In Re: Order Adopting New Rule 705.1, Amending Rules 454, 462, and 1010, and Approving the Revision of the Comments to Rules 409, 414, 424, 455, 550, 590, and 704 of the Pennsylvania Rules of Criminal Procedure

FINAL REPORT1
New Pa.R.Crim.P. 705.1, amendments to Pa.Rs.Crim.P. 454, 462, and 1010, and
revisions to the Comments to Pa.Rs.Crim.P. 409, 414, 424, 455, 550, 590, and 704
SENTENCES OF RESTITUTION
On March 9, 2016, effective July 1, 2016, upon the recommendation of the
Criminal Procedural Rules Committee, the Court adopted new Rule of Criminal
Procedure 705.1 and the amendments to Rules of Criminal Procedure 454, 462, and
1010, and approved the revision to the Comments to Rules of Criminal Procedure 409,
414, 424, 455, 550, 590, and 704 to standardize the procedures by which restitution is
awarded in criminal cases.
BACKGROUND
These rule changes were developed from the Committee’s study of the
recommendations of the Restitution in Pennsylvania Task Force. The Task Force had
been convened by the Pennsylvania Office of the Victim Advocate to study “solutions to
increase the quality of restitution services at the state and county levels.” The Task
Force included representatives from a wide spectrum of agencies involved in the justice
system. Two of the Task Force’s recommendations are directed to the Rules of
Criminal Procedure. One was to encourage “AOPC and/or the Court Rules Committee
to standardize a restitution order for use at sentencing/disposition” and included
suggested elements for such an order. The other recommendation was for the
Committee to examine other jurisdictions “to consider whether any rules should be
amended or new rules adopted to improve the collection of restitution.”2
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
Restitution in Pennsylvania Task Force Final Report, http://www.center-
school.org/Restitution/index.html, pgs 30 and 42.
Sentences of Restitution Final Report: 3/9/2016
The Committee reviewed the report of the Restitution in Pennsylvania Task
Force as well as the statutes that provide for the award of restitution and the practice in
this area in several other jurisdictions. Subsequently, the Committee developed
proposed rule changes that were published for comment in April of 2014. See 44 Pa.B.
2369 (April 19, 2014). As a result of publication responses and communications from
the Court, the rule changes were revised to their current form.
DISCUSSION
The Committee first considered the Task Force’s conclusion that too often the
question of restitution and the manner in which it is awarded is an afterthought at
sentencing. The Committee concurred with this conclusion and considered it
anomalous that Rule 706 addresses fines and costs but no rule mentions the
procedures for awarding restitution. The Committee therefore concluded that it would
be a good idea to have a general rule stating the requirement to order restitution as part
of sentencing to provide greater emphasis on the actual award of restitution at time of
sentencing and to require a minimum standard of information to be included directly in
the sentencing order.
This new rule is numbered 705.1.3 Paragraph (A) of the rule is a statement
reminding the sentencing judge to impose restitution. By use of the phrase
“…restitution, if any…,” it acknowledges that some cases may not have restitution to
impose. Originally, the Committee considered including a provision for the award of
fines and costs. However, as the text of the rule and the Comment are directed
primarily to restitution, it seemed to detract from the purpose of the rule to include
provisions for fines and costs.
Paragraph (B) of the rule contains a list of elements that the judge should include
in the sentencing order to identify the restitution award details and assist in its
collection. Originally, this provision was contained in the Comment. The Committee
3
In terms of placement, the new rule follows Rule 705 (Imposition of Sentence) which
provides specifics regarding sentences that include incarceration. The Committee
concluded that it is logical to follow this rule with one dealing with restitution.
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concluded that it would be more effective in the rule itself. However, a concern was
expressed that by placing this in the rule itself, unwarranted challenges might be raised
based on a technical failure to include all the listed elements. Ultimately, the Committee
concluded that it should be contained in the rule text to ensure compliance.
One of the problems the Committee discussed was that the nature of a restitution
sentence varies depending on how the sentence was imposed. If awarded as part of
the sentence, under 18 Pa.C.S. §1106, the award is punitive in nature. However, it also
may be imposed 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. 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). As
a result, the means and extent to which the sentence can be enforced varies. The
Committee determined that this issue should be described in the Comment and that the
rule should require that the sentencing judge make clear in the sentencing order which
of the two sentencing concepts are applicable to any restitution award. Therefore, this
has been added to the list of items required to be in the sentencing order with a detailed
explanation contained in last paragraph of the Rule 705.1 Comment.
