J-S33037-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
ALEXANDER DEVERE CARLSON
Appellant No. 1674 WDA 2015
Appeal from the PCRA Order September 28, 2015
In the Court of Common Pleas of Armstrong County
Criminal Division at No(s): CP-03-CR-0000666-2011
BEFORE: GANTMAN, P.J., OLSON, J., and FITZGERALD, J.*
MEMORANDUM BY GANTMAN, P.J.: FILED APRIL 26, 2016
Appellant, Alexander Devere Carlson, appeals from the order entered
in the Armstrong County Court of Common Pleas, which denied his first
petition filed under the Post Conviction Relief Act (“PCRA”).1 We affirm.
The relevant facts and procedural history of this case are as follows.
On September 29, 2011, Appellant had his six-year-old stepdaughter
perform oral sex on him in the bathroom of their home. The Commonwealth
filed a criminal complaint on October 5, 2011, charging Appellant with
involuntary deviate sexual intercourse (“IDSI”), indecent assault, and
endangering welfare of children. On February 2, 2012, Appellant filed a
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1
42 Pa.C.S.A. §§ 9541-9546.
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*Former Justice specially assigned to the Superior Court.
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“petition for psychiatric/medical evaluation,” which sought to ascertain
Appellant’s mental health and competency to stand trial. The trial court
granted the petition on February 7, 2012, and continued the case generally
so Appellant could undergo a psychiatric or psychological evaluation. On
March 28, 2012, Dr. Christine Martone evaluated Appellant and sent her
report and the accompanying bill to defense counsel, who worked for the
Armstrong County public defender’s office. On April 4, 2012, the public
defender’s office issued a check request to the county controller’s office for
the bill from Dr. Martone. The county controller’s office sent a check to Dr.
Martone on April 27, 2012. The district attorney’s (“DA’s”) office was not
copied on any report, invoice, or other communication related to Dr.
Martone’s evaluation of Appellant.
On February 6, 2013, the DA’s office received a copy of Dr. Martone’s
report from defense counsel. The court issued a notice of plea court on
March 25, 2013. On April 5, 2013, Appellant filed a motion to continue the
scheduled plea court date. The court granted the continuance and
rescheduled Appellant to appear for plea court on May 2, 2013. Appellant
failed to enter a plea on that date. The court then scheduled trial for June
10, 2013. On June 6, 2013, Appellant filed a motion to continue the trial.
The court granted the motion and rescheduled trial for July 15, 2013. On
July 10, 2013, Appellant filed another motion to continue the trial. The court
granted the motion and rescheduled trial for August 12, 2013. The court
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subsequently set a new trial date of September 9, 2013. On September 5,
2013, Appellant pled guilty to one (1) count of IDSI.2 The court sentenced
Appellant on January 7, 2014, to a term of sixty (60) to one hundred twenty
(120) months’ incarceration. Appellant did not file a direct appeal. On
March 21, 2014, Appellant pro se filed a timely PCRA petition. The PCRA
court appointed counsel, who filed an amended petition on November 12,
2014. Counsel subsequently filed two supplements to the amended petition.
Following a hearing, the PCRA court denied relief on September 29, 2015.
Appellant filed a timely notice of appeal on October 22, 2015. The court
ordered Appellant to file a concise statement of errors complained of on
appeal per Pa.R.A.P. 1925(b), and Appellant timely complied.
Appellant raises the following issues for our review:
WHERE FROM THE DATE OF [APPELLANT’S] ARREST, A
PERIOD OF 701 DAYS ELAPSED BEFORE [APPELLANT]
ENTERED A GUILTY PLEA, WHERE ONLY 229 OF THOSE
DAYS ARE ATTRIBUTABLE TO [APPELLANT] FOR PURPOSES
OF [PA.R.CRIM.P.] 600 LEAVING 472 DAYS ATTRIBUTABLE
TO THE COMMONWEALTH, WHERE THE COMMONWEALTH
FAILED TO ACT WITH DUE DILIGENCE IN BRINGING THE
CASE TO TRIAL, AND WHERE THE DELAY IN BRINGING
THE CASE TO TRIAL WAS NOT BEYOND THE
COMMONWEALTH’S CONTROL, WAS [APPELLANT’S]
CONSTITUTIONAL RIGHT[] TO A SPEEDY TRIAL
VIOLATED?
WHERE [APPELLANT] APPLIES FOR A CONTINUANCE TO
OBTAIN A PSYCHOLOGICAL EVALUATION, DOES THE FACT
THAT THE COMMONWEALTH FAILS TO MONITOR THE
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2
18 Pa.C.S.A. § 3123(a)(7).
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STATUS OF THE CASE FOR PURPOSES OF RULE 600 AND
INSTEAD RELIES SOLELY UPON DEFENSE COUNSEL TO
INFORM THE COMMONWEALTH THAT THE EVALUATION
HAS BEEN PERFORMED CONSTITUTE DUE DILIGENCE BY
THE COMMONWEALTH FOR PURPOSES OF RULE 600
WHERE THE MECHANICAL RUN DATE HAS EXPIRED?
