discharge is appropriate remedy for violation of Rule [1405] 704 time limits, but only if the defendant can demonstrate that the delay in sentencing was prejudicial to the defendant
How later courts described this case
- discharge is appropriate remedy for violation of Rule [1405] 704 time limits, but only if the defendant can demonstrate that the delay in sentencing was prejudicial to the defendant
- the terms of a plea agreement may determine a defendant's right to withdraw a guilty plea
Written by the judges who cited it.
The opinion
RULE 409. GUILTY PLEAS.
(A) A defendant may plead guilty by:
(1) notifying the issuing authority in writing of the plea and forwarding to the
issuing authority an amount equal to the fine and costs specified in the citation;
or
(2) appearing before the issuing authority for the entry of the plea and imposition
of sentence when the fine and costs are not specified in the citation or after
receipt of notice that a guilty plea by mail has not been accepted by the issuing
authority pursuant to paragraph (B)(3).
(B) When the defendant pleads guilty pursuant to paragraph (A)(1):
(1) The defendant must sign the guilty plea acknowledging that the plea is
entered voluntarily and understandingly.
(2) The issuing authority may issue a warrant for the arrest of the defendant as
provided in Rules 430 and 431 if the amount forwarded with the plea is less than
the amount of the fine and costs specified in the citation.
(3) Restrictions on the acceptance of guilty plea by mail:
(a) The issuing authority shall not accept a guilty plea that is submitted by
mail when the offense carries a mandatory sentence of imprisonment.
(b) In those cases in which the charge carries a possible sentence of
imprisonment, the issuing authority may accept a guilty plea submitted by
mail.
(c) In any case in which the issuing authority does not accept a guilty plea
submitted by mail, the issuing authority shall notify the defendant (1) that
the guilty plea has not been accepted, (2) to appear personally before the
issuing authority on a date and time certain, and (3) of the right to counsel.
Notice of the rejection of the guilty plea by mail also shall be provided to
the affiant.
(C) When the defendant is required to personally appear before the issuing authority to
plead guilty pursuant to paragraph (A)(2), the issuing authority shall:
(1) advise the defendant of the right to counsel when there is a likelihood of
imprisonment and give the defendant, upon request, a reasonable opportunity to
secure counsel;
(2) determine by inquiring of the defendant that the plea is voluntarily and
understandingly entered;
(3) have the defendant sign the plea form with a representation that the plea is
entered voluntarily and understandingly;
(4) impose sentence, or, in cases in which the defendant may be sentenced to
intermediate punishment, the issuing authority may delay the proceedings
pending confirmation of the defendant’s eligibility for intermediate punishment;
and
(5) provide for installment payments when a defendant who is sentenced to pay
a fine and costs is without the financial means immediately to pay the fine and
costs.
COMMENT: The rule was amended in 2007 to make it clear
(1) that a defendant may not enter a guilty plea by mail to an
offense that carries a mandatory sentence of imprisonment,
and (2) in those cases in which the offense carries a
possible sentence of imprisonment, the issuing authority has
the discretion whether or not to accept a guilty plea
submitted by mail.
Nothing in this rule is intended to require that an issuing
authority should proceed as provided in paragraph (C) when
the defendant returns the written guilty plea and the fine and
costs in person to the issuing authority's office pursuant to
paragraphs (A)(1) and (B). The issuing authority's staff
should record receipt of the plea and monies in the same
manner as those received by mail.
Paragraph (C)(4) was added in 2007 to permit an issuing
authority to delay imposition of sentence in order to
investigate a defendant’s eligibility for intermediate
punishment. For example, under 42 Pa.C.S. § 9763 and §
9804, defendants may be sentenced to intermediate
punishment for certain offenses, including summary
violations of 75 Pa.C.S. § 1543(b) (driving while license is
2
under a DUI-related suspension) but only if they meet certain
eligibility requirements, such as undergoing a drug and
alcohol assessment. Often this information will not be
available to the issuing authority at the time of sentencing,
especially when the defendant appears personally to enter a
guilty plea.
When the defendant was under 18 years of age at the time
of the offense and is charged with a summary offense that
would otherwise carry a mandatory sentence of
imprisonment as prescribed by statute, the issuing
authority is required to conduct the summary trial but may
not sentence the defendant to a term of imprisonment. See
42 Pa.C.S. §§ 6302 and 6303 and 75 Pa.C.S. § 6303(b).
See Rule 454(F) for the information that must be
included in the sentencing order when restitution is
included in the sentence.
For the procedure upon default in payment of the fine or
costs, see Rule 456.
For appeal procedures in summary cases, see Rules 460,
461, and 462.
For procedures regarding arrest warrants, see Rules 430
and 431.
[With regard to the defendant's right to counsel and
waiver of counsel, see Rules 121 and 122.]
Concerning the appointment or waiver of counsel, see
Rules 121 and 122.
NOTE: Previous Rule 59 adopted September 18, 1973,
effective January 1, 1974; rescinded July 12, 1985, effective
January 1, 1986, and replaced by present Rule 75. Present
Rule 59 adopted July 12, 1985, effective January 1, 1986;
amended September 23, 1985, effective January 1, 1986.
The January 1, 1986 effective dates are all extended to July
1, 1986; amended May 28, 1987, effective July 1, 1987;
amended January 31, 1991, effective July 1, 1991;
3
renumbered Rule 409 and amended March 1, 2000,
effective April 1, 2001; Comment revised August 7, 2003,
effective July 1, 2004; amended January 26, 2007, effective
February 1, 2008; Comment revised July 17, 2013, effective
August 17, 2013 [.] ; Comment revised March 9, 2016,
effective July 1, 2016.
* * * * * *
COMMITTEE EXPLANATORY REPORTS:
Report explaining the January 31, 1991 amendments published at 20
Pa.B. 4788 (September 15, 1990); Supplemental Report published at
21 Pa.B. 621 (February 16, 1991).
Final Report explaining the March 1, 2000 reorganization and
renumbering of the rules published with the Court’s Order at 30
Pa.B. 1478 (March 18, 2000).
Final Report explaining the August 7, 2003 new Comment language
concerning defendants under the age of 18 published with the
Court’s Order at 33 Pa.B. 4289 (August 30, 2003).
Final Report explaining the January 26, 2007 amendments to
paragraphs (A)(2), (B)(3), and (C)(4) published with the Court’s Order
at 37 Pa.B. 752 (February 17, 2007).
Final Report explaining the July 17, 2013 Comment revision
concerning mandatory incarceration offenses and juveniles
published with the Court’s Order at 43 Pa.B. 4323 (August 3, 2013).
Final Report explaining the March 9, 2016 Comment revision
concerning the Rule 454 restitution procedures published with the
Court’s Order at 46 Pa.B. ( , 2016).
4
RULE 414. GUILTY PLEAS.
(A) A defendant may plead guilty by:
(1) notifying the issuing authority in writing of the plea and forwarding to the
issuing authority an amount equal to the fine and costs specified in the
summons; or
(2) appearing before the issuing authority for the entry of the plea and imposition
of sentence when the fine and costs are not specified in the summons or after
receipt of notice that a guilty plea by mail has not been accepted by the issuing
authority pursuant to paragraph (B)(3).
(B) When the defendant pleads guilty pursuant to paragraph (A)(1):
(1) The defendant must sign the guilty plea acknowledging that the plea is
entered voluntarily and understandingly.
(2) The issuing authority may issue a warrant for the arrest of the defendant as
provided in Rules 430 and 431 if the amount forwarded with the plea is less than
the amount of the fine and costs specified in the summons.
(3) Restrictions on the acceptance of guilty plea by mail:
(a) The issuing authority shall not accept a guilty plea that is submitted by
mail when the offense carries a mandatory sentence of imprisonment.
(b) In those cases in which the charge carries a possible sentence of
imprisonment, the issuing authority may accept a guilty plea submitted by
mail.
(c) In any case in which the issuing authority does not accept a guilty plea
submitted by mail, the issuing authority shall notify the defendant (1) that
the guilty plea has not been accepted, (2) to appear personally before the
issuing authority on a date and time certain, and (3) of the right to counsel.
Notice of the rejection of the guilty plea by mail also shall be provided to
the affiant.
(C) When the defendant is required to personally appear before the issuing authority to
plead guilty pursuant to paragraph (A)(2) the issuing authority shall:
5
(1) advise the defendant of the right to counsel when there is a likelihood of
imprisonment and give the defendant, upon request, a reasonable opportunity to
secure counsel;
(2) determine by inquiring of the defendant that the plea is voluntarily and
understandingly entered;
(3) have the defendant sign the plea form with a representation that the plea is
entered voluntarily and understandingly;
(4) impose sentence, or, in cases in which the defendant may be sentenced to
intermediate punishment, the issuing authority may delay the proceedings
pending confirmation of the defendant’s eligibility for intermediate punishment;
and
(5) provide for installment payments when a defendant who is sentenced to pay
a fine and costs is without the financial means immediately to pay the fine and
costs.
COMMENT: The rule was amended in 2007 to make it clear
(1) that a defendant may not enter a guilty plea by mail to an
offense that carries a mandatory sentence of imprisonment,
and (2) in those cases in which the offense carries a
possible sentence of imprisonment, the issuing authority has
the discretion whether or not to accept a guilty plea
submitted by mail.
Nothing in this rule is intended to require that an issuing
authority should proceed as provided in paragraph (C) when
the defendant returns the written guilty plea and the fine and
costs in person to the issuing authority's office pursuant to
paragraphs (A)(1) and (B). The issuing authority's staff
should record receipt of the plea and monies in the same
manner as those received by mail.
Paragraph (C)(4) was added in 2007 to permit an issuing
authority to delay imposition of sentence in order to
investigate a defendant’s eligibility for intermediate
punishment. For example, under 42 Pa.C.S. § 9763 and
§9804, defendants may be sentenced to intermediate
punishment for certain offenses, including summary
violations of 75 Pa.C.S. § 1543(b) (driving while license is
6
under a DUI-related suspension) but only if they meet certain
eligibility requirements, such as undergoing a drug and
alcohol assessment. Often this information will not be
available to the issuing authority at the time of sentencing,
especially when the defendant appears personally to enter a
guilty plea.
