Com. v. Putman, T.

J-S21034-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
TODD ELVIS PUTMAN, :
:
Appellant : No. 1380 WDA 2016
Appeal from the Judgment of Sentence August 31, 2016
in the Court of Common Pleas of Potter County
Criminal Division at No(s): CP-53-CR-0000102-2015
BEFORE: LAZARUS, DUBOW, and STRASSBURGER*, JJ
MEMORANDUM BY STRASSBURGER, J.: FILED JUNE 16, 2017
Todd Elvis1 Putman (Appellant) appeals from the judgment of sentence
imposed following his guilty plea to theft by deception and authoring bad
checks. Specifically, Appellant challenges the trial court’s order denying his
motion filed pursuant to the speedy trial rule, Pa.R.Crim.P 600. We are
constrained to affirm.
On April 24, 2015, a citation was issued charging Appellant with the
aforementioned offenses and two additional counts of forgery. At the time,
Appellant was incarcerated in a state correctional facility. He was timely
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1
Given that his demand to this Court is “Turn Me Loose,” perhaps a more
appropriate middle name for Appellant would have been that of a different
50’s singer, Fabian.
*
Retired Senior Judge assigned to the Superior Court.
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arraigned and waived his preliminary hearing.2 On October 5, 2015,
Appellant completed two forms, a plea agreement and a guilty plea
statement, which outlined the following agreement between the parties: in
exchange for Appellant’s plea to theft by deception and authoring bad
checks, the Commonwealth would nolle pros the remaining counts of
forgery. There was no agreement as to Appellant’s sentence. The
agreement was signed by Appellant, his counsel, and the district attorney
assigned to the case; the statement was signed by Appellant and his
counsel. However, this agreement was never presented to the court, nor
placed on the record.
The record shows no docket activity related to this case until May 2,
2016, when the court issued the following order: “Order [Department of
Corrections] DOC is hereby ordered to detain Deft until [the instant case]
has been resolved.” Order 5/2/2016. On May 4, 2016, Appellant was
released from state prison. That same day, the trial court issued a second
order dismissing the detainer and instructing Appellant to contact the Potter
County Public Defender upon his release from state prison. On May 9, 2016,
Appellant’s public defender requested to withdraw from the case due to a
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2
Even though Appellant remained incarcerated past his Rule 600 run date,
there was no violation of Pa.R.Crim.P. 600(B) in this case. Appellant’s bond
was initially set at $2500; however, on June 22, 2015, his bond in this
matter was modified to unsecured so he could continue serving his state
sentence with an anticipated release date in June of 2016. Thus, Appellant
was not incarcerated on this case past the 180 days proscribed in the Rule.
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conflict. Motion to Withdraw, 5/9/2016. This request was granted and, on
May 10, 2016, new counsel was appointed.
On May 31, 2016, an order was entered placing Appellant’s case on
the call of the list for June 17, 2016. Appellant filed a motion to dismiss
pursuant to Rule 600 on June 7, 2016, and a hearing was held on July 1,
2016.3 At the hearing, the Commonwealth presented as evidence a copy of
Appellant’s guilty plea agreement which contained a notation that, on
October 4, 2015, the district attorney’s office sent a copy of Appellant’s
paperwork to the court administrator along with a request to set a date for
Appellant’s plea via video-conference as he was still incarcerated at the
time. N.T., 7/1/2016, at 7-8.
The Commonwealth also presented a series of emails between a
secretary from the district attorney’s office, Emily Robinson, and a court
administrator, Jenny Saulter. The emails indicate that on October 5, 2015
Robinson initially requested a plea date for Appellant. The read receipt
shows that this email was read by Saulter on October 6, 2016.
Commonwealth’s Exhibit 3. Robinson followed up with Saulter on January
27, 2016. Commonwealth’s Exhibit 4. After determining that Appellant had
not yet pled guilty, Robinson asked if Saulter could “please set him up for a
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3
Appellant did not attend the Rule 600 hearing in person because he was in
a medical rehabilitation facility. According to his counsel, he was bedridden
as a result of two broken legs and a broken back. N.T., 7/1/2016, at 1.
