THE COURTS
[ 234 PA. CODE CH. 4 ]
Order Approving the Revision of the Comments to Rules 430, 455 and 456 of the Rules of Criminal Procedure; No. 420 Criminal Procedural Rules Doc.
[43 Pa.B. 654]
[Saturday, February 2, 2013]
Order Per Curiam
And Now, this 17th day of January, 2013, upon the recommendation of the Criminal Procedural Rules Committee; the proposal having been published before adoption at 39 Pa.B. 2318 (May 9, 2009), and in the Atlantic Reporter (Second Series Advance Sheets, Vol. 967), 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 to the Comments to Pennsylvania Rules of Criminal Procedure 430, 455, and 456 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, 2013.
Annex A
TITLE 234. RULES OF CRIMINAL PROCEDURE
CHAPTER 4. PROCEDURES IN SUMMARY CASES
PART D. Arrest Procedures in Summary Cases
PART D(1). Arrests With a Warrant Rule 430. Issuance of Warrant.
* * * * *
Comment Personal service of a citation under paragraph (B)(1) is intended to include the issuing of a citation to a defendant as provided in Rule 400(A) and the rules of Chapter 4, Part B(1).
When the defendant is under 18 years of age, and the defendant has failed to respond to the citation, the issuing authority must issue a summons as provided in Rule 403(B)(4)(a). If the [juvenile] defendant fails to respond to the summons, the issuing authority should issue a warrant as provided in either paragraph (A)(1) or (B)(1). See also the Public School Code of 1949, 24 P. S. § 13-1333(b)(2) that permits the issuing authority to allege the defendant dependent.
* * * * * [If] Except in cases brought pursuant to the Public School Code of 1949, 24 P. S. § 1-102 et seq., in which the defendant is at least 13 years of age but not yet 17, if the defendant is under 18 years of age and has not paid the fine and costs, the issuing authority must issue the notice required by paragraph (B)(4) to the defendant and the defendant's parents, guardian, or other custodian informing the defendant and defendant's parents, guardian, or other custodian that, if payment is not received or the defendant does not appear within the 10-day time period, the issuing authority will certify notice of the failure to pay to the court of common pleas as required by the Juvenile Act, 42 Pa.C.S. § 6302, definition of ''delinquent act,'' paragraph (2)(iv). Thereafter, the case will proceed pursuant to the Rules of Juvenile Court Procedure and the Juvenile Act instead of these rules.
If the defendant is charged with a violation of the compulsory attendance requirements of the Public School Code of 1949, 24 P. S. § 1-102, et seq.; has attained the age of 13 but is not yet 17; and has failed to pay the fine, the issuing authority must issue the notice required by paragraph (B)(4) to the defendant and the defendant's parents, guardian, or other custodian informing the defendant and defendant's parents, guardian, or other custodian that, if payment is not received or the defendant does not appear within the 10-day time period, the issuing authority may allege the defendant dependent under 42 Pa.C.S. § 6303(a)(1). Pursuant to 24 P. S. § 13-1333(b)(2), the defendant's failure to pay is not a delinquent act and the issuing authority would not certify notice of the failure to pay to the common pleas court.
If the defendant is 18 years of age or older when the default in payment occurs, the issuing authority must proceed under these rules.
When contempt proceedings are also involved, see Chapter 1 Part D for the issuance of arrest warrants.
See Rule 431 for the procedures when a warrant of arrest is executed.
Official Note: Rule 75 adopted July 12, 1985, effective January 1, 1986; effective date extended to July 1, 1986; amended January 31, 1991, effective July 1, 1991; amended April 18, 1997, effective July 1, 1997; amended October 1, 1997, effective October 1, 1998; amended July 2, 1999, effective August 1, 1999; renumbered Rule 430 and amended March 1, 2000, effective April 1, 2001; amended February 28, 2003, effective July 1, 2003; Comment revised August 7, 2003, effective July 1, 2004; Comment revised April 1, 2005, effective October 1, 2005; amended June 30, 2005, effective August 1, 2006; amended January 26, 2007, effective February 1, 2008; Comment revised September 18, 2008, effective February 1, 2009; Comment revised January 17, 2013, effective May 1, 2013.
