Com. v. Barksdale, L. ( 2015 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
LARRY BARKSDALE
Appellant No. 2353 EDA 2014
Appeal from the Judgment of Sentence July 15, 2014
In the Court of Common Pleas of Montgomery County
Criminal Division at No(s): CP-46-CR-0005411-2012
BEFORE: ALLEN, J., MUNDY, J., and FITZGERALD, J.*
MEMORANDUM BY MUNDY, J.: FILED SEPTEMBER 04, 2015
Appellant, Larry Barksdale, appeals from the July 15, 2014 judgment
of sentence of 90 days to six months’ incarceration, imposed after the trial
court found him guilty in a bench trial of driving under the influence of
alcohol (DUI), general impairment.1 After careful consideration, we affirm.
We summarize the general procedural history of this case as follows.
In connection with events occurring on April 19, 2012, Officer Shaun Kozak
of the Plymouth Township Police Department charged Appellant with DUI by
criminal complaint filed May 23, 2012. Following a preliminary hearing, the
case was bound over to the Court of Common Pleas of Montgomery County
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*
Former Justice specially assigned to the Superior Court.
1
75 Pa.C.S.A. § 3802(a)(1).
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on July 17, 2012. Following numerous continuances, listings for pretrial
conferences, and other proceedings, Appellant, on April 28, 2014, filed a
motion to dismiss, alleging violation of his speedy trial rights under
Pennsylvania Rule of Criminal Procedure 600. The trial court held a hearing
on Appellant’s motion on June 19, 2014. That same day, the trial court
denied Appellant’s motion to dismiss. A bench trial was conducted on July
15, 2014, and the trial court found Appellant guilty of DUI and sentenced
him as aforesaid.
On August 14, 2014, the trial court granted Appellant’s privately
retained counsel’s petition to withdraw. That same day, Appellant filed a
timely pro se notice of appeal. Although not ordered to do so, Appellant
filed a pro se concise statement of errors complained of on appeal pursuant
to Pennsylvania Rule of Appellate Procedure 1925(b) contemporaneously
with his notice of appeal. The trial court issued its Rule 1925(a) opinion on
September 15, 2014.
Noting that counsel had been permitted to withdraw, and Appellant
was proceeding pro se absent any hearing, the Commonwealth petitioned
this Court on December 12, 2014, for remand to the trial court for a
Grazier2 hearing or appointment of counsel. We granted the
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2
Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998) (holding the trial
court must ascertain on the record that a defendant’s decision to proceed
pro se is knowing, intelligent, and voluntary).
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Commonwealth’s petition on January 26, 2015. Thereafter, Appellant’s
former private counsel entered his appearance with this Court on February
24, 2015.
On appeal, Appellant raises the following issues for our review.
I. Whether the trial court abused its discretion
when it denied Appellant’s Petition for Dismissal of
Charges Pursuant to Pa.R.Crim.P. 600 because it
improperly calculated the period of time within which
the Commonwealth had to bring Appellant to trial
pursuant to Rule 600?[3]
II. Whether the trial court abused its discretion
when it determined that the periods of time
Appellant was not transported to court from a state
correctional institute constituted excusable delay,
and that the Commonwealth exercised reasonable
efforts to bring [Appellant] to trial[?]
Appellant’s Brief at 4.
In addressing these issues, we adhere to the following standard and
scope of review. “When reviewing a trial court’s decision in a Rule 600 case,
an appellate court will reverse only if the trial court abused its discretion.”
Commonwealth v. Bradford, 46 A.3d 693, 700 (Pa. 2012).
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3
The trial court reviewed Appellant’s motion to dismiss under the version of
Rule 600 in effect at the time of the filing of the motion. On July 1, 2013,
the former rule was rescinded and a new Rule 600 was adopted which
“clarified the provisions of the rule in view of the long line of cases that have
construed the rule.” Pa.R.Crim.P. 600, cmt. The new rule consolidates the
former distinction between excludable and excusable time in the calculation
of an adjusted run date. Id. at 600(C)(1). Appellant acknowledges that the
analysis under either version of the rule would be essentially the same.
