THE COURTS
Title 234—RULES OF CRIMINAL PROCEDURE
[ 234 PA. CODE CHS. 4 AND 7 ]
Proposed New Pa.R.Crim.P. 705.1, Proposed Amendments to Pa.R.Crim.P. 454, and Proposed Revisions to the Comments to Pa.Rs.Crim.P. 455 and 704
[44 Pa.B. 2369]
[Saturday, April 19, 2014]The Criminal Procedural Rules Committee is considering recommending that the Supreme Court of Pennsylvania adopt new Rule 705.1 (Restitution), amend Rule 454 (Trial in Summary Cases), and revise the Comments to Rules 455 (Trial in Defendant's Absence) and 704 (Procedure at Time of Sentencing) to standardize the procedures by which restitution is awarded in criminal cases. 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 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 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,
Jeffrey M. Wasileski, Counsel
Supreme Court of Pennsylvania
Criminal Procedural Rules Committee
601 Commonwealth Avenue, Suite 6200
Harrisburg, PA 17106-2635
fax: (717) 231-9521
e-mail: criminalrules@pacourts.usno later than Friday, May 30, 2014.
By the Criminal Procedural Rules Committee
THOMAS P. ROGERS,
Chair
Annex A
TITLE 234. RULES OF CRIMINAL PROCEDURE
CHAPTER 4. PROCEDURES IN SUMMARY CASES
PART E. General Procedures in Summary Cases Rule 454. Trial in Summary Cases.
* * * * * (F) At the time of sentencing, the issuing authority shall:
(1) if the defendant's sentence includes restitution, a fine, or costs, state:
(a) the amount of the fine and costs;
(b) the amount of restitution ordered, including
(i) the identity of the payee(s),
(ii) to which officer or agency the restitution payment shall be made,
(iii) any ongoing victim expenses that may need to be reviewed at a future time, and
(iv) whether any restitution has been paid and in what amount,
(c) the date on which payment is due.
If the defendant is without the financial means to pay the amount in a single remittance, the issuing authority may provide for installment payments and shall state the date on which each installment is due;
* * * * *
Comment * * * * * See Rule 456 for the procedures when a defendant defaults in the payment of restitution, fines, or costs.
For the procedures concerning sentences that include restitution in court cases, see Rule 705.1.
A defendant should be encouraged to seek an adjustment of a payment schedule for restitution, fines, or costs before a default occurs. See Rule 456(A).
Official Note: Rule 83 adopted July 12, 1985, effective January 1, 1986; amended September 23, 1985, effective January 1, 1986; January 1, 1986 effective dates extended to July 1, 1986; amended February 2, 1989, effective March 1, 1989; amended October 28, 1994, effective as to cases instituted on or after January 1, 1995; Comment revised April 18, 1997, effective July 1, 1997; amended October 1, 1997, effective October 1, 1998; Comment revised February 13, 1998, effective July 1, 1998; renumbered Rule 454 and Comment revised March 1, 2000, effective April 1, 2001; amended February 28, 2003, effective July 1, 2003; Comment revised August 7, 2003, effective July 1, 2004; amended March 26, 2004, effective July 1, 2004; amended January 26, 2007, effective February 1, 2008; Comment revised July 17, 2013, effective August 17, 2013; amended , 2014, effective , 2014.
Committee Explanatory Reports:
* * * * * Report explaining the proposed amendments to paragraph (F) concerning required elements of the sentence published for comment at 44 Pa.B. 2371 (April 19, 2014).
Rule 455. Trial in Defendant's Absence.
* * * * *
Comment * * * * * Paragraph (D) provides notice to the defendant of conviction and sentence after trial in absentia to alert the defendant that the time for filing an appeal has begun to run. See Rule 413(B)(3).
See Rule 454(F) for what information must be included in a sentencing order when restitution is included in the sentence.
Except in cases under the Public School Code of 1949, 24 P. S. § 1-102, et seq., in which the defendant is at least 13 years of age but not yet 17, if the defendant is under 18 years of age, the notice in paragraph (D) must inform the defendant and defendant's parents, guardian, or other custodian that, if payment is not received or the defendant does not appear within the 10-day time period, the issuing authority will certify notice of the failure to pay to the court of common pleas as required by the Juvenile Act, 42 Pa.C.S. § 6302, definition of ''delinquent act,'' paragraph (2)(iv), and the case will proceed pursuant to the Rules of Juvenile Court Procedure and the Juvenile Act instead of these rules.