Committee Explanatory Reports:
* * * * * Final Report explaining the September 18, 2008 revision of the Comment concerning the United States Postal Service's return receipt electronic option published with the Court's Order at 38 Pa.B. 5428 (October 4, 2008).
Final Report explaining the January 17, 2013 revision of the Comment concerning the Public School Code of 1949 published with the Court's Order at 43 Pa.B. 656 (February 2, 2013).
PART E. General Procedures in Summary Cases Rule 455. Trial in Defendant's Absence.
* * * * *
Comment In those cases in which the issuing authority determines that there is a likelihood that the sentence will be imprisonment or that there is other good cause not to conduct the trial in the defendant's absence, the issuing authority may issue a warrant for the arrest of the defendant in order to have the defendant brought before the issuing authority for the summary trial. See Rule 430(B). The trial would then be conducted with the defendant present as provided in these rules. See Rule 454.
When the defendant was under 18 years of age at the time of the offense, if a mandatory sentence of imprisonment is prescribed by statute, the issuing authority may not conduct the trial, but must [foreward] forward the case to the court of common pleas for disposition. See the Juvenile Act, 42 Pa.C.S. §§ 6302 and 6303.
Paragraph (D) provides notice to the defendant of conviction and sentence after trial in absentia to alert the defendant that the time for filing an appeal has begun to run. See Rule 413(B)(3).
[If] Except in cases under the Public School Code of 1949, 24 P. S. § 1-102, et seq., in which the defendant is at least 13 years of age but not yet 17, if the defendant is under 18 years of age, the notice in paragraph (D) must inform the defendant and defendant's parents, guardian, or other custodian that, if payment is not received or the defendant does not appear within the 10-day time period, the issuing authority will certify notice of the failure to pay to the court of common pleas as required by the Juvenile Act, 42 Pa.C.S. § 6302, definition of ''delinquent act,'' paragraph (2)(iv), and the case will proceed pursuant to the Rules of Juvenile Court Procedure and the Juvenile Act instead of these rules.
If the defendant is charged with a violation of the compulsory attendance requirements of the Public School Code of 1949, 24 P. S. § 1-102, et seq.; has attained the age of 13 but is not yet 17; and has failed to pay the fine, the issuing authority must issue the notice required by paragraph (B)(4) to the defendant and the defendant's parents, guardian, or other custodian informing the defendant and defendant's parents, guardian, or other custodian that, if payment is not received or the defendant does not appear within the 10-day time period, the issuing authority may allege the defendant dependent under 42 Pa.C.S. § 6303(a)(1). Pursuant to 24 P. S. § 13-1333(b)(2), the defendant's failure to pay is not a delinquent act and the issuing authority would not certify notice of the failure to pay to the common pleas court.
If the defendant is 18 years of age or older and fails to pay or appear as required in paragraph (D), the issuing authority must proceed under these rules.
For the defendant's right to counsel, see Rule 122.
For arrest warrant procedures in summary cases, see Rules 430 and 431.
Official Note: Rule 84 adopted July 12, 1985, effective January 1, 1986; January 1, 1986 effective date extended to July 1, 1986; amended February 1, 1989, effective July 1, 1989; amended April 18, 1997, effective July 1, 1997; amended October 1, 1997, effective October 1, 1998; renumbered Rule 455 and Comment revised March 1, 2000, effective April 1, 2001; Comment revised August 7, 2003, effective July 1, 2004; Comment revised April 1, 2005, effective October 1, 2005; amended August 15, 2005, effective February 1, 2006; Comment revised January 17, 2013, effective May 1, 2013.
Committee Explanatory Reports:
* * * * * Final Report explaining the August 15, 2005 amendments to paragraph (D) concerning notice of right to appeal published with the Court's Order at 35 Pa.B. 4918 (September 3, 2005).
Final Report explaining the January 17, 2013 revisions of the Comment concerning the Public School Code of 1949 published with the Court's Order at 43 Pa.B. 656 (February 2, 2013).
Rule 456. Default Procedures: Restitution, Fines, and Costs.