Appellant’s Brief at 11. Our citations in the body of this memorandum are,
therefore, to the former Rule.
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Judicial discretion requires action in conformity
with law, upon facts and circumstances judicially
before the court, after [a] 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.
…
So long as there has been no misconduct on
the part of the Commonwealth in an effort to evade
the fundamental speedy trial rights of an accused,
Rule 600 must be construed in a manner consistent
with society’s right to punish and deter crime. In
considering these matters …, courts must carefully
factor into the ultimate equation not only the
prerogatives of the individual accused, but the
collective right of the community to vigorous law
enforcement as well.
Commonwealth v. Peterson, 19 A.3d 1131, 1134 (Pa. Super. 2011) (en
banc), affirmed, 44 A.3d 655 (Pa. 2012) (citations omitted).
The courts of this Commonwealth employ an initial three-step analysis
to determine whether Rule 600 requires dismissal of the charges against a
defendant.
The first step in determining whether a
technical violation of Rule 600 […] has occurred is to
calculate the “mechanical run date.” The mechanical
run date is the date by which trial must commence
under the relevant procedural rule. [T]he
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mechanical run date is ascertained by counting the
number of days from the triggering event - e.g., the
date on which … the criminal complaint was filed - to
the date on which trial must commence under Rule
[600]. Pa.R.Crim.P. [600(A)(3)].
Commonwealth v. Preston, 904 A.2d 1, 11 (Pa. Super. 2006) (internal
citations omitted), appeal denied, 916 A.2d 632 (Pa. 2007). In the second
step, we must “determine whether any excludable time exists pursuant to
Rule 600(C).” Commonwealth v. Ramos, 936 A.2d 1097, 1103 (Pa.
Super. 2007), appeal denied, 948 A.2d 803 (Pa. 2008). Then, in the third
step, “[w]e add the amount of excludable time, if any, to the mechanical run
date to arrive at an adjusted run date.” Id. It is well settled that any delay
occasioned by a defendant is excludable time in the calculation of the
adjusted run date. Pa.R.Crim.P. 600(C)(2), (3); Preston, supra.Furthermore, delays not attributable to a defendant but where the
Commonwealth is found to have acted with due diligence in attempting to
commence a timely trial but was prevented by circumstances beyond its
control, is considered excusable time and likewise added to the mechanical
run date. Pa.R.Crim.P. 600(G); accord Commonwealth v. Wholaver, 989
A.2d 883, 899 (Pa. 2010), cert. denied, Wholaver v. Pennsylvania, 562
U.S. 933 (2010). “‘Excusable delay’ is not expressly defined in Rule 600,
but the legal construct takes into account delays which occur as a result of
circumstances beyond the Commonwealth’s control and despite its due
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diligence.” Commonwealth v. Hunt, 858 A.2d 1234, 1241 (Pa. Super.
2004), appeal denied, 875 A.2d 1073 (Pa. 2005).
“Due-diligence is a fact-specific concept that is
determined on a case-by-case basis. Due diligence
does not require perfect vigilance and punctilious
care, but rather a showing by the Commonwealth
that a reasonable effort has been put forth.”
Commonwealth v. Booze, 953 A.2d 1263, 1273
(Pa. Super. 2008) (quotations and quotation marks
omitted). “Judicial delay may justify postponing trial
beyond the adjusted run date if the Commonwealth
was prepared to commence trial prior to the
expiration of the mandatory period but the court was
unavailable because of ‘scheduling difficulties and
the like.’” Preston, [supra] at 14 (citation
omitted).
Commonwealth v. Lynch, 57 A.3d 120, 124 (Pa. Super. 2012), appeal
denied, 63 A.3d 1245 (Pa. 2013). Any time prior to trial, a defendant may
move the trial court for dismissal of the charges if the Commonwealth has
violated the Rule. Pa.R.Crim.P. 600(G).
At the June 19, 2014 Rule 600 hearing, the trial court made the
following findings as reiterated in its Rule 1925(a) opinion.
