Commonwealth v. Allen
| Decision Date | 20 April 2021 |
| Docket Number | No. 817 EDA 2019,J-S29021-20,817 EDA 2019 |
| Parties | COMMONWEALTH OF PENNSYLVANIA v. TODD PHILLIP ALLEN Appellant |
| Court | Superior Court of Pennsylvania |
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appellant Todd Phillip Allen appeals from the judgment of sentence imposed after he pled guilty to one count of criminal use of a communication facility.1 Appellant claims that the trial court erred in denying his Pa.R.Crim.P. 600 motion to dismiss, that he is entitled to withdraw his plea, and that the trial court erred in imposing costs of prosecution without considering his ability to pay. We affirm.2
On May 20, 2017, the Commonwealth charged Appellant with two counts each of criminal use of a communication facility, possession of a controlled substance with intent to deliver (PWID), possession of a controlled substance, and possession of drug paraphernalia. Following a preliminary hearing, all of the charges were held for court.
On September 20, 2018, Appellant filed a "Petition to Dismiss for Lack of Prompt Trial Pursuant to the Requirement of Pa.R.Crim.P. No. 600." On October 1, 2018, the trial court held a hearing on Appellant's Rule 600 petition.3 Following the hearing, the trial court denied Appellant's motion to dismiss and granted Appellant nominal bail.
On October 2, 2019, the trial court ordered that Appellant's trial would begin on November 7, 2018. However, on November 5, 2018, Appellant pled guilty to one count of criminal use of a communications facility. In exchange for Appellant's guilty plea, the Commonwealth nolle prossed the remaining charges. At the conclusion of the guilty plea hearing, the court sentenced Appellant to a term of eleven and one-half to twenty-three months of incarceration, followed by a consecutive term of three years' probation. N.T.Guilty Plea/Sentencing Hr'g, 11/5/18, at 13. Additionally, the trial court ordered Appellant to pay the costs of prosecution. Id.
On November 13, 2018, Appellant filed a pro se post-sentence motion for resentencing/reconsideration. The trial court's docket entries reflect that this pro se filing was forwarded to Appellant's counsel of record, Thomas E. Carluccio, Esq.4 Appellant filed a pro se supplement to his motion for resentencing/reconsideration on January 3, 2019. However, the docket does not reflect that this filing was forwarded to Appellant's counsel of record pursuant to Pa.R.Crim.P. 576(A)(4) and Jette.
The trial court heard oral argument on Appellant's pro se motions, and Appellant appeared with Attorney Carluccio. N.T. Post-Sentence Mot. Hr'g, 2/2/19.5 On February 8, 2019, the trial court granted Appellant's post-sentence motion and resentenced Appellant to a term of six to twelve monthsof incarceration. The amended sentencing order did not inform Appellant of his post-sentence or appellate rights. See Pa.R.Crim.P. 720(B)(4)(a).
Appellant filed a pro se "emergency" post-sentence motion on February 11, 2019. This filing was not forwarded to Appellant's counsel, and the trial court scheduled a hearing on the motion for February 27, 2019. On February 27, 2019, the trial court filed an order reaffirming the February 8, 2019 resentencing order and denying Appellant's post-sentence motions as moot.
On March 13, 2019, Appellant's pro se appeal was filed in the trial court.6 On March 14, 2019, the trial court ordered Appellant to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b) within twenty-one days. On April 10, 2019, Appellant filed a pro se Rule 1925(b) statement. On April 15, 2019, Appellant filed a pro se motion to amend and supplement to the Rule 1925(b) statement.
On May 10, 2019, the trial court filed its Pa.R.A.P. 1925(a) opinion. In its opinion, the trial court found that there was no merit to the issues in Appellant's initial Rule 1925(b) statement. Further, the court concluded that Appellant's motion to supplement the Rule 1925(b) statement was without leave of court and untimely.
On June 6, 2019, this Court issued a rule to show cause why the appeal should not be quashed as untimely pursuant to Pa.R.A.P. 105(b) and Pa.R.A.P.903(a), because the March 13, 2019 notice of appeal was filed more than thirty days after February 8, 2019 judgment of sentence. Appellant filed a pro se response on June 13, 2019.
