Com. v. Robinson, T. ( 2018 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
TERRANCE BERNARD ROBINSON :
:
Appellant : No. 595 MDA 2017
Appeal from the PCRA Order March 27, 2017
In the Court of Common Pleas of Adams County Criminal Division at No(s):
CP-01-CR-0000706-2013
BEFORE: OLSON, J., DUBOW, J., and STRASSBURGER*, J.
MEMORANDUM BY OLSON, J.: FILED JUNE 22, 2018
Appellant, Terrence Bernard Robinson, appeals from the order entered
on March 27, 2017, dismissing his petition filed pursuant to the Post
Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. We affirm.
We briefly summarize the facts and procedural history of this case as
follows. In June 2012, the Commonwealth charged Appellant with criminal
conspiracy, three counts of possession with intent to deliver (PWID) cocaine,
and three counts of criminal use of a communications facility. 1 At the time,
Appellant’s whereabouts were unknown. On September 19, 2012, police
took Appellant into custody on unrelated charges in Baltimore, Maryland.
Thereafter, the Commonwealth entered a detainer against him. On April 12,
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1 18 Pa.C.S.A. § 903, 35 P.S. § 780-113(a)(30), and 18 Pa.C.S.A. § 7512,
respectively.
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* Retired Senior Judge assigned to the Superior Court.
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2013, Appellant requested that the Commonwealth dispose of the charges
pursuant to the Interstate Agreement on Detainers (IAD), 42 Pa.C.S.A.
§ 9101, et seq.2 As a result, Maryland authorities returned Appellant to
Pennsylvania on June 6, 2013. Counsel for Appellant sought, and received,
two continuances of Appellant’s preliminary hearing. The trial court held the
preliminary hearing on July 31, 2013, wherein all charges were bound for
court. On September 23, 2013, the trial court formally arraigned Appellant,
who then formally requested a jury trial. On December 2, 2013, prior to
jury selection, Appellant presented a motion to dismiss all charges for
violating Article III(a) of the IAD, claiming that he was not brought to trial
within 180 days of his request for final disposition of the charges. The trial
court continued the trial until the January 2014 term, so that it could hold a
hearing on Appellant’s motion to dismiss on December 3, 2013. Following
that hearing, the trial court denied Appellant’s motion to dismiss.
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2 “The IAD is an agreement between forty-eight states, the District of
Columbia, Puerto Rico, the Virgin Islands, and the United States, that
establishes procedures for the transfer of prisoners incarcerated in one
jurisdiction to the temporary custody of another jurisdiction which
has lodged a detainer against a prisoner.” Commonwealth v. Jones, 886
A.2d 689, 695 (Pa. Super. 2005) (citations omitted). “Unlike a request for
extradition, which is a request that the state in which the prisoner is
incarcerated transfer custody to the requesting state, a detainer is merely a
means of informing the custodial jurisdiction that there are outstanding
charges pending in another jurisdiction and a request to hold the prisoner for
the requesting state or notify the requesting state of the prisoner's imminent
release.” Id. (citations omitted).
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On January 14, 2014, Appellant entered into an agreement with the
Commonwealth wherein the parties stipulated to facts that were sufficient to
find Appellant guilty of criminal conspiracy and three counts of PWID.3 In
exchange, the Commonwealth agreed to withdraw the three counts of
criminal use of a communications facility. Further, the parties agreed to an
aggregate sentence of five to ten years of imprisonment, consecutive to any
sentence Appellant was already serving. The stipulated facts were entered
on the record and, after finding Appellant guilty, the trial court sentenced
Appellant according to the sentencing agreement. We affirmed Appellant’s
judgment of sentence in an unpublished memorandum on December 12,
2014. See Commonwealth v. Robinson, 2014 WL 10752295 (Pa. Super.
2014). On April 15, 2015, our Supreme Court denied further review. See
Commonwealth v. Robinson, 114 A.3d 416 (Pa. 2015).
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3 Appellant agreed to a bench trial on stipulated facts, with a negotiated
sentencing agreement, in order to preserve his right to challenge the trial
court’s ruling on his pre-trial motion to dismiss under the IAD. A stipulated
bench trial functions similarly to a guilty plea except that a guilty plea
constitutes a waiver of all defects and defenses except lack of jurisdiction,
invalidity of the guilty plea, and illegality of sentence. See Commonwealth
v. Eichinger, 108 A.3d 821, 828, (Pa. 2014) (stipulating to evidence is
functionally the same as a guilty plea, but preserves rights to challenge pre-
trial rulings); compare Commonwealth v. Main, 6 A.3d 1026, 1028 (Pa.
Super. 2010) (“The entry of a guilty plea constitutes a waiver of all defects
and defenses except lack of jurisdiction, invalidity of the plea, and illegality
of the sentence.”).
