THE COURTS
[234 PA. CODE CH. 1400]
Order Approving the Revision of the Comment to Rule 1405
[28 Pa.B. 480] The Criminal Procedural Rules Committee has prepared a Final Report explaining the revisions of the Comment to Pa.R.Crim.P. 1405 (Procedure at Time of Sentencing), which were approved by the Supreme Court on January 9, 1998, effective immediately. These Comment revisions 1) clarify that after a trial de novo in a summary case, the sentencing judge should advise the defendant of the right to appeal, and 2) emphasize that a Guideline Sentence Form must be completed in all court cases. The Final Report follows the Court's Order.
Order Per Curiam:
Now, this 9th day of January, 1998, upon the recommendation of the Criminal Procedural Rules Committee; this Recommendation having been submitted without publication pursuant to Pa.R.J.A. 103(a)(3), 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 Comment to Pa.R.Crim.P. 1405 in the following form is approved.
This Order shall be processed in accordance with Pa.R.J.A. 103(b), and shall be effective immediately.
Rule 1405. Procedure at Time of Sentencing.
* * * * * 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Comment amended April 24, 1981, effective July 1, 1981; Comment amended November 1, 1991, effective January 1, 1992; rescinded March 22, 1993, effective as to cases in which the determination of guilt occurs on or after January 1, 1994, and replaced by present Rule 1405.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.
Comment: This rule is derived in part from previous Rule 1405.
* * * * * Sentencing Procedures
* * * * * Other, additional procedures are required by statute. See, e.g., 42 Pa.C.S. § 9795(b), which requires the judge to inform certain offenders of the duty to register.
After sentencing, following a conviction in a trial de novo in a summary case, the judge should advise the defendant of the right to appeal and the time limits within which to exercise that right, the right to proceed in forma pauperis and with assigned counsel to the extent provided in Rule 316(a), and of the qualified right to bail under Rule 4009(b). See paragraphs C(3)(a), (b), and (e). See also Rule 1410.D (no post-sentence motion after a trial de novo).
After sentencing, the judge should inquire whether the defendant intends to file a post-sentence motion or to appeal, and if so, should determine the defendant's bail status pursuant to subparagraph C(3)(e) and Rule 4009. It is recommended, when a state sentence has been imposed, that the judge permit a defendant who cannot make bail to remain incarcerated locally, at least for the 10-day period during which counsel may file the post-sentence motion. When new counsel has been appointed or entered an appearance for the purpose of pursuing a post-sentence motion or appeal, the judge should consider permitting the defendant to remain incarcerated locally for a longer period to allow new counsel time to confer with the defendant and become familiar with the case. See also Rule 302 (Attorneys-Appearances and Withdrawals).
* * * * * In cases in which a mandatory sentence is provided by law, when the judge decides not to impose a sentence greater than the mandatory sentence, regardless of the number of charges on which the defendant could be sentenced consecutively, and when no psychiatric or psychological examination is required under Rule 1403.B, the judge may immediately impose that sentence. But see Rule 1403.A(2), which requires that the court state on the record the reasons for dispensing with a pre-sentence report under the circumstances enumerated therein. See also 42 Pa.C.S. § 9721 et seq.
No later than 30 days after the date of sentencing, a Pennsylvania Commission on Sentencing Guideline Sentence Form must be completed at the judge's direction and made a part of the record. In addition, a copy of the form must be forwarded to the Commission on Sentencing. 204 Pa. Code § 303.1(e), effective July 13, 1997. See 27 Pa.B. 1254 (March 15, 1997).
With respect to the recording and transcribing of court proceedings, including sentencing, see Rule 9030.
Committee Explanatory Reports:
* * * * * Final Report explaining the January 9, 1998 Comment revisions concerning Guideline Sentence Forms, and summary case appeal notice, published with the Court's Order at 28 Pa.B. 481 (January 31, 1998).
Final Report1 Procedure at Time of Sentencing; Revisions of the Comment to Pa.R.Crim.P. 1405
On January 9, 1998, upon the recommendation of the Criminal Procedural Rules Committee, the Supreme Court of Pennsylvania approved revisions of the Comment to Rule 1405 (Procedure at Time of Sentencing), effective immediately. The revisions clarify that after a trial de novo in a summary case, the sentencing judge must advise defendants of their appeal rights, and emphasize that a Guideline Sentence Form must be completed in all court cases.
Discussion
1. Notice of Appeal Rights
Several common pleas court judges questioned whether, pursuant to Rule 1405, following a summary case trial de novo, a defendant had to be advised of his or her appeal rights. The Committee agreed that the requirements of Rule 1405 concerning advising defendants of the right to appeal apply to summary cases following a trial de novo, and that this should be clarified in the rule. We concluded that this could best be accomplished by a Comment provision emphasizing that summary case defendants should be advised of their appeal rights after sentencing, following a summary case trial de novo. The revision appears in the ''Sentencing Procedures'' section of the Comment, and explains that the judge should advise the defendant of the right to appeal and the time limits within which to exercise that right, the right to proceed in forma pauperis and with assigned counsel to the extent provided in Rule 316(a), and the qualified right to bail under Rule 4009(b).
2. Guideline Sentence Form
The second revision was developed after the Committee considered correspondence from the Sentencing Commission, through its chairman, Judge David W. Heckler. The Committee was asked to consider a rule change to require that judges complete the Guideline Sentence Form upon sentencing in all cases in which the conviction involves either felonies or misdemeanors. The Committee noted that the Sentencing Code, 204 Pa. code § 303.1(e) (1997), requires judges to complete the forms, and concluded that it is not necessary to create a new rule. However, the Committee did agree that it is appropriate to refer to this Code provision in the Comment to emphasize the requirement, and has revised the Comment accordingly.
[Pa.B. Doc. No. 98-161. Filed for public inspection January 30, 1998, 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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