Com. v. Lynn

• Decision Date: 13 January 2003
• Citation: 815 A.2d 1053
• Parties: COMMONWEALTH OF PENNSYLVANIA, Appellee, v. Bruce LYNN, Appellant.
• Court: Pennsylvania Superior Court

815 A.2d 1053

COMMONWEALTH OF PENNSYLVANIA, Appellee, v. Bruce LYNN, Appellant.

Superior Court of Pennsylvania.

Submitted October 7, 2002.

Filed January 13, 2003.

Stephen F. Becker, Lewisburg, for appellant.

Andrea F. McKenna, Assistant District Attorney, Harrisburg, for Commonwealth, appellee.

Before MUSMANNO, STEVENS and MONTEMURO¹, JJ.

OPINION BY MUSMANNO, J.:

¶ 1 Bruce Lynn ("Lynn") appeals from the judgment of sentence imposed following his conviction of criminal conspiracy to obtain drugs by fraud, forgery, and criminal conspiracy to commit forgery.² We reverse the judgment of sentence and discharge Lynn.

¶ 2 The trial court summarized the procedural history underlying the instant appeal as follows:

After a trial by jury, [Lynn] was convicted of criminal conspiracy to obtain drugs by fraud, forgery, and Criminal Conspiracy to commit forgery. On the charge of criminal conspiracy to obtain drugs by fraud, [Lynn] was sentenced to a period of not less than three (3) nor more than fifteen (15) years incarceration in a state correctional institution. On the charge of forgery [Lynn] was sentenced to a period of not less than nine (9) months nor more than five (5) years incarceration, that sentence to run concurrently with the sentence imposed on the charge of criminal conspiracy to obtain drugs by fraud. [Lynn] was sentenced to an identical nine (9) month to five (5) year concurrent sentence on the charge of criminal conspiracy to commit forgery.

At trial and sentencing[, Lynn's] counsel of record was Robert H. Steinberg. At sentencing [Lynn] expressed his displeasure with his counsel. [Lynn] asserted that he had received correspondence from Mr. Steinberg to the effect that Mr. Steinberg was going to raise a speedy trial issue under Pa.R.Crim.P. 600, and was going to file an Omnibus Pretrial Motion, but never did either. [Lynn] also alleged that he had written letters to his counsel regarding the exploration of a plea agreement that was not consummated. Immediately after sentencing we asked counsel for [Lynn] if he had reviewed [Lynn's] post-sentencing rights with him, as those rights are set forth on a three (3) page post-sentencing rights form document that has been used in this judicial district for a number of years. Counsel indicated that he had not, despite the fact that he had advance notice of the sentencing proceedings. We [then] had to move on to other matters and come back to this case to go through the colloquy with [Lynn] about his post-sentencing rights.

Upon the conclusion of the proceedings, we entered an Order appointing James L. Best, Attorney, who serves as conflicts counsel, to represent [Lynn].

Mr. Best filed his Statement of Matters Complained of on Appeal, which raised trial counsel's ineffectiveness. We entered an Order scheduling an evidentiary hearing so that a record on the issue could be developed for the benefit of the Superior Court. On March 21, 2002, the date of the [hearing], [Lynn] expressed his understandable displeasure with the fact that his new counsel had not met with him prior to the hearing to undertake any preparation. We would also note that Mr. Best failed to subpoena trial counsel to appear at the hearing. Given this untenable situation we relieved Mr. Best of his obligation to represent [Lynn] and appointed Stephen F. Becker, Attorney, as [Lynn's] appellate counsel.

Trial Court Opinion, 5/17/02, at 1-2. On April 25, 2002, the trial court conducted an evidentiary hearing on Lynn's ineffectiveness claims to facilitate appellate review.

¶ 3 On appeal, Lynn claims that counsel was ineffective because he failed to file a motion to dismiss the charges against him pursuant to Rule 600. Counsel also raises numerous additional claims of ineffective assistance of counsel. Based upon our resolution of the first claim, we will not address Lynn's remaining ineffectiveness claims.

¶ 4 To establish a claim of ineffective assistance of counsel, an appellant must show that (1) the issue which counsel did not address had arguable merit; (2) counsel had no reasonable basis for his or her action or inaction; and that (3) he was prejudiced by counsel's action or inaction. Commonwealth v. Jefferson, 777 A.2d 1104, 1106-07 (Pa.Super.2001).

¶ 5 Lynn first claims that trial counsel was ineffective for failing to file a Motion to dismiss the charges against him based upon a violation of Pa.R.Crim.P. 600. At the evidentiary hearing, trial counsel acknowledged that he did not file a motion to dismiss pursuant to Rule 600, and that he had no reasonable basis for this decision. N.T., 4/25/02, at 19-20. Moreover, the prejudice resulting from counsel's failure to file Rule 600 motion is self-evident. A motion to dismiss under Rule 600, if meritorious, would have resulted in dismissal of the charges against Lynn. Thus, there is no question that Lynn has met two of the prongs for establishing a claim of ineffective assistance of counsel. Accordingly, we now will determine whether the Rule 600 claim has arguable merit.

