THE COURTS
Title 231--RULES OF
CIVIL PROCEDURE
PART I. GENERAL
[231 PA. CODE CH. 1930]
Assignment of Counsel; Recommendation 64
[33 Pa.B. 1580] The Domestic Relations Procedural Rules Committee is planning to recommend that the Supreme Court of Pennsylvania adopt new Pa.R.C.P. 1930.7 (Assignment of Counsel) regarding a defendant's right to counsel in family law matters in which the defendant may be sentenced to a period of imprisonment. This proposal has not been submitted for review by the Supreme Court of Pennsylvania.
The explanatory Committee Report following the proposed rule highlights the committee's considerations in formulating this recommendation. Notes and explanatory comments which appear with proposed amendments have been inserted by the committee for the convenience of those using the rules. Reports, notes and comments will not constitute part of the rules and will not be officially adopted or promulgated by the Supreme Court.
The Committee solicits comments and suggestions from all interested persons prior to submission of this proposal to the Supreme Court of Pennsylvania. Please submit written comments no later than Friday, May 2, 2003, directed to:
Patricia A. Miles, Esquire
Counsel, Domestic Relations Procedural Rules Committee
5035 Ritter Road, Suite 700
Mechanicsburg, Pennsylvania 17055
FAX (717) 795-2175
E-mail patricia.miles@supreme.court.state.pa.usBy the Domestic Relations Procedural Rules Committee
ROBERT C. CAPRISTO,
Chair
Annex A
TITLE 231. RULES OF CIVIL PROCEDURE
PART I. GENERAL
CHAPTER 1930. RULES RELATING TO DOMESTIC RELATIONS MATTERS GENERALLY Rule 1930.7. Assignment of Counsel.
(a) Prior to any contempt proceeding in which a defendant may be sentenced to a period of imprisonment, the defendant shall be advised of the right to counsel and, upon request, be given a reasonable opportunity to secure counsel. In contempt proceedings in which a period of imprisonment may be imposed, the court shall appoint counsel to represent a defendant who is without financial resources, or who is otherwise unable to employ counsel, unless the defendant knowingly, voluntarily and intelligently waives the right to counsel in writing or on the record.
(b) A motion for change of counsel by a defendant to whom counsel has been assigned shall not be granted except for substantial reasons.
(c) Where counsel has been assigned, such assignment shall be effective until final judgment, including any proceedings on direct appeal.
Official Note: Application for appointment of counsel when the defendant is without financial resources shall be pursuant to local rule.
Committee Report
Rule 1930.7
Recommendation 64 The Supreme Court of Pennsylvania asked the Domestic Relations Procedural Rules Committee to review the Rules of Civil Procedure related to domestic relations matters in light of the United States Supreme Court's decision in Alabama v. Shelton, 122 S. Ct. 1764 (2002). In that case, the court held that a suspended sentence that may result in an actual deprivation of a person's liberty may not be imposed unless the defendant was accorded the right to counsel in the prosecution for the crime charged. 122 S. Ct. at 1767 (citing Argersinger v. Hamlin, 407 U.S. 25, 92 S. Ct. 2006, 32 L.Ed. 2d 530 (1972) (holding that defense counsel must be appointed in a criminal prosecution that leads to imprisonment)). The court also reaffirmed its holding in Scott v. Illinois, 440 U.S. 367, 99 S. Ct. 1158, 59 L.Ed. 2d 383 (1979), that actual imprisonment is the trigger for the right to appointed counsel in a criminal matter. In Shelton, Argersinger, and Scott, the underlying charges were criminal in nature and thus were analyzed under the Sixth Amendment to the United States Constitution.
Although family law matters generally are civil in nature, willful failure to comply with certain domestic relations orders may result in a party being sentenced to a period of incarceration. For example, a person who willfully fails to comply with a support, visitation or partial custody order may be held in contempt and imprisoned for a period of up to six months. 23 Pa.C.S. §§ 4345(a), 4346(a). In such contempt cases, sentences often are suspended so long as the defendant remains in compliance with the terms of the support or custody order.
The Supreme Court of Pennsylvania has stated that ''in certain situations, the Due Process Clause of the Fourteenth Amendment to the United States Constitution may require court appointed counsel in civil matters.'' Commonwealth v. $9,847.00 U.S. Currency, 704 A.2d 612, 615 (Pa. 1997) (citing Mathews v. Eldridge, 424 U.S. 319, 96 S. Ct. 893, 47 L.Ed. 2d 18 (1976)). Noting that there is a presumption that ''an indigent litigant has a right to court-appointed counsel only when, if he loses, he may be deprived of his physical liberty,'' the court determined that an indigent litigant did not have a constitutional right to appointed counsel in civil forfeiture proceedings. Id. (quoting Lassiter v. Department of Social Services, 452 U.S. 18, 26, 101 S. Ct. 2153, 2159, 68 L.Ed. 2d 640 (1981)). Earlier, in Corra v. Coll, 451 A.2d 480, 482 (Pa. Super. 1982), the Pennsylvania Superior Court opined that ''a wooden civil/criminal distinction'' would not resolve the question of whether an indigent defendant has a right to appointed counsel. Also applying the three balancing factors in Mathews and the Lassiter presumption, the Corra court held that due process requires that indigent defendants be entitled to the appointment of counsel in civil paternity actions.
[I]dentification of the specific dictates of due process generally requires consideration of three distinct factors: First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.424 U.S. at 335, 96 S. Ct. at 903.
One Pennsylvania common pleas court has held that an indigent defendant in a support matter is entitled to court-appointed counsel in civil contempt proceedings because there is a possibility of incarceration. In that case, Carnes v. Carnes, 7 D.&C. 4th 4 (Erie 1990), appeal quashed, 598 A.2d 1325 (Pa. Super. 1991), the plaintiff filed a petition for civil contempt for violation of a support order and the defendant petitioned for court-appointed counsel. In his petition, the defendant alleged that he was on public assistance, did not have the resources to retain counsel and that he had been denied representation by the public defender's office and legal services. He argued that because he was indigent and at risk of losing his liberty, he had a right to appointed counsel. Applying Mathews and Lassiter, as well as the reasoning in Corra, the trial court agreed with the defendant and appointed counsel. Further, the court stated, ''It is axiomatic that, once it has been determined that the indigent defendant has a right to court-appointed counsel, he or she must be informed of that right and that, once informed, may knowingly and intelligently waive that right.'' Id. at 11.
In light of the cases discussed above, the committee agrees that the Rules of Civil Procedure relating to domestic relations matters should be amended to provide that an indigent defendant has a right to court-appointed counsel, or must knowingly waive that right, in domestic relations contempt proceedings in which a sentence of imprisonment, suspended or not, may be imposed. The committee thus proposes new Rule 1930.7 in the series of Rules Relating to Domestic Relations Matters Generally.
[Pa.B. Doc. No. 03-561. Filed for public inspection March 28, 2003, 9:00 a.m.]
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