Com. v. Robinson, T.

J-S60038-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
TERRANCE BERNARD ROBINSON
Appellant No. 321 MDA 2014
Appeal from the Judgment of Sentence January 14, 2014
In the Court of Common Pleas of Adams County
Criminal Division at No(s): CP-01-CR-0000706-2013
BEFORE: OTT, J., STABILE, J., and JENKINS, J.
MEMORANDUM BY JENKINS, J.: FILED DECEMBER 12, 2014
Appellant, Terrance Bernard Robinson, appeals from the judgment of
sentence entered in the Adams County Court of Common Pleas following his
bench trial convictions for delivery of a controlled substance and criminal
conspiracy.1 We affirm.
The trial court opinion sets forth the relevant facts and procedural
history of this appeal as follows.
Appellant was charged with three counts of delivery of a
controlled substance,[…]; one count of criminal conspiracy
to deliver a controlled substance, […]; and three counts of
criminal use of a communication facility, 18 Pa.C.S.A. §
7512,[2] by [c]riminal [c]omplaint filed on June 19, 2012.
Subsequent to the filing of the [c]omplaint, Appellant was
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1
35 P.S. § 780-113(a)(30) and 18 Pa.C.S. § 903(a)(1), respectively.
2
The Commonwealth later withdrew charges against Appellant for criminal
use of a communication facility.
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located in the Maryland Correctional Institution-
Hagerstown, Hagerstown, Maryland. A detainer from the
Pennsylvania charges was filed against him. On April 12,
2013, the Adams County Clerk of Courts Office received,
filed, and docketed a request for disposition of the charges
mailed by [Appellant] under the [Interstate Agreement of
Detainers (IAD)].[3] Appellant was returned to this
jurisdiction by the Adams County Sheriff’s Department on
June 6, 2013. He was produced before a Magisterial
District Judge for preliminary arraignment that same date
with a preliminary hearing date being set for June 12,
2013.
By correspondence dated June 6, 2013, and received by
the Magisterial District Judge on June 7, 2013, Appellant,
through private counsel, requested a continuance of the
scheduled June 12, 2013 preliminary hearing. The docket
transcript for the Magisterial District Judge indicates the
continuance request was granted on June 7, 2013 when
the Magisterial District Court continued [Appellant’s]
preliminary hearing until June 26, 2013. On June 26,
2013, [Appellant,] through counsel, requested a second
continuance of the preliminary hearing. The purpose of
the continuance was Appellant’s desire to retain different
private counsel. Accordingly, preliminary hearing was
rescheduled to July 31, 2013. At the preliminary hearing
held that date, all charges were bound to court.
Appellant was formally arraigned on September 23, 2013
at which time he was scheduled for pre-trial disposition on
October 28, 2013 with trial scheduled for the term
commencing December 2, 2013. On December 2, 2013,
the parties appeared for purposes of jury selection. Prior
to commencement of jury selection, [Appellant] filed a
written motion with the [c]ourt seeking dismissal of the
charges against him based upon a violation of the IAD. In
order to resolve the motion, [a] hearing was scheduled for
December 3, 2013 with trial continued as a result of the
motion until the term commencing January 21, 2014.
Following hearing, this [c]ourt denied [Appellant’s]
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3
42 Pa.C.S. § 9101.
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[m]otion to [d]ismiss. Appellant appeared in open court
on January 6, 2014 and requested that the charges against
him be scheduled for nonjury trial on January 14, 2014.
Trial Court Opinion, filed April 21, 2014, at 1-2.
On January 14, 2014, the trial court found Appellant guilty on three
counts of delivery of a controlled substance and one count of conspiracy to
deliver a controlled substance. The court sentenced Appellant to 5-10 years’
incarceration for each count, to run concurrently. On January 24, 2014,
Appellant timely filed a post sentence motion, which the court denied on
February 6, 2014. Appellant timely filed a notice of appeal on February 18,
2014. On February 21, 2014, the court ordered Appellant to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b),
which he timely filed on March 12, 2014.
