My Objections to the Proposed Changes to Rule 701 of the PA Rules of Criminal Procedure

Posted by Perry de Marco, Sr. on 4 March 2015

Rule 701 of the Pennsylvania Rules of Criminal Procedure, as presently written, permits a defendant who has been recently convicted to enter a guilty plea in any open case before the judge who presided in the case in which he was convicted. Further, a defendant on probation who gets arrested in a new case may plead that case before the judge with whom he is on probation. The Criminal Procedure Rules Committee is now proposing that Rule 701 be changed to require the consent of the District Attorney before a defendant may consolidate his open cases and plead guilty pursuant to the rule.

The Report detailing the proposed amendment to Rule 701 states in part, “As a result under Rule 701, any defendant who is facing more than one case can unilaterally choose his sentencing judge simply by going to trial and being found guilty, pleading guilty or nolo contendere before the judge of his choosing then using Rule 701 to bring all his other cases to that judge for plea and sentencing.” This practice, the Report contends, constitutes judge shopping by the defendant. The Report also alleges that the practice is more prevalent in Philadelphia. This allegation is seriously flawed. Let’s look at two common examples where rule 701 applies. Scenario one; a defendant is convicted in one case and then decides to plead guilty in a second open case before the judge who presided in his trial. Scenario two; a defendant on probation is arrested and desires to plead guilty in his new case before his probation Judge. First, in Philadelphia County, post arraignment, a case is sent to a “Smart” room where a guilty plea offer is made to the defendant by the District Attorney, an offer which the defendant can either accept or reject. If he accepts the offer, he can plead before the Smart room judge and be sentenced to the terms of the offer, or he can plead “open” before that judge and take his chances regarding the sentence. It’s important to note that the defendant doesn’t get to pick the “Smart Room” to which his case is assigned. Philadelphia Zone Court “Smart Rooms” are assigned based on the detective division in which the crime is committed. If a defendant desires a trial, his case is “spun” via computer to another judge in that Zone. This process is akin to an electronic roulette wheel over which no one has control regarding the judge to whom the case will be assigned. Accordingly, when the case is spun, it may go to a judge who is considered to be more lenient, or to a judge who is considered to be more “harsh,” or to a judge whose sentencing practices are considered in the center of the two extremes. The defendant has absolutely no control over this judicial selection. The point is, the defendant never gets to pick his judge.

Now, let’s go back to scenario one. The defendant never got to choose the judge before whom he was convicted in the first place, nor did he get to pick the judge before whom his new case is assigned. The only thing he gets to do under present 701 procedure is to plead guilty the new case before the first judge. Under the new procedure, the DA gets to say, “No, we don’t agree. Judge number one, in our opinion, is too lenient so you have to either go to trial or plead before judge number two.” In this scenario, judge number 2 presumably is a judge who is considered to be more harsh with regard to sentencing. Isn’t this now judge shopping by the Commonwealth? The same argument also applies to scenario two. The DA essentially takes the position, “No, defendant, you can’t plead the open case before your probation judge because we think he or she is too lenient. We like Judge number two. If you get convicted by plea or trial, he’ll put the screws to you!” Again, this is judge shopping by the Commonwealth. The DA gets to force the defendant to either plead or try his case before the tougher judge. Furthermore, underlying this fallacy is the presumption that the judges of whom the Commonwealth does not approve are somehow incapable of imposing an appropriate sentence, notwithstanding the fact that they are duly elected judges by the citizens of our Commonwealth.

What will be the result of such a change? May I suggest that after having practiced criminal law in Philadelphia for nearly forty years, court grid lock may well occur. Any criminal lawyer worth his salt should never agree to plead before a judge who is reputed to be unfair or harsh in his or her sentencing practices, unless the defendant is able to negotiate an acceptable sentence under the circumstances of his or her case. In common practice, with a reasonable judge, what otherwise might be a jury trial, becomes either a non-jury trial or guilty plea. A win, win situation for all sides. I, for one, would never succumb to such heavy handed tactics. I would demand a jury trial in every case where the DA refuses to permit my client to plead before the judge of his choice, pursuant to present Rule 701 procedure. I would also urge my colleagues to do the same! If this happens, the system in Philadelphia may well collapse. I’m advised that in Philadelphia, we try more jury trials than any other county in the state, and per capita, potentially in the Nation. We probably try 30% of our cases, approximately 600 to 700 jury trials per year. Under the current system, we don’t have sufficient courtrooms to accommodate the jury trials that we’re presently trying. Also, we can’t get sufficient jurors. If we’re lucky we might have one third of the jurors subpoenaed for jury duty actually show up on any given day. And finally, what about the cost to the taxpayer? Instead of a guilty plea that might take 20-30 minutes at best, in courtrooms where hundreds of cases are disposed of in a week, with the proposed new procedure for just one defendant, we may be forced to have a jury trial and pay the court staff, stenographers, District Attorneys, appointed counsel or Public Defenders, sheriffs, jurors, police witnesses, expert witnesses, to say nothing of the added costs of heating, lighting and air conditioning the courtrooms. Also, we need to factor in the transportation costs of the defendant who is in custody, as well as the added cost to the county for housing and maintaining defendants who are in custody awaiting trial, many of whom who will be forced to wait at least a year for their case to come to trial due to full judicial schedules. Let me know if I forgot anything or anyone! Also, additional trials will require victims, Commonwealth witnesses and defense witnesses to come to court. We will need a week to accomplish what could have been accomplished in 20-30 minutes! Further, please don’t forget the appeal process and all of the expenses attendant to that procedure! And to what end? To add a few more years to a sentence? Is the guilty plea, sentence and a final disposition under present practice not sufficient?

Finally, what’s the point? Does the District Attorney, who already commands all of the power and resources of the Commonwealth, now require yet more power? None of it makes common sense. It’s a horrible idea.