* * * * *
Comment * * * * * [If] Except in cases under the Public School Code of 1949, 24 P. S. § 1-102, et seq., in which the defendant is at least 13 years of age but not yet 17, if the defendant is under 18 years of age, the notice in paragraph (B) must inform the defendant and defendant's parents, guardian, or other custodian that, if payment is not received or the defendant does not appear within the 10-day time period, the issuing authority will certify notice of the failure to pay to the court of common pleas as required by the Juvenile Act, 42 Pa.C.S. § 6302, definition of ''delinquent act,'' paragraph (2)(iv), and the case will proceed pursuant to the Rules of Juvenile Court Procedure and the Juvenile Act instead of these rules.
If the defendant is charged with a violation of the compulsory attendance requirements of the Public School Act of 1949, 24 P. S. § 1-102, et seq.; has attained the age of 13 but is not yet 17; and has failed to pay the fine, the issuing authority must issue the notice required by paragraph (B)(4) to the defendant and the defendant's parents, guardian, or other custodian informing the defendant and defendant's parents, guardian, or other custodian that, if payment is not received or the defendant does not appear within the 10-day time period, the issuing authority may allege the defendant dependent under 42 Pa.C.S. § 6303(a)(1). Pursuant to 24 P. S. § 13-1333(b)(2), the defendant's failure to pay is not a delinquent act and the issuing authority would not certify notice of the failure to pay to the common pleas court.
If the defendant is 18 years or older when the default in payment occurs, the issuing authority must proceed under these rules.
* * * * * Official Note: Adopted July 12, 1985, effective January 1, 1986; amended September 23, 1985, effective January 1, 1986; January 1, 1986 effective dates extended to July 1, 1986; Comment revised February 1, 1989, effective July 1, 1989; rescinded October 1, 1997, effective October 1, 1998. New Rule 85 adopted October 1, 1997, effective October 1, 1998; amended July 2, 1999, effective August 1, 1999; renumbered Rule 456 and amended March 1, 2000, effective April 1, 2001; Comment revised August 7, 2003, effective July 1, 2004; amended March 3, 2004, effective July 1, 2004; Comment revised April 1, 2005, effective October 1, 2005; Comment revised September 21, 2012, effective November 1, 2012; Comment revised January 17, 2013, effective May 1, 2013.
Committee Explanatory Reports:
* * * * * Final Report explaining the September 21, 2012 Comment revision correcting the typographical error in the fourth paragraph published with the Court's Order at 42 Pa.B. 6251 (October 6, 2012).
Final Report explaining the January 17, 2013 revisions of the Comment concerning the Public School Code of 1949 published with the Court's Order at 43 Pa.B. 656 (February 2, 2013).
FINAL REPORT1
Revisions of the Comments to Pa.Rs.Crim.P.
430, 455, and 456
Summary Case Rules and Truancy under
Public School Code of 1949On January 17, 2013, effective May 1, 2013, upon the recommendation of the Criminal Procedural Rules Committee, the Court approved the revisions to the Comments to Pa.R.Crim.P. 430 (Issuance of Warrant), Pa.R.Crim.P. 455 (Trial in Defendant's Absence), and Pa.R.Crim.P. 456 (Default Procedures: Restitution, Fines, and Costs) to clarify the treatment under the Criminal Procedural Rules of cases involving a child, as defined in the Public School Code of 1949, 24 P. S. § 1-102 et seq., who has failed to pay fines and costs following a summary conviction for truancy.
I. Introduction
As part of the recent re-design of the Magisterial District Judges System (MDJS), a question arose concerning how to proceed under the Criminal Rules with cases in which a defendant fails to pay fines following a summary conviction for truancy. The confusion centers on the differences in the statutory provisions in the Juvenile Act, 42 Pa.C.S. § 6301 et seq., and the Public School Code of 1949, 24 P. S. § 1-102 et seq. for summary offenses committed by defendants between the ages of 13 and 17. Section 6302 of the Juvenile Act defines ''delinquent act,'' and paragraph (iv) of the definition specifically excludes ''summary offenses unless the child fails to comply with a lawful sentence imposed thereunder.'' ''Child'' is defined, inter alia, as ''an individual who is under the age of 18 years'' or ''is under the age of 21 years who committed an act of delinquency before reaching the age of 18 years.'' 42 Pa.C.S. § 6302. Section 13-1333 of the Public School Code of 1949, provides, inter alia, that a child, who has attained the age of 13 years but is not yet 17, who fails to comply with the provisions of the Public School Code commits a summary offense and, upon conviction, will be sentenced to pay a fine. The Code further provides that the failure to pay the fine is not a delinquent act, but the magisterial district judge may allege the child to be dependent under the Juvenile Act.
