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PA Bulletin, Doc. No. 98-1979

THE COURTS

PART II.  LOCAL AND MINOR RULES

[234 PA. CODE CH. 9000]

Rule 9022 Relating to Filings

[28 Pa.B. 5869]

Introduction

   The Criminal Procedural Rules Committee is planning to recommend that the Supreme Court of Pennsylvania adopt several amendments to Rule of Criminal Procedure 9022 (Filing). This proposal clarifies the procedures with regard to filings by represented defendants; filings that may be untimely; and filings by pro se prisoners. 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 precedes the Report.

   We request that interested persons submit suggestions, comments, or objections concerning this proposal to the Committee through counsel, Anne T. Panfil, Chief Staff Counsel, Supreme Court of Pennsylvania, Criminal Procedural Rules Committee, P. O. Box 1325, Doylestown, PA 18901 no later than Wednesday, January 13, 1999.

By the Criminal Procedural Rules Committee

FRANCIS BARRY MCCARTHY,   
Chair

Annex A

TITLE 234.  RULES OF CRIMINAL PROCEDURE

PART II.  LOCAL AND MINOR RULES

CHAPTER 9000.  GENERAL PROVISIONS

Rule 9022. Filing.

   [(a)](A)  *  *  *

   [(b)](B)  [Except as provided in paragraph (c), when] The clerk of courts shall accept all written motions, notices, or documents presented for filing. When a written motion, notice, or document is received by the clerk of courts, the clerk shall docket it and record the time of filing in the docket. A copy of these papers shall be promptly transmitted to such person as may be designated by the court.

   [(c)](C)  In any case in which a defendant is represented by an attorney, if the defendant submits for filing a written motion, notice, or document that has not been signed by the defendant's attorney, the clerk of courts shall [not] docket it [or] and record [it] the time of filing in the docket. [, but] A copy of the filing shall be [forward] forwarded [it] to the defendant's attorney and the attorney for the Commonwealth within 10 days of receipt.

   [(d)](D)  Filing may be accomplished by:

   (1)  personal delivery to the clerk of courts; or

   (2)  mail addressed to the clerk of courts. [, provided, however, that]

   Except as otherwise provided by law, filing by mail shall be timely only when actually received by the clerk within the time fixed for filing.

   Official Note:  Adopted October 21, 1983, effective January 1, 1984; amended March 22, 1993, effective January 1, 1994; amended July 9, 1996, effective September 1, 1996; amended                           , 1998, effective                     , 1998.

Comment

*      *      *      *      *

   Those rules that provide for filing with the trial court or the sentencing court are not exceptions to the general requirement of this rule that filing be with the clerk of courts. As used in this rule, ''clerk of courts'' is intended to mean that official in each judicial district who has the responsibility and function under state or local law to maintain the official court file and docket, without regard to that person's official title.

   Paragraph (B) of this rule requires that the clerk of courts accept all written motions, notices, or documents that are submitted for filing, and docket them whether or not they appear to be timely filed. Any challenge to the timeliness of a filing must be raised by the parties for determination by the court.

   The [second] last sentence of paragraph [(b)] (B) [is intended to provide] provides flexibility to the local courts to designate the court official, such as a local court administrator, who processes motions and other matters for appropriate scheduling and disposition.

   The 1998 amendments to [Paragraph (c)] paragraph (C) [was added in 1996 to provide a] modified the [a] uniform, statewide procedure [for] by which the clerks of courts [to] handle filings by represented defendants when the defendant's attorney has not signed the document being filed by the defendant. As amended, paragraph (C) requires, in all cases in which a represented defendant files a document, that the clerk of courts docket and record the defendant's filing and then forward a copy of the document to both the attorney of record and the attorney for the Commonwealth. Compare [See] Pa.R.A.P. 3304 (Hybrid Representation). The docketing of the filings in these cases only serves to provide a record of the filing, and does not trigger any deadline nor require any response.

   Paragraph [(c)] (C) only applies to cases in which the defendant is represented by counsel, not cases in which the defendant is proceeding pro se.

   See Commonwealth v. Jones, 700 A.2d 423 (Pa. 1997); and Commonwealth v. Little, 716 A.2d 1287 (Pa. Super. 1998) concerning the timeliness of filings mailed by prisoners proceeding pro se (the ''prisoner mailbox rule'').

Committee Explanatory Reports:

*      *      *      *      *

   Final Report explaining the July 9, 1996 amendments concerning hybrid filings published with the Court's Order at 26 Pa.B. 3532 (July 27, 1996).

   Report explaining the proposed amendments concerning filings by represented defendants, untimely filings, and filings by pro se prisoners published at 28 Pa.B. 5870 (December 5, 1998).

REPORT

Proposed Amendments of Pa.R.Crim.P. 9022

FILINGS IN CRIMINAL CASES

   The Committee is proposing amendments to Rule of Criminal Procedure 9022 (Filings) that address three aspects of filing documents in criminal cases that have been causing confusion for individuals involved in the criminal justice system. First, the amendments clarify that the clerk of courts must accept all filings, even if the timeliness of the filing is in questions. Second, the amendments modify the procedures when a defendant, who is represented by counsel, files a document that has not been signed by counsel. Third, the amendments recognize the ''prisoner mailbox rule'' that has been developed by case law.

