THE COURTS
Title 210—APPELLATE PROCEDURE
PART I. RULES OF APPELLATE PROCEDURE
[ 210 PA. CODE CHS. 3, 9, 11 AND 21 ]
Proposed Amendments to Pa.R.A.P. 341, 902, 1112, 1115, 2116 and 2119
[43 Pa.B. 3082]
[Saturday, June 8, 2013]The Appellate Court Procedural Rules Committee proposes to recommend amendment to the notes of Pa.R.A.P. 341, 902, 1112, 1115, 2116, and 2119. This proposal is being submitted for public comments, suggestions and concerns prior to submission to the Supreme Court.
Proposed new material is in bold face type and deleted material is bracketed and in bold face type.
All communications in reference to the proposed amendment should be sent no later than July 22, 2013 to:
Appellate Court Procedural Rules Committee
Pennsylvania Judicial Center
601 Commonwealth Ave., Suite 6200
P. O. Box 62635
Harrisburg, Pennsylvania 17106-2635
or Fax to
(717) 231-9551
or E-Mail to
appellaterules@pacourts.usAn Explanatory Comment precedes the proposed amendment and has been inserted by this Committee for the convenience of the bench and bar. It will not constitute part of the rule nor will it be officially adopted or promulgated.
By the Appellate Court
Procedural Rules CommitteeHONORABLE RENÉE COHN JUBELIRER,
Chair
Annex A
TITLE 210. APPELLATE PROCEDURE
PART I. RULES OF APPELLATE PROCEDURE
ARTICLE I. PRELIMINARY PROVISIONS
CHAPTER 3. ORDERS FROM WHICH APPEALS MAY BE TAKEN
FINAL ORDERS Rule 341. Final Order; Generally.
* * * * * Official Note: Related Constitutional and Statutory Provisions—Section 9 of Article V of the Constitution of Pennsylvania provides that ''there shall be a right of appeal from a court of record or from an administrative agency to a court of record or to an appellate court.'' The term ''administrative agency'' is not defined in Rule 102 of these rules and as used in this rule is intended to have the same meaning as the term ''administrative agency'' in Section 9 of Article V of the Constitution of Pennsylvania. The constitutional provision is implemented by 2 Pa.C.S. § 702 (appeals), 2 Pa.C.S. § 752 (appeals), and 42 Pa.C.S. § 5105 (right to appellate review).
[Criminal Law Proceedings—Discretionary Aspects of Sentencing—Section 9781 of the Sentencing Code (42 Pa.C.S. § 9781) states that the defendant or the Commonwealth may ''petition for allowance of appeal'' of the discretionary aspects of a sentence for a felony or a misdemeanor. The practice under these rules is to file a notice of appeal. See note to Rule 902 (manner of taking appeal). If the defendant has a right to an appeal with respect to the discretionary aspects of a sentence, the appellate court must, of course, entertain the appeal. Otherwise, such an appeal may be entertained by an appellate court if, but only if, it appears to the court that there is a substantial question that the sentence imposed is not appropriate under the applicable guidelines.]
* * * * *
ARTICLE II. APPELLATE PROCEDURE
CHAPTER 9. APPEALS FROM LOWER COURTS Rule 902. Manner of Taking Appeal.
* * * * * Official Note: 42 Pa.C.S. § 703 (place and form of filing appeals) provides that appeals, petitions for review, petitions for permission to appeal and petitions for allowance of appeal shall be filed in such office and in such form as may be prescribed by general rule.
* * * * * Section 9781 of the Sentencing Code (42 Pa.C.S. § 9781) provides that the defendant or the Commonwealth may file a ''petition for allowance of appeal'' of the discretionary aspects of a sentence for a felony or a misdemeanor. The notice of appeal under this chapter (see [Rule 904 (content of the notice of appeal))] Pa.R.A.P. 904), in conjunction with the requirements set forth in Pa.R.A.P. 2116(b) and 2119(f), operates as the ''petition for allowance of appeal'' under the Sentencing Code. [It automatically raises all possible questions under 42 Pa.C.S. § 9781 and is available and appropriate even where no issue relating to guilt or the legality of the sentence (in the sense that the sentence falls outside of the range of discretion vested by law in the sentencing court) is presented.] No additional wording is required or appropriate in the notice of appeal. See Pa.R.A.P. 2116(b) and the note thereto; Pa.R.A.P. 2119(f) and the note thereto. Although 42 Pa.C.S. § 9781(f) limits appeals to ''the appellate court that has initial jurisdiction for such appeals'' the Supreme Court may review ''the application of legal principles, including the issue of whether a lower court exceeded its standard of review in supplanting the sentencing court's discretion.'' Commonwealth v. Perry, 32 A.3d 232, 236 n.10 (Pa. 2011).
* * * * *
CHAPTER 11. APPEALS FROM COMMONWEALTH COURT AND SUPERIOR COURT
PETITION FOR ALLOWANCE OF APPEAL Rule 1112. Appeals by Allowance.
