Com. v. Munson, I.

J-S38020-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
IDRIS MUNSON,
Appellant No. 3160 EDA 2016
Appeal from the Judgment of Sentence June 21, 2012
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-1301659-2006
BEFORE: GANTMAN, P.J., SHOGAN and FITZGERALD,* JJ.
MEMORANDUM BY SHOGAN, J.: FILED AUGUST 25, 2017
Appellant, Idris Munson, appeals from the judgment of sentence
entered following the revocation of his probation. We affirm the judgment of
sentence, but remand for a correction of a clerical error on the docket.
The trial court set forth the history of this case as follows:
On February 9, 2007, the Appellant plead guilty1 to one
count of possession with intent to deliver marijuana and was
sentenced to eleven and a half months to twenty-three months
of incarceration plus two years of probation. While serving
probation, the Appellant was arrested for Luring a Child into a
Motor Vehicle. According to the court docket, the Appellant’s
violation of probation hearing was originally scheduled for May
21, 2010. On January [11], 2011, the Appellant plead 2 nolo
contendere to Luring a Child into a Motor Vehicle and two counts
of Corruption of Minors charges. The Appellant was sentenced to
one to five years of incarceration on the Luring a Child charge
____________________________________________
*
Former Justice specially assigned to the Superior Court.
J-S38020-17
and five years of probation on the Corruption of Minors charges
to run consecutively to his incarceration for possession with
intent to deliver marijuana. The docket subsequently reflects
that the violation of probation hearing was continued due to
administrative reasons including a snow emergency closure,
failure to bring down the Appellant to the courtroom and
coordinating a video conference hearing. On June 21, 2012, the
Honorable Joan A. Brown revoked the Appellant’s probation and
resentenced the Appellant to two to four years of incarceration
consecutively to the sentence the Appellant received on the
Luring a Child charge. N.T. 6/21/12 at p. 7, 11[,] 11-18.
1
The Appellant plead guilty before the Honorable
Gregory E. Smith.
2
The Appellant plead nolo contendere for his new
offense before The Honorable William J. Mazzola.
On July 2, 2012 the Appellant filed a Petition to Reconsider
Sentence. Upon review of the Clerk of Quarter Sessions File, the
court did not respond. On March 5, 2013, the Appellant filed a
Petition for Post-Conviction Relief.3 Subsequently, counsel
agreed to reinstate Appellant’s direct appellate rights nunc pro
tunc. Pursuant to the mutual agreement of counsel, this Court
issued an Order on September 16, 2016 granting Appellant’s
right to file a nunc pro tunc appeal within thirty days.
[Appellant] filed a timely appeal after which this Court issued an
Order pursuant to Pa.R.A.P. 1925(b).
3
The PCRA Petition was administratively reassigned
to The Honorable Scott DiClaudio due to the
retirement of The Honorable Joan A. Brown who
heard [Appellant’s] violation of probation hearing on
June 21, 2012.
Trial Court Opinion, 1/12/17, at 1-2. Both Appellant and the trial court have
complied with Pa.R.A.P. 1925.
Appellant presents the following issue for our review:
Should [Appellant’s] sentence be vacated because he was
not afforded a speedy probation revocation hearing, as required
by Pa.R.Crim.P. 708, and because the 580-day delay between
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his probation violation and revocation hearing prejudiced him by
increasing the duration of his incarceration?
Appellant’s Brief at 2.
Appellant contends that the trial court violated Pa.R.Crim.P. 708 by
failing to hold a revocation hearing as speedily as possible. Appellant’s Brief
at 7-12. Appellant contends that, because of the delay, his sentence should
be vacated.
In an appeal from a sentence imposed after the court has revoked
probation, we can review “the validity of the revocation proceedings, the
legality of the sentence imposed following revocation, and any challenge to
the discretionary aspects of the sentence imposed.” Commonwealth v.
Wright, 116 A.3d 133, 136 (Pa. Super. 2015). In Commonwealth v.
Woods, 965 A.2d 1225 (Pa. Super. 2009), we set forth the following
standard when considering the merits of a challenge to a less-than-speedy
probation violation hearing:
Pa.R.Crim.P. 708 provides, in relevant part, that:
Rule 708. Violation of Probation, Intermediate
Punishment, or Parole: Hearing and Disposition
***
(B) Whenever a defendant has been sentenced to
probation or intermediate punishment, or placed on
parole, the judge shall not revoke such probation,
intermediate punishment, or parole as allowed by
law unless there has been:
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(1) a hearing held as speedily as possible at which
the defendant is present and represented by
counsel; and
(2) a finding of record that the defendant violated a
condition of probation, intermediate punishment, or
parole.
