Rule 704. Procedure at Time of Sentencing.
(A) TIME FOR SENTENCING.
(1) Except as provided by Rule 702(B), sentence in a court case shall ordinarily be imposed within 90 days of conviction or the entry of a plea of guilty or nolo contendere.
(2) When the date for sentencing in a court case must be delayed, for good cause shown, beyond the time limits set forth in this rule, the judge shall include in the record the specific time period for the extension.
(3) In a summary case appeal, sentence shall be imposed immediately following a determination of guilt at a trial de novo in the court of common pleas.
(B) ORAL MOTION FOR EXTRAORDINARY RELIEF.
(1) Under extraordinary circumstances, when the interests of justice require, the trial judge may, before sentencing, hear an oral motion in arrest of judgment, for a judgment of acquittal, or for a new trial.
(2) The judge shall decide a motion for extraordinary relief before imposing sentence, and shall not delay the sentencing proceeding in order to decide it.
(3) A motion for extraordinary relief shall have no effect on the preservation or waiver of issues for post-sentence consideration or appeal.
(C) SENTENCING PROCEEDING.
(1) At the time of sentencing, the judge shall afford the defendant the opportunity to make a statement in his or her behalf and shall afford counsel for both parties the opportunity to present information and argument relative to sentencing.
(2) The judge shall state on the record the reasons for the sentence imposed.
(3) The judge shall determine on the record that the defendant has been advised of the following:
(a) of the right to file a post-sentence motion and to appeal, of the time within which the defendant must exercise those rights, and of the right to assistance of counsel in the preparation of the motion and appeal;
(b) of the rights,
(i) if the defendant is indigent, to proceed in forma pauperis and to proceed with appointed counsel as provided in Rule 122, or,
(ii) if represented by retained counsel, to proceed with retained counsel unless the court has granted leave for counsel to withdraw pursuant to Rule 120(B);
(c) of the time limits within which post-sentence motions must be decided;
(d) that issues raised before or during trial shall be deemed preserved for appeal whether or not the defendant elects to file a post-sentence motion; and
(e) of the defendant’s qualified right to bail under Rule 521(B).
(4) The judge shall require that a record of the sentencing proceedings be made and preserved so that it can be transcribed as needed. The record shall include:
(a) the record of any stipulation made at a pre-sentence conference; and
(b) a verbatim account of the entire sentencing proceeding.
Comment The rule is intended to promote prompt and fair sentencing procedures by providing reasonable time limits for those procedures, and by requiring that the defendant be fully informed of his or her post-sentence rights and the procedural requirements which must be met to preserve those rights.
Rule 708 (Violation of Probation, Intermediate Punishment, or Parole: Hearing and Disposition) governs sentencing procedures after a revocation of probation, intermediate punishment, or parole.
TIME FOR SENTENCING
As a general rule, the date for sentencing should be scheduled at the time of conviction or the entry of a plea of guilty or nolo contendere.
Under paragraph (A)(1), sentence should be imposed within 90 days of conviction or the entry of a plea of guilty or nolo contendere, unless the court orders a psychiatric or psychological examination pursuant to Rule 702(B). Such an order should extend the time for sentencing for only as much time as is reasonably required, but in no event should sentencing be extended for more than 30 days beyond the original 90-day limit. In summary appeal cases, however, sentence must be imposed immediately at the conclusion of the de novo trial.
Paragraph (A)(2) is not intended to sanction pro forma requests for continuances. Rather, it permits the judge to extend the time limit for sentencing under extraordinary circumstances only. For example, additional pre-sentence procedures may be required by statute. See 42 Pa.C.S. § § 9799.11—9799.41 for pre-sentence assessment and hearing procedures for persons convicted of sexually violent offenses.
Because such extensions are intended to be the exception rather than the rule, the extension must be for a specific time period, and the judge must include in the record the length of the extension. A hearing need not be held before an extension can be granted. Once a specific extension has been granted, however, some provision should be made to monitor the extended time period to insure prompt sentencing when the extension period expires.
Failure to sentence within the time specified in paragraph (A) may result in the discharge of the defendant. See Commonwealth v. Anders, 725 A.2d 170 (Pa. 1999) (discharge is appropriate remedy for violation of Rule 704 time limits, but only if the defendant can demonstrate that the delay in sentencing was prejudicial to the defendant).
ORAL MOTION FOR EXTRAORDINARY RELIEF
Under paragraph (B), when there has been an error in the proceedings that would clearly result in the judge’s granting relief post-sentence, the judge should grant a motion for extraordinary relief before sentencing occurs. Although trial errors may be serious and the issues addressing those errors meritorious, this rule is intended to allow the trial judge the opportunity to address only those errors so manifest that immediate relief is essential. It would be appropriate for counsel to move for extraordinary relief, for example, when there has been a change in case law, or, in a multiple count case, when the judge would probably grant a motion in arrest of judgment on some of the counts post-sentence. Although these examples are not all-inclusive, they illustrate the basic purpose of the rule: when there has been an egregious error in the proceedings, the interests of justice are best served by deciding that issue before sentence is imposed. Because the relief provided by this section is extraordinary, boilerplate motions for extraordinary relief should be summarily denied.
