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Title 234—RULES OF
CRIMINAL PROCEDURE

[ 234 PA. CODE CH. 4 ]

Proposed Amendment of Pa.Rs.Crim.P. 403, 407, 408, 409, 411, 412, 413, 414, 422, 423, 424, 454, 456 and 470

[48 Pa.B. 496]
[Saturday, January 20, 2018]

 The Criminal Procedural Rules Committee is planning to propose to the Supreme Court of Pennsylvania the amendment of Rules 403 (Contents of Citation), Rule 407 (Pleas in Response to Citation), 408 (Not Guilty Pleas—Notice of Trial), 409 (Guilty Pleas), 411 (Procedures Following Filing of Citation—Issuance of Summons), 412 (Pleas in Response to Summons), 413 (Not Guilty Pleas—Notice of Trial), 414 (Guilty Pleas), 422 (Pleas in Response to Citation), 423 (Not Guilty Pleas—Notice of Trial), 424 (Guilty Pleas), 454 (Trial in Summary Cases), 456 (Default Procedures: Restitution, Fines, and Costs), 470 (Procedures Related to License Suspension after Failure to Respond to Citation or Summons or Failure to Pay Fine and Costs) for the reasons set forth in the accompanying explanatory report. Pursuant to Pa.R.J.A. No. 103(a)(1), the proposal is being published in the Pennsylvania Bulletin for comments, suggestions, or objections prior to submission to the Supreme Court.

 Any reports, notes, or comments in the proposal have been inserted by the Committee for the convenience of those using the rules. They neither will constitute a part of the rules nor will be officially adopted by the Supreme Court.

 Additions to the text of the proposal are bolded and underlined; deletions to the text are bolded and bracketed.

 The Committee invites all interested persons to submit comments, suggestions, or objections in writing to:

 Jeffrey M. Wasileski, Counsel
Supreme Court of Pennsylvania
Criminal Procedural Rules Committee
601 Commonwealth Avenue, Suite 6200
Harrisburg, PA 17106-2635
fax: (717) 231-9521
e-mail: criminalrules@pacourts.us

 All communications in reference to the proposal should be received by no later than Friday, February 23, 2018. E-mail is the preferred method for submitting comments, suggestions, or objections; any e-mailed submission need not be reproduced and resubmitted via mail. The Committee will acknowledge receipt of all submissions.

By the Criminal Procedural
Rules Committee

BRIAN W. PERRY, 
Chair

Annex A

TITLE 234. RULES OF CRIMINAL PROCEDURE

CHAPTER 4. PROCEDURES IN SUMMARY CASES

PART B. Citation Procedures

Rule 403. Contents of Citation.

*  *  *  *  *

 (B) The copy delivered to the defendant shall also contain a notice to the defendant:

 (1) that the original copy of the citation will be filed before the issuing authority of the magisterial district designated in the citation, the address and number of which shall be contained in the citation; and

 (2) that the defendant shall, within [10] 30 days after issuance of the citation:

 (a) plead not guilty by:

 (i) notifying the proper issuing authority in writing of the plea [and forwarding as collateral for appearance at trial an amount equal to the fine and costs specified in the citation, plus any additional fee required by law. If the amount is not specified, the defendant shall forward the sum of $50 as collateral for appearance at trial; or], providing a current mailing address and telephone number, and

(a) forwarding as collateral for appearance at trial an amount equal to the fine and costs specified in the citation, plus any additional fee required by law, or

(b) forwarding as collateral for appearance at trial the sum of $50 if the fine and costs are not specific on the citation, or

(c) certifying in writing that they do not have the financial means to deposit the amount of collateral specified in the citation, or $50 when no amount is specified; or

 (ii) appearing before the proper issuing authority, entering the plea, and depositing such collateral for appearance at trial as the issuing authority shall require[. If the defendant cannot afford to pay the collateral specified in the citation or the $50, the defendant must appear before the issuing authority to enter a plea]; or

 (b) plead guilty by:

 (i) notifying the proper issuing authority in writing of the plea and forwarding an amount equal to the fine and costs when specified in the statute or ordinance, the amount of which shall be set forth in the citation; or

 (ii) appearing before the proper issuing authority for the entry of the plea and imposition of sentence, when the fine and costs are not specified in the citation, or when a payment plan is necessary, or when required to appear pursuant to Rule 409(B)(3), 414(B)(3), or 424(B)(3); or

*  *  *  *  *

Official Note: Previous rule, originally numbered Rule 133(a) and Rule 133(b), adopted January 31, 1970, effective May 1, 1970; renumbered Rule 53(a) and 53(b) September 18, 1973, effective January 1, 1974; amended January 23, 1975, effective September 1, 1975; 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 53 adopted July 12, 1985, effective January 1, 1986. The January 1, 1986 effective dates all are extended to July 1, 1986; amended February 1, 1989, effective as to cases instituted on or after July 1, 1989; amended January 31, 1991, effective July 1, 1991; amended June 3, 1993, effective as to new citations printed on or after July 1, 1994; amended July 25, 1994, effective January 1, 1995; renumbered Rule 403 and Comment revised March 1, 2000, effective April 1, 2001; amended March 3, 2000, effective July 1, 2000; Comment revised February 6, 2003, effective July 1, 2003; amended August 7, 2003, effective July 1, 2004; amended January 26, 2007, effective February 1, 2008; amended   , 2018, effective   , 2018.

