Com. v. Bacon, D. ( 2020 )

J-S39001-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DEVIN BACON :
:
Appellant : No. 567 EDA 2017
Appeal from the Judgment of Sentence February 1, 2017
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0010751-2013
BEFORE: LAZARUS, J., OLSON, J., and PELLEGRINI, J.*
MEMORANDUM BY LAZARUS, J.: FILED SEPTEMBER 18, 2020
Devin Bacon appeals from the judgment of sentence, entered in the
Court of Common Pleas of Philadelphia County, after he entered open pleas of
nolo contendere to possession with intent to deliver,1 possession of a
controlled substance,2 possession of a firearm prohibited,3 firearms not to be
carried without a license,4 carrying a firearm in public in Philadelphia,5 and
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1 35 P.S. § 780-113(a)(30).
2 35 P.S. § 780-113(a)(16).
3 18 Pa.C.S.A. § 6105(a)(1).
4 18 Pa.C.S.A. § 6106(a)(1).
5 18 Pa.C.S.A. § 6108.
J-S39001-20
possession of an instrument of crime.6 On appeal, Bacon challenges the trial
court’s denial of his motion to dismiss pursuant to Pa.R.Crim.P. 600. We
affirm.
The charges in this matter stem from an incident that occurred on May
30, 2013, in which two Philadelphia police officers responded to the sound of
gunshots in the area of the 1800 block of Sanger Street. Upon arrival, the
officers witnessed Bacon riding away on a bicycle at a high rate of speed with
the handle of a firearm protruding from his waistband. Following a brief
pursuit, Bacon was apprehended and arrested. A search uncovered a handgun
and a bag of oxycodone pills on Bacon’s person. The trial court set forth the
ensuing procedural history of this matter as follows:
On May 30, 2013, [Bacon] was arrested and charged with [the
above-named] offenses. [Bacon’s] first scheduled preliminary
hearing, on June 20, 2013, was continued, as the seizure analysis
was still outstanding. At the next scheduled hearing on August
16, 2013, [Bacon] was not brought down from the state
correctional institution . . ., because the Commonwealth failed to
complete the necessary writ to transport him. [Bacon’s]
preliminary hearing was held on August 23, 2013, and [he] was
held for court on all charges. At [Bacon’s] formal arraignment, on
September 13, 2013, the Commonwealth was not ready because
the ballistics [report] and the certificate of non-licensure were still
outstanding. On October 9, 2013, the Commonwealth needed
additional time to complete discovery. On October 29, 2013, the
Commonwealth was still not ready to proceed to trial, as discovery
was still outstanding. Also at this date, the trial court [set a pre-
trial conference date of July 7, 2014 and scheduled a jury trial for
July 10, 2014]. At the December 3, 2013 status listing, discovery
was still incomplete. On May 30, 2014, the [mechanical run date]
expired. On June 30, 2014, discovery was marked complete. On
____________________________________________
6 18 Pa.C.S.A. § 907(a).
-2-
J-S39001-20
July 7, 2014, two defense pretrial motions were set to be heard[;]
however, they were continued to July 16, 2014. On this date, the
[trial c]ourt granted [Bacon’s] R[ule] 600 motion in part and
denied the motion in part. [Bacon] was granted his motion to be
released to supervision on house arrest[;] however, [Bacon’s]
motion to dismiss the charges was denied.
Trial Court Opinion, 11/26/19, at 1-2.
On September 29, 2016, Bacon entered a plea of nolo contendere to the
above charges. On February 1, 2017, the Honorable Carolyn H. Nichols
sentenced him to an aggregate period of two to four years’ incarceration,
followed by six years’ probation. Bacon filed a timely pro se notice of appeal
on February 6, 2017. By Order dated April 25, 2017, this Court remanded the
case to the trial court to determine “whether counsel has abandoned [Bacon]
and to take further action as required to protect [Bacon’s] right to appeal,
including, but not limited to, determining [Bacon’s] eligibility for court-
appointed counsel.” Order, 4/25/17. The trial court subsequently permitted
trial counsel to withdraw and appointed current counsel to represent Bacon.