A. May 23, 2012 to October 24, 2012: Both
parties conceded that the first 154 days count
against the Commonwealth. As a result, [the trial
c]ourt determined this period of time goes against
the Commonwealth.
B. October 24, 2012 to January 15, 2013:
This period of time is excludable due to concession
by Appellant. As a result, [the trial c]ourt
determined this period of time goes against
Appellant.
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C. January 15, 2013 to April 17, 2013:
Here, [the trial c]ourt determined this period of time
counts against the Commonwealth.
D. April 17, 2013 [to] July 8, 2013: A guilty
plea hearing was scheduled to occur on April 17,
2013. However, on April 17, 2013, Appellant
changed his mind about pleading guilty and
requested this matter be placed back on the Pre-Trial
Conference list. Appellant also signed a Rule 600
waiver and conceded that this period is excludable.
As a result, [the trial c]ourt determined this period of
time goes against Appellant.
E. July 8, 2013 [to] October 29, 2013: [The
trial c]ourt determined this period counts against the
Commonwealth, because there is nothing in the
record to show otherwise.
F. October 29, 2013 [to] December 12,
2013: [The trial c]ourt determined this period of
time counts against Appellant because his counsel
requested a continuance on October 29, 2013.
G. December 12, 2013 [to] February 11,
2014: [The trial c]ourt determined this period of
time goes against the Commonwealth.
H. February 11, 2014 [to] June 1, 2014:
[The trial c]ourt determined that this period of time
is an excusable delay due to the police officer’s
unavailability.
Trial Court Opinion, 9/15/14, at 7-8; see also N.T., 6/19/14, at 51-55.
In his first issue, Appellant contends the trial court, based on its own
findings, miscalculated the adjusted run date under Rule 600. Appellant’s
Brief at 11. Specifically, Appellant contends it was error for the trial court
to treat Appellant’s April 17, 2013 waiver as creating a new start date for
calculating Rule 600’s 365-day period, rather than merely extending the run
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date from April 17, 2013, to the next scheduled event, in this case to July 8,
2013. Id. at 14; See Trial Court Opinion, 9/15/14 at 8; see also N.T.,
6/19/14, at 52. The trial court reasons as follows. “Based on the above
time breakdown, Appellant signed a Rule 600 waiver on April 17, 2013. As
such, the Commonwealth had 365 days from the date Appellant signed the
Rule 600 waiver to bring him to trial. This Court computed that day number
304 started on February 11, 2014….” Trial Court Opinion, 9/15/14, at 8.
Appellant contends “[t]he trial court’s arbitrary decision to begin the
365 day period within which [Appellant] should have been tried on April 17,
2013, ignores the previous 329 days that had elapsed since the complaint
was filed, 246 of which the trial court determined did not constitute
excludable or excusable delay” Appellant’s Brief at 14. The Commonwealth
concedes this was error. “The Commonwealth concedes that the trial court
improperly calculated the adjusted run date in its opinion because it used
the date of [Appellant’s] waiver as its start-date.” Commonwealth’s Brief at
5 n.2. We agree.
In assessing a Rule 600 claim, the court must
exclude from the time for commencement of trial
any periods … for which he expressly waived his
rights under Rule 600. … If the defense does
indicate approval or acceptance of the continuance,
the time associated with the continuance is
excludable under Rule 600 as a defense request.
Hunt, supra at 1241 (citations omitted, emphasis added).
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The trial court’s miscalculation resulted in an improperly stated
adjusted run date. Based on the specific findings of the trial court, the
mechanical run date under Rule 600 is 365 days from the date of the filing
of the criminal complaint on May 23, 2012, or May 23, 2013. Trial Court
Opinion, 9/15/14, at 7. The trial court found three periods of excludable
delay based on Defense-requested continuances and or Rule 600 waivers.
