THE COURTS
[234 PA. CODE CH. 1400]
Adoption of Pa.R.Crim.P. 1411; Amendment of Pa.R.Crim.P. 1410; Revision of Comment to Pa.R.Crim.P. 1409; No. 226; Doc. No. 2
[27 Pa.B. 4549] The Criminal Procedural Rules Committee has prepared a Final Report explaining the Supreme Court's adoption of Pa.R.Crim.P. 1411 (Procedures for Commonwealth Challenges to Sentence; Sentencing Appeals), amendment of Rule 1410 (Post-Sentence Motion; Appeal), and revision of the Comment to Pa.R.Crim.P. 1409 (Violation of Probation, Intermediate Punishment, or Parole: Hearing and Disposition) on August 22, 1997, effective January 1, 1998. The changes provide procedures for Commonwealth sentencing challenges, and make it clear that judges may not vacate sentence in order to extend the time for consideration or reconsideration of a post-sentence motion or a Commonwealth motion to modify sentence. The Final Report follows the Court's Order.
Order Per Curiam:
And Now, this 22nd day of August, 1997, upon the recommendation of the Criminal Procedural Rules Committee, the proposal having been published in the Pennsylvania Bulletin at 26 Pa.B. 1343 (March 30, 1996), and in the Atlantic Reporter (Second Series Advance Sheets, Vol. 671-672), it is Ordered:
(1) Rule of Criminal Procedure 1411 is hereby adopted,
(2) Rule of Criminal Procedure 1410 is amended, and
(3) The Comment to Rule of Criminal Procedure 1409 is approved,
in the following form.
This Order shall be processed in accordance with Pa.R.J.A. 103(b), and shall be effective January 1, 1998.
Annex A
TITLE 234. RULES OF CRIMINAL PROCEDURE
PART I. GENERAL
CHAPTER 1400. SENTENCING Rule 1409. Violation of Probation, Intermediate Punishment, or Parole: Hearing and Disposition.
* * * * * Official Note: Adopted July 23, 1973, effective 90 days hence; amended May 22, 1978, effective as to cases in which sentence is imposed on or after July 1, 1978; Comment revised November 1, 1991, effective January 1, 1992; amended September 26, 1996, effective January 1, 1997, 26 Pa.B. 4898; Comment revised August 22, 1997, effective January 1, 1998.
Comment * * * * * This rule was amended in 1996 to include sentences of intermediate punishment. See 42 Pa.C.S. §§ 9763 and 9773.
Rules 1405, [and] 1410, and 1411 do not apply to revocation cases.
* * * * * Committee Explanatory Reports: Report explaining the January 1, 1992 amendments published at 20 Pa.B. 1697 (March 24, 1990), 21 Pa.B. 2246 (May 11, 1990); Supplemental Report published with the Court's Order at 21 Pa.B. 5329 (November 16, 1991).
Final Report explaining the September 26, 1996 amendments published with the Court's Order at 26 Pa.B. 4900 (October 12, 1996).
Final Report explaining the August 22, 1997 Comment revision which cross-references Rule 1411 published with the Court's Order at 27 Pa.B. 4553 (September 6, 1997).
Rule 1410. Post-Sentence Procedures; Appeal.
A. Timing.
* * * * * (3) If the defendant does not file a post-sentence motion, the defendant's notice of appeal shall be filed within 30 days of imposition of sentence, except as provided in subsection A(4).
(4) If the Commonwealth files a motion to modify sentence pursuant to Rule 1411, the defendant's notice of appeal shall be filed within 30 days of the entry of the order disposing of the Commonwealth's motion.
B. Optional Post-Sentence Motion.
* * * * * (3) Time Limits for Decision on Motion.
The judge shall not vacate sentence pending decision on the post-sentence motion, but shall decide the motion as provided in this subsection.
* * * * * Official Note: Previous Rule 1410, adopted May 22, 1978, effective as to cases in which sentence is imposed on or after July 1, 1978; 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 1410. Present Rule 1410 adopted March 22, 1993 and amended December 17, 1993, effective as to cases in which the determination of guilt occurs on or after January 1, 1994; amended September 13, 1995, effective January 1, 1996. The January 1, 1996 effective date extended to April 1, 1996; the April 1, 1996 effective date extended to July 1, 1996. Comment revised September 26, 1996, effective January 1, 1997; amended August 22, 1997, effective January 1, 1998.
Comment * * * * * Timing
* * * * * When a defendant files a timely post-sentence motion, the 30-day period for the defendant's direct appeal on all matters in that case--including all issues related to any informations and any charges consolidated against the defendant for trial--is triggered by the trial judge's decision on the post-sentence motion or the denial of the motion by operation of law. The appeal period runs from the entry of the order. As to the date of entry of orders, see Pa.R.A.P. 108. No direct appeal may be taken by a defendant while his or her post-sentence motion is pending. See subsection A(2).
If no timely post-sentence motion is filed, the defendant's appeal period runs from the date sentence is imposed. See subsection A(3). Under subsection A(4), however, when the defendant has not filed a post-sentence motion but the Commonwealth files a motion to modify sentence under Rule 1411, it is the entry of the order disposing of the Commonwealth's motion that commences the 30-day period during which the defendant's notice of appeal must be filed. See Rule 1411(B)(2)(b).
All references to appeals in this rule relate to the defendant's right to appeal. The rule does not address or alter the Commonwealth's right to appeal. For Commonwealth challenges to sentences, see Rule 1411.
Optional Post-Sentence Motion
* * * * * In those cases in which [where] a petitioner under the Post Conviction Relief Act has been granted leave to file a post-sentence motion or to appeal nunc pro tunc, the filing of the post-sentence motion or the notice of appeal must comply with the timing requirements contained in Section A of this rule. See the Post Conviction Relief Act, 42 Pa.C.S. §§ 9541 et seq.
Briefs; Transcripts; Arguments
* * * * * There is no requirement that oral argument be heard on every post-sentence motion. [Where] When argument is to be heard, however, the judge should determine whether the post-sentence motion argument must be argued before the judge alone, or before a panel sitting en banc. It is recommended that, except in extraordinary circumstances, the post-sentence motion be heard by the judge alone. The judge may make any rulings that could be made by a court en banc. Commonwealth v. Norris, 389 A.2d 668 (Pa. Super. 1978). On the powers of courts en banc, see Commonwealth v. Bonser, 258 A.2d 675 (Pa. Super. 1969). For cases in which there has been a change of venue, see Rule 312.