¶ 6 Rule 600 provides, in relevant part, as follows:

Trial in a court case in which a written complaint is filed against the defendant, when the defendant is at liberty on bail, shall commence no later than 365 days from the date on which the complaint is filed.

Pa.R.Crim.P. 600(A)(3).³ We begin our analysis of Lynn's claim by calculating the "mechanical run date" for purposes of Rule 600.

The mechanical run date is the date by which the trial must commence under Rule [600]. It is calculated by adding 365 days (the time for commencing trial under Rule [600]) to the date on which the criminal complaint is filed.... The mechanical run date can be modified or extended by adding to the date any periods of time in which delay is caused by the defendant. Once the mechanical run date is modified accordingly, it then becomes an adjusted run date.

Commonwealth v. Aaron, 804 A.2d 39, 42 (Pa.Super.2002) (quoting Commonwealth v. Cook, 544 Pa. 361, 373 n. 12, 676 A.2d 639, 645 n. 12 (1996)) (referring to prior Rule of Criminal Procedure 1100).⁴

¶ 7 The Commonwealth filed its Criminal Complaint against Lynn on April 6, 2000. N.T., 4/25/02, at 7. Because Lynn was free on bail, the Commonwealth was required to bring him to trial within 365 days; therefore, the mechanical run date for Lynn's trial to begin was April 6, 2001. Lynn's trial did not commence until October 15, 2001.

¶ 8 In order to determine whether Lynn was brought to trial within the time requirements of Rule 600, we must determine whether any excludable time exists. Rule 600 provides, in relevant part, as follows:

In determining the period for commencement of trial, there shall be excluded therefrom:

(1) the period of time between the filing of the written complaint and the defendant's arrest, provided that the defendant could not be apprehended because his or her whereabouts were unknown and could not be determined by due diligence;

(2) any period of time for which the defendant expressly waives Rule 600;

(3) such period of delay at any stage of the proceedings as results from:

(a) the unavailability of the defendant or the defendant's attorney;

(b) any continuance granted at the request of the defendant or the defendant's attorney.

Pa.R.Crim.P. 600(C).

¶ 9 Lynn's preliminary hearing was originally scheduled to take place on April 27, 2000, but was continued, at the request of the district justice, until November 16, 2000. The reason for this delay of nearly seven months is not set forth in the certified record and thus is unknown.⁵ The Commonwealth, however, admits the delay in its appellate brief. Brief for the Commonwealth at 8.

¶ 10 Delay caused by a district justice constitutes "judicial delay," and is not excludable time for purposes of calculating the Rule 600 run date. Commonwealth v. McCutcheon, 339 Pa.Super. 8, 488 A.2d 281 (1985).⁶ Here, the nearly seven month delay between the filing of the Criminal Complaint and the preliminary hearing was caused by the district justice, and is not excludable time under Rule 600. Rule 600 makes no exception for delay caused by a district justice.

¶ 11 Both the Commonwealth and Lynn admitted that Lynn requested a continuance of the preliminary hearing from November 16, 2000 until December 7, 2000, and from January 16, 2001 until February 6, 2001. These forty-two days are excluded for purposes of Rule 600. See Pa. R.Crim.P. 600(c)(2)(b) (stating that any continuance granted at the request of the defendant or his attorney is excluded for purposes of calculating the Rule 600 run date). Excluding this time, the Rule 600 adjusted run date became Friday, May 18, 2001.⁷

¶ 12 At the evidentiary hearing, Police Officer Todd Cox ("Cox"), the arresting officer, testified that on December 7, 2000, he withdrew the Criminal Complaint against Lynn. N.T., 4/25/02, at 9. On that same date, he refiled the Complaint, which set forth the same charges. Id. at 12. Cox testified that he was advised by the assistant district attorney to withdraw and refile the same charges against Lynn because of a "time problem." Id. at 11, 13. Lynn contends that the time period for determining Rule 600 compliance did not begin anew with Cox's refiling of the same Criminal Complaint. We agree.

¶ 13 In Commonwealth v. Simms, 509 Pa. 11, 500 A.2d 801 (1985), the Pennsylvania Supreme Court clarified the standard for determining when the Rule 600 period begins to run in a case where multiple complaints have been filed against a defendant. The Supreme Court explained:

[W]hen an initial complaint has been withdrawn or otherwise dismissed, the [Rule 600 time] period begins to run anew with the filing of a subsequent complaint only if (1) the earlier complaint was properly dismissed by a competent magisterial or judicial authority, and (2) the record does not reveal evidence of a prosecution attempt to circumvent Rule [600].

Id., at 15, 500 A.2d at 803; accord Commonwealth v. Schafer, 394 Pa.Super....