Meanwhile, on June 7, 2019, Appellant filed a pro se application for relief to this Court explaining that he wanted to represent himself on appeal. Six days later, on June 13, 2019, Appellant filed a pro se motion in which he once more asked to proceed pro se.7
On July 1, 2019, this Court filed an order directing the trial court to hold a hearing and determine if Appellant's waiver of counsel was knowing, intelligent, and voluntary, pursuant to Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998). However, on July 10, 2019, before the trial court could hold a Grazier hearing, the trial court appointed current counsel from the Montgomery County Public Defender's Office, to represent Appellant on appeal.
After the trial court appointed new counsel, this Court filed a second rule to show cause why the appeal should not be quashed as untimely. Rule to Show Cause, 8/6/19. On August 19, 2019, Appellant filed a counseled response to this Court's rule to show cause. On October 11, 2019, this Court discharged the August 6, 2019 rule to show cause and referred the decision as to whether Appellant's appeal was timely to this panel.
Initially, we address the timeliness of Appellant's appeal. See Commonwealth v. Pena, 31 A.3d 704, 706 (Pa. Super. 2011) (). Here, the trial court resentenced Appellant on February 8, 2019, and Appellant had thirty days in which to file a timely appeal. See Pa.R.A.P. 903(a). The thirtieth day was Sunday March 11, 2019. Therefore, Appellant had until Monday, March 12, 2019, to file a timely appeal. See 1 Pa.C.S. § 1908 (). The record reveals that Appellant's pro se appeal was dated March 7, 2019, and it contained a March 9, 2019, proof of service.8 Additionally, the envelope in which the appeal was mailed was post-marked March 11, 2019. Accordingly, Appellant mailed his notice of appeal, at the latest, on March 11, 2019, and we conclude that Appellant's appeal was timely. See Commonwealth v. Chambers, 35 A.3d 34, 38 (Pa. Super. 2011) ().
Appellant raises the following issues for our review:
In his first issue, Appellant contends that the Commonwealth failed to bring him to trial in a timely manner under Rule 600. Id. By way of background, on September 20, 2018, Appellant filed a motion to dismiss, and he alleged that the Commonwealth failed to bring him to trial within 365 days from the date that the complaint was filed. The trial court held a hearing on October 1, 2018. At the conclusion of the hearing, the trial court denied Appellant's Rule 600 motion. Order, 10/1/18. The trial court concluded that Appellant was responsible for delays in scheduling the trial, and the days were excluded from the calculation of the run date; the trial court calculated Appellant's adjusted run date as November 22, 2018. N.T. Rule 600 Hr'g, 10/1/18, at 54.
On appeal, Appellant asserts that the trial court incorrectly calculated the date upon which Appellant should have been tried, and the trial court erred in denying Appellant's Rule 600 motion to dismiss. Appellant's Brief at 10-12. Specifically, Appellant asserts that the thirty-three days between December 21, 2017, and January 23, 2018, should not have been excluded. Id. at 9-10. Appellant claims that when those thirty-three days are not excluded in the Rule 600 calculation, the adjusted run date would have occurred prior to November 5, 2018, the date Appellant entered his guilty plea. Id. at 12-13. Had he known that the adjusted run date had passed, Appellant alleges that he would not have entered a guilty plea on November 5, 2018. Id. at 13.
At the outset, we note that in order to be valid, a guilty plea must be knowingly, voluntarily, and intelligently entered. Commonwealth v. Bedell, 954 A.2d 1209, 1212 (Pa. Super. 2008). The entry of a guilty plea waives all non-jurisdictional defects, other than the legality of sentence and the validity of the plea. Commonwealth v. Eisenberg, 98 A.3d 1268, 1275 (Pa. 2014). When a defendant pleads guilty, an alleged violation of Rule 600 is reviewable only to the extent that the violation affected the voluntary nature of the plea. Commonwealth v. Sisneros, 692 A.2d 1105, 1107 (Pa. Super. 1997).
Our standard and scope of review of a trial court's denial of a motion to dismiss pursuant to Rule 600 is as follows:
In evaluating Rule 600 issues, our standard of review of a trial court's decision is whether the trial court abused its discretion. The proper scope of review in determining the propriety of the trial court's...
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