THE COURTS
Title 234--RULES OF CRIMINAL PROCEDURE
[234 PA. CODE CH. 7]
Order Approving the Revision of the Comments to Rules 702 and 704; No. 293 Criminal Procedural Rules; Doc. No. 2
[33 Pa.B. 1927] The Criminal Procedural Rules Committee has prepared a Final Report explaining the revision of the Comments to Rules of Criminal Procedure 702 (Aids in Imposing Sentence) and 704 (Procedure at Time of Sentencing). These changes alert members of the bench and bar to the statutory requirements concerning consideration of preexisting orders when determining the amount of restitution at the time of sentencing. The Final Report follows the Court's Order.
Order Per Curiam:
Now, this 27th day of March, 2003, upon the recommendation of the Criminal Procedural Rules Committee; the proposal having been submitted without publication pursuant to Pa.R.J.A. 103(a)(3), the changes being perfunctory in nature, 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 the revision of the Comments to Rules of Criminal Procedure 702 and 704 is hereby approved in the following form.
This Order shall be processed in accordance with Pa.R.J.A. 103(b), and shall be effective July 1, 2003.
Annex A
TITLE 234. RULES OF CRIMINAL PROCEDURE
CHAPTER 7. POST-TRIAL PROCEDURES IN COURT CASES
PART A. Sentencing Procedures Rule 702. Aids in Imposing Sentence.
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Comment For purposes of paragraph (A)(2)(c), whether the defendant has a prior juvenile adjudication is immaterial. Paragraph (A)(3) indicates in general terms what the contents of the pre-sentence investigation report must include. With respect to the particularized contents of such reports, see Commonwealth v. Martin, 351 A.2d 650 (Pa. 1976). Concerning other information that would be helpful for the sentencing judge to have in the pre-sentencing investigation report, see 18 Pa.C.S. § 1106(c)(2)(iv) (the judge, when determining the amount of restitution, must consider ''any other preexisting orders imposed on the defendant, including, but not limited to, orders imposed under this title or any other title'').
* * * * * Official Note: Rule 1403 adopted July 23, 1973, effective 90 days hence; amended June 28, 1976, effective January 1, 1977; amended November 1, 1991, effective January 1, 1992; amended March 22, 1993, effective January 1, 1994; Comment revised April 18, 1997, effective immediately; renumbered Rule 702 and amended March 1, 2000, effective April 1, 2001; Comment revised March 27, 2003; effective July 1, 2003.
Committee Explanatory Reports:
* * * * * Final Report explaining the March 27, 2003 Comment revision adding a cross-reference to 18 Pa.C.S. § 1106 published with the Court's Order at 33 Pa.B. 1928 (April 19, 2003).
Rule 704. Procedure at Time of Sentencing.
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Comment * * * * * SENTENCING PROCEDURES
* * * * * It is difficult to set forth all the standards [which] that a judge must utilize and consider in imposing sentence. It is recommended that, at a minimum, the judge look to the standards and guidelines as specified by statutory law. See the Judicial Code, 42 Pa.C.S. § 9701 et seq. See also Commonwealth v. Riggins, 377 A.2d 140 (Pa. 1977) and Commonwealth v. Devers, 546 A.2d 12 (Pa. 1988). The judge also should consider other preexisting order imposed on the defendant. See 18 Pa.C.S. § 1106(c)(2)(iv). And see 42 Pa.C.S. § 9728.
* * * * * 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; renumbered Rule 704 and amended March 1, 2000, effective April 1, 2001; Comment revised March 27, 2003, effective July 1, 2003.
Committee Explanatory Reports:
* * * * * Final Report explaining the March 27, 2003 Comment revision adding cross-reference to 18 Pa.C.S. § 1106 and 42 Pa.C.S. § 9728 published with the Court's Order at 33 Pa.B. 1928 (April 19, 2003).
FINAL REPORT1
Proposed Revision of the Comments to
Pa.Rs.Crim.P. 702 and 704
CONSIDERATION OF PREEXISTING ORDERS WHEN DETERMINING RESTITUTION On March 27, 2003, effective July 1, 2003, upon the recommendation of the Criminal Procedural Rules Committee, the Court approved the revision of the Comments to Pa.Rs.Crim.P. 702 (Aids in Imposing Sentence) and 704 (Procedure at Time of Sentencing). These changes alert members of the bench and bar to the statutory requirements concerning consideration of preexisting orders when determining the amount of restitution at the time of sentencing.
The Committee undertook a review of the sentencing rules after receiving correspondence from the Court's Domestic Relations Procedural Rules Committee that requested we consider a change to the Criminal Rules that would require the sentencing courts to take into consideration child support orders when ordering restitution. The Domestic Relations Committee specifically noted that 18 Pa.C.S. § 1106(c)(2)(iv), concerning restitution for injuries to person or property, requires the court, when determining the method and amount of restitution, to ''consider any other preexisting orders imposed on the defendant, including, but not limited to, orders imposed under this title or any other title.'' Relying on this language, the Domestic Relations Committee suggested that ''existing support orders should be considered in ordering restitution . . .'' and there should be ''a standard procedure in place to assure that at least some of the defendant's available income goes to the support of his or her dependents . . . .''
The Committee carefully considered the issue raised by the Domestic Relations Committee. We do not think the Criminal Rules specifically should refer to domestic relations orders because there are other types of orders that are governed by 18 Pa.C.S. § 1106(c)(2)(iv), and we concluded it would be (1) confusing to the bench and bar to single out domestic relations orders in the Criminal Rules, and (2) difficult and even mischievous to attempt to list all the types of orders that might fall within the parameters of 18 Pa.C.S. § 1106(c)(2)(iv). However, we agreed it would be helpful to include a cross-reference to Section 1106 in the sentencing rules to alert members of the bench and bar to this statutory provision. To accomplish this, the following language has been added to the Rule 702 Comment:
Concerning other information that would be helpful for the sentencing judge to have in the pre-sentence investigation report, see 18 Pa.C.S. § 1106(c)(2)(iv) (the judge, when determining the amount of restitution, must consider ''any other preexisting orders imposed on the defendant, including, but not limited to, orders imposed under this title or any other title'').A reference to 18 Pa.C.S. § 1106(c)(2)(iv) also has been included in the Rule 704 Comment.
In addition, as part of our review, the Committee considered the provision of 42 Pa.C.S. § 9728 (Collection of restitution, reparation, fees, costs, fines and penalties) that requires, notwithstanding a defendant's obligations, at least 50% of all moneys collected must be used to pay restitution to victims. We agreed a citation to 42 Pa.C.S. § 9728(g.1) also should be added in the Rule 704 Comment to highlight this requirement. Accordingly, the following provision has been added to the Rule 704 Comment:
The judge also should consider other preexisting orders imposed on the defendant. See 18 Pa.C.S. § 1106(c)(2)(iv). And see 42 Pa.C.S. § 9728.
[Pa.B. Doc. No. 03-706. Filed for public inspection April 18, 2003, 9:00 a.m.] _______
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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