Pa.R.Crim.P. 708(B)(1), (2).
The language “speedily as possible” has been
interpreted to require a hearing within a reasonable
time. Rule 708 does not establish a presumptive
period in which the Commonwealth must revoke
probation; but instead, the question is whether the
delay was reasonable under the circumstances of the
specific case and whether the appellant was
prejudiced by the delay. The relevant period of
delay is calculated from the date of conviction or
entry of guilty plea to the date of the violation
hearing.
In evaluating the reasonableness of a delay, the
court examines three factors: [1] the length of the
delay; [2] the reasons for the delay; and [3] the
prejudice resulting to the defendant from the delay.
The court must analyze the circumstances
surrounding the delay to determine if the
Commonwealth acted with diligence in scheduling
the revocation hearing. Prejudice in this context
compromises the loss of essential witnesses or
evidence, the absence of which would obfuscate the
determination of whether probation was violated, or
unnecessary restraint of personal liberty.
Commonwealth v. Clark, 847 A.2d 122, 123-124 (Pa. Super.
2004) (citations omitted).
Woods, 965 A.2d at 1227-1228.
We first consider the length of the delay. Our review of the record
reflects that on January 11, 2011, after having pled nolo contendere to
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luring a child into a motor vehicle and related crimes, Appellant was
sentenced to an aggregate term of incarceration of one to five years,
followed by five years of probation. On June 21, 2012, the trial court
ultimately conducted a revocation hearing in the instant matter and found
Appellant to be in violation of his probation. Hence, the delay involved a
period of approximately one year and five months. We recognize that we
have held delays of shorter duration to be reasonable. See
Commonwealth v. Pelzer, 466 A.2d 159 (Pa. Super. 1993) (holding that a
ten-month delay was reasonable and not violative of former Rule 1409);
Commonwealth v. Woods, 965 A.2d 1225 (Pa. Super. 2009) (holding that
a delay of approximately nine months was not violation of probationer’s right
to speedy violation of probation hearing). We have also held protracted
delays to be unreasonable. See Commonwealth v. McCain, 467 A.2d 382(Pa. Super. 1983) (concluding that a twelve-month delay cannot be
dismissed as “intrinsically reasonable”). Although we conclude that the
length of the delay in holding Appellant’s probation-violation hearing was not
intrinsically reasonable, the length of the delay is not the sole factor we
must review.
Therefore, “we must [next] examine the reasons for the delay to
determine whether the Commonwealth acted with due diligence in
scheduling the revocation hearing.” Woods, 965 A.2d at 1228. Specifically,
the second factor in the reasonableness analysis requires scrutiny of the
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reasons for the delay and the surrounding circumstances to evaluate
whether the Commonwealth was diligent in scheduling the hearing.
Commonwealth v. Mines, 797 A.2d 963, 965 (Pa. Super. 2002).
In discussing the delay at issue, the trial court stated the following:
In evaluating the reasons for the time delay, it is apparent that
the continuances were purely administrative in nature,
composing chiefly of scheduling and videoconferencing issues.
Moreover, according to the docket, the Commonwealth did not
initiate the continuances and therefore the delay was not
attributable to the Commonwealth. Therefore, none of the
continuances “represent[ed] a deliberate attempt by the
Commonwealth to hamper ... or prejudice” the defense.
Commonwealth v. Dickens, 475 A.2d 141, 143 (Pa. Super. Ct.
1984). Furthermore, the docket reflects that Appellant’s
violation of probation hearing was originally scheduled less than
one month after his new arrest.
Trial Court Opinion, 1/12/17, at 4.
Appellant has offered no reason to overturn the trial court’s conclusion
that the delay was not attributable to the Commonwealth. Indeed, our
review of the certified record supports the determination of the trial court
that the delays were not attributable to the Commonwealth. Furthermore,
the record reflects multiple docket entries contain explanations for the
revocation hearing being continued, such as: “hearing continued judge not
sitting;” “hearing continued defendant not brought down;” “snow emergency
courts closed;” “violation of probation hearing continued for video date; date
not yet given;” and “violation of probation hearing continued technical issues
with video hearing; defendant to be brought down. writ to be prepared.”
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Hence, any allegation that the Commonwealth was not diligent in scheduling
a revocation hearing lacks merit.
Nevertheless, even if we were to conclude that the reasons for the
delay in this case appeared to be lacking, we must examine the final factor.
