THE COURTS

Title 234—RULES OF CRIMINAL PROCEDURE

[ 234 PA. CODE CH. 4 ]

Order Amending Rule 462 and Revising the Comment to Rule 460 of the Rules of Criminal Procedure; No. 498 Criminal Procedural Rules Doc.

[48 Pa.B. 224]
[Saturday, January 13, 2018]

Order

Per Curiam

 And Now, this 29th day of December, 2017, upon the recommendation of the Criminal Procedural Rules Committee; the proposal having been published before adoption at 47 Pa.B. 3959 (July 22, 2017), 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 Pennsylvania Rule of Criminal Procedure 462 is amended and the Comment to Pennsylvania Rule of Criminal Procedure 460 is revised, in the following form.

 This Order shall be processed in accordance with Pa.R.J.A. No. 103(b), and shall be effective April 1, 2018.

Annex A

TITLE 234. RULES OF CRIMINAL PROCEDURE

CHAPTER 4. PROCEDURES IN SUMMARY CASES

PART F. Procedures in Summary Cases for Appealing to Court of Common Pleas for Trial
De Novo

Rule 460. Notice of Appeal.

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Comment

 This rule is derived from former Rule 86(A), (D), (E), (F), (H), and (I).

 This rule applies to appeals in all summary proceedings, including appeals from prosecutions for violations of municipal ordinances [which] that provide for the possibility of imprisonment, and default hearings.

 This rule was amended in 2000 to make it clear in a summary criminal case that the defendant may file an appeal for a trial de novo following the entry of a guilty plea.

 Appeals from contempt adjudications are governed by Rule 141.

 The narrow holding in City of Easton v. Marra, 326 A.2d 637 (Pa. Super. 1974), is not in conflict, since the record before the court did not indicate that imprisonment was possible under the ordinance there in question.

 See Rule 461 for the procedures for executing a sentence of imprisonment when there is a stay.

 ''Entry,'' as used in this rule, means the date on which the issuing authority enters or records the guilty plea, the conviction, or other order in the [district justice] magisterial district judge computer system.

 When the only issues on appeal arise solely from an issuing authority's determination after a default hearing pursuant to Rule 456, the matter must be heard de novo by the appropriate judge of the court of common pleas and only those issues arising from the default hearing are to be considered. It is not intended to reopen other issues not properly preserved for appeal. A determination after a default hearing would be a final order for purposes of these rules.

 Paragraph (D) was amended in 2003 to align this rule with Rule 401(A), which permits the electronic transmission of parking violation information in lieu of filing a citation. Therefore, in electronically transmitted parking violation cases only, because there is no original citation, the issuing authority would file the summons with the clerk of courts pursuant to paragraph (D)(3).

 Rule 462(D) provides for the dismissal of an appeal when the defendant fails to appear for the trial de novo.

 See Rule 462(F) regarding the retention of a case at the court of common pleas when a petition to file an appeal nunc pro tunc has been denied.

 Certiorari was abolished by the Criminal Rules in 1973 pursuant to Article V Schedule Section 26 of the Constitution of Pennsylvania, which specifically empowers the Supreme Court of Pennsylvania to do so by rule. This Schedule section is still viable, and the substance of this Schedule section has also been included in the Judicial Code, 42 Pa.C.S. § 934. The abolition of certiorari continues with this rule.

 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; amended March 3, 2000, effective July 1, 2000; 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 February 6, 2003, effective July 1, 2003; Comment revised February 28, 2003, effective July 1, 2003; Comment revised December 29, 2017, effective April 1, 2018.

 Committee Explanatory Reports:

*  *  *  *  *

 Final Report explaining the February 28, 2003 Comment revision cross-referencing Rule 461 published with the Court's Order at 33 Pa.B. 1326 (March 15, 2003).

 Final Report explaining the December 29, 2017 Comment revision cross-referencing Rule 462(F) published with the Court's Order at 48 Pa.B. 226 (January 13, 2018).

Rule 462. Trial De Novo.

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 (E) 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) If the defendant has petitioned the trial judge to permit the taking of an appeal nunc pro tunc and this petition is denied, 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, or, in cases in which the defendant may be sentenced to intermediate punishment, the trial judge may delay the proceedings pending confirmation of the defendant's eligibility for intermediate punishment.

 [(G)] (H) At the time of sentencing, the trial judge shall:

*  *  *  *  *

 (4) issue a written order imposing sentence, signed by the trial judge. The order shall include the information specified in paragraphs [(G)(1) through (G)(3)] (H)(1) through (H)(3), and a copy of the order shall be given to the defendant.

 [(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).

 This rule was amended in 2000 to make it clear in a summary criminal case that the defendant may file an appeal for a trial de novo following the entry of a guilty plea.

 ''Entry,'' as used in paragraph (A) of this rule, means the date on which the issuing authority enters or records the guilty plea, the conviction, or other order in the magisterial district judge computer system.

 The procedures for conducting the trial de novo in the court of common pleas set forth in paragraphs (B), [(F), and] (G), and (H) are comparable to the summary case trial procedures in Rule 454 (Trial in Summary Cases).

 Pursuant to paragraph (B), the decision whether to appear and assume control of the prosecution of the trial de novo is solely within the discretion of the attorney for the Commonwealth. When no attorney appears at the trial de novo on behalf of the Commonwealth or a municipality, the trial judge may ask questions of any witness who testifies, and the affiant may request the trial judge to ask specific questions. In the appropriate circumstances, the trial judge also may permit the affiant to question Commonwealth witnesses, cross-examine defense witnesses, and make recommendations about the case to the trial judge.

 The provisions of paragraph (C) 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, 652 A.2d 873 (Pa. Super. 1995).