WHERE [APPELLANT] APPLIES FOR A CONTINUANCE TO
OBTAIN A PSYCHOLOGICAL EVALUATION, DOES THE FACT
THAT THE COMMONWEALTH FAILS TO MONITOR THE
STATUS OF THE CASE FOR PURPOSES OF RULE 600 AND
INSTEAD RELIES SOLELY UPON DEFENSE COUNSEL TO
INFORM THE COMMONWEALTH THAT THE EVALUATION
HAS BEEN PERFORMED CAUSE THE TIME THAT PASSES
AFTER THE DATE THAT THE EVALUATION HAS BEEN
PERFORMED TO BE ATTRIBUTABLE TO [APPELLANT] IN
THE EVENT THAT DEFENSE COUNSEL DOES NOT INFORM
THE COMMONWEALTH THAT THE EVALUATION HAS BEEN
PERFORMED?
(Appellant’s Brief at 7).
In his issues combined, Appellant argues the Commonwealth failed to
bring his case to trial within the time requirements of Rule 600. Appellant
concedes he is responsible for the 75-day delay from February 2, 2012 (the
date Appellant filed the petition for psychiatric/medical evaluation) to April
17, 2012 (when defense counsel allegedly received Dr. Martone’s report).
Appellant disputes the PCRA court’s conclusion that the entire delay from
February 2, 2012 to February 6, 2013 (the date the DA’s office received a
copy of Dr. Martone’s report from defense counsel), is attributable to
Appellant. Appellant contends the Commonwealth had a duty to continue
monitoring the case after the trial court granted Appellant’s petition on
February 7, 2012. Appellant asserts the Commonwealth could not just wait
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for defense counsel to forward a copy of Dr. Martone’s report, which counsel
had no obligation to do in the first place. Appellant claims the last possible
date to commence trial under Rule 600 was December 18, 2012. Appellant
maintains the circumstances causing the delay beyond April 17, 2012 were
not beyond the Commonwealth’s control, and the Commonwealth failed to
exercise due diligence. Appellant concludes the Commonwealth violated his
right to a speedy trial, and this Court must reverse his conviction and
dismiss the charges against him. We cannot agree.
Our standard of review of the denial of a PCRA petition is limited to
examining whether the evidence of record supports the court’s
determination and whether its decision is free of legal error.
Commonwealth v. Conway, 14 A.3d 101, 108 (Pa.Super. 2011), appeal
denied, 612 Pa. 687, 29 A.3d 795 (2011). This Court grants great deference
to the findings of the PCRA court if the record contains any support for those
findings. Commonwealth v. Boyd, 923 A.2d 513, 515 (Pa.Super. 2007),
appeal denied, 593 Pa. 754, 932 A.2d 74 (2007). We owe no deference,
however, to the court’s legal conclusions. Commonwealth v. Ford, 44
A.3d 1190, 1194 (Pa.Super. 2012). If the record supports a post-conviction
court’s credibility determination, it is binding on the appellate court.
Commonwealth v. Knighten, 742 A.2d 679, 682 (Pa.Super. 1999), appeal
denied, 563 Pa. 659, 759 A.2d 383 (2000).
Under the PCRA, “an issue is waived if the petitioner could have raised
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it but failed to do so before trial, at trial, during unitary review, on appeal or
in a prior state postconviction proceeding.” 42 Pa.C.S.A. § 9544(b). See
also Commonwealth v. Rachak, 62 A.3d 389 (Pa.Super. 2012), appeal
denied, 620 Pa. 699, 67 A.3d 796 (stating PCRA petitioner waived issue of
voluntariness of his plea because he could have but failed to raise issue
before trial court and on direct appeal).
The previous version of Rule 600 provided, in pertinent part:3
Rule 600. Prompt Trial
* * *
[(A)](3) Trial in a court case in which a written
complaint is filed against the defendant, when the
defendant is at liberty on bail, shall commence no later
than 365 days from the date on which the complaint is
filed.
* * *
(B) For the purpose of this rule, trial shall be deemed
to commence on the date the trial judge calls the case to
trial, or the defendant tenders a plea of guilty or nolo
contendere.
(C) In determining the period for commencement of
trial, there shall be excluded therefrom:
* * *
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3
Appellant failed to file a Rule 600 motion at any stage of the proceedings.