When the defendant was under 18 years of age at the time
of the offense and is charged with a summary offense that
would otherwise carry a mandatory sentence of
imprisonment as prescribed by statute, the issuing
authority is required to conduct the summary trial but may
not sentence the defendant to a term of imprisonment. See
42 Pa.C.S. §§ 6302 and 6303 and 75 Pa.C.S. § 6303(b).
See Rule 454(F) for the information that must be
included in the sentencing order when restitution is
included in the sentence.
For the procedure upon default in payment of the fine or
costs, see Rule 456.
For appeal procedures in summary cases, see Rules 460,
461, and 462.
For arrest warrant procedures, see Rules 430 and 431.
[With regard to the defendant's right to counsel and
waiver of counsel, see Rules 121 and 122.]
Concerning the appointment or waiver of counsel, see
Rules 121 and 122.
NOTE: Previous rule, originally numbered Rule 136,
adopted January 31, 1970, effective May 1, 1970;
renumbered Rule 64 September 18, 1973, effective January
1, 1974; rescinded July 12, 1985, effective January 1, 1986,
and replaced by present Rule 84. Present Rule 64 adopted
July 12, 1985, effective January 1, 1986; amended
September 23, 1985, effective January 1, 1986. The
January 1, 1986 effective dates all are extended to July 1,
1986; amended May 28, 1987, effective July 1, 1987;
7
amended January 31, 1991, effective July 1, 1991;
renumbered Rule 414 and amended March 1, 2000,
effective April 1, 2001; Comment revised August 7, 2003,
effective July 1, 2004; amended January 26, 2007, effective
February 1, 2008; Comment revised July 17, 2013, effective
August 17, 2013 [.] ; Comment revised March 9, 2016,
effective July 1, 2016.
* * * * * *
COMMITTEE EXPLANATORY REPORTS:
Report explaining the January 31, 1991 amendments published at 20
Pa.B. 4788 (September 15, 1990); Supplemental Report published at
21 Pa.B. 621 (February 16, 1991).
Final Report explaining the March 1, 2000 reorganization and
renumbering of the rules published with the Court’s Order at 30
Pa.B. 1478 (March 18, 2000).
Final Report explaining the August 7, 2002 new Comment language
concerning defendants under the age of 18 published with the
Court’s Order at 33 Pa.B. 4289 (August 30, 2003).
Final Report explaining the January 26, 2007 amendments to
paragraphs (A)(2), (B)(3), and (C)(4) published with the Court’s Order
at 37 Pa.B. 752 (February 17, 2007).
Final Report explaining the July 17, 2013 Comment revision
concerning mandatory incarceration offenses and juveniles
published with the Court’s Order at 43 Pa.B. 4323 (August 3, 2013).
Final Report explaining the March 9, 2016 Comment revision
concerning the Rule 454 restitution procedures published with the
Court’s Order at 46 Pa.B. ( , 2016).
8
RULE 424. GUILTY PLEAS.
(A) A defendant may plead guilty by:
(1) notifying the issuing authority in writing of the plea and forwarding to the
issuing authority an amount equal to the fine and costs specified in the
summons; or
(2) appearing before the issuing authority for the entry of the plea and imposition
of sentence when the fine and costs are not specified in the summons or after
receipt of notice that a guilty plea by mail has not been accepted by the issuing
authority pursuant to paragraph (B)(3).
(B) When the defendant pleads guilty pursuant to paragraph (A)(1):
(1) The defendant must sign the guilty plea acknowledging that the plea is
entered voluntarily and understandingly.
(2) The issuing authority may issue a warrant for the arrest of the defendant as
provided in Rules 430 and 431 if the amount forwarded with the plea is less than
the amount of the fine and costs specified in the summons.
(3) Restrictions on the acceptance of guilty plea by mail:
(a) The issuing authority shall not accept a guilty plea that is submitted by
mail when the offense carries a mandatory sentence of imprisonment.
(b) In those cases in which the charge carries a possible sentence of
imprisonment, the issuing authority may accept a guilty plea submitted by
mail.
(c) In any case in which the issuing authority does not accept a guilty plea
submitted by mail, the issuing authority shall notify the defendant (1) that
the guilty plea has not been accepted, (2) to appear personally before the
issuing authority on a date and time certain, and (3) of the right to counsel.
Notice of the rejection of the guilty plea by mail also shall be provided to
the affiant.
(C) When the defendant is required to personally appear before the issuing authority to
plead guilty pursuant to paragraph (A)(2), the issuing authority shall:
9
(1) advise the defendant of the right to counsel when there is a likelihood of
imprisonment and give the defendant, upon request, a reasonable opportunity to
secure counsel;
(2) determine by inquiring of the defendant that the plea is voluntarily and
understandingly entered;
(3) have the defendant sign the plea form with a representation that the plea is
entered voluntarily and understandingly;
(4) impose sentence, or, in cases in which the defendant may be sentenced to
intermediate punishment, the issuing authority may delay the proceedings
pending confirmation of the defendant’s eligibility for intermediate punishment;
and
(5) provide for installment payments when a defendant who is sentenced to pay
a fine and costs is without the financial means immediately to pay the fine and
costs.
COMMENT: The rule was amended in 2007 to make it clear
(1) that a defendant may not enter a guilty plea by mail to an
offense that carries a mandatory sentence of imprisonment,
and (2) in those cases in which the offense carries a
possible sentence of imprisonment, the issuing authority has
the discretion whether or not to accept a guilty plea
submitted by mail.
Nothing in this rule is intended to require that an issuing
authority should proceed as provided in paragraph (C) when
the defendant returns the written guilty plea and the fine and
costs in person to the issuing authority's office pursuant to
paragraphs (A)(1) and (B). The issuing authority's staff
should record receipt of the plea and monies in the same
manner as those received by mail.
Paragraph (C)(4) was added in 2007 to permit an issuing
authority to delay imposition of sentence in order to
investigate a defendant’s eligibility for intermediate
punishment. For example, under 42 Pa.C.S. § 9763 and §
9804, defendants may be sentenced to intermediate
punishment for certain offenses, including summary
violations of 75 Pa.C.S. § 1543(b) (driving while license is
10
under a DUI-related suspension) but only if they meet certain
eligibility requirements, such as undergoing a drug and
alcohol assessment. Often this information will not be
available to the issuing authority at the time of sentencing,
especially when the defendant appears personally to enter a
guilty plea.
When the defendant was under 18 years of age at the time
of the offense and is charged with a summary offense that
would otherwise carry a mandatory sentence of
imprisonment as prescribed by statute, the issuing
authority is required to conduct the summary trial but may
not sentence the defendant to a term of imprisonment. See
42 Pa.C.S. §§ 6302 and 6303 and 75 Pa.C.S. § 6303(b).
See Rule 454(F) for the information that must be
included in the sentencing order when restitution is
included in the sentence.
For the procedure upon default in payment of the fine or
costs, see Rule 456.
For appeal procedures in summary cases, see Rules 460,
461, and 462.
For procedures regarding arrest warrants, see Rules 430
and 431.
[With regard to the defendant's right to counsel and
waiver of counsel, see Rules 121 and 122.]
Concerning the appointment or waiver of counsel, see
Rules 121 and 122.
NOTE: Previous rule, originally numbered Rule 140,
adopted January 31, 1970, effective May 1, 1970;
renumbered Rule 69 September 18, 1973, effective January
1, 1974; Comment revised January 28, 1983, effective July
1, 1983; rescinded July 12, 1985, effective January 1, 1986,
and not replaced in these rules. Present Rule 69 adopted
July 12, 1985, effective January 1, 1986; amended
September 23, 1985, effective January 1, 1986. The
11
January 1, 1986 effective dates are all extended to July 1,
1986; amended May 28, 1987, effective July 1, 1987;
amended January 31, 1991, effective July 1, 1991;
renumbered Rule 424 and amended March 1, 2000,
effective April 1, 2001; Comment revised August 7, 2003,
effective July 1, 2004; amended January 26, 2007, effective
February 1, 2008; Comment revised July 17, 2013, effective
August 17, 2013 [.] ; Comment revised March 9, 2016,
effective July 1, 2016.
* * * * * *
COMMITTEE EXPLANATORY REPORTS:
Report explaining the January 31, 1991 amendments published at 20
Pa.B. 4788 (September 15, 1990); Supplemental Report published at
21 Pa.B. 621 (February 16, 1991).
Final Report explaining the March 1, 2000 reorganization and
renumbering of the rules published with the Court’s Order at 30
Pa.B. 1478 (March 18, 2000).
Final Report explaining the August 7, 2003 new Comment language
concerning defendants under the age of 18 published with the
Court’s Order at 33 Pa.B. 4289 (August 30, 2003).
Final Report explaining the January 26, 2007 amendments to
paragraphs (A)(2), (B)(3), and (C)(4) published with the Court’s Order
at 37 Pa.B. 752 (February 17, 2007).
Final Report explaining the July 17, 2013 Comment revision
concerning mandatory incarceration offenses and juveniles
published with the Court’s Order at 43 Pa.B. 4323 (August 3, 2013).
Final Report explaining the March 9, 2016 Comment revision
concerning the Rule 454 restitution procedures published with the
Court’s Order at 46 Pa.B. ( , 2016).
12
RULE 454. TRIAL IN SUMMARY CASES.
(A) Immediately prior to trial in a summary case:
(1) the defendant shall be advised of the charges in the citation or complaint;
(2) if, in the event of a conviction, there is a reasonable likelihood of a sentence
of imprisonment or probation, the defendant shall be advised of the right to
counsel and
(a) upon request, the defendant shall be given a reasonable opportunity to
secure counsel, or
(b) if the defendant is without financial resources or is otherwise unable to
employ counsel, counsel shall be assigned as provided in Rule 122; and
(3) the defendant shall enter a plea.
(B) If the defendant pleads guilty, the issuing authority shall impose sentence. If the
defendant pleads not guilty, the issuing authority shall try the case in the same manner
as trials in criminal cases are conducted in the courts of common pleas when jury trial
has been waived; however, in all summary cases arising under the Vehicle Code or
local traffic ordinances, the law enforcement officer observing the defendant's alleged
offense may, but shall not be required to, appear and testify against the defendant. In
no event shall the failure of the law enforcement officer to appear, by itself, be a basis
for dismissal of the charges against the defendant.
