J. A03037/17
2017 PA Super 139
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
JOSEPH MICHAEL NOSS,
Appellant No. 119 MDA 2016
Appeal from the Order Entered December 15, 2015
In the Court of Common Pleas of Luzerne County
Criminal Division at No(s): CP-40-MD-0001045-2015
BEFORE: LAZARUS, J., STABILE, J., and DUBOW, J.
OPINION BY DUBOW, J.: FILED MAY 09, 2017
Appellant, Joseph Michael Noss, appeals from the December 15, 2015
Order, which granted the Commonwealth's Petition for Writ of Certiorari and
vacated Appellant's guilty plea. Upon careful review, we affirm.
On July 16, 2015, Appellant was charged with Aggravated Assault, a
felony, Resisting Arrest, Simple Assault, and Harassment' following
allegations that he engaged in a violent argument with his paramour.
Assistant District Attorney ("ADA") Cara Solimine signed the Complaint
approving the charges. Police Officer Kara Kroll and Police Officer Joseph
Koch signed the Complaint as co-affiants.
' 18 Pa.C.S. § 2702; 18 Pa.C.S. § 5104; 18 Pa.C.S. § 2701; and 18 Pa.C.S.
§ 2709, respectively.
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The Magistrate's Office initially scheduled the preliminary hearing on
July 22, 2015. On that date, Magisterial District Judge ("MDJ") Donald
Whittaker continued the hearing until August 25, 2015, at the request of the
Nanticoke Police Chief. ADA Solimine was present.
On August 20, 2015, ADA Solimine requested a continuance due to a
conflict in her schedule. MDJ Whittaker granted the continuance and
rescheduled the hearing to September 2, 2015, at 2:15 PM.
On September 2, 2015, at approximately 1:40 PM, Assistant Public
Defender ("PD") John Donovan informed MDJ Whittaker that the parties had
an agreement to present to MDJ Whittaker. PD Donovan, Officer Kroll, and
Appellant were present. ADA Solimine was not present and no other ADA
was present.
PD Donovan informed MDJ Whittaker that there was an agreement to
allow Appellant to plead guilty to a Disorderly Conduct charge, a
misdemeanor of the third degree, and to sentence Appellant to time -served.
MDJ Whittaker asked Officer Kroll if she agreed to the "reduced charge" and
she responded in the affirmative. The parties did not address whether the
District Attorney's Office authorized the guilty plea to a "reduced charge."
MDJ Whittaker accepted the agreement. Appellant pleaded guilty only to
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Disorderly Conduct as a misdemeanor of the third degree2, and MIDJ
Whittaker sentenced Appellant to time -served.
At approximately 2:15 PM, the scheduled time for the preliminary
hearing, both ADA Solimine and Officer Koch arrived to the MDJ's office,
where they were informed that the matter was complete.
On September 18, 2015, the Commonwealth filed a Petition for Writ of
Certiorari, or in the alternative a Notice of Appeal.
On December 15, 2015, after a review of the record, a hearing, and
oral argument, the trial court granted the Petition for Writ of Certiorari,
vacated Appellant's guilty plea, and reinstated all charges.
Appellant timely appealed. Both Appellant and the trial court complied
with Pa.R.A.P. 1925.
Appellant raises the following issues on appeal:
1. Whether the trial court erred in finding [Appellant] pled guilty to
a "reduced charge" before the Magisterial District Judge where
the designee of the Commonwealth withdrew charges and
amended the Complaint to add a charge of Disorderly Conduct, a
misdemeanor of the third degree?
2. Whether the trial court erred in granting the Commonwealth's
Petition for Writ of Certiorari where the Commonwealth's Petition
was unsupported by the magisterial record and depended on
disputed factual matters, rather than pure questions of law?
3. Whether the trial court abused its discretion by vacating
[Appellant]'s guilty plea and sentence before the Magisterial
District Court and by reinstating charges withdrawn by the
2 18 Pa.C.S. § 5503.
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Commonwealth, in violation of the Double Jeopardy Clauses of
the Unite[d] States and Pennsylvania Constitutions?
4. Whether the trial court abused its discretion in granting the
Commonwealth's Petition for Writ of Certiorari without finding
that the Magisterial District Judge abused his discretion or lacked
jurisdiction?
Appellant's Brief at 3 (reordered for ease of disposition) (some capitalization
omitted).
