Sentences of Restitution Final Report: 3/9/2016

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.centerschool.org/Restitution/index.html, pgs 30 and 42.
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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.