(C) The attorney for the Commonwealth may appear and assume charge of the
prosecution. When the violation of an ordinance of a municipality is charged, an
attorney representing that municipality, with the consent of the attorney for the
Commonwealth, may appear and assume charge of the prosecution. When no attorney
appears on behalf of the Commonwealth, the affiant may be permitted to ask questions
of any witness who testifies.
(D) The verdict and sentence, if any, shall be announced in open court immediately
upon the conclusion of the trial, except as provided in paragraph (E).
(E) If the defendant may be sentenced to intermediate punishment, the issuing
authority may delay imposing sentence pending confirmation of the defendant’s
eligibility for intermediate punishment.
(F) At the time of sentencing, the issuing authority shall:
13
(1) if the defendant's sentence includes restitution, a fine, or costs, state:
(a) the amount of the fine and the obligation to pay
costs;
(b) the amount of restitution ordered, including
(i) the identity of the payee(s),
(ii) to whom the restitution payment shall be
made, and
(iii) whether any restitution has been paid and in
what amount; and
(c) the date on which payment is due.
If the defendant is without the financial means to pay the amount in a single
remittance, the issuing authority may provide for installment payments and shall
state the date on which each installment is due;
(2) advise the defendant of the right to appeal within 30 days for a trial de novo
in the court of common pleas, and that if an appeal is filed:
(a) the execution of sentence will be stayed and the issuing authority may
set bail or collateral; and
(b) the defendant must appear for the de novo trial or the appeal may be
dismissed;
(3) if a sentence of imprisonment has been imposed, direct the defendant to
appear for the execution of sentence on a date certain unless the defendant files
a notice of appeal within the 30-day period, and advise that, if the defendant fails
to appear on that date, a warrant for the defendant's arrest will be issued; and
(4) issue a written order imposing sentence, signed by the issuing authority. The
order shall include the information specified in paragraphs (F)(1) through (F)(3),
and a copy of the order shall be given to the defendant.
COMMENT: No defendant may be sentenced to
imprisonment or probation if the right to counsel was not
afforded at trial. See Alabama v. Shelton, 535 U.S. 654
14
(2002), Scott v. Illinois, 440 U.S. 367 (1979), and
Argersinger v. Hamlin, 407 U.S. 25 (1972). See Rules 121
and 122.
The affiant may be permitted to withdraw the charges
pending before the issuing authority. See Rule 457
(Withdrawal of Charges in Summary Cases).
Paragraph (F)(2)(b) is included in the rule in light of North v.
Russell, 427 U.S. 328 (1976). For the procedures for taking,
perfecting, and handling an appeal, see Rules 460, 461, and
462.
As the judicial officer presiding at the summary trial, the
issuing authority controls the conduct of the trial generally.
When an attorney appears on behalf of the Commonwealth
or on behalf of a municipality pursuant to paragraph (C), the
prosecution of the case is under the control of that attorney.
When no attorney appears at the summary trial on behalf of
the Commonwealth, or a municipality, the issuing authority
may ask questions of any witness who testifies, and the
affiant may request the issuing authority to ask specific
questions. In the appropriate circumstances, the issuing
authority may also permit the affiant to question
Commonwealth witnesses, cross-examine defense
witnesses, and make recommendations about the case to
the issuing authority.
Although the scheduling of summary trials is left by the rules
to the discretion of the issuing authority, it is intended that
trial will be scheduled promptly upon receipt of a defendant's
plea or promptly after a defendant's arrest. When a
defendant is incarcerated pending a summary trial, it is
incumbent upon the issuing authority to schedule trial for the
earliest possible time.
When the defendant was under 18 years of age at the time
of the offense and is charged with a summary offense that
would otherwise carry a mandatory sentence of
imprisonment as prescribed by statute, the issuing
authority is required to conduct the summary trial but may
not sentence the defendant to a term of imprisonment. See
42 Pa.C.S. §§ 6302 and 6303 and 75 Pa.C.S. § 6303(b).
15
Under paragraph (F)(2)(a), the issuing authority should
explain to the defendant that if an appeal is filed, any
sentence, including imprisonment, fines, or restitution, will be
stayed.
When setting the specific date for the defendant to appear
for execution of a sentence of imprisonment pursuant to
paragraph (F)(3), the issuing authority should set the earliest
possible date for sentencing after the appeal period expires.
When a defendant has waived the stay of the sentence of
imprisonment pursuant to Rule 461, the issuing authority
may fix the commencement date of the sentence to be the
date of conviction, rather than after the 30-day stay period
has expired. The defendant, of course, still would be able to
pursue an appeal under Rules 460-462.
For the statutory authority to sentence a defendant to pay a
fine, see 42 Pa.C.S. § 9726.
For the statutory authority to sentence a defendant to pay
restitution, see 42 Pa.C.S. § 9721(c) and 18 Pa.C.S. §
1106(c). See also 18 Pa.C.S. § 1106(c)(2)(iii), which
prohibits the court from ordering the incarceration of a
defendant for failure to pay restitution if the failure results
from the defendant's inability to pay.
Before imposing both a fine and restitution, the issuing
authority must determine that the fine will not prevent the
defendant from making restitution to the victim. See 42
Pa.C.S. §§ 9726(c)(2) and 9730(b)(3).
Certain costs are mandatory and must be imposed. See,
e.g., Section 1101 of the Crime Victims Act, 18 P.S. §
11.1101.
Paragraph (E) permits an issuing authority to delay imposing
sentence in summary cases in order to investigate a
defendant’s eligibility for intermediate punishment. For
example, under 42 Pa.C.S. § 9763 and § 9804, defendants
may be sentenced to intermediate punishment for certain
offenses, including summary violations of 75 Pa.C.S. §
16
1543(b) (driving while license is under a DUI-related
suspension) but only if they meet certain eligibility
requirements, such as undergoing a drug and alcohol
assessment. Often this information will not be available to
the issuing authority at the time of sentencing.
See Rule 456 for the procedures when a defendant defaults
in the payment of restitution, fines, or costs.
For the procedures concerning sentences that include
restitution in court cases, see Rule 705.1.
A defendant should be encouraged to seek an adjustment of
a payment schedule for restitution, fines, or costs before a
default occurs. See Rule 456(A).
NOTE: Rule 83 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; amended February 2, 1989, effective March 1,
1989; amended October 28, 1994, effective as to cases
instituted on or after January 1, 1995; Comment revised
April 18, 1997, effective July 1, 1997; amended October 1,
1997, effective October 1, 1998; Comment revised
February 13, 1998, effective July 1, 1998; renumbered
Rule 454 and Comment revised March 1, 2000, effective
April 1, 2001; amended February 28, 2003, effective July
1, 2003; Comment revised August 7, 2003, effective July
1, 2004; amended March 26, 2004, effective July 1, 2004;
amended January 26, 2007, effective February 1, 2008;
Comment revised July 17, 2013, effective August 17, 2013
[.]; amended March 9, 2016, effective July 1, 2016.
* * * * * *
COMMITTEE EXPLANATORY REPORTS:
Final Report explaining the October 28, 1994 amendments published
with the Court's Order at 24 Pa.B. 5841 (November 26, 1994).
17
Final Report explaining the April 18, 1997 Comment revision cross-
referencing new Rule 87 published with the Court's Order at 27 Pa.B.
2119 (May 3, 1997).
Final Report explaining the October 1, 1997 amendments to
paragraph (E) and the Comment concerning the procedures at the
time of sentencing published with the Court's Order at 27 Pa.B. 5414
(October 18, 1997).
Final Report explaining the February 13, 1998 Comment revision
concerning questioning of witnesses published with the Court's
Order at 28 Pa.B. 1127 (February 28, 1998).
Final Report explaining the March 1, 2000 reorganization and
renumbering of the rules published with the Court’s Order at 30
Pa.B. 1478 (March 18, 2000).
Final Report explaining the February 28, 2003 amendments
published with the Court’s Order at 33 Pa.B. 1326 (March 15, 2003).
Final Report explaining the August 7, 2003 changes to the Comment
concerning defendants under the age of 18 published with the
Court’s Order at 33 Pa.B. 4293 (August 30, 2003).
Final Report explaining the March 26, 2004 changes concerning
Alabama v. Shelton published with the Court's Order at 34 Pa.B.
1929 (April 10, 2004).
Final Report explaining the January 26, 2007 amendments adding
paragraph (E) concerning intermediate punishment published with
the Court’s Order at 37 Pa.B. 752 (February 17, 2007).
Final Report explaining the July 17, 2013 Comment revision
concerning mandatory incarceration offenses and juveniles
published with the Court’s Order at 43 Pa.B. 4323 (August 3, 2013).
Final Report explaining the March 9, 2016 amendments to paragraph
(F) concerning required elements of the sentence published with the
Court’s Order at 46 Pa.B. ( , 2016).
18
RULE 455. TRIAL IN DEFENDANT'S ABSENCE.
(A) If the defendant fails to appear for trial in a summary case, the trial shall be
conducted in the defendant's absence, unless 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. If the trial is not conducted in
the defendant's absence, the issuing authority may issue a warrant for the defendant's
arrest.
(B) At trial, the issuing authority shall proceed to determine the facts and render a
verdict.
(C) If the defendant is found not guilty, any collateral previously deposited shall be
returned.
(D) If the defendant is found guilty, the issuing authority shall impose sentence, and
shall give notice by first class mail to the defendant of the conviction and sentence, and
of the right to file an appeal within 30 days for a trial de novo. In those cases in which
the amount of collateral deposited does not satisfy the fine and costs imposed or the
issuing authority imposes a sentence of restitution, the notice shall also state that failure
within 10 days of the date on the notice to pay the amount due or to appear for a
hearing to determine whether the defendant is financially able to pay the amount due
may result in the issuance of an arrest warrant.
(E) Any collateral previously deposited shall be forfeited and applied only to the
payment of the fine and costs. When the amount of collateral deposited is more than
the fine and costs, the balance shall be returned to the defendant.
(F) If the defendant does not respond within 10 days to the notice in paragraph (D), the
issuing authority may issue a warrant for the defendant's arrest.
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.
