J-S14034-17
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
ODELL ASHFORD, JR., :
:
Appellant : No. 824 MDA 2016
Appeal from the Judgment of Sentence April 13, 2016,
in the Court of Common Pleas of York County,
Criminal Division, at No(s): CP-67-CR-0000864-2015
BEFORE: GANTMAN, P.J., SHOGAN, and STRASSBURGER,* JJ.
MEMORANDUM BY STRASSBURGER, J.: FILED MAY 16, 2017
Odell Ashford, Jr. (Appellant) appeals from the judgment of sentence
of costs, fines, and 90 days of imprisonment imposed following his
convictions for, inter alia, driving while operating privilege suspended or
revoked. We vacate Appellant’s judgment of sentence and discharge him.
The underlying facts are as follows.
On January 2, 2015, Officer Michael Carpenter performed a
vehicle stop on a green Plymouth van. The officer made the
decision to stop the vehicle because the passenger side
reversing lamp was inoperative, a taillight was broken and
covered with tape, and because the driver’s side door was held
fast by means of a rope or bungee cord, which all violated the
inspection code. Upon approach, the officer was informed by []
Appellant that he did not have his driver’s license. [] Appellant
never provided his identification or insurance card. The defense
stipulated to the authenticity of the driving record, which
indicated that [] Appellant’s license had expired on September
30, 1981 and that [] Appellant’s license was suspended for a
refusal to submit to chemical testing in 1980. Additionally, at
*Retired Senior Judge assigned to the Superior Court.
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the time of the incident, [] Appellant's license would not have
been restored.
Trial Court Opinion (TCO), 9/9/2016, at 3 (citations omitted).
On January 2, 2015, a criminal complaint was filed against Appellant.
Among the charges was a count for possession of a controlled substance
without a valid prescription. Complaint, 1/2/2015, at Count 2. A pretrial
conference was held on June 15, 2015, at which Appellant’s counsel
requested that the case be listed for trial during the September 2015 term
instead of the July 2015 term to give him time to procure evidence that
Appellant had a valid prescription. The trial court entered an order that
provided as follows.
We note the case is to be scheduled for trial. The request
is for listing during the September term. The Commonwealth is
in agreement with that, with the stipulation that the Rule 600
time runs against [Appellant]. The defense has acknowledged
that or agreed that is the case.
This will then be listed in September for the list of criminal
jury trials, unless it is heard earlier by a bench trial.
Order, 6/15/2015.
For reasons not apparent from the record, the case did not proceed to
trial in September 2015 or at any time before March 3, 2016, when the
Commonwealth filed a motion to schedule the case for a nonjury trial. By
order of April 6, 2016, the trial court scheduled a bench trial for April 13,
2016. On April 12, 2016, Appellant filed a motion to dismiss pursuant to
Rule 600 of the Pennsylvania Rules of Criminal Procedure. The trial court
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heard and denied the motion immediately before the April 13, 2016 trial, at
which it found Appellant guilty of driving with a suspended license and other
summary offenses and sentenced him as indicated above.1 Appellant’s
timely-filed post-sentence motion was denied on April 25, 2016.
Appellant timely filed a notice of appeal, and both Appellant and the
trial court complied with Pa.R.A.P. 1925. Appellant presents one question
for our review: “Whether the trial court erred in denying Appellant’s motion
to dismiss… based upon Rule 600 by finding that the Commonwealth
exercised due diligence?” Appellant’s Brief at 4.
In evaluating Rule 600 issues, our standard of review of a trial
court’s decision is whether the trial court abused its discretion.
Judicial 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.
The proper scope of review ... is limited to the evidence on the
record of the Rule 600 evidentiary hearing, and the findings of
the trial court. An appellate court must view the facts in the
light most favorable to the prevailing party.
Additionally, when considering the trial court’s ruling, this Court
is not permitted to ignore the dual purpose behind Rule 600.
Rule 600 serves two equally important functions: (1) the
protection of the accused’s speedy trial rights, and (2) the
protection of society. In determining whether an accused’s right
to a speedy trial has been violated, consideration must be given
1
The trial court acquitted Appellant of driving under the influence - general
impairment.
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to society’s right to effective prosecution of criminal cases, both
to restrain those guilty of crime and to deter those
contemplating it. However, the administrative mandate of Rule
600 was not designed to insulate the criminally accused from
good faith prosecution delayed through no fault of the
Commonwealth.
Commonwealth v. Watson, 140 A.3d 696, 697-98 (Pa. Super. 2016),
(quoting Commonwealth v. Peterson, 19 A.3d 1131, 1134–35 (Pa. Super.
2011)).
The text of Rule 600 is as follows, in pertinent part.
(A) Commencement of Trial; Time for Trial
(1) 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.
(2) Trial shall commence within the following time periods.
(a) Trial in a court case in which a written complaint
is filed against the defendant shall commence within 365
days from the date on which the complaint is filed.
