Com. v. Boney, R. ( 2015 )

J-S34026-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
RONALD W. BONEY
Appellant No. 100 MDA 2015
Appeal from the Judgment of Sentence October 16, 2014
In the Court of Common Pleas of Perry County
Criminal Division at No(s): CP-50-SA-0000006-2012
BEFORE: BOWES, J., OTT, J., and STABILE, J.
MEMORANDUM BY OTT, J.: FILED JULY 14, 2015
Ronald W. Boney appeals from the judgment of sentence imposed on
October 16, 2014, in the Court of Common Pleas of Perry County, following a
summary appeal. Boney was convicted of driving while operating privilege
was suspended.1 The trial court sentenced Boney to 75 days’ incarceration.
In this appeal, Boney contends the trial court erred in (1) denying his motion
to dismiss pursuant to Pa.R.Crim.P. 600, and (2) denying his motion to
dismiss pursuant to constitutional due process rights.2 Boney’s Brief at 4.
Based upon the following, we affirm.
____________________________________________
1
75 Pa.C.S. § 1543(b)(1).
2
Although it appears from the trial court docket that Boney timely complied
with the order of the trial court to file a Pa.R.A.P. 1925(b) concise statement
of errors complained of on appeal, Boney’s Rule 1925 statement is not
included in the certified record. The trial court, however, reiterates the
(Footnote Continued Next Page)
J-S34026-15
This case arose as a result of a February 5, 2011, incident, for which
Boney was issued a traffic citation for driving under suspension. Thereafter,
[o]n February 3, 2012, [Boney] was convicted of violating 75
Pa.C.S. § 1543(b)(1), Driving Under Suspension—DUI related,
which is a summary offense. [Boney] then filed an appeal to
[the trial court] on February 17, 2012. By letter dated July 17,
2014, [Boney] was notified to appear for the purpose of a
hearing on appeal from summary conviction on August 11, 2014.
On August 7, 2014, [Boney] filed a Petition to Dismiss Pursuant
to Rule 600. On August 11, 2014, [the trial court] issued an
order stating that it was considering the petition, and that upon
reaching a decision [the court] would grant the relief requested
or would continue the matter upon motion of [Boney]. On
August 27, 2014, [the trial court] denied [Boney’s] Petition to
Dismiss Pursuant to Rule 600, and the matter was then
continued upon motion of [Boney] until October 16, 2014, so
that [Boney] could subpoena witnesses. On October 16, 2014,
at the summary appeal, [Boney] was again convicted of violating
section 1543(b)(1).
Trial Court Opinion, 1/26/2015, at 1.
At the outset, we note:
Our standard of review from an appeal of a summary conviction
heard de novo by the trial court is limited to a determination of
whether an error of law has been committed and whether the
findings of fact are supported by competent evidence. The
adjudication of the trial court will not be disturbed on appeal
absent a manifest abuse of discretion. An abuse of discretion
may not be found merely because an appellate court might have
reached a different conclusion, but requires a result of manifest
unreasonableness, or partiality, prejudice, bias, or ill-will, or
such lack of support as to be clearly erroneous.
_______________________
(Footnote Continued)
issues raised in Boney’s concise statement in its opinions. See Trial Court
Opinion, 1/30/2015, at 2; Trial Court Opinion, 1/26/2015, at 2.
-2-
J-S34026-15
Commonwealth v. Rodriguez, 81 A.3d 103, 105–106 (Pa. Super. 2013)
(quotations and citations omitted), appeal denied, 91 A.3d 1238 (Pa. 2014).
As background to the issues raised in this appeal, Boney states:
Ronald W. Boney was convicted on February 3, 2012 of
Driving Under Suspension 75 section 1543(b)(1) in the
Magisterial District Court in Newport, Pennsylvania. On February
17, 2012, [Boney] filed a timely appeal and request for De Novo
trial in the Court of Common Pleas of the 41st Judicial District.
On March 2, 2012, [Boney] was prosecuted on an unrelated
charge through the same prosecutor’s office and sentenced to 16
months to 36 months in a state correctional institution. The
prosecutor subsequently sent notice to [Boney] that his
summary appeal would be heard on August 11, 2014.
****
The facts of the present case show that nearly 2 and [one-half]
years passed between [Boney] filing his notice of appeal and his
opportunity for hearing. This is a substantial delay. The reason
for the delay involved the prosecutor not wanting to transport
[Boney] from a state correctional institution. Prisoners are
transported every day for hearings from state correctional
institutions. There is no justifiable excuse for delay based on
transportation. … [Boney] was actually prejudiced by the
trooper’s inability to recall the events of the day aside from using
whatever notes were taken and [Boney’s] inability to recall
certain events.
Boney’s Brief at 5, 7.
