J.A05014/14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA,
Appellant
v.
DAVID RICHARDSON,
Appellee
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IN THE SUPERIOR COURT OF
PENNSYLVANIA
No. 2111 EDA 2012
Appeal from the Order Entered June 21, 2012
In the Court of Common Pleas of Philadelphia
No(s).: MC-51-CR-0008135-2011
MC-51-CR-0049230-2010
BEFORE: OTT, JENKINS, and FITZGERALD,* JJ.
MEMORANDUM BY FITZGERALD, J.:
FILED MARCH 31, 2014
The Commonwealth appeals from the order entered in the Philadelphia
County Court of Common Pleas that granted Appellee David Richardson’s
petition for writ of certiorari and dismissed his convictions for driving under
the influence of a controlled substance (DUI).1 The Commonwealth claims
that the Common Pleas Court erred in concluding that a delay in sentencing
in the Philadelphia Municipal Court justified dismissing the convictions. We
reverse the order dismissing the charges and reinstate the Municipal Court’s
convictions.
*
Former Justice specially assigned to the Superior Court.
1
75 Pa.C.S. § 3802(d)(1), (d)(2).
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On November 13, 2010, and February 26, 2011, the Commonwealth
charged Appellee with, inter alia, two counts of DUI related to incidents that
occurred on November 12, 2010, and February 25, 2011, respectively. 2
After the November 2010 charges were filed, Appellee was released on bail.
Following the February 2011 incident, Appellee could not post bail and
remained in custody. On April 18, 2011, Appellee’s bail was reduced with
the condition of house arrest.
Due to a shortage of electronic monitoring
equipment for house arrest, he was not released from custody.
The charges against Appellee were consolidated in the Municipal Court,
and, on April 29, 2011, he proceeded to a stipulated trial before thenMunicipal Court Judge Kenneth J. Powell, Jr.
guilty of all charges.
Judge Powell found Appellee
After the judge rendered his verdict, Appellee
requested to defer sentencing.
Although the court granted the request, a
sentencing date was not scheduled on the dockets.
On June 22, 2011, Appellee was released to house arrest.
Five
months later, on November 30, 2011, Chester County authorities issued a
detainer against Appellee for a probation violation, and he was taken back
into custody in Philadelphia.
Judge Powell subsequently left the Municipal
Court bench.
2
The November 13, 2010 charges were docketed in the Philadelphia
Municipal Court at CR-49230-2010, and the February 26, 2011 charges were
docketed at CR-8135-2011.
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More than ten months after trial, on March 9, 2012, a sentencing
hearing was convened before Municipal Court Judge Joseph J. O’Neill, at
which time Appellee orally moved for discharge based on a violation of his
speedy sentencing rights. Appellee averred that he accumulated 138 days in
sentencing credit, was held in detention in Philadelphia for three and a half
months on the detainer issued by Chester County, and was unable to
proceed in the Chester County case until the instant matter concluded.
The Commonwealth acknowledged that a lengthy delay occurred
between trial and sentencing, but responded that discharge was not an
appropriate remedy. Specifically, the Commonwealth argued that there was
no evidence that it deliberately extended Appellee’s presentence custody.
The Commonwealth, however, also represented that it had yet to obtain an
“FBI extract” for the purposes of sentencing.
The court deferred ruling on Appellee’s motion and reconvened the
hearing on April 10, 2012. The court denied the motion for discharge and
proceeded to sentence Appellee to an aggregate term of ninety days’ to
twenty-three months’ imprisonment to be followed by two years’ probation.3
N.T., 4/10/12, at 6.
The court immediately paroled Appellee and ordered
Specifically, the court sentenced Appellee to ninety days’ to twenty-three
months’ imprisonment and two years’ probation in each case but ordered
that the sentences run concurrently.
3
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that the sentence begin running as of June 25, 2011, with Appellee having
served 180 days. Id.
Appellee timely filed a petition for writ of certiorari in the Common
Pleas Court, as well as a petition for writ of habeas corpus seeking release
from custody in Philadelphia.4 The Common Pleas Court, on June 21, 2012,
held a hearing on the petitions, at which time Appellee restated his request
for discharge.
