THE COURTS

PART I.  GENERAL

[234 PA. CODE CH. 1400]

Order Adopting Amendments to Rule 1405; No. 248 Criminal Procedural Rules Doc. No. 2

[29 Pa.B. 4058]

   The Criminal Procedural Rules Committee has prepared a Final Report explaining the July 15, 1999 amendments to Rule 1405 (Procedures at the Time of Sentencing). These changes expand the time limits for sentencing from 60 to 90 days, reduce the time for extensions of the time for sentencing from 60 to 30 days, and add a citation to Commonwealth v. Anders, 725 A.2d 170 (Pa. 1999), concerning the sanctions for failing to comply with the Rule 1405 time limits. The Final Report follows the Court's Order.

Order

Per Curiam:

   Now, this 15th 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 Pa.R.Crim.P. 1405 is hereby amended in the following form.

   This Order shall be processed in accordance with Pa.R.J.A. 103(b), and shall be effective January 1, 2000.

Annex A

TITLE 234.  RULES OF CRIMINAL PROCEDURE

PART I.  GENERAL

CHAPTER 1400.  SENTENCING

Rule 1405.  Procedure at Time of Sentencing.

   A.  Time for Sentencing.

   (1)  Except as provided by Rule 1403.B, sentence in a court case shall ordinarily be imposed within [60] 90 days of conviction or the entry of a plea of guilty or nolo contendere.

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   Official Note:  Previous Rule 1405 approved July 23, 1973, effective 90 days hence; Comment amended June 30, 1975, effective immediately; Comment amended and paragraphs (c) and (d) added June 29, 1977, effective September 1, 1977; amended May 22, 1978, effective as to cases in which sentence is imposed on or after July 1, 1978; Comment amended April 24, 1981, effective July 1, 1981; Comment amended November 1, 1991, effective January 1, 1992; rescinded March 22, 1993, effective as to cases in which the determination of guilt occurs on or after January 1, 1994, and replaced by present Rule 1405. Present Rule 1405 adopted March 22, 1993, effective as to cases in which the determination of guilt occurs on or after January 1, 1994; amended January 3, 1995, effective immediately; amended September 13, 1995, effective January 1, 1996. The January 1, 1996 effective date extended to April 1, 1996. Comment revised December 22, 1995, effective February 1, 1996. The April 1, 1996 effective date extended to July 1, 1996. Comment revised September 26, 1996, effective January 1, 1997; Comment revised April 18, 1997, effective immediately; Comment revised January 9, 1998, effective immediately [.]; amended July 15, 1999, effective January 1, 2000.

Comment

   This rule is derived in part from previous Rule 1405.

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Time for Sentencing

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   Under paragraph A(1), sentence should be imposed within [60] 90 days of conviction or the entry of a plea of guilty or nolo contendere, unless the court orders a psychiatric or psychological examination pursuant to Rule 1403.B. Such an order should extend the time for sentencing for only as much time as is reasonably required, but in no event should sentencing be extended for more than [60] 30 days beyond the original [60] 90-day limit. In summary appeal cases, however, sentence must be imposed immediately at the conclusion of the de novo trial.

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   Because such extensions are intended to be the exception rather than the rule, the extension must be for a specific time period, and the judge must include in the record the length of the extension. A hearing need not be held before an extension can be granted. Once a specific extension has been granted, however, some provision should be made to monitor the extended time period to insure prompt sentencing when the extension period expires.

   Failure to sentence within the time specified in paragraph (A) may result in the discharge of the defendant. See Commonwealth v. Anders, 725 A.2d 170 (Pa. 1999) (discharge is appropriate remedy for violation of Rule 1405 time limits, but only if the defendant can demonstrate that the delay in sentencing was prejudicial to the defendant).

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Sentencing Procedures

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   After sentencing, following a conviction in a trial de novo in a summary case, the judge should advise the defendant of the right to appeal and the time limits within which to exercise that right, the right to proceed in forma pauperis and with assigned counsel to the extent provided in Rule 316(a), and of the qualified right to bail under Rule 4009(b). See paragraphs C(3)(a), (b), and (e). See also Rule 1410 [.] (D) (no post-sentence motion after a trial de novo).

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   For the duty of the sentencing judge to state on the record the reasons for the sentence imposed, see Commonwealth v. Riggins, 377 A.2d 140 (Pa. 1977) and Commonwealth v. Devers, 546 A.2d 12 (Pa. 1988). If the sentence initially imposed is modified pursuant to Rule 1410 [.] (B)(1)(a)(v), the sentencing judge should ensure that the reasons for the ultimate sentence appear on the record. See also Sentencing Guidelines, 204 Pa. Code §§ 303.1(b), 303.1(h), and 303.3(2) [(1982)].

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Committee Explanatory Reports:

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   Final Report explaining the January 9, 1998 Comment revisions concerning Guideline Sentence Forms, and summary case appeal notice, published with the Court's Order at 28 Pa.B. 481 (January 31, 1998).