We will not disturb the lower court's issuance of a writ of certiorari
unless we find an abuse of discretion. Commonwealth v. Elisco, 666 A.2d
739, 740 (Pa. Super. 1995). We recognize that "[c]ertiorari provides a
narrow scope of review in a summary criminal matter and allows review
solely for questions of law." Id. (citations omitted). Since our review is
solely the review of questions of law, the standard of review is de novo and
our scope of review is plenary. Bastian v. Sullivan, 117 A.3d 338, 342-
43 (Pa. Super. 2015).
Appellant's first issue is whether the trial court erred in finding that
Appellant pleaded guilty to a "reduced charge" before the MDJ where a
"designee of the Commonwealth[,]" i.e. Officer Kroll, "withdrew charges and
amended the Complaint to add a charge of Disorderly Conduct, a
misdemeanor of the third degree[.]" Appellant's Brief at 3.
Section 1515 of the Judicial Code provides MDJs jurisdiction over
crimes categorized as misdemeanors of the third degree, provided the
following criteria are met:
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(A) The misdemeanor is not the result of a reduced charge.
(B) Any personal injury or property damage is less than $500.
(C) The defendant pleads guilty.
(D) The defendant is not subject to the provisions of Chapter 63.
42 Pa.C.S. § 1515(a)(6)(i)(A)-(D) (emphasis added).
In the instant case, Appellant was originally facing charges of
Aggravated Assault and related charges. Aggravated Assault is graded as
either a felony of the first or second degree. 18 Pa.C.S. § 2702(b).
Appellant pleaded guilty to Disorderly Conduct as a misdemeanor of the third
degree, a crime that the Commonwealth did not originally charge and a
crime that carries a reduced grading. A plain reading of Section 1515 clearly
provides that because Appellant pleaded guilty to a misdemeanor of the
third degree, a reduced charge, the MIDJ lacked jurisdiction to hear the plea.
See 42 Pa.C.S. § 1515(a)(6)(i)(A).
Appellant argues that the trial court misapplied Section 1515 and that
"the most natural, commonsense interpretation of 'reduced charge' is a
charge reduced sua sponte by a [MIDJ] following a preliminary hearing."
Appellant's Brief at 9. We disagree.
"When the words of a statute are clear and free from all ambiguity, the
letter of it is not to be disregarded under the pretext of pursuing its spirit."
1 Pa.C.S. § 1921(b). The language of Section 1515 reads, in pertinent part,
that MDJs shall have jurisdiction over "[o]ffenses under Title 18 (crimes and
offenses) . . . which are classified as misdemeanors of the third degree, if
the following criteria are met: (A) The misdemeanor is not the result of a
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reduced charge." 42 Pa.C.S. § 1515(a)(6)(i)(A) (emphasis added).
Contrary to Appellant's argument, the language is not ambiguous.
Appellant further avers that Officer Kroll was a designee of the
Commonwealth, and that Officer Kroll had the authority to withdraw the
original felony charge and agree to allow Appellant to plead guilty to a new,
lesser charge of Disorderly Conduct as a misdemeanor of the third degree.
Appellant's Brief at 21.
Rule 551 of the Pennsylvania Rules of Criminal Procedure provides that
only "the attorney for the Commonwealth, or his or her designee," may
withdraw charges and "[t]he withdrawal shall be in writing." Pa.R.Crim.P.
551. Appellant offers no rule, regulation, statute, case, or evidence to
support the position that a police officer is automatically a designee of an
attorney for the Commonwealth pursuant to Pa.R.Crim.P. 551.
ADA Solimine signed the arrest Complaint, appeared at the first
preliminary hearing, personally requested one continuance, and appeared at
the rescheduled preliminary hearing at the designated time. ADA Solimine
did not speak with Officer Kroll prior to the hearing. ADA Solimine was
clearly the attorney for the Commonwealth on this case, and there is no
evidence that she authorized Officer Kroll to withdraw charges as her
designee. Thus, Officer Kroll was not a designee of the Commonwealth
pursuant to Pa.R.Crim.P. 551.
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In his second issue on appeal, Appellant claims that the trial court
abused its discretion when it granted the Commonwealth's Petition for Writ
of Certiorari. Appellant's Brief at 10. Appellant avers that it was improper
to grant certiorari where there was no record of the proceedings before the
MD] and where the Commonwealth's Petition depended on disputed facts.
Id. at 10-11.
We reiterate that "[c]ertiorari provides a narrow scope of review in a
summary criminal matter and allows review solely for questions of law."
Elisco, supra at 740 (citations omitted). Consequently, "[q]uestions of
fact, admissibility, sufficiency or relevancy of evidence questions may not be
entertained by the reviewing court on certiorari." Id. at 740-41 (citation
omitted).