* * * * * Official Note: Rule 84 adopted July 12, 1985, effective January 1, 1986; January 1, 1986 effective date extended to July 1, 1986; amended February 1, 1989, effective July 1, 1989; amended April 18, 1997, effective July 1, 1997; amended October 1, 1997, effective October 1, 1998; renumbered Rule 455 and Comment revised March 1, 2000, effective April 1, 2001; Comment revised August 7, 2003, effective July 1, 2004; Comment revised April 1, 2005, effective October 1, 2005; amended August 15, 2005, effective February 1, 2006; Comment revised January 17, 2013, effective May 1, 2013; Comment revised July 17, 2013, effective August 17, 2013; Comment revised , 2014, effective , 2014.
Committee Explanatory Reports:
* * * * * Report explaining the proposed Comment revision cross-referencing the sentencing provision in Rule 454(F) published for comment at 44 Pa.B. 2371 (April 19, 2014).
CHAPTER 7. POST-TRIAL PROCEDURES IN COURT CASES
PART A. Sentencing Procedures Rule 704. Procedure at Time of Sentencing.
* * * * *
Comment * * * * * SENTENCING PROCEDURES
* * * * * [In all cases in which restitution is imposed, the sentencing judge must state on the record the amount of restitution, if determined at the time of sentencing, or the basis for determining an amount of restitution. See 18 Pa.C.S. § 1106 and 42 Pa.C.S. §§ 9721, 9728.]
For procedures in cases in which restitution is imposed, see Rule 705.1.
For the right of a victim to have information included in the pre-sentence investigation report concerning the impact of the crime upon him or her, see 71 P. S. § 180-9.3(1) and Rule 702(A)(4).
* * * * * Official Note: Previous Rule 1405 approved July 23, 1973, effective 90 days hence; Comment amended June 30, 1975, effective immediately; Comment amended and paragraphs (c) and (d) added June 29, 1977, effective September 1, 1977; amended May 22, 1978, effective as to cases in which sentence is imposed on or after July 1, 1978; Comment amended April 24, 1981, effective July 1, 1981; Comment amended November 1, 1991, effective January 1, 1992; rescinded March 22, 1993, effective as to cases in which the determination of guilt occurs on or after January 1, 1994, and replaced by present Rule 1405. Present Rule 1405 adopted March 22, 1993, effective as to cases in which the determination of guilt occurs on or after January 1, 1994; amended January 3, 1995, effective immediately; amended September 13, 1995, effective January 1, 1996. The January 1, 1996 effective date extended to April 1, 1996. Comment revised December 22, 1995, effective February 1, 1996. The April 1, 1996 effective date extended to July 1, 1996. Comment revised September 26, 1996, effective January 1, 1997; Comment revised April 18, 1997, effective immediately; Comment revised January 9, 1998, effective immediately; amended July 15, 1999, effective January 1, 2000; renumbered Rule 704 and amended March 1, 2000, effective April 1, 2001; Comment revised March 27, 2003, effective July 1, 2003; amended April 28, 2005, effective August 1, 2005; Comment revised March 15, 2013, effective May 1, 2103; Comment revised , 2014 effective , 2104.
Committee Explanatory Reports:
* * * * * Report explaining the revision of the Comment adding a cross-reference to Rule 705.1 concerning restitution published for comment at 44 Pa.B. 2371 (April 19, 2014).
(Editor's Note: The following rule is new and printed in regular type to enhance readability.)
Rule 705.1. Restitution.
(A) At the time of sentencing, the judge shall determine what restitution, if any, shall be imposed.
(B) In any case in which restitution is imposed, the judge shall state in the sentencing order:
(1) the amount of restitution ordered;
(2) the details of any payment plan, including when payment is to begin;
(3) the identity of the payee(s);
(4) to which officer or agency the restitution payment shall be made;
(5) any ongoing victim expenses that may need to be reviewed at a future time;
(6) whether any restitution has been paid and in what amount; and
(7) whether the restitution has been imposed as a part of the sentence or as a condition of probation.
(C) In any case in which restitution is imposed, a judge shall hold a hearing no later than 30 days prior to the expiration of any period of probation if there is any amount of restitution outstanding.
