J-S78009-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                                         :
             v.                          :
                                         :
                                         :
THOMAS EUGENE CURRIE                     :
                                         :
                   Appellant             :   No. 396 WDA 2017

                Appeal from the PCRA Order February 6, 2017
            In the Court of Common Pleas of Washington County
            Criminal Division at No(s): CP-63-CR-0000068-2014


BEFORE:    OLSON, DUBOW and STRASSBURGER,* JJ.

MEMORANDUM BY OLSON, J.:                          FILED JANUARY 30, 2018

      Appellant, Thomas Eugene Currie, appeals from the February 6, 2017

order denying his first petition filed under the Post-Conviction Relief Act

(“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. We affirm.

      The factual background of this case is as follows.        After Shorty’s

Restaurant closed on the evening of February 13, 2013, Appellant

confronted the manager of the restaurant at gunpoint and demanded money

from the restaurant’s safe. When the manager informed Appellant that he

could not open the safe, Appellant demanded the manager’s wallet.         The

manager told Appellant that he had no cash on his person. Appellant fled

after threatening the manager while telling him not to call the police.

      The procedural history of this case is as follows.     On December 5,

2013, the Commonwealth charged Appellant via criminal complaint with



* Retired Senior Judge assigned to the Superior Court
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robbery,1 making terroristic threats,2 simple assault,3 recklessly endangering

another person,4 and disorderly conduct.5          On March 14, 2014, the

Commonwealth filed a criminal information charging Appellant with those

same offenses. On October 16, 2014, a pretrial conference occurred. The

Commonwealth was prepared to proceed to trial at that time.        On April 1,

2015, Appellant moved to dismiss the case pursuant to Pennsylvania Rule of

Criminal Procedure 600.6 On April 7, 2015, Appellant withdrew his Rule 600

motion and pleaded guilty to robbery.       As part of the negotiated plea, he

was immediately sentenced to 54 to 108 months’ imprisonment. He filed no

direct appeal.

        On August 6, 2015, Appellant filed a pro se PCRA petition.    Counsel

was appointed and filed an amended petition.        On January 24, 2017, the

PCRA court conducted an evidentiary hearing.        On February 2, 2017, the

PCRA court denied the petition. This timely appeal followed.7


1
    18 Pa.C.S.A. § 3701(a)(1)(ii).
2
    18 Pa.C.S.A. § 2706(a)(1).
3
    18 Pa.C.S.A. § 2701(a)(3).
4
    18 Pa.C.S.A. § 2705.
5
    18 Pa.C.S.A. § 5503(a)(4).
6
    The motion was not docketed until April 10, 2015.
7
 The PCRA court did not order Appellant to file a concise statement of errors
complained of on appeal (“concise statement”). See Pa.R.A.P. 1925(b).
Nonetheless, Appellant filed a concise statement on March 8, 2017. On June


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         Appellant presents one issue for our review:

         Whether the PCRA court erred when it dismissed [] Appellant’s
         [a]mended PCRA [p]etition?

Appellant’s Brief at 4.

         “We review the denial of a PCRA [p]etition to determine whether the

record supports the PCRA court’s findings and whether its [o]rder is

otherwise free of legal error.” Commonwealth v. McGarry, 172 A.3d 60,

65 (Pa. Super. 2017) (citation omitted).      Appellant’s lone issue challenges

the effectiveness of his plea counsel.

         “[T]he Sixth Amendment to the United States Constitution and Article

I, [Section] 9 of the Pennsylvania Constitution, [entitle a defendant] to

effective counsel.     This right is violated where counsel’s performance so

undermined the truth-determining process that no reliable adjudication of

guilt or innocence could have taken place.” Commonwealth v. Simpson,

112 A.3d 1194, 1197 (Pa. 2015) (internal quotation marks and citation

omitted).     “In the context of a plea, a claim of ineffectiveness may provide

relief only if the alleged ineffectiveness caused an involuntary or unknowing

plea.”     Commonwealth v. Orlando, 156 A.3d 1274, 1281 (Pa. Super.