19
When the defendant was under 18 years of age at the time
of the offense and is charged with a summary offense that
would otherwise carry a mandatory sentence of
imprisonment as prescribed by statute, the issuing
authority is required to conduct the summary trial but may
not sentence the defendant to a term of imprisonment. See
42 Pa.C.S. §§ 6302 and 6303 and 75 Pa.C.S. § 6303(b).
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 Rules
408(B)(3), 413(B)(3), and 423(B)(3).
See Rule 454(F) for what information must be included
in a sentencing order when restitution is included in the
sentence.
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)] (D) 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
20
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.]
Concerning the appointment or waiver of counsel, see
Rules 121 and 122.
For arrest warrant procedures in summary cases, see Rules
430 and 431.
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; Comment revised July 17, 2013,
effective August 17, 2013 [.] ; Comment revised March
9, 2016, effective July 1, 2016.
* * * * * *
COMMITTEE EXPLANATORY REPORTS:
Final Report explaining the April 18, 1997 amendments mandating a
summary trial in absentia with certain exceptions published with the
Court's Order at 27 Pa.B. 2117 (May 3, 1997).
Final Report explaining the October 1, 1997 amendments to
paragraphs (D) and (E) published with the Court's Order at 27 Pa.B.
5414 (October 1, 1997).
21
Final Report explaining the March 1, 2000 reorganization and
renumbering of the rules published with the Court’s Order at 30 Pa.B.
1478 (March 18, 2000).
Final Report explaining the August 7, 2003 changes to the Comment
concerning failure to pay and juveniles published with the Court’s
Order at 33 Pa.B. 4293 (August 30, 2003).
Final Report explaining the April 1, 2005 Comment revision
concerning application of the Juvenile Court Procedural Rules
published with the Court’s Order at 35 Pa.B. 2213 (April 16, 2005).
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. 654 (February 2, 2013).
Final Report explaining the July 17, 2013 Comment revision
concerning mandatory incarceration offenses and juveniles
published with the Court’s Order at 43 Pa.B. 4323 (August 3, 2013).
Final Report explaining the March 9, 2016 Comment revision cross-
referencing the sentencing provision in Rule 454(F) published with
the Court’s Order at 46 Pa.B. ( , 2016).
22
RULE 462. TRIAL DE NOVO.
(A) When a defendant appeals after the entry of a guilty plea or a conviction by an
issuing authority in any summary proceeding, upon the filing of the transcript and other
papers by the issuing authority, the case shall be heard de novo by the judge of the
court of common pleas sitting without a jury.
(B) The attorney for the Commonwealth may appear and assume charge of the
prosecution. When the violation of an ordinance of a municipality is charged, an
attorney representing that municipality, with the consent of the attorney for the
Commonwealth, may appear and assume charge of the prosecution. When no attorney
appears on behalf of the Commonwealth, the affiant may be permitted to ask questions
of any witness who testifies.
(C) In appeals from summary proceedings arising under the Vehicle Code or local
traffic ordinances, other than parking offenses, the law enforcement officer who
observed the alleged offense must appear and testify. The failure of a law enforcement
officer to appear and testify shall result in the dismissal of the charges unless:
(1) the defendant waives the presence of the law enforcement officer in open
court on the record;
(2) the defendant waives the presence of the law enforcement officer by filing a
written waiver signed by the defendant and defense counsel, or the defendant if
proceeding pro se, with the clerk of courts; or
(3) the trial judge determines that good cause exists for the law enforcement
officer's unavailability and grants a continuance.
(D) If the defendant fails to appear, the trial judge may dismiss the appeal and enter
judgment in the court of common pleas on the judgment of the issuing authority.
(E) If the defendant withdraws the appeal, the trial judge shall enter judgment in the
court of common pleas on the judgment of the issuing authority.
(F) The verdict and sentence, if any, shall be announced in open court immediately
upon the conclusion of the trial, or, in cases in which the defendant may be sentenced
to intermediate punishment, the trial judge may delay the proceedings pending
confirmation of the defendant’s eligibility for intermediate punishment.
(G) At the time of sentencing, the trial judge shall:
(1) if the defendant's sentence includes restitution, a fine, or costs, state:
(a) the amount of the fine and the obligation to pay
costs;
23
(b) the amount of restitution ordered, including
(i) the identity of the payee(s),
(ii) to whom the restitution payment shall be
made, and
(iii) whether any restitution has been paid and in
what amount; and
(c) the date on which payment is due.
If the defendant is without the financial means to pay the amount in a single
remittance, the trial judge may provide for installment payments and shall state
the date on which each installment is due;
(2) advise the defendant of the right to appeal to the Superior Court within 30
days of the imposition of sentence, and that, if an appeal is filed, the execution of
sentence will be stayed and the trial judge may set bail;
(3) if a sentence of imprisonment has been imposed, direct the defendant to
appear for the execution of sentence on a date certain unless the defendant files
a notice of appeal within the 30-day period; and
(4) issue a written order imposing sentence, signed by the trial judge. The order
shall include the information specified in paragraphs (G)(1) through (G)(3), and a
copy of the order shall be given to the defendant.
(H) After sentence is imposed by the trial judge, the case shall remain in the court of
common pleas for the execution of sentence, including the collection of any fine and
restitution, and for the collection of any costs.
COMMENT: This rule is derived from former Rule 86(G) and
former Rule 1117(c).
This rule was amended in 2000 to make it clear in a
summary criminal case that the defendant may file an appeal
for a trial de novo following the entry of a guilty plea.
“Entry,” as used in paragraph (A) of this rule, means the date
on which the issuing authority enters or records the guilty
plea, the conviction, or other order in the magisterial district
judge computer system.
24
The procedures for conducting the trial de novo in the court
of common pleas set forth in paragraphs (B), (F), and (G)
are comparable to the summary case trial procedures in
Rule 454 (Trial in Summary Cases).
Pursuant to paragraph (B), the decision whether to appear
and assume control of the prosecution of the trial de novo is
solely within the discretion of the attorney for the
Commonwealth. When no attorney appears at the trial de
novo on behalf of the Commonwealth or a municipality, the
trial judge may ask questions of any witness who testifies,
and the affiant may request the trial judge to ask specific
questions. In the appropriate circumstances, the trial judge
also may permit the affiant to question Commonwealth
witnesses, cross-examine defense witnesses, and make
recommendations about the case to the trial judge.
The provisions of paragraph (C) that permit the court to
continue the case if there is good cause for the officer's
unavailability were added in response to Commonwealth v.
Hightower, [438 Pa. Super. 400,] 652 A.2d 873 (Pa. Super.
1995).
Paragraph (D) makes it clear that the trial judge may dismiss
a summary case appeal when the judge determines that the
defendant is absent without cause from the trial de novo. If
the appeal is dismissed, the trial judge should enter
judgment and order execution of any sentence imposed by
the issuing authority.
Paragraph (F) was amended in 2008 to permit a trial judge
to delay imposition of sentence in order to investigate a
defendant’s eligibility for intermediate punishment for certain
offenses, including summary violations of 75 Pa.C.S.
§1543(b) (driving while license is under a DUI-related
suspension), but only if he or she meets certain eligibility
requirements, such as undergoing a drug and alcohol
assessment. Potentially this information may not be
available to the trial judge following a trial de novo at the
time of sentencing.
Pursuant to paragraph (G), if the defendant is convicted, the
trial judge must impose sentence, and advise the defendant
of the payment schedule, if any, and the defendant’s appeal
rights. See Rule 704(A)(3) and Rule 720(D). No defendant
25
may be sentenced to imprisonment or probation if the right to
counsel was not afforded at trial. See Alabama v. Shelton,
535 U.S. 654 (2002), Scott v. Illinois, 440 U.S. 367 (1979),
and Argersinger v. Hamlin, 407 U.S. 25 (1972).
Certain costs are mandatory and must be imposed. See,
e.g., Section 1101 of the Crime Victims Act, 18 P.S. §
11.1101.
Once sentence is imposed, paragraph (H) makes it clear that
the case is to remain in the court of common pleas for
execution of the sentence and collection of any costs, and
the case may not be returned to the magisterial district
judge. The execution of sentence includes the collection of
any fines and restitution.
For the procedures concerning sentences that include
restitution in court cases, see Rule 705.1.
For the procedures for appeals from the Philadelphia
Municipal Court Traffic Division, see Rule 1037.
NOTE: Former Rule 86 adopted July 12, 1985, effective
January 1, 1986; revised September 23, 1985, effective
January 1, 1986; the January 1, 1986 effective dates
extended to July 1, 1986; amended February 2, 1989,
effective March 1, 1989; amended March 22, 1993, effective
January 1, 1994; amended October 28, 1994, effective as to
cases instituted on or after January 1, 1995; amended
February 27, 1995, effective July 1, 1995; amended October
1, 1997, effective October 1, 1998; amended May 14, 1999,
effective July 1, 1999; rescinded March 1, 2000, effective
April 1, 2001, and paragraph (G) replaced by Rule 462. New
Rule 462 adopted March 1, 2000, effective April 1, 2001;
amended March 3, 2000, effective July 1, 2000; amended
February 28, 2003, effective July 1, 2003; Comment revised
March 26, 2004, effective July 1, 2004; amended January
18, 2007, effective August 1, 2007; amended December 16,
2008, effective February 1, 2009; Comment revised October
16, 2009, effective February 1, 2010; Comment revised May
7, 2014, effective immediately [.] ; amended March 9, 2016,
effective July 1, 2016.
26
* * * * * *
COMMITTEE EXPLANATORY REPORTS:
FORMER RULE 86:
Final Report explaining the March 22, 1993 amendments to former
Rule 86 published with the Court's Order at 23 Pa.B. 1699 (April 10,
1993).
Final Report explaining the October 28, 1994 amendments to former
Rule 86 published with the Court's Order at 24 Pa.B. 5843 (November
26, 1994).
Final Report explaining the February 27, 1995 amendments to former
Rule 86 published with the Court's Order at 25 Pa.B. 935 (March 18,
1995).
Final Report explaining the October 1, 1997 amendments to former
Rule 86 concerning stays published with the Court's Order at 27
Pa.B. 5408 (October 18, 1997).
Final Report explaining the May 14, 1999 amendments to former Rule
86, paragraph (G), concerning the police officer's presence published
with the Court's Order at 29 Pa.B. 2776 (May 29, 1999).