When oral argument is heard on the post-sentence motion, the defendant need not be present.
Disposition
Under subsection B(3), once the defendant makes a timely written post-sentence motion, the judge retains jurisdiction for the duration of the disposition period. The judge may not vacate the order imposing sentence pending decision on the post-sentence motion. This is so whether or not the Commonwealth files a motion to modify sentence. See Rule 1411. [It is not necessary for the judge to vacate the sentence imposed.]
* * * * * If the trial judge decides the motion within the time limits of this rule, the judge may reconsider that decision, but [grants reconsideration on the post-sentence motion pursuant to 42 Pa.C.S. § 5505 or Pa.R.A.P. 1701,] the judge may not vacate the sentence pending reconsideration. Rule 1410B(3). [the] The reconsideration period may not be used to extend the timing requirements set forth in section B(3) for decision on the post-sentence motion: the time limits imposed by subsections B(3)(a) and B(3)(b) continue to run from the date the post-sentence motion was originally filed. The trial judge's reconsideration must therefore be resolved within the 120-day decision period of subsection B(3)(a) or the 30-day extension period of subsection B(3)(b), whichever applies. If a decision on the reconsideration is not reached within the appropriate period, the post-sentence motion, including any issues raised for reconsideration, will be denied pursuant to subsection B(3)(c).
* * * * * Miscellaneous
* * * * * Issues [raised] properly preserved at the sentencing proceeding need not, but may[,] be raised again in a motion to modify sentence in order to preserve them for appeal. In deciding whether to move to modify sentence, counsel [should] must carefully consider whether the record created at the sentencing proceeding is adequate for appellate review of the issues, or the issues may be waived. See Commonwealth v. Jarvis, 663 A.2d 790 (Pa. Super. 1995). See also Rule 1405.C(4). As a general rule, the motion to modify sentence under subsection B(1)(a)(v) gives the sentencing judge the earliest opportunity to modify the sentence. This procedure does not affect the court's inherent powers to correct an illegal sentence or obvious and patent mistakes in its orders at any time before appeal or upon remand by the appellate court. See, e.g., Commonwealth v. Jones, 554 A.2d 50 (Pa. 1989) (sentencing court can, sua sponte, correct an illegal sentence even after the defendant has begun serving the original sentence) and Commonwealth v. Cole, 263 A.2d 339 (Pa. 1970) (inherent power of the court to correct obvious and patent mistakes).
Once a sentence has been modified or reimposed pursuant to a motion to modify sentence under subsection B(1)(a)(v) or Rule 1411, [however,] a party wishing to challenge the decision on the motion does not have to file an additional motion to modify sentence in order to preserve an [the] [issues] issue for appeal, as long as the issue was properly preserved at the time sentence was modified or reimposed.
Commonwealth challenges to sentences are governed by Rule 1411. If the defendant files a post-sentence motion, the time limits for decision on the defendant's motion govern the time limits for disposition of the Commonwealth motion to modify sentence, regardless of which motion is filed first. See Rule 1411(C)(1). If the defendant elects to file an appeal and the Commonwealth files a motion to modify sentence, decision on the Commonwealth's motion triggers the defendant's 30-day appeal period. See Rule 1410A(4).
Given that the Commonwealth has 10 days to file a motion to modify sentence under Rule 1411(B)(1), it is possible that the defendant might elect to file a notice of appeal under paragraph Rule 1410A(3) followed by the Commonwealth's filing a timely motion to modify sentence. When this occurs, the defendant's notice of appeal is rendered premature, because the entry of the order disposing of the Commonwealth's motion to modify sentence then becomes the triggering device for the defendant's notice of appeal. In this situation, counsel for the defendant should be aware that Pa.R.A.P. 905(a) addresses this problem. In response to an extensive history of appeals which were quashed because of the premature filing of the notice of appeal, the last sentence of Pa.R.A.P. 905(a) was drafted to create a legal fiction which treats a premature notice of appeal as filed after the entry of the appealable order. For a discussion of this provision, see Darlington, McKeon, Schuckers, and Brown, Pennsylvania Appellate Practice, 2d., § 905.3.
* * * * * Committee Explanatory Reports:
Final Report explaining the provisions of the new rule published with the Court's Order at 23 Pa.B. 1699 (April 10, 1993). Report explaining the December 17, 1993 amendments published with the Court's Order at 24 Pa.B. 334 (January 15, 1994).
Final Report explaining the September 13, 1995 amendments concerning bail published with the Court's Order at 25 Pa.B. 4116 (September 30, 1995).
Final Report explaining the September 26, 1996 Comment revision on Rule 1409 procedures published at 26 Pa.B. 4900 (October 12, 1996).
Final Report explaining the August 22, 1997 amendments to subsections A(4) and B(3) published with the Court's Order at 27 Pa.B. 4553 (September 6, 1997).
(Editor's Note: The following rule is new. It is printed in regular type to enhance readability.)
Rule 1411. Procedures for Commonwealth Challenges to Sentence; Sentencing Appeals.
(A) Commonwealth Challenges to Sentence
(1) The Commonwealth may challenge a sentence by filing a motion to modify sentence, by filing an appeal on a preserved issue, or by filing a motion to modify sentence followed by an appeal.
(2) Sentencing issues raised by the Commonwealth at the sentencing proceeding shall be deemed preserved for appeal whether or not the Commonwealth elects to file a motion to modify sentence on those issues.
(B) Timing
(1) Motion for Modification of Sentence. A Commonwealth motion for modification of sentence shall be filed no later than 10 days after imposition of sentence.
(2) Appeal of Sentence.
(a) Appeal Directly from Order Imposing Sentence.
(i) If the defendant has filed a post-sentence motion, and the Commonwealth elects to challenge the sentence by filing an appeal directly from the order imposing sentence, notice of the Commonwealth's appeal shall be filed within 30 days of the entry of the order disposing of the defendant's post-sentence motion pursuant to Rule 1410B(3).
(ii) If the defendant has not filed a post-sentence motion, the Commonwealth's notice of appeal shall be filed within 30 days of the entry of the order imposing sentence.
(b) Appeal following Disposition of Commonwealth Motion to Modify Sentence.
