THE COURTS

Title 234--RULES OF CRIMINAL PROCEDURE

[234 PA CODE CH. 50]

Order Amending Rules 75, 76 and 85; No. 246; Criminal Procedural Rules Doc. No. 2

[29 Pa.B. 3716]

   The Criminal Procedural Rules Committee has prepared a Final Report explaining the July 2, 1999 amendments to Rules of Criminal Procedure 75, 76, and 85concerning ability to pay hearings following the arrest of a defendant for failure to respond as provided in the ten-day notice required in Rule 75(4) and Rule 85(B). The Final Report follows the Court's Order.

Order

Per Curiam:

   Now, this 2nd day of July, 1999, upon the recommendation of the Criminal Procedural Rules Committee, this proposal having been submitted without publication pursuant to Pa.R.J.A. 103(a)(3), 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 Rules of Criminal Procedure 75, 76, and 85 are amended, all in the following form.

   This Order shall be processed in accordance with Pa.R.J.A. 103(b), and shall be effective August 1, 1999.

Annex A

TITLE 234.  RULES OF CRIMINAL PROCEDURE

CHAPTER 50.  PROCEDURE IN SUMMARY CASES

PART V.  PROCEDURES REGARDING ARREST WARRANTS IN SUMMARY CASES

Rule 75.  Issuance of Arrest Warrant.

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   (3)  A warrant for the arrest of the defendant may be issued when:

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   (c)  the issuing authority has, in the defendant's absence, tried and sentenced the defendant to pay restitution, and/or to pay a fine and costs[,] and the collateral deposited by the defendant is less than the amount of fine and costs imposed.

   (4)  No warrant shall issue under Rule 75(3) unless the defendant has been given notice in person or by first class mail that failure to pay the amount due or to appear for a hearing may result in the issuance of an arrest warrant, and the defendant has not responded to this notice within 10 days. Notice by first class mail shall be considered complete upon mailing to the defendant's last known address.

   Official Note:  Adopted July 12, 1985, effective January 1, 1986; effective date extended to July 1, 1986; amended January 31, 1991, effective July 1, 1991; amended April 18, 1997, effective July 1, 1997; amended October 1, 1997, effective October 1, 1998; amended July 2, 1999, effective August 1, 1999.

Comment

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   Ordinarily, pursuant to Rule 84, the issuing authority must conduct a summary trial in the defendant's absence. However, if the issuing authority determines that there is a likelihood that the sentence will [be] include imprisonment or that there is other good cause not to conduct the summary trial, the issuing authority may issue a warrant for the arrest of the defendant pursuant to paragraph (2) in order to bring the defendant before the issuing authority for the summary trial.

   The arrest warrant issued under paragraph (3) should state the amount required to satisfy the sentence.

   When a defendant is arrested pursuant to paragraph (3), the issuing authority must conduct a hearing to determine whether the defendant is able to pay the amount of restitution, fine, and costs that is due. See Rule 85.

   When contempt proceedings are also involved, see Chapter 30 for the issuance of arrest warrants.

   See Rule 76 for the procedures when a warrant of arrest is executed.

Committee Explanatory Reports:

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   Final Report explaining the July 2, 1999 amendments to paragraph (3)(c) and the Comment concerning restitution published with the Court's Order at 29 Pa.B. 3718 (July 17, 1999).

Rule 76.  Procedure when Defendant Arrested with Warrant.

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   (B)  When a warrant of arrest is executed, the police officer shall either:

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   (3)  accept from the defendant the amount of restitution, fine, and costs due as specified in the warrant if the warrant is for collection of restitution, fine, and costs after a guilty plea or conviction; or

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   (C)  When the police officer accepts restitution, fine, and costs, or collateral under paragraphs (B)(1), (2), or (3), the officer shall issue a receipt to the defendant setting forth the amount of restitution, fine, and costs, or collateral received and return a copy of the receipt, signed by the defendant and the police officer, to the proper issuing authority.

   (D)  When the defendant is taken before the issuing authority under paragraph (B)(4), the defendant shall be given an immediate trial unless:

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   (3)  the warrant was issued for the collection of restitution, fine, and costs after a guilty plea or conviction, in which event the issuing authority shall proceed as specified in Rule 85.

   Official Note:  Adopted July 12, 1985, effective January 1, 1986; Comment revised September 23, 1985, effective January 1, 1986; January 1, 1986 effective date extended to July 1, 1986; Comment revised January 31, 1991, effective July 1, 1991; amended August 9, 1994, effective January 1, 1995; amended October 1, 1997, effective October 1, 1998; amended July 2, 1999, effective August 1, 1999.

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Committee Explanatory Reports:

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   Final Report explaining the July 2, 1999 amendments paragraphs (B)(3) and (C) concerning restitution published with the Court's Order at 29 Pa.B. 3718 (July 17, 1999).

PART VI.  GENERAL PROCEDURES IN SUMMARY CASES

Rule 85.  Default Procedures: Restitution, Fines, and Costs.

