THE COURTS

Title 234--RULES OF CRIMINAL PROCEDURE

[234 PA. CODE CH. 7]

Post-Sentence Motions: Time for Appeal; Court Order; Reconsideration

[32 Pa.B. 6076]

   The Criminal Procedural Rules Committee is planning to recommend that the Supreme Court of Pennsylvania amend Pa.R.Crim.P. 720 (Post-Sentence Procedures; Appeal) to further clarify that (1) the time for an appeal when a post-sentence motion is not timely filed is the date of the imposition of sentence; (2) the judge's order denying a post-sentence motion must be entered promptly and must contain the notice information required by the rule; and (3) the judge may not vacate sentence. 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 Report 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.

   We request that interested persons submit suggestions, comments, or objections concerning this proposal in writing to the Committee through counsel,

      Anne T. Panfil, Chief Staff Counsel
Supreme Court of Pennsylvania
Criminal Procedural Rules Committee
5035 Ritter Road, Suite 800
Mechanicsburg, PA 17055
fax: (717) 795-2106
e-mail: criminal.rules@supreme.court.state.pa.us

no later than Tuesday, January 21, 2003.

By the Criminal Procedural Rules Committee

JOHN J. DRISCOLL,   
Chair

Annex A

TITLE 234.  RULES OF CRIMINAL PROCEDURE

PART I.  GENERAL

CHAPTER 7.  POST-TRIAL PROCEDURES IN COURT CASES

PART B.  Post-Sentence Procedures

Rule 720.  Post-Sentence Procedures; Appeal.

   (A)  TIMING.

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   (3)  If the defendant does not file a timely post-sentence motion, the defendant's notice of appeal shall be filed within 30 days of imposition of sentence, except as provided in paragraph (A)(4).

   (4)  If the Commonwealth files a timely motion to modify sentence pursuant to Rule 721, 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.

*      *      *      *      *

   (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], as provided in Rule 114, forthwith [furnish] shall serve a copy of the order [by mail or personal delivery to] on 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.

   (d)  If the judge denies the post-sentence motion, the judge promptly shall enter an order that shall include the information required by paragraph (B)(4), and the order shall be filed and served as provided in Rule 114.

   [(d)] (e)  * * *

Comment

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TIMING

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   If no timely post-sentence motion is filed, the defendant's appeal period runs from the date sentence is imposed. See paragraph (A)(3). Under paragraph (A)(4), however, when the defendant has not filed a post-sentence motion but the Commonwealth files a timely motion to modify sentence under Rule 721, 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 721(B)(2)(b).

*      *      *      *      *

DISPOSITION

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   If the trial judge decides the motion within the time limits of this rule, the judge may [reconsider that decision] grant reconsideration on the post-sentence motion pursuant to 42 Pa.C.S. §  5505 or Pa.R.A.P. 1701.1, but the judge may not vacate the sentence pending reconsideration. Rule 720(B)(3). The reconsideration period may not be used to extend the timing requirements set forth in paragraph (B)(3) for decision on the post-sentence motion: the time limits imposed by paragraphs (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 paragraph (B)(3)(a) or the 30-day extension period of paragraph (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 paragraph (B)(3)(c).

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   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 revised October 15, 1997, effective January 1, 1998; amended July 9, 1999, effective January 1, 2000; renumbered Rule 720 and amended March 1, 2000, effective April 1, 2001; amended ______ , 2003, effective ______ , 2003.

Committee Explanatory Reports:

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   Report explaining the proposed clarifying changes to Rule 720 published at 32 Pa.B. 6077 (December 14, 2002).

REPORT

Proposed amendments to Rule 720
Post-Sentence Motions: Time For Appeal; Court Order; Reconsideration

INTRODUCTION

   The Committee has continued to monitor Rule 720 (Post-Sentence Procedures; Appeals) since its adoption in 1993. As a result of this monitoring, on several occasions while reaffirming the Rule 720 procedures as adopted, the Committee has recommended a few changes to clarify the intent and purpose of the rule.¹ Since the Court's most recent changes in 1999, two additional issues have been raised with the Committee that we concluded necessitate further clarification in Rule 720.²

   First, there continues to be some confusion about the time for appeal when a defendant files an untimely post-sentence motion. Second, there is some confusion about the content of the judge's order denying a post-sentence motion.

   The Committee considered these issues and concluded the post-sentence procedures in Rule 720 are meeting the needs of the criminal justice system without unduly burdening the courts. However, in an exercise of caution and as an aid to the trial and appellate courts, as explained below, the Committee is proposing a few additional changes to provide further clarification in the rule and Comment with regard to the time for appeal and the content of the judge's order.

