THE COURTS
Title 234--RULES OF CRIMINAL PROCEDURE
[234 PA. CODE CHS. 1 AND 9]
Order Amending Rule 122 and Approving the Revision of the Comment to Rule 904; No. 304 Criminal Procedural Rules; Doc. No. 2
[34 Pa.B. 1671] The Criminal Procedural Rules Committee has prepared a Final Report explaining the March 12, 2004 changes to Rules of Criminal Procedure 122 and 904 that clarify the duration and nature of appointed counsel's representational obligations. The Final Report follows the Court's Order.
Order Per Curiam:
Now, this 12th day of March, 2004, upon the recommendation of the Criminal Procedural Rules Committee; the proposal having been published before adoption at 30 Pa.B. 5533 (October 28, 2000), and in the Atlantic Reporter (Second Series Advance Sheets, Vol. 759), and a Final Report to be published with this Order:
It Is Ordered pursuant to Article V, Section 10 of the Constitution of Pennsylvania that:
(1) Rule of Criminal Procedure 122 is amended; and
(2) the revision of the Comment to Rule of Criminal Procedure 904 is approved,
all in the following form.
This Order shall be processed in accordance with Pa.R.J.A. 103(b), and shall be effective July 1, 2004.
Annex A
TITLE 234. RULES OF CRIMINAL PROCEDURE
CHAPTER 1. SCOPE OF RULES, CONSTRUCTION AND DEFINITIONS, LOCAL RULES
PART B. Counsel Rule 122. Assignment of Counsel.
* * * * * (C) IN ALL CASES.
* * * * * (3) [Where] When counsel has been assigned, such assignment shall be effective until final judgment, including any proceedings upon direct appeal.
Comment * * * * * [Subparagraph] Paragraph (C)(1) retains in the issuing authority or judge the power to assign counsel regardless of indigency or other factors when, in the issuing authority's or judge's opinion, the interests of justice require it.
[Paragraph] Pursuant to paragraph (C)(3) [implements the decisions of Douglas v. California, 372 U. S. 353 (1963), and Commonwealth v. Hickox, 249 A.2d 777 (Pa. 1969), by providing that], counsel [appointed originally shall retain] retains his or her assignment until final judgment, which includes [appellate procedure] all avenues of appeal through the Supreme Court of Pennsylvania. In making the decision whether to file a petition for allowance of appeal, counsel must (1) consult with his or her client, and (2) review the standards set forth in Pa.R.A.P. 1114 (Considerations Governing Allowance of Appeal) and the note following that rule. If the decision is made to file a petition, counsel must carry through with that decision. See Commonwealth v. Liebel, 825 A.2d 630 (Pa. 2003). Concerning counsel's obligations as appointed counsel, see Jones v. Barnes, 463 U.S. 745 (1983). See also Commonwealth v. Padden, 783 A.2d 299 (Pa. Super. 2001).
* * * * * Official Note: Rule 318 adopted November 29, 1972, effective 10 days hence[;], replacing prior rule; amended September 18, 1973, effective immediately; renumbered Rule 316 and amended June 29, 1977, and October 21, 1977, effective January 1, 1978; renumbered Rule 122 and amended March 1, 2000, effective April 1, 2001; amended March 12, 2004, effective July 1, 2004.
Committee Explanatory Reports:
* * * * * Final Report explaining the March 12, 2004 editorial amendment to paragraph (C)(3), and the Comment revision concerning duration of counsel's obligation, published with the Court's Order at 34 Pa.B. 1672 (March 27, 2004).
CHAPTER 9. POST-CONVICTION COLLATERAL PROCEEDINGS Rule 904. Entry of Appearance and Appointment of Counsel; In Forma Pauperis.
* * * * *
Comment * * * * * Pursuant to paragraphs (E) and (G)(2), appointed counsel retains his or her assignment until final judgment, which includes all avenues of appeal through the Supreme Court of Pennsylvania. In making the decision whether to file a petition for allowance of appeal, counsel must (1) consult with his or her client, and (2) review the standards set forth in Pa.R.A.P. 1114 (Considerations Governing Allowance of Appeal) and the note following that rule. If the decision is made to file a petition, counsel must carry through with that decision. See Commonwealth v. Liebel, 825 A.2d 630 (Pa. 2003). Concerning counsel's obligations as appointed counsel, see Jones v. Barnes, 463 U.S. 745 (1983). See also Commonwealth v. Padden, 783 A.2d 299 (Pa. Super. 2001).
Paragraph (G) was added in 2000 to provide for the appointment of counsel for the first petition for post-conviction collateral relief in a death penalty case at the conclusion of direct review.
