THE COURTS

Title 234--RULES OF CRIMINAL PROCEDURE

[234 PA. CODE CHS. 1 AND 4]

Right to Counsel at Summary Trial

[32 Pa.B. 6247]

   The Criminal Procedural Rules Committee is planning to recommend that the Supreme Court of Pennsylvania amend Rules 122 (Assignment of Counsel) and 454 (Trial in Summary Cases) to make it clear that no defendant in a summary case may be imprisoned or sentenced to probation if the right to counsel was not afforded at trial. 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.

   The text of the proposed amendments precede the Report. Additions are shown in bold and deletions are shown in bold and are bracketed.

   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.rulessupreme.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

CHAPTER 1.  SCOPE OF RULES, CONSTRUCTION AND DEFINITIONS, LOCAL RULES

PART B.  Counsel

Rule 122.  Assignment of Counsel.

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Comment

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   No defendant may be sentenced to imprisonment or probation if the right to counsel was not afforded at trial. See Alabama v. Shelton, 535 U.S. 654 (2002) and Scott v. Illinois, 440 U.S. 367 (1979). See Rule 454 (Trial in Summary Cases) concerning the right to counsel at a summary trial.

   Assignment of counsel can be waived, if such waiver is knowing, intelligent, and voluntary. See Faretta v. California, 422 U.S. 806 (1975). Concerning the appointment of standby counsel for the defendant who elects to proceed pro se, see Rule 121.

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   Official Note: Rule 318 adopted November 29, 1972, effective 10 days hence; replacing prior rule; amended September 18, 1973, effective immediately; renumbered Rule 316 and amended June 29, 1977, and October 21, 1977, effective January 1, 1978; renumbered Rule 122 and amended March 1, 2000, effective April 1, 2001; Comment revised          , 2003, effective          , 2003.

Committee Explanatory Reports:

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   Report explaining the proposed changes concerning Alabama v. Shelton published at 32 Pa.B. 6248 (December 21, 2002).

CHAPTER 4.  PROCEDURES IN SUMMARY CASES

PART E.  General Procedures in Summary Cases

Rule 454.  Trial in Summary Cases.

   (A)  Immediately prior to trial in a summary case:

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   (2)  [when] if, in the event of a conviction, there is a reasonable likelihood of a sentence of imprisonment or probation, the defendant shall be advised of the right to counsel and [shall,]

   (a)  upon request, the defendant shall be given a reasonable opportunity to secure counsel[; and], or

   (b)  if the defendant is without financial resources or is otherwise unable to employ counsel, counsel shall be assigned as provided in Rule 122; and

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Comment

   [The defendant has a right to counsel at trial in all summary cases in which the issuing authority determines there is a likelihood of imprisonment.] No defendant may be sentenced to imprisonment or probation if the right to counsel was not afforded at trial. See Alabama v. Shelton, 535 U.S. 654 (2002) and Scott v. Illinois, 440 U.S. 367 (1979). See Rules 121 and 122 [and 121].

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   Official Note: Rule 83 adopted July 12, 1985, effective January 1, 1986; amended September 23, 1985, effective January 1, 1986; effective date extended to July 1, 1986; amended February 2, 1989, effective March 1, 1989; amended October 28, 1994, effective as to cases instituted on or after January 1, 1995; Comment revised April 18, 1997, effective July 1, 1997; amended October 1, 1997, effective October 1, 1998; Comment revised February 13, 1998, effective July 1, 1998; renumbered Rule 454 and Comment revised March 1, 2000, effective April 1, 2001; amended          , 2003, effective          , 2003.

   Committee Explanatory Reports:

*      *      *      *      *

   Report explaining the proposed changes concerning Alabama v. Shelton published at 32 Pa.B. 6248 (December 21, 2002).

REPORT

Amendment to Pa.Rs.Crim.P. 122 and 454

RIGHT TO COUNSEL AT SUMMARY TRIAL

   The Committee received correspondence from the Court asking us to review Alabama v. Shelton, 122 S.Ct. 1764 (2002) holding that a sentence that may end up in actual deprivation of personal liberty, e.g., imprisonment following probation violation, may not be imposed ''unless the defendant was accorded the guiding hand of counsel in the prosecution for crime charged;'' ''without a knowing and intelligent waiver, no person may be imprisoned for any offense unless he was represented by counsel at his trial'' (quoting Argersinger v. Hamlin, 407 U.S. 25 (1972)); imprisonment following a probation violation does not result from the violation itself but from the underlying conviction. The correspondence pointed out that some concerns had arisen concerning whether the Criminal Rules in Pennsylvania are consistent with the holding in Shelton, and requested the Committee to consider whether, in view of Shelton, any changes to the Criminal Rules concerning the right to counsel in summary cases are necessary.

   The Committee reviewed the Criminal Rules in light of Shelton, and agreed that although the rules are clear concerning the right to counsel in court cases, there might be a gap in the rules concerning summary cases. Counsel in a summary case is required when ''there is a likelihood that imprisonment will be imposed'' (see Rule 122); the Committee believes that this language, in view of Shelton, may be ambiguous, and could result in confusion for members of the bench and bar. As a result, we agreed to reference in the rules the Shelton case to highlight the potential consequences when counsel is not afforded at trial.

   How to accomplish this presented a challenge. The Committee first considered amending Rule 122 (Assignment of Counsel) by adding language that would make it clear counsel must be assigned when there is a likelihood that a sentence to a period of probation will be imposed and including a reference to Shelton in the Comment. During our discussion of this change, we agreed Rule 122 which addresses the circumstances when counsel should be assigned merely should acknowledge Shelton in the Comment, and Rule 454 (Trial in Summary Cases) should be amended since the holding in Shelton directly applies of the defendant's right to counsel at the time of the conviction for the offense charged (imprisonment may not be imposed if the defendant was not afforded counsel at time of the trial). Accordingly, we are proposing the amendment of Rule 454(A) to make it clear that if there is a reasonable likelihood of a sentence of imprisonment or probation in a summary case, the defendant shall be given an opportunity to secure counsel or have counsel assigned pursuant to Rule 122. We also are proposing the revision of the Comments to Rules 122 and 454 by adding the language ''No defendant may be imprisoned or sentenced to probation if the right to counsel was not afforded at trial. See Alabama v. Shelton, 122 S.Ct. 1764 (2002) and Scott v. Illinois, 440 U.S. 367??? 99 S.Ct. 1158 (1979).''¹

 

[Pa.B. Doc. No. 02-2264. Filed for public inspection December 20, 2002, 9:00 a.m.]

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¹  The Committee is including the reference to Scott because the Shelton Court relied on Scott and Argersinger v. Hamlin, 407 U.S. 25 (1972). The Comments to these rules already reference Argersinger.

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