2017) (citation omitted).

         “Counsel is presumed to have been effective.”    Commonwealth v.

Andrews, 158 A.3d 1260, 1263 (Pa. Super. 2017).              To prevail on an



7, 2017, the PCRA court issued a Rule 1925(a) opinion. Appellant included
his lone issue in his concise statement.


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ineffective assistance of counsel claim, a “petitioner must plead and prove

that: (1) the underlying legal claim is of arguable merit; (2) counsel’s action

or inaction lacked any objectively reasonable basis designed to effectuate his

[or her] client’s interest; and (3) prejudice, to the effect that there was a

reasonable probability of a different outcome if not for counsel’s error.”

Commonwealth v. Grove, 170 A.3d 1127, 1138 (Pa. Super. 2017)

(citation omitted).   “Failure to satisfy any prong of the test will result in

rejection of the [petitioner’s] ineffective assistance of counsel claim.”

Commonwealth v. Smith, 167 A.3d 782, 787-788 (Pa. Super. 2017)

(citation omitted).

      Appellant argues that his plea counsel was ineffective for advising him

to plead guilty and withdraw his Rule 600 motion. We focus on the second

prong of the test for ineffectiveness, i.e., whether Appellant’s plea counsel

had an objectively reasonable basis to recommend that Appellant accept the

Commonwealth’s negotiated plea offer in exchange for withdrawing his Rule

600 motion.

      Rule 600 provides:

      (A) Commencement of Trial; Time for Trial

      (1) For the purpose of this rule, trial shall be deemed to
      commence on the date the trial judge calls the case to trial, or
      the defendant tenders a plea of guilty or nolo contendere.

                                     ***

      (C) Computation of Time



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     (1) For purposes of paragraph (A), periods of delay at any stage
     of the proceedings caused by the Commonwealth when the
     Commonwealth has failed to exercise due diligence shall be
     included in the computation of the time within which trial must
     commence. Any other periods of delay shall be excluded from
     the computation.

                                    ***

     (3)(a) When a judge or issuing authority grants or denies a
     continuance:

     (i) the issuing authority shall record the identity of the party
     requesting the continuance and the reasons for granting or
     denying the continuance; and

     (ii) the judge shall record the identity of the party requesting the
     continuance and the reasons for granting or denying the
     continuance. The judge also shall record to which party the
     period of delay caused by the continuance shall be attributed,
     and whether the time will be included in or excluded from the
     computation of the time within which trial must commence in
     accordance with this rule.

                                    ***

     (D) Remedies

     (1) When a defendant has not been brought to trial within the
     time periods set forth in paragraph (A), at any time before trial,
     the defendant's attorney, or the defendant if unrepresented,
     may file a written motion requesting that the charges be
     dismissed with prejudice on the ground that this rule has been
     violated. A copy of the motion shall be served on the attorney
     for the Commonwealth concurrently with filing. The judge shall
     conduct a hearing on the motion.

Pa.R.Crim.P. 600.

     As this Court has explained:

     Rule 600 ultimately provides for the dismissal of charges if the
     Commonwealth fails to bring the defendant to trial within 365
     days of the filing of the complaint (the “mechanical run date”),


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      subject to certain exclusions for delays attributable to the
      defendant. Conversely, to protect society’s right to effective
      prosecution prior to dismissal of charges, Rule 600 requires the
      court to consider whether the Commonwealth exercised due
      diligence, and whether the circumstances occasioning the delay
      of trial were beyond the Commonwealth’s control.          If the
      Commonwealth exercised due diligence and the delay was
      beyond the Commonwealth’s control, the motion to dismiss shall
      be denied. The Commonwealth, however, has the burden of
      demonstrating by a preponderance of the evidence that it
      exercised due diligence. As has been oft stated, “due diligence
      is fact-specific, to be determined case-by-case; it does not
      require perfect vigilance and punctilious care, but merely a
      showing the Commonwealth has put forth a reasonable effort.