Committee Explanatory Reports:

*  *  *  *  *

 Final Report explaining the January 26, 2007 amendments to paragraph (B)(2)(b)(ii) and revisions to the Comment published with the Court's Order at 37 Pa.B. 752 (February 17, 2007).

Report explaining the proposed amendments regarding responses in writing asserting an inability to pay published for comment at 48 Pa.B. 505 (January 20, 2018).

PART B(1). Procedures When Citation Is Issued to Defendant

Rule 407. Pleas in Response to Citation.

 Within [10] 30 days after issuance of a citation, the defendant shall notify the issuing authority by mail or in person that the defendant either pleads not guilty or pleads guilty.

*  *  *  *  *

Official Note: Previous Rule 57 adopted September 18, 1973, effective January 1, 1974; title of rule amended January 23, 1975, effective September 1, 1975; rescinded July 12, 1985, effective January 1, 1986, and replaced by present Rules 411-414 and 421-424. Present Rule 57 adopted July 12, 1985, effective January 1, 1986. The January 1, 1986 effective dates all are extended to July 1, 1986; amended February 1, 1989, effective as to cases instituted on or after July 1, 1989; renumbered Rule 407 and amended March 1, 2000, effective April 1, 2001; amended   , 2018, effective   , 2018.

Committee Explanatory Reports:

 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).

Report explaining the proposed amendments increasing the period to respond to 30 days published for comment at 48 Pa.B. 505 (January 20, 2018).

Rule 408. Not Guilty Pleas—Notice of Trial.

 (A) A defendant may plead not guilty by:

 (1) appearing before the issuing authority, entering the plea, and depositing such collateral for appearance at trial as the issuing authority shall require; or

 (2) notifying the issuing authority in writing of the plea, providing a current mailing address and telephone number, and

(a) forwarding as collateral for appearance at trial an amount equal to the fine and costs specified in the citation, plus any additional fee required by law[. If];

(b) if the fine and costs are not specified, [the defendant shall forward] forwarding the sum of $50 as collateral for appearance at trial[.]; or

(c) certifying that the defendant does not have the financial means to deposit the amount of the collateral specified in the citation or the $50 when no amount is specified.

 (B) The issuing authority, upon receiving a plea of not guilty, shall:

*  *  *  *  *

Comment

[It is intended that the defendant will appear in person before the issuing authority to plead not guilty when the defendant cannot afford to deposit the amount of collateral specified in the citation or the $50 when no amount is specified. A plea entered by mail must be accompanied by the full amount of collateral. See Rule 452.] All checks deposited as collateral shall be made payable to the magisterial district number set forth on the citation.

 When fixing the date and hour for trial, the issuing authority should determine whether the trial must be delayed because the defendant's criminal record must be ascertained prior to trial as specifically required by statute for purposes of grading the offense charged.

 Paragraph (B)(3) was amended in 2016 to clarify that collateral may be forfeited for the payment of restitution as well as for the fine and costs that have been assessed by an issuing authority. See 18 Pa.C.S. § 1106(d) for the authority of a magisterial district judge to impose restitution on a defendant.

Official Note: Previous Rule 58, adopted September 18, 1973, effective January 1, 1974; amended to correct printing error June 28, 1976, effective immediately; rescinded July 12, 1985, effective January 1, 1986, and not replaced in the present rules. Present Rule 58 adopted July 12, 1985, effective January 1, 1986. The January 1, 1986 effective dates all are extended to July 1, 1986; amended January 31, 1991, effective July 1, 1991; renumbered Rule 408 and amended March 1, 2000, effective April 1, 2001; amended June 10, 2016, effective August 1, 2016; amended   , 2018, effective   , 2018.

Committee Explanatory Reports:

*  *  *  *  *

 Final Report explaining the June 10, 2016 amendments clarifying that forfeited collateral may be applied to restitution published with the Court's Order at 46 Pa.B. 3235 (June 25, 2016).

Report explaining the proposed amendments regarding responses by mail when the defendant is unable to post collateral published for comment at 48 Pa.B. 505 (January 20, 2018).

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:

(a) the fine and costs are not specified in the citation; [or]

(b) after receipt of notice that a guilty plea by mail has not been accepted by the issuing authority pursuant to paragraph (B)(3)[.]; or

(c) the defendant is without the financial means immediately to pay the fine and costs specified in the citation.

 (B) When the defendant pleads guilty pursuant to paragraph (A)(1):

 (1) The defendant [must] shall sign the guilty plea acknowledging that the plea is entered voluntarily and understandingly. The defendant shall provide confirmation of a current mailing address and telephone number.

*  *  *  *  *

 (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) 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] the full amount of the fine, costs, and restitution. The issuing authority may delay imposing sentence pending confirmation of the defendant's ability to pay.

Comment

 The rule [was amended in 2007 to make it clear (1)] makes it clear that a defendant may not enter a guilty plea by mail (1) to an offense that carries a mandatory sentence of imprisonment, [and (2) in] or (2) when the defendant is without the financial means immediately to pay the fine and costs. 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 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.