(i) If the defendant has filed a post-sentence motion, the Commonwealth's notice of appeal shall be filed within 30 days of the entry of the orders disposing of the Commonwealth's and the defendant's motions pursuant to subsection (C)(1).
(ii) If the defendant has not filed a post-sentence motion, the Commonwealth's notice of appeal shall be filed within 30 days of the entry of the order disposing of the Commonwealth's motion pursuant to subsection (C)(2).
(C) Trial Court Action; Disposition
If the attorney for the Commonwealth files a timely motion for modification of sentence pursuant to subsection (A)(1), the judge shall dispose of the motion as provided in this section.
(1) If the defendant has filed a post-sentence motion, the judge shall not vacate sentence but shall decide the Commonwealth's motion and the defendant's post-sentence motion simultaneously. The Rule 1410B(3) time limits for deciding the defendant's post-sentence motion, including the automatic denial provisions, shall apply to the disposition of the Commonwealth's motion. The starting date for disposition of both motions shall be the date on which the defendant filed the post-sentence motion.
(2) If the defendant has not filed a post-sentence motion, the judge shall not vacate sentence but shall decide the Commonwealth's motion within 120 days of the filing of the motion. If the judge fails to decide the Commonwealth's motion within 120 days, the motion shall be deemed denied by operation of law.
(D) Entry of Order by Clerk of Courts
(1) When the Commonwealth's motion for modification of sentence is denied by operation of law, the clerk of courts shall forthwith:
(a) enter an order on behalf of the court denying the Commonwealth's motion for modification of sentence by operation of law, and
(b) furnish a copy of the order, by mail or personal delivery, to the attorney for the Commonwealth, the defendant, and defense counsel.
(2) An order entered by the clerk of courts pursuant to this section shall not be subject to reconsideration.
Official Note: Adopted August 22, 1997, effective January 1, 1998.
Comment: New Rule 1411 was promulgated to clarify the procedures for Commonwealth challenges to sentences in light of the post-sentence procedures adopted in 1993. See Pa.R.Crim.P. 1410. This rule does not address any other type of Commonwealth challenge or Commonwealth appeals generally.
Historically, the Commonwealth has been required to raise a discretionary sentencing issue at the sentencing hearing or in a post-trial motion to modify sentence in order to preserve the issue for appellate review. Commonwealth v. Eyster, 585 A.2d 1027 (Pa. Super. 1991) (en banc), appeal denied 602 A.2d 857 (Pa. 1992). Challenges to the legality of a sentence, however, are not waived if the Commonwealth fails to timely file a motion for modification. See Commonwealth v. Smith, 598 A.2d 268 (Pa. 1991).
Under new Rule 1411, the Commonwealth's motion for modification of sentence is optional, as long as any discretionary sentencing issue is properly preserved at the time sentence was imposed. Before forgoing trial court review and proceeding with a direct appeal, the attorney for the Commonwealth must therefore be sure that the record created at the sentencing proceeding is adequate for appellate review of the issue, or the issue may be waived. See Commonwealth v. Jarvis, 663 A.2d 790 (Pa. Super. 1995), at n.1.
As a general rule, a motion for modification of sentence gives the sentencing judge the earliest opportunity to modify the sentence. This procedure does not affect the court's inherent powers to correct an illegal sentence or obvious and patent mistakes in its orders at any time before appeal or upon remand by the appellate court. See, e.g., Commonwealth v. Jones, 554 A.2d 50 (Pa. 1989) (sentencing court can, sua sponte, correct an illegal sentence even after the defendant has begun serving the original sentence) and Commonwealth v. Cole, 263 A.2d 339 (Pa. 1970) (inherent power of the court to correct obvious and patent mistakes).
Once a sentence has been modified or reimposed pursuant to a motion to modify sentence under this rule or Rule 1410B(1)(a)(v), a party wishing to challenge the decision on the motion does not have to file an additional motion to modify sentence in order to preserve an issue for appeal, as long as the issue was properly preserved at the time the sentence was modified or reimposed.
Trial Court Action
Section (C) sets forth the procedures for trial court action on the Commonwealth's motion for modification. Key to the timing of the judge's decision on the Commonwealth's motion is whether the defendant files a post-sentence motion.
Rule 1410 Motion Filed
Under subsection (C)(1), if the defendant has filed a post-sentence motion, the judge is not permitted to vacate sentence and must decide the defendant's post-sentence motion and the Commonwealth's motion simultaneously. The date on which the defendant's post-sentence motion is filed, see Rule 1410A(1), triggers the time limit within which the judge must also dispose of the Commonwealth's motion, regardless of which motion is filed first. If the judge fails to decide the Commonwealth's motion within this time limit, the motion is deemed denied by operation of law. See Rule 1410B(3).
Rule 1410 Motion Not Filed
When the defendant has not filed a post-sentence motion, the disposition of the Commonwealth's motion is governed by subsection (C)(2). The judge may not vacate sentence, but has 120 days to decide the Commonwealth's motion or the motion is deemed denied by operation of law. If the judge decides the motion within the 120-day limit and then agrees to reconsider, the reconsideration must be resolved within the original 120-day time limit. The judge may not vacate sentence in order to reconsider the motion or otherwise use the reconsideration period to extend the 120-day time limit. It follows that even if the defendant has filed a notice of appeal, the procedural exceptions provided in Pa.R.A.P. 1701(b)(3) do not apply to challenges to sentences.
See also the Rule 1410 Comment under ''Disposition.''
Entry of Order by Clerk of Courts
Under subsection (D)(1), when a Commonwealth motion to modify sentence has been denied by operation of law, the clerk of courts must enter an order on behalf of the court and furnish copies to the attorney for the Commonwealth, the defendant, and defense counsel. The clerk of courts' order is ministerial and not subject to reconsideration. See subsection (D)(2). The clerk of courts must also comply with the notice and docketing requirements of Rule 9024.
Appeal of Sentence
Subsection (B)(2) contains the timing requirements for Commonwealth notices of appeal.
No Commonwealth Motion to Modify Sentence Filed
Subsection (B)(2)(a) covers the time for filing a notice of appeal when the Commonwealth has elected not to file a motion to modify sentence with the trial judge. The time for filing the Commonwealth's notice of appeal under this subsection depends on whether the defendant has filed a post-sentence motion. When the defendant files a post-sentence motion, subsection (B)(2)(a)(i) provides that the entry of the order disposing of the defendant's post-sentence motion triggers the 30-day period during which the Commonwealth's notice of appeal must be filed. If no post-sentence motion is filed, it is the entry of the order imposing sentence that triggers the Commonwealth's 30-day appeal period. See Rule 1411(B)(2)(a)(ii).