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On April 30, 2015, Appellant filed a pro se PCRA petition. The PCRA
court appointed counsel, who filed an amended PCRA petition. The PCRA
court held an evidentiary hearing on December 19, 2016 and ultimately
denied Appellant relief by opinion and order entered on March 27, 2017.
This timely appeal followed.4
Appellant raises the following issues for our review:
A. The [PCRA c]ourt committed an error of law and/or abused its
discretion in denying [Appellant’s] PCRA claim [that trial
counsel was ineffective for failing to bring a motion] pursuant
to Pa.R.Crim.P. 600 regarding [Appellant’s] right to a speedy
trial, when the Commonwealth failed to use due diligence in
bringing [Appellant] to trial within the statutory requirement.
B. The [PCRA c]ourt committed an error of law and/or abused its
discretion in denying [Appellant’s] PCRA claim of an illegal
sentence, whereby the [trial c]ourt imposed sentence outside
of the sentencing guidelines without disclosing, in open court
at the time of sentencing, a statement of reason or reasons
for the sentence imposed. In every case where a court of
record imposes a sentence outside the sentencing guidelines[,
there] shall be recorded on the guideline sentence form a
copy of which shall be transmitted to the Pennsylvania
commission on sentencing.
C. The [PCRA c]ourt committed an error of law and/or abused its
discretion in denying [Appellant’s] PCRA claim of an illegal
sentence, [based on the contention that] the [trial c]ourt
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4 Appellant filed a notice of appeal on April 3, 2017. On April 10, 2017, the
PCRA court entered an order directing Appellant to file a concise statement
of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). Appellant
complied timely on April 28, 2017. The PCRA court issued an opinion
pursuant to Pa.R.A.P. 1925(a) on May 18, 2017, which also incorporated its
prior decision entered on March 27, 2017.
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improperly imposed mandatory minimum sentences on each
count.
D. The [trial c]ourt committed an error of law and/or abused its
discretion in denying [Appellant’s] PCRA claims related to
Pa.R.Crim.P. 620 (jury waiver) when trial counsel failed to
advise [Appellant] of his constitutional right to a jury trial and
the [trial c]ourt failed to ascertain whether [Appellant]
knowingly and voluntarily waived his right to a jury trial
pursuant to Pa.R.Crim.P. [] 620.
Appellant’s Brief at 5.
Appellant’s first and fourth claims allege, under the PCRA, that trial
counsel was ineffective. We will examine those issues first. Our standard
and scope of review are as follows:
An appellate court reviews the PCRA court's findings of fact to
determine whether they are supported by the record, and
reviews its conclusions of law to determine whether they are free
from legal error. The scope of review is limited to the findings of
the PCRA court and the evidence of record, viewed in the light
most favorable to the prevailing party at the trial level.
To establish trial counsel's ineffectiveness, a petitioner must
demonstrate: (1) the underlying claim has arguable merit; (2)
counsel had no reasonable basis for the course of action or
inaction chosen; and (3) counsel's action or inaction prejudiced
the petitioner.
Furthermore, a PCRA petitioner will be granted relief only when
he proves, by a preponderance of the evidence, that his
conviction or sentence resulted from the ineffective assistance of
counsel which, in the circumstances of the particular case, so
undermined the truth-determining process that no reliable
adjudication of guilt or innocence could have taken place.
Counsel is presumed effective, and to rebut that presumption,
the PCRA petitioner must demonstrate that counsel's
performance was deficient and that such deficiency prejudiced
him.
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Counsel's assistance is deemed constitutionally effective once
this Court determines that the defendant has not established any
one of the prongs of the ineffectiveness test.
Commonwealth v. Freeland, 106 A.3d 768, 775 (Pa. Super. 2014)
(internal citations, quotations and brackets omitted).
In his first issue presented, Appellant claims that trial counsel was
ineffective for failing to raise a violation of Pa.R.Crim.P. 600 prior to the
commencement of trial. Appellant’s Brief at 9.5 Appellant avers that the
trial court erred by determining that the Commonwealth exercised due
diligence in bringing Appellant to trial within 365 days of filing the criminal
complaint against him. Id. at 13-14. More specifically, Appellant argues
that “[a]t the time the charges were filed [in June 2012], Appellant resided
in Baltimore, Maryland at the residence listed on the original criminal
complaint[,]” but “[t]he record is void of any evidence to show that law
enforcement tried to serve a warrant or otherwise secure Appellant’s
apprehension when Appellant’s whereabouts were admittedly known to the
Commonwealth.” Id. at 14. Appellant maintains that “[o]nce his
whereabouts were confirmed” the Commonwealth “failed to contact the
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5 Appellant’s trial counsel sought dismissal of the charges under the IAD
prior to jury selection by filing a motion to dismiss on December 3, 2013,
arguing that Appellant was not brought to trial in Pennsylvania within 180
days of his request for final disposition of the charges. The trial court
denied relief and we affirmed. See Commonwealth v. Robinson, 2014 WL
10752295 (Pa. Super. 2014) (unpublished memorandum). Appellant is now
claiming that trial counsel also should have raised a Rule 600 claim, in
addition to a claim under the IAD, to challenge this same period that he
spent in custody in Maryland.