In determining whether a defendant is without the financial means immediately to pay the fine, costs, and restitution, the issuing authority must consider the defendant's financial situation. Some factors that should be considered in this determination include, but are not limited to:

(1) the defendant's current employment status, including current salary and gross income from this year and previous recent years, if any, from the current employer(s) or previous employer(s);

(2) income from other sources such as interest, dividends, pension and annuities, social security benefits, support payments, disability payments, unemployment compensation and supplemental benefits, workers' compensation, public assistance;

(3) the value of all property owned, including money available in cash, or bank accounts, real estate (including home), and other significant property such as motor vehicles;

(4) debts and obligations including mortgages, rent, loans; court assessments, and any other miscellaneous recurring expenses;

(5) other contributions to household support from spouse, parents, children, or others; and

(6) all persons dependent upon the defendant for support and the defendant's actual contribution to that support

The issuing authority may require the defendant to present documents or other evidence to verify the defendant's financial situation.

 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).

*  *  *  *  *

Official 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; 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; amended   , 2018, effective   , 2018.

Committee Explanatory Reports:

*  *  *  *  *

 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. 1532 (March 26, 2016).

Report explaining the proposed amendments regarding inability to pay published for comment at 48 Pa.B. 505 (January 20, 2018).

PART B(2). Procedures When Citation Filed

Rule 411. Procedures Following Filing of Citation—Issuance of Summons.

 (A) Upon the filing of the citation, including receipt of electronically transmitted citation or parking violation information, the issuing authority shall issue a summons commanding the defendant to respond within [10] 30 days of receipt of the summons, unless the issuing authority has reasonable grounds to believe that the defendant will not obey a summons in which case an arrest warrant shall be issued. The summons shall be served as provided in these rules.

*  *  *  *  *

Official Note: Previous Rule 117, adopted June 30, 1964, effective January 1, 1965; suspended effective May 1, 1970; revised January 31, 1970, effective May 1, 1970; renumbered and amended to apply only to summary cases September 18, 1973, effective January 1, 1974; amended April 26, 1979, effective July 1, 1979; amended January 28, 1983, effective July 1, 1983; rescinded July 12, 1985, effective January 1, 1986, and replaced by present Rule 431. Present Rule 61 adopted July 12, 1985, effective January 1, 1986. The January 1, 1986 effective dates all are extended to July 1, 1986; amended July 17, 1996, effective January 1, 1997; renumbered Rule 411 and Comment revised March 1, 2000, effective April 1, 2001; amended , 2003, effective 2003; amended   , 2018, effective   , 2018.

Committee Explanatory Reports:

*  *  *  *  *

 Final Report explaining the February 6, 2003 amendments concerning electronic transmission of citation and parking violation information published with the Court's Order at 33 Pa.B. 969 (February, 22, 2003).

Report explaining the proposed amendments increasing the period to respond to 30 days published for comment at 48 Pa.B. 505 (January 20, 2018).

Rule 412. Pleas in Response to Summons.

 Within [10] 30 days after receipt of a summons, the defendant shall notify the issuing authority by mail or in person that the defendant either pleads not guilty or pleads guilty.

*  *  *  *  *

Official Note: Previous rule, originally numbered Rule 118 and 118(b), adopted June 30, 1964, effective January 1, 1965; suspended effective May 1, 1970; revised January 31, 1970, effective May 1, 1970; renumbered as Rule 62 and amended to apply only to summary cases September 18, 1973, effective January 1, 1974; amended April 26, 1979, effective July 1, 1979; amended April 24, 1981, effective July 1, 1981; amended January 28, 1983, effective July 1, 1983; rescinded July 12, 1985, effective January 1, 1986, and replaced by present Rule 441. Present Rule 62 adopted July 12, 1985, effective January 1, 1986. The January 1, 1986 effective dates all are extended to July 1, 1986; amended February 1, 1989, effective as to cases instituted on or after July 1, 1989 ; renumbered Rule 412 and amended March 1, 2000, effective April 1, 2001; amended   , 2018, effective   , 2018.

Committee Explanatory Reports:

*  *  *  *  *

 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).

Report explaining the proposed amendments increasing the period to respond to 30 days published for comment at 48 Pa.B. 505 (January 20, 2018).

Rule 413. Not Guilty Pleas—Notice of Trial.

 (A) A defendant may plead not guilty by:

 (1) appearing before the issuing authority, entering the plea, and depositing such collateral for appearance at trial as the issuing authority shall require; or

 (2) notifying the issuing authority in writing of the plea, providing a current mailing address and telephone number, and

(a) forwarding as collateral for appearance at trial an amount equal to the fine and costs specified in the citation, plus any additional fee required by law[. If];

(b) if the fine and costs are not specified, [the defendant shall forward] forwarding the sum of $50 as collateral for appearance at trial[.]; or

(c) certifying that the defendant does not have the financial means to deposit the amount of the collateral specified in the citation or the $50 when no amount is specified.

 (B) The issuing authority, upon receiving a plea of not guilty, shall:

*  *  *  *  *

Comment

[It is intended that the defendant will appear in person before the issuing authority to plead not guilty when the defendant cannot afford to deposit the amount of collateral specified in the citation or the $50 when no amount is specified. A plea entered by mail must be accompanied by the full amount of collateral. See Rule 452.] All checks deposited as collateral shall be made payable to the magisterial district number set forth on the citation.

 When fixing the date and hour for trial, the issuing authority should determine whether the trial must be delayed because the defendant's criminal record must be ascertained prior to trial as specifically required by statute for purposes of grading the offense charged.

 Paragraph (B)(3) was amended in 2016 to clarify that collateral may be forfeited for the payment of restitution as well as for the fine and costs that have been assessed by an issuing authority. See 18 Pa.C.S. § 1106(d) for the authority of a magisterial district judge to impose restitution on a defendant.