Appellant raises the following issue for our review:
DID THE [TRIAL] COURT ABUSE ITS DISCRETION IN
FINDING THAT A DELAY RESULTING FROM AN OUT-OF-
COURT ORDER FOR CONTINUANCE WAS EXCLUDABLE
AGAINST APPELLANT IN CALCULATION OF HIS SPEEDY
TRIAL RIGHTS UNDER THE INTERSTATE ACT ON
DETAINERS (IAD), 42 PA.C.S. § 9101 ET SEQ., WHERE
THE MAGISTERIAL DISTRICT JUDGE FAILED TO RULE
UPON THE REQUEST FOR CONTINUANCE IN OPEN COURT,
PURSUANT TO THE MANDATES OF ARTICLE III(A)?
Appellant’s Brief at 4.
In essence, Appellant argues that because the magisterial district
justice court improperly continued his preliminary hearing nineteen days
from June 7, 2013 until June 26, 2013, the Commonwealth failed to bring
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him to trial within the speedy trial limits set forth in Articles III and IV of the
IAD. We disagree.
When evaluating speedy trial issues, our standard of review is whether
the trial court abused its discretion. Commonwealth v. Booze, 953 A.2d
1263, 1272 (Pa.Super.2008). Our Supreme Court defines “abuse of
discretion” as follows:
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.
Commonwealth v. Chambers, 685 A.2d 96, 104 (Pa. 1996), cert. denied,
522 U.S. 827 (1997). Both Rule 600 and the IAD seek to bring the
criminally accused to a speedy trial and serve two interests: (1) protection of
the accused’s speedy trial rights and (2) protection of society.
Commonwealth v. Woods, 663 A.2d 803, 809 (Pa.Super.1995). In
addition:
The IAD is a compact among 48 states, the District of
Columbia and the United States. Cuyler v. Adams, 449
U.S. 433, 436 n. 1, 101 S.Ct. 703, 66 L.Ed.2d 641 (1981).
The IAD establishes procedures for the transfer of
prisoners incarcerated in one jurisdiction (the ‘sending
state’) to the temporary custody of another jurisdiction
(the ‘receiving state’), which has lodged a detainer against
them. Commonwealth v. Williams, 586 Pa. 553, 896
A.2d 523, 536 n. 5 (2006). ‘The policy of the [IAD] is to
encourage the expeditious and orderly disposition of
charges and its purpose is to promote and foster prisoner
treatment and rehabilitation programs by eliminating
uncertainties which accompany the filing of detainers.’
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Commonwealth v. Merlo, 364 A.2d 391, 394
(Pa.Super.1976) (citations, quotation marks and italics
omitted).
Commonwealth v. Horne, 89 A.3d 277, 281 (Pa.Super.2014). The IAD
provides in relevant part:
Article III
(a) Whenever a person has entered upon a term of
imprisonment in a penal or correctional institution of a
party state, and whenever during the continuance of the
term of imprisonment there is pending in any other party
state any untried indictment, information or complaint on
the basis of which a detainer has been lodged against the
prisoner, he shall be brought to trial within 180 days after
he shall have caused to be delivered to the prosecuting
officer and the appropriate court of the prosecuting
officer's jurisdiction written notice of the place of his
imprisonment and his request for a final disposition to be
made of the indictment, information or complaint:
Provided, [t]hat for good cause shown in open court, the
prisoner or his counsel being present, the court having
jurisdiction of the matter may grant any necessary or
reasonable continuance. The request of the prisoner shall
be accompanied by a certificate of the appropriate official
having custody of the prisoner, stating the term of
commitment under which the prisoner is being held, the
time already served, the time remaining to be served on
the sentence, the amount of good time earned, the time of
parole eligibility of the prisoner, and any decisions of the
state parole agency relating to the prisoner.
