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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
PETER JOHN OLDFIELD, : No. 1134 MDA 2016
:
Appellant :
Appeal from the Order Entered November 6, 2015,
in the Court of Common Pleas of York County
Criminal Division at No. CP-67-CR-0005960-2013
BEFORE: FORD ELLIOTT, P.J.E., RANSOM, J. AND STEVENS, P.J.E.*
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED DECEMBER 30, 2016
Peter John Oldfield appeals from the November 6, 2015 order entered
in the Court of Common Pleas of York County that denied his motion for
reconsideration of denial of motion to dismiss criminal conviction based on a
violation of Pa.R.Crim.P. 704 for the trial court’s failure to impose sentence
within 90 days of appellant’s entry of his guilty plea. We affirm.
The record reflects that following a traffic stop on July 20, 2013,
appellant was charged with driving under the influence1 (“DUI”), possession
* Former Justice specially assigned to the Superior Court.
1
75 Pa.C.S.A. § 3802(d)(2).
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of a controlled substance (cocaine),2 and failing to signal.3 Because
appellant was on parole in connection with a case docketed at
CP-67-CR-161-2001 at the time of his arrest, a parole detainer was lodged
against him. As a result, on July 23, 2013, officials transported appellant to
the state correctional institution (“SCI”) at Camp Hill. The record further
reflects that although appellant initially opted to proceed pro se, the public
defender’s office entered its appearance on appellant’s behalf on
December 13, 2013.
On January 17, 2014, appellant pled guilty to DUI in return for an
evaluation for eligibility to participate in the state intermediate punishment
program (“SIPP”), and the prosecution nolle prossed the remaining
charges. Appellant was then imprisoned at SCI Smithfield. That facility,
however, failed to conduct the SIPP evaluation, and appellant seemingly
“slipped through the cracks.” (Notes of testimony, 12/17/14 at 2.)
The record further reflects that appellant’s case was initially assigned
to an attorney at the public defender’s office, but as a result of personnel
changes, appellant’s case was reassigned to another attorney; that appellant
wrote a letter to the public defender’s office in June of 2014 concerning the
status of his sentencing; and that “nothing was done after that.” (Id. at
2-3.) In late October or early November 2014, appellant’s case was again
2
35 P.S. § 780-113(a)(16).
3
75 Pa.C.S.A. § 3334(a).
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reassigned due to personnel changes, at which time newly assigned counsel
“immediately recognized that there were issues with the fact that [appellant
had] not been sentenced.” (Id. at 3.)
On November 6, 2014, appellant’s counsel filed a motion for
appellant’s transfer from SCI Smithfield to the York County Prison and for
imposition of sentence. On that same date, the parole board granted
appellant re-parole in the case docketed at CP-67-CR-161-2001 contingent,
according to appellant, on a urine screen which, according to appellant, he
submitted after being notified of his re-parole.4 The record further reflects
that on November 10, 2014, the trial court entered an order that scheduled
sentencing for December 17, 2014, and ordered appellant to be transferred
from SCI Smithfield to the York County Prison. The record fails to reflect the
date on which appellant’s transport occurred, but appellant states in his brief
that in early November 2014, an attorney with the public defender’s office
contacted the trial court to schedule a status hearing and appellant “was
4
The certified record before us contains the parole board’s decision to
re-parole appellant on November 6, 2014, but fails to indicate that re-parole
was dependent on the results of a urine screen. (Notes of testimony,
10/5/15 at defendant’s exhibit 1.) The record also fails to reflect that
appellant submitted urine prior to being transported to the York County
Prison per the trial court’s November 10, 2014 transport order. The record
does contain an “inmate’s request to staff member form” dated January 29,
2015, wherein appellant inquired as to his parole date. (Id. at defendant’s
exhibit 2.) The staff member’s written response, dated February 2, 2015,
was, “[w]hen I receive your urine results, you’ll sign your release order.
Effective the day after that, you’ll start your new sentence.” (Id.)
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suddenly transported from state prison to the York County Prison.”
(Appellant’s brief at 9.)
At the December 17, 2014 sentencing hearing, appellant moved for
dismissal of the DUI charge that he pled guilty to, based on a violation of his
speedy-sentencing rights under Pa.R.Crim.P. 704. We note that a review of
the December 17, 2014 hearing transcript reflects that appellant did not
inform the trial court that the parole board granted him re-parole on
November 6, 2014, and that his re-parole was dependent on the results of a
urine screen, the results of which appellant claims he was awaiting. The
record further reflects that following oral argument at the December 17,
2014 hearing, the trial court denied appellant’s motion to dismiss on
Rule 704 grounds, after finding that the sentencing delay was not
attributable to the Commonwealth or the trial court, but rather, to SCI, and
that appellant failed to show that the delay resulted in any prejudice. In
fact, the hearing transcript reveals that appellant advanced no argument
regarding prejudice. The trial court then rescheduled sentencing to
January 26, 2015, so that it could have the benefit of a pre-sentence
investigation report. Appellant remained incarcerated at the York County
Prison as he awaited his January 26, 2015 sentencing.