DISCUSSION

1.  Untimely Post-Sentence Motions

   An issue that has come up from time to time in the case law concerns the time for appeal when a defendant files a post-sentence motion beyond the 10-day time limit of Rule 720(A)(1) and, notwithstanding the untimeliness of the motion, the trial court disposes of the motion. Although the appellate courts have determined in these cases the time for appeal runs from the imposition of sentence and quashed the appeals, in dicta and in some concurring and dissenting opinions, some appellate court judges have suggested Rule 720 should provide a mechanism for the trial judge to decide these untimely motions.³

   The Committee reviewed the case law and the Committee's Rule 720 history,⁴ and concluded Rule 720 should not be amended to permit the trial judge to dispose of the untimely filed post-sentence motion. Post-sentence motions are optional, and the defendant has not lost the opportunity for post-sentence review if the trial judge is not authorized to dispose of untimely filed post-sentence motions. The review just will occur in the Superior Court. Furthermore, to permit the trial judge to vacate sentence within the 30-day time period permitted by 42 Pa.C.S. § 5505 would be completely contrary to the purpose of the rule, and would open the door for the potential recurrence of the types of abuses the Court eliminated with the adoption of Rule 720.

   The Committee agreed, however, as an aid to the bench and bar, that Rule 720(A)(3) and (A)(4) should be amended by the addition of ''timely'' before ''post-sentence motion.'' Although we believe the rule is clear without these proposed changes, adding ''timely'' will remove any doubt about the intent of these provisions.

   The Committee also is proposing a correlative revision to the fourth paragraph of the ''Disposition'' section of the Comment. We reviewed the rule and Comment, and the Rule 720 history, in view of the suggestions by some Superior Court judges that pursuant to 42 Pa.C.S. § 5505 the trial judge should be able to vacate sentence to decide an untimely filed post-sentence motion, and the fact that some trial judges have been using 42 Pa.C.S. § 5505 to vacate sentence to extend the time for decision on the post-sentence motion. We noted as part of the 1997 changes to Rule 720, which had been intended to provide further clarification that the trial judge may not vacate sentence under Rule 720, that the specific references to 42 Pa.C.S. § 5505 and Pa.R.A.P. 1701 were deleted. The Committee agreed the rule would be clearer if these references were again included in the Comment.

2.  Judge's Order

   The other issue addressed by the Committee concerns the content of the judge's order denying a post-sentence motion. Apparently, because Rule 720(B)(3) does not address the trial judge issuing an order, there is some confusion about the procedures for the entry, filing, and service of the judges' orders and the contents of the orders. The Committee recognized that, in this area, it is important to ensure the defendant receives notice of the denial of the post-sentence motion as soon as possible in view of the 30-day appeal period.⁵ We therefore agreed to propose an amendment to Rule 720, adding a new paragraph (B)(3)(d) that will make it clear that (1) the trial judge must promptly enter his or her order, (2) the order must include all the information required by paragraph (B)(4), and (3) the order must be filed and served as provided in Rule 114 (Notice and Docketing of Orders). We also are proposing a correlative amendment to paragraph (B)(3)(c) to reference Rule 114 for the service requirements for the order entered on behalf of the court by the clerk of courts when a post-sentence motion is denied by operation of law.

______

   ¹ For example, in 1997, the Court amended Rule 720, inter alia, to make it clear that the judge may not vacate sentence, see Committee's explanatory Final Report at 27 Pa.B. 4553 (9/6/97), and in 1999, amended the rule to clarify the procedures when a defendant withdraws a post-sentence motion, see Committee's explanatory Final Report at 29 Pa.B. 3836 (7/24/99).

   ² One issue the Committee declined to address concerns the ongoing problem with obtaining trial transcripts in a timely manner, particularly when new counsel enters the case after trial but before post-sentence motions or a notice of appeal are filed. The Committee recognizes that there continues to be problems for the members of the bar in obtaining trial transcripts and meeting the time requirements of the Rules of Criminal and Appellate Procedure, but we do not think these are problems that can be resolved by the Criminal Rules. See discussion in section (3)(b) (Transcript Preparation), 23 Pa.B. 1701, 1704 (4/10/93).

   ³ See, for example, Judge Popovich's opinion in Commonwealth v. Felmlee, 2002 PA Super 179 (June 7, 2002), footnote 2, and Judge Klein's concurring and dissenting opinion in Felmlee. (The Superior Court has withdrawn Felmlee and granted en banc reconsideration.)

   ⁴ See Committee Final Reports explaining the provisions of new Rule 1410 (now Rule 720) and the 1997 amendments, in particular the explanation of the optional nature of the post-sentence motion and the interplay of Rule 720 with 42 Pa.C.S. § 5505 and Pa.R.A.P. 1701, at 23 Pa.B. 1699 (4/10/93), 24 Pa.B. 334 (1/15/94), and 27 Pa.B. 4553 (9/6/97).

   ⁵ The appeal period runs from the entry of the order, whether it is the judge's order denying the motion or the order entered by the clerk of courts denying the motion by operation of law. See 24 Pa.B. 334 (1/15/94). The Comment refers to Pa.R.A.P. 108 (Date of Entry of Orders) that provides ''in computing any period of time under these rules involving the date of entry of an order  . . ., the day of entry shall be the day the clerk of court  . . .  mails or delivers copies of the order to the parties. . .  .''

[Pa.B. Doc. No. 02-2212. Filed for public inspection December 13, 2002, 9:00 a.m.]

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