The first of these was the 83 days from October 24, 2012, to January 15,
2013, which brought the adjusted run date to August 14, 2013. Id. The
second excludable period was the 82 days from April 17, 2013 to July 8,
2013, which brought the adjusted run date to November 4, 2013. Id. The
last of these was the 44 days from October 29, 2013 to December 12, 2013,
which brought the adjusted run date to December 18, 2013. Id. The
Commonwealth did not bring Appellant to trial by that date. Thus, the trial
court’s conclusion, based on its express findings that, “day number 304
started on February 11, 2014” is erroneous.4 Rather, based on a proper
calculation of the trial court’s expressly found excludable time, as of
February 11, 2014, Appellant’s trial was already 55 days past the adjusted
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4
The trial court also determined there was one period of excusable delay,
i.e., the 111 days from February 11, 2014 to June 1, 2014 due to the
unavailability of Officer Kozak, who was on injury leave during that time.
Trial Court Opinion, 9/15/14, at 8. Appellant does not challenge this finding.
Additionally, Appellant raised no renewed challenge to the 44-day period
from June 1, 2014, to July 15, 2014, the date of trial, which we deem is also
excludable or excusable. Accordingly, we do not need to review the periods
after February 11, 2014 in the context of the Commonwealth’s Rule 600
compliance in this case.
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run date of December 18, 2013. This is calculated by adding the 209 days
of identified excludable time as of February 11, 2014 to the mechanical run
date of May 25, 2013.
Based on the foregoing, we agree with the parties that the trial court
erred. See Hunt, supra. Accordingly, to prevail, it was incumbent upon
the Commonwealth to demonstrate additional excludable or excusable time
that would extend the adjustable run date beyond February 11, 2014. This
leads us to Appellant’s second issue.
In his second issue, Appellant asserts that the trial court’s general
conclusion that the Commonwealth acted with due diligence in timely
commencing trial is unsupported by the evidence adduced at the Rule 600
motion hearing. Appellant’s Brief at 15-16. “There is nothing in the record
to support the trial court’s determination that the Commonwealth exercised
reasonable diligence in bringing [Appellant] to trial, and as such, its decision
was arbitrary and baseless and constituted an abuse of discretion.” Id. at
16. Specifically, with reference to delays attributable to the failure to
transport Appellant to the courthouse on several occasions, Appellant
contends as follows.
The Commonwealth was aware that [Appellant] was
an inmate in a state correctional institution, and that
on several occasions[] [Appellant] was not
transported to court. [Appellant’s] previous counsel
described the situation as “a chronic problem of him
not being brought down from the state correctional
institution.” Nevertheless, the Commonwealth failed
to take any action to secure [Appellant’s] presence in
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time for trial, such as requesting a writ be issued to
transport [Appellant], or arranging housing in the
Montgomery County Correctional Facility, or
coordinating a video conference with the institution
where [Appellant] was incarcerated.
Id. at 18.
The Commonwealth argues to the contrary that this Court may still
affirm the trial court’s ruling based on other, more general findings by the
trial court. Commonwealth’s Brief at 5 n.2. “[The trial court’s] error, in
itself, is not reversible because the record demonstrates that the trial court
reached the proper conclusion, even though it used an improper method.
See Commonwealth v. Miller, 787 A.2d 1036, 1038 (Pa. Super. 2001)
([the Superior Court] Court may affirm on any grounds).” Id.In addition to the specific findings cited above, the trial court made the
following findings.
[T]here is no evidence in the record of any conduct
on the part of the Commonwealth calculated to
evade Appellant’s speedy trial rights. The record
demonstrates the Commonwealth put forth
reasonable efforts to bring Appell[ant] to trial within
the limits set by Rule 600. The record also
demonstrates that most of the circumstances
occasioning the postponement, such as Appellant’s
transportation to the Courthouse, were beyond the
control of the Commonwealth. Based on the facts of
this case, [the trial c]ourt concluded that the
Commonwealth exercised due diligence in bringing
Appellant to trial and the circumstances that caused
the delay of the trial were excusable.
Trial Court Opinion, 9/15/14, at 9. Having already concluded, albeit based
on a faulty calculation, that the adjusted run date had not been reached, the
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trial court did not specifically identify and quantify these additional periods of
excusable delay or include them in its adjusted run date calculation.
