THE COURTS
Title 234—RULES OF CRIMINAL PROCEDURE
[ 234 PA. CODE CHS. 1 AND 9 ]
Order Revising the Comments to Rules 121 and 904 of the Rules of Criminal Procedure; No. 401 Criminal Procedural Rules Doc.
[41 Pa.B. 1999]
[Saturday, April 16, 2011]
Order Per Curiam
And Now, this 29th day of March, 2011, upon the recommendation of the Criminal Procedural Rules Committee; the proposal having been submitted without publication pursuant to Pa.R.J.A. No. 103(a)(3) in the interests of justice and efficient administration, 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 revisions of the Comments to Pennsylvania Rules of Criminal Procedure 121 and 904 are approved in the following form.
This Order shall be processed in accordance with Pa.R.J.A. No. 103(b), and shall be effective May 1, 2011.
Annex A
TITLE 234. RULES OF CRIMINAL PROCEDURE
CHAPTER 1. SCOPE OF RULES, CONSTRUCTION AND DEFINITIONS, LOCAL RULES
PART B. Counsel Rule 121. Waiver of Counsel.
* * * * *
Comment Paragraph (A) recognizes that the right to self-representation is guaranteed by the sixth amendment to the Federal Constitution when a valid waiver is made, Faretta v. California, 422 U.S. 806 (1975).
In Indiana v. Edwards, 128 S.Ct. 2379, 2388 (2008), the Supreme Court recognized, as an exception to the right to self-representation, that, when a defendant is not mentally competent to conduct his or her own defense, the U. S. Constitution permits the judge to require the defendant to be represented by counsel.
The right of a defendant to waive counsel is not automatic. Under Pennsylvania's case law, the defendant's request must be clear and unequivocal. See, e.g., Commonwealth v. Davido, 582 Pa. 52, 64-65, 868 A.2d 431, 438, cert. denied, 546 U.S. 1020 (2005).
Concerning when ''meaningful trial proceedings'' commence for purposes of a request to waive counsel for a bench trial, see Commonwealth v. El, 602 Pa. 126, 977 A.2d 1158 (2009). In El, the Court held that ''meaningful trial proceedings'' commence ''when a court has begun to hear motions which have been reserved for time of trial; when oral arguments have commenced; or when some other such substantive first step in the trial has begun.'' Id. at 139, 977 A.2d at 1165, citing Commonwealth v. Dowling, 598 Pa. 611, 959 A.2d 910 (2008) (trial commences, for purposes of the right to a trial by jury, when the trial judge determines that the parties are present and directs them to proceed to opening argument, or to the hearing of any motions that had been reserved for the time of trial, or to some other such first step in the trial).
Court decisions contain broad language in referring to the areas and matters to be encompassed in determining whether the defendant understands the full impact and consequences of his or her waiver of the right to counsel, but is nevertheless willing to waive that right. The appellate courts require, however, at a minimum, that the judge or issuing authority ask questions to elicit the information set forth in paragraph (A)(2).
Although it is advisable that the judge or issuing authority conduct the examination of the defendant, the rule does not prevent the attorney for the Commonwealth or an already-appointed or retained defense counsel from conducting all or part of the examination of the defendant as permitted by the judge or issuing authority. See Commonwealth v. McDonough, 571 Pa. 232, 812 A.2d 504 (2002).
On the issue of waiver of counsel in general, see, e.g., Commonwealth v. Tyler, 468 Pa. 193, 360 A.2d 617 (1976); Commonwealth ex rel. Fairman v. Cavell, 423 Pa. 138, 222 A.2d 722 (1966) (mere execution of a waiver of counsel form, without more, is insufficient to establish a valid waiver); Commonwealth ex rel. McCray v. Rundle, 415 Pa. 65, 202 A.2d 303 (1964); Commonwealth ex rel. O'Lock v. Rundle, 415 Pa. 515, 204 A.2d 439 (1964).