***
(C) Computation of Time
(1) For purposes of paragraph (A), periods of delay at any
stage of the proceedings caused by the Commonwealth when the
Commonwealth has failed to exercise due diligence shall be
included in the computation of the time within which trial must
commence. Any other periods of delay shall be excluded from
the computation.
***
(3)(a) When a judge or issuing authority grants or denies a
continuance:
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(i) the issuing authority shall record the identity of
the party requesting the continuance and the reasons for
granting or denying the continuance; and
(ii) the judge shall record the identity of the party
requesting the continuance and the reasons for granting or
denying the continuance. The judge also shall record to
which party the period of delay caused by the continuance
shall be attributed, and whether the time will be included
in or excluded from the computation of the time within
which trial must commence in accordance with this rule.
***
(D) Remedies
(1) When a defendant has not been brought to trial within
the time periods set forth in paragraph (A), at any time before
trial, the defendant’s attorney, or the defendant if
unrepresented, may file a written motion requesting that the
charges be dismissed with prejudice on the ground that this rule
has been violated. A copy of the motion shall be served on the
attorney for the Commonwealth concurrently with filing. The
judge shall conduct a hearing on the motion.
Pa.R.Crim.P. 600.
In the instant case, the written complaint was filed against Appellant
on January 2, 2015. Hence, under subsection (A)(2)(a), Appellant’s trial
was required to commence by January 2, 2016. The trial actually
commenced on April 13, 2016, which is 102 days late.
The trial court determined that the trial was timely commenced under
subsection (C)(1) because there were sufficient periods of delay that were
not caused by the Commonwealth’s failure to exercise due diligence. TCO,
9/9/2016, at 7-10. Specifically, the trial court held that the entire 102 days
between the June 15, 2015 pretrial conference and the last day of the
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September trial term was a delay attributable to Appellant.2 Id. at 8.
Further, the trial court held that the Commonwealth exercised due diligence
in seeking to comply with Rule 600 because it notified the trial court of the
impending, adjusted Rule 600 deadline in its March 3, 2016 motion. 3 Id. at
8-9.
Appellant disputes the trial court’s calculation of excludable time as
well as its determination that the Commonwealth exercised due diligence in
bringing him to trial.4 We agree with Appellant on both counts.
2
In its Pa.R.A.P. 1925(a) opinion, the trial court offers this calculation, as
well as some alternative calculations, to support the proposition that the trial
was commenced before adjusted 365-day period had expired. However, at
the time it ruled on the motion, Appellant’s counsel asked “just so the record
is clear, are you denying the motion because the adjusted run date has not
passed, or are you denying it on due diligence reasons?” N.T., 4/13/2016,
at 10. The trial court responded “I’m finding that the Commonwealth
sufficiently exercised due diligence within that -- those time limitations to
bring the case to trial.” Id. However, because we may affirm on any basis
apparent from the record, we will consider whether either basis justifies the
denial of Appellant’s motion. Commonwealth v. Williams, 73 A.3d 609,
617 (2013) (“This Court is not bound by the rationale of the trial court, and
we may affirm the trial court on any basis.”).
3
The Commonwealth’s motion did not indicate with specificity its view of the
date by which Appellant had to be tried. It merely states that the
“Commonwealth has calculated [Appellant’s] Rule 600 date to be in April
2016.” Motion to Schedule Non-jury Trial, 3/3/2016, at ¶ 1.
4
In support of his argument, Appellant’s counsel has cited and attached an
unpublished, non-precedential memorandum decision of this Court filed in
another York County case in which he represented a different, unrelated
defendant. Appellant’s Brief at 11, Appendix D. Presently, our internal
operating procedures provide that, with exceptions not applicable in the
instant case, “[a]n unpublished memorandum decision shall not be relied
upon or cited by … a party in any other action or proceeding….” Pa.
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First, in calculating the period of delay attributable to a defendant,
“the actual delay caused by the defendant’s unavailability includes the period
of time from the date of his unavailability until the earliest practicable trial
date….” Commonwealth. Wentzel, 641 A.2d 1207, 1209 (Pa. Super.
1994) (citation and internal quotation marks omitted). Here, Appellant
requested his continuance at the June 15, 2015 pretrial conference.
However, as the Commonwealth acknowledged, the case could not have
been called for trial on June 16. N.T., 4/13/2016, at 5. Rather, at that point
the earliest possible trial date Appellant could have received was the first
day of the July trial term, which was July 6, 2015. Thus, Appellant’s
unavailability did not commence until July 6, 2015. In other words, the 21
days between the pretrial conference and the beginning of the July term
were not attributable to his continuance request.5
Further, Appellant did not ask to have his case heard at the end of the
September trial term. Rather, implicit in his request that the case be listed
on the September term is that his unavailability would cease by the time
that term began, such that he would be ready to proceed to trial on any day
Super. IOP § 65.37 (emphasis added). Accordingly, we have not considered
that decision in our resolution of the instant appeal.
5
Not only is such a holding logically sound, but, as Appellant notes in his
brief, to rule otherwise would encourage defendants to wait to request a
continuance until the last possible moment before trial was set to begin,
which would waste court resources and the prosecution’s time in preparing
for trial, as well as unnecessarily inconveniencing subpoenaed witnesses.
