Com. v. Glass

• Decision Date: 04 February 1991
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Guy Homer GLASS, Appellant.
• Court: Pennsylvania Supreme Court

Page 369

586 A.2d 369

526 Pa. 329

COMMONWEALTH of Pennsylvania, Appellee, v. Guy Homer GLASS, Appellant.

Supreme Court of Pennsylvania.

Submitted Sept. 28, 1990.

Decided Feb. 4, 1991.

[526 Pa. 331] Samuel Gold, Altoona, for appellant.

William J. Haberstroh, Dist. Atty., Donald E. Speice and David C. Gorman, Asst. Dist. Attys., Hollidaysburg, for appellee.

OPINION OF THE COURT

FLAHERTY, Justice.

This is an appeal, by allowance, from a memorandum opinion and order of the Superior Court which affirmed an order of the Court of Common Pleas of Blair County denying a petition for habeas corpus relief. The petition was filed by the appellant, Guy Homer Glass, seeking discharge from criminal liability on the ground that his constitutional rights to a speedy trial and due process were violated by a fifty-one month delay between conviction and sentencing. Appellant was awarded a new trial by the Superior Court, on the basis that representation by trial counsel was flawed by a conflict of interest. ¹ The sole issue on appeal is whether habeas corpus relief should have been granted.

This case arose from an incident in which appellant and several companions made an unprovoked attack upon a seventeen year old female. Appellant was convicted of attempted rape, conspiracy, attempted involuntary deviate sexual intercourse, indecent assault, corrupting the morals of a minor, and simple assault.

The fifty-one month delay in sentencing was attributable to the following sequence of events. A verdict finding appellant guilty was entered on June 10, 1983, and post-verdict motions were filed on June 20, 1983. The trial transcript was not filed, however, until March 4, 1986. The delay in filing the transcript was caused by a court reporter, who, although she had promptly transcribed the testimony, neglected to file the transcript. She left her employment with the county in June of 1984, having forgotten about the transcript. As to why she did not file it until March of 1986, she stated that "no one had asked for it or anything or it would have been at their disposal."

After the transcript was filed, trial counsel briefed the post-verdict motions. Briefs were filed on April 4, 1986. Appellant then sought, through a pro se petition, to have trial counsel dismissed and new counsel appointed. On April 21, 1986, the petition was granted. The order appointing new counsel provided that supplemental post-verdict motions could be filed nunc pro tunc, limited to claims of ineffective assistance of prior counsel. The supplemental motions were filed on June 5, 1986, and, by September of 1986, the motions had been briefed.

Further delay arose in December of 1986, when the trial judge resigned from the bench without having ruled upon the post-verdict motions. On December 14, 1986, the case was reassigned to the president judge, who, in March of 1987 conducted oral arguments, and, on July 22, 1987 denied appellant's post-verdict motions. Just before the post-verdict motions were denied, appellant filed, on July 20, 1987, a pro se petition for writ of habeas corpus seeking discharge on the ground that delays in sentencing had infringed his constitutional rights to speedy trial and due process. The petition was denied on August 5, 1987. Another petition for writ of habeas corpus raising the speedy trial and due process issues was filed, this time by counsel, on August 18, 1987. Nevertheless, a judgment of sentence providing for seven to fourteen years imprisonment was entered on August 31, 1987. The counselled petition for writ of habeas corpus was also denied on that date.

Notices of appeal were timely filed with respect to both the judgment of sentence and the denial of the counselled habeas corpus petition. The appeals were later consolidated.

The Commonwealth contends that the speedy trial issue was not timely presented to the trial court and that it was, therefore, waived. As stated in Pa.R.A.P. 302(a), "[i]ssues not raised in the lower court are waived and cannot be raised for the first time on appeal." It cannot be said, however, that the issue of delay in sentencing was not raised in the trial court, for, plainly, it was raised in July and August of 1987 via the petitions for writs of habeas corpus. The Commonwealth argues that it should have been raised at the earliest possible time, i.e., in the supplemental post-verdict motions filed in June of 1986, when appellant's newly acquired counsel was permitted to assert prior counsel's ineffectiveness. Specifically, it is argued that an ineffectiveness claim could have been framed in terms of prior counsel's failure to assert a speedy trial claim or a demand for prompt sentencing. Nevertheless, the very nature of the claimed wrongful delay is such that, even assuming arguendo that it could have been raised in June of 1986, its constitutional implications grew as the delay lengthened. It is, therefore, to be distinguished from claims of trial error which remain constant in substance and must be raised through timely post-verdict motions. See Commonwealth v. Gravely, 486 Pa. 194, 404 A.2d 1296 (1979).