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Baltimore City Detention Center to inquire about Appellant’s availability for
trial in Pennsylvania[,]” “simply put a detainer on Appellant[,]” and did not
make a request for extradition. Id. at 16. “Only because Appellant was
pro-active and took the onus upon himself [to request a transfer from
Maryland pursuant to the detainer] to face charges in Pennsylvania, was
Appellant finally transported to Adams County on June 6, 2013.” Id. at 21.
Appellant contends that these actions constitute a lack of due diligence by
the Commonwealth and trial counsel should have sought dismissal of the
charges, with prejudice, under Rule 600. Id. at 22.
Regarding Rule 600, we have stated:
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
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.
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
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accused, but the collective right of the community to vigorous
law enforcement as well.
Rule 600, [] provides, in pertinent part, that “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.” Pa.R.Crim.P. 600(A)(2)(a). For purposes of
computing when trial must commence, “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.... Any other periods of delay shall be excluded from the
computation.” Pa.R.Crim.P. 600(C)(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.” Pa.R.Crim.P. 600(D)(1).
The Comment to the Rule explains the computation of time, in
relevant part, as follows:
For purposes of determining the time within which
trial must be commenced pursuant to paragraph (A),
paragraph (C)(1) makes it clear that any delay in the
commencement of trial that is not attributable to the
Commonwealth when the Commonwealth has
exercised due diligence must be excluded from the
computation of time Thus, the inquiry for a judge in
determining whether there is a violation of the time
periods in paragraph (A) is whether the delay is
caused solely by the Commonwealth when the
Commonwealth has failed to exercise due diligence.
If the delay occurred as a result of circumstances
beyond the Commonwealth's control and despite its
due diligence, the time is excluded. In determining
whether the Commonwealth has exercised due
diligence, the courts have explained that “[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.”
Pa.R.Crim.P. 600, Comment (citations omitted).
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Commonwealth v. Plowden, 157 A.3d 933, 936–37 (Pa. Super. 2017)
(case citations, quotations and original brackets omitted).
Moreover, we recognize the Comment to Rule 600 further states:
In addition to any other circumstances precluding the availability
of the defendant or the defendant's attorney, the defendant
should be deemed unavailable for the period of time during
which the defendant contested extradition, or a
responding jurisdiction delayed or refused to grant extradition;
or during which the defendant was physically incapacitated or
mentally incompetent to proceed; or during which the
defendant was absent under compulsory process
requiring his or her appearance elsewhere in connection
with other judicial proceedings.
Comment, Pa.R.Crim.P. 600 (emphasis added).
Here, upon review of the record, at the PCRA hearing, Appellant
admitted that he was arrested in Maryland on September 19, 2012 and
facing trial for charges there. N.T., 12/20/2016, at 16. Thus, by his own
admission, Appellant was in custody in connection with other judicial
proceedings. For this reason, we could find Appellant was unavailable during
the time period of September 19, 2012 (when he was arrested and jailed in
Maryland) until June 6, 2013 (when he was returned to Pennsylvania) for
Rule 600 purposes.
“A criminal defendant who is incarcerated in another jurisdiction is
unavailable within the meaning of Rule 600 if the Commonwealth
demonstrates by a preponderance of the evidence that it exercised due
diligence in attempting to procure the defendant's return for trial.”
Commonwealth v. McNear, 852 A.2d 401, 404 (Pa. Super. 2004) (citation
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omitted). “The Commonwealth's stewardship [] must be judged
by what was done rather than by what was not done” in Rule 600 cases.
Commonwealth v. Selenski, 919 A.2d 229, 232 (Pa. Super. 2007).
In addressing Appellant’s current claim, the PCRA court first noted that
“the history in bringing [Appellant] to trial has been extensively discussed by
both [the trial court] and the Superior Court in the context of the IAD.”
PCRA Court Opinion 3/27/2017, at 8. Moreover, the PCRA court recognized
that Appellant did not cite any law, and our independent research on appeal
did not reveal, “that the Commonwealth must comply with the time
requirements of both the IAD and Rule 600 independently.” Id. at 9 n.8.
Regardless, for the reasons that follow, we conclude that the Commonwealth
complied with the Rule 600 time requirements by filing a detainer with
Maryland authorities.
The PCRA court further opined that “a panel of the Superior Court, in
dicta, signaled the Commonwealth would meet its due diligence requirement
by initiating extradition proceedings within 365 days from the filing of the
complaint for a defendant imprisoned in another state.” PCRA Court Opinion
3/27/2017, at 8 n.8, citing Commonwealth v. Booze, 947 A.2d 1287,
1292 (Pa. Super. 2008). In Booze, “the Commonwealth knew [Booze] was
being held in Maryland yet failed to follow the proper steps to secure her
upon the disposition of the Maryland charges.” Booze, 947 A.2d at 1291.