NEW RULE 462:
Final Report explaining the reorganization and renumbering of the
rules and the provisions of Rule 462 published at 30 Pa.B. 1478
(March 18, 2000).
Final Report explaining the March 3, 2000 amendments concerning
appeals from guilty pleas published with the Court’s Order at 30
Pa.B. 1508 (March 18, 2000).
Final Report explaining the February 28, 2003 amendments
published with the Court’s Order at 33 Pa.B. 1326 (March 15, 2003).
Final Report explaining the March 26, 2004 Comment revision
27
published with the Court's Order at 34 Pa.B. 1931 (April 10, 2004).
Final Report explaining the January 18, 2007 amendment to
paragraph (G)(2) published with the Court's Order at 37 Pa.B. 523
(February 3, 2007).
Final Report explaining the December 16, 2008 amendments to
permit delay in sentencing for determination of intermediate
punishment status published with the Court’s Order at 39 Pa.B. 8
(January 3, 2009).
Final Report explaining the October 16, 2009 Comment revision
regarding new Rule 1037 and procedures for the appeal from the
Philadelphia Traffic Court published with the Court’s Order at 39
Pa.B. 6327 (October 31, 2009).
Final Report explaining the May 7, 2014 Comment revision changing
the cross-reference to the Philadelphia Traffic Court to the Traffic
Division of the Philadelphia Municipal Court published with the
Court’s Order at 44 Pa.B. 3056 (May 24, 2014).
Final Report explaining the March 9, 2016 amendments to paragraph
(G) concerning required elements of the sentence published with the
Court’s Order at 46 Pa.B. ( , 2016).
28
RULE 550. PLEAS OF GUILTY BEFORE MAGISTERIAL DISTRICT JUDGE IN
COURT CASES.
(A) In a court case in which a magisterial district judge is specifically empowered by
statute to exercise jurisdiction, a defendant may plead guilty before a magisterial district
judge at any time up to the completion of the preliminary hearing or the waiver thereof.
(B) The magisterial district judge may refuse to accept a plea of guilty, and the
magisterial district judge shall not accept such plea unless there has been a
determination, after inquiry of the defendant, that the plea is voluntarily and
understandingly tendered.
(C) The plea shall be in writing:
(1) signed by the defendant, with a representation by the defendant that the plea
is entered knowingly, voluntarily, and intelligently; and
(2) signed by the magisterial district judge, with a certification that the plea was
accepted after a full inquiry of the defendant, and that the plea was made
knowingly, voluntarily, and intelligently.
(D) A defendant who enters a plea of guilty under this rule may, within 30 days after
sentence, change the plea to not guilty by so notifying the magisterial district judge in
writing. In such event, the magisterial district judge shall vacate the plea and judgment
of sentence, and the case shall proceed in accordance with Rule 547, as though the
defendant had been held for court.
(E) Thirty days after the acceptance of the guilty plea and the imposition of sentence,
the magisterial district judge shall certify the judgment, and shall forward the case to the
clerk of courts of the judicial district for further proceedings.
COMMENT: In certain cases, what would ordinarily be a
court case within the jurisdiction of the court of common
pleas has been placed within the jurisdiction of magisterial
district judges. See Judicial Code, 42 Pa.C.S. § 1515(a)(5),
(5.1), (6), (6.1), and (7). This rule provides the procedures to
implement this expanded jurisdiction of magisterial district
judges.
In those cases in which either the defendant declines to
enter a plea of guilty before the magisterial district judge or
the magisterial district judge refuses to accept a plea of
guilty, the case is to proceed in the same manner as any
other court case.
29
This rule applies whenever a magisterial district judge has
jurisdiction to accept a plea of guilty in a court case.
Under paragraph (A), it is intended that a defendant may
plead guilty at the completion of the preliminary hearing or at
any time prior thereto.
Prior to accepting a plea of guilty under this rule, it is
suggested that the magisterial district judge consult with the
attorney for the Commonwealth concerning the case,
concerning the defendant's possible eligibility for ARD or
other types of diversion, and concerning possible related
offenses that might be charged in the same complaint. See
Commonwealth v. Campana, [452 Pa. 233,] 304 A.2d 432
(Pa. 1973), vacated and remanded, 414 U.S. 808 (1973), on
remand, [455 Pa. 622,] 314 A.2d 854 (Pa. 1974).
Before accepting a plea:
(a) The magisterial district judge should be satisfied
of jurisdiction to accept the plea, and should
determine whether any other related offenses exist
that might affect jurisdiction.
(b) The magisterial district judge should be satisfied
that the defendant is eligible under the law to plead
guilty before a magisterial district judge, and, when
relevant, should check the defendant's prior record
and inquire into the amount of damages.
(c) The magisterial district judge should advise the
defendant of the right to counsel. For purposes of
appointment of counsel, these cases should be
treated as court cases, and the Rule 122
(Appointment of Counsel) procedures should be
followed.
(d) The magisterial district judge should advise the
defendant that, if the defendant wants to change the
plea to not guilty, the defendant, within 30 days after
imposition of sentence, must notify the magisterial
district judge who accepted the plea of this decision in
writing.
(e) The magisterial district judge should make a
searching inquiry into the voluntariness of the
30
defendant's plea. A colloquy similar to that suggested
in Rule 590 should be conducted to determine the
voluntariness of the plea. At a minimum, the
magisterial district judge should ask questions to elicit
the following information:
(1) that the defendant understands the nature
of the charges pursuant to which the plea is
entered;
(2) that there is a factual basis for the plea;
(3) that the defendant understands that he or
she is waiving the right to trial by jury;
(4) that the defendant understands that he or
she is presumed innocent until found guilty;
(5) that the defendant is aware of the
permissible range of sentences and/or fines for
the offenses charged;
(6) that the defendant is aware that the
magisterial district judge is not bound by the
terms of any plea agreement tendered unless
the magisterial district judge accepts such
agreement; and
(7) that the defendant understands that the
plea precludes consideration for ARD or other
diversionary programs.
See Rule 590 and the Comment thereto for further
elaboration of the required colloquy. See also
Commonwealth v. Minor, [467 Pa. 230,] 356 A.2d 346 (Pa.
1976), overruled on other grounds in Commonwealth v.
Minarik, [493 Pa. 573,] 427 A.2d 623, 627 (Pa. 1981);
Commonwealth v. Ingram, [455 Pa. 198,] 316 A.2d 77 (Pa.
1974); Commonwealth v. Martin, [445 Pa. 49,] 282 A.2d 241
(Pa. 1971).
While the rule continues to require a written plea
incorporating the contents specified in paragraph (C), the
form of plea was deleted in 1985 because it is no longer
necessary to control the specific form of written plea by rule.
31
Paragraph (C) does not preclude verbatim transcription of
the colloquy and plea.
The time limit for withdrawal of the plea contained in
paragraph (D) was increased from 10 days to 30 days in
2014 to place a defendant who enters a plea to a
misdemeanor before a magisterial district judge closer to the
position of a defendant who pleads guilty to the same
offense in common pleas court or a defendant who pleads
guilty to a summary offense before a magisterial district
judge. A 30-day time period for withdrawal of the plea is
consistent with the 30-day period for summary appeal and
the 30-day common pleas guilty plea appeal period.
Withdrawal of the guilty plea is the only relief available
before a magisterial district judge for a defendant who has
entered a plea pursuant to this rule. Any further challenge to
the entry of the plea must be sought in the court of common
pleas.
For the procedures concerning sentences that include
restitution in court cases, see Rule 705.1.
At the time of sentencing, or at any time within the 30-day
period before transmitting the case to the clerk of courts
pursuant to paragraph (E), the magisterial district judge may
accept payment of, or may establish a payment schedule for,
installment payments of restitution, fines, and costs.
If a plea is not entered pursuant to this rule, the papers must
be transmitted to the clerk of courts of the judicial district in
accordance with Rule 547. After the time set forth in
paragraph (A) for acceptance of the plea of guilty has
expired, the magisterial district judge no longer has
jurisdiction to accept a plea.
Regardless of whether a plea stands or is timely changed to
not guilty by the defendant, the magisterial district judge
must transmit the transcript and all supporting documents to
the appropriate court, in accordance with Rule 547.
Once the case is forwarded as provided in this rule and in
Rule 547, the court of common pleas has exclusive
jurisdiction over the case and any plea incident thereto. The
case would thereafter proceed in the same manner as any
other court case, which would include, for example, the
32
collection of restitution, fines, and costs; the establishment of
time payments; and the supervision of probation in those
cases in which the magisterial district judge has accepted a
guilty plea and imposed sentence.
NOTE: Rule 149 adopted June 30, 1977, effective
September 1, 1977; Comment revised January 28, 1983,
effective July 1, 1983; amended November 9, 1984, effective
January 2, 1985; amended August 22, 1997, effective
January 1, 1998; renumbered Rule 550 and amended March
1, 2000, effective April 1, 2001; amended December 9,
2005, effective February 1, 2006; amended January 6,
2014, effective March 1, 2014 [.] ; Comment revised March
9, 2016, effective July 1, 2016.
* * * * * *
COMMITTEE EXPLANATORY REPORTS:
Final Report explaining the August 22, 1997 amendments, that clarify
the procedures following a district justice's acceptance of a guilty
plea and imposition of sentence in a court case published with the
Court's order at 27 Pa.B. 4549 (September 6, 1997).
Final Report explaining the March 1, 2000 reorganization and
renumbering of the rules published with the Court's Order at 30 Pa.B.
1477 (March 18, 2000).
Final Report explaining the December 9, 2005 changes to the rule
clarifying the magisterial district judges’ exercise of jurisdiction
published with the Court’s Order at 35 Pa.B. 6894 (December 24,
2005).
Final Report explaining the January 6, 2014 changes to the rule
increasing the time for withdrawal of the guilty plea from 10 to 30
days published with the Court’s Order at 44 Pa.B. 477 (January 25,
2014).
Final Report explaining the March 9, 2016 Comment revision
concerning the Rule 705.1 restitution procedures published with the
Court’s Order at 46 Pa.B. ( , 2016).
33
RULE 590. PLEAS AND PLEA AGREEMENTS.
(A) GENERALLY.