As originally published, proposed Rule 705.1 also contained a requirement that a
hearing or review be held prior to the expiration of probation when there is outstanding
restitution owed. This would enable the court to decide whether to hold the defendant in
violation for failure to pay before the court loses jurisdiction by the completion of the
probation. A number of publication responses were received expressing the view that it
would be unduly burdensome to require such a hearing or review in every case. They
expressed the view that in cases in which restitution has been awarded, the courts and
probation offices generally are maintaining good control over the collection process.
This provision therefore was removed from the proposal.
The Committee also contemplated including procedures for adjudicating a
restitution sentence. The Committee ultimately determined that any dispute as to
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restitution would occur usually at the sentencing hearing and that any subsequent
challenge to the award would be part of a normal sentencing appeal. The Committee
concluded that a separate provision to provide for this was unnecessary. However, the
Committee agreed that there should be some notice to the defendant prior to
sentencing. There was a divergence of opinion among the members as to whether the
rules should require the prosecution to provide notice and information about any
restitution well in advance of the sentencing hearing. The Committee also
acknowledged that in most cases there would not be a dispute as to restitution.
Ultimately, the Committee agreed that the proposed amendments should not introduce
a notice requirement that would be unnecessary and burdensome in most cases. Those
cases in which restitution is disputed and notice is provided, the sentencing judge may
need to permit a continuance. Therefore, language is included in the third paragraph of
the Rule 705.1 Comment that the judge should consider the notice provided to the
defendant and the defendant’s desire to challenge the restitution before it is awarded,
including the possible need to continue the sentencing hearing.
The Comment to Rule 704 contained a brief discussion of restitution sentences.
Since Rule 705.1 now provides the fuller procedures for restitution sentences, the Rule
704 Comment language has been removed.
The Committee also considered whether the similar requirements should be
added to the procedures for summary cases. The Committee agreed that it should.
Paragraph (F) of Rule 454 (Trial in Summary Cases) has been amended to provide
guidance as to what should be included in a restitution sentence similar to that which is
provided for court cases in new Rule 705.1. A cross-reference to this provision has
been added to the Comment to Rule 455 (Trial in Defendant's Absence) to ensure that
the judge addresses restitution in these cases.
The Committee considered a suggestion that Rule 462(G)(1) and Rule
1010(D)(1), which address trials de novo in summary and Municipal Court case
appeals, should contain provisions similar to the proposed amendments to Rule
454(F)(1) that describe the information that must be contained in a restitution sentence.
The Committee agreed that the court in a trial de novo, in effect, would be imposing a
new sentence. Therefore, this language has been added to these two rules.
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Because Rules 462 and 1010 include provisions regarding costs as part of the
sentence, this change prompted a discussion regarding the requirement to state the
costs on a case at time of sentencing. The Committee agreed that the usual practice is
not to have the costs available at the time of sentencing in court cases. Instead, due to
the complexity of calculations, particularly because of certain statutorily required costs,
the total costs are calculated after sentence is imposed, usually by the probation office.
Ultimately, the Committee concluded that Rules 454, 462, and 1010 should state the
sentence should include a statement concerning the obligation to pay costs rather than
the costs themselves since these are invariably determined only after sentence has
been imposed while the Comments to these rules should contain a reminder that the
assessment of certain costs may be statutorily required.
Another suggestion was to add a cross-reference to Rule 705.1 to the Comment
to Rule 550 since the latter rule, which addresses guilty pleas before magisterial district
judges in court cases, includes procedures for imposing sentence. This suggestion
caused the Committee to consider whether a similar cross-reference should be added
to Rule 590 (Pleas and Plea Agreements) since that rule also referenced sentencing.
The addition of these cross-references to the court case rules raised the question of
whether to add a cross-reference to the new provisions in Rule 454 to the summary
case guilty plea procedure rules, Rules 409, 414, and 424. The Committee ultimately
concluded that all of these additions would be helpful and so have been included in the
amendments.
Finally, several technical corrections have been made. In the Comments to
Rules 409, 414, 424, and 455, there is a change to the terminology cross-referencing
Rules 121 and 122 regarding “the defendant’s right to counsel” to read “Concerning the
appointment or waiver of counsel, see Rules 121 and 122,” consistent with the similar
changes made to Rule 431 in Recommendation 4 of 2014, which dealt with the
incarceration in summary cases for failure to post collateral. Several corrections to
outdated statutory cross-references in the Rule 704 Comment also have been made.
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