Official Note: Previous rule, originally numbered Rules 141 and 142, adopted January 31, 1970, effective May 1, 1970; combined, and renumbered Rule 63, and amended September 18, 1973, effective January 1, 1974; amended April 26, 1979, effective July 1, 1979; rescinded July 12, 1985, effective January 1, 1986, and replaced by present Rule 454. Present Rule 63 adopted July 12, 1985, effective January 1, 1986. The January 1, 1986 effective dates all are extended to July 1, 1986; amended January 31, 1991, effective July 1, 1991; renumbered Rule 413 and amended March 1, 2000, effective April 1, 2001; amended June 10, 2016, effective August 1, 2016; amended   , 2018, effective   , 2018.

Committee Explanatory Reports:

*  *  *  *  *

 Final Report explaining the June 10, 2016 amendments clarifying that forfeited collateral may be applied to restitution published with the Court's Order at 46 Pa.B. 3235 (June 26, 2016).

Report explaining the proposed amendments regarding responses by mail when the defendant is unable to post collateral published for comment at 48 Pa.B. 505 (January 20, 2018).

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:

(a) the fine and costs are not specified in the citation; [or]

(b) after receipt of notice that a guilty plea by mail has not been accepted by the issuing authority pursuant to paragraph (B)(3)[.]; or

(c) the defendant is without the financial means immediately to pay the fine and costs specified in the citation.

 (B) When the defendant pleads guilty pursuant to paragraph (A)(1):

 (1) The defendant [must] shall sign the guilty plea acknowledging that the plea is entered voluntarily and understandingly. The defendant shall provide confirmation of a current mailing address and telephone number.

*  *  *  *  *

 (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) 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] the full amount of the fine, costs, and restitution. The issuing authority may delay imposing sentence pending confirmation of the defendant's ability to pay.

Comment

 The rule [was amended in 2007 to make it clear (1)] makes it clear that a defendant may not enter a guilty plea by mail (1) to an offense that carries a mandatory sentence of imprisonment, [and (2) in] or (2) when the defendant is without the financial means immediately to pay the fine and costs. 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 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.

In determining whether a defendant is without the financial means immediately to pay the fine and costs, the issuing authority must consider the defendant's financial situation. Some factors that should be considered in this determination include, but are not limited to:

(1) the defendant's current employment status, including current salary and gross income from this year and previous recent years, if any, from the current employer(s) or previous employer(s);

(2) income from other sources such as interest, dividends, pension and annuities, social security benefits, support payments, disability payments, unemployment compensation and supplemental benefits, workers' compensation, public assistance;

(3) the value of all property owned, including money available in cash, or bank accounts, real estate (including home), and other significant property such as motor vehicles;

(4) debts and obligations including mortgages, rent, loans; court assessments, and any other miscellaneous recurring expenses;

(5) other contributions to household support from spouse, parents, children, or others; and

(6) all persons dependent upon the defendant for support and the defendant's actual contribution to that support

The issuing authority may require the defendant to present documents or other evidence to verify the defendant's financial situation.

 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).

*  *  *  *  *

Official 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; 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; amended   , 2018, effective   , 2018.

Committee Explanatory Reports:

*  *  *  *  *

 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. 1532 (March 26, 2016).

Report explaining the proposed amendments regarding inability to pay published for comment at 48 Pa.B. 505 (January 20, 2018).

PART C. Procedures in Summary Cases When Complaint Filed

Rule 422. Pleas in Response to Summons.

 Within [10] 30 days after receipt of a summons, the defendant shall notify the issuing authority by mail or in person that the defendant either pleads not guilty or pleads guilty.

*  *  *  *  *

Official Note: Previous Rule 67, adopted September 18, 1973, effective January 1, 1974; amended May 26, 1977, effective July 1, 1977; amended April 26, 1979, effective July 1, 1979; Comment revised April 24, 1981, effective July 1, 1981; Comment revised January 28, 1983, effective July 1, 1983; rescinded July 12, 1985, effective January 1, 1986, and replaced by present Rules 460, 461, and 462. Present Rule 67 adopted July 12, 1985, effective January 1, 1986. The January 1, 1986 effective dates all are extended to July 1, 1986; amended February 1, 1989, effective as to cases instituted on or after July 1, 1989; renumbered Rule 422 and amended March 1, 2000, effective April 1, 2001; amended   , 2018, effective   , 2018.

Committee Explanatory Reports:

 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).

Report explaining the proposed amendments increasing the period to respond to 30 days published for comment at 48 Pa.B. 505 (January 20, 2018).

Rule 423. Not Guilty Pleas—Notice of Trial.

 (A) A defendant may plead not guilty by:

 (1) appearing before the issuing authority, entering the plea, and depositing such collateral for appearance at trial as the issuing authority shall require; or

 (2) notifying the issuing authority in writing of the plea, providing a current mailing address and telephone number, and

(a) forwarding as collateral for appearance at trial an amount equal to the fine and costs specified in the citation, plus any additional fee required by law[. If];

(b) if the fine and costs are not specified, [the defendant shall forward] forwarding the sum of $50 as collateral for appearance at trial[.]; or

(c) certifying that the defendant does not have the financial means to deposit the amount of the collateral specified in the citation or the $50 when no amount is specified.