Appellant was permitted to attend the hearing by phone. Id. at 3.
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plea date via video.” Id. On March 30, 2016, Robinson sent an email to
Mary Durst at the Potter County Public Defender’s Office asking whether
Appellant had been sentenced. Commonwealth’s Brief at 5. Durst responded,
acknowledging receipt of the email, and promised to respond the next day.
Id. There is no record of any further communication between Robinson and
Durst.
On April 8, 2016, Robinson emailed Saulter to ask whether she had
“had any luck” scheduling Appellant for a plea date. Commonwealth’s Exhibit
6. In her April 8 email, Robinson informed Saulter that she “believed”
Appellant was still in state custody. Id. Saulter replied that she “totally
forgot” about Appellant’s case and would work on it that afternoon. Id. On
April 12, 2016, a notice was filed with the Potter County Clerk of Courts
scheduling Appellant’s plea and sentencing via video-conference for May 4,
2016. Commonwealth’s Exhibit 7. This document does not appear on the
docket.
Following the hearing, the trial court denied Appellant’s motion finding
that the delay in bringing Appellant to trial was attributable to “a failure to
promptly schedule through the Office of the Court Administrator, and
through no fault of either [Appellant] or the Commonwealth.” Order,
7/6/2015. The parties were ordered to determine a resolution for the case
within 5 days. On July 7, 2016, Appellant entered a plea to one count of
theft by deception and one count of bad checks. On August 31, 2016, he
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was sentenced to an aggregate term of seven to 14 months’ incarceration.
This timely appeal followed.4 Appellant was ordered to file a concise
statement of errors on appeal pursuant to Pa.R.A.P. 1925(b) and one was
filed. In response, the trial court filed an opinion in support of order stating
that its reasoning was contained in the July 1, 2016, Rule 600 hearing
transcript and accompanying order denying Appellant’s motion.
On appeal, Appellant challenges the trial court’s Rule 600
determination. We address this claim mindful of the following.
We review challenges to Rule 600 rulings pursuant to the following
standard and scope of review:
In evaluating Rule [600] issues, our standard of review of
a trial court’s decision is whether the trial court abused its
discretion. Judicial discretion requires action in conformity with
law, upon facts and circumstances judicially before the court,
after hearing and due consideration. An abuse of discretion is not
merely an error of judgment, but if in reaching a conclusion the
law is overridden or misapplied or the judgment exercised is
manifestly unreasonable, or the result of partiality, prejudice,
bias, or ill will, as shown by the evidence or the record,
discretion is abused.
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.
Commonwealth v. Ramos, 936 A.2d 1097, 1100 (Pa. Super. 2007) (en
banc).
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4
Sentence was stayed pending appeal.
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The case at issue here was initiated on April 29, 2015; thus, Rule 600
required that trial commence within 365 days, or before April 28, 2016.
Appellant’s plea ultimately occurred on July 7, 2016. The Rule provides that
“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 in the computation of the time within which trial must
commence. Any other periods of delay shall be excluded from the
computation.” Pa.R.Crim.P. 600 (C)(1). The Comment to the Rule explains
that
[f]or 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 the 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 (emphasis added; citations omitted)
Instantly, the trial court and the parties agree that Appellant was not
brought to trial within 365 days, and that there was no delay attributable to
Appellant. N.T., 7/1/2016, at 18-19. However, the court found credible the
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Commonwealth’s evidence that the delay was due to oversights by the court
administrator in failing to schedule promptly Appellant’s plea. Id. at 20
(“What I’ve said here today, sir, is that there is no doubt that you were not
brought to trial as contemplated by [Rule 600], that did not happen. That
was not your fault[;] however, it also wasn’t the fault of the Office of the
District Attorney. Somewhere in the court system in the Office of the Court
Administrator apparently the matter simply did not get scheduled. I can’t
hold you responsible for that anymore than I can hold the District Attorney’s
Office responsible for that.”). In so doing, the court did not make a finding
regarding the Commonwealth’s exercise of due diligence.
“The Commonwealth … has the burden of demonstrating by a
preponderance of the evidence that it exercised due diligence. As has been
oft stated, [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) (citations and quotation marks
omitted).
