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PA Bulletin, Doc. No. 09-1



[ 234 PA. CODE CH. 4 ]

Order Amending Rule 462; Criminal Procedural No. 375; Doc. No. 2

[39 Pa.B. 8]
[Saturday, January 3, 2009]


Per Curiam:

   Now, this 16th day of December, 2008, upon the recommendation of the Criminal Procedural Rules Committee; the proposal having been submitted without publication pursuant to Pa.R.J.A. No. 103(a)(3) in the interests of justice and efficient administration, and a Final Report to be published with this Order:

   It Is Ordered pursuant to Article V, Section 10 of the Constitution of Pennsylvania that Rule of Criminal Procedure 462 is amended as follows.

   This Order shall be processed in accordance with Pa.R.J.A. No. 103(b), and shall be effective February 1, 2009.

   Mr. Justice Seamus P. McCaffery dissents.

Annex A




PART F. Procedures in Summary Cases for Appealing to Court of Common Pleas for Trial De Novo

Rule 462. Trial De Novo.

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   (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.

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   Pursuant to paragragh (B), the decision whether to appear and assume control of the procecution 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 [also] permit the affiant to question Commonwealth witnesses, cross-examine defense witnesses, and make recommendations about the case to the trial judge.

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   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) (relating to driving while operating privileges is suspended or revoked, 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.

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   Official 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 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.

Committee Explanatory Reports:

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   Final Report explaining the December 16, 2008 amendments to permit the delay in sentencing for determination of intermediate punishment status published with the Court's Order at 39 Pa.B.             (January 3, 2008).


Amendment to Pa.R.Crim.P. 462


   On December 16, 2008, effective February 1, 2009, upon the recommendation of the Criminal Procedural Rules Committee, the Court amended Rule 462 to permit a common pleas court judge following a trial de novo in a summary case to delay sentencing to determine the defendant's eligibility for intermediate punishment.2 These amendments conform the procedures in Rule 462 with the procedures in the summary case rules that were adopted by the Court on January 25, 2007 to permit a delay in sentencing following a guilty plea in a summary case or a summary trial for determination of the availability of intermediate punishment.

   Subsequent to the 2007 changes, the Committee discussed whether to add a comparable provision to the trial de novo rule, Rule 462, that would permit the common pleas judge to delay sentencing at the conclusion of the trial de novo in order to determine if the defendant is eligible for intermediate punishment. The Committee noted that Rules 409(C)(4), 414(C)(4), 424(C)(4), and 454(E), prior to the January 25th changes, required the sentence to be imposed at the time the plea is entered or at the conclusion of the trial with no provision for delaying imposition of sentence to determine eligibility for intermediate punishment. Similarly, Rule 462 requires, in the trial de novo following a summary appeal, that sentence be imposed at the time the verdict is announced in open court immediately upon the conclusion of trial. Although the Committee recognized that it is unlikely that a defendant who is accepted into summary intermediate punishment would appeal de novo, the members reasoned what is more likely is that a defendant, who did not receive intermediate punishment, for whatever reason, would appeal de novo. Furthermore, a common pleas judge also might be faced for the first time with a plea bargain of a guilty plea in exchange for receiving intermediate punishment.

   A final consideration is that the question of eligibility for intermediate punishment could arise when the common pleas court determines, after the de novo trial, that the defendant is guilty and the judge or defendant seeks intermediate punishment for the first time. In this latter circumstance, the defendant would not have been prescreened prior to the trial de novo. Unless a jurisdiction addresses this situation through local practice, such as not permitting intermediate punishment if found guilty (rather than plead guilty) and always prescreening for eligibility prior to taking a negotiated plea, the situation could arise at common pleas similar to that faced by the magisterial district judges.

   In view of these considerations, the Court amended Rule 462 to permit the trial judge following a trial de novo to delay sentencing until such time as a determination could be made as to the availability of intermediate punishment.

[Pa.B. Doc. No. 09-1. Filed for public inspection January 2, 2009, 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  Mr. Justice Seamus P. McCaffery dissents.

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