Official Note: Previous Rule 1504 adopted January 24, 1968, effective August 1, 1968; rescinded December 11, 1981, effective June 27, 1982; rescission vacated June 4, 1982; rescinded February 1, 1989, effective July 1, 1989, and replaced by Rule [907] 1507. Present Rule 1504 adopted February 1, 1989, effective July 1, 1989; amended August 11, 1997, effective immediately; amended January 21, 2000, effective July 1, 2000; renumbered Rule 904 and amended March 1, 2000, effective April 1, 2001; amended February 26, 2002, effective July 1, 2002; Comment revised March 12, 2004, effective July 1, 2004.
Committee Explanatory Reports:
* * * * * Final Report explaining the Comment revision concerning duration of counsel's obligation published with the Court's Order at 34 Pa.B. 1672 (March 27, 2004).
FINAL REPORT1
Amendment to Pa.R.Crim.P. 122, and Revision of the Comment to Pa.R.Crim.P. 904
Duration of Appointed Counsel's Obligation On March 12, 2004, effective July 1, 2004, upon the recommendation of the Criminal Procedural Rules Committee, the Court made an editorial change to paragraph (C) of Rule of Criminal Procedure 122 (Assignment of Counsel), and approved the revisions to the Comments to Rules 122 and 904 (Appointment of Counsel; In Forma Pauperis) that clarify the duration and nature of appointed counsel's representational obligations.
I. BACKGROUND
The Committee initially undertook a review of the duration of appointed counsel's obligation provisions in Rule 122 at the request of the Court.2 The Court asked the Committee to consider whether Pennsylvania's policy concerning the duration of appointed counsel's obligation should continue to be that counsel retains his or her assignment until final judgment, which includes all avenues of appeal through the Supreme Court of Pennsylvania.
A. Rule 122 History3
In order to fully address the Court's inquiry, the Committee first reviewed the Rule 122 history and case law interpreting Rule 122. When the Committee recommended the appointment of counsel rule in 1964, the submission to the Court explained that the Committee was proposing the rule provide counsel's assignment shall be effective until final judgment including any proceedings upon direct appeal, and that the proposal was based on the United States Supreme Court's decision in Douglas v. California, 372 U.S. 353 (1963). The Committee, however, did not explain what was intended by ''any proceedings upon direct appeal.'' Douglas is not conclusive as to the meaning of ''direct appeal'' because the Supreme Court limited the scope of the Douglas decision saying ''We are not here concerned with the problems that might arise from the denial of counsel for the preparation of a petition for discretionary review or mandatory review beyond the stage in the appellate process at which the claims have once been presented by a lawyer and passed upon by an appellate court.''
Subsequently, the Court decided Commonwealth v. Hickox, 249 A.2d 777 (Pa. 1969). The Hickox opinion directs appointed counsel following the affirmance of defendant's sentence by the Superior Court ''to proceed in accordance with the Rule,'' suggesting that in 1969 the Court interpreted the use of ''direct appeal'' in Rule 122 to include discretionary appeals. The citation to Hickox was added to the Rule 122 Comment. The Committee concluded the addition of Hickox supported the premise that the intent of the rule is that appointed counsel is to stay in the case through the state courts' discretionary appeal process.
The issue of the length of appointed counsel's obligation has continued to arise in cases. The United States Supreme Court again addressed the issue in 1974 in Ross v. Moffitt, 417 U.S. 600 (1974). The Supreme Court held that there is no constitutional right to appointed counsel for discretionary appeals, noting that the decision should be made at the state level. The Pennsylvania Supreme Court did just that in 1980 when, in Commonwealth v. Daniels, 420 A.2d 1323 (Pa. 1980), it noted ''by this Rule [Rule 316], this Court long has guaranteed that a person seeking allowance of appeal is entitled to the assistance of counsel.'' Since Daniels, there have been several Superior Court cases addressing this issue in the context of ineffective assistance of counsel for failing to seek allowance of appeal to the Supreme Court, all accepting the premise that appointed counsel stays in the case through discretionary appeal. See, e.g., Commonwealth v. Morrow, 474 A.2d 322 (Pa. Super. 1984) and Commonwealth v. West, 482 A.2d 1339 (Pa. Super, 1984).
B. Policy Considerations
The Committee next considered the impact of this ''history'' on present practice. The Committee considered that, under the present system, having an attorney review the case for purposes of making a determination whether to file a petition for allowance of appeal will ensure the defendant receives adequate representation, and, at the same time, will ensure that the petitions will be filed only in those cases in which a reasoned assessment by counsel indicates that the case merits further review by the Court. If an attorney is not available to make these assessments, the number of filings are likely to increase because most defendants are aware of the discretionary appeal process, and will file pro se petitions for allowance of appeal without making the assessment counsel would make in the case.4 Similarly, the Committee does not believe removing counsel's obligation to remain in the case will reduce the number of nunc pro tunc requests, which continues to be a concern at this stage of the proceedings; defendants still will file the requests, although counsel's abandonment may not be the justification.