Nevertheless, we conclude the trial court’s findings are supported by the
record and demonstrate additional excusable delay that supports the trial
court’s ultimate determination that no Rule 600 violation occurred.
At the Rule 600 motion hearing, Appellant testified that there were
several times he was transported from the State Correctional Facility (SCI)
at Dallas to SCI Graterford without being further transported to the
Montgomery County Courthouse. N.T., 6/19/14, at 31. The record reveals
that the trial court issued at least 18 transport orders for Appellant’s case
prior to the Rule 600 motion hearing.5 The Commonwealth notes in
particular that “[o]n July 19, 2013, defendant was not transported to the
courthouse despite the trial court’s transportation order. Accordingly, the
time from the transportation failure until his next appearance is …
excusable.” Commonwealth’s Brief at 10-11, citing Commonwealth v.
Mines, 797 A.2d 963 (Pa. Super. 2002), appeal denied, 812 A.2d 1229 (Pa.
2002).
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5
These include orders to transport Appellant from the SCI to the
Montgomery County Courthouse for appearances at hearings or conferences
scheduled for September 24, 2012, October 24, 2012, January 15, 2013,
March 15, 2013, July 8, 2013, July 9, 2013, July 19, 2013, October 18,
2013, October 21, 2013, November 7, 2013, December 12, 2013, December
10, 2013, February 6, 2014, February 10, 2014, February 11, 2014, March
18, 2014, and June 19, 2014, respectively.
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In Mines, we held “it is not within the control of either the prosecutor
or the trial court to bring every defendant to the courtroom when desired.”
Mines, supra at 965. Accordingly, the Mines Court held that delays
occasioned by the absence of an incarcerated defendant despite the
“issuance of a bringdown and writ for the defendant’s appearance are not
chargeable to the Commonwealth.” Id. Judge Klein, writing for the
Majority, further opined as follows.
As one with twenty-eight years of experience as a
trial judge in Philadelphia, I certainly sympathize
with the problems of judges and prosecutors trying
to obtain the presence of an incarcerated defendant
for trial who is in the state prison system on another
case. While it is difficult in an individual case to
ascertain which of a number of agencies are at fault,
the possibilities generally fall with the Clerk of
Quarter Sessions, the Sheriff, and the state prison
system. These are all independent agencies[]. None
report to the prosecutor or the court.
Id. at 966.
The cases cited by Appellant for the proposition that the
Commonwealth is responsible for taking action to secure an incarcerated
defendant’s presence for court proceedings did not involve the factual
scenario here, where the trial court issued an order to transport Appellant.
See Appellant’s Brief at 17, citing, Commonwealth v. Colon, 87 A.3d 352(Pa. Super. 2014), Commonwealth v. Haynes, 488 A.2d 602 (Pa. Super.
1985), Commonwealth v. Pichini, 454 A.2d 609 (Pa. Super. 1982), and
Commonwealth v. Martin, 371 A.2d 903 (Pa. Super. 1977). We conclude
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the trial court’s finding that the Commonwealth acted with due diligence in
this case is supported by the record, and the delay occasioned by the failure
to bring Appellant to the courthouse despite the trial court’s order
constitutes excusable time for purposes of calculating the adjusted run date
under Rule 600.
In this instance, the excusable time from July 19, 2013 to the next
court date of October 18, 2013 is 91 days. By adding the 209 days of
previously identified excludable time, and the 91 days we have determined
are excusable under Rule 600, to the mechanical run date of May 23, 2013,
the adjusted run date as of February 11, 2014, becomes March 19, 2014.
Because there is no dispute that all time after February 11, 2014 is either
excludable or excusable, the adjusted run date as of April 28, 2014, the date
of Appellant’s motion to dismiss, becomes June 3, 2014. Accordingly, the
trial court did not err in concluding a Rule 600 violation did not occur.
For all the foregoing reasons, we conclude the trial court did not abuse
its discretion by denying Appellant’s motion to dismiss for violation of Rule
600. See Bradford, supra. Accordingly, we affirm the July 15, 2014
judgment of sentence.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/4/2015
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