The Commonwealth conceded that Appellee was entitled to
immediate release to Chester County, but objected to Appellee’s request to
dismiss the DUI convictions based on the delay in sentencing.
The court
granted Appellee’s petitions for writ of habeas corpus and for writ of
certiorari, ordered that Appellee be discharged immediately, and dismissed
his convictions in the Municipal Court.
The Commonwealth timely appealed the instant order dismissing the
charges against Appellee.
The Common Pleas Court did not order the
Commonwealth to file a Pa.R.A.P. 1925(b) statement.
The Commonwealth presents a single question for our review: “Did the
[Common Pleas Court] err in dismissing two cases—after [Appellee] was
convicted and sentenced—because he was not sentenced quickly enough?”
Commonwealth’s Brief at 5. The Commonwealth asserts that the dismissal
of the charges was an extreme sanction and amounted to legal error. Id. at
4
Although the sentencing court granted Appellee immediate parole, he
remained in custody in Philadelphia pending the disposition of his petitions in
the Common Pleas Court.
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14.
For the reasons that follow, we conclude that the dismissal of the
convictions was not an appropriate remedy given the totality of the
circumstances of this case.
We review the Common Pleas Court decision on a petition for writ of
certiorari for an abuse of discretion. Commonwealth v. Elisco, 666 A.2d
739, 740 (Pa. Super. 1995) (citation omitted). In so doing, we are mindful
that
[j]udicial discretion requires action in conformity with law,
upon facts and circumstances judicially before the court,
after hearing and due consideration.
An abuse of
discretion is not merely an error of judgment, but if in
reaching a conclusion the law is overridden or misapplied
or the judgment exercised is manifestly unreasonable, or
the result of partiality, prejudice, bias, or ill will, as shown
by the evidence or the record, discretion is abused.
Commonwealth v. Hunt, 858 A.2d 1234, 1238 (Pa. Super. 2008)
(citations and quotation marks omitted).
Pennsylvania Rule of Criminal Procedure 704 governs the time
requirements
for
sentencing
in
non-summary
criminal
cases
in
the
Philadelphia Municipal Court. See Pa.R.Crim.P. 1000(B). In relevant part,
Rule 704 states that “sentence in a court case shall ordinarily be imposed
within 90 days of conviction[.]” Pa.R.Crim.P. 704(A)(1).
In Commonwealth v. Anders, 725 A.2d 170 (Pa. 1999), the
Pennsylvania Supreme Court discussed the appropriate remedy for a
violation of the speedy sentencing provision in former Rule 1405.
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Although [the Rule] does not expressly provide for a
remedy, it is axiomatic that every rule must have a
remedy. [T]he appropriate remedy for a violation of [the
Rule] is discharge.
However, the remedy does not
automatically apply whenever a defendant is sentenced
[beyond the Rule’s time requirement] after conviction
without good cause. Instead, a violation of the [time
requirement] is only the first step toward determining
whether the remedy of discharge is appropriate.
Id. at 172-73.
The Anders Court adopted the following test for considering the
appropriate remedy:
[T]he trial court should consider:
(1) the length of the delay falling outside of [the
Rule’s time]-and-good-cause provisions, (2) the
reason for the improper delay, (3) the defendant’s
timely or untimely assertion of his rights, and (4)
any resulting prejudice to the interests protected by
his speedy trial and due process rights. Prejudice
should not be presumed by the mere fact of an
untimely sentence. . . . The court should examine
the totality of the circumstances, as no one
factor is necessary, dispositive, or of sufficient
importance to prove a violation.
Id. at 173 (citations and quotation marks omitted) (emphasis added).
With respect to the reasons for the improper delay, this Court has
observed: “Rule 704 [is not] aimed at addressing or eliminating clerical
error. Protecting the accused from inexcusable or intentional delay on the
part of the court or the Commonwealth, the ‘whim’ or power of the state, is
the underpinning of the right to a speedy trial.” Commonwealth v. Diaz,
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51 A.3d 884, 889 (Pa. Super. 2012) (citation omitted), appeal denied, 76
A.3d 538 (Pa. 2013).