On December 14, 2017, Judge Nichols issued an order pursuant to Pa.R.A.P.
1925(b), directing Bacon to file a concise statement of errors complained of
on appeal. Shortly thereafter, Judge Nichols was elevated to a seat on this
Court.
On March 26, 2018, counsel filed an application for remand, wherein he
averred that, “[d]ue to Judge Nichols[’] elevation from the Court of Common
Pleas to the Superior Court . . ., the procedure for filing a [Rule] 1925(b)
statement was unclear, leading to a failure to file a timely [Rule] 1925(b)
-3-
J-S39001-20
statement.” Application for Remand, 3/26/18, at ¶ 6. Accordingly, counsel
requested that the case again be remanded to the court of common pleas for
submission of a Rule 1925(b) statement. By Order dated June 15, 2018, this
Court granted relief and remanded the matter to the trial court for the filing
of a Rule 1925(b) statement. This Court further directed the Supervising
Judge of the Criminal Trial Division to reassign the case to another judge for
the purpose of filing a Rule 1925(a) opinion. The matter was subsequently
reassigned to the Honorable Shanese I. Johnson, who filed a Rule 1925(a)
opinion on November 26, 2019.
Prior to addressing the merits of Bacon’s Rule 600 claim, we must
determine whether he has waived this issue for purposes of appeal. Generally,
the entry of a plea of guilty or nolo contendere waives all non-jurisdictional
defects, other than legality of sentence and the validity of the plea.
Commonwealth v. Stradley, 50 A.3d 769, 771 (Pa. Super. 2012) (stating
when defendant enters guilty plea, he or she waives all defects and defenses
except those concerning validity of plea, jurisdiction of trial court, and legality
of sentence imposed). See also Commonwealth v. Lippert, 85 A.3d 1095,
1100 n.3 (Pa. Super. 2014) (“It is well established that a plea of nolo
contendere is treated as a guilty plea in terms of its effect upon a given
case.”). Where a defendant enters a plea, an alleged violation of Rule 600 is
only reviewable to the extent that the violation affected the voluntariness of
that plea. Commonwealth v. Sisneros, 692 A.2d 1105, 1107 (Pa. Super.
1997); Commonwealth v. Riviera, 385 A.2d 976 (Pa. Super. 1978).
-4-
J-S39001-20
Here, at the nolo contendere plea hearing, Bacon completed a written
plea colloquy in which he acknowledged that, by entering a plea, he gave up
his Rule 600 speedy trial rights, as well as his right to appeal the disposition
of any pre-trial motions. See Written Colloquy, 9/29/16, at 2. He further
acknowledged that he waived all grounds for appellate relief except claims
involving the voluntariness of his plea, the jurisdiction of the trial court, and
the legality of his sentence. See id. at 3. Bacon affirmed to the court that
he had read, discussed with counsel, and understood the written colloquy.
See N.T. Nolo Contendere Plea Hearing, 9/29/16, at 31-32. Additionally, the
trial court orally advised Bacon of his limited rights on appeal resulting from
his plea.7
____________________________________________
7 The court engaged Bacon in a colloquy, in relevant part, as follows:
THE COURT: Also by pleading no contest, your rights to appeal
are on four grounds:
First appella[te] ground is that I as the judge have no legal
jurisdiction to hear the case or if you were in the wrong court.
And concerning that ground be assured I have legal jurisdiction
and that I’ve been duly elected as [a] Common[] Pleas Court
[j]udge in the Commonwealth of Pennsylvania.
Second appella[te] ground is that your plea is not voluntary. I will
not go forward with a no contest plea if I conclude that you were
forced, threatened coerced or pressured or threatened in any way
to plead no contest.
And the third appella[te] ground is that your sentence is illegal.
Concerning that ground be assured that I would not give an illegal
sentence of anything greater than the statutory maximum. As I
-5-
J-S39001-20
Bacon does not assert that the alleged violation of his Rule 600 rights
impacted the validity of his plea in any way. Sisneros, supra. Accordingly,
by entering a valid plea of nolo contendere, Bacon has waived his instant
challenge to the trial court’s denial of his Rule 600 motion.8
____________________________________________
understand that this is an open no contest plea in which there was
no negotiations in place concerning sentencing.
