the appointment of subsequent counsel.''

 The Committee discussed two approaches—amending the text of Rule 122 or revising the Rule 122 Comment. The Committee was concerned that an amendment to the text of the rule adding procedures related to withdrawal of counsel pursuant to Anders could lead to confusion about the extent of the application of Alberta to post-conviction collateral and appellate proceedings. Ultimately, the Committee concluded the best approach would be to add a citation to Alberta to the Rule 122 Comment. Accordingly, the Rule 122 Comment has been revised by adding the citation to Alberta and a quotation from the holding explaining that ''appointed counsel who has complied with Anders and is permitted to withdraw discharges the direct appeal obligations of counsel. Once counsel is granted leave to withdraw per Anders, a necessary consequence of that decision is that the right to appointed counsel is at an end.'' The new Comment provision also includes a citation to Anders v. California, 386 U.S. 738 (1967) because Anders is not cited anywhere else in Rule 122.

[Pa.B. Doc. No. 10-435. Filed for public inspection March 12, 2010, 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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