(1) Pleas shall be taken in open court.
(2) A defendant may plead not guilty, guilty, or, with the consent of the judge,
nolo contendere. If the defendant refuses to plead, the judge shall enter a plea
of not guilty on the defendant's behalf.
(3) The judge may refuse to accept a plea of guilty or nolo contendere, and shall
not accept it unless the judge determines after inquiry of the defendant that the
plea is voluntarily and understandingly tendered. Such inquiry shall appear on
the record.
(B) PLEA AGREEMENTS.
(1) When counsel for both sides have arrived at a plea agreement, they shall
state on the record in open court, in the presence of the defendant, the terms of
the agreement, unless the judge orders, for good cause shown and with the
consent of the defendant, counsel for the defendant, and the attorney for the
Commonwealth, that specific conditions in the agreement be placed on the
record in camera and the record sealed.
(2) The judge shall conduct a separate inquiry of the defendant on the record to
determine whether the defendant understands and voluntarily accepts the terms
of the plea agreement on which the guilty plea or plea of nolo contendere is
based.
(C) MURDER CASES.
In cases in which the imposition of a sentence of death is not authorized, when a
defendant enters a plea of guilty or nolo contendere to a charge of murder generally, the
degree of guilt shall be determined by a jury unless the attorney for the Commonwealth
elects to have the judge, before whom the plea was entered, alone determine the
degree of guilt.
COMMENT: The purpose of paragraph (A)(2) is to codify
the requirement that the judge, on the record, ascertain from
the defendant that the guilty plea or plea of nolo contendere
is voluntarily and understandingly tendered. On the
mandatory nature of this practice, see Commonwealth v.
34
Ingram, [455 Pa. 198,] 316 A.2d 77 (Pa. 1974);
Commonwealth v. Campbell, [451 Pa. 198,] 304 A.2d 121
(Pa. 1973); Commonwealth v. Jackson, [450 Pa. 417,] 299
A.2d 209 (Pa. 1973).
It is difficult to formulate a comprehensive list of questions a
judge must ask of a defendant in determining whether the
judge should accept the plea of guilty or a plea of nolo
contendere. Court decisions may add areas to be
encompassed in determining whether the defendant
understands the full impact and consequences of the plea,
but is nevertheless willing to enter that plea. At a minimum
the judge should ask questions to elicit the following
information:
(1) Does the defendant understand the nature of the
charges to which he or she is pleading guilty or nolo
contendere?
(2) Is there a factual basis for the plea?
(3) Does the defendant understand that he or she has the
right to trial by jury?
(4) Does the defendant understand that he or she is
presumed innocent until found guilty?
(5) Is the defendant aware of the permissible range of
sentences and/or fines for the offenses charged?
(6) Is the defendant aware that the judge is not bound by
the terms of any plea agreement tendered unless the judge
accepts such agreement?
(7) Does the defendant understand that the Commonwealth
has a right to have a jury decide the degree of guilt if the
defendant pleads guilty to murder generally?
The Court in Commonwealth v. Willis, [471 Pa. 50,] 369
A.2d 1189 (Pa. 1977), and Commonwealth v. Dilbeck, [466
Pa. 543,] 353 A.2d 824 (Pa. 1976), mandated that, during a
guilty plea colloquy, judges must elicit the information set
35
forth in paragraphs (1) through (6) above. In 2008, the Court
added paragraph (7) to the list of areas of inquiry.
Many, though not all, of the areas to be covered by such
questions are set forth in a footnote to the Court's opinion in
Commonwealth v. Martin, [445 Pa. 49, 54-55,] 282 A.2d
241, 244-245 (Pa. 1971), in which the colloquy conducted by
the trial judge is cited with approval. See also
Commonwealth v. Minor, [467 Pa. 230,] 356 A.2d 346 (Pa.
1976), and Commonwealth v. Ingram, [455 Pa. 198,] 316
A.2d 77 (Pa. 1974). As to the requirement that the judge
ascertain that there is a factual basis for the plea, see
Commonwealth v. Maddox, [450 Pa. 406,] 300 A.2d 503
(Pa. 1973) and Commonwealth v. Jackson, [450 Pa. 417,]
299 A.2d 209 (Pa. 1973).
It is advisable that the judge conduct the examination of the
defendant. However, paragraph (A) does not prevent
defense counsel or the attorney for the Commonwealth from
conducting part or all of the examination of the defendant, as
permitted by the judge. In addition, nothing in the rule would
preclude the use of a written colloquy that is read,
completed, signed by the defendant, and made part of the
record of the plea proceedings. This written colloquy would
have to be supplemented by some on-the-record oral
examination. Its use would not, of course, change any other
requirements of law, including these rules, regarding the
prerequisites of a valid guilty plea or plea of nolo contendere.
The "terms" of the plea agreement, referred to in paragraph
(B)(1), frequently involve the attorney for the Commonwealth
-- in exchange for the defendant's plea of guilty or nolo
contendere, and perhaps for the defendant's promise to
cooperate with law enforcement officials -- promising
concessions such as a reduction of a charge to a less
serious offense, the dropping of one or more additional
charges, a recommendation of a lenient sentence, or a
combination of these. In any event, paragraph (B) is
intended to insure that all terms of the agreement are openly
acknowledged for the judge's assessment. See, e.g.,
Commonwealth v. Wilkins, [442 Pa. 542,] 277 A.2d 341 (Pa.
1971).
36
The 1995 amendment deleting former paragraph (B)(1)
eliminates the absolute prohibition against any judicial
involvement in plea discussions in order to align the rule with
the realities of current practice. For example, the rule now
permits a judge to inquire of defense counsel and the
attorney for the Commonwealth whether there has been any
discussion of a plea agreement, or to give counsel, when
requested, a reasonable period of time to conduct such a
discussion. Nothing in this rule, however, is intended to
permit a judge to suggest to a defendant, defense counsel,
or the attorney for the Commonwealth, that a plea
agreement should be negotiated or accepted.
Under paragraph (B)(1), upon request and with the consent
of the parties, a judge may, as permitted by law, order that
the specific conditions of a plea agreement be placed on the
record in camera and that portion of the record sealed. Such
a procedure does not in any way eliminate the obligation of
the attorney for the Commonwealth to comply in a timely
manner with Rule 573 and the constitutional mandates of
Brady v. Maryland, 373 U.S. 83 (1963), and its progeny.
Similarly, the attorney for the Commonwealth is responsible
for notifying the cooperating defendant that the specific
conditions to which the defendant agreed will be disclosed to
third parties within a specified time period, and should afford
the cooperating defendant an opportunity to object to the
unsealing of the record or to any other form of disclosure.
When a guilty plea, or plea of nolo contendere, includes a
plea agreement, the 1995 amendment to paragraph (B)(2)
requires that the judge conduct a separate inquiry on the
record to determine that the defendant understands and
accepts the terms of the plea agreement. See
Commonwealth v. Porreca, [528 Pa. 46,] 595 A.2d 23 (Pa.
1991).
Former paragraph (B)(3) was deleted in 1995 for two
reasons. The first sentence merely reiterated an earlier
provision in the rule. See paragraph (A)(3). The second
sentence concerning the withdrawal of a guilty plea was
deleted to eliminate the confusion being generated when
that provision was read in conjunction with Rule 591. As
provided in Rule 591, it is a matter of judicial discretion and
37
case law whether to permit or direct a guilty plea or plea of
nolo contendere to be withdrawn. See also Commonwealth
v. Porreca, [528 Pa. 46,] 595 A.2d 23 (Pa. 1991) (the terms
of a plea agreement may determine a defendant's right to
withdraw a guilty plea).
For the procedures governing the withdrawal of a plea of
guilty or nolo contendere, see Rule 591.
For the procedures concerning sentences that include
restitution in court cases, see Rule 705.1.
Paragraph (C) reflects a change in Pennsylvania practice,
that formerly required the judge to convene a panel of three
judges to determine the degree of guilt in murder cases in
which the imposition of a sentence of death was not
statutorily authorized. The 2008 amendment to paragraph
(C) and the Comment recognizes the Commonwealth’s right
to have a jury determine the degree of guilt following a plea
of guilty to murder generally. See Article I, § 6 of the
Pennsylvania Constitution that provides that “the
Commonwealth shall have the same right to trial by jury as
does the accused.” See also Commonwealth v. White, [589
Pa. 642,] 910 A.2d 648 (Pa. 2006).
NOTE: Rule 319(a) adopted June 30, 1964, effective
January 1, 1965; amended November 18, 1968, effective
February 3, 1969; paragraph (b) adopted and title of rule
amended October 3, 1972, effective 30 days hence; specific
areas of inquiry in Comment deleted in 1972 amendment,
reinstated in revised form March 28, 1973, effective
immediately; amended June 29, 1977 and November 22,
1977, effective as to cases in which the indictment or
information is filed on or after January 1, 1978; paragraph (c)
added and Comment revised May 22, 1978, effective July 1,
1978; Comment revised November 9, 1984, effective
January 2, 1985; amended December 22, 1995, effective
July 1, 1996; amended July 15, 1999, effective January 1,
2000; renumbered Rule 590 and Comment revised March 1,
2000, effective April 1, 2001; amended September 18, 2008,
effective November 1, 2008 [.] ; Comment revised March
9, 2016, effective July 1, 2016.
38
* * * * * *
COMMITTEE EXPLANATORY REPORTS:
Final Report explaining the December 22, 1995 amendments
published with the Court's Order at 26 Pa.B. 8 (January 6, 1996).
Final Report explaining the July 15, 1999 changes concerning
references to nolo contendere pleas and cross-referencing Rule 320
published with the Court’s Order at 29 Pa.B. 4057 (July 31, 1999).
Final Report explaining the March 1, 2000 reorganization and
renumbering of the rules published with the Court’s Order at 30 Pa.B.
1478 (March 18, 2000).
Final Report explaining the September 18, 2008 amendments to
paragraph (C) concerning juries determining degree of guilt
published with the Court’s Order at 38 Pa.B. 5429 (October 4, 2008).
Final Report explaining the March 9, 2016 Comment revision
concerning the Rule 705.1 restitution procedures published with the
Court’s Order at 46 Pa.B. ( , 2016).
39
RULE 704. PROCEDURE AT TIME OF SENTENCING.