* * * * * Official Note: Based on 42 Pa.C.S. § 724(a) (allowance of appeals from Superior and Commonwealth Courts). The notation on the docket by the Prothonotary of the Superior Court or Commonwealth Court of the filing of a petition for allowance of appeal renders universal the rule that the appeal status of any order may be discovered by examining the docket of the court in which it was entered.
* * * * * [With regard to subdivision (f) and withdrawal of appearance without leave of the appellate court, counsel may nonetheless be subject to trial court supervision pursuant to Pa.R.Crim.P. 904 (Entry of Appearance and Appointment of Counsel; In Forma Pauperis).]
With respect to appearances by new counsel following the initial docketing of appearances pursuant to [Subdivision] paragraph (f) of this rule, please note the requirements of Rule [1200] 120.
Where an appellant desires to challenge the discretionary aspects of a sentence of a trial court the ''petition for allowance of appeal'' is deferred until the briefing stage, and the appeal is commenced by filing a notice of appeal pursuant to Chapter 9 rather than a petition for allowance of appeal pursuant to Chapter 11. See note to Pa.R.A.P. 902; note to Pa.R.A.P. 1115; Pa.R.A.P. 2116(b) and the note thereto; Pa.R.A.P. 2119(f) and the note thereto.
Rule 1115. Content of the Petition for Allowance of Appeal.
* * * * * Official Note: Former Supreme Court Rule 62 permitted the petitioner in effect to dump an undigested mass of material (i.e., briefs in and opinions of the court below) in the lap of the Supreme Court, with the burden on the individual justices and their law clerks to winnow the wheat from the chaff. This rule, which is patterned after U.S. Supreme Court Rule 23, places the burden on the petitioner to prepare a succinct and coherent presentation of the case and the reasons in support of allowance of appeal.
Where an appellant desires to challenge the discretionary aspects of a sentence of a trial court [no ''petition for allowance of appeal,'' as that term is used in these rules, may be filed and the practice is governed by Chapter 9 (appeals from lower courts)] the ''petition for allowance of appeal'' is deferred until the briefing stage, and the appeal is commenced by filing a notice of appeal pursuant to Chapter 9 rather than a petition for allowance of appeal pursuant to Chapter 11. Commonwealth v. Tuladeziecki, 522 A.2d 17, 18 (Pa. 1987). See note to [Rule 902 (manner of taking appeal)] Pa.R.A.P. 902; note to Pa.R.A.P. 1112; Pa.R.A.P. 2116(b) and the note thereto; Pa.R.A.P. 2119(f) and the note thereto.
CHAPTER 21. BRIEFS AND REPRODUCED RECORD
CONTENT OF BRIEFS Rule 2116. Statement of Questions Involved.
* * * * * (b) Discretionary aspects of sentence.—An appellant who challenges the discretionary aspects of a sentence in a criminal matter shall include any questions relating to the discretionary aspects of the sentence imposed (but not the issue whether the appellate court should exercise its discretion to reach such question) in the statement required by [Subdivision] paragraph (a). Failure to comply with this [subdivision] paragraph shall constitute a waiver of all issues relating to the discretionary aspects of sentence.
Official Note: In conjunction with 2013 amendments to Rules 2135 (length of briefs) and 2140 (brief on remand or following grant of reargument or reconsideration) adopting an optional word limit in lieu of page limits, the 2013 amendment eliminated the page limit for the statement of questions involved. The word count does, however, include the statement of questions, and a party should draft the statement of questions involved accordingly, with sufficient specificity to enable the reviewing court to readily identify the issues to be resolved while incorporating only those details that are relevant to disposition of the issues. Although the page limit on the statement of questions involved was eliminated in 2013, verbosity continues to be discouraged. The appellate courts strongly disfavor a statement that is not concise.
The requirement set forth in Pa.R.A.P. 2116(b) is part of the procedure set forth by the Supreme Court to implement the standard set forth in 42 Pa.C.S. § 9781(b). Commonwealth v. Tuladeziecki, 522 A.2d 17, 18 (Pa. 1987). See note to Pa.R.A.P. 902; note to Pa.R.A.P. 1112; note to Pa.R.A.P. 1115; and Pa.R.A.P. 2119(f) and the note thereto.
Rule 2119. Argument.
* * * * * (f) Discretionary aspects of sentence.—An appellant who challenges the discretionary aspects of a sentence in a criminal matter shall set forth in his brief a concise statement of the reasons relied upon for allowance of appeal with respect to the discretionary aspects of a sentence. The statement shall immediately precede the argument on the merits with respect to the discretionary aspects of the sentence.
