Com. v. Dwaileebe, M.

J-A14008-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MARK JOSEPH DWAILEEBE :
:
Appellant : No. 1413 WDA 2019
Appeal from the Judgment of Sentence Entered August 26, 2019
In the Court of Common Pleas of McKean County Criminal Division at
No(s): CP-42-CR-0000340-2015
BEFORE: SHOGAN, J., McLAUGHLIN, J., and MUSMANNO, J.
MEMORANDUM BY SHOGAN, J.: FILED SEPTEMBER 29, 2020
Appellant, Mark Joseph Dwaileebe, appeals from the judgment of
sentence entered on August 26, 2019, in the McKean County Court of Common
Pleas. We affirm.
The trial court summarized the relevant facts and procedural history of
this case as follows:
[Appellant] entered a valid guilty plea on September 3,
2015, to Count 2 of the Information, Possession of Drug
Paraphernalia.[1] See Plea Tr. 9-3-2015, Pages 1-18. The factual
basis for the plea was: “on or about July 13, 2014, [Appellant] did
possess with intent to use several syringes, a spoon with residue,
a pill crusher, cotton swabs and two rubber tourniquets for
introducing a controlled substance into the human body.” Plea Tr.
9-3-2015, Page 14. The court advised [Appellant], in open court:
“We will set sentence for October 8th (2015) at 1:00 p.m., and
we will order a Prior Criminal Record Check. So we will see you
back here sir on October 8th.” Plea Tr. 9-3-2015, Page 77.
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1 35 P.S. § 780-113(a)(32).
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However, the court did not see [Appellant] back on October 8,
2019. At the time scheduled for sentence [Appellant] did not
appear. Sentence Tr. 10-8-2015, Pag[e]s 3-4. When [Appellant’s]
case was called his Attorney at that time, Douglas Garber, Esquire,
Chief McKean County Public Defender, advised the court:
[Appellant] is not here. We had received a call this
morning from an individual who said … ‘[Appellant]
had been living with him and that [Appellant] was no
longer living with him’ but this individual informed us
that [Appellant’s] mother called the individual and
said that ‘[Appellant] is in jail somewhere in New York
State.’ He didn’t tell us where[;] we are trying to find
out more information[,] but the bottom line [is
Appellant] is not here today.
Sentence Tr. 10-8-2015, Pages 3-4. The court then issued a bench
warrant for the arrest of [Appellant] for failure to appear for
sentencing. Sentence Tr. 10-8-2015, Page 4. Attorney Garber did
not provide any additional information at any later date to the
court or the District Attorney’s Office regarding [Appellant’s]
whereabouts / location.
Chief Public Defender Garber retired and Chief Public
Defender Attorney Philip Clabaugh thereafter represented
[Appellant]. Sentencing was scheduled a second time for January
17, 2019. [Appellant] did not appear. Attorney Clabaugh advised
the court that [Appellant] was supposed to be released from [jail
in] New York no later than December 8, 2018; and, “now the
notice that we sent him did get kicked back, said he was no longer
there. I haven’t had any contact other than through letter to him
to know --;” and “All I can tell you is I have the notice that we
sent to the last facility that he was in, and it was returned to us,
so he did not get this one.” 1-17-2019, Sentencing Tr. Pages 2-3.
Sentenc[ing] was rescheduled to April 25,2019. [Appellant]
again did not appear. Attorney Clabaugh indicated that
[Appellant] “was sending me mail from jail.” Sentence Tr. 4-25-
2019, page 4. He also explained: “[Appellant] maxed out his
sentence in New York State on December 8th of [20]18. The only
address we have has been returned to us he was no longer in the
facility by the time we sent him his last notice. All the phone
numbers we have are no longer active numbers for him.”
Sentence Tr. 4-25-2019, page 4. The court indicated that
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[Appellant] had sent a confusing letter to the court complaining
about having to make payments. Sentence Tr. 4-25-2019, page
4.
Attorney Clabaugh had filed a Motion to Dismiss prior to the
April 25, 2019, scheduled sentencing. Attorney Clabaugh asserted
in the Motion that the case should be dismissed due to delay in
sentencing. [Appellant] did not appear for the hearing on February
20, 2018, to address the Motion to Dismiss. At the time of the
hearing there was no dispute that [Appellant] was incarcerated in
the Fishkill Correctional Facility in the State of New York. 2-20-
2018 Hearing Tr. Page 4. Assistant District Attorney Ashley Shade
indicated, and the court accepted, that the Commonwealth had
contacted New York authorities to arrange to have [Appellant]
returned to McKean County for sentencing. However, they (New
York correctional authorities) advised the Commonwealth that,
because he had already entered a guilty plea in McKean County,
they refused to turn him over until after he was released in New
York. 2-20-2018 Hearing Tr. Page 12. In addition, she asserted
(and the court accepted as accurate) that the Commonwealth was
uncertain where [Appellant] was until “June and September of
2017 two years after he was supposed to be sentenced.” 2-20-
2018 Hearing Tr. Page 14.
On August 26, 2019, [Appellant], after being arrested and
held based upon a bench warrant issued on April 25, 2019, for
failure to appear for sentence, was brought before the court for
sentencing. He was sentenced to not less than 30 days to [a
maximum of] 9 months with credit [for] time served of 4[9][2]
days (automatically paroled), required to obtain and updated drug
and alcohol evaluation and follow his treatment plan, and, several
additional and standard conditions. 8-26-19 Sentencing Tr. Page
8.