At the January 26, 2015 sentencing hearing, appellant’s counsel
confirmed that appellant was sentenced and serving time on the parole
violation, as well as a case docketed at 2401-CR-2012 in which appellant
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was sentenced to 17 months to 5 years of incarceration. (Notes of
testimony, 1/26/15 at 2-3.) We note that a review of this sentencing
hearing transcript also reveals that appellant did not inform the trial court
that the parole board granted re-parole on November 6, 2014, and that, as
appellant claims, his re-parole was dependent on a urine screen of which he
was awaiting results. At the conclusion of the sentencing hearing, the trial
court sentenced appellant to 129 days to 23 months of imprisonment, less
time served (552 days), to run concurrent to the sentence imposed for
appellant’s parole violation, followed by a consecutive term of supervision of
3 years plus 1 month.
The record further reflects that the public defender did not file
post-sentence motions or a direct appeal on appellant’s behalf. On
February 5, 2015, however, appellant filed a pro se motion for modification
of sentence. Because the public defender’s office still represented appellant,
the trial court refused to accept the pro se filing. On May 6, 2015, appellant
then filed a pro se Post Conviction Relief Act5 petition. The trial court
appointed counsel, and counsel filed an amended petition. On July 28,
2015, the trial court entered an order that reinstated appellant’s appeal
rights. Appellant then filed a post-sentence motion for reconsideration of
the trial court’s order denying appellant’s motion to dismiss based on a
Rule 704 violation, alleging, among other things:
5
42 Pa.C.S.A. §§ 9541-9546.
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15. The basis for the 12-month delay in sentencing
was not due to [appellant’s] error, and
[appellant] repeatedly wrote to counsel to
assert his right to be sentenced in a timely
fashion. Because [appellant] had been
forgotten about by the Court, the
Commonwealth, and his counsel, his parole in
another case was delayed by three months.
The parole delay had the effect of delaying the
start of his sentence in this and other matters,
and has delayed [appellant’s] release from
incarceration in all of his matters.
16. The result of the delayed parole was not
apparent to [appellant] on December 17,
2014, when he appeared before this Court and
moved for dismissal of the charges. The
prejudice to [appellant] was not apparent until
after his return to state prison following his
January 26, 2015 Sentencing Hearing.
Appellant’s Post-Sentence Motion for Reconsideration of Denial of Motion to
Dismiss, 8/28/15 at 3-4, ¶¶ 15-16.
On October 5, 2015, the trial court6 held a hearing on the motion. On
November 6, 2015, the trial court denied appellant’s motion. On
November 19, 2015, appellant filed a notice of appeal to this court.
6
The record reflects that the Honorable Thomas H. Kelley, VI, presided over
the December 15, 2014 and January 26, 2015 proceedings. The record
further reflects that the Honorable Craig T. Trebilcock presided over the
October 5, 2015 motion for reconsideration. Following Judge Trebilcock’s
deployment by the United States Army in November 2015, the Honorable
Harry M. Ness was assigned to appellant’s case. Judge Ness wrote and filed
the Rule 1925(a) opinion in this appeal, which incorporated his February 5,
2015 Rule 1925(a) opinion and Judge Trebilcock’s November 6, 2015 order
and opinion.
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Appellant complied with the trial court’s concise statement order, and the
trial court filed a Pa.R.A.P. 1925(a) opinion on February 5, 2016.
By order dated May 19, 2016, however, this court dismissed
appellant’s appeal for failure to file a brief. Commonwealth v. Oldfield,
No. 2029 MDA 2015, order (Pa.Super. filed May 19, 2016.) On June 13,
2016, appellant filed a petition to reinstate his appellate rights with the trial
court. On June 16, 2016, the trial court reinstated appellant’s appeal rights.
Appellant then timely filed a notice of appeal to this court. Appellant
complied with the trial court’s concise statement order, and the trial court
filed a Rule 1925(a) opinion that incorporated its February 5, 2016
Rule 1925(a) opinion, as well as the trial court’s November 6, 2015 order
denying appellant’s motion to reconsider and accompanying opinion.
Appellant raises the following issue for our review:
Whether the trial court erred in denying the
Appellant’s Post-Sentence Motion for Reconsideration
of the Denial of Motion to Dismiss, erring in its
conclusion that the Appellant’s Sentencing Hearing
was not delayed without good cause and that the
Appellant was not prejudiced by the delay in
sentencing?
Appellant’s brief at 3.
Pa.R.Crim.P. 704 provides, in pertinent part:
(A) Time for Sentencing.
(1) Except as provided by Rule 702(B),
sentence in a court case shall
ordinarily be imposed within 90
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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.
Pa.R.Crim.P. 704(A)(1) and (2).