Given that a defendant has 10 days to file a post-sentence motion under Rule 1410A(1), it is possible that the Commonwealth might file a notice of appeal under subsection (B)(2)(a)(ii) followed by the defendant's filing a timely post-sentence motion. When this occurs, the Commonwealth's notice of appeal is rendered premature, because it is the entry of the order disposing of the defendant's post-sentence motion that becomes the triggering device for the Commonwealth's notice of appeal. In this situation, counsel for the Commonwealth should be aware that Pa.R.A.P. 905(a) addresses this problem. In response to an extensive history of appeals which were quashed because of the premature filing of the notice of appeal, the last sentence of Pa.R.A.P. 905(a) was drafted to create a legal fiction which treats a premature notice of appeal as filed after the entry of the appealable order. For a discussion of this provision, see Darlington, McKeon, Schuckers, and Brown, Pennsylvania Appellate Practice, 2d., § 905.3.
Commonwealth Motion to Modify Sentence Filed
Subsection (B)(2)(b) covers the time for filing the notice of appeal when the Commonwealth has elected to file a motion to modify sentence with the trial judge. As in subsection (B)(2)(a), the time for notice depends on whether the defendant files a post-sentence motion. If the defendant has filed a post-sentence motion, the disposition of the Commonwealth's and the defendant's motion is simultaneous. See Rule 1411(C)(1). If the defendant does not file a post-sentence motion, the 30-day appeal period begins to run from the entry of the order disposing of the Commonwealth's motion pursuant to the time limit of subsection (C)(2).
Committee Explanatory Reports:
Final Report explaining the new rule published with the Court's Order at 27 Pa.B. 4553 (September 6, 1997).
FINAL REPORT1
Commonwealth Challenges to Sentences; Preservation of Sentencing Issues; Vacation of Sentence On August 22, 1997, upon the recommendation of the Criminal Rules Committee,2 the Supreme Court of Pennsylvania adopted Pa.R.Crim.P. 1411 (Procedures for Commonwealth Challenges to Sentence; Sentencing Appeals), amended Rule 1410 (Post-Sentence Motion; Appeal), and approved a revision to the Comment to Pa.R.Crim.P. 1409 (Violation of Probation, Intermediate Punishment, or Parole: Hearing and Disposition), effective January 1, 1998.3 The changes provide procedures for Commonwealth sentencing challenges and make it clear that judges may not vacate sentence in order to extend the time for consideration or reconsideration of a post-sentence motion or a Commonwealth motion to modify sentence.
A. Overview
When the Court adopted present Rule 1410 (Post-Sentence Motion; Appeals) in 1993, the Court rescinded former Rule 1410 (Motion to Modify Sentence), a rule which historically applied to both the Commonwealth and defendants. Present Rule 1410, however, does not address Commonwealth sentencing challenges or the Common-wealth's right to appeal. See the ''Timing'' section of the Rule 1410 Comment. In short, since 1994, the Rules of Criminal Procedure have been silent on what procedures the Commonwealth should follow to challenge a sentence, and over time, the Committee has received numerous inquiries from judges and prosecutors asking whether the time limits of present Rule 1410 apply to Commonwealth sentencing challenges.
A separate but related problem brought to our attention was that some judges appeared to be unaware that the absolute time limits for disposition of the post-sentence motion under Rule 1410 may not be extended by granting reconsideration pursuant to Pa.R.A.P. 1701(b)(3) or vacating sentence by any other means. See the ''Disposition'' section of the Rule 1410 Comment.
To address these two problematic areas, new Rule 1411 provides procedures for Commonwealth sentencing challenges, with correlative amendments to Rule 1410, and both Rules 1410 and 1411 expressly prohibit a judge from vacating sentence during the rule's dispositional period.
B. Summary of Changes
1. New Rule 1411 (Procedures for Commonwealth Challenges to Sentence; Sentencing Appeals)
New Rule 1411 provides detailed procedures for Commonwealth sentencing challenges, particularly as to the timing of Commonwealth appeals of sentencing issues. Rule 1411 makes it clear that, as to sentencing challenges, the Commonwealth has the same options that the defendant does under present Rule 1410, see Commonwealth v. Jarvis, 663 A.2d 790 (Pa. Super. 1995), and sets forth the Commonwealth's time for appeal relative to whether the defendant files a post-sentence motion. The rule sets specific time limits for the disposition of the Commonwealth's motion to modify sentence, limits which must be met or the Commonwealth's motion will be denied by operation of law. The judge may not vacate sentence pending disposition or pending reconsideration of that disposition.
2. Amendments to Rule 1410 (Post-Sentence Motion; Appeals)
In addition to clarifying amendments to Section A, Timing, necessitated by the interplay between new Rule 1411 and Rule 1410, the amendments to Rule 1410 make it clear that the judge may not vacate sentence pending disposition of the post-sentence motion or pending reconsideration of that disposition. See Rule 1410B(3).
The Comment to Rule 1410 has been revised to address all of the changes discussed above. In addition, the ''Miscellaneous'' section of the Rule 1410 Comment has been revised to make it clear that in order to preserve sentencing issues for appeal, they must be raised with the sentencing judge either at the time of sentencing, or in a post-sentence motion. See Commonwealth v. Jarvis, 663 A.2d 790 (Pa. Super. 1995).
3. Comment Revision to Rule 1409(Violation of Probation, Intermediate Punishment, or Parole: Hearing and Disposition)
Rule 1409 was amended in 1996 to provide separate sentencing procedures for revocation proceedings. We have added a cross-reference to new Rule 1411 in the Comment to make it clear that Rule 1411 does not apply to revocation proceedings.
4. Relationship of Criminal Rule Changes to Revision of Note to Pa.R.A.P. 1701(b)(3)
The Note to Rule of Appellate Procedure 1701 contained an out-of-date cross-reference to former Rule 1410. At the Committee's request, the Appellate Court Rules Committee recommended to the Court that this portion of the Note be deleted and a new paragraph added to explain that the procedures permitted by Pa.R.A.P. 1701(b)(3) do not apply to post-trial criminal practice under Rules 1410 and 1411: a judge may not vacate sentence or ''grant reconsideration'' in order to extend the absolute time limits of the post-sentence procedures governed by these two rules.
