Com. v. Schmidt, J. ( 2021 )

J-S27003-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JAMES RICHARD SCHMIDT :
:
Appellant : No. 109 WDA 2021
Appeal from the Judgment of Sentence Entered January 14, 2021
In the Court of Common Pleas of Butler County Criminal Division at
No(s): CP-10-CR-0000659-2019
BEFORE: OLSON, J., NICHOLS, J., and COLINS, J.*
MEMORANDUM BY OLSON, J.: FILED: December 7, 2021
Appellant, James Richard Schmidt, appeals from the judgment of
sentence entered on January 14, 2021, following his guilty plea to one count
of sexual abuse of children. 18 Pa.C.S.A. § 6312(d). We affirm.
We briefly summarize the facts and procedural history of this case as
follows. On December 3, 2020, Appellant entered a negotiated guilty plea to
the aforementioned offense. The Commonwealth’s recommended sentence,
which was incorporated into the parties’ agreement, included “a term of
intermediate punishment of 24 months with the first six months on
[e]lectronic [m]onitoring, the balance on restorative sanctions[,]” plus any
court ordered fines and restitution. N.T., 12/3/2020, at 3. The
Commonwealth noted the crime also constituted a Tier One offense under the
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* Retired Senior Judge assigned to the Superior Court.
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Sexual Offender Registration and Notification Act (SORNA) and Appellant
would be required to register as a sex offender for 15 years. Id. at 3, 6-7.
The trial court accepted the plea agreement, ordered a report from the Sexual
Offenders Assessment Board (SOAB), and scheduled sentencing for January
2, 2020. Id. at 8. When the SOAB did not provide a court-ordered report to
the Commonwealth, the trial court entered an order on January 3, 2020
generally continuing the matter “to be rescheduled upon receipt of the report.”
Trial Court Order, 1/3/2020, at 1. The Commonwealth received the SOAB
report on February 20, 2020. No further action was taken by the trial court
or the Commonwealth at that time.
On November 5, 2020, Appellant filed a motion to dismiss the charge
against him. Citing Pa.R.Crim.P. 704, Appellant alleged that the
Commonwealth failed to exercise due diligence in sentencing him in a timely
fashion. The trial court held a hearing on Appellant’s motion to dismiss on
December 4, 2020. Appellant argued that he was “on pre-trial supervision as
part of his bond” for two years and “if he had been sentenced, he would have
at least a year already into his sentence [and h]is house arrest period would
have been done.” N.T., 12/4/2020, at 3. Appellant averred that despite his
compliance with bond requirements, “he [was] not entitled to credit towards
his sentence [and,] therefore, in essence denied the benefit of his [] plea
agreement.” Id. In response, the Commonwealth argued that Appellant was
not prejudiced because he rejected the Commonwealth’s subsequent offer to
reduce his negotiated sentence “to 12 months’ probation to essentially give
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[Appellant] credit for the 12 months he[ was] on pre-trial [supervision] since
his plea date.” Id. at 4. Finding no prejudice to Appellant, the trial court
denied Appellant’s motion to dismiss and scheduled sentencing. Id. at 5. The
trial court entered an order denying Appellant’s motion to dismiss on
December 8, 2020. On January 14, 2021, the trial court held a hearing and
sentenced Appellant “pursuant to the plea agreement[.]” N.T., 1/14/2021, at
4. The trial court filed a sentencing order the same day. This timely appeal
resulted.1
On appeal, Appellant presents the following issue for our review:
Whether the trial court erred as a matter of law[] or abused its
discretion by denying Appellant’s motion to dismiss pursuant to
Pa.R.Crim.P. 704?
Appellant’s Brief at 10 (complete capitalization omitted).
Pennsylvania Rule of Criminal Procedure 704 provides that “sentence in
a court case shall ordinarily be imposed within 90 days of conviction or the
entry of a plea of guilty[.]” Pa.R.Crim.P. 704(A)(1). “When the date for
sentencing in a court case must be delayed, for good cause shown, beyond
the time limits set forth in this rule, the judge shall include in the record the
specific time period for the extension.” Pa.R.Crim.P. 704(A)(2). “Failure to
sentence within the time specified in paragraph (A) may result in the discharge
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1 Appellant filed a notice of appeal on January 15, 2021. On January 21,
2021, the trial court ordered Appellant to file a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b). Appellant complied
timely on January 25, 2021. The trial court issued an opinion pursuant to
Pa.R.A.P. 1925(a) on February 25, 2021.