 (B) The issuing authority, upon receiving a plea of not guilty, shall:

*  *  *  *  *

Comment

[It is intended that the defendant will appear in person before the issuing authority to plead not guilty when the defendant cannot afford to deposit the amount of collateral specified in the citation or the $50 when no amount is specified. A plea entered by mail must be accompanied by the full amount of collateral. See Rule 452.] All checks deposited as collateral shall be made payable to the magisterial district number set forth on the citation.

 When fixing the date and hour for trial, the issuing authority should determine whether the trial must be delayed because the defendant's criminal record must be ascertained prior to trial as specifically required by statute for purposes of grading the offenses charged.

 Paragraph (B)(3) was amended in 2016 to clarify that collateral may be forfeited for the payment of restitution as well as for the fine and costs that have been assessed by an issuing authority. See 18 Pa.C.S. § 1106(d) for the authority of a magisterial district judge to impose restitution on a defendant.

Official Note: Previous Rule 68 adopted September 18, 1973, effective January 1, 1974; rescinded July 12, 1985, effective January 1, 1986, and not replaced in the present rules. Present Rule 68 adopted July 12, 1985, effective January 1, 1986. The January 1, 1986 effective dates all are extended to July 1, 1986; amended January 31, 1991, effective July 1, 1991; renumbered Rule 423 and amended March 1, 2000, effective April 1, 2001; amended June 10, 2016, effective August 1, 2016; amended   , 2018, effective   , 2018.

Committee Explanatory Reports:

*  *  *  *  *

 Final Report explaining the June 10, 2016 amendments clarifying that forfeited collateral may be applied to restitution published with the Court's Order at 46 Pa.B. 3235 (June 26, 2016).

Report explaining the proposed amendments regarding responses by mail when the defendant is unable to post collateral published for comment at 48 Pa.B. 505 (January 20, 2018).

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:

(a) the fine and costs are not specified in the citation; [or]

(b) after receipt of notice that a guilty plea by mail has not been accepted by the issuing authority pursuant to paragraph (B)(3)[.]; or

(c) the defendant is without the financial means immediately to pay the fine and costs specified in the citation.

 (B) When the defendant pleads guilty pursuant to paragraph (A)(1):

 (1) The defendant [must] shall sign the guilty plea acknowledging that the plea is entered voluntarily and understandingly. The defendant shall provide confirmation of a current mailing address and telephone number.

*  *  *  *  *

 (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) 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] the full amount of the fine, costs, and restitution. The issuing authority may delay imposing sentence pending confirmation of the defendant's ability to pay.

Comment

 The rule [was amended in 2007 to make it clear (1)] makes it clear that a defendant may not enter a guilty plea by mail (1) to an offense that carries a mandatory sentence of imprisonment, [and (2) in] or (2) when the defendant is without the financial means immediately to pay the fine and costs. 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 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.

In determining whether a defendant is without the financial means immediately to pay the fine and costs, the issuing authority must consider the defendant's financial situation. Some factors that should be considered in this determination include, but are not limited to:

(1) the defendant's current employment status, including current salary and gross income from this year and previous recent years, if any, from the current employer(s) or previous employer(s);

(2) income from other sources such as interest, dividends, pension and annuities, social security benefits, support payments, disability payments, unemployment compensation and supplemental benefits, workers' compensation, public assistance;

(3) the value of all property owned, including money available in cash, or bank accounts, real estate (including home), and other significant property such as motor vehicles;

(4) debts and obligations including mortgages, rent, loans; court assessments, and any other miscellaneous recurring expenses;

(5) other contributions to household support from spouse, parents, children, or others; and

(6) all persons dependent upon the defendant for support and the defendant's actual contribution to that support

The issuing authority may require the defendant to present documents or other evidence to verify the defendant's financial situation.

 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).

*  *  *  *  *

Official 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 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; amended   , 2018, effective   , 2018.

Committee Explanatory Reports:

*  *  *  *  *

 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. 1532 (March 26, 2016).

Report explaining the proposed amendments regarding inability to pay published for comment at 48 Pa.B. 505 (January 20, 2018).

PART E. General Procedures in Summary Cases

Rule 454. Trial in Summary Cases.

*  *  *  *  *

 (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) In determining the amount of the discretionary fine, if any, or discretionary costs, if any, that is to be imposed and the payment schedule, if any, the issuing authority shall consider the defendant's ability to pay. The issuing authority may delay imposing sentence pending confirmation of the defendant's ability to pay.

[(E)] (F) 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)] (G) At the time of sentencing, the issuing authority shall:

 (1) if the defendant's sentence includes restitution, a fine, or costs, state:

*  *  *  *  *

 (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] shall provide for installment payments and shall state the date on which each installment is due and shall advise the defendant of the procedures in Rule 456 in the event of any default in payment.

*  *  *  *  *

Comment

*  *  *  *  *

 Paragraph [(F)(2)(b)] (G)(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.

*  *  *  *  *

 Under paragraph [(F)(2)(a)] (G)(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)] (G)(3), the issuing authority should set the earliest possible date for sentencing after the appeal period expires.

*  *  *  *  *

 Certain costs are mandatory and must be imposed. See, e.g., Section 1101 of the Crime Victims Act, 18 P.S. § 11.1101.

