Com. v. Butler

Citation389 Pa.Super. 209,566 A.2d 1209
PartiesCOMMONWEALTH of Pennsylvania v. William BUTLER, Appellant. 299 PITTS. 1989
Decision Date21 November 1989
CourtSuperior Court of Pennsylvania

John H. Corbett, Jr., Public Defender, Pittsburgh, for appellant.

Kemal A. Mericli, Asst. Dist. Atty., Pittsburgh, for Com., appellee.

Before DEL SOLE, MONTEMURO and POPOVICH, JJ.

DEL SOLE, Judge.

William Butler, appellant, pleaded guilty to burglary, possession of instruments of crime and retail theft. No appeal was filed after his conviction. Almost a year later, Butler filed a pro se petition for post-conviction relief. After counsel was appointed, an amended petition was filed. Butler's post-conviction petitions were dismissed without a hearing and this appeal followed. Butler raises two issues on appeal which have merit. We reverse the order of the P.C.R.A. court and discharge the appellant.

On October 5, 1985, Butler was charged with retail theft in Allegheny County. On October 20, 1985, he was charged with burglary and possession of instruments of crime. Butler did not appear for a preliminary hearing on the charges of burglary and possession of instruments of crime, and he failed to appear for a formal arraignment on the charge of retail theft. As a result, Butler's bond was forfeited and a bench warrant was issued for his arrest.

On June 10, 1986, the Pennsylvania Board of Probation and Parole discovered that Butler was detained by officials in South Carolina. Following disposition of criminal proceedings in South Carolina, an extradition hearing was conducted in South Carolina on September 9, 1986. As a result of that hearing, Butler was transported back to Pennsylvania on December 8, 1986.

On April 15, 1987, in response to Butler's motion to dismiss under Rule 1100, the trial court dismissed the retail theft, burglary and possessing the instruments of crime charges. The Commonwealth filed a Motion for Reconsideration on April 16, 1987 which was granted by the trial court on May 20, 1987.

The two issues raised by Butler are centered on this grant of reconsideration. Butler argues that on May 20, 1987, the trial court no longer had jurisdiction to grant a reconsideration motion and Butler's counsel was ineffective for not objecting to the trial court's jurisdiction at trial or on appeal. We agree.

Pennsylvania has adopted the U.S. Supreme Court's standard of determining ineffective assistance of counsel. In Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the U.S. Supreme Court announced a two-prong test for ineffectiveness claims: "First, the defendant must show that counsel's performance was deficient.... [and] ... [s]econd, the defendant must show that the deficient performance prejudiced that defense." 466 U.S. at 687, 104 S.Ct. at 2064 in Commonwealth v. Pierce, 515 Pa. 153, 157-158, 527 A.2d 973, 974-975, (1987). The actions of Butler's counsel in the present case satisfied both prongs of the Strickland/ Pierce test.

The performance of Butler's counsel was deficient for not objecting to the trial court's jurisdiction when the court granted the Commonwealth's motion for reconsideration. The trial court granted the motion on May 20, 1987, thirty-five days after the court had granted Butler's motion to dismiss. Generally, a trial court's jurisdiction only extends for thirty days after such an action:

Except as otherwise provided or prescribed by law, a court upon notice to the parties may modify or rescind any order within 30 days after its entry, notwithstanding the prior termination of any term of court, if no appeal from such order has been taken or allowed.

42 Pa.C.S.A. § 5505

An order sustaining a motion to dismiss and discharging a defendant is a final order. Commonwealth v. Andrews, 251 Pa.Super. 162, 380 A.2d 428 (1977). Absent fraud, a trial court lacks jurisdiction to rescind a prior order granting a defendant's motion to discharge the prosecution if the court did not act within thirty days of the dismissal order. Commonwealth v. Sheppard, 372 Pa.Super. 550, 539 A.2d 1333 (1988). PCRA relief is permitted where it is established that the tribunal lacked jurisdiction. 42 Pa.C.S.A. § 9543(a)(2)(viii). In the case of fraud or other equitable demands, our Supreme Court has allowed trial courts to modify or rescind orders beyond the statutory time limit. Estate of Gasbarini v. Medical Center of Beaver, 487 Pa. 266, 409 A.2d 343 (1979). There are no such extraordinary circumstances in the present case.

The Commonwealth argues that this case is controlled by Commonwealth v. Kern, 294 Pa.Super. 151, 439 A.2d 795 (1982). In Kern, a panel of this court held that an order...

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9 cases
  • Com. v. Quinlan
    • United States
    • Superior Court of Pennsylvania
    • April 8, 1994
    ...if a sentence results from a proceeding in a tribunal without jurisdiction. 42 Pa.C.S.A. § 9543(a)(2)(viii); Commonwealth v. Butler, 389 Pa.Super. 209, 566 A.2d 1209 (1989). Trial courts have the power to alter or modify a criminal sentence within thirty days after entry, if no appeal is ta......
  • Com. v. Dasilva
    • United States
    • Superior Court of Pennsylvania
    • February 28, 1995
    ...opinion in Commonwealth v. Kern, 294 Pa.Super. 151, 439 A.2d 795 (1982), overruled on other grounds by Commonwealth v. Butler, 389 Pa.Super. 209, 566 A.2d 1209 (1989): it is axiomatic that in order to prevail on a plea of double jeopardy the defendant must establish that he has already been......
  • Commonwealth v. James
    • United States
    • United States State Supreme Court of Pennsylvania
    • May 29, 2013
    ...only to final orders. See Commonwealth v. Bowden, 456 Pa. 278, 309 A.2d 714, 716–17 (1973). 5. Appellee cites Commonwealth v. Butler, 389 Pa.Super. 209, 566 A.2d 1209 (1989), in support of this proposition. However, Butler involved the Commonwealth seeking reconsideration of a trial court's......
  • Justice v. Justice
    • United States
    • Superior Court of Pennsylvania
    • September 28, 1992
    ...No. 973 E.D. Allocatur Docket 1990 (Pa. Oct. 31, 1990) [appeal denied, 527 Pa. 650, 593 A.2d 422 (1991) ]; Commonwealth v. Butler, 389 Pa.Super. 209, 566 A.2d 1209 (1989) (stating Luckenbaugh has overruled Kern, so that granting a rule to show cause is insufficient to toll the thirty-day ju......
  • Request a trial to view additional results

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