C. Correspondence Received in Response to Publication of the Proposal
The Committee received several comments in response to the proposal. After review, we concluded that no modification of the proposal, as published, was warranted. Subsequent to our review of the comments received in response to publication, the Court directed that new Rule 1411(A)(1) be revised to make it clearer that when the Commonwealth chooses not to file a motion to modify sentence but only to appeal a sentencing issue, the issue must be preserved at the time of sentencing.
D. Discussion
NOTE: Section D departs from the Committee's traditional format for the discussion of rule changes. The changes are discussed below in individual annotations, which appear as separate paragraphs within the rules, in bold and italics.
1. New Rule 1411. Procedures for Commonwealth Challenges to Sentence; Sentencing Appeals.
(A) Commonwealth Challenges to Sentence
Because there was considerable confusion among prosecutors and judges concerning the applicability of Rule 1410 to Commonwealth sentencing challenges, the Committee agreed that there should be a separate rule, and that the new rule should make it clear that the Commonwealth has the same options as to sentencing challenges that the defendant does, options analyzed at length in the Comment to Rule 1411 and in the ''Miscellaneous'' section of the Comment to Rule 1410.
(1) The Commonwealth may challenge a sentence by filing a motion to modify sentence, by filing an appeal on a preserved issue, or by filing a motion to modify sentence followed by an appeal.
(2) Sentencing issues raised by the Commonwealth at the sentencing proceeding shall be deemed preserved for appeal whether or not the Commonwealth elects to file a motion to modify sentence on those issues.
(B) Timing
(1) Motion for Modification of Sentence. A Commonwealth motion for modification of sentence shall be filed no later than 10 days after imposition of sentence.
(2) Appeal of Sentence.
(a) Appeal Directly from Order Imposing Sentence.
Subsection (B)(2)(a) applies when the Commonwealth has preserved the sentencing challenge at the sentencing hearing, see subsections (A)(1) and (2), above, and seeks review of the sentence at the appellate level only. The triggering event for the Commonwealth's 30-day appeal period is defined by whether the defendant files a post-sentence motion.
(i) If the defendant has filed a post-sentence motion, and the Commonwealth elects to challenge the sentence by filing an appeal directly from the order imposing sentence, notice of the Commonwealth's appeal shall be filed within 30 days of the entry of the order disposing of the defendant's post-sentence motion pursuant to Rule 1410B(3).
(ii) If the defendant has not filed a post-sentence motion, the Commonwealth's notice of appeal shall be filed within 30 days of the entry of the order imposing sentence.
(b) Appeal following Disposition of Commonwealth Motion to Modify Sentence.
Subsection (B)(2)(b) applies when the Commonwealth has filed a motion to modify sentence no later than 10 days after imposition of sentence. See subsection (B)(1). The judge's disposition of the motion triggers the Commonwealth's 30-day appeal period. The time limit for the disposition of the Commonwealth motion, however, depends on whether the defendant has filed a post-sentence motion, as provided in the following subsections.
(i) If the defendant has filed a post-sentence motion, the Commonwealth's notice of appeal shall be filed within 30 days of the entry of the orders disposing of the Commonwealth's and the defendant's motions pursuant to subsection (C)(1).
Subsection (C)(1) requires that the judge decide a Commonwealth motion to modify simultaneously with the defendant's post-sentence motion.
(ii) If the defendant has not filed a post-sentence motion, the Commonwealth's notice of appeal shall be filed within 30 days of the entry of the order disposing of the Commonwealth's motion pursuant to subsection (C)(2).
(C) Trial Court Action; Disposition
If the attorney for the Commonwealth files a timely motion for modification of sentence pursuant to subsection (A)(1), the judge shall dispose of the motion as provided in this section.
The judge is expressly prohibited from vacating sentence pending disposition of the motion, including any reconsideration of a disposition. Similar language has been included in the amendments to Rule 1410. See Rule 1410B(3) and the first paragraph of the ''Disposition'' section of the Rule 1410 Comment.
(1) If the defendant has filed a post-sentence motion, the judge shall not vacate sentence but shall decide the Commonwealth's motion and the defendant's post-sentence motion simultaneously. The Rule 1410B(3) time limits for deciding the defendant's post-sentence motion, including the automatic denial provisions, shall apply to the disposition of the Commonwealth's motion. The starting date for disposition of both motions shall be the date on which the defendant filed the post-sentence motion.
The Rule 1410B(3) time period for disposition of the Commonwealth's motion to modify sentence is triggered by the date on which the defendant files a post-sentence motion pursuant to Rule 1410A(1). Once the disposition period on the defendant's post-sentence motion begins to run, it becomes the disposition period for the Commonwealth's motion to modify sentence, regardless of which motion is filed first. If the judge grants the defendant a 30-day extension as permitted under Rule 1410B(3)(b), the total dispositional period, as extended, applies to the simultaneous disposition of the Commonwealth's motion to modify sentence. If the judge fails to decide the Commonwealth's motion by the expiration of the disposition period, the Common-wealth's motion is deemed denied by operation of law, and the clerk of courts must enter an order pursuant to section D, below.
(2) If the defendant has not filed a post-sentence motion, the judge shall not vacate sentence but shall decide the Commonwealth's motion within 120 days of the filing of the motion. If the judge fails to decide the Commonwealth's motion within 120 days, the motion shall be deemed denied by operation of law.
Although the Committee considered several approaches to this provision, we concluded that when a defendant has not filed a post-sentence motion, a 120-day period allowed ample time for the resolution of a Commonwealth motion. Unlike Rule 1410B(3)(b), therefore, no extension of this disposition period is permitted.
(D) Entry of Order by Clerk of Courts
Subsection (D) is a simplified version of its counterpart in Rule 1410. See also Rule 1410A(4).
(1) When the Commonwealth's motion for modification of sentence is denied by operation of law, the clerk of courts shall forthwith:
(a) enter an order on behalf of the court denying the Commonwealth's motion for modification of sentence by operation of law, and
(b) furnish a copy of the order, by mail or personal delivery, to the attorney for the Commonwealth, the defendant, and defense counsel.