Here, the Commonwealth offered seven exhibits at the Rule 600
hearing as evidence that it met its burden under the Rule. While the court
was correct in its determination that the court administrator bears some
responsibility for the delays in this matter, the records provided by the
Commonwealth do not demonstrate that it acted with due diligence
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throughout the course of this case. Nonetheless, we conclude that Rule 600
has not been violated.
The 159 days from the initiation of this case on April 29, 2015 until the
submission of Appellant’s guilty plea paperwork on October 5, 2015 was
properly included in the 365-day calculation. However, the following 113
days, from October 6, 2015 through January 27, 2016, during which time
the district attorney’s office attempted to schedule promptly a plea date for
Appellant, evidences a delay caused by circumstances outside of the
Commonwealth’s control and despite its exercise of due diligence. Thus, we
must exclude from the Rule 600 calculation those 113 days. See
Pa.R.Crim.P. 600(c)(1) (“[P]eriods of delay at any stage of the proceedings
caused by the Commonwealth when the Commonwealth has failed to
exercise due diligence shall be included in the computation of the time within
which trial must commence. Any other periods of delay shall be excluded
from the computation.”)
The remaining time, from January 28, 2016 through the April 28, 2016
run date, and the 70 day period from the run date until Appellant entered his
guilty plea and was sentenced on July 7, 2016, evidences complete lack of
concern on the part of the District Attorney about compliance with Rule 600.
Not once in any of her four emails did Robinson even mention the impending
April 28, 2016 Rule 600 run date. We are cognizant that Potter County
operates in trial terms, N.T., 7/1/2016, at 9-10, which makes scheduling a
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challenge. But this is all the more reason for the Commonwealth to stay
abreast of, and make administration aware of, approaching Rule 600 dates.
Yet, the Commonwealth never petitioned the Court to schedule Appellant’s
plea in light of the court administrator’s inaction and, most disturbingly, did
not petition to move the May 4, 2016 video conference plea date
despite knowing the date fell past Appellant’s April 28, 2016 Rule
600 run date. In fact, the first time the Court was made aware of the
potential Rule 600 violation was when Appellant filed his motion on June 7,
2016 and even then it took a month for the case to resolve. This certainly
does not fall within the “reasonable effort” contemplated by the Rule.
However, exclusion of the 113 day period from October 2015 to
January of 2016 places Appellant’s adjusted Rule 600 run date at August 19,
2016. Thus, we are constrained to find that no violation of the Rule occurred
where Appellant’s July 7, 2016 plea was entered within the adjusted time
period. Accordingly, although we cannot condone what occurred here, we
find no error in the court’s denial of Appellant’s Rule 600 motion.
At the Rule 600 hearing, the district attorney explained that
Appellant’s case was “currently on the backup list” for July 7, 2016. N.T.,
7/1/2016, at 10 (emphasis added). According to the district attorney, there
were “only two criminal trial days available for jury trial … August 4th and
August 17th” and the cases listed for those days had “priority time wise
even over [Appellant’s].” Id. (emphasis added). It bears noting that
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Appellant ultimately entered a guilty plea in this matter. That plea was
identical to that which was negotiated in October of 2015. Thus, the
agreement had already been negotiated, and the paperwork completed,
months prior to the actual plea date. We cannot conceive of an easier case
to resolve. The fact that it took so long to allow Appellant to enter a
previously negotiated plea is unbelievable. The fact that other cases took
precedence “time wise” over one that was already, at the time of the
hearing, 64 days past the original Rule 600 date in potential violation of the
Rule, is concerning to this Court. We remind the court, Potter County Court
Administration and, most importantly, the Office of the District Attorney that
“the rule is intended to protect the right of criminal defendants to a speedy
trial, protect society’s right to effective prosecution of criminal cases, and
help eliminate the backlog in criminal cases in the courts of Pennsylvania.”
Pa.R.Crim.P. 600 Comment. While perfect vigilance is not required, a
recognition of the importance of this Rule and its counterbalanced interests
is essential to the effectuation of justice.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/16/2017
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