Commonwealth v. Cole, 167 A.3d 49, 71–72 (Pa. Super. 2017) (internal

quotation marks and citations omitted).

      Here, Appellant concedes that he requested one continuance after the

criminal complaint was filed and that 29 days were, therefore, excludable

under Rule 600. He argues that there was no other excludable time. Hence,

he contends that the adjusted run date was January 3, 2015 – three months

before his counsel advised him to plead guilty to the robbery offense in

exchange for withdrawing his Rule 600 motion. As he also argues that the

Commonwealth failed to act with due diligence, he claims he would have

been entitled to dismissal under Rule 600.

      Appellant’s argument fails because the PCRA court found plea

counsel’s testimony at the evidentiary hearing credible.         Plea counsel

testified that she informed Appellant that she was unsure whether the time

from the pretrial conference forward was excludable.     N.T., 1/24/17, at 7.

She explained to Appellant that it was possible that the trial court could find


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the    time   excludable   as   delay    attributable      to   itself.   Id.;    see

Commonwealth v. Mills, 162 A.3d 323, 325 (Pa. 2017) (citation omitted)

(“periods of judicial delay are excludible from calculations under [Rule

600]”). She explained that the Commonwealth was ready to proceed to trial

at the pretrial conference – 50 days before the mechanical run date. N.T.,

1/24/17, at 10. Thus, she believed it possible the trial court could find the

time after the pretrial conference as excludable. Id. Contrary to Appellant’s

assertion, his plea counsel’s understanding of the Rule 600 issue was

correct. Appellant relies on the comment to Rule 600 which provides that

“preliminary calendar calls [do not] constitute commencement of trial.”

Pa.R.Crim.P. 600 cmt. He also relies on our Supreme Court’s statement that

“requiring that commencement of trial be marked by a substantive, rather

than a pro forma, event prevents the Commonwealth from manipulating the

Rule    600   clock   by   initiating   superficial   or    non-substantive      court

proceedings.” Commonwealth v. Brock, 61 A.3d 1015, 1021 (Pa. 2013).

Brock and the comment to Rule 600, however, address when trial

commences under Rule 600(A) and not what time is excludable under Rule

600(C).   We agree with Appellant that trial did not commence on October

16, 2014.     That fact, however, is immaterial for determining whether the

time after the pretrial conference was excludable under Rule 600(C).

       As noted above, our Supreme Court recently reaffirmed that “where a

trial-ready prosecutor must wait several months due to a court calendar, the



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time should be treated as ‘delay’ for which the Commonwealth is not

accountable.” Mills, 162 A.3d at 325; see Commonwealth v. Bradford,

46 A.3d 693, 705 (Pa. 2012). Here, the PCRA court credited plea counsel’s

testimony that the prosecutor was ready for trial in October 2014.      It was

only because of the trial court’s calendar that Appellant’s trial was

postponed. Therefore, Appellant’s plea counsel was correctly skeptical about

the chances of succeeding on the Rule 600 motion.          Hence, she had an

objectively reasonable basis for counseling Appellant to seriously consider

accepting the Commonwealth’s negotiated plea offer and withdrawing his

Rule 600 motion.

       Appellant knew that the Commonwealth’s negotiated plea offer was

contingent upon him withdrawing his Rule 600 motion. Therefore, Appellant

had a choice.       He could litigate his Rule 600 motion and risk losing.   He

could also withdraw his Rule 600 motion and be guaranteed a sentence of 54

to 108 months’ imprisonment. With the input of his plea counsel, Appellant

chose the latter option. As plea counsel’s advice was objectively reasonable,

Appellant failed to plead and prove that her advice led to an involuntary or

unknowing plea. Hence, the trial court’s determination that Appellant is not

entitled to relief is free of legal error and we affirm the order denying

Appellant’s PCRA petition.

       Order affirmed.


Judgment Entered.



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Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/30/2018




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