(A) TIME FOR SENTENCING.
(1) Except as provided by Rule 702(B), sentence in a court case shall ordinarily
be imposed within 90 days of conviction or the entry of a plea of guilty or nolo
contendere.
(2) When the date for sentencing in a court case must be delayed, for good
cause shown, beyond the time limits set forth in this rule, the judge shall include
in the record the specific time period for the extension.
(3) In a summary case appeal, sentence shall be imposed immediately following
a determination of guilt at a trial de novo in the court of common pleas.
(B) ORAL MOTION FOR EXTRAORDINARY RELIEF.
(1) Under extraordinary circumstances, when the interests of justice require, the
trial judge may, before sentencing, hear an oral motion in arrest of judgment, for
a judgment of acquittal, or for a new trial.
(2) The judge shall decide a motion for extraordinary relief before imposing
sentence, and shall not delay the sentencing proceeding in order to decide it.
(3) A motion for extraordinary relief shall have no effect on the preservation or
waiver of issues for post-sentence consideration or appeal.
(C) SENTENCING PROCEEDING.
(1) At the time of sentencing, the judge shall afford the defendant the opportunity
to make a statement in his or her behalf and shall afford counsel for both parties
the opportunity to present information and argument relative to sentencing.
(2) The judge shall state on the record the reasons for the sentence imposed.
(3) The judge shall determine on the record that the defendant has been advised
of the following:
(a) of the right to file a post-sentence motion and to appeal, of the time
within which the defendant must exercise those rights, and of the right to
assistance of counsel in the preparation of the motion and appeal;
(b) of the rights,
(i) if the defendant is indigent, to proceed in forma pauperis and
40
to proceed with appointed counsel as provided in Rule 122,
or,
(ii) if represented by retained counsel, to proceed with retained
counsel unless the court has granted leave for counsel to
withdraw pursuant to Rule 120(B);
(c) of the time limits within which post-sentence motions must be decided;
(d) that issues raised before or during trial shall be deemed preserved for
appeal whether or not the defendant elects to file a post-sentence motion;
and
(e) of the defendant's qualified right to bail under Rule 521(B).
(4) The judge shall require that a record of the sentencing proceedings be made
and preserved so that it can be transcribed as needed. The record shall include:
(a) the record of any stipulation made at a pre-sentence conference; and
(b) a verbatim account of the entire sentencing proceeding.
COMMENT: The rule is intended to promote prompt and fair
sentencing procedures by providing reasonable time limits for
those procedures, and by requiring that the defendant be fully
informed of his or her post-sentence rights and the procedural
requirements which must be met to preserve those rights.
Rule 708 (Violation of Probation, Intermediate Punishment,
or Parole: Hearing and Disposition) governs sentencing
procedures after a revocation of probation, intermediate
punishment, or parole.
TIME FOR SENTENCING
As a general rule, the date for sentencing should be
scheduled at the time of conviction or the entry of a plea of
guilty or nolo contendere.
Under paragraph (A)(1), sentence should be imposed within
90 days of conviction or the entry of a plea of guilty or nolo
contendere, unless the court orders a psychiatric or
psychological examination pursuant to Rule 702(B). Such
an order should extend the time for sentencing for only as
much time as is reasonably required, but in no event should
41
sentencing be extended for more than 30 days beyond the
original 90-day limit. In summary appeal cases, however,
sentence must be imposed immediately at the conclusion of
the de novo trial.
Paragraph (A)(2) is not intended to sanction pro forma
requests for continuances. Rather, it permits the judge to
extend the time limit for sentencing under extraordinary
circumstances only. For example, additional pre-sentence
procedures may be required by statute. See 42 Pa.C.S. §§
[9791-9799.5] 9799.11-9799.41 for pre-sentence
assessment and hearing procedures for persons convicted
of sexually violent offenses. [See also 42 Pa.C.S. § 9714(c)
for hearing to determine high risk dangerous offender
status.]
Because such extensions are intended to be the exception
rather than the rule, the extension must be for a specific time
period, and the judge must include in the record the length of
the extension. A hearing need not be held before an
extension can be granted. Once a specific extension has
been granted, however, some provision should be made to
monitor the extended time period to insure prompt
sentencing when the extension period expires.
Failure to sentence within the time specified in paragraph (A)
may result in the discharge of the defendant. See
Commonwealth v. Anders, [555 Pa. 467,] 725 A.2d 170 (Pa.
1999) (discharge is appropriate remedy for violation of Rule
[1405] 704 time limits, but only if the defendant can
demonstrate that the delay in sentencing was prejudicial to
the defendant).
ORAL MOTION FOR EXTRAORDINARY RELIEF
Under paragraph (B), when there has been an error in the
proceedings that would clearly result in the judge's granting
relief post-sentence, the judge should grant a motion for
extraordinary relief before sentencing occurs. Although trial
errors may be serious and the issues addressing those
errors meritorious, this rule is intended to allow the trial judge
the opportunity to address only those errors so manifest that
immediate relief is essential. It would be appropriate for
counsel to move for extraordinary relief, for example, when
there has been a change in case law, or, in a multiple count
42
case, when the judge would probably grant a motion in
arrest of judgment on some of the counts post-sentence.
Although these examples are not all-inclusive, they illustrate
the basic purpose of the rule: when there has been an
egregious error in the proceedings, the interests of justice
are best served by deciding that issue before sentence is
imposed. Because the relief provided by this section is
extraordinary, boilerplate motions for extraordinary relief
should be summarily denied.
Under paragraph (B)(2), the motion must be decided before
sentence is imposed, and sentencing may not be postponed
in order to dispose of the motion. The judge may summarily
deny the motion or decide it on the merits.
Paragraph (B)(3) is intended to make it clear that a motion
for extraordinary relief is neither necessary nor sufficient to
preserve an issue for appeal. The failure to make a motion
for extraordinary relief, or the failure to raise a particular
issue in such a motion, does not constitute a waiver of any
issue. Conversely, the making of a motion for extraordinary
relief does not, of itself, preserve any issue raised in the
motion, nor does the judge's denial of the motion preserve
any issue.
SENTENCING PROCEDURES
Paragraph (C)(1) retains the former requirement that the
judge afford the defendant an opportunity to make a
statement and counsel the opportunity to present information
and argument relative to sentencing. The defendant's right
to allocution at sentencing is well established, and the trial
judge must inform the defendant of that right. See
Commonwealth v. Thomas, [520 Pa. 206,] 553 A.2d 918
(Pa. 1989).
The duty of the judge to explain to the defendant the rights
set forth in paragraph (C)(3) is discussed in Commonwealth
v. Wilson, [430 Pa. 1, 5,] 241 A.2d 760, 763 (Pa. 1968), and
Commonwealth v. Stewart, [430 Pa. 7, 8,] 241 A.2d 764,
765 (Pa. 1968).
The judge should explain to the defendant, as clearly as
possible, the timing requirements for making and deciding a
post-sentence motion under Rule 720. The judge should
also explain that the defendant may choose whether to file a
43
post-sentence motion and appeal after the decision on the
motion, or to pursue an appeal without first filing a post-
sentence motion.
Paragraph (C)(3) requires the judge to ensure the defendant
is advised of his or her rights concerning post-sentence
motions and appeal, and the right to proceed with counsel.
See, e.g., Commonwealth v. Librizzi, 810 A.2d 692 (Pa.
Super. 2002).
The rule permits the use of a written colloquy that is read,
completed, signed by the defendant, and made part of the
record of the sentencing proceeding. This written colloquy
must be supplemented by an on-the-record oral examination
to determine that the defendant has been advised of the
applicable rights enumerated in paragraph (C)(3) and that
the defendant has signed the form.
Other, additional procedures are required by statute. See,
e.g., 42 Pa.C.S. § 9756(b)(3) that imposes requirements on
the judge when a defendant may be eligible to participate in
a re-entry plan and 42 Pa.C.S. § 9756(b.1) that imposes
requirements on the judge when a defendant may be eligible
for a recidivism risk reduction incentive (RRRI) minimum
sentence; 42 Pa.C.S. § [9795.3] 9799.23 that requires the
judge to inform certain offenders of the duty to register; and
42 Pa.C.S. § 9813 that imposes requirements on the judge
when a defendant may be eligible for work release.
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
appointed counsel to the extent provided in Rule 122(A), and
of the qualified right to bail under Rule 521(B). See
paragraphs (C)(3)(a), (b), and (e). See also Rule 720(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 paragraph (C)(3)(e) and Rule 521. 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.
44
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 120
(Attorneys -- Appearances and Withdrawals).
It is difficult to set forth all the standards 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, [474 Pa. 115,] 377 A.2d 140 (Pa.
1977) and Commonwealth v. Devers, [519 Pa. 88,] 546 A.2d
12 (Pa. 1988). 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.
[In all cases in which restitution is imposed, the
sentencing judge must state on the record the amount
of restitution, if determined at the time of sentencing, or
the basis for determining an amount of restitution. See
18 Pa.C.S. § 1106 and 42 Pa.C.S. §§ 9721, 9728.]
For procedures in cases in which restitution is imposed,
see Rule 705.1.
For the right of a victim to have information included in the
pre-sentence investigation report concerning the impact of
the crime upon him or her, see [71 P.S. § 180-9.3(1)] 18
P.S. §11.201(4)-(5) and Rule 702(A)(4).
For the duty of the sentencing judge to state on the record
the reasons for the sentence imposed, see Commonwealth
v. Riggins, [474 Pa. 115,] 377 A.2d 140 (Pa. 1977) and
Commonwealth v. Devers, [519 Pa. 88,] 546 A.2d 12 (Pa.
1988). If the sentence initially imposed is modified pursuant
to Rule 720(B)(1)(a)(v), the sentencing judge should ensure
that the reasons for the ultimate sentence appear on the
record. See also Sentencing Guidelines, 204 PA. CODE §§
[303.1(b), 303.1(h), and 303.3(2)] 303.1(d)-(e) and
303.13(c).
In cases in which a mandatory sentence is provided by law,
when the judge decides not to impose a sentence greater
45
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 702(B), the judge may
immediately impose that sentence. But see Rule 702(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).
With respect to the recording and transcribing of court
proceedings, including sentencing, see Rule 115.