1.  Untimely Filings

   This matter was raised by representatives of the statewide Clerks of Courts Association. They pointed out that, because the Criminal Rules do not address how a clerk of courts is to handle an untimely filing, there are different practices around the State. Some clerks accept and docket all filings. Other clerks accept all filings, but make a notation when a filing is late. And others refuse to accept any filings they determine to be untimely.

   In view of these various practices, which are, at the very least, confusing, and in view of their opinion that clerks should not make timeliness determinations, the representatives asked the Committee to consider proposing a statewide rule that would require the clerks of courts to accept and docket all filings, whether or not the filing appeared to be timely.

   Agreeing with the points made by the representatives of the Clerks of Court Association, the Committee is proposing an amendment to Rule 9022(B) that requires that the clerks of courts accept all written motions, notices, and documents presented for filing. The third paragraph of the Comment makes it clear that any challenges to the timeliness of a filing must be raised by the parties and determined by the court.

2.  Filings by Represented Defendants

   Correspondence with the Committee suggested that the 1996 amendments to Rule 9022, which require the clerk of courts to forward any filings by a represented defendant to the defendant's attorney without docketing, creates problems in some of those cases in which the defendant is raising his or her attorney's ineffectiveness or is filing a petition to proceed pro se. The concern with the current Rule 9022(C) procedure is that there is no record in the clerk's office of the filing. If counsel of record is not actively working on the defendant's case, then important deadlines may be missed, or action on the defendant's claim of ineffectiveness or to proceed pro se may be delayed.

   The Committee agreed that, at least as to ineffective counsel claims and petitions to proceed pro se, the filings should be docketed. However, after considering separating these two types of filings from all other filings by counseled defendants, the Committee concluded that, because many filings by defendants are not clearly identified, and it is not the responsibility of the clerk of courts to make a determination about the nature of a particular filing, this was not a workable option. In further discussions, the Committee weighed other options, including, for example, requiring that:

   1)  the clerk of courts docket and record all counseled defendant's filings in the same manner provided for other filings in paragraph (B), and then forward it to the attorney of record;

   2)  the clerk acknowledge receipt of the filing at the same time forwarding the filing to the attorney, and the acknowledgment would provide the record or proof of filing;

   3)  the clerk also forward a copy of the filing to the attorney for the Commonwealth in an effort to avoid day-of-trial surprises and delays;

   4)  if the filing is docketed and recorded, the matter should proceed in the same manner as filings under paragraph (B) by forwarding the filing to such person as may be designated by the court for further proceedings; or

   5)  if the filing is docketed and recorded, no other action is required by the court.

   The Committee was persuaded that the concerns about delays and failure of counsel to act required that there should be some record of the filings by counseled defendants, and that the docketing and recording procedures, which are already in place, made more sense than requiring the clerks to send an acknowledgment of receipt. We rejected the notion that the case should proceed in the same manner as any other case, i.e., that it should be forwarded to, for example, the court administrator, for listing for further proceedings. We thought that (1) the responsibility rested with counsel to ensure that the defendant's filings were properly acted upon, and (2) because many of these counseled defendant's filings required clarification, these filings should not necessitate action by the attorney for the Commonwealth or the court. We also agreed that, to avoid the day-of-trial surprises and delays that might otherwise occur, the rule should require the clerk to also forward a copy of the filing to the attorney for the Commonwealth. The Comment makes it clear, however, that these filings serve only to provide a record, and, therefore, no action is required.

   In view of these considerations, the Committee is proposing that Rule 9022(C) be amended to require that the clerk of courts docket the filings of represented defendants and record the time of filing in the docket. Paragraph (C) also requires that a copy of the filing be forwarded to both the defendant's attorney and the attorney for the Commonwealth.

3.  The ''Prisoner Mailbox Rule''

   The ''prisoner mailbox rule'' is the ''rule'' being developed in a line of cases addressing the timeliness of appeals by prisoners proceeding pro se, and holding that, the prisoners' filings are timely when deposited with the prison authorities or in the prison mailbox within the time limits for filing. Although, to date, the case law has been limited to appeals and post conviction proceedings, the Committee reasoned that the basis for this ''rule'' put forth by the courts applies equally to criminal proceedings generally -- that prisoners are unable to take the steps available to other litigants to monitor the process of their filings in order to ensure that the filings arrive before the deadline for filing. We, therefore, concluded that Rule 9022 should recognize the ''prisoner mailbox rule'' as an exception to the timeliness provision in paragraph (D). Accordingly, we are proposing that paragraph (D) be amended by the addition of ''except as otherwise provided by law,'' before ''filing by mail shall be timely only when actually received by the clerk within the time fixed for filing.'' The Comment would be revised to include a citation to Commonwealth v. Jones, 700 A.2d 423 (Pa. 1997), and Commonwealth v. Little, 716 A.2d 1287 (Pa. Super. 1998), as examples of timeliness for mailings ''otherwise provided by law.''

[Pa.B. Doc. No. 98-1979. Filed for public inspection December 4, 1998, 9:00 a.m.]


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