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2 Although the trial court stated in its opinion that it provided Appellant credit
for forty-three days of time-served, the notes of testimony reflect that the
trial court corrected this calculation and afforded Appellant forty-nine days of
time-credit. N.T., 8/26/19, at 8.
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Trial Court Opinion, 10/23/19, at 1-3.3
On September 13, 2019, Appellant filed a timely notice of appeal. Both
the trial court and Appellant complied with Pa.R.A.P. 1925. On appeal,
Appellant raises the following issue: “Whether the [t]rial [c]ourt erred in
denying Appellant’s Motion to Dismiss Pursuant to Pa.R.Crim.P. 704.”
Appellant’s Brief at 5. Specifically, Appellant asserts that after he entered his
guilty plea, the trial court violated his due process right to a speedy sentencing
proceeding in violation Pa.R.Crim.P. 704. Id. at 15.
When reviewing a trial court’s order disposing of a motion to dismiss
pursuant to Pa.R.Crim.P. 704, we defer to the trial court on the issue of undue
delay and reverse only for an abuse of discretion. Commonwealth v.
Neysmith, 192 A.3d 184, 192 (Pa. Super. 2018). Mere errors in judgment
do not amount to an abuse of discretion. Id. (citations omitted). Rather,
discretion is abused where there is evidence of bias, ill-will, partiality,
prejudice, manifest unreasonableness, misapplication of law, or where there
is such a lack of support for the decision that it is clearly erroneous. Id. at
192-193 (citations omitted). Our scope of review is limited to the evidence of
record and the factual findings of the trial court, and we review the findings
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3 At the sentencing hearing, Appellant’s counsel renewed the motion to
dismiss pursuant to Pa.R.Crim.P. 704. N.T., 8/26/19, at 6. The trial court
denied the motion, imposed the aforementioned sentence, and ordered
Appellant to be released on parole. Id. at 8.
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of fact in the light most favorable to the prevailing party. Id. at 193 (citations
omitted).
Rule 704 provides, in relevant part, as follows:
(A) Time for Sentencing.
(1) Except as provided by Rule 702(B), sentence in a court
case shall ordinarily be imposed within 90 days of conviction
or the entry of a plea of guilty or nolo contendere.
(2) When the date for sentencing in a court case must be
delayed, for good cause shown, beyond the time limits set
forth in this rule, the judge shall include in the record the
specific time period for the extension.
Pa.R.Crim.P. 704(A)(1)-(2). When addressing speedy sentencing claims, this
Court has explained:
The appropriate remedy for a violation of Pa.R.Crim.P. [704], is
discharge. However, the remedy does not automatically apply
whenever a defendant is sentenced more than ninety days after
conviction without good cause. Instead, a violation of the ninety-
day rule is only the first step toward determining whether the
remedy of discharge is appropriate.
* * *
[A] defendant who is sentenced in violation of Pa.R.Crim.P. [704],
is entitled to a discharge only where the defendant can
demonstrate that the delay in sentencing prejudiced him or her....
To determine whether discharge is appropriate, the trial court
should consider:
(1) the length of the delay falling outside of the [ninety-day and
good-cause] provisions [of Pa.R.Crim.P. 704]; (2) the reason for
the improper delay; (3) the defendant’s timely or untimely
assertion of his rights; and (4) any resulting prejudice to the
interests protected by his speedy trial and due process rights.
Prejudice should not be presumed by the mere fact of an untimely
sentence. Our approach has always been to determine whether
there has in fact been prejudice, rather than to presume that
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prejudice exists. The court should examine the totality of the
circumstances, as no one factor is necessary, dispositive, or of
sufficient importance to prove a violation.
Commonwealth v. Diaz, 51 A.3d 884, 887 (Pa. Super. 2012) (quoting
Commonwealth v. Anders, 725 A.2d 170, 172-173 (Pa. 1999) (footnotes
and some internal citations omitted)).
The trial court addressed Appellant’s claim of error as follows:
[Appellant] was advised on September 3, 2015, when he
entered his guilty plea that he was required to return to be
sentenced on October 8, 2015, at 1:00 p.m. [Appellant] did not
appear on October 8, 2015. His attorney (Attorney Garber)
indicated that they had received second hand hearsay information
that [Appellant] was in jail “somewhere in New York State;” and,
they did not know where. Attorney Garber advised the court and
the Commonwealth that they were attempting to obtain more
information and it was reasonable to wait until hearing back from
Attorney Garber or his office. A bench warrant was issued for
failure of [Appellant] to appear for sentence. It was later
discovered that he was incarcerated in a correctional facility in
New York. However, this information was not available for some
time and was difficult to obtain. As the above facts demonstrate
[Appellant] did not maintain contact with counsel and they
struggled to ascertain his whereabouts and make contact with
him. Therefore, it is disingenuous for [Appellant] to now use the
delay caused by him being held on different charges and failing to
maintain contact with counsel as a basis for dismissal.