“[W]here the Commonwealth provides no explanation for the delay, the
court should not attribute the delay to the defendant; instead, the court
should analyze whether the delay prejudiced the defendant.”
Commonwealth v. Christmas, 995 A.2d 1259, 1263 (Pa. Super. 2010)
(citation omitted). “To demonstrate a violation of his right to a speedy
probation revocation hearing, a defendant must allege and prove the delay
in holding the revocation hearing prejudiced him.” Id.The meaning of prejudice in the context of providing a prompt
revocation hearing “has been interpreted as being something, which could
detract from the probative value and reliability of the facts considered,
vitiating the reliability of the outcome itself.” Commonwealth v.
Marchesano, 544 A.2d 1333, 1336 (Pa. 1988). “Prejudice in this context
compromises the loss of essential witnesses or evidence, the absence of
which would obfuscate the determination of whether probation was violated,
or unnecessary restraint of personal liberty.” Woods, 965 A.2d at 1227-
1228 (citation omitted).
“[W]here a conviction on new charges conclusively establishes the
defendant’s probation violation, the defendant cannot claim a delay in his
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[probation-revocation] hearing prejudiced him because he lost favorable
witnesses and evidence.” Christmas, 995 A.2d at 1263-1264. Moreover, if
a defendant is already incarcerated on the charges that triggered the
probation revocation, he cannot claim the delay in holding his revocation
hearing caused him any loss of personal liberty. Id. at 1263.
Here, Appellant concedes that he did not suffer prejudice from the
delay related to his ability to defend against whether probation was violated.
Appellant’s Brief at 12 n.2. Indeed, it is undisputed that Appellant’s
probation revocation was based entirely upon new criminal charges and
convictions. Thus, Appellant has not established prejudice in this regard.
However, Appellant contends that the delay subjected him to an
unnecessary restraint of personal liberty. Appellant’s Brief at 11-12.
Appellant baldly alleges that the delay increased the amount of time he
would have to serve in prison. Id. at 11.
Our review of the record reflects that, at the time of the revocation
hearing, Appellant was serving a term of incarceration of one to five years
for the charges that directly resulted in the violation of his probation. N.T.,
6/21/12, at 7. Upon the revocation of his probation, the court sentenced
Appellant to serve a term of incarceration of two to four years to run
consecutively to the sentence imposed at CP-51-CR-0007379-2010, which
involved the charges that led to the revocation of his probation. Hence,
Appellant was not unnecessarily deprived of personal liberty by the delay
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because he was not incarcerated for additional time. Christmas, 995 A.2d
at 1263. See also Clark, 847 A.2d at 125 (no prejudice as defendant was
not incarcerated for additional time). Accordingly, we conclude that
Appellant’s claim of prejudice lacks merit and find that he is not entitled to
relief based upon a claimed violation of his right to a speedy revocation
hearing.
As an additional matter, we observe that Appellant incorrectly
indicates that the sentence imposed upon revocation of his probation was to
run “concurrent” to the sentence he was serving on the subsequent charges
at CP-51-CR-0007379-2010. Appellant’s Brief at 1, 5 and 11. However, our
careful review of the certified record reflects that, at the time of sentencing
following the revocation of probation, the court specified that Appellant’s
sentence was to be served “consecutive” to the sentence that he was
currently serving. N.T., 6/21/12, at 7. Likewise, the written sentencing
order also specifies that the revocation sentence was to be served
“consecutive” to the sentence Appellant was serving at CP-51-CR-0007379-
2010. Nevertheless, the trial court’s corresponding docket entry erroneously
indicates that the sentence of two to four years is to run concurrent to the
sentence at CP-51-CR-0007379-2010.
As we have expressed, the written sentencing order controls any
sentencing dispute. See Commonwealth v. Willis, 68 A.3d 997, 1010 (Pa.
Super. 2013) (reiterating the rule that written sentence generally controls
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where discrepancy exists between sentence as written and sentence as
orally pronounced). We must conclude that the erroneous docket entry was
due to a clerical error. In addition, we are mindful of the long standing
proposition that “[c]lerical errors or inaccuracies in docket entries may be
corrected by the trial court so that they conform to the facts.”
Commonwealth v. Mount, 93 A.2d 887, 888 (Pa. Super. 1953).
Accordingly, we remand for the trial court to exercise its authority and
correct the clerical error on the docket so that the docket entry comports
with the sentencing order.
Judgment of sentence affirmed. Case remanded for correction of a
clerical error on the docket. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/25/2017
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