Com. v. Way, C. ( 2019 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
CLIFFORD WAY
Appellant No. 239 EDA 2018
Appeal from the PCRA Order December 18, 2017
In the Court of Common Pleas of Philadelphia County
Criminal Division at No: CP-51-CR-0708111-2006
BEFORE: LAZARUS, J., STABILE, J., and McLAUGHLIN, J.
MEMORANDUM BY STABILE, J.: FILED FEBRUARY 28, 2019
Appellant, Clifford Way, appeals from an order dismissing his petition
under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-46. We
vacate and remand for further proceedings.
The PCRA court described the factual history of this case as follows:
On the morning of June 2, 2006, [Appellant], Clifford Way, had a
verbal confrontation with the victim, an ex-girlfriend, which
devolved into a physical altercation. [Appellant] pulled the victim
into his vehicle, where he used a knife to cut the victim’s neck and
stab her in her left shoulder. Then he threatened to kill her. The
victim managed to persuade [Appellant] to spare her life and take
her to Temple University Hospital, where she informed the trauma
room staff of her ordeal. Police arrested [Appellant] outside the
hospital.
PCRA Court Opinion, 3/16/18, at 1.
Appellant was charged with aggravated assault (18 Pa.C.S.A.
§2702(a)), kidnapping for ransom (18 Pa.C.S.A. § 2901(a)(1)), attempted
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murder (18 Pa.C.S.A. § 901(a)), possession of an instrument of crime (18
Pa.C.S.A. § 907(a)), terroristic threats (18 Pa.C.S.A. § 2706(a)(1)), unlawful
restraint causing serious bodily injury (18 Pa.C.S.A. § 2902(a)(1)), simple
assault (18 Pa.C.S.A. § 2701(a)), recklessly endangering another person
(“REAP”) (18 Pa.C.S.A. § 2705) and false imprisonment (18 Pa.C.S.A.
§ 2903(a)). On July 20, 2006, Appellant was held for court on all charges
following a preliminary hearing.
On March 10, 2009, over two and half years after his arrest, and after
many continuances, Appellant waived his right to a jury trial and proceeded
to a bench trial. The court found Appellant guilty of aggravated assault,
kidnapping, terroristic threats, simple assault, possession of an instrument of
crime, unlawful restraint, REAP and false imprisonment. On May 20, 2009,
the court sentenced Appellant to 10-20 years’ imprisonment for both
aggravated assault and kidnapping, to be served concurrently, followed by
consecutive terms of five years’ probation for possession of an instrument of
crime, terroristic threats and unlawful restraint. The court did not impose
further punishment for simple assault, REAP or false imprisonment.
No direct appeal followed. On January 21, 2010, Appellant filed a PCRA
petition alleging ineffective assistance of counsel for failure to file a direct
appeal. On October 12, 2012, the court granted Appellant’s petition and
reinstated his appellate rights nunc pro tunc. Appellant filed a timely notice
of appeal.
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On direct appeal, Appellant argued that the trial court erred in denying
his motion to dismiss under Pa.R.Crim.P. 600 and abused its discretion in
imposing the maximum sentence for aggravated assault and kidnapping. On
May 9, 2014, this Court affirmed his judgment of sentence at 3152 EDA 2012.
With regard to his Rule 600 motion, we reasoned:
[Appellant] filed a pro se motion to dismiss pursuant to Rule 600.
However, the motion is not contained in the certified record, and
the court did not hold an evidentiary hearing with respect to the
motion or rule upon it. Moreover, it appears that [Appellant] was
represented by counsel at the time. Therefore, this document was
a legal nullity . . . Furthermore, neither [Appellant] nor his counsel
subsequently raised the Rule 600 motion with the trial court.
Accordingly, [Appellant’s] claim based upon a Rule 600 violation
is waived.
Commonwealth v. Way, 3152 EDA 2012, at 5 (Pa. Super., filed May 9,
2014) (unpublished memorandum). We also held that Appellant waived his
sentencing issue by failing to challenge the length of his sentence at his
sentencing hearing or in a post-sentence motion. Id. at 6. Appellant
subsequently filed a petition for allowance of appeal to the Supreme Court,
which denied his petition on October 23, 2014.