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of the defendant.” Pa.R.Crim.P. 704, Comment, citing Commonwealth v.
Anders, 725 A.2d 170 (Pa. 1999) (discharge is appropriate remedy for
violation of Rule 704 time limits, but only if the defendant can demonstrate
that the delay in sentencing was prejudicial to the defense).
We have previously determined:
[…When considering] whether discharge is appropriate, the trial
court should consider: (1) the length of the delay falling outside
Rule 704's 90-day–and–good–cause provisions; (2) the reason for
the improper delay; (3) the defendant's timely or untimely
assertion of his rights; and (4) any resulting prejudice to the
interests protected by his speedy trial and due process rights.
Prejudice should not be presumed by the mere fact of an untimely
sentence.
Commonwealth v. Fox, 953 A.2d 808, 811–812 (Pa. Super. 2008) (internal
citations omitted).
In weighing the prejudice that emerges from a delay in the imposition
of a criminal sentence, our Supreme Court has stated:
prejudice to the defendant, must be assessed within the context
of those interests which the speedy trial right protects: (1)
preventing oppressive pretrial incarceration; (2) minimizing the
accused's anxiety and concern; and (3) limiting the impairment of
the defense. The last consideration, impairment of or prejudice
to the defense, represents the most serious of these three
concerns, because the inability of a defendant adequately to
properly prepare his case for trial skews the fairness of the entire
system.
Commonwealth v. DeBlase, 665 A.2d 427, 436 (Pa. 1995), citing Barker
v. Wingo, 407 U.S. 514, 532 (1972).
“Because evidentiary hearings are necessary under Pa.R.Crim.P. 704, it
follows that whether to discharge a defendant [] cannot be a pure question of
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law for de novo review by this Court.” Commonwealth v. Neysmith, 192
A.3d 184, 192 (Pa. Super. 2018). Thus, we have “conclude[d] that whether
discharge is required when sentencing occurs after the 90 days under Rule
704 presents a mixed question of fact and law.” Id. Since Rule 704 requires
“courts to evaluate amorphous concepts such as ‘length of delay,’ ‘good
cause,’ and ‘prejudice[]’ [which] are case-specific and fact-intensive[,] we
[have] conclude[d] that factual aspects predominate this mixed question of
law and fact, and the trial judges sit in the best position to determine the
causes and impacts of delays in their own courtrooms.” Id. “Hence, we defer
to the trial court's judgment on this issue of alleged undue delay and shall
reverse only for an abuse of discretion.” Id. “We have long held that mere
errors in judgment do not amount to abuse of discretion; instead, we look for
manifest unreasonableness, or partiality, prejudice, bias, or ill-will, or such
lack of support so as to be clearly erroneous.” Id. (internal citations and
quotation omitted). “In addition, a trial court abuses its discretion if the law
is overridden or misapplied.” Id. at 193 (internal quotation and citations
omitted). “[O]ur scope of review is limited to the evidence on the record of
the Rule 704 evidentiary hearing and the factual findings of the trial court.
Also, we must view the facts found in the light most favorable to the prevailing
party.” Id.Appellant contends that he encountered unnecessary and unreasonable
delay in sentencing, arguing that the trial court violated Pa.R.Crim.P. 704 in
two ways: 1) failing to provide a specific time-frame for sentencing when
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generally continuing the matter for the preparation of a report from the SOAB;
and, 2) finding Appellant was not prejudiced by the delay. Appellant’s Brief
at 14. Appellant maintains:
[…T]he length of delay falling outside of the 90[-]day time frame
set forth by Pa.R.Crim.P. 704 is substantial. [Appellant] was
ultimately sentence[d] over one year from his original
sentence[ing] date and one year less one month following the
SOAB assessment. No viable reason has been submitted to justify
such a delay. The error began with the trial court’s failure to set
forth a specific time frame for the extension of sentencing and was
followed by the Commonwealth’s seeming complete inattention.
The Commonwealth presented no reason, nor did the trial court
make any finding of good cause for the delay. It was [] Appellant’s
actions in filing a [m]otion to [d]ismiss that was the impetus for
any movement of his case. The trial court found Appellant’s
argument regarding resulting prejudice from the delay
unpersuasive. However, the delay did result in cognizable
prejudice to [] Appellant and therefore, dismissal is the
appropriate remedy.