Under paragraph (B)(2), the motion must be decided before sentence is imposed, and sentencing may not be postponed in order to dispose of the motion. The judge may summarily deny the motion or decide it on the merits.
Paragraph (B)(3) is intended to make it clear that a motion for extraordinary relief is neither necessary nor sufficient to preserve an issue for appeal. The failure to make a motion for extraordinary relief, or the failure to raise a particular issue in such a motion, does not constitute a waiver of any issue. Conversely, the making of a motion for extraordinary relief does not, of itself, preserve any issue raised in the motion, nor does the judge’s denial of the motion preserve any issue.
SENTENCING PROCEDURES
Paragraph (C)(1) retains the former requirement that the judge afford the defendant an opportunity to make a statement and counsel the opportunity to present information and argument relative to sentencing. The defendant’s right to allocution at sentencing is well established, and the trial judge must inform the defendant of that right. See Commonwealth v. Thomas, 553 A.2d 918 (Pa. 1989).
The duty of the judge to explain to the defendant the rights set forth in paragraph (C)(3) is discussed in Commonwealth v. Wilson, 241 A.2d 760, 763 (Pa. 1968), and Commonwealth v. Stewart, 241 A.2d 764, 765 (Pa. 1968).
The judge should explain to the defendant, as clearly as possible, the timing requirements for making and deciding a post-sentence motion under Rule 720. The judge should also explain that the defendant may choose whether to file a post-sentence motion and appeal after the decision on the motion, or to pursue an appeal without first filing a post-sentence motion.
Paragraph (C)(3) requires the judge to ensure the defendant is advised of his or her rights concerning post-sentence motions and appeal, and the right to proceed with counsel. See, e.g., Commonwealth v. Librizzi, 810 A.2d 692 (Pa. Super. 2002).
The rule permits the use of a written colloquy that is read, completed, signed by the defendant, and made part of the record of the sentencing proceeding. This written colloquy must be supplemented by an on-the-record oral examination to determine that the defendant has been advised of the applicable rights enumerated in paragraph (C)(3) and that the defendant has signed the form.
Other, additional procedures are required by statute. See, e.g., 42 Pa.C.S. § 9756(b)(3) that imposes requirements on the judge when a defendant may be eligible to participate in a re-entry plan and 42 Pa.C.S. § 9756(b.1) that imposes requirements on the judge when a defendant may be eligible for a recidivism risk reduction incentive (RRRI) minimum sentence; 42 Pa.C.S. § 9799.23 that requires the judge to inform certain offenders of the duty to register; and 42 Pa.C.S. § 9813 that imposes requirements on the judge when a defendant may be eligible for work release.
After sentencing, following a conviction in a trial de novo in a summary case, the judge should advise the defendant of the right to appeal and the time limits within which to exercise that right, the right to proceed in forma pauperis and with appointed counsel to the extent provided in Rule 122(A), and of the qualified right to bail under Rule 521(B). See paragraphs (C)(3)(a), (b), and (e). See also Rule 720(D) (no post-sentence motion after a trial de novo).
After sentencing, the judge should inquire whether the defendant intends to file a post-sentence motion or to appeal, and if so, should determine the defendant’s bail status pursuant to paragraph (C)(3)(e) and Rule 521. It is recommended, when a state sentence has been imposed, that the judge permit a defendant who cannot make bail to remain incarcerated locally, at least for the 10-day period during which counsel may file the post-sentence motion. When new counsel has been appointed or entered an appearance for the purpose of pursuing a post-sentence motion or appeal, the judge should consider permitting the defendant to remain incarcerated locally for a longer period to allow new counsel time to confer with the defendant and become familiar with the case. See also Rule 120 (Attorneys—Appearances and Withdrawals).
It is difficult to set forth all the standards that a judge must utilize and consider in imposing sentence. It is recommended that, at a minimum, the judge look to the standards and guidelines as specified by statutory law. See the Judicial Code, 42 Pa.C.S. § 9701 et seq. See also Commonwealth v. Riggins, 377 A.2d 140 (Pa. 1977) and Commonwealth v. Devers, 546 A.2d 12 (Pa. 1988). The judge also should consider other preexisting orders imposed on the defendant. See 18 Pa.C.S. § 1106(c)(2)(iv). And see 42 Pa.C.S. § 9728.
For procedures in cases in which restitution is imposed, see Rule 705.1.
For the right of a victim to have information included in the pre-sentence investigation report concerning the impact of the crime upon him or her, see 18 P.S. § 11.201(4)—(5) and Rule 702(A)(4).
For the duty of the sentencing judge to state on the record the reasons for the sentence imposed, see Commonwealth v. Riggins, 377 A.2d 140 (Pa. 1977) and Commonwealth v. Devers, 546 A.2d 12 (Pa. 1988). If the sentence initially imposed is modified pursuant to Rule 720(B)(1)(a)(v), the sentencing judge should ensure that the reasons for the ultimate sentence appear on the record. See also Sentencing Guidelines, 204 PA. CODE § § 303.1(d)—(e) and 303.13(c).