“Although the Commonwealth faxed a copy of the complaint to the Maryland
authorities, there were no assurances made on behalf of Maryland that this
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would in fact serve as a detainer.” Id. We determined that the
Commonwealth did not exercise due diligence because it did not initiate
extradition proceedings or file a formal detainer with the proper authorities
in Maryland. Id. However, we suggested that “the Commonwealth should
at least initiate extradition proceedings within 365 days from the filing of the
complaint for defendants who are imprisoned in another state in order to
meet its duty as to due diligence [under Rule 600].” Booze, 947 A.2d at
1292 (emphasis in original). It does not appear that our appellate courts
have addressed what actions constitute the “initiation of extradition.”
Next, we examine the case law cited by Appellant regarding detainers
and due diligence and, for the reasons that follow, reject his reliance on
them. In arguing his Rule 600 claim, Appellant principally relies on two of
this Court’s prior decisions: Commonwealth v. Alexander, 464 A.2d 1376
(Pa. Super. 1983)6 and Commonwealth v. Colon, 87 A.3d 352 (Pa. Super.
2014). See Appellant’s Brief at 12, 18, 20, and 22. In Colon, the
Commonwealth only presented evidence regarding efforts to locate Colon,
before filing a criminal complaint against him. Thereafter, we noted that
“although the Commonwealth asserted that ‘Trooper Scott faxed a copy of
the [Pennsylvania] complaint’ to the state institution in which [Colon] was
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6 While Appellant purports to cite to a case captioned “Commonwealth v.
Hamilton” at page 22, n.22 in his appellate brief, the legal citation goes to
Alexander, supra.
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confined, and that ‘a detainer was lodged against [Colon] therefore assuring
his release from state custody’ no evidence was presented to support this
assertion.” Colon, 87 A.3d at 359. Here, there is no dispute that a detainer
was filed against Appellant. Thus, Colon is inapplicable.
Next, Appellant relies upon our decision in Alexander. In that case,
the Commonwealth filed a complaint against Alexander in March of 1979.
Alexander assured police he would turn himself in, but he did not.
Thereafter, Pennsylvania police entered Alexander’s information into the
National Crime Information Center. In January of 1980, Pennsylvania police
received a call that Alexander was arrested in New Jersey and that there
were outstanding charges pending against him there. On January 22, 1980,
the Commonwealth learned that Alexander was incarcerated in New Jersey.
The Commonwealth took no action, however, until it filed a detainer on
March 27, 1980, after Alexander received his New Jersey sentence on
February 27, 1980. Following Alexander’s conviction in Pennsylvania, he
appealed to this Court asserting that his right to a speedy trial had been
denied. We agreed, reasoning that the 65-day period between January 22,
1980 (when the Commonwealth became aware of Alexander’s whereabouts)
and March 27, 1980 (when the Commonwealth requested Alexander’s return
from a correctional facility in New Jersey under the Detainers Act) was not
excludable under Rule 600’s predecessor because the Commonwealth failed
to act for an extended period of time after learning of Alexander’s
whereabouts. See Alexander, 464 A.2d at 1385-1385. We further held
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that the Commonwealth’s insufficient efforts to return Alexander to trial in
Pennsylvania over the next six months constituted further grounds to award
relief. As we explain below, these facts are not present in this case.
Although decisions from other states, as well as the opinions and
standards of the American Bar Association (ABA), are not binding authority
upon us, we may look at them for persuasive value. See Commonwealth
v. Maguigan, 511 A.2d 1327, 1336 (Pa. 1986).
The American Bar Association Standards for Criminal Justice provides:
Standard 12-3.1. Prosecutor's obligations; notice to and
availability of prisoner
To protect the right to speedy trial of a person serving a term of
imprisonment either within or without the jurisdiction, it should
be provided by rule or statute and, where necessary, interstate
compact that:
(a) if the prosecuting attorney knows that a person
charged with a criminal offense is serving a term of
imprisonment in a penal institution of that or another
jurisdiction, he or she must promptly:
(i) undertake to obtain the presence of the
prisoner for trial; or
(ii) cause a detainer to be filed with the official
having custody of the prisoner and request
the official to so advise the prisoner and to
advise the prisoner of his or her right to
demand trial[.]
American Bar Association, Standards for Criminal Justice, Standard 12-3.1
(2d ed.1980).
The commentary following ABA standard 12-3.1 states that the
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above standard, addressed to the broader problem of a
prisoner's right to speedy trial, requires the prosecutor to initiate
procedures whereby the prisoner may demand trial whenever
the prosecutor does not choose to undertake an immediate trial.
American Bar Association, Standards for Criminal Justice, Standard 12-3.1,
Commentary at 12.37.