Comment This rule is intended to provide procedures for the statutory requirement for the judge to impose restitution. In all cases in which restitution is imposed, the sentencing judge must state on the record the amount of restitution at the time of sentencing. See 18 Pa.C.S. § 1106 and 42 Pa.C.S. §§ 9721, 9728.
The extent of restitution may also be provided by statute. See, e.g., 18 Pa.C.S. § 1107 (restitution for timber theft); § 1107.1 (restitution for identity theft); and § 1110 (restitution for cleanup of clandestine labs).
The amount of restitution may change after sentence is imposed. A sentencing judge may amend a restitution order more than 30 days after sentencing if the court states its reasons and conclusions as a matter of record. Commonwealth v. Dietrich, 601 Pa. 58, 970 A.2d 1131 (2009). See also 18 Pa.C.S. § 1106(c)(3).
When imposing restitution, the sentencing judge should consider whether the defendant has received notice of the intention to seek restitution prior to the hearing and whether the defendant intends to object to the imposition of restitution. The sentencing hearing may need to be continued as a result.
Paragraph (B)(7) requires that the sentencing order make clear whether any restitution is being imposed as a part of the sentence pursuant to 18 Pa.C.S. § 1106 or as a condition of probation pursuant to 42 Pa.C.S. § 9754. Unlike restitution imposed under § 1106 that is penal in nature, restitution imposed as a condition of probation is primarily aimed at rehabilitation. Sentences of probation give a trial court the flexibility to determine all the direct and indirect damages caused by a defendant. Commonwealth v. Harner, 533 Pa. 14, 617 A.2d 702 (1992); Commonwealth v. Hall, ______ Pa. ______ , 80 A.3d 1204 (2013). Because a term of probation may not exceed the maximum term for which the defendant could be confined, and a court cannot enforce a restitution sentence past the statutory maximum date, a court may not require that restitution imposed as a condition of probation be paid beyond the statutory maximum date. Commonwealth v. Karth, 994 A.2d 606 (Pa. Super. 2010). For this reason, paragraph (C) imposes the requirement that a hearing be held prior to the expiration of a defendant's probation to determine the status of the restitution payments and whether the conditions of probation have been violated.
Official Note: New Rule 704.1 adopted , 2014, effective , 2014.
Committee Explanatory Reports:
Report explaining proposed new Rule 705.1 concerning sentences of restitution published for comment at 44 Pa.B. 2371 (April 19, 2014).
REPORT
Proposed New Pa.Rs.Crim.P. 705.1, Proposed Amendments to Pa.Rs.Crim.P. 454, and Proposed Revisions to the Comments to Pa.Rs.Crim.P. 454 and 704
Sentences of Restitution Background
Recently, the Committee reviewed the February 2013 report of the Restitution in Pennsylvania Task Force. The Task Force had been convened by the Pennsylvania Office of the Victim Advocate to study ''solutions to increase the quality of restitution services at the state and county levels.'' The Task Force included representatives from a wide spectrum of agencies involved in the justice system. Two of the Task Force's recommendations are directed to the Rules of Criminal Procedure. One was to encourage ''AOPC and/or the Court Rules Committee to standardize a restitution order for use at sentencing/disposition'' and included suggested elements for such an order. The other recommendation was for the Committee to examine other jurisdictions ''to consider whether any rules should be amended or new rules adopted to improve the collection of restitution.''1
The Committee established a subcommittee to examine in depth what procedural rule changes might be recom-mended to standardize and clarify the manner in which restitution is awarded. The subcommittee reviewed the report of the Restitution in Pennsylvania Task Force as well as the statutes that provide for the award of restitution and the practice in this area in several other jurisdictions. Subsequently, the subcommittee recommended the proposed rule changes above and the Committee accepted these recommendations with minor changes. The proposed rule changes are now being published for public comment.
Discussion
The Committee concluded that it would be a good idea to have a general rule stating the requirement to order restitution as part of sentencing. The Committee considered it anomalous that Rule 706 addresses fines and costs but no rule mentions restitution. Too often restitution is an afterthought during sentencing. This has resulted in one of the problems that the Task Force identified—that, although under Pennsylvania law, a sentencing court must specify the amount of restitution at the time of sentencing and may not simply state that the amount of restitution will be determined by the probation office, this latter practice is regularly followed. In addition to highlighting the need to order restitution, the rule would also provide guidance to the court in the contents of the order.