In cases in which a mandatory sentence is provided by law, when the judge decides not to impose a sentence greater than the mandatory sentence, regardless of the number of charges on which the defendant could be sentenced consecutively, and when no psychiatric or psychological examination is required under Rule 702(B), the judge may immediately impose that sentence. But see Rule 702(A)(2), which requires that the court state on the record the reasons for dispensing with a pre-sentence report under the circumstances enumerated therein. See also 42 Pa.C.S. § 9721 et seq.
No later than 30 days after the date of sentencing, a Pennsylvania Commission on Sentencing Guideline Sentence Form must be completed at the judge’s direction and made a part of the record. In addition, a copy of the form must be forwarded to the Commission on Sentencing. 204 PA. CODE § 303.1(e).
With respect to the recording and transcribing of court proceedings, including sentencing, see Rule 115.
Official Note
Previous Rule 1405 approved July 23, 1973, effective 90 days hence; Comment amended June 30, 1975, effective immediately; Comment amended and paragraphs (c) and (d) added June 29, 1977, effective September 1, 1977; amended May 22, 1978, effective as to cases in which sentence is imposed on or after July 1, 1978; Comment amended April 24, 1981, effective July 1, 1981; Comment amended November 1, 1991, effective January 1, 1992; rescinded March 22, 1993, effective as to cases in which the determination of guilt occurs on or after January 1, 1994, and replaced by present Rule 1405. Present Rule 1405 adopted March 22, 1993, effective as to cases in which the determination of guilt occurs on or after January 1, 1994; amended January 3, 1995, effective immediately; amended September 13, 1995, effective January 1, 1996. The January 1, 1996 effective date extended to April 1, 1996. Comment revised December 22, 1995, effective February 1, 1996. The April 1, 1996 effective date extended to July 1, 1996. Comment revised September 26, 1996, effective January 1, 1997; Comment revised April 18, 1997, effective immediately; Comment revised January 9, 1998, effective immediately; amended July 15, 1999, effective January 1, 2000; renumbered Rule 704 and amended March 1, 2000, effective April 1, 2001; Comment revised March 27, 2003, effective July 1, 2003; amended April 28, 2005, effective August 1, 2005; Comment revised March 15, 2013, effective May 1, 2013; Comment revised March 9, 2016, effective July 1, 2016.
Committee Explanatory Reports:
Final Report explaining the provisions of the new rule published with the Court’s Order at 23 Pa.B. 1699 (April 10, 1993).
Report explaining the 1995 amendment to paragraph (C)(3) published with the Court’s Order at 25 Pa.B. 236 (January 21, 1995).
Final Report explaining the September 13, 1995 amendments concerning bail published with the Court’s Order at 25 Pa.B. 4116 (September 30, 1995).
Final Report explaining the December 22, 1995 Comment revision on restitution published with the Court’s Order at 26 Pa.B. 13 (January 6, 1996).
Final Report explaining the September 26, 1996 Comment revision on Rule 1409 procedures published with the Court’s Order at 26 Pa.B. 4900 (October 12, 1996).
Final Report explaining the April 18, 1997 Comment revisions published with the Court’s Order at 27 Pa.B. 2122 (May 3, 1997).
Final Report explaining the January 9, 1998 Comment revisions concerning Guideline Sentence Forms, and summary case appeal notice, published with the Court’s Order at 28 Pa.B. 481 (January 31, 1998).
Final Report explaining the July 15, 1999 amendments concerning the time for sentencing published with the Court’s Order at 29 Pa.B. 4059 (July 31, 1999).
Final Report explaining the March 1, 2000 reorganization and renumbering of the rules published with the Court’s Order at 30 Pa.B. 1478 (March 18, 2000).
Final Report explaining the March 27, 2003 Comment revision adding cross-references to 18 Pa.C.S. § 1106 and 42 Pa.C.S. § 9728 published with the Court’s Order at 33 Pa.B. 1928 (April 19, 2003).
Final Report explaining the April 28, 2005 amendments to paragraph (C)(3)(b) concerning retained counsel’s obligations published with the Court’s Order at 35 Pa.B. 2859 (May 14, 2005).
Final Report explaining the March 15, 2013 revision of the Comment adding citations to the Sentencing Code published with the Court’s Order at 43 Pa.B. 1705 (March 30, 2013).
Final Report explaining the March 9, 2016 revision of the Comment adding a cross-reference to Rule 705.1 concerning restitution published with the Court’s Order at 46 Pa.B. 1540 (March 26, 2016).
Source The provisions of this Rule 704 amended March 27, 2003, effective July 1, 2003, 33 Pa.B. 1927; amended April 28, 2005, effective August 1, 2005, 35 Pa.B. 2855; amended March 15, 2013, effective May 1, 2013, 43 Pa.B. 1702; amended March 9, 2016, effective July 1, 2016, 46 Pa.B. 1532. Immediately preceding text appears at serial pages (366232) to (366236).
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