To require that the speedy trial claim arising from delayed sentencing have been asserted at the earliest conceivable time, through the supplemental post-verdict motions filed in June of 1986 rather than through the subsequent petitions for writs of habeas corpus, would be unwarranted. It would also encourage the filing of needlessly premature claims. Counsel should not be required to assert speedy trial claims, seeking discharge of defendants, when they do not regard the claims as having attained sufficient substance to warrant relief. It does not follow, however, that they should refrain from requesting prompt sentencing. See discussion infra. Appellant's speedy trial claim was certainly of greater substance in July and August of 1987 than it was in June of 1986. The claim had not, therefore, been waived when it was asserted in 1987 through petitions for writs of habeas corpus. ²

This Court has firmly established a framework for analysis of cases where delays in sentencing have implicated rights to a speedy trial under the Sixth Amendment and under Article I, § 9 of the Pennsylvania Constitution. Commonwealth v. Glover, 500 Pa. 524, 458 A.2d 935 (1983); Commonwealth v. Pounds, 490 Pa. 621, 627, 417 A.2d 597, 599 (1980). The factors to be considered in such cases were described as follows in Commonwealth v. Glover, 500 Pa. at 528, 458 A.2d at 937:

In determining whether a defendant's constitutional speedy trial right has been violated, it must first be determined whether the delay itself is sufficient to trigger further inquiry. Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972); Jones v. Commonwealth, 495 Pa. 490, 434 A.2d 1197 (1981). If the delay is sufficient to trigger further inquiry, the reviewing court must balance the length of the delay with the reason for the delay, the defendant's timely assertion of his right to a speedy trial, and any resulting prejudice to the interests protected by the right to a speedy trial. Barker v. Wingo, supra; Commonwealth v. Pounds, 490 Pa. 621, 417 A.2d 597 (1980).

In the present case, there was nearly a fifty-one month delay between the conclusion of trial and sentencing. Such a delay is certainly more than sufficient to trigger this Court's further inquiry. Indeed, it is an unfortunate commentary upon court administration practices in Blair County that such a delay could occur. We note that this is one in a series of cases in which inordinate delays have been observed in sentencing procedures in Blair County. See Burkett v. Cunningham, 826 F.2d 1208, 1227 (3d Cir.1987) (compilation of cases involving delays in Blair County).

In evaluating the reason for the delay, we stated in Commonwealth v. Glover, 500 Pa. at 528, 458 A.2d at 937-38 (citing Barker v. Wingo, 407 U.S. at 531, 92 S.Ct. at 2192, 33 L.Ed.2d at 117) that the following guidelines are applicable:

A deliberate attempt to delay the trial in order to hamper the defense should be weighted heavily against the government. A more neutral reason such as negligence or overcrowded courts should be weighted less heavily but nevertheless should be considered since the ultimate responsibility for such circumstances must rest with the government rather than with the defendant. Finally, a valid reason, such as a missing witness, should serve to justify appropriate delay.

Appellant concedes that there was no deliberate action by the Commonwealth designed to delay his sentencing. The Commonwealth obviously did not cause the court reporter's failure to file a transcript or the trial judge's resignation from the bench. Delays caused by these factors were plainly the result of negligence, inefficiency, or overcrowding in the courts of Blair County. Under Commonwealth v. Glover, supra, such delays must nevertheless be weighed against the Commonwealth, but not heavily so. It is also to be recognized that certain delays must be charged to the appellant, rather than the Commonwealth. It was appellant who requested a change of counsel, thereby incurring the delays necessary for replacement of counsel and for filing and briefing supplemental post-verdict motions.

The next factor to be considered is whether appellant asserted his rights in a timely manner. Certainly, it appears that counsel for appellant could have been more aggressive in making inquiries into the whereabouts of the delayed transcript, so that post-verdict motions could be briefed, and in making a request for prompt sentencing. Indeed, it is conceded that no request for sentencing was ever made. Appellant claims that he did not wish to "needle or otherwise ire the court" by calling attention to the sentencing delay. Others might suggest that appellant refrained from asserting his desire for prompt sentencing until he believed he had a speedy trial claim that might result in a discharge from criminal...