Moreover, the commentary to ABA standard 12-2.2(a) states that
[t]he prisoner should have the option (1) of demanding trial in
order to overcome whatever disadvantages flow from the fact a
detainer has been lodged against him, or (2) of not making the
demand in the hope that the charges will be dropped before or
at the time he completes his sentence [in the foreign
jurisdiction].
American Bar Association, Standards for Criminal Justice, Standard 12-2.2,
Commentary at 17-18.
Several courts have implemented the above-mentioned American Bar
Association standards in determining due diligence requirements under state
speedy trial right rules. See State v. Anderson, 828 P.2d 1161, 1165
(Wash. App. 1992) (“While requiring prosecutors to lodge detainers against
defendants and promptly secure their presence for trial may result in
additional expense or give rise to some of the problems associated with
detainers, these considerations do not outweigh the fundamental concerns
underlying a defendant's right to a speedy trial.”); Conway v. State, 707
P.2d 930, 936 (Alaska App. 1985) (“The prosecutor must either undertake
to obtain the presence of the prisoner for trial by, for example, instituting
extradition proceedings or filing a habeas corpus petition with the court in
the jurisdiction in which the prisoner is incarcerated, seeking the defendant
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for purposes of trial, or the prosecutor must file a detainer with the
appropriate officials and request that the defendant be made aware of the
detainer.”).
Moreover, several other jurisdictions have examined their speedy trial
rules, in conjunction with federal and state constitutional principles, and
determined that lodging detainers constitutes due diligence. See State v.
Grant, 738 P.2d 106, 109 (Montana 1987) (“The time chargeable to
defendant began on January 22, 1985, when the State of Montana issued
the first detainer to defendant and the State of Idaho notifying them of
charges pending against defendant in Montana. That time, as chargeable to
defendant, ceased to run on June 19, 1985[,] when defendant asserted his
right to a speedy trial by requesting final disposition of the charges against
him in Montana.... Knowing that charges were pending against him in
Montana, it was up to defendant to request speedy and final disposition of
the charges against him.”); see also O'Bryan v. State, 326 So. 2d 83, 87
(Fla. App. 1976) (“The period for speedy trial is made to commence on the
concurrence of the foreign prisoner's demand for trial and the State's filing
of a detainer[.]”); see also Eaddy v. State, 352 So. 2d 98 (Fla. App. 1977)
(Filing of a detainer against an accused who is in prison
outside jurisdiction of authority which filed detainer does not activate
180-day period within which accused must be tried under speedy trial rule;
rather, speedy trial time begins to run when authority which
filed detainer obtains custody of accused); see also State v. Wood, 924
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S.W.2d 342, 348 (Tenn. 1996) (“Wood deliberately chose to forgo
a speedy trial request, hoping instead that the Tennessee charges would die
of neglect. He acquiesced in the delay from the time he learned of
the detainer in 1984 until 1990, after Alabama had offered conditional
parole.”); see also State v. Dolack, 533 P.2d 1282, 1292 (Kan. 1975) (To
obtain a speedy trial guaranteed by state Bill of Rights, as legislatively
defined, it is incumbent upon an accused incarcerated in a penal institution
to comply with all provisions of legislation applicable to his incarceration,
including the preparation of his written request for disposition of detainer to
be addressed to court in which the indictment, information or complaint is
then pending against him and to the county attorney charged with the duty
of prosecuting it.).
In this matter, the PCRA court ultimately determined there was no
violation of Rule 600, offering the following calculations:
The criminal complaint was filed against [Appellant] on June 17,
2012. Therefore, the mechanical run-date of 365 days
thereafter require[d] the Commonwealth to have brought
[Appellant] to trial under Rule 600 on or before June 17, 2013.
[Appellant] was arrested in Maryland in September 19, 2012 and
returned to this jurisdiction under the IAD on [June 6, 2013].[7]
This time is clearly excludable[]. Removal of this [260-day] time
period from the mechanical calculation results in an adjusted
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7 The PCRA court incorrectly noted the date of Appellant’s return to Adams
County, Pennsylvania as April 12, 2013. That date is the date on which
Appellant’s request for disposition of the Pennsylvania charges was received
by the Adams County District Attorney’s office. Appellant was not returned
to Pennsylvania until June 6, 2013.
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trial date of approximately [March 4, 2014]. After [Appellant]
was returned to this jurisdiction, through counsel, his
preliminary hearing date was continued [twice from June 12,
2013] until July 31, 2013. As this [49-day time period] is also
excludable, [Appellant’s] adjusted Rule 600 run-date extends [to
late April 2014]. […T]he charges against [Appellant] were
resolved in January 14, 2014. […] Accordingly, [Appellant] is not
entitled to relief on his [Rule 600] claim as counsel cannot be
held ineffective for failing to pursue a meritless position.
Trial Court Opinion, 3/27/2017, at 8-9 (footnote omitted).