In determining whether a defendant has the financial means to pay, the issuing authority must consider the defendant's financial situation. Some factors that should be considered in this determination include, but are not limited to:

(1) the defendant's current employment status, including current salary and gross income from this year and previous recent years, if any, from the current employer(s) or previous employer(s);

(2) income from other sources such as interest, dividends, pension and annuities, social security benefits, support payments, disability payments, unemployment compensation and supplemental benefits, workers' compensation, public assistance;

(3) the value of all property owned, including money available in cash, or bank accounts, real estate (including home), and other significant property such as motor vehicles;

(4) debts and obligations including mortgages, rent, loans; court assessments, and any other miscellaneous recurring expenses;

(5) other contributions to household support from spouse, parents, children, or others; and

(6) all persons dependent upon the defendant for support and the defendant's actual contribution to that support.

The issuing authority may require the defendant to present documents or other evidence to verify the defendant's financial situation.

 Paragraph [(E)] (F) 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. § 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.

*  *  *  *  *

Official 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; amended   , 2018, effective   , 2018.

Committee Explanatory Reports:

*  *  *  *  *

 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. 3235 (March 26, 2016).

Report explaining the proposed amendments related to determining the defendant's ability to pay case assessments published for comment at 48 Pa.B. 505 (January 20, 2018).

Rule 456. Default Procedures: Restitution, Fines, and Costs.

*  *  *  *  *

 (D) When a defendant appears pursuant to the notice in paragraph (B) or pursuant to an arrest warrant issued for failure to respond to the notice as provided in paragraph (C):

*  *  *  *  *

 (3) At the conclusion of the hearing, the issuing authority shall:

*  *  *  *  *

 (c) if a sentence of imprisonment has been imposed, state in writing the reason(s) why a sentence of imprisonment was deemed appropriate and the facts that support a determination that the defendant has the ability to pay as ordered, and 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

*  *  *  *  *

Comment

*  *  *  *  *

 Pursuant to paragraph (C), the issuing authority must conduct a default hearing when a defendant responds to the 10-day notice as provided in paragraph (B), or when the defendant is arrested for failing to respond to the 10-day notice. If the default hearing cannot be held immediately, the issuing authority may set collateral as provided in Rule 523. However, the issuing authority should only set monetary collateral when he or she has determined that less restrictive conditions of release will not be effective in ensuring the defendant's appearance.

In determining whether a defendant has the financial means to pay, the issuing authority must consider the defendant's financial situation. Some factors that should be considered in this determination include, but are not limited to:

(1) the defendant's current employment status, including current salary and gross income from this year and previous recent years, if any, from the current employer(s) or previous employer(s);

(2) income from other sources such as interest, dividends, pension and annuities, social security benefits, support payments, disability payments, unemployment compensation and supplemental benefits, workers' compensation, public assistance;

(3) the value of all property owned, including money available in cash, or bank accounts, real estate (including home), and other significant property such as motor vehicles;

(4) debts and obligations including mortgages, rent, loans; court assessments, and any other miscellaneous recurring expenses;

(5) other contributions to household support from spouse, parents, children, or others; and

(6) all persons dependent upon the defendant for support and the defendant's actual contribution to that support.

The issuing authority may require the defendant to present documents or other evidence to verify the defendant's financial situation.

 Under paragraph (D)(1), when the issuing authority determines that a defendant is able to pay as ordered, the issuing authority may, as provided by law, impose imprisonment or other sanctions. In addition, delinquent restitution, fines, or court costs may be turned over to a private collection agency. See 42 Pa.C.S. §§ 9730(b)(2) and 9730.1(a).

 When a defendant is in default of an installment payment, the issuing authority on his or her own motion or at the request of the defendant or the attorney for the Commonwealth must schedule a rehearing to determine the cause of the default. Before an issuing authority may impose a sentence of imprisonment as provided by law for nonpayment of restitution, fines, or costs, a hearing or rehearing must be held whenever a defendant alleges that his or her ability to pay has been diminished. See 42 Pa.C.S. § 9730(b). No defendant may be sentenced to imprisonment or probation if the right to counsel was not afforded [at trial] at the default hearing. See Rule 122(A)(1) (''Counsel shall be appointed. . .in all summary cases, for all defendants who are without financial resources or who are otherwise unable to employ counsel when there is a likelihood that imprisonment will be imposed. . . .''). See Alabama v. Shelton, 535 U.S. 654 (2002) and Scott v. Illinois, 440 U.S. 367 (1979). See also Commonwealth v. Farmer, 466 A.2d 677 (Pa. Super. 1983) (Whenever there is a likelihood in a proceeding that imprisonment will be imposed, counsel must be assigned) and (Commonwealth v. Spontarelli, 791 A.2d 1254 (Pa. Cmmw. 2002) (defendant is entitled to appointed counsel when tried for violation of municipal ordinance that permits imprisonment upon default of payment of the fine). See also [Rules 121 and 122] Rule 121 (dealing with [appearance or] waiver of counsel).

*  *  *  *  *

Official Note: 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; Comment revised February 1, 1989, effective July 1, 1989; rescinded October 1, 1997, effective October 1, 1998. New Rule 85 adopted October 1, 1997, effective October 1, 1998; amended July 2, 1999, effective August 1, 1999; renumbered Rule 456 and amended March 1, 2000, effective April 1, 2001; Comment revised August 7, 2003, effective July 1, 2004; amended March 3, 2004, effective July 1, 2004; Comment revised April 1, 2005, effective October 1, 2005; Comment revised September 21, 2012, effective November 1, 2012; Comment revised January 17, 2013, effective May 1, 2013; amended April 10, 2015, effective July 10, 2015; amended   , 2018, effective   , 2018.