Official Note: Based on former Supreme Court Rule 55, former Superior Court Rule 45 and former Commonwealth Court Rule 95. The requirement for parallel citation to the Atlantic Reporter is extended to the Supreme Court and the Commonwealth Court and the related certificate of nonpublication in the official reports has been omitted. The requirement of former Superior Court Rule 45 that a party print in bold face up to three citations under each head chiefly relied upon, has been omitted. Counsel having available the Atlantic Reporter can readily obtain the official citation from cross-reference sheets ordinarily pasted on the flyleaf of each Atlantic Reporter volume; counsel having the official reports available can obtain the Atlantic Reporter citation from cross-references available in Shepard's Pennsylvania Citations—Case Edition or the National Reporter Blue Book.
[In some circumstances an appellant may have a right to appellate review of the discretionary aspects of a sentence. See note to Rule 341 (final orders generally). In such cases a citation to the controlling authority will suffice for purposes of Subdivision (f).]
Where a challenge is raised to the discretionary aspects of sentencing, the ''petition for allowance of appeal'' specified in 42 Pa.C.S. § 9781 is deferred until the briefing stage, and the appeal is commenced by filing a notice of appeal pursuant to Chapter 9 rather than a petition for allowance of appeal pursuant to Chapter 11. In order to assert a challenge to the discretionary aspects of a sentence, the issue must first be raised at the sentencing hearing or in a motion to modify the sentence imposed at the hearing and, in accordance with the provisions of this rule, the appellant (whether the Commonwealth or the defendant) must set forth clear reasons why the sentence was not consistent with the Sentencing Code and must do so in compliance with the requirements of this rule and Pa.R.A.P. 2116(b). Commonwealth v. Anderson, 830 A.2d 1013, 1016 (Pa. Super. 2003). If the appellant complies with these rules, the court will determine whether there is a substantial question as to the sentence imposed. Commonwealth v. Tuladeziecki, 522 A.2d 17, 18 (Pa. 1987). If these rules are not complied with and the opposing party fails to object to the procedural defect, the court may likewise determine for itself whether a substantial question has been presented. Commonwealth v. Bailey, 534 A.2d 829 (Pa. Super. 1987); Commonwealth v. Gambal, 561 A.2d 710 (Pa. 1989). If these rules are not complied with and the opposing party raises the procedural defect, the court will not reach the merits of the challenge to the discretionary aspects of sentence on appeal. Tuladeziecki, 522 A.2d at 18.
Explanatory Comment
Discretionary Aspects of Sentence Although a challenge to the legality of a sentence cannot be waived, a challenge to the discretionary aspects of a sentence can. Moreover, review of the discretionary aspects of a sentence are limited by statute in two ways.
First, even when objections have been preserved, the appellate court (generally Superior Court)1 undertakes a threshold analysis (referred to in the statute as a petition for allowance of appeal). The appellant—whether the defendant or the Commonwealth—does not file a separate petition, however; instead, the challenge is raised in a separate section of the merits brief. See 42 Pa.C.S. § 9781(b); Commonwealth v. Childs, 664 A.2d 994, 996 (Pa. Super. 1995). Failure to comply with the requirements to set forth the basis for the court's review in a separate section of the brief necessarily waives the challenge to the discretionary aspects of the sentence, if the opposing party raises the procedural defect, and may waive it even if the opposing party fails to raise the procedural defect. Because challenges to the legality of a sentence are not foreclosed, regardless of the extent of preservation, there are several cases in which persons have sought to characterize an issue as relating to ''legality'' rather than discretion, but the Supreme Court has cautioned that persons should file post-sentence motions and Rule 2119(f) statements for all sentencing claims. See Commonwealth v. Foster, 17 A.3d 332, 345 n.20 (Pa. 2011). Indeed, the only categories of challenges that the Court has recognized as challenges to the legality of a sentence are those in which a court's authority to use discretion has been constrained or those in which the sentence imposed is patently inconsistent with the parameters set forth by the General Assembly. Id. at 342. These include challenges under Apprendi, merger, double jeopardy, and sentencing outside a minimum or maximum. Id. at 338, 342.
Second, the statute permits only one level of review. Nonetheless, the Supreme Court has recognized that the statutory limitation does not preclude it from reviewing ''the application of legal principles, including the issue of whether a lower court exceeded its standard of review in supplanting the sentencing court's discretion.'' Commonwealth v. Perry, 32 A.3d 232, 236 n.10 (Pa. 2011), although there have been multiple cases in which the dissent raised a concern that such review was contrary to 42 Pa.C.S. § 9781.
The appellate rules had not been updated in this area in quite some time, and there is concern that leaving only the old citations in the notes could be confusing to practitioners and may be outdated. As a result, the Appellate Court Procedural Rules Committee appointed a subcommittee to study the issue, and now proposes the following Recommendation.
[Pa.B. Doc. No. 13-1024. Filed for public inspection June 7, 2013, 9:00 a.m.] _______
1 In Commonwealth v. Mouzon, 912 A.2d 617 (Pa. 2002), the Supreme Court explained that when a capital defendant appeals to the Supreme Court, the Supreme Court considers all questions relating to lesser sentences as well, including challenges to the discretionary aspects of a sentence. Id. at 622.
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