(2) An order entered by the clerk of courts pursuant to this section shall not be subject to reconsideration.
Comment:
Annotation note: those paragraphs which are self-explanatory have not been annotated.
New Rule 1411 was promulgated to clarify the procedures for Commonwealth challenges to sentences in light of the post-sentence procedures adopted in 1993. See Pa.R. Crim.P. 1410. This rule does not address any other type of Commonwealth challenge or Commonwealth appeals generally.
The next several paragraphs, tailored for Common- wealth challenges, derive from similar language in the Rule 1410 Comment, as revised. They are intended to make it clear that, unless a discretionary sentencing issue is raised at the sentencing hearing, it must be raised in a motion to modify sentence in order to preserve it for appellate review.
Historically, the Commonwealth has been required to raise a discretionary sentencing issue at the sentencing hearing or in a post-trial motion to modify sentence in order to preserve the issue for appellate review. Commonwealth v. Eyster, 585 A.2d 1027 (Pa. Super. 1991) (en banc), appeal denied 602 A.2d 857 (Pa. 1992). Challenges to the legality of a sentence, however, are not waived if the Commonwealth fails to timely file a motion for modification. See Commonwealth v. Smith, 598 A.2d 268 (Pa. 1991).
Under new Rule 1411, the Commonwealth's motion for modification of sentence is optional, as long as any discretionary sentencing issue is properly preserved at the time sentence was imposed. Before forgoing trial court review and proceeding with a direct appeal, the attorney for the Commonwealth must therefore be sure that the record created at the sentencing proceeding is adequate for appellate review of the issue, or the issue may be waived. See Commonwealth v. Jarvis, 663 A.2d 790 (Pa. Super. 1995), at n.1.
As a general rule, a motion for modification of sentence gives the sentencing judge the earliest opportunity to modify the sentence. This procedure does not affect the court's inherent powers to correct an illegal sentence or obvious and patent mistakes in its orders at any time before appeal or upon remand by the appellate court. See, e.g., Commonwealth v. Jones, 554 A.2d 50 (Pa. 1989) (sentencing court can, sua sponte, correct an illegal sentence even after the defendant has begun serving the original sentence) and Commonwealth v. Cole, 263 A.2d 339 (Pa. 1970) (inherent power of the court to correct obvious and patent mistakes).
Once a sentence has been modified or reimposed pursuant to a motion to modify sentence under this rule or Rule 1410B(1)(a)(v), a party wishing to challenge the decision on the motion does not have to file an additional motion to modify sentence in order to preserve an issue for appeal, as long as the issue was properly preserved at the time the sentence was modified or reimposed.
Trial Court Action
Section (c) sets forth the procedures for trial court action on the Commonwealth's motion for modification. Key to the timing of the judge's decision on the Commonwealth's motion is whether the defendant files a post-sentence motion.
Rule 1410 Motion Filed
Under subsection (C)(1), if the defendant has filed a post-sentence motion, the judge is not permitted to vacate sentence and must decide the defendant's post-sentence motion and the Commonwealth's motion simultaneously. The date on which the defendant's post-sentence motion is filed, see Rule 1410A(1), triggers the time limit within which the judge must also dispose of the Commonwealth's motion, regardless of which motion is filed first. If the judge fails to decide the Commonwealth's motion within this time limit, the motion is deemed denied by operation of law. See Rule 1410B(3).
Rule 1410 Motion Not Filed
The purpose of the next paragraph is to make it clear that any reconsideration must take place within the 120-day time limit, and that the procedural exceptions provided in Pa.R.A.P. 1701(b)(3) do not apply to Rule 1411 sentencing challenges.
When the defendant has not filed a post-sentence motion, the disposition of the Commonwealth's motion is governed by subsection (C)(2). The judge may not vacate sentence, but has 120 days to decide the Commonwealth's motion or the motion is deemed denied by operation of law. If the judge decides the motion within the 120-day limit and then agrees to reconsider, the reconsideration must be resolved within the original 120-day time limit. The judge may not vacate sentence in order to reconsider the motion or otherwise use the reconsideration period to extend the 120-day time limit. It follows that even if the defendant has filed a notice of appeal, the procedural exceptions provided in Pa.R.A.P. 1701(b)(3) do not apply to challenges to sentences. See also the Rule 1410 Comment under ''Disposition.''
Entry of Order by Clerk of Courts
Under subsection (D)(1), when a Commonwealth motion to modify sentence has been denied by operation of law, the clerk of courts must enter an order on behalf of the court and furnish copies to the attorney for the Commonwealth, the defendant, and defense counsel. The clerk of courts' order is ministerial and not subject to reconsideration. See subsection (D)(2). The clerk of courts must also comply with the notice and docketing requirements of Rule 9024.
Appeal of Sentence
Paragraph (B)(2) contains the timing requirements for Commonwealth notices of appeal.
No Commonwealth Motion to Modify Sentence Filed
Paragraph (B)(2)(a) covers the time for filing a notice of appeal when the Commonwealth has elected not to file a motion to modify sentence with the trial judge. The time for filing the Commonwealth's notice of appeal under this subsection depends on whether the defendant has filed a post-sentence motion. When the defendant files a post- sentence motion, subsection (B)(2)(a)(i) provides that the entry of the order disposing of the defendant's post-sentence motion triggers the 30-day period during which the Commonwealth's notice of appeal must be filed. If no post- sentence motion is filed, it is the entry of the order imposing sentence that triggers the Commonwealth's 30-day appeal period. See Rule 1411(B)(2)(a)(ii).
The next paragraph was included because the Committee anticipates that the situation in question--the Commonwealth files an appeal and then the defendant files a post-sentence motion--may arise fairly frequently.
Given that a defendant has 10 days to file a post-sentence motion under Rule 1410A(1), it is possible that the Commonwealth might file a notice of appeal under subsection (B)(2)(a)(ii) followed by the defendant's filing a timely post-sentence motion. When this occurs, the Commonwealth's notice of appeal is rendered premature, because it is the entry of the order disposing of the defendant's post-sentence motion that becomes the triggering device for the Commonwealth's notice of appeal. In this situation, counsel for the Commonwealth should be aware that Pa.R.A.P. 905(a) addresses this problem. In response to an extensive history of appeals which were quashed because of the premature filing of the notice of appeal, the last sentence of Pa.R.A.P. 905(a) was drafted to create a legal fiction which treats a premature notice of appeal as filed after the entry of the appealable order. For a discussion of this provision, see Darlington, McKeon, Schuckers, and Brown, Pennsylvania Appellate Practice, 2d., § 905.3.