Committee Explanatory Reports:

*  *  *  *  *

 Final Report explaining the April 10, 2015 amendments concerning the setting of collateral published with the Court's Order at 45 Pa.B. 2040 (April 25, 2015).

Report explaining the proposed amendment concerning factors to be considered when determining a defendant's ability to pay published for comment at 48 Pa.B. 505 (January 20, 2018).

PART G. Special Procedures in Summary Cases Under the Vehicle Code

Rule 470. Procedures Related to License Suspension After Failure to Respond to Citation or Summons or Failure to Pay Fine and Costs.

 (A) When a defendant fails to comply with the [10-day] 30-day response period set forth in Rules 407, 412, [422, and 456,] and 422, or when a defendant defaults on the payment of fines and costs, or restitution as ordered, the issuing authority shall notify the defendant in writing that, pursuant to Section 1533 of the Vehicle Code, the defendant's license will be suspended if, within 15 days of the date of the notice, the defendant fails to respond to the citation or summons or fails to pay all fines and costs imposed or enter into an agreement to make installment payments for the fines and costs [within 15 days of the date of the notice].

*  *  *  *  *

Comment

 This rule was adopted in 1993, and amended in 2011, to implement the notice requirements of 75 Pa.C.S. § 1533 and to insure uniform, prompt transmissions to the Department of Transportation. It does not change the other procedural requirements contained in the summary case rules generally. See, e.g., paragraph (B)(1)(a) of Rule 430 (Issuance of Warrant) and Rule 456 (Default Procedures: Restitution, Fines, and Costs). This rule was amended in 2018 to clarify that, in cases involving default on the payment of fines and costs, or restitution, the 15-day notice of the license suspension may be sent at the time of default and not subsequent to the expiration of the 10-day bench warrant notice under Rules 430(B)(3)(b) and 456(B).

*  *  *  *  *

Official Note: Previous Rule 91, formerly 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. The January 1, 1986 effective date is extended to July 1, 1986. Readopted and renumbered Rule 91 February 1, 1989, effective July 1, 1989; rescinded June 3, 1993, effective July 1, 1993, and replaced by new Rule 92. New Rule 91 adopted June 3, 1993, effective July 1, 1993; renumbered Rule 470 and amended March 1, 2000, effective April 1, 2001; amended February 18, 2011, effective March 18, 2011; amended   , 2018, effective   , 2018.

Committee Explanatory Reports:

*  *  *  *  *

 Final Report explaining the February 18, 2011 amendments to paragraphs (A) and (D) adding failure to pay fines and costs published with the Court's Order at 41 Pa.B. 1167 (March 5, 2011).

Report explaining the proposed amendments to paragraphs (A) regarding the timing of the notice of suspension for failure to pay fines and costs published for comment at 48 Pa.B. 505 (January 20, 2018).

REPORT

Proposed Amendment of Pa.Rs.Crim.P. 403, 407, 408, 409, 411, 412, 413, 414, 422, 423, 424, 454, 456, and 470

Incarceration of the Indigent for Failure to Pay in Summary Cases

Background

 The Committee has been studying issues related to the incarceration of defendants for failure to pay case assessments in summary cases when there is a question regarding their ability to pay. The Committee's efforts were prompted by a March 14, 2016 letter from the Civil Rights Division of the U.S. Department of Justice to state courts nationwide. This letter raised constitutional concerns regarding the imposition and methods of enforcement of case assessments on the poor in non-felony matters. Shortly thereafter, the Committee received communications from representatives of the American Civil Liberties Union (''ACLU'') who made a number of suggested rule changes related to these issues. The suggestions addressed two perceived problems: (1) the absence of an explicit mechanism for reducing or waiving fees and costs for those who cannot pay; and (2) the lack of guidance provided to MDJs as to how to evaluate a defendant's ability to pay.

 The Committee concluded that legislative action was the more appropriate means of addressing the first problem; the Committee agreed that rule changes could be formulated to address the second problem. The Committee has developed a series of rule changes that fall into three main areas:

 (1) increasing the amount of time a defendant has to respond to a citation from the current 10 days to 30 days;

 (2) permitting a defendant who wishes to plead not guilty but who cannot afford to post collateral to assert the inability to pay when responding in writing to the citation;

 (3) provide guidance to the issuing authority regarding the factors to be considered when assessing a defendant's ability to pay at time of sentencing and default.

Proposed Rule Changes

 With regard to increasing the response time to a citation to 30 days, the Committee concluded that this would allow for additional time for a defendant to obtain the necessary funds for payment of the assessments in the citation. This may result in fewer numbers of not guilty pleas. This increase to the time to respond to the citation to 30 days would be included in Rule 403. Similar changes also would be made to Rules 407, 411, 412 and 422.

 The Committee had received the suggestion from the ACLU to remove the requirement to post collateral for not guilty pleas entered by mail. The Committee noted that there are a significant number of summary cases in which a not guilty plea had been entered by mail and the defendant failed to appear. Under current practice, these resulted in a guilty finding with forfeiture of the collateral to pay the assessed fines. Completely eliminating the collateral requirement likely would result in a large increase in the number of arrest warrants having to be issued in these cases with the associated costs to thedefendant for these warrants. However, the Committee also considered it strange that collateral is required in all summary cases while bail is not required in the often more serious court cases that are initiated by summons.