With respect to claims of untimely sentencing, it has been explained,
as follows:
The appropriate remedy for a violation of
Pa.R.Crim.P. 1405 [now Pa.R.Crim.P. 704], is
discharge. However, the remedy does not
automatically apply whenever a defendant is
sentenced more than [ninety] days after conviction
without good cause. Instead, a violation of the
[ninety-day] rule is only the first step toward
determining whether the remedy of discharge is
appropriate.
....
[A] defendant who is sentenced in violation of
Pa.R.Crim.P. 1405 [now Pa.R.Crim.P. 704], is
entitled to a discharge only where the defendant can
demonstrate that the delay in sentencing prejudiced
him or her. . . . [T]o determine whether discharge is
appropriate, the trial court should consider:
(1) the length of the delay falling outside of
[the Pa.R.Crim.P. [90-day-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
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not be presumed by the mere fact of an
untimely sentence. Our approach has
always been to determine whether there
has in fact been prejudice, rather than to
presume that prejudice exists. The court
should examine the totality of the
circumstances, as no one factor is
necessary, dispositive, or of sufficient
importance to prove a violation.
Commonwealth v. Diaz, 51 A.3d 884, 887 (Pa.Super. 2012) (citation
omitted; brackets in original).
Here, with respect to the length of the delay, appellant pled guilty on
January 17, 2014. The trial court imposed sentence on January 26, 2015,
which was 284 days beyond the 90-day provision set forth in Rule 704. The
sentencing delay, therefore, was significant.
With respect to the reason for the sentencing delay, appellant
contends that it:
was not due to the [appellant’s] error, and
[appellant] repeatedly[7] wrote to counsel to assert
his right to be sentenced in a timely fashion.
Because [appellant] had been forgotten about by the
trial court, the Commonwealth, and his counsel, his
parole release in another case was delayed by three
months.
Appellant’s brief at 11. Appellant fails to advance any argument that the
sentencing delay resulted from inexcusable or intentionally dilatory conduct
by the Commonwealth or the trial court which Rule 704 was meant to
7
The record reflects that appellant wrote to counsel at the public defender’s
office once. (Notes of testimony, 12/17/14 at 3.)
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ameliorate. See Diaz, 51 A.3d at 889 (reiterating that the underpinning of
Rule 704 is to protect the accused from inexcusable or intentional delay on
the part of the court or the Commonwealth, “the ‘whim’ or power of the
state.” (citation omitted)). Rather, appellant complains that the delay was
not his fault and that the system essentially forgot about him. Although we
do not condone the delay in appellant’s sentencing, appellant’s claim that
the system forgot about him is insufficient to support discharge for a
Rule 704 violation because it fails to implicate inexcusable or intentional
delay on the part of the trial court or the Commonwealth. See id.
With respect to appellant’s timely or untimely assertion of his rights,
the record reflects that appellant sent a letter to the public defender’s office
regarding the status of his sentencing in June 2014, which was
approximately six months after he pled guilty.
Finally, with respect to prejudice, the December 17, 2014 sentencing
transcript reveals that the trial court was not only cognizant of, but
sympathetic to, the delay in appellant’s sentencing. The record reflects that
after defense counsel thoroughly informed the trial court of the delay, the
trial court immediately suggested that it could impose a retroactive
concurrent sentence. (Notes of testimony, 12/5/14 at 5.) Additionally, after
finding that the delay was not attributable to the trial court or the
Commonwealth, the trial court expressed its “default position” that it
“sentence [appellant] concurrently or partially concurrently” to the other
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sentences. (Id. at 6-8.) We note that the Commonwealth agreed with that
remedy and stated that it “wouldn’t have a problem running it
concurrently[,] [g]iven everything that has happened in this case.” (Id. at
8, 10.) Moreover, defense counsel informed the court that appellant was
“hoping” that it would run a concurrent sentence. (Id. at 9.)
The record, therefore, reflects that the reason that the trial court
imposed 129 days to 23 months of incarceration to run concurrent to the
sentence imposed for the parole violation was to remediate any prejudice
suffered by the Rule 704 violation. Appellant’s argument that his
approximate three-month incarceration in York County, which was caused by
his delayed sentencing, caused the delay of his re-parole, as well as the
delay of the date that he would have begun to serve his next sentence,
because his county imprisonment took him out of the state system which
resulted in appellant not knowing that he needed to re-submit urine for re-
parole purposes necessarily assumes that appellant would have received the
same sentence if he was sentenced within the 90-day period prescribed by
Rule 704. The record, however, reveals that the trial court carefully
considered the sentencing delay when it sentenced appellant to 129 days to
23 months to run concurrent to the sentence for the parole violation.
Therefore, appellant has failed to establish prejudice because the argument
he raises rests entirely on speculation. See Diaz 51 A.3d at 891-892
(holding that discharge is not warranted under Rule 704 where defendant’s
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claim of prejudice is speculative). Accordingly, dismissal under Rule 704
was not warranted.
Order affirmed.
Stevens, P.J.E. joins this Memorandum.
Ransom, J. concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/30/2016
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