On February 3, 2015, Appellant timely filed a PCRA petition. The court
appointed PCRA counsel, who filed an amended PCRA petition on April 25,
2016. On December 18, 2017, the PCRA court denied Appellant’s petition
without holding a hearing. Appellant filed a timely appeal, and both Appellant
and the PCRA court complied with Pa.R.A.P. 1925.
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Appellant raises three issues on appeal: (1) trial counsel was ineffective
for failing to file a motion for dismissal under Pa.R.Crim.P. 600, (2) trial
counsel was ineffective for failing to file a post-sentence motion for
reconsideration of Appellant’s sentence, and (3) the trial court erred by failing
to hold an evidentiary hearing on Appellant’s PCRA petition. We combine
issues (1) and (3) and hold that further factfinding is necessary on Appellant’s
Rule 600 claim.
This Court’s standard of review regarding an order dismissing a petition
under the PCRA is whether the determination of the PCRA court is supported
by the evidence of record and is free of legal error. Commonwealth v.
Halley, 870 A.2d 795, 799 n.2 (Pa. 2005). We will not disturb the PCRA
court’s findings unless there is no support for the findings in the certified
record. Commonwealth v. Carr, 768 A.2d 1164, 1166 (Pa. Super. 2001).
To obtain PCRA relief for ineffective assistance of counsel, the petitioner
must establish (1) that the claim is of arguable merit; (2) that counsel had no
reasonable strategic basis for his or her action or inaction; and, (3) that, but
for the errors and omissions of counsel, there is a reasonable probability that
the outcome of the proceedings would have been different. Commonwealth
v. Zook, 887 A.2d 1218, 1227 (Pa. 2005). The petitioner bears the burden
of proving all three prongs of this test. Commonwealth v. Meadows, 787
A.2d 312, 319–20 (Pa. 2001). “Counsel is presumed to be effective and
Appellant has the burden of proving otherwise.” Commonwealth v.
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Holloway, 739 A.2d 1039, 1044 (Pa. 1999). “A defendant’s failure to satisfy
even one of the three requirements results in the denial of relief.”
Commonwealth v. Miller, 987 A .2d 638, 649 (Pa. 2009).
When the PCRA petition or the Commonwealth’s answer raises material
issues of fact, the PCRA court shall order a hearing. Pa.R.Crim.P. 908(A)(2).
The court should hold an evidentiary hearing when the petitioner sets forth
sufficient facts upon which the court can conclude that trial counsel may have
been ineffective. Commonwealth v. Pettus, 424 A.2d 1332, 1335 (Pa.
1981).
Rule 600 was amended extensively in 2013, so we will apply the version
of Rule 600 in effect during pre-trial and trial proceedings in Appellant’s case.
It would be improper to examine trial counsel’s performance under standards
not yet in force. Commonwealth v. Smith, 675 A.2d 1221, 1233 (Pa. 1996)
(attorney will not be deemed ineffective for failing to predict change in the
law).
Our Supreme Court observed that the pre-2013 version of Rule 600 “has
the dual purpose of both protecting a defendant's constitutional speedy trial
rights and protecting society’s right to effective prosecution of criminal cases.”
Commonwealth v. Bradford, 46 A.3d 693, 701 (Pa. 2012). To protect the
defendant’s speedy trial rights, Rule 600 requires dismissal of all charges if
the Commonwealth fails to bring him to trial within 365 days of the filing of
the complaint (the “mechanical run date”), subject to certain exclusions for
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delays attributable to the defendant, e.g., the unavailability of the defendant
or defense counsel. Pa.R.Crim.P. 600(A)(3), (G). However,
even when the defendant has not been tried within the aforesaid
365 days, and even when those days appear to be attributable to
the Commonwealth, a Rule 600 motion shall nevertheless be
denied if the Commonwealth proves that it acted with due
diligence in attempting to try the defendant timely and that the
circumstances occasioning the delay were beyond the
Commonwealth's control . . . .