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,
46
effective April 1, 2001; Comment revised March 27, 2003,
effective July 1, 2003; amended April 28, 2005, effective
August 1, 2005; Comment revised March 15, 2013, effective
May 1, 2013 [.] ; Comment revised March 9, 2016
effective July 1, 2016.
* * * * * *
COMMITTEE EXPLANATORY REPORTS:
Final Report explaining the provisions of the new rule published with
the Court's Order at 23 Pa.B. 1699 (April 10, 1993).
Report explaining the 1995 amendment to paragraph (C)(3) published
with the Court's Order at 25 Pa.B. 236 (January 21, 1995).
Final Report explaining the September 13, 1995 amendments
concerning bail published with the Court's Order at 25 Pa.B. 4116
(September 30, 1995).
Final Report explaining the December 22, 1995 Comment revision on
restitution published with the Court's Order at 26 Pa.B. 13 (January 6,
1996).
Final Report explaining the September 26, 1996 Comment revision on
Rule 1409 procedures published with the Court's Order at 26 Pa.B.
4900 (October 12, 1996).
Final Report explaining the April 18, 1997 Comment revisions
published with the Court's Order at 27 Pa.B. 2122 (May 3, 1997).
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 Report explaining the July 15, 1999 amendments concerning
the time for sentencing published with the Court's Order at 29 Pa.B.
4059 (July 31, 1999).
47
Final Report explaining the March 1, 2000 reorganization and
renumbering of the rules published with the Court’s Order at 30 Pa.B.
1478 (March 18, 2000).
Final Report explaining the March 27, 2003 Comment revision adding
cross-references 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 Report explaining the April 28, 2005 amendments to paragraph
(C)(3)(b) concerning retained counsel's obligations published with
the Court’s Order at 35 Pa.B. 2855 (May 14, 2005).
Final Report explaining the March 15, 2013 revision of the Comment
adding citations to the Sentencing Code published with the Court’s
Order at 43 Pa.B. 1702 (March 30, 2013).
Final Report explaining the March 9, 2016 revision of the Comment
adding a cross-reference to Rule 705.1 concerning restitution
published with the Court’s Order at 46 Pa.B. ( , 2016).
48
(This is an entirely new rule.)
RULE 705.1. RESTITUTION.
(A) At the time of sentencing, the judge shall determine what restitution, if any, shall be
imposed.
(B) In any case in which restitution is imposed, the judge shall state in the
sentencing order:
(1) the amount of restitution ordered;
(2) the details of a payment plan, if any, including when payment is
to begin;
(3) the identity of the payee(s);
(4) to which officer or agency the restitution payment shall be
made;
(5) whether any restitution has been paid and in what amount; and
(6) whether the restitution has been imposed as a part of the
sentence and/or as a condition of probation.
COMMENT: This rule provides the procedures for the
statutory requirement for the judge to impose restitution. In
all cases in which restitution is imposed, the sentencing
judge must state on the record the amount of restitution at
the time of sentencing. See 18 Pa.C.S. § 1106 and 42
Pa.C.S. §§ 9721, 9728.
The extent of restitution also may be provided by statute.
See, e.g., 18 Pa.C.S. § 1107 (restitution for timber theft); §
1107.1 (restitution for identity theft); and § 1110 (restitution
for cleanup of clandestine labs).
When imposing restitution, the sentencing judge should
consider whether the defendant has received notice of the
intention to seek restitution prior to the hearing and whether
the defendant intends to object to the imposition of
restitution. The sentencing hearing may need to be
continued as a result.
49
Paragraph (B)(6) requires that the sentencing order make
clear whether any restitution is being imposed as a part of
the sentence pursuant to 18 Pa.C.S. § 1106 or as a
condition of probation pursuant to 42 Pa.C.S. § 9754. Unlike
restitution imposed under §1106 that is penal in nature,
restitution imposed as a condition of probation is primarily
aimed at rehabilitation. Sentences of probation give a trial
court the flexibility to determine all the direct and indirect
damages caused by a defendant. Commonwealth v. Harner,
617 A.2d 702 (Pa. 1992); Commonwealth v. Hall, 80 A.3d
1204 (Pa. 2013). Because a term of probation may not
exceed the maximum term for which the defendant could be
confined, and a court cannot enforce a restitution sentence
past the statutory maximum date, a court may not require
that restitution imposed as a condition of probation be paid
beyond the statutory maximum date. Commonwealth v.
Karth, 994 A.2d 606 (Pa. Super. 2010).
Certain costs are mandatory and must be imposed. See,
e.g., Section 1101 of the Crime Victims Act, 18 P.S. §
11.1101.
NOTE: New Rule 705.1 adopted March 9, 2016, effective
July 1, 2016.
* * * * * *
COMMITTEE EXPLANATORY REPORTS:
Final Report explaining new Rule 705.1 concerning sentences of
restitution published with the Court’s Order at 46 Pa.B. ( ,
2016).
50
RULE 1010. PROCEDURES FOR TRIAL DE NOVO.
(A) When a defendant appeals after conviction by a Municipal Court judge,
(1) in a non-traffic summary case, upon the filing of the transcript and other
papers, the case shall be heard de novo by the judge of the Court of Common
Pleas sitting without a jury.
(2) In a Municipal Court case, the attorney for the Commonwealth, upon
receiving the notice of appeal, shall prepare an information and the matter shall
thereafter be treated in the same manner as any other court case.
(B) If the defendant fails to appear for the trial de novo, the Common Pleas Court judge
may dismiss the appeal and thereafter shall enter judgment in the Court of Common
Pleas on the judgment of the Municipal Court judge.
(C) Withdrawals of Appeals
(1) If the defendant withdraws the appeal, the Common Pleas Court judge shall
enter judgment in the Court of Common Pleas on the judgment of the Municipal
Court judge.
(2) In a Municipal Court case, the defendant may withdraw the appeal only with
the written consent of the attorney for the Commonwealth.
(D) At the time of sentencing, the Common Pleas Court judge shall:
(1) if the defendant's sentence includes restitution, a fine, or costs, state:
(a) the amount of the fine and the obligation to pay
costs;
(b) the amount of restitution ordered, including
(i) the identity of the payee(s),
(ii) to whom the restitution payment shall be
made, and
(iii) whether any restitution has been paid and in
what amount; and
(c) the date on which payment is due.
51
If the defendant is without the financial means to pay the amount in a single
remittance, the Common Pleas Court judge may provide for installment
payments and shall state the date on which each installment is due;
(2) advise the defendant of the right to appeal to the Superior Court within 30
days of the imposition of sentence, and that, if an appeal is filed, the execution of
sentence will be stayed and the Common Pleas Court judge may set bail;
(3) if a sentence of imprisonment has been imposed, direct the defendant to
appear for the execution of sentence on a date certain unless the defendant files
a notice of appeal within the 30-day period; and
(4) issue a written order imposing sentence, signed by the Common Pleas Court
judge. The order shall include the information specified in paragraphs (D)(1)
through (D)(3), and a copy of the order shall be given to the defendant.
(E) After entry of judgment pursuant to paragraphs (B) or (C)(1), or after the trial de
novo and imposition of sentence, the case shall remain in the Court of Common Pleas
for the execution of sentence, including for the collection of any fines and restitution, for
the collection of any costs, and for proceedings for violation of probation, intermediate
punishment, or parole pursuant to Rule 708.
COMMENT: In any case in which there are summary
offenses joined with the misdemeanor charges that are the
subject of the appeal, the attorney for the Commonwealth
must include the summary offenses in the information.
See Commonwealth v. Speller, [311 Pa. Super. 569,] 458
A.2d 198 (Pa. Super. 1983).
Paragraph (B) makes it clear that the Common Pleas Court
judge may dismiss an appeal when the judge determines
that the defendant is absent without cause from the trial de
novo. If the appeal is dismissed, the Common Pleas Court
judge must enter judgment and order execution of any
sentence imposed by the Municipal Court judge. Nothing in
this rule is intended to preclude the judge from issuing a
bench warrant when the defendant fails to appear.
Certain costs are mandatory and must be imposed. See,
e.g., Section 1101 of the Crime Victims Act, 18 P.S. §
11.1101.
52
For the procedures concerning sentences that include
restitution in court cases, see Rule 705.1.
Once a judgment is entered and sentence is imposed,
paragraph (E) makes it clear that the case is to remain in the
Court of Common Pleas for execution of the sentence and
collection of any costs, and the case may not be returned to
the Municipal Court judge. The execution of sentence
includes the collection of any fines and restitution and any
proceedings for violation of probation, intermediate
punishment, or parole as provided by Rule 708.
NOTE: Rule 6010 adopted December 30, 1968, effective
January 1, 1969; amended July 1, 1980, effective August
1, 1980; amended August 28, 1998, effective immediately;
renumbered Rule 1010 March 1, 2000, effective April 1,
2001; Comment revised March 9, 2006, effective
September 1, 2006; amended February 12, 2010, effective
April 1, 2010; amended September 21, 2011, effective
November 1, 2011[.] ; amended March 9, 2016, effective
July 1, 2016.
* * * * * *
COMMITTEE EXPLANATORY REPORTS:
Final Report explaining the August 28, 1998 amendment published
with the Court's Order at 28 Pa.B. 4627 (September 12, 1998).
Final Report explaining the March 1, 2000 reorganization and
renumbering of the rules published with the Court’s Order at 30
Pa.B. 1478 (March 18, 2000).
Final Report explaining the March 9, 2006 Comment revision
concerning joinder of summary offenses with misdemeanor
charges published with the Court’s Order at 36 Pa.B. 1385 (March
25, 2006).
53
Final Report explaining the February 12, 2010 amendments to
paragraph (B) concerning the disposition of summary offenses at
the court of common pleas published with the Court’s Order at 40
Pa.B. 1068 (February 27, 2010).
Final Report explaining the September 21, 2011 amendments to
paragraphs (A)-(C) and adding new paragraphs (D) and (E)
concerning the procedures for trials de novo in the Court of
Common Pleas published with the Court’s Order at 41 Pa.B. 5353
(October 8, 2011).
Final Report explaining the March 9, 2016 amendments to paragraph
(D) concerning required elements of the sentence published with the
Court’s Order at 46 Pa.B. ( , 2016).
54