We’ve talked about is there a possible range and we got it to this
aspect of things of what the [c]ourt will consider. But at a
sentencing hearing we’re going to have a presentencing report
prepared. Counsel will make his recommendation as well as the
Commonwealth and the [c]ourt will render a sentencing at that
time.
Your fourth and common [sic] ground would be that your attorney
was ineffective. Concerning that ground, my understanding is
that your attorney fully discussed this case with you as well as
pleading no contest. And it’s based upon that you decided to plead
no contest.
Is that correct?
THE DEFENDANT: Yes, [Your] Honor.
N.T. Nolo Contendere Plea Hearing, 9/29/16, at 35-36.
8 Even if it were not waived, Bacon’s claim is meritless. To establish whether
there has been a Rule 600 violation, a court must determine whether the delay
is caused solely by the Commonwealth when the Commonwealth has failed to
exercise due diligence. Pa.R.Crim.P. 600, comment, citing Commonwealth
v. Dixon, 907 A.2d 468 (Pa. 2006) and Commonwealth v. Matis, 710 A.2d
12 (Pa. 1998). “[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.”
Commonwealth v. Bradford, 46 A.3d 693, 701–02 (Pa. 2012).
Periods of judicial delay—i.e., delay attributable to crowded trial dockets or
the unavailability of the court—are excludable from calculations under the
-6-
J-S39001-20
____________________________________________
rule. Id. at 705. Trial courts must apply judgment in distinguishing between
delay attributable to the court and that which should be allocated to a party.
Commonwealth v. Mills, 162 A.3d 323, 325 (Pa. 2017).
Here, it is undisputed that Bacon’s first scheduled trial date of July 10, 2014,
which is the operative date for Bacon’s claim, was 41 days beyond the
mechanical run date of May 30, 2014. The parties also agree that none of the
delay in this case was attributable to defense requests. Thus, the sole issue
before the Court is whether the delay in bringing Bacon to trial was caused by
a lack of due diligence on the part of the Commonwealth.
The trial court analyzed the issue as follows:
The first [trial date of July 10, 2014,] was scheduled on this
[c]ourt’s jury calendar on [October] 29, 2013, which was well
before the mechanical run date [of May 30, 2014]. As such, we
hold that this was outside the Commonwealth’s control since this
date was scheduled in accordance with the court’s available
calendar at the time. After the trial was scheduled, the
Commonwealth took continuances to bring down [Bacon] and to
retrieve outstanding discovery, specifically [the] ballistics [report]
and the certificate of non-licensure. We agree that the
Commonwealth’s multiple continuances due to outstanding
discovery [are] attributable to the Commonwealth. However,
these continuances did not further delay the trial, because,
notably, the trial date stayed the same. The record reveals that
discovery was complete on June 30, 2014. Since the
Commonwealth completed discovery before the July 10, 2014[,]
trial date, we hold that the delay in commencing the trial was not
due to the Commonwealth’s lack of due diligence. We further
conclude that the delay of trial was not due to any “misconduct”
on behalf of the Commonwealth. Finally, we hold that the delay
in commencing the trial was attributable to the status of this
[c]ourt’s calendar at that time.
Trial Court Opinion, 11/26/19, at 4-5 (footnote omitted; emphasis added).
We agree with the court’s conclusion that any delay in obtaining and passing
to the defense outstanding discovery did not cause a delay in the
commencement of trial attributable to the Commonwealth, as the outstanding
discovery had no impact on the scheduling of Bacon’s first trial date for July
-7-
J-S39001-20
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/18/20
____________________________________________
10, 2014. See Commonwealth v. Morgan, 398 A.2d 972, 974 (Pa. 1979)
(“delay” only cognizable for purposes of speedy trial rule where it causes,
either directly or indirectly, commencement of trial to be postponed for some
period of time beyond the time it would have been scheduled absent the
“delay”). Accordingly, Bacon is entitled to no relief.
-8-