 Paragraph (D) 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.

 New paragraph (F) was added in 2017 to clarify that in a case in which a defendant seeks to file an appeal nunc pro tunc, and the common pleas judge denies that petition, the case will remain at the court of common pleas. This is consistent with the long-standing policy under the rules that once a case has moved from the minor judiciary to the court of common pleas, the case remains at common pleas.

 Paragraph [(F)] (G) was amended in 2008 to permit a trial judge to delay imposition of sentence in order to investigate a defendant's eligibility for 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 he or she meets certain eligibility requirements, such as undergoing a drug and alcohol assessment. Potentially this information may not be available to the trial judge following a trial de novo at the time of sentencing.

 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).

 Certain costs are mandatory and must be imposed. See, e.g., Section 1101 of the Crime Victims Act, 18 P.S. § 11.1101.

 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.

 For the procedures concerning sentences that include restitution in court cases, see Rule 705.1.

 For the procedures for appeals from the Philadelphia Municipal Court Traffic Division, see Rule 1037.

 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 March 3, 2000, effective July 1, 2000; 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 December 16, 2008, effective February 1, 2009; Comment revised October 16, 2009, effective February 1, 2010; Comment revised May 7, 2014, effective immediately; amended March 9, 2016, effective July 1, 2016; amended December 29, 2017, effective April 1, 2018.

 Committee Explanatory Reports:

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 Final Report explaining the March 9, 2016 amendments to paragraph (G) concerning required elements of the sentence published with the Court's Order at 46 Pa.B. 1540 (March 26, 2016).

 Final Report explaining the December 29, 2017 amendments regarding appeals nunc pro tunc published with the Court's Order at 48 Pa.B. 226 (January 13, 2018).

FINAL REPORT¹

Amendment of Pa.R.Crim.P. 462
Revision of the Comment to Pa.R.Crim.P. 460

Summary Appeal Remand

 On December 29, 2017, effective April 1, 2018, upon the recommendation of the Criminal Procedural Rules Committee, the Court amended Rule 462 (Trial De Novo) and revised the Comment to Rule 460 (Notice of Appeal) to clarify that when a petition to file a summary appeal nunc pro tunc is denied at the court of common pleas, the case remains at the common pleas level, in keeping with the Court's long-standing policy that once a case moves from a lower court to the court of common pleas, the case should remain at common pleas.

 The Committee recently examined an issue that has come up regarding the ''no-remand'' policy in summary cases. A defendant is convicted of a summary offense before a magisterial district judge (MDJ) and then files a petition to be allowed to file a summary appeal nunc pro tunc. The common pleas court denies the petition and orders that the case be ''remanded'' to the MDJ office. The common pleas judge in these situations has taken the position that, because the common pleas court has never addressed the actual appeal, the case is not subject to the ''no remand'' provisions of Rule 462(H).

 Under Rule 460(D), when an appeal is filed in a summary case, the case and associated documents are transferred from the MDJ to the clerk of courts and then adjudicated by a common pleas judge. Paragraph (H) of Rule 462 states:

(H) 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.

 This provision is one part of the Court's long-standing ''no remands'' policy that provides that once a case ''goes up'' from the minor judiciary to the court of common pleas, it should stay at common pleas. This policy has been articulated in rule changes that were adopted in 2003 (clarifying when an appeal for a trial de novo in a summary case or a contempt adjudication is taken, the case remains in the court of common pleas for the execution of any sentence and collection of any fines and restitution, and collection of any costs), in 2006 (clarifying the procedures for handling cases in which a summary offense is joined with misdemeanor, felony, or murder charges both when the case is before the issuing authority and after the case is held for court), and in 2010 (addressing three areas in which remands from the court of common pleas to the issuing authority still are occurring despite the Court' s policy that prohibits such remands: (1) the practice of remanding cases for a preliminary hearing where a defendant who was designated as ''NEI'' is apprehended; (2) use of remands as remedies for a waived preliminary hearing; and (3) the practice of remanding cases without court involvement when the district attorney withdraws felony/misdemeanor prior to the filing of the information).²

 Additionally, Rule 462 contains paragraph (D), which provides that the case is retained at common pleas if a defendant fails to appear for the trial de novo and the MDJ sentence is entered at common pleas, and paragraph (E), which provides similarly when the defendant withdraws the appeal. As noted above, paragraph (H) provides that when a sentence has been entered by the common pleas judge, it remains at common pleas for execution of sentence. The rationale for this policy is to prevent cases from ''bouncing back and forth'' between the MDJ and common pleas courts. This could result in confusion and the potential repeated transfer of court records and case-associated money.

 None of these amendments addressed the situation of the dismissal of a late-filed summary appeal. The Committee examined the above history of the no-remand policy and concluded that the underlying rationale of the policy would be applicable to the situation at issue. Since the common pleas court must make a decision on the petition, the case is transferred from the MDJ to the common pleas court. The same concerns about transferring the case record and money are present here as in other summary appeal situations. Additionally, the Committee noted the instances mentioned above where a case in which a full trial de novo has not been held, such as when a defendant fails to appear for the trial, still is retained at the common pleas court.

 Therefore, a new paragraph (F) has been added to Rule 462 that would state specifically that a late-filed appeal adjudicated at common pleas court would remain at common pleas court. Additionally, a cross-reference to this new provision has been added to the Comment to Rule 460 since that rule provides the procedures for filing appeals, including time limitations.

[Pa.B. Doc. No. 18-49. Filed for public inspection January 12, 2018, 9:00 a.m.]

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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.

²  See 33 Pa.B. 1324 (March 15, 2003), 36 Pa.B. 1385 (March 25, 2006), and 40 Pa.B. 1068 (February 27, 2010).

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