On the issue of forfeiting the right to representation, see Commonwealth v. Lucarelli, 601 Pa. 185, 971 A.2d 1173 (2009), in which the Court held that Rule 121 and its colloquy requirements do not apply to situations in which forfeiture is found. The Court explained ''where a defendant's course of conduct demonstrates his or her intention not to seek representation by private counsel, despite having the opportunity and financial wherewithal to do so, a determination that the defendant be required to proceed pro se is mandated because that defendant has forfeited the right to counsel.'' Id. at 195, 971 A.2d at 1179.
In referring to summary cases, paragraph (B) refers only to those summary cases in which there exists a right to counsel. See Rule 122.
* * * * * Official Note: Rule 318 adopted October 21, 1977, effective January 1, 1978; amended November 9, 1984, effective January 2, 1985; renumbered Rule 121 and amended March 1, 2000, effective April 1, 2001; amended December 19, 2007, effective February 1, 2008; Comment revised March 29, 2011, effective May 1, 2011.
Committee Explanatory Reports:
Final Report explaining the March 1, 2000 reorganization and renumbering of the rules published with the Court's Order at 30 Pa.B. [1477] 1478 (March 18, 2000).
Final Report explaining the December 19, 2007 changes to paragraph (A) concerning areas of inquiry for waiver colloquy published with the Court's Order at 38 Pa.B. 62 (January 5, 2008).
Final Report explaining the March 29, 2011 changes to the Comment adding citations to recent case law concerning right to counsel, time for withdrawal of waiver, and forfeiture of right to counsel published with the Court's Order at 41 Pa.B. 2000 (April 16, 2011).
CHAPTER 9. POST-CONVICTION COLLATERAL PROCEEDINGS Rule 904. Entry of Appearance and Appointment of Counsel; In Forma Pauperis.
* * * * *
Comment * * * * * Pursuant to paragraphs (F)(2) and (H)(2)(b), appointed counsel retains his or her assignment until final judgment, which includes all avenues of appeal through the Supreme Court of Pennsylvania. In making the decision whether to file a petition for allowance of appeal, counsel must (1) consult with his or her client, and (2) review the standards set forth in Pa.R.A.P. 1114 (Considerations Governing Allowance of Appeal) and the note following that rule. If the decision is made to file a petition, counsel must carry through with that decision. See Commonwealth v. Liebel, 573 Pa. 375, 825 A.2d 630 ([Pa.] 2003). Concerning counsel's obligations as appointed counsel, see Jones v. Barnes, 463 U.S. 745 (1983). See also Commonwealth v. Padden, 783 A.2d 299 (Pa. Super. 2001).
Paragraph (H) was added in 2000 to provide for the appointment of counsel for the first petition for post-conviction collateral relief in a death penalty case at the conclusion of direct review.
Paragraph (H)(1)(a) recognizes that a defendant may proceed pro se if the judge finds the defendant competent, and that the defendant's election is knowing, intelligent, and voluntary. In Indiana v. Edwards, 128 S.Ct. 2379, 2388 (2008), the Supreme Court recognized that, when a defendant is not mentally competent to conduct his or her own defense, the U. S. Constitution permits the judge to require the defendant to be represented by counsel.
An attorney may not represent a defendant in a capital case unless the attorney meets the educational and experiential requirements set forth in Rule 801 (Qualifications for Defense Counsel in Capital Cases).
Official Note: Previous Rule 1504 adopted January 24, 1968, effective August 1, 1968; rescinded December 11, 1981, effective June 27, 1982; rescission vacated June 4, 1982; rescinded February 1, 1989, effective July 1, 1989, and replaced by Rule 1507. Present Rule 1504 adopted February 1, 1989, effective July 1, 1989; amended August 11, 1997, effective immediately; amended January 21, 2000, effective July 1, 2000; renumbered Rule 904 and amended March 1, 2000, effective April 1, 2001; amended February 26, 2002, effective July 1, 2002; Comment revised March 12, 2004, effective July 1, 2004; Comment revised June 4, 2004, effective November 1, 2004; amended April 28, 2005, effective August 1, 2005; Comment revised March 29, 2011, effective May 1, 2011.
Committee Explanatory Reports:
* * * * * Final Report explaining the March 29, 2011 revision of the Comment concerning right to counsel published with the Court's Order at 41 Pa.B. 2000 (April 16, 2011).