The previous version of Rule 600 was in effect, however, when Appellant
requested a continuance to seek a psychiatric/psychological evaluation, and
on the latest date Appellant alleges trial could have commenced. The
current version of Rule 600 became effective on July 1, 2013.
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(3) such period of delay at any stage of the
proceedings as results from:
(a) the unavailability of the defendant or the
defendant’s attorney;
(b) any continuance granted at the request of
the defendant or the defendant’s attorney.
* * *
Pa.R.Crim.P. 600 (prior version). “Rule 600 generally requires the
Commonwealth to bring a defendant…to trial within 365 days of the date the
complaint was filed.” Commonwealth v. Hunt, 858 A.2d 1234, 1240
(Pa.Super. 2004) (en banc), appeal denied, 583 Pa. 659, 875 A.2d 1073
(2005). To obtain relief, a defendant must have a valid Rule 600 claim at
the time he files his motion for relief. Id. at 1243.
“The mechanical run date is the date by which the trial must
commence under Rule 600.” Commonwealth v. McNear, 852 A.2d 401,
406 (Pa.Super. 2004).
It is calculated by adding 365 days (the time for
commencing trial under Rule 600) to the date on which the
criminal complaint is filed. The mechanical run date can
be modified or extended by adding to the date any periods
of time in which delay is caused by the defendant. Once
the mechanical run date is modified accordingly, it then
becomes an adjusted run date.
Id.
In the context of Rule 600, “excludable time” is differentiated from
“excusable delay” as follows:
“Excludable time” is defined in Rule 600(C) as the period
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of time between the filing of the written complaint and the
defendant’s arrest, provided that the defendant could not
be apprehended because his whereabouts were unknown
and could not be determined by due diligence; any period
of time for which the defendant expressly waives Rule 600;
and/or such period of delay at any stage of the
proceedings as results from: (a) the unavailability of the
defendant or the defendant’s attorney; (b) any
continuance granted at the request of the defendant
or the defendant’s attorney. “Excusable delay” is not
expressly defined in Rule 600, but the legal construct takes
into account delays which occur as a result of
circumstances beyond the Commonwealth’s control and
despite its due diligence.
Hunt, supra at 1241 (internal citations and footnote omitted) (emphasis
added).
Significantly, “A plea of guilty effectively waives all nonjurisdictional
defects and defenses.” Commonwealth v. Gibson, 561 A.2d 1240, 1242
(Pa.Super. 1989), appeal denied, 525 Pa. 642, 581 A.2d 568 (1990). A
defendant who pleads guilty may not raise a Rule 600 challenge unless he
can show the Rule 600 violation affected the voluntariness of the plea itself.
Id.
Instantly, Appellant failed to raise a Rule 600 claim at any time before
the trial court. Appellant did not move to withdraw his plea either.
Appellant also failed to pursue a direct appeal. Therefore, Appellant’s Rule
600 challenge is waived.4 See 42 Pa.C.S.A. § 9544(b). Further, Appellant
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4
In his amended PCRA petition, Appellant further alleged defense counsel
was ineffective for failing to raise a Rule 600 claim. On appeal, however,
(Footnote Continued Next Page)
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pled guilty; and he does not claim the plea was coerced by the alleged
deprivation of his speedy trial rights. Therefore, Appellant’s guilty plea
provides an additional basis for waiver.5 See Gibson, supra. Based on the
foregoing, we affirm the denial of Appellant’s PCRA petition.
Order affirmed.
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(Footnote Continued)
Appellant presents no argument regarding defense counsel’s representation.
Therefore, that issue is not before us.
5
Moreover, even if we were to address Appellant’s Rule 600 issue, we would
agree with the PCRA court that the entire delay from February 2, 2012, to
February 6, 2013, was attributable to Appellant. The trial court granted
Appellant a general continuance so he could seek a psychiatric/psychological
evaluation. The DA’s office followed its customary practice and removed the
case from its active case management system because it had been
continued generally at Appellant’s request. Defense counsel was in a
position to know when the report was done and had the obligation to notify
the DA’s office or the court of that fact so the case could proceed. No
evidence exists that the DA’s office was aware Dr. Martone’s report had been
completed until February 6, 2013. When the 370-day excludable delay
attributable to Appellant is added to the initial mechanical run date (October
4, 2012), it yields an adjusted run date of October 8, 2013. The adjusted
run date would be even later after accounting for Appellant’s several
requested continuances following the resumption of docket activity in March
2013. Appellant pled guilty on September 5, 2013, which was the
equivalent of trial commencing for purposes of Rule 600. See Pa.R.Crim.P.
600(B). Therefore, even if Appellant had preserved the issue, he would not
have had a viable Rule 600 claim at any stage of the proceedings. See
Pa.R.Crim.P. 600(C)(3)(b); Hunt, supra; McNear, supra.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/26/2016
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