The Criminal Rules currently only provide procedures for defendants who fall within the scope of the Juvenile Act. Pursuant to these procedures, if a defendant under the age of 18 does not pay the fines and costs, the magisterial district judge must send out a notice to the defendant that, if payment is not made or the defendant does not appear within 10 days, the case will be certified to the court of common pleas. If the juvenile is 18 or older at the time of the default in payment, and the defendant fails to respond to the 10-day notice, a bench warrant is issued.
The Committee reviewed the statutes and the rules. The members agreed that, because the Public School Code creates what can be perceived as an exception to the Juvenile Act by carving out a special procedure for summary case defendants between the ages of 13 and 17 who have been found to be in violation of the Public School Code, the differences should be recognized in the rules. The Committee agreed that the Comments to the rules dealing with summary case failures to pay should be revised to clarify the differences in the treatment of a defendant who has failed to pay fines and costs and would be subject to the Juvenile Act and a defendant who has failed to pay the fine and would be subject to the Public School Code of 1949. Specifically, the revisions make it clear that the issuing authority would not certify the Public School Code cases to Juvenile Court because the failure to pay under the School Code is not a delinquent act, and that the issuing authority may allege the child dependent.
II. Discussion of Rule Changes
Rules 430 (Issuance of Warrant), 455 (Trial in Defendant's Absence), and 456 (Default Procedures: Restitution, Fines, and Costs) require a 10-day notice before a bench warrant may be issued when a defendant defaults in the payment of fines and costs. The Comments to all three rules include an explanation about the variation in procedure when the defendant is under the age of 18 years. A revision has been added to the beginning of each of these Comment provisions to state that ''Except in cases under the Public School Code of 1949, 24 P. S. 1-102, et seq., in which the defendant is at least 13 years of age but not yet 17,'' to make it clear that Public School Code summary cases are not treated in the same manner.
In addition, to further assist the bench and bar in understanding the procedures for Public School Code summary cases when the defendant is 13 but not yet 17 years of age, the following paragraph has be added to the Comments to Rules 430, 455, and 456.
If the defendant is charged with a violation of the compulsory attendance requirements of the Public School Code of 1949, 24 P. S. § 1-102, et seq.; has attained the age of 13 but is not yet 17; and has failed to pay the fine, the issuing authority must issue the notice required by paragraph (B)(4) to the defendant and the defendant's parents, guardian, or other custodian informing the defendant and defendant's parents, guardian, or other custodian that, if payment is not received or the defendant does not appear within the 10-day time period, the issuing authority may allege the defendant dependent under 42 Pa.C.S. § 6303(a)(1). Pursuant to 24 P. S. § 13-1333(b)(2), the defendant's failure to pay is not a delinquent act and the issuing authority would not certify notice of the failure to pay to the common pleas court.Rule 403(B)(4) requires the issuing authority to issue a summons rather than an arrest warrant when the defendant under the age of 18 years fails to respond to a citation. The second paragraph of Rule 430 Comment elaborates on this summons procedure. The Committee concluded that this summons procedure also would apply to Public School Code summary cases, and therefore no changes were necessary in this regard. However, in recognition of the alternative course of action the Code gives to magisterial district judges of alleging the defendant dependent, this Comment paragraph is revised to include a citation to Section 13-333 of the Public School Code of 1949 explaining this option.
A final consideration of the Committee was that the application of the Public School Code penalties section, 24 P. S. § 13-333, is limited to defendants who have attained the age of 13 but are not yet 17, while the Juvenile Act application terminates when a defendant reaches the age of 18 in general. The Committee discussed how the case would proceed when a defendant convicted of a summary offense under the Public School Code turns 17 years of age, and, therefore, no longer is subject to the Public School Code. The Committee observed that, if the defendant had an outstanding installment payment plan, the obligation to pay would remain. If that defendant then fails to pay on an installment payment plan, he or she would be subject to the Juvenile Act. If, on the other hand, the failure to pay occurs after the defendant turns 18 years of age, the case would proceed under the rules. The Committee concluded this process is clear and no changes to the rules are necessary.
[Pa.B. Doc. No. 13-173. Filed for public inspection February 1, 2013, 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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