Id. at 17-18. More specifically, Appellant contends:
[he] had significant limitations placed on him pursuant to the
conditions of pretrial services [while on non-monetary bond].
Those conditions remained in place for almost [two] years,
including one year which was the result of the unnecessary delay
in this matter. Appellant is not entitled to any credit towards his
sentence for that nearly two[-]year time period, but nevertheless,
he diligently reported and complied with probation conditions.
Appellant can never recoup that time. The pretrial conditions are
identical to that of a probation sentence. In essence, Appellant
was serving a probation sentence without having been
sentenced.[2]
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2 Appellant avers that he was required to report to, and follow the instructions
of, the Office of Adult Probation; obtain permission to change residences or
travel outside Butler County; report any contact with law enforcement; abstain
from and submit to testing for alcohol or controlled substance use; relinquish
(Footnote Continued Next Page)
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Id. at 19. Appellant also claims that his inability to begin his sentence and
complete his SORNA registration caused him anxiety and concern and,
therefore, prejudiced him. Id. at 20. Accordingly, Appellant argues that the
trial court erred by denying his motion to dismiss pursuant to Pa.R.Crim.P.
704.
Here, the trial court found that Appellant failed to demonstrate
prejudice.3 Trial Court Opinion, 2/25/2021, at 2. We agree. The trial court
recognized that Appellant was not incarcerated prior to sentencing. Id.
Accordingly, the conditions of his bond and pretrial services did not qualify as
“oppressive pretrial incarceration” under the facts of this case.4 Moreover,
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possession of firearms; authorize searches of his person and property; and
refrain from any unsupervised contact with minors. Appellant’s Brief at 18-
19.
3 We note that the Commonwealth concedes that it did “not have good cause
for the delay in sentencing” and that “sentencing was delayed due to
negligence, not some intentional delay on the part of the Commonwealth.”
Commonwealth’s Brief at 5-6. As such, we confine our review to whether
Appellant was prejudiced by the delay.
4 Appellant does not cite any authority to suggest that pretrial services or
probation constitute oppressive pretrial incarceration. Upon independent
review, we note that our Supreme Court has held that under the Pennsylvania
Sentencing Code, “[t]ime spent on bail release [] does not qualify as custody
for purposes of [] credit against a sentence of incarceration.”
Commonwealth v. Kyle, 874 A.2d 12, 20 (Pa. 2005). “Bail is neither a form
of, nor in any way synonymous with, custody or imprisonment; rather, it is a
form of release from custody.” Id. (emphasis in original), citing
Commonwealth v. Chiappini, 782 A.2d 490, 503 (Pa. 2001), abrogated on
other grounds. “[C]ommon bail conditions (such as surrendering a passport,
a stay-away order, drug testing or a reporting requirement), which defendants
often welcome, and even request, [are] desirable means of avoiding
(Footnote Continued Next Page)
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Appellant pled guilty to the charged offense before the delay in sentencing.
At the time of the plea, Appellant had already negotiated his sentence. Thus,
Appellant knew that he would be sentenced in accordance with his plea
agreement, which included a term of 24 months of intermediate punishment
with the first six months on house arrest, together with a SORNA reporting
requirement lasting 15 years. Once the trial court accepted Appellant’s guilty
plea, it minimized Appellant’s anxiety and concern over the imposition of his
sentence. Furthermore, Appellant’s guilty plea eliminated his need to
adequately prepare his case for trial and, thus, his defense clearly was not
impaired by the delay in sentencing. Viewing the totality of the evidence in
the light most favorable to the Commonwealth as required, because Appellant
has not demonstrated he was prejudiced, we discern no abuse of discretion in
the delay in sentencing Appellant. Accordingly, Appellant’s sole appellate
issue lacks merit.
Judgment of sentence affirmed.
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placement in actual custody in an institutional prison setting.” Kyle, 874
A.2d at 21. The Kyle Court noted that “the very nature of bail” almost always
imposes some type of restriction on a defendant, but that “[p]lainly stated, an
individual who is released from custody cannot be said to be in custody.” Id.
at 22 (citation omitted).
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/7/2021
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