With respect to prejudice, our courts recognize that speedy trial and
speedy sentencing rights were implemented to protect against oppressive
pretrial incarceration, attempt to minimize the anxiety and concern of the
accused, and limit the possibility that the defense will be impaired.
See
Commonwealth v. Glover, 458 A.2d 935, 938 (Pa. 1983). The fact that a
defendant is released on bail on charges pending sentencing weighs heavily
against a finding of prejudice.
Commonwealth v. Glass, 586 A.2d 369,
373 (Pa. 1991). Similarly, the fact that a defendant is incarcerated on other
charges weakens a defendant’s claim of prejudice. Id. Lastly, prejudice will
not be found where credit for time served was properly allocated and the
defendant did not spend any more time incarcerated than he would have
had the sentence been imposed earlier.
Commonwealth v. Adams, 760
A.2d 33, 38 (Pa. Super. 2000).
Instantly, we agree with the Common Pleas Court that the length of
the delay—almost one year between trial and sentencing, and almost nine
months beyond Rule 704’s ninety-day provision—triggered the need for
further inquiry as to an appropriate remedy. See Anders, 725 A.2d at 17273.
Accordingly, we review the Common Pleas Court determinations
regarding the remaining Anders factors seriatim.
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As to the causes of the delay, the Common Pleas Court opined that
Appellee was not responsible for the delay.
However, the court did not
make further conclusions regarding the reasons for the delay. Significantly,
the court did not address whether the delay resulted from inexcusable or
intentional delay on the part of the court or the Commonwealth. Moreover,
we note that the Municipal Court, when denying Appellee’s motion for
discharge, did not enter findings of fact regarding the causes of the delay.
Our review of the record with respect to the causes of the delay
reveals that Appellee initially requested that sentencing be deferred.
Thereafter, sentencing was not scheduled before July 28, 2011, the
mechanical run date prescribed by Rule 907.
Although Judge Powell
subsequently left the Municipal Court, there was no explanation proffered for
the failure to schedule sentencing before his departure from the bench.
Thereafter, the docket in CR-8135-2011—related to the February 2011
charges against Appellee—contained a December 16, 2011 scheduling order
filed by President Judge Marsha H. Neifield administratively reassigning
“[t]his Judge Powell matter . . . to Judge [Joseph C.] Waters.”
Criminal
Docket, MC-51-CR-0008135-2011, at 6. According to the docket, a January
6, 2012 sentencing date was scheduled, but “Defense Attorney failed to
Appear[.]”5 The hearing was then rescheduled for February 29, 2012. On
We note that Appellee’s counsel disputed whether he was given proper
notice of the January 6th sentencing hearing. N.T., 3/9/12, at 9.
5
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January 24, 2012, the President Judge issued a scheduling order in CR49230-2010—related to the November 2010 charges—reassigning that case
to Judge O’Neill and scheduling sentencing for February 17, 2012. Criminal
Docket, MC-51-CR-0049230-2010, at 6.
Following the entry of the January 24, 2012 scheduling order, the
dockets in both cases were consistent, and each noted that on February 17,
2012, sentencing was deferred until March 7, 2012, based on a “Defense
Request.”6
Id.;
Criminal
Docket,
MC-51-CR-0008135-2011,
at
7.
Subsequently, on March 7, 2012, sentencing was continued when the judge
fell ill. On March 9, 2012, sentencing was again continued after the judge
took Appellee’s motion for discharge under advisement.
Ultimately, the
court, on April 10, 2012, denied the motion and sentenced Appellee.
In sum, the record suggests that the initial delay of 162 days—from
the expiration of Rule 704’s mechanical run date on July 28, 2011, until the
first scheduled sentencing hearing for January 6, 2012—was attributable, in
part, to an apparent administrative breakdown and the departure of Judge
Powell from the Municipal Court. The next sixty-one days—from January 6,
2012, to March 7, 2012—were, on the face of the dockets, attributed to the
defense, although counsel disputed the accuracy of the docket entries. Two
Appellee’s counsel also contested the notation that he requested that the
the February 17th hearing be deferred. He argued that the Commonwealth
was not prepared because it failed to obtain a FBI extract for the purposes of
sentencing. N.T., 3/9/12, at 9-10.