Commonwealth Motion to Modify Sentence Filed
Subsection (B)(2)(b) covers the time for filing the notice of appeal when the Commonwealth has elected to file a motion to modify sentence with the trial judge. As in subsection (B)(2)(a), the time for notice depends on whether the defendant files a post-sentence motion. If the defendant has filed a post-sentence motion, the disposition of the Commonwealth's and the defendant's motion is simultaneous. See Rule 1411(C)(1). If the defendant does not file a post-sentence motion, the 30-day appeal period begins to run from the entry of the order disposing of the Commonwealth's motion pursuant to the time limit of subsection (C)(2).
2. Rule 1410. Post-Sentence Procedures; Appeal.
A. Changes to the Text of Rule 1410
Annotation note: Because of the length of Rule 1410, only those portions of the rule and Comment necessary to explain the changes are included. Asterisks indicate omitted text.
A. TIMING.
(1) Except as provided in Section D, a written post-sentence motion shall be filed no later than 10 days after imposition of sentence.
(2) If the defendant files a timely post-sentence motion, the notice of appeal shall be filed within 30 days of the entry of the order deciding the motion, or, if the judge fails to decide the motion, within 30 days of the entry of the order denying the motion by operation of law.
Under subsection A(3), when a defendant chooses to appeal from the order imposing sentence, rather than to file a post-sentence motion, the time for appeal is 30 days from the imposition of sentence, unless the Commonwealth has filed a motion to modify sentence, in which event it is the disposition of the Common-wealth's motion which triggers the defendant's appeal period. See subsection A(4). See also Rule 1411(D), which insures that the defendant will receive a copy of the clerk of courts' order denying a Commonwealth motion by operation of law.
(3) If the defendant does not file a post-sentence motion, the defendant's notice of appeal shall be filed within 30 days of imposition of sentence, except as provided in subsection A(4).
(4) If the Commonwealth files a motion to modify sentence pursuant to Rule 1411, the defendant's notice of appeal shall be filed within 30 days of the entry of the order disposing of the Commonwealth's motion.
* * * * * B(3) Time Limits for Decision on Motion.
The judge shall not vacate sentence pending decision on the post-sentence motion, but shall decide the motion as provided in this subsection.
Subsection 1410B(3) has been amended to state that the judge ''shall not vacate sentence pending decision on the post-sentence motion... .'' Although this was the original intent of Rule 1410, the Committee agreed that the rule must be explicit on the issue in order to remove any confusion generated by Pa.R.A.P. 1701(b)(3).
(a) Except as provided in subsection (3)(b), the judge shall decide the post-sentence motion, including any supplemental motion, within 120 days of the filing of the motion. If the judge fails to decide the motion within 120 days, or to grant an extension as provided in subsection (3)(b), the motion shall be deemed denied by operation of law.
(b) Upon motion of the defendant within the 120-day disposition period, for good cause shown, the judge may grant one 30-day extension for decision on the motion. If the judge fails to decide the motion within the 30-day extension period, the motion shall be deemed denied by operation of law.
New Rule 1411(C)(2) does not permit any extension of the 120-day disposition period for a Commonwealth motion to modify sentence. However, if the defendant has filed a post-sentence motion and the judge grants the defendant an extension pursuant to subsection B(3)(b) above, the total disposition period, as extended, would apply to the simultaneous disposition of the Commonwealth's motion to modify sentence. See Rule 1411(C)(1).
(c) When a post-sentence motion is denied by operation of law, the clerk of courts shall forthwith enter an order on behalf of the court, and shall forthwith furnish a copy of the order by mail or personal delivery to the attorney for the Commonwealth, the defendant(s), and defense counsel that the post-sentence motion is deemed denied. This order is not subject to reconsideration.
The Rule 1410B(3) time period for disposition of the defendant's post-sentence motion is triggered by the date on which the defendant files a post-sentence motion pursuant to Rule 1410A(1). Once the dispositional period begins to run, it will apply to any timely filed Commonwealth motion to modify sentence, regardless of which motion is filed first. See Rule 1411(C)(1). If the judge fails to decide either motion within this period, the motion is deemed denied by operation of law. If the judge fails to decide the defendant's post-sentence motion, the clerk of courts must enter an order pursuant to Rule 1410 B(3)(c), above. If the judge fails to decide the Common- wealth's motion to modify sentence, the clerk must enter an order pursuant to Rule 1411(D). If the judge fails to decide both motions, the clerk of courts must enter two orders on behalf of the court.
(4) Contents of Order.
An order denying a post-sentence motion, whether signed by the judge or entered by the clerk of courts, shall include notice to the defendant of the following:
(a) the right to appeal and the time limits within which the appeal must be filed;
(b) the right to assistance of counsel in the preparation of the appeal;
(c) the rights, if the defendant is indigent, to appeal in forma pauperis and to proceed with assigned counsel as provided in Rule 316; and
(d) the qualified right to bail under Rule 4010.B.
B. Changes to the Rule 1410 Comment
The ''Timing'' section has been revised to explain the addition of subsection A(4) and to provide a cross-reference to new Rule 1411.
TIMING
Section A contains the timing requirements for filing the optional post-sentence motion and taking an appeal. Under subsection A(1), the post-sentence motion must be filed within 10 days of imposition of sentence.
When a defendant files a timely post-sentence motion, the 30-day period for the defendant's direct appeal on all matters in that case--including all issues related to any informations and any charges consolidated against the defendant for trial--is triggered by the trial judge's decision on the post-sentence motion or the denial of the motion by operation of law. The appeal period runs from the entry of the order. As to the date of entry of orders, see Pa.R.A.P. 108. No direct appeal may be taken by a defendant while his or her post-sentence motion is pending. See subsection A(2).
If no timely post-sentence motion is filed, the defendant's appeal period runs from the date sentence is imposed. See subsection A(3). Under subsection A(4), however, when the defendant has not filed a post-sentence motion but the Commonwealth files a motion to modify sentence under Rule 1411, it is the entry of the order disposing of the Commonwealth's motion that commences the 30-day period during which the defendant's notice of appeal must be filed. See Rule 1411(B)(2)(b).