 As an intermediate step, the Committee agreed to an alternative that would still require the posting of collateral in most cases but would permit a defendant to assert in his or her response to the citation that they do not have the financial means to post the collateral. This is contained in new paragraph (A)(3) in Rule 408. Language regarding the requirement to appear personally when unable to deposit collateral would be removed from the Comment to Rule 408. Similar changes also would be repeated in Rules 413 and 423.

 Associated with this proposal would be the requirement that defendants would have to provide a current mailing address and telephone number in their response to the citation. The Committee concluded that this requirement should also be included with any written response to a citation. It is therefore included in Rules 408, 409, 413, 414, 423, and 424.

 The Committee also concluded there was merit in providing more guidance to the MDJs in assessing a defendant's ability to pay. The Committee developed language to provide that guidance derived from several sources including the IFP application contained in Pennsylvania Rule of Civil Procedure 240. This language would be included in the Comments to Rule 454 (Trial in Summary Cases) and Rule 456 (Default Procedures: Restitution, Fines, and Costs). Among the elements included in consideration would be a defendant's financial assets and obligations, including recurring expenses and actual contribution to support of dependents. A statement also would be included indicating that the issuing authority may require the defendant to produce documentation regarding his or her ability to pay.

 Additionally, language would be added to the text of Rule 454 that would require the judge to consider a defendant's ability to pay in determining the amount of fine and discretionary costs when sentencing the defendant. This would be added as a new paragraph (E) to Rule 454. Language also would be added to current Rule 454(F) that requires the defendant be advised of the opportunity to seek a modification of the payment plan in the event of default, referencing the procedures in Rule 456.

 The Committee also is proposing to add language to Rule 454 to permit the MDJ to delay sentencing to have time for the defendant to present proof of financial ability in the same way that current paragraph (E) provides for a delay for determination of eligibility for intermediate punishment. This would consist of a second sentence to new paragraph (E).

 The Committee rejected the inclusion of some specific standard for the inability to pay, such as an income at a certain percentage of the Federal Poverty Level, as was suggested by the ACLU. They believed that the circumstances of each case will differ and should be examined individually. However, the Committee thought it might be helpful if the MDJ had to explain his or her rationale for finding an ability to pay in writing when the defendant was to be incarcerated for failure to pay. This provision would be included in Rule 456(D)(3)(c).

 Although implied, the Committee noted that the rules do not specifically state that a defendant who wishes to plead guilty but cannot afford to pay the full case assessments must appear before the MDJ for the establishment of a payment plan. Rule 409 (Guilty Pleas) would be amended to specifically provide that a defendant who desires to plead guilty but cannot afford to pay the entire fine and costs must appear for sentencing before the MDJ and the establishment of a payment plan as provided in Rule 409(C)(5). Additionally, since the MDJ may impose sentence when the defendant appears to enter the guilty plea because he or she can't afford to pay the fine in single payment, the same language regarding delay in sentencing and determining a defendant's ability to pay that is proposed for Rules 454 and 456 would be added to Rule 409 and its Comment. Similar amendments would also be made to the other summary case guilty plea rules, Rules 414 and 424.

Rule 470 License Suspension

 During the discussion of changes to these summary case procedures, the Committee examined a subsidiary issue related to Rule 470, which provides the procedures for license suspension in failure to respond and failure to pay situations. Rule 470 was adopted, as Rule 91, in 1993 to provide procedures to implement Section 1533 of the Motor Vehicle Code, 75 Pa.C.S. § 1533. Section 1533 originally provided that a defendant who fails to respond to a citation or summons shall have his or her driver's license suspended but subsequently was amended in 1994 to add the failure to pay case assessment to the categories of cases for which license suspension was authorized. The statute requires that notice of impending license suspension be served on the defendant at least 15 days before the suspension becomes effective.

 Rule 470 originally provided that the license suspension notice could be sent out if the defendant failed to respond to a citation or summons within 10 days of issuance or receipt after which, as provided in Rule 430(B), a bench warrant may be issued. Rule 470 was amended in 2011 to add failure to pay as one of the grounds for which license suspension was authorized. Rule 456 provides that, once a defendant is in default, notice shall be sent that the defendant has 10 days to pay or appear before the issuing authority to explain the non-payment or else a bench warrant will be issued. The amendments added failure-to-pay to the existing procedures for failure-to-respond situation. As a result, under the current rule, when the defendant is in default, there is a 10-day notice that a bench warrant will be issued. At the expiration of that 10-day notice, the bench warrant would be issued and the 15-day notice of license suspension would be sent, effectively providing 25 days after the default before the license suspension becomes effective.

 Prior to the 2011 amendments, it was the practice in failure-to-pay cases to issue the 10-day notice of bench warrant and the notice of license suspension simultaneously. The suggestion was made to the Committee to change Rule 470 to permit the service of the suspension notice with the 10-day notice. Sending the defendant's notice of license suspension prior to issuing a bench warrant, in many cases, encourages a response or payment from the defendant before incurring additional monetary charges to the defendant that would arise with the issuance of a warrant. The Committee concluded that the original practice should be permitted. Therefore, paragraph (A) of Rule 470 would be amended to removethe linkage between the notice of license suspension and the bench warrant notice in default cases. Comment language would describe this further.

[Pa.B. Doc. No. 18-99. Filed for public inspection January 19, 2018, 9:00 a.m.]



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