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days—from March 7 to March 9, 2012—were caused by the sentencing
judge’s illness, and the final thirty-two days were taken by the judge to
consider Appellee’s motion for discharge.
As to Appellee’s timely assertion of his rights, the Common Pleas Court
concluded that Appellee presented his motion at the first opportunity to do
so in open court. See Trial Court Op., 6/13/13, at 7. Although the record
supports this specific conclusion, our review further reveals that Appellee
failed to (1) request sentencing before or after the mechanical run date of
Rule 704, (2) assert his speedy sentencing rights after he was taken into
custody on the Chester County detainer in November of 2011, or (3) seek
discharge or release from custody when the Municipal Court attempted to
schedule sentencing in January and February of 2012.
With respect to the final Anders factor, prejudice, the Common Pleas
Court’s analysis focused on the length of Appellee’s time in custody following
trial and the Municipal Court’s decision to sentence Appellee to an aggregate
sentence of ninety days’ to twenty-three months’ imprisonment with
immediate parole. Trial Ct. Op. at 7-8. The court concluded that Appellee
established prejudice because he had already served more time than he
would have served had the sentence been imposed in a timely manner. Id.
Our review reveals that Appellee was held in pretrial custody for a
period of sixty-three days, i.e., from February 25, 2011, the date of his
arrest in CR-8135-2011, to April 29, 2011, the date of trial.
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Appellee remained in post-trial custody for fifty-four days until the electronic
monitoring equipment became available to him for release on bail. Following
the mechanical run date of prescribed by Rule 704, Appellee subsequently
spent an additional 132 days in custody—between October 30, 2011, and
the imposition of sentence on April 10, 2012—due to the detainer filed by
Chester County authorities.
In sum, Appellee was in presentence custody
related to the DUI charges for a total of 249 days. Of those days, 117 were
attributable to the DUI proceedings in Philadelphia, but occurred before the
mechanical run date of Rule 704.
The remaining 132 days resulted from
both the delay in sentencing and the Chester County detainer.
Our review also reveals that the Municipal Court expressly accounted
for the delay in fashioning its sentencing. Specifically, the sentencing court
stated that “time began” on its sentence as of June 25, 2011, with Appellee
“serving a hundred and eighty days after that.”
N.T., 4/10/12, at 6.
Additionally, the court ordered that the sentences in the cases run
concurrently, despite the fact that the two incidents giving rise to the
charges were separated by four months.
Following our consideration of the Common Pleas Court’s review of the
Anders factors and the record, we conclude that the court abused its
discretion in determining that discharge was an appropriate remedy under
the circumstances of the case. Specifically, although the delay in this case
was unfortunate, the record did not establish that the delay was either
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“inexcusable”
or
“intentional”
on
the
part
of
the
courts
or
the
Commonwealth. See Diaz, 51 A.3d at 890.
Moreover, we find that the record did not support court’s conclusion
that Appellee suffered prejudice because he served more time than he would
have served had sentencing occurred in a timely fashion.
The Municipal
Court stated its intent to have Appellee serve 180-days and clearly fashioned
its sentence in light of the delay that occurred.
Significantly, none of the
time Appellee spent in custody after Rule 704’s mechanical run date expired
was attributable solely to the Philadelphia proceeding.
Additionally, we conclude Appellee’s claim of anxiety based on the
delay of the commencement of the Chester County proceeding were belied
by his failures to either request sentencing or seek discharge after he was
taken back into custody on the Chester County detainer. Lastly, Appellee’s
assertion of prejudice were speculative since they presumed that the 132
days in custody on the Chester County detainer could not be credited in the
Chester County proceeding.7
Accordingly, in light of the totality of the circumstances, we conclude
Appellee was not entitled to the dismissal of the charges. Thus, we reverse
7
For example, if Appellee was credited in Chester County with the 132 days
for time served on the detainer, his claim of prejudice would be based on
117 days in presentence custody, none of which accrued after the
mechanical run date of Rule 704.
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the order of the Common Pleas Court granting Appellee’s petition for writ of
certiorari and reinstate the convictions in the Municipal Court.
Order reversed.
Judgments of sentence in CR-49230-2010 and CR-
8135-2011 reinstated. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/31/2014
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