The Committee also noted that the availability of post-conviction collateral review has been offered by other jurisdictions to support those jurisdictions' choice not to provide appointed counsel for discretionary appeals, but agreed Pennsylvania's criminal justice system has functioned well under the existing system, and was not persuaded that a change to the system more akin to the federal system would improve Pennsylvania's appeal process. In fact, the members agreed such a change would have an adverse effect.
In view of the long history in Pennsylvania requiring appointed counsel to remain in a case through all avenues of appeal, the policy considerations the Committee evaluated, and the fact that the issue continues to arise, the Committee recommended to the Court that Rule 122 should be modified to more clearly state that the policy of Pennsylvania concerning the duration of appointed counsel's obligation continues until final judgment, which includes all avenues of appeal through the Supreme Court of Pennsylvania.5
II. DISCUSSION OF RULE CHANGES6
The issue of appointed counsel's obligation has two parts--how long the appointment lasts, which was the initial issue raised by the Court, and the nature of the obligation, which, of necessity, requires consideration when contemplating the duration of the obligation.
A. Duration of Obligation
The first prong of the Committee's consideration of this matter was the duration of appointed counsel's obligations, which is addressed in the sixth paragraph of the current Rule 122 Comment, and provides:
Paragraph (C)(3) implements the decisions of Douglas v. California, 372 U.S. 353 (1963), and Commonwealth v. Hickox, 249 A.2d 777 (Pa. 1969), by providing that counsel appointed originally shall retain his or her assignment until final judgment, which includes appellate procedure.The Committee initially considered merely changing ''appellate procedure'' in the last line of the paragraph to ''discretionary appeal.'' We reconsidered this because the Douglas and Hickox decisions cited in the Comment involved cases in which the appeal was an appeal as of right, and both Courts appear to use ''direct appeal'' in that context. Furthermore, a reasonable interpretation of the ''implements'' language in the Comment is that ''direct appeal'' only goes through the appeal as of right stage. Agreeing this Comment provision is contributing to the confusion evidenced in the case law, and because Pennsylvania courts have gone in a different direction than the federal courts since Ross v. Moffitt,7 the Committee recommended that the ''implements'' language in the Rule 122 Comment be deleted from the Comment. Similarly, because the Committee was concerned the phrase ''appellate procedure'' in this Comment provision would continue to contribute to the confusion about the length of appointed counsel's obligation, that phrase has been replaced with ''all avenues of appeal through the Supreme Court of Pennsylvania.''8 Finally, the citations to the Douglas and Hickox cases have been removed from the Comment provision to emphasize that the duration of counsel's obligation is a matter of policy in Pennsylvania rather than an interpretation of case law. With these changes, the current Rule 122 Comment has been revised to read:
Pursuant to paragraph (C)(3), counsel retains his or her assignment until final judgment, which includes all avenues of appeal through the Supreme Court of Pennsylvania.B. Nature of Obligation
The nature of appointed counsel's obligation is more complicated and continues to be the subject in a great deal of case law. Extrapolating from this case law,9 the Committee discerned that appointed counsel, in making a decision whether to file a petition for allowance of appeal, must exercise his or her professional judgment and, in exercising that judgment, must consider the provisions of Pa.R.A.P. 1114 (Considerations Governing Allowance of Appeal). We do not believe the case law mandates counsel to file a petition for allowance to appeal in every case. Furthermore, as a matter of policy and for practical reasons, the Committee agreed that discretionary appeals in Pennsylvania are different from appeals as of right; counsel should not be required to file a petition for allowance to appeal in every case nor to raise every conceivable issue in a petition, nor should counsel be precluded from raising issues of merit not identified by the defendant. As Chief Justice Burger stated in Jones v. Barnes, 463 U.S. 745, 751 (1983):
Neither Anders nor any other decision of this Court suggests, however, that the indigent defendant has a constitutional right to compel appointed counsel to press nonfrivolous points requested by the client, if counsel, as a matter of professional judgment, decides not to present those points. This Court, in holding that a State must provide counsel for an indigent appellant on his first appeal as of right, recognized the superior ability of trained counsel in the 'examination into the record, research of the law, and marshalling of arguments on [the appellant's] behalf.' . . . Experienced advocates since time beyond memory have emphasized the importance of winnowing out weaker arguments on appeal and focusing on one central issue if possible, or at most on a few key issues.This concept is articulated in Pennsylvania case law as well. Justice Saylor in a footnote in Commonwealth v. Lantzy, 736 A.2d 564 (Pa. 1999), points out that ''our holding should not be construed as affecting the substantial body of case law which concerns the circumstances in which a defendant seeks to pursue frivolous claims on appeal, or demands that counsel pursue every possible course of action or press every point.'' Id. 572 footnote 8. And President Judge Emeritus Cercone notes in Commonwealth v. Padden, 783 A.2d 299, 316 (Pa. Super. Ct. 2001):