All references to appeals in this rule relate to the defendant's right to appeal. The rule does not address or alter the Commonwealth's right to appeal. For Commonwealth challenges to sentences, see Rule 1411.
The ''Disposition'' section has been revised to underscore the now-express prohibition in subsection B(3) against vacating sentence pending disposition of the post-sentence motion. This Comment revision also reiterates that a sentence may not be vacated during any reconsideration of the judge's decision on the post-sentence motion.
DISPOSITION
Under subsection B(3), once the defendant makes a timely written post-sentence motion, the judge retains jurisdiction for the duration of the disposition period. The judge may not vacate the order imposing sentence pending decision on the post-sentence motion. This is so whether or not the Commonwealth files a motion to modify sentence. See Rule 1411. [It is not necessary for the judge to vacate the sentence imposed.]
Subsection B(3)(b) permits one 30-day extension of the 120-day time limit, for good cause shown, upon motion of the defendant. In most cases, an extension would be requested and granted when new counsel has entered the case. Only the defendant or counsel may request such an extension. The judge may not, sua sponte, extend the time for decision: a congested court calendar or other judicial delay does not constitute ''good cause'' under this rule.
The possibility of an extension is not intended to suggest that 120 days are required for decision in most cases. The time limits for disposition of the post-sentence motion are the outer limits. Easily resolvable issues, such as a modification of sentence or a guilty plea challenge, should ordinarily be decided in a much shorter period of time.
If the trial judge decides the motion within the time limits of this rule, the judge may reconsider that decision, but [grants reconsideration on the post-sentence motion pursuant to 42 Pa.C.S. § 5505 or Pa.R.A.P. 1701,] the judge may not vacate the sentence pending reconsideration, Rule 1410B(3). [the] The reconsideration period may not be used to extend the timing requirements set forth in section B(3) for decision on the post-sentence motion: the time limits imposed by subsections B(3)(a) and B(3)(b) continue to run from the date the post-sentence motion was originally filed. The trial judge's reconsideration must therefore be resolved within the 120-day decision period of subsection B(3)(a) or the 30-day extension period of subsection B(3)(b), whichever applies. If a decision on the reconsideration is not reached within the appropriate period, the post-sentence motion, including any issues raised for reconsideration, will be denied pursuant to subsection B(3)(c).
* * * * * Miscellaneous
Correspondence with the Committee noted that Rule 1410 did not specify how to preserve a discretionary sentencing issue for appeal if no post-sentence motion will be filed. (Rule 1410B(1)(c) only addresses issues raised ''before or during trial.'') The ''Miscellaneous'' section of the Rule 1410 Comment has therefore been revised, citing Commonwealth v. Jarvis, 663 A.2d 790 (Pa. Super. 1995), to make it clear that in order to forgo a post-sentence motion on a discretionary sentencing issue, the issue must be preserved on the record at the sentencing proceeding.
* * * * * Issues [raised] properly preserved at the sentencing proceeding need not, but may[,] be raised again in a motion to modify sentence in order to preserve them for appeal. In deciding whether to move to modify sentence, counsel [should] must carefully consider whether the record created at the sentencing proceeding is adequate for appellate review of the issues, or the issues may be waived. See Commonwealth v. Jarvis, 663 A.2d 790 (Pa. Super. 1995). See also Rule 1405.C(4). As a general rule, the motion to modify sentence under subsection B(1)(a)(v) gives the sentencing judge the earliest opportunity to modify the sentence. This procedure does not affect the court's inherent powers to correct an illegal sentence or obvious and patent mistakes in its orders at any time before appeal or upon remand by the appellate court. See, e.g., Commonwealth v. Jones, 554 A.2d 50 (Pa. 1989) (sentencing court can, sua sponte, correct an illegal sentence even after the defendant has begun serving the original sentence) and Commonwealth v. Cole, 263 A.2d 339 (Pa. 1970) (inherent power of the court to correct obvious and patent mistakes).
The qualifier at the end of the next paragraph is a logical extension of the holding in Commonwealth v. Jarvis, supra.
Once a sentence has been modified or reimposed pursuant to a motion to modify sentence under subsection B(1)(a)(v) or Rule 1411, [however,] a party wishing to challenge the decision on the motion does not have to file an additional motion to modify sentence in order to preserve an [the] issue [(s)] for appeal, as long as the issue was properly preserved at the time sentence was modified or reimposed.
The following paragraph explains the Rule 1411 procedures and their impact on the timing of a defendant's notice of appeal.
Commonwealth challenges to sentences are governed by Rule 1411. If the defendant files a post-sentence motion, the time limits for decision on the defendant's motion govern the time limits for disposition of the Commonwealth motion to modify sentence, regardless of which motion is filed first. See Rule 1411(C)(1). If the defendant elects to file an appeal and the Commonwealth files a motion to modify sentence, decision on the Commonwealth's motion triggers the defendant's 30-day appeal period. See Rule 1410A(4).
The next paragraph discusses how the defendant should proceed under subsection A(4) in the event that the defendant files a premature notice of appeal, i.e. before the Commonwealth files a motion to modify sentence.
Given that the Commonwealth has 10 days to file a motion to modify sentence under Rule 1411(B)(1), it is possible that the defendant might elect to file a notice of appeal under Rule 1410A(3) followed by the Commonwealth's filing a timely motion to modify sentence. When this occurs, the defendant's notice of appeal is rendered premature, because the entry of the order disposing of the Commonwealth's motion to modify sentence then becomes the triggering device for the defendant's notice of appeal. In this situation, counsel for the defendant should be aware that Pa.R.A.P. 905(a) addresses this problem. In response to an extensive history of appeals which were quashed because of the premature filing of the notice of appeal, the last sentence of Pa.R.A.P. 905(a) was drafted to create a legal fiction which treats a premature notice of appeal as filed after the entry of the appealable order. For a discussion of this provision, see Darlington, McKeon, Schuckers, and Brown, Pennsylvania Appellate Practice, 2d., § 905.3.
______
1The 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.2The Committee's proposal was published for comment at 26 Pa.B. 1343 (March 30, 1996).
3The Supreme Court also approved a correlative revision to the Note to Pa.R.A.P. 1701 (Effect of Appeal Generally).
[Pa.B. Doc. No. 97-1446. Filed for public inspection September 5, 1997, 9:00 a.m.]
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