Appellant’s Brief at 12.
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during that term.6 In explaining its decision to the contrary, the trial court
references the York County local practice that the period of delay
attributable to a defendant who requests a continuance concludes on the last
day of the requested term. TCO, 9/9/2016, at 6. However, the trial court
acknowledged in its opinion that such practice is neither memorialized in any
written form, nor consistent with this Court’s precedent. Id. (citing
Wentzel, 641 A.3d at 1209).
Therefore, the period of delay attributable to Appellant’s continuance
request was the 64 days between the start of his unavailability on the first
day of the July term and the end of his unavailability on the first day of the
September term, which was September 8, 2015. Excluding that time from
the calculation, the Commonwealth had until March 6, 2016, to bring
Appellant to trial.
Appellant’s case was not listed for trial during the September 2015
term. Nor was it listed during the November 2015 term, the January 2016
term, or the March 2016 term. Rather, on March 3, 2016, the
Commonwealth for the first time filed a motion to list the case for a trial.
6
In its opinion, the trial court offered the following commentary on this
issue. “Were the defense to argue that it did not need 102 days to procure
the prescription, we would be left to wonder why the 21 days from June 15,
2015 to the start of the following term on July 6, 2015 were insufficient to
obtain proof of a prescription.” TCO, 9/9/2016, at 8. A reasonable answer
to this hypothetical question is that Appellant thought he might require more
than 21 days to obtain the evidence, but was confident that he could get it
within the 85 days between the pretrial conference and the beginning of the
September term.
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Specifically, the Commonwealth indicated in its motion that the case should
be listed for a nonjury trial because it had opted not to pursue the charge
that Appellant had possessed a controlled substance without a valid
prescription, and that was the only count that had entitled Appellant to a
jury trial. Motion to Schedule Non-jury Trial, 3/3/2016, at ¶¶ 6-7. By order
of April 6, 2016, the trial court granted the motion and scheduled the case
for a non-jury trial to take place on April 13, 2016.
In its opinion, the trial court indicated that the delay between the
Commonwealth’s filing its motion and the court’s scheduling the trial was not
to be included in the Rule 600 calculation. Instead, “by listing the case for
trial and making an effort to schedule the case for a bench trial, the
Commonwealth demonstrated due diligence.” TCO, 9/9/2016, at 9. The
following principles guide our review of this determination.
[T]he Commonwealth must do everything reasonable within its
power to guarantee that a trial begins on time, and the
Commonwealth has the burden of demonstrating by a
preponderance of the evidence that it exercised due diligence.
As has been oft stated, [d]ue diligence is fact-specific, to be
determined case-by-case; it does not require perfect vigilance
and punctilious care, but merely a showing the Commonwealth
has put forth a reasonable effort.
Commonwealth v. Dixon, 140 A.3d 718, 722–23 (Pa. Super. 2016).
Here, there is no evidence in the record to explain what measures, if
any, the Commonwealth took between the end of the September 2015 term,
by which time the case was supposed to have been listed for trial, and March
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3, 2016, to ensure compliance with Rule 600. Moreover, there is no record
evidence to establish what procedures, if any, the Commonwealth has in
place to monitor cases for Rule 600 purposes. Compare Commonwealth
v. Bradford, 46 A.3d 693, 704 (Pa. 2012) (concluding Commonwealth had
established due diligence with evidence of an internal tracking system
triggered by the Magisterial District Judge’s compliance with procedural
rules), with Commonwealth v. Browne, 584 A.2d 902, 906 (Pa. 1990)
(where the Commonwealth failed to establish that the district attorney’s
office had “simple systems in place to carry out the routine duties of the
office”). All we are able to glean from the record before us is that the case
lingered on the docket from September 2015 to March 2016 and that the
Commonwealth made zero efforts during that time to have Appellant’s case
listed for trial.
Because the Commonwealth offered no evidence whatsoever
concerning its efforts to bring Appellant to trial in a timely fashion, we must
conclude that the trial court erred in denying Appellant’s Rule 600 motion on
the basis that the Commonwealth met its burden of proving that it had
exercised due diligence. See, e.g., Commonwealth v. Johnson, 852 A.2d
315, 318 (Pa. Super. 2004) (vacating judgment of sentence and discharging
Johnson because “there was a dearth of evidence to support the
Commonwealth’s arguments, and it therefore did not carry its burden to
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establish due diligence in bringing Johnson to trial within the required
time”).7
Judgment of sentence vacated. Appellant is discharged.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/16/2017
7
The trial court in its opinion references statements made by counsel for the
Commonwealth during argument on the Rule 600 motion that she had sent
emails to the trial court “urging expedited scheduling” of the trial. TCO,
9/9/2016, at 8. However, as the trial court acknowledges, there is no record
evidence to support this argument, as “[t]hese emails were not proffered,”
id. at 8; and “‘unsworn representations of counsel are not evidence.’” Id. at
9 (quoting Johnson, 852 A.2d at 318).
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