This new rule would be numbered 705.1, designed to follow Rule 705 which provides specifics regarding sentences that include incarceration. The Committee believes it is more logical to follow this latter rule with one dealing with restitution.
The text of the proposed rule is a statement reminding the sentencing judge to impose restitution. It acknowledges that some cases may not have restitution to impose. Originally, the subcommittee considered including discussion of an award of fines and costs. However, the text of the rule and the Comment was directed primarily to restitution and it seemed to detract from the purpose of the rule to include detailed provisions for fines and costs.
The Committee also considered the proposal to include a list of elements that the judge should include in the sentencing order to identify the restitution award details and assist in its collection. Originally, this was contained in the Comment. It seemed that it would be more effective in the rule itself. However, a concern was expressed that by placing this in the rule itself, unwarranted challenges might be raised based on a technical failure to include all the listed elements. Ultimately, the Committee concluded that it should be contained in the rule text to ensure compliance.
One of the problems discussed was that the nature of a restitution sentence varies depending on how the sentence was imposed. If awarded as part of the sentence, under 18 Pa.C.S. § 1106, the award is punitive in nature while if it is added as a condition of probation, it is rehabilitative in nature. As a result, the extent to which the sentence can be enforced varies. It was decided that this issue should be described in the Comment and that the rule should require that the sentencing judge make clear in the sentencing order which of the two sentencing concepts were applicable to any restitution award. Therefore, this has been added to the list of items required to be in the sentencing order with a detailed explanation contained in the Comment.
Related to this, the rule provides that a hearing or review be held prior to the expiration of probation when there is outstanding restitution owed. This would enable the court to decide whether to hold the defendant in violation for failure to pay before the court loses jurisdiction by the completion of the probation.
There was discussion regarding procedures to challenge a restitution sentence but it was ultimately decided that any challenge would occur at the sentencing hearing. The Committee agreed that there should be some notice to the defendant prior to sentencing. However, the Committee also acknowledged that in the majority of cases there will not be a dispute as to restitution and did not want to create a burdensome notice requirement. Therefore, language would be included in the Comment that the judge should consider the notice provided to the defendant and the defendant's desire to challenge the restitution before it is awarded.
Another issue that the Committee discussed was a later modification of the restitution order. Currently, the Comment to Rule 704 contains one brief paragraph about restitution:
In all cases in which restitution is imposed, the sentencing judge must state on the record the amount of restitution, if determined at the time of sentencing, or the basis for determining an amount of restitution. See 18 Pa.C.S. § 1106 and 42 Pa.C.S. §§ 9721, 9728.This language suggested that the trial court had a fair amount of flexibility in later amending the restitution sentence. At first, this seemed inconsistent with some of the strict language of the statutes. However, the Committee examined the history of Rule 704 (then-Rule 1405) when the Comment was revised to specifically note that the sentencing judge has to set restitution at sentencing. In the Committee's Final Report at the time, 26 Pa.B. 13 (January 6, 1996), the Committee mentioned that this language represented a compromise to balance the statutory requirement that restitution be imposed at sentencing and the limited time limits in Rule 704 for imposition of sentencing which could create issues if the amount of restitution is not determined at the time of sentencing.
Additionally, case law suggests that there is some flexibility in this area. For example, Commonwealth v. Dietrich, 601 Pa. 58, 970 A.2d 1131 (2009), held that a court may not alter or amend a restitution order more than 30 days after the order was entered unless it states its reasons and conclusions as a matter of record for any changes to any previous order. Therefore, the proposed Comment to Rule 705.1 contains language reflecting the holding in Dietrich. Additionally, the above-mentioned paragraph regarding restitution would be deleted from the Rule 704 Comment since new Rule 705.1 is intended to specifically address restitution. A cross-reference to Rule 705.1 would be added to the Rule 704 Comment.
Another question raised was whether the proposal should include similar requirements for summary cases. The Committee agreed that it should and so paragraph (F) of Rule 454 (Trial in Summary Cases) would be amended to provide guidance as to what should be included in a restitution sentence similar to that which is provided for court cases in proposed new Rule 705.1. A cross-reference to this provision would be added to the Comment to Rule 455 (Trial in Defendant's Absence).
[Pa.B. Doc. No. 14-812. Filed for public inspection April 18, 2014, 9:00 a.m.] _______
1 Restitution in Pennsylvania Task Force Final Report, http://www.center-school.org/Restitution/index.html, pgs 30 and 42.
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