When the Commonwealth became aware that [Appellant]
was at the Correctional Facility in Fishkill, New York, they
contacted that facility and made a request to have [Appellant]
returned to McKean County. However, they were advised that
[Appellant] would not be released until he completed his sentence
[in New York]. Therefore, the Commonwealth made reasonable
efforts to have [Appellant] returned.
[Appellant’s] failure to return and/or provide his contact
information after he was released in New York is relevant as it
reflects his motive. He did not want to be sentenced and,
therefore, did not want anyone to know where he was. He knew
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that sentencing was still pending in McKean County as he was told
to be back when he plead guilty and then wrote letters to the court
talking about missing his previous sentence hearing. He had to
be apprehended in New York and brought back to Pennsylvania
though the extradition process. He now asserts that the delay in
sentencing has caused him prejudice because he is unable to
move forward with his life; but, in December of 2018 when he
maxed out on his sentence in New York and was released from
incarceration, instead of returning to address this pending case
and move forward with his life, he took off. Since he failed to
return or stay in contact with his attorney or authorities after he
was released in December of 2018, this issue should be considered
waived.
Finally, [Appellant] has failed to demonstrate any prejudice
caused by delay. He was given a sentence of 30 days to 9 months,
given credit for the time he had served in McKean County and
released. We cannot just assume that the delay caused prejudice;
[Appellant] has to demonstrate specific prejudice. He has failed
to do so.
Trial Court Opinion, 10/23/19, at 5-6.
Pursuant to our aforementioned standard of review, we agree with the
trial court. Subsequent to Appellant entering his guilty plea, the
Commonwealth attempted to have Appellant transferred from the prison in
New York State to McKean County, Pennsylvania, for sentencing. The
Commonwealth asserted that New York would not release Appellant until after
he served his sentence in New York.4 The trial court credited the statements
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4 In a cursory fashion, Appellant mentions the Interstate Agreement on
Detainers Act (“IAD”), 42 Pa.C.S. §§ 9101-9108, and asserts that the
Commonwealth “should have taken steps” through the IAD to have Appellant
returned to Pennsylvania for sentencing. Appellant’s Brief at 18-19. However,
Appellant fails to develop this claim in any meaningful way. Because this
assertion is undeveloped, we conclude that it is waived. See Commonwealth
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made by the Commonwealth reflecting its attempts to have Appellant returned
to Pennsylvania. Additionally, it is undisputed that after Appellant completed
his sentence in New York, he did not return to McKean County, Pennsylvania.
Appellant corresponded with his counsel and the trial court demonstrating his
awareness of the need to return for sentencing, but he chose not to return.
Rather, Appellant did not arrive in Pennsylvania until after he was arrested in
Olean, New York, on the McKean County warrant and returned to Pennsylvania
through the extradition process. Therefore, the delay in sentencing was due
to the State of New York’s refusal to return Appellant to Pennsylvania, and
Appellant’s subsequent refusal to appear before the sentencing court in
McKean County. Moreover, once Appellant was extradited and returned to
Pennsylvania, the trial court imposed Appellant’s “bargained-for” sentence
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v. Wise, 171 A.3d 784, 791 (Pa. Super. 2017) (finding an issue waived where
the appellant failed to develop any argument or cite to controlling case law).
Were we to address the issue, we would conclude that it is meritless. At the
hearing held on February 20, 2018, the Commonwealth noted that the IAD
was inapplicable because Appellant had not been sentenced. N.T., 2/20/18,
at 11-12. We agree with the Commonwealth’s position. There is nothing in
the IAD that directs the interstate transfer of an individual for sentencing.
See Commonwealth v. Destephano, 87 A.3d 361 (Pa. Super. 2014)
(discussing the application of the IAD); see also Commonwealth v.
Williams, 425 A.2d 451, 455 (Pa. Super. 1981).
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and sentenced Appellant to the term he negotiated: thirty days to nine months
of incarceration with credit for time served.5
In sum, although there was undoubtedly a delay between Appellant’s
guilty plea and sentencing, when we view the facts in the light most favorable
to the Commonwealth, we conclude that the Commonwealth satisfied, albeit
minimally, the diligence required to avoid Appellant’s discharge.6 Moreover,
we conclude that Appellant suffered no prejudice due to the passage of time
between the guilty plea and sentencing, and we discern no abuse of discretion
or error of law in the trial court’s conclusion to deny Appellant’s motion to
dismiss.
For the reasons set forth above, we conclude that Appellant is entitled
to no relief. Accordingly, we affirm the judgment of sentence.
Judgment of sentence affirmed.
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5 The record reflects that Appellant negotiated the sentence of thirty days to
nine months of incarceration with credit for time served when he agreed to
plead guilty. N.T., 9/3/15, at 11-12.
6 Although we conclude that the Commonwealth exercised a level of diligence
that precludes Appellant from prevailing on appeal, we would be remiss in not
noting the Commonwealth’s lack of urgency and laissez-faire attitude in
fulfilling its duties as prosecutor.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/29/2020
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