Upon review, we discern no abuse of discretion or error of law in
finding no merit to Appellant’s Rule 600 claim. Initially we note that
Appellant’s argument centers primarily on the actions he believes the
Commonwealth should have taken; however, we must review only the
actions actually taken by the Commonwealth. See Selenski, 919 A.2d at
232. The ABA Standards suggest, and courts in Washington and Alaska
agree, that in order to comply with speedy trial rights regarding a defendant
incarcerated in a foreign jurisdiction, a state must initiate procedures to
obtain their presence for trial. Without actually deciding the issue, we
suggested as much in Booze and are guided by that decision. In further
examining the initiation of transfer procedures, we recognize there are two
mechanisms available to the Commonwealth to procure a defendant’s return
to Pennsylvania: (1) by formal extradition or, (2) by lodging a detainer with
the foreign jurisdiction so that the defendant can then demand trial. Jones,
886 A.2d 689, 695. Thus, we summarily reject Appellant’s suggestion that
the Commonwealth was required to initiate extradition proceedings. Here,
there is no dispute that the Commonwealth, in fact, promptly filed a detainer
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against Appellant with Maryland authorities. Other jurisdictions, as well as
the ABA, have determined that lodging a detainer qualifies as due diligence
for speedy trial purposes. Taken together, the record supports the PCRA
court’s findings that the Commonwealth took diligent steps to secure
Appellant’s presence for trial in Pennsylvania, by lodging a detainer with
Maryland authorities and informing him that there were outstanding charges
against him in Pennsylvania. Appellant then started the extradition process.
Accordingly, the time between the Commonwealth’s filing of the detainer
and Appellant’s return to Adams County is excluded from the speedy trial
calculation and the PCRA court properly determined that Appellant’s time
spent in custody in Maryland was excludable under Rule 600. Moreover,
since there is no dispute that extensions requested by defense counsel were
excludable, it is clear, as the PCRA court found, that the disposition of
Appellant’s criminal complaint was reached within 365 days after the filing of
the criminal complaint when the original mechanical run date is adjusted by
the delays attributable to Appellant. Accordingly, we need not review the
time period between the filing of the complaint and Appellant’s subsequent
arrest in Maryland. As such, trial counsel was not ineffective for failing to
raise a Rule 600 claim. Hence, Appellant’s first issue fails.
In his fourth issue presented, Appellant claims that trial counsel was
ineffective for failing to advise Appellant of his right to a jury trial pursuant
to Pa.R.Crim.P. 620. Appellant’s Brief at 38. Appellant claims that the trial
court did not orally colloquy him regarding waiver of his right to a jury trial,
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and he did not sign a written colloquy. Id. at 39. Appellant claims that the
trial court erred by determining that he was a savvy criminal defendant who
was familiar with the criminal justice system and jury trial waivers when he
proceeded to a stipulated bench trial. Id. at 40-42. In sum, Appellant
claims that “the [trial c]ourt, the Commonwealth, and trial counsel
presumed that Appellant knew [his] rights or did not care to confirm said
presumption, or just flatly forgot Appellant’s constitutional rights and their
respective obligations.” Id. at 43.
Our Supreme Court has stated:
Of course, lawyers have an obligation to counsel their clients in
conjunction with the waiver of basic rights, including the waiver
of a jury; but the mere absence of [an on-the-record] oral
waiver colloquy does not automatically prove that a right was
relinquished unknowingly or involuntarily and that the trial
lawyer was ineffective for causing the waiver. When a
presumptively-valid waiver is collaterally attacked under the
guise of ineffectiveness of counsel, it must be analyzed like any
other ineffectiveness claim. Such an inquiry is not resolved by
the mere absence of an oral waiver colloquy; instead, the
analysis must focus on the totality of relevant circumstances.
Those circumstances include the defendant's knowledge of and
experience with jury trials, his explicit written waiver (if any),
and the content of relevant off-the-record discussions counsel
had with his client.
* * *
Absence of an oral colloquy alone does not prove that
a jury waiver was in fact unknowing or involuntary; rather, the
PCRA court must look to the totality of the circumstances
including the discussions between the lawyers and their clients
regarding the jury waiver. The analysis regarding the underlying
merits of appellants' ineffectiveness challenge must be more
precise and must account for all relevant circumstances
surrounding the waiver.
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Commonwealth v. Birdsong, 24 A.3d 319, 339 (Pa. 2011) (internal
citations, quotations, and ellipses omitted).
Furthermore, we have previously determined:
For a waiver to be knowing, the defendant must be made aware
of the “essential ingredients” of the right he or she is waiving to
ensure there is an understanding of the significance of what he
or she is giving up.
For example, for a defendant to knowingly and
intelligently waive his right to a jury trial, the defendant must
know the essential ingredients, basic to the concept of
a jury trial, including the requirements that the jury be chosen
from members of the community (a jury of one's peers), that the
verdict be unanimous, and that the accused be allowed to
participate in the selection of the jury panel.