   Final Report explaining the July 15 , 1999 amendments concerning the time for sentencing published with the Court's Order at 29 Pa.B. 4059 (July 31, 1999).

FINAL REPORT¹

Amendments to Pa.R.Crim.P. 1405 (Procedures at the Time of Sentencing)
Time for Sentencing; Commonwealth v. Anders

   On July 15, 1999, effective January 1, 2000, upon the recommendation of the Criminal Procedural Rules Committee, the Court amended Rule 1405 (Procedures at the Time of Sentencing) by expanding the time limits for sentencing from 60 to 90 days. The Court also approved the revision of the Rule 1405 Comment that (1) reduces the time for extensions of the time for sentencing from 60 to 30 days, and (2) adds a citation to Commonwealth v. Anders, 725 A.2d 170 (Pa. 1999), concerning the sanctions for failing to comply with the Rule 1405 time limits.

I.  Expansion of Rule 1405 Time Limits for Sentencing

   In the communications between the Court and the Committee, it was suggested that, as a practical matter, the 60-day period may be too short to realistically get all the sentencing information to the trial judge before sentencing, and that a 90-day period may be more consistent with other rules requiring trial court action.

   The Committee considered these points, examined the relevant case law, and reviewed the history of Rule 1405, particularly the development of the 60-day time limit. As explained in the Committee's Final Report that was published with the Court's 1993 Order adopting, inter alia, the Rule 1405 time limits, the ''Committee determined that sixty days, or approximately two months, was a reasonable time within which to expect the completion of pre-sentence investigation reports, based on the members' experience and on the information contained in the AOPC Survey.'' See 23 Pa.B. 1685, 1700 (4/10/93). The Final Report goes on to explain that the Committee recognized that there would be extraordinary circumstances when the 60-day limit was not long enough, such as when a Rule 1403 (Aids In Imposing Sentence) examination is ordered. In these cases, as stated in the Rule 1405 Comment, the extension should not be longer than sixty days beyond the Rule 1405 60-day time limit.

   In the Committee's current discussions, the members commented that the 1993 assessment of the reasonableness of the 60-day time limit was still accurate. They have found that, since the Rule 1405 time limit went into effect, it has been their experience in the jurisdictions in which they practice or are judges that there are no serious problems with meeting the time limit. However, the members were cognizant of the cases in which the courts have had difficulty meeting the time requirements, and the majority agreed that an expansion of the initial time limit would be an aid to these few lower courts without significantly compromising the original intent of the rule.

   Having agreed that the initial time for sentencing should be extended, the Committee also discussed whether there should be a change in the suggested 60-day limit on the length of an extension. We concluded that the purpose of the time limits and the goal of promoting prompt and fair sentencing procedures is best served if the total time, including any extensions, does not exceed the 120 days provided in present Rule 1405. Accordingly, Rule 1405.A(1) has been amended by changing the 60-day time limit to 90 days. In addition, the second paragraph of the ''Time for Sentencing'' section of the Comment has been revised by (1) conforming the time for sentencing with the paragraph (A)(1) amendment, and (2) changing the 60-day limit on extensions to 30 days.

II.  Commonwealth v. Anders

   The issue of sanctions for a court's failure to sentence a defendant within the Rule 1405 time limits was generated by the rule's silence, and has been the subject of several appellate court opinions. The Superior Court first addressed the matter in Commonwealth v. Thomas, 674 A.2d 1119 (Pa. Super. 1996), holding that the remedy for a violation of the Rule 1405(A) time limits on sentencing was dismissal of the charges and discharge of the defendant. Subsequently, the Superior Court, sitting en banc, overturned Thomas ''to the extent that it holds that discharge is an appropriate remedy for a violation of Rule 1405(A).'' See Commonwealth v. Anders, 699 A.2d 1258, 1262 (Pa. Super. 1997). The Supreme Court ultimately resolved the question in Commonwealth v. Anders, 725 A.2d 170 (Pa. 1999), in which Madam Justice Newman stated that ''[a]lthough Rule 1405 does not expressly provide for a remedy, it is axiomatic that every rule must have a remedy. Appellant argues, and we agree, that the appropriate remedy for a violation of Rule 1405 is discharge,'' and that discharge is not automatic, but only in cases in which the defendant ''can demonstrate that the delay in sentencing prejudiced him or her.'' Id at 173.

   Following our review of these cases, the Committee agreed that it would be helpful to the bench and bar if there was something in Rule 1405 to alert them to these issues and the Court's resolution. The Committee concluded that this could be accomplished by revising the Rule 1405 Comment to include a citation to Anders. Accordingly, the following language has been added as the last paragraph of the ''Time for Sentencing'' section of the Rule 1405 Comment:

Failure to sentence within the time specified in paragraph (A) may result in the discharge of the defendant. See Commonwealth v. Anders, 725 A.2d 170 (Pa. 1999) (discharge is appropriate remedy for violation of Rule 1405 time limits, but only if the defendant can demonstrate that the delay in sentencing was prejudicial to the defendant).

[Pa.B. Doc. No. 99-1222. Filed for public inspection July 30, 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.

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