* * *
Article VI
(a) In determining the duration and expiration dates
of the time periods provided in Articles III and IV of this
agreement, the running of said time periods shall be tolled
whenever and for as long as the prisoner is unable to
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stand trial, as determined by the court having jurisdiction
of the matter.
42 Pa.C.S. § 9101 (emphasis added). While it is the Commonwealth’s
responsibility to insure that a defendant is tried within the time period
specified by the IAD, Commonwealth v. Mayle, 780 A.2d 677, 682
(Pa.Super.2001), “the IAD may be tolled by the defendant’s own actions,”
including the filing of motions to dismiss and the time it takes to resolve
them. Commonwealth v. Montione, 720 A.2d 738, 741 (Pa. 1998), cert.
denied, 526 U.S. 1098, 119 S.Ct. 1575, 143 L.Ed.2d 671 (1999).
Regarding Appellant’s contention that he did not join in his counsel’s
request for a continuance, the statute clearly states that continuances may
be granted “for good cause shown in open court, the prisoner or his counsel
being present[.]” 42 Pa.C.S. § 9101, Article III(a). “The disjunctive ‘or’
clearly indicates that the defendant need not expressly join in his counsel's
request for a continuance.” Commonwealth v. Diggs, 482 A.2d 1329,
1331-32 (Pa.Super.1984).
We hold that Appellant was tried within the IAD’s speedy trial time
limits. On April 12, 2013, the Adams County Clerk of Courts Office received,
filed and docketed a request for disposition of the charges mailed by
Appellant under the IAD. At that point, the IAD’s 180-day run date was
October 9, 2013. However, by correspondence dated June 6, 2013,
Appellant, through private counsel, requested a continuance of the
scheduled June 12, 2013 preliminary hearing. On June 7, 2013, the
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Magisterial District Court continued Appellant’s preliminary hearing until June
26, 2013. Nothing was improper about this continuance. Although
Appellant argues that counsel made the continuance request without his
consent, Appellant did not need to join in counsel’s request for the request
to be valid. Diggs, supra, 482 A.2d at 1331-32. Appellant also contends
that the continuance was invalid because defense counsel made his
continuance request in a letter instead of in “open court”, the location
required under the IAD. 42 Pa.C.S. § 9101, Article III(a). We agree with
the trial court’s reasoning on this issue:
Certainly, a continuance request sought by the
Commonwealth should only be granted in open court
where the defendant and counsel have the
opportunity to respond. That is not the circumstance
instantly. Rather, it is the Appellant himself, through
his attorney, that requested the continuance thus
voluntarily forfeiting the need for a hearing in open
court. Rather than being the result of an error by
which Appellant was denied due process, it was
Appellant's own actions, through counsel, that tolled
the IAD. See Montione, supra, 720 A.2d at 741
(the IAD may be tolled by the defendant's own
actions). Under these circumstances, the purpose of
the statute is not frustrated as delay in bringing the
Appellant to trial was self-created.
Trial Court Opinion, 4-5.
Appellant does not contend that any other continuances on or after
June 26, 2013 violated the IAD. For the sake of completeness, we note that
all scheduling changes on and after June 26, 2013 did not violate Appellant’s
speedy trial rights under the IAD. On June 26, 2013, Appellant, through
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counsel, requested a second continuance of the preliminary hearing, and the
court rescheduled the preliminary hearing to July 31, 2013. The 55 day
period between June 7, 2013, when the court granted Appellant’s first
continuance request, and July 31, 2013, the rescheduled date of the
preliminary hearing, constitutes an excludable delay that extended the 180-
day run date to December 2, 2013.
On December 2, 2013, Appellant moved to dismiss for violation of the
IAD, and the trial court continued trial until January 14, 2014, in order to
decide the motion. The filing of this motion tolled the IAD run date until
January 14, 2014, the date Appellant was tried and convicted. See
Montione, supra. Accordingly, we affirm the judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/12/2014
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