Commonwealth v. Baker, 72 A.3d 652, 667 (Pa. Super. 2013) (internal
citations and most quotations omitted).
On this issue, the trial court determined:
Although instantly an oral colloquy was not conducted with
[Appellant], he undoubtedly understood his rights at the time of
waiver. [Appellant] did not present before the [c]ourt as a first
[time] offender[,] but rather had previously been convicted of
two felony drug offenses. Trial counsel’s hearing testimony as to
[Appellant’s] sophistication and knowledge of criminal law is
corroborated by his numerous pro se pleadings in this matter as
well as his discussions with the [c]ourt during various
proceedings. This fundamental knowledge of his rights was
supplemented at the time of his arraignment when he waived
formal arraignment and acknowledged in writing that he
received and understood his rights including the right to a jury
trial. Additionally, trial counsel testified that on at least two
occasions following arraignment, he discussed with [Appellant]
his right to a jury trial. On one of those occasions, [Appellant]
initialed and signed a plea colloquy.
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PCRA Court Opinion, 3/27/2017, at 10-11 (footnotes omitted). The PCRA
court found trial counsel’s testimony credible and concluded that Appellant
understood his right to a jury trial prior to entering his plea. Id. at 11-12.
Upon review, we agree that although the trial court did not formally
advise Appellant of his right to a trial by jury, based upon the totality of the
circumstances, Appellant was aware of such right before opting to proceed
with a stipulated bench trial. Here, the trial court credited trial counsel’s
testimony that he discussed the essential elements of the right to a jury trial
with Appellant. We will not usurp that determination on the record before
us. Moreover, while not admitted into evidence at the stipulated bench trial,
Appellant had signed and initialed a written guilty plea colloquy earlier. That
written colloquy addressed all of the questions that the trial court should
have covered in an oral jury waiver colloquy, including the requirements that
the jury be chosen from members of the community, that the verdict be
unanimous, and that the accused be allowed to participate in the selection of
the jury panel. Moreover, while this written colloquy was not entered into
the record at the time of the stipulated bench trial, Appellant does not
contest that he signed it or claim that trial counsel did not discuss it with
him prior to the stipulated trial. Finally, the PCRA court properly considered
the fact that Appellant is a savvy defendant, having been twice convicted of
drug-related felonies and filing numerous legally supported pro se
documents in this matter. Thus, we agree with the trial court that Appellant
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was properly informed of his right to a jury trial and there is no merit to
Appellant’s claim that counsel was ineffective in this regard.
Appellant’s second and third claims involve somewhat related
sentencing issues, so we will examine them together. In his second issue,
Appellant avers that the trial court abused its discretion or erred as a matter
of law in imposing a sentence outside of the sentencing guidelines without
stating the reason for the deviation on the record. Appellant’s Brief at 24-
25. More specifically, Appellant collectively challenges his three concurrent
sentences for PWID, five to ten years of imprisonment each, contending that
“[w]ith a prior record score of [four] (and an offense gravity score of [seven]
or [eight] depending on the weight of the drug) the [s]tandard [g]uideline
range for PWID is 21 to 27 months.” Id. at 26. Appellant claims that the
sentencing guidelines were inaccurately calculated and ignored, and that the
trial court never explained the reasons for deviating from them. Id. at 28.
Instead, Appellant suggests that the trial court “only colloquied Appellant on
the maximum penalties he could face for each charge [and d]efense counsel
never objected to this error[.]” Id. at 29.
In his third issue presented, Appellant “believes he was sentenced to
mandatory minimum sentences” on each count of PWID and “relies on the
sentencing guideline forms filled out after sentencing to support his claim.”
Id. Appellant posits that “[i]f the [trial c]ourt sentenced Appellant to a
mandatory minimum sentence, then Appellant believes said sentences are
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illegal in consideration of Alleyne v. U.S., 133 S. Ct. 2151 (2013)[.]” Id. at
31.
Initially, we note that Appellant commingles two legally distinct
sentencing issues, the discretionary aspects of sentencing and the illegality
of his sentence.8 We have previously determined:
the term “illegal sentence” refer[s] to a class of cases that
includes: (1) claims that the sentence fell outside of the legal
parameters prescribed by the applicable statute; (2) claims
involving merger/double jeopardy; and (3) claims implicating the
rule in Apprendi v. New Jersey, 530 U.S. 466 (2000).
[…I]llegal sentencing claims challenge the fundamental legal
authority of the court to impose the sentence that it did.
Commonwealth v. Farrow, 168 A.3d 207, 212 (Pa. Super. 2017) (some
quotations and citations omitted).
“A challenge to the legality of a particular sentence may be reviewed
by any court on direct appeal; it need not be preserved in the lower courts
to be reviewable and may even be raised by an appellate court sua sponte.”