Boney first contends that the trial court erred in denying his
Pennsylvania Rule of Criminal Procedure 600 Motion. Boney argues his de
novo summary appeal was not tried in the trial court within 365 days as
required by Pa.R.Crim.P. 600. This argument, however, is meritless, as our
Court has stated that Pa.R.Crim.P. 1100, which is now Rule 600, is not
applicable to de novo trials involving summary violations as the Rule
-3-
J-S34026-15
excludes summary proceedings. See Commonwealth v. Koch, 431 A.2d
1052, 1054 n.5 (Pa. Super. 1981) (en banc) (noting that Criminal Rule 1100
[predecessor to Criminal Rule 600] is inapplicable to summary proceedings
as the rule specifically excludes such proceedings by its language). Indeed,
Chapter 6 of the Rules of Criminal Procedure is titled as the “Trial Procedures
in Court Cases.” Further, Rule 600(A)(2)(a) requires that “[t]rial 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.” Pa.R.Crim.P. 600(A)(2)(a)
(emphasis added). A “court case” is defined as “a case in which one or more
of the offenses charged is a misdemeanor, felony, or murder of the first,
second, or third degree.” Pa.R.Crim.P. 103. By contrast, a “summary case”
is defined as “a case in which the only offense or offenses charged are
summary offenses.” Id.In this case, Boney was charged with a single summary offense of
driving while his operating privilege was suspended, in violation of 75
Pa.C.S. 1543(b). As such, this case is a “summary case” and cannot be
considered a “court case.” Based upon the foregoing, we conclude that Rule
600 is inapplicable to this proceeding involving only a summary offense. See
Koch, supra; see also Constantino v. Forest Hills Borough, 563 A.2d
953, 957 (Pa. Cmwlth. 1989) (concluding that appellant’s right to a speedy
trial has not been violated because Rule 1100(d)(1) does not apply “to
appeals from summary convictions, but rather to the granting of a new trial
-4-
J-S34026-15
by the trial court.”); cf. Commonwealth v. Kujas, 435 A.2d 1293, 1294
(Pa. Super. 1981) (concluding that summary offenses charged in the same
complaint as misdemeanors are part of a “court case” for the purposes of
Criminal Rule 1100).
Next, Boney argues that the proceedings were not completed in a
timely fashion and as such, violated his constitutional due process rights.
While not mentioned by the parties, Section 5553(e) of Title 42 provides
that “No proceedings shall be held or action taken pursuant to a summary
offense under Title 75 subsequent to three years after commission of the
offense.” 42 Pa.C.S. § 5553(e) (emphasis added).3 Under Section 5553(e),
any summary proceedings initiated under Title 75 must be disposed of “at
the trial level” within three years or not at all. Commonwealth v. Ristau,
666 A.2d 338, 340 (Pa. Super. 1995) (citation omitted). However, our case
law makes clear that the limitation period is tolled during those periods of
delay that are directly attributable to the defendant. Commonwealth v.
Quinn, 592 A.2d 1316, 1317 (Pa. Super. 1991) (holding “any period of
delay directly attributable to the accused tolls the limitation period of §
5553(e)”).
____________________________________________
3
Prior to January 28, 2005, 42 Pa.C.S. § 5553(e) provided that summary
prosecution for a vehicle violation must be completed within two years from
commission of the offense.
-5-
J-S34026-15
Here, the time span between the issuance of the commission of the
offense on February 5, 2011, and the date scheduled for the de novo trial,
August 11, 2014, is a little more than three years and six months. Boney
argues the delay was due to the Commonwealth’s failure to transport him
from state prison where he was serving a 16-to-36 month sentence,
following his March 2, 2012 prosecution on unrelated charges by the same
prosecutor. We find this argument unpersuasive.
Initially, delay in this case occurred in the magisterial district court
where Boney was not convicted by the district judge until February 3, 2012,
almost a year after the February 5, 2011 traffic offense. The docket
transcript from the magisterial district court, which is included in the
certified record, reflects that a summary trial was scheduled for June 30,
2011, but was continued because “Defendant Failed to Appear – Good
Cause.” Boney has offered no evidence that he objected to the continuance.
The docket transcript also shows a summary trial was scheduled for January
31, 2012, and continued for the reason stated as “Other.” As mentioned
above, Boney was convicted on February 3, 2011.
On this record, we conclude that the delay between the June 30, 2011,
and January 31, 2012 scheduled summary trials, was “directly attributable”4
to Boney’s conduct — i.e., his failure to appear for the June 30, 2011
____________________________________________
4
Quinn, supra, 592 A.2d at 1317.
-6-
J-S34026-15
summary trial. Therefore, given that the approximately three-year-six-
month time period between February 5, 2011, and August 11, 2014, was
tolled by this six-month-plus delay, we conclude Boney’s summary
proceeding was completed within the three year limitation period of Section
5553(e). Consequently, we reject Boney’s claim that his due process rights
were violated in this case.
Accordingly, we affirm.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/14/2015
-7-