Review by the Supreme Court is 'purely discretionary and will be granted only where there exist both special and important reasons. Pa.R.A.P. 1114. It would be illogical to conclude that a miscarriage of justice occurred by counsel's failure to seek Supreme Court review unless it is established that the issue was such that review would have been granted by the Supreme Court.' Commonwealth v. Gilbert, 407 Pa. Super. 491, 595 A.2d 1254 (1991), appeal denied, 529 Pa. 640, 600 A.2d 1258 (1991). Id. at 962.In Commonwealth v. Liebel, 825 A.2d 630 (Pa. 2003), the Court provided further guidance concerning counsel's professional obligations with regard to filing a petition for discretionary review by clarifying that counsel should consult with his or her client about whether to proceed with a petition for allowance to appeal, and that it is an improper exercise of counsel's professional obligations to represent that he or she is going to file the petition and then to fail to do so. Furthermore, after consulting with his or her client, counsel still is obligated to exercise his or her professional judgment, as well as consider the provisions of Pa.R.A.P. 1114, to determine whether a petition for allowance to appeal is appropriate in the case, and if so, which issues to raise.
Although the text of Rule 122 only addresses the appointment of counsel, not counsel's professional responsibilities, the members, sensitive that the rules or case law could be interpreted incorrectly as requiring counsel to file a petition for allowance of appeal in every case, even when counsel, in exercising his or her professional judgment, determines it is inappropriate, agreed the Rule 122 Comment should be modified to emphasize that the attorney must exercise his or her professional judgment in determining whether to file a petition for allowance of appeal, and would only file a petition if there is a substantial basis for filing and the case meets the standards in Pa.R.A.P. 1114 (Considerations Governing Allowance of Appeal). Making these points clear in the Comment will alert the members of the bar to the nature of their obligations as appointed counsel, and will help to reduce the number of unnecessary or frivolous petitions for allowance of appeal filed by counsel.
Accordingly, the Rule 122 Comment has been further revised by the addition of the following language addressing the nature of appointed counsel's obligation:
In making the decision whether to file a petition for allowance of appeal, counsel must (1) consult with his or her client, and (2) review the standards set forth in Pa.R.A.P. 1114 (Considerations Governing Allowance of Appeal) and the note following that rule. If the decision is made to file a petition, counsel must carry through with that decision. See Commonwealth v. Liebel, 825 A.2d 630 (Pa. 2003). Concerning counsel's obligations as appointed counsel, see Jones v. Barnes, 463 U.S. 745 (1983). See also Commonwealth v. Padden, 783 A.2d 299 (Pa. Super. 2001).
[Pa.B. Doc. No. 04-518. Filed for public inspection March 26, 2004, 9:00 a.m.] _______
1 The Committee's Final Reports should not be confused with the official Committee Comments to the rules. Also note that the Supreme Court does not adopt the Committee's Comments or the contents of the Committee's explanatory Final Reports.
2 References in this Final Report to ''Supreme Court'' mean the U. S. Supreme Court, and references to ''Court'' mean the Pennsylvania Supreme Court.
3 Prior to the Court's renumbering of the Criminal Rules in 2000, Rule 122 was Rule 316, and this pre-2000 ''history'' refers to Rule 316.
4 Such petitions often are of a poor quality, inarticulate, and procedurally and legally inadequate. Although many of these petitions would be dismissed, all the petitions would have to be docketed and reviewed.
5 Because appointed counsel's obligations when pursuing post-conviction collateral relief for a client are the same as trial counsel's with regard to remaining in the case through all avenues of appeal, the Committee agreed the same modifications should be made to Rule 904.
6 The Comment to Rule 904 also has been revised by the addition of the same language concerning appointed counsel's obligation that has been added to the Rule 122 Comment.
7 Subsequent Pennsylvania cases have clearly interpreted Rule 122 as applying through discrectionary appeals to the Pennsylvania Supreme Court.
8 This language is consistent with the explanation of ''final disposition'' in other rules. See, e.g., Rule 534 (Duration of Obligation) for bail.
9 See, e.g., Jones v. Barnes, 463 U.S. 745, 751 (1983); Commonwealth v. Liebel, 825 A.2d 630 (Pa. 2003); Commonwealth v. Lantzy, 736 A.2d 564 (Pa. 1999); and Commonwealth v. Padden, 783 A.2d 299, 316 (Pa. Super. Ct. 2001).
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