Appellant argues that because there are disputed facts in this case, the
trial court should not have granted certiorari. The trial court acknowledged
that "[t]here is conflicting testimony as to [how] and if a negotiated plea
was reached." Trial Court Opinion, filed 7/28/16, at 3. However, the trial
court explained that it granted certiorari based on a question of jurisdiction:
"it is clear that the decision by [this] court [is] not based on any disputed
facts but rather as to whether the [MDJ] had jurisdiction to enter an order
and dismiss charges." Id. at 17.
Undoubtedly, issues pertaining to jurisdiction are pure questions of
law. Commonwealth v. John, 854 A.2d 591,593 (Pa. Super. 2004). The
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trial court's grant of certiorari was based on the undisputed fact that the MD]
accepted a plea to a reduced charge. The trial court properly applied this
undisputed fact to the language of Section 1515 and concluded that the MD]
lacked jurisdiction to accept the plea. See 42 Pa.C.S. § 1515(a)(6)(i)(A).
This was a legal conclusion and the disputed facts about the events leading
to the plea are irrelevant to the analysis about jurisdiction. Accordingly, we
find no abuse of discretion in the trial court's grant of certiorari.
Appellant next avers that the trial court violated the double jeopardy
clauses of the United States and Pennsylvania Constitutions when it
reinstated charges after the MD] accepted the guilty plea and sentenced
Appellant. Appellant's Brief at 22. We disagree.
It is well settled that "[t]he double jeopardy protections afforded by
the United States and Pennsylvania Constitutions are coextensive and
prohibit successive prosecutions and multiple punishments for the same
offense." Commonwealth v. States, 891 A.2d 737, 741 (Pa. Super. 2005)
(citations omitted); see also U.S. Const. amend. V and Pa. Const. art. I, §
10. "We employ a unitary analysis of the state and federal double jeopardy
clauses since the protections afforded by each constitution are identical."
Commonwealth v. Keenan, 530 A.2d 90, 93 (Pa. Super. 1987) (citations
omitted). "The protections afforded by double jeopardy are generally
recognized to fall within three categories - (1) protection against a second
prosecution for the same offense after an acquittal; (2) protection against a
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second prosecution for the same offense after conviction; and (3) protection
against multiple punishments for the same offense." Id. (citations omitted).
In a case in which a court lacks subject matter jurisdiction to
adjudicate criminal charges, no jeopardy attaches and there is no bar to a
second prosecution. Id. at 93-94; see United States v. Tateo, 377 U.S.
463, 465 (1964) (the Fifth Amendment does not preclude retrying a
defendant whose conviction is set aside because of an error in the
proceedings leading to conviction); see also Commonwealth v. Oliver,
869 A.2d 1167, 1170 (Pa. Cmwlth. 2005) (determining that proceedings
before the MD] were a legal nullity because the MD] had lacked jurisdiction,
and thus, jeopardy never attached).
In the instant case, the MD] lacked jurisdiction to accept Appellant's
guilty plea, so the plea was a legal nullity and jeopardy did not attach.
Accordingly, we find that the trial court did not violate the double jeopardy
clauses of the United States and Pennsylvania Constitutions.
In his final issue, Appellant asserts that the trial court erred in
granting the Commonwealth's Petition for Writ of Certiorari without finding
that the MD] abused his discretion or lacked jurisdiction. Appellant's Brief at
3. While Appellant raises this issue in his Statement of Issues section, he
fails to develop the issue or mention the issue whatsoever in his Argument
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section. Accordingly, we find this issue to be waived.3 See Lackner v.
Glosser, 892 A.2d 21, 29-30 (Pa. Super. 2006) ("arguments which are not
appropriately developed are waived").
In conclusion, the trial court properly granted the Commonwealth's
Writ of Certiorari and determined as a matter of law that the MIDJ lacked
jurisdiction to accept Appellant's guilty plea because the plea was the result
of a reduced charge. Therefore, the trial court properly vacated Appellant's
guilty plea and sentence and reinstated all of the original charges.
Order affirmed.
Judgment Entered.
J seph D. Seletyn,
Prothonotary
Date: 5/9/2017
3
In the alternative, this issue lacks merit. In its 1925(a) Opinion, the trial
court stated, "[b]y granting the Commonwealth's motion and vacating the
guilty plea and sentence, the trial court determined that as a matter of law
the [MDJ] did not have jurisdiction and therefore abused its discretion."
Trial Court Opinion, filed 7/28/16, at 13. The trial court did find that the
MIDJ abused his discretion and lacked jurisdiction and, thus, this issue lacks
merit.
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