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   (C)  If the defendant appears [as provided in] pursuant to the 10-day notice in paragraph (B) or following an arrest for failing to respond to the 10-day notice in paragraph (B), the issuing authority shall conduct a hearing to determine whether the defendant is financially able to pay as ordered.

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   Official Note:  Adopted July 12, 1985, effective January 1, 1986; amended September 23, 1985, effective January 1, 1986; January 1, 1996 effective dates extended to July 1, 1986. Comment revised February 1, 1989, effective July 1, 1989; rescinded October 1, 1997, effective October 1, 1998. New Rule 85 adopted October 1, 1997, effective October 1, 1998; amended July 2, 1999, effective August 1, 1999.

Comment

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   When a defendant defaults on a payment of restitution, fines, or costs, paragraph (B) requires the issuing authority to notify the defendant of the default, and to provide the defendant with an opportunity to pay the amount due or appear within 10 days to show cause why the defendant should not be imprisoned for nonpayment. Notice by first class mail is considered complete upon mailing to the defendant's last known address. See Rule 75(4).

   Pursuant to paragraph (C), the issuing authority must conduct a default hearing when a defendant responds to the 10-day notice as provided in paragraph (B), or when the defendant is arrested for failing to respond to the 10-day notice. If the default hearing cannot be held immediately, the issuing authority may set bail as provided in Chapter 4000.

   Under paragraph (C)(1), when the issuing authority determines that a defendant is able to pay as ordered, the issuing authority may, as provided by law, impose imprisonment or other sanctions. In addition, delinquent restitution, fines, or court costs may be turned over to a private collection agency[,]. See 42 Pa.C.S. § 9730(b)(2) and 9730.1(a).

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   When a defendant is in default of an installment payment, the issuing authority on his or her own motion or at the request of the defendant or the attorney for the Commonwealth must schedule a rehearing to determine the cause of the default. Before an issuing authority may impose a sentence of imprisonment as provided by law for nonpayment of restitution, fines, or costs, a hearing or rehearing must be held whenever a defendant alleges that his or her ability to pay has been diminished. See 42 Pa.C.S. §  9730(b). See also Rules 316 and 318 (dealing with the right to counsel).

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Committee Explanatory Reports:

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   Final Report explaining the July 2, 1999 amendments to paragraph (C) published with the Court's Order at 29 Pa.B. 3718 (July 17, 1999).

FINAL REPORT¹

Fines, Costs, and Restitution in Summary Cases;
Default Procedures

I.  Introduction

   On July 2, 1999, upon the recommendation of the Criminal Procedural Rules Committee, the Supreme Court of Pennsylvania amended Rule 75 (Issuance of Arrest Warrant), Rule 76 (Procedure When Defendant Arrested with Warrant), and Rule 85 (Default Procedures: Restitution, Fines, and Costs). These changes, which will become effective on August 1, 1999, make it clear in the rules that the issuing authority must conduct an ability to pay hearing following the arrest of the defendant for failure to respond as provided in the ten-day notice required in Rule 75(4) and Rule 85(B).

   The need for these amendments was brought to the Committee's attention through the work of the Committee's Staff with the Administrative Offices of Pennsylvania Courts' Judicial Computer Project (JCP) Staff. The Committee's Staff has been reviewing and offering suggestions about the content of the forms the JCP Staff are designing and the procedures they are developing to implement the 1997 changes to Rules 75, 76, 83, 84, 85, and 86 concerning restitution, fines and costs, default procedures, and appeals.² As part of this review, it came to our attention that the rule changes were being misconstrued as not requiring an ability to pay hearing following an arrest when a defendant fails to respond to the ten-day notice required by Rule 75(4) and Rule 85(B).

   After a review of the history of the development of the 1997 amendments, the Committee, agreeing that the law is clear that a defendant who is financially unable to pay may not be incarcerated for failure to pay restitution, fines, or costs, acknowledged that the intent of the 1997 rule changes adding the ten-day notice was that district justices must conduct ability to pay hearings following an arrest for failure to respond as required by the ten-day notice. Based on these considerations, the Committee agreed that, to avoid any ambiguity in this important area, the rules should more clearly state when an ability to pay hearing should be conducted. Accordingly, the following changes have been adopted by the Court:

   (1)  The Rule 75 Comment has been revised to emphasize that the issuing authority must conduct an ability to pay hearing following an arrest for failure to pay the full amount of the restitution, fine, and costs.

   (2)  Rule 85(C) has been amended to more clearly state that the ability to pay hearing is to be conducted not only when the defendant appears pursuant to the ten-day notice, but also following an arrest for failure to respond to the ten-day notice.

   (3)  The term ''restitution'' has been added to Rule 75(3)(c), Rule 76(B), (C), and (D)(3), and the Rule 85 Comment to provide further clarification that the procedures in these rules encompass restitution.

   (4)  The citation to 42 Pa.C.S. § 9730 in the Rule 85 Comment has been updated to reflect an amendment tothe statute that occurred after new Rule 85 was adopted in 1997.

[Pa.B. Doc. No. 99-1121. Filed for public inspection July 16, 1999, 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  These rule changes were adopted on October 1, 1997, effective October 1, 1998.

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