J-S09027-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
MARKEITH DASMOND ALLEN
Appellant Nos. 1001 EDA 2016, 1003
EDA 2016, 1004 EDA 2016
Appeal from the PCRA Order entered February 29, 2016
In the Court of Common Pleas of Montgomery County
Criminal Division at Nos: CP-46-CR-0000811-2011, CP-46-CR-0001349-
2011, CP-46-CR-001350-2011
BEFORE: SHOGAN, STABILE, and PLATT,* JJ.
MEMORANDUM BY STABILE, J.: FILED MAY 24, 2017
Appellant, Markeith Dasmond Allen, appeals from the February 29,
2016 order denying his petition pursuant to the Post Conviction Relief Act
(“PCRA”), 42 Pa.C.S.A. §§ 9541-46. We affirm.
The record reflects that Appellant committed several gunpoint
robberies on January 11, 2011. Appellant assailed or shot several of the
victims. The Commonwealth filed charges against Appellant on January 14
and January 20, 2011. On March 9, 2012, after several defense
continuances, Appellant entered a negotiated guilty plea to multiple counts
of robbery, unlawful possession of a firearm, and possession with intent to
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*
Retired Senior Judge assigned to the Superior Court.
J-S09027-17
deliver a controlled substance.1 The trial court imposed an aggregate 10 to
30 years of incarceration, in accord with the parties’ plea agreement. This
Court affirmed the judgment of sentence on October 21, 2013.
Commonwealth v. Allen, 78 A.3d 1163 (Pa. Super. 2013).2 Appellant filed
this timely first PCRA petition on March 18, 2014. He asserted, among other
things, that his guilty plea was not knowing, intelligent, and voluntary
because his counsel failed to advise him of the violation of his speedy trial
rights under Pa.R.Crim.P. 600. Rule 600 required Appellant to be brought to
trial within one year of the date of the complaints in this case, absent any
delays attributable to the defense. Pa.R.Crim.P. 600(A), (C).3
On January 5, 2016, the PCRA court issued its notice of intent to
dismiss Appellant’s petition without a hearing, pursuant to Pa.R.Crim.P. 907.
Appellant responded on January 22, 2016, and the PCRA court dismissed the
petition without a hearing on February 29, 2016. This timely appeal
followed. Appellant presents two questions for review:
1. Did the [PCRA] court err by dismissing the PCRA and not
throwing out the guilty plea when [Appellant’s] guilty plea
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1
18 Pa.C.S.A. §§ 3701, 6105, and 35 P.S. § 780-113(a)(30), respectively.
2
Appellant raised collateral claims in his direct appeal. We concluded that
Appellant did not intend to waive his right to file a subsequent PCRA petition,
and we affirmed the judgment of sentence without prejudice to Appellant’s
right to seek collateral review. Id. at 1166.
3
Rule 600 was amended effective July 1, 2013. The amendments do not
affect the result in this case.
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was not given knowingly, intelligently, or voluntary [sic]
because he was not adequately informed of the status of
his Rule 600 rights?
2. Did the [PCRA] Court err by dismissing the PCRA petition
without a hearing when the factual issues were present,
such as the amount of excludable time present in relation
to Rule 600?
Appellant’s Brief at 4.
On review, we must determine whether the record supports the PCRA
court’s findings, and whether its ruling was free of legal error.
Commonwealth v. Pitts, 981 A.2d 875, 878 (Pa. 2009). To succeed on a
claim of ineffective assistance of counsel, a PCRA petitioner must establish
that the underlying claim is of arguable merit; that counsel had no
reasonable strategic basis for the action or inaction; and that counsel’s error
prejudiced the petitioner. Commonwealth v. Sattazahn, 952 A.2d 640,
652 (Pa. 2008), cert. denied, 556 U.S. 1283 (2009).
As noted above, the Commonwealth filed the first of its complaints in
this matter on January 14, 2011. Under Rule 600(A), the mechanical run
date was January 14, 2012. Appellant pled guilty 55 days later, on March 9,
2012.4 Rule 600(C)(2) provides that delay attributable to the defendant is
excluded from computation of the one-year period. Pa.R.Crim.P. 600(C)(2).
At docket numbers 811 and 1349 of 2011, Appellee concededly signed a
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4
The Rule 600 run period concludes when the trial judge calls the case to
trial, or when the defendant enters a plea of guilty or nolo contendere.
Pa.R.Crim.P. 600.
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Rule 600 waiver excluding 58 days from the Rule 600 computation.
Appellee’s Brief at 9-10. This waiver alone accounts for the 55-day delay
between the mechanical run date and Appellee’s guilty plea. We note that
this is a consolidated prosecution of cases filed at three different docket
numbers, and the Rule 600 waiver is only of record for numbers 811 and
1349 of 2011. As to docket number 1350 of 2011, a time-stamped order
reflects that Appellant requested a continuance at the May 4, 2011 pretrial
conference, resulting in a rescheduled pre-trial conference on June 21, 2011,
48 days later. Pre-Trial Conference Order, 5/4/11. At a July 26, 2011 call of
the list, Appellant once again requested a continuance. Order, 7/26/11. The
case was rescheduled to the September 22, 2011 call of the list, 58 days
later. These delays account for the 55 days between the mechanical run
date and Appellant’s March 9, 2012 guilty plea. Appellant’s Rule 600
argument lacks arguable merit.
Appellant also argues that his counsel was ineffective for signing the
Rule 600 waivers. Appellant’s Brief at 13. Appellant fails to develop any
substantive argument for why a defense continuance constituted ineffective
assistance in this case, and the record does not divulge the reasons for the
continuances. Even so, we do not believe a hearing was necessary because
Appellant cannot prove prejudice. We cannot assume that the
Commonwealth would have failed to bring the case to a timely trial absent
the Rule 600 waiver. In addition, Appellant’s counsel was able to negotiate
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a plea bargain whereby Appellant pled guilty to a fraction of the felony
charges he was facing and received a minimum sentence of 10 years of
incarceration. The record does not support a conclusion that Appellant
would have been acquitted or would have received a more favorable
sentence had counsel foregone the continuances and proceeded to trial.
For all of the foregoing reasons, we affirm the PCRA court’s order.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/24/2017
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