Batts, 163 A.3d at 434. We review the legality of a sentence de novo and
our scope of review is plenary. Farrow, 168 A.3d at 212 (internal citation,
____________________________________________
8 “For appellate review purposes, challenges to a criminal sentence typically
fall into one of two categories, implicating either the legality of
the sentence or the discretionary aspects of the sentence.” Commonwealth
v. Batts, 163 A.3d 410, 434 (Pa. 2017). “[A] claim challenging a sentencing
court's legal authority to impose a particular sentence presents a question of
sentencing legality.” Id. “This distinction is critical, as the determination
also encompasses matters of issue preservation, [an appellate court’s]
jurisdiction to decide the question presented, and the level of deference the
reviewing court must give to the decision of the sentencing court.” Id.
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quotation, and brackets omitted). Our Supreme Court has instructed that
we must presume that statutes are constitutional and in order to declare a
statute unconstitutional it must clearly, plainly, and palpably violate the
constitution. Id.
Here, Appellant was sentenced concurrently to five to ten years of
imprisonment for each of three counts of PWID cocaine and for one count of
conspiracy. The statutory maximum sentence for PWID cocaine is fifteen
years of incarceration. See 35 P.S. § 780-113(f). Moreover, as a repeat
felony offender,9 Appellant was exposed to twice that prison time on each
PWID offense. See N.T., 1/14/2014, at 935; see also Trial Court Opinion,
3/27/2017, at 10 (Appellant “had previously been convicted of two felony
drug offenses.”); see also 35 P.S. § 780-115(a) (“Any person convicted of a
second or subsequent offense [of PWID] or of a similar offense under any
statute of the United States or of any state may be imprisoned for a term up
to twice the term otherwise authorized, fined an amount up to twice that
otherwise authorized, or both.”) Inchoate crimes, like conspiracy, have the
same maximum sentences as the underlying crimes to which they relate, but
are not subject to sentencing enhancements. See Commonwealth v.
Hoke, 962 A.2d 664, 668, 599 Pa. 587, 593 (Pa. 2009). Thus, Appellant’s
statutory maximum penalty for conspiracy was also fifteen years of
____________________________________________
9 Appellant does not challenge his prior felony convictions or contend his
prior criminal record was inaccurately reflected before entering his plea.
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imprisonment, but not subject to doubling under the repeat offender
enhancement.
Despite Appellant’s attempt to characterize all mandatory minimum
sentences as illegal following Alleyne/Apprendi, our Supreme Court has
determined Section 780-115 is constitutional. See Commonwealth v.
Aponte, 855 A.2d 800, 809 (Pa. 2004) (statute doubling statutory
maximum penalty for PWID upon proof of a prior conviction without
requiring proof beyond a reasonable doubt before a jury did not violate
defendant’s due process rights where prior drug convictions were capable of
objective proof). Here, each of Appellant’s five to ten year sentences fell
within constitutional, statutory maximums for the various crimes and, as
such, Appellant did not receive illegal sentences.
Appellant’s related claim that the trial court failed to state its reasons
for deviating from the sentencing guidelines is a discretionary aspect of
sentencing claim, rather than a challenge to the illegality of sentence.
See Commonwealth v. McLaine, 150 A.3d 70, 76 (Pa. Super. 2016).
Unlike legality of sentence claims, which can be raised for the first time on
appeal as long as the reviewing court has jurisdiction, discretionary aspects
of sentencing claims must be properly raised below, even those couched in
ineffective assistance of counsel under the PCRA. See Commonwealth v.
Taylor, 65 A.3d 462, 465 (Pa. Super. 2013). Appellant did not raise his
claim that the trial court failed to state its reasons for deviating from the
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sentencing guidelines in his PCRA petition or his amended PCRA petition.
Thus, Appellant waived this aspect of his sentencing claim.
Regardless, the issue is otherwise without merit. “Assuming
[a] plea agreement is legally possible to fulfill, when the parties enter
the plea agreement on the record, and the court accepts and approves
the plea, then the parties and the court must abide by the terms of
the agreement.” Commonwealth v. Parsons, 969 A.2d 1259, 1268 (Pa.
Super. 2009). If the sentencing court gives a defendant “a lesser sentence
than called for in the parties' agreement, the court overstep[s] its bounds,
defeat[s] the Commonwealth's rightful expectations, and frustrate[s]
the quid pro quo of the plea bargain.” Id. at 1269–1270. Appellant has not
cited law, and our independent research has not revealed any, that would
suggest that the trial court has to consider the sentencing guidelines prior to
accepting a negotiated plea agreement where the sentences all fall within
the statutory guideline maximums. Here, the parties placed the terms of the
completely negotiated plea agreement on the record and the trial court
properly accepted it and is now bound by it. Moreover, Appellant does not
challenge the plea process or otherwise suggest that his plea was entered
unknowingly, involuntarily, or unintelligently. Accordingly, there is no merit
to Appellant’s sentencing claims.
Order affirmed.
Judge Strassburger joins the memorandum.
Judge Dubow concurs in result of the memorandum.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 06/22/2018
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