Because the Commonwealth cannot control the calendar of a trial
court, delay occasioned by the court's unavailability is usually
excusable. However, the Commonwealth may, under some
circumstances (e.g. a prolonged judicial absence), have a duty to
seek other courtrooms to try the case. The extent of this duty
depends on the specifics of each case. The guiding principle is ...
that the Commonwealth must exercise due diligence by putting
forth a reasonable effort in light of the particular case facts.
Along similar lines, delays caused by administrative decisions of
the court, decisions over which the Commonwealth has no control,
are generally excused.
Commonwealth v. Riley, 19 A.3d 1146, 1148–49 (Pa. Super. 2011).
Here, the complaint against Appellant was filed on June 2, 2006, making
the mechanical run date June 2, 2007. The PCRA court wrote:
959 days elapsed from the date the complaint was filed against
[Appellant] on July 7, 2006 until the trial commenced on March
11, 2009. [Appellant] admits that only 80 days of this delay are
directly attributable to the Commonwealth, while 356 are
attributable to the defense. Memorandum of Law, Amended
PCRA, 4/25/2016, at 11. The remaining 523 days are attributable
to this Court. Thus, the question becomes whether the
Commonwealth exercised due diligence in bringing the case to
trial. [Appellant] argues that the Commonwealth did not exercise
due diligence because it was required to request that the case be
reassigned to a different judge when this Court's calendar caused
a delay. This assertion is incorrect. Due diligence “includes,
among other things, listing a case for trial prior to the run date,
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preparedness for trial within the run date, and keeping adequate
records to ensure compliance with Rule 600,” all of which the
Commonwealth did in the instant case. [Commonwealth v.]
Ramos, 936 A.2d [1096,] 1102 [(Pa. Super. 2007)]. The
Commonwealth is only required to seek reassignment to a
different judge when extraordinary circumstances are present.
[Riley], 19 A.3d at 1149 . . . [Appellant] does not allege or show
any such extraordinary circumstances here. Instead, he implies
that the Commonwealth is required to seek reassignment of a case
every time the trial court is busy. Such a rule would be
impracticable, and undermine the very concept of “extraordinary
circumstances.” The Commonwealth consistently requested the
earliest possible trial date, and exercised due diligence in bringing
this case to trial.
PCRA Court Opinion, 3/16/18, at 6.
We recognize that this is a serious case, and that Appellant does not
dispute committing reprehensible acts of violence. Even so, we are
constrained to conclude that further proceedings are necessary on Appellant’s
Rule 600 argument. The PCRA court summarily declared that 523 days of
judicial delay—almost 1½ years—did not violate Appellant’s speedy trial rights
because the trial court was “busy” and the Commonwealth “consistently
requested the earliest possible [trial] date.” Id. In its present state, the
record does not support this finding. Trial was continued over twenty times
without any explanation on the docket for the vast majority of these
continuances or any mention whether the Commonwealth requested the
earliest possible trial date or acted with due diligence. Thus, we are unable
to engage in a meaningful appellate review of Appellant’s PCRA claim. The
PCRA court’s Rule 1925(a) opinion here lacks the necessary findings of fact
with respect to the Rule 600 claim. Specifically, its Rule 1925(a) opinion does
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not address all relevant periods in analyzing the merits of Appellant’s Rule 600
claim. The docket here reveals a lot of docket activity, including continuances,
from the time the criminal complaint was filed until the time of trial. Given
the current posture of this case, on collateral review, we are constrained to
vacate the PCRA court’s order and remand this case to the PCRA court to
conduct an evidentiary hearing to render the necessary findings of fact with
respect to the merits, if any, of Appellant’s Rule 600 claim. In particular, we
direct the PCRA court to review thoroughly the docket in this case to resolve
all delays from the time of the filing of the complaint until the time of trial.
Specifically, the PCRA court shall determine whether the delay was occasioned
by Appellant, the Commonwealth, or the judiciary.
Because we remand for further proceedings on the Rule 600 issue, we
need not address Appellant’s claim of ineffectiveness relating to the length of
his sentence.
Order vacated. Case remanded. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/28/19
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