FINAL REPORT1
Revisions of the Comments to Pa.Rs.Crim.P.
121 and 904
Qualified Right to Proceed Pro Se; Forfeiture
of Right to Counsel; Timeliness of Request
to Proceed Pro SeOn March 29, 2011, effective May 1, 2011, upon the recommendation of the Criminal Procedural Rules Committee, the Court approved the revision of the Comments to Rules of Criminal Procedure 121 (Waiver of Counsel) and 904 (Entry of Appearance and Appointment of Counsel; In Forma Pauperis). The revisions add citations to recent case law that address the defendant's right to proceed pro se, defendant's forfeiture of the right to appointed counsel by his or her behavior, and the timeliness of a defendant's request to proceed pro se.
In Indiana v. Edwards, 128 S.Ct. 2379, 2388 (2008), the United States Supreme Court held that ''the Constitution permits judges to take realistic account of the particular defendant's mental capacities by asking whether a defendant who seeks to conduct his own defense at trial is mentally competent to do so. That is to say, the Constitution permits States to insist upon representation by counsel for those competent enough to stand trial under Dusky2 but who still suffer from severe mental illness to the point where they are not competent to conduct trial proceedings by themselves.''
In Commonwealth v. Lucarelli, 601 Pa. 185, 971 A.2d 1173 (2009), the Court held that ''where a defendant's course of conduct demonstrates his or her intention not to seek representation by private counsel, despite having the opportunity and financial wherewithal to do so, a determination that the defendant be required to proceed pro se is mandated because that defendant forfeited the right to counsel.'' The Court further held that Rule 121 ''and its colloquy requirements do not apply to situations where forfeiture is found.'' Id. at 195, 971 A.2d at 1179.
In Commonwealth v. El, 602 Pa. 126, 977 A.2d 1158 (2009), the Court, in determining whether a defendant's request to proceed pro se was timely, clarifies what is meant by ''meaningful trial proceedings'' in the context of the timeliness of a request to proceed pro se. The Court explains
While this Court's holding in Dowling is not controlling, its rationale is persuasive. The Dowling Court held that in the context of the right to a trial by jury, trial commences ''when a court has begun to hear motions which have been reserved for time of trial; when oral arguments have commenced; or when some other such substantive first step in the trial has begun.'' Dowling, 959 A.2d at 915. We hold that these same events constitute the beginning of ''meaningful trial proceedings'' in the context of the right to self-representation. Just as this Court observed in Dowling we likewise observe that meaningful trial proceedings should be ''marked by a substantive, rather than a pro forma, event.'' Id. at 139, 977 A.2d at 1165.Rule 121 sets forth the criteria for waiver of counsel and for proceeding pro se. Both Edwards and Lucarelli apply substantive procedures that are new to Pennsylvania law. These decisions impact defendants' rights to counsel and right to waive counsel by (1) permitting a judge to deny a defendant's request to waive counsel when the judge determines the defendant is not competent to do so, and (2) permitting a judge to find that a defendant has forfeited his or her right to appointed counsel by his or her behavior. In view of this, the Committee agreed that these two cases should be cited in the Rule 121 Comment to alert to the bench and bar to the application of the new substantive procedures.
The El Court is clarifying the time for making a request to waive counsel, not making new law per se. However, the Committee reasoned that because the time for making a waiver request has been the subject of confusion in the case law, this case also should be cited in the Rule 121 Comment to alert the bench and bar to this clarification.
A reference to the Edwards case also has been added to the Rule 904 Comment. Rule 904(H)(1)(a) allows a judge to permit a defendant to proceed pro se if the judge finds the defendant competent and the waiver of counsel is voluntary, knowing, and intelligent. Although Rule 904 is not a waiver of counsel rule, because this paragraph addresses waiver of counsel in death penalty cases in the context of the PCRA, the Committee agreed the Edwards cross-reference is important for the bench and bar.
[Pa.B. Doc. No. 11-647. Filed for public inspection April 15, 2011, 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.
2 Dusky v. United States, 362 U.S. 402 (1960).
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