J-S09027-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                          IN THE SUPERIOR COURT OF
                                                            PENNSYLVANIA
                            Appellee

                       v.

MARKEITH DASMOND ALLEN

                            Appellant                  Nos. 1001 EDA 2016, 1003
                                                       EDA 2016, 1004 EDA 2016


            Appeal from the PCRA Order entered February 29, 2016
             In the Court of Common Pleas of Montgomery County
    Criminal Division at Nos: CP-46-CR-0000811-2011, CP-46-CR-0001349-
                          2011, CP-46-CR-001350-2011


BEFORE: SHOGAN, STABILE, and PLATT,* JJ.

MEMORANDUM BY STABILE, J.:                                  FILED MAY 24, 2017

        Appellant, Markeith Dasmond Allen, appeals from the February 29,

2016 order denying his petition pursuant to the Post Conviction Relief Act

(“PCRA”), 42 Pa.C.S.A. §§ 9541-46. We affirm.

        The   record   reflects   that    Appellant   committed   several   gunpoint

robberies on January 11, 2011.           Appellant assailed or shot several of the

victims. The Commonwealth filed charges against Appellant on January 14

and January 20, 2011.              On March 9, 2012, after several defense

continuances, Appellant entered a negotiated guilty plea to multiple counts

of robbery, unlawful possession of a firearm, and possession with intent to
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
J-S09027-17


deliver a controlled substance.1 The trial court imposed an aggregate 10 to

30 years of incarceration, in accord with the parties’ plea agreement. This

Court    affirmed    the    judgment      of   sentence   on   October   21,   2013.

Commonwealth v. Allen, 78 A.3d 1163 (Pa. Super. 2013).2 Appellant filed

this timely first PCRA petition on March 18, 2014. He asserted, among other

things, that his guilty plea was not knowing, intelligent, and voluntary

because his counsel failed to advise him of the violation of his speedy trial

rights under Pa.R.Crim.P. 600. Rule 600 required Appellant to be brought to

trial within one year of the date of the complaints in this case, absent any

delays attributable to the defense. Pa.R.Crim.P. 600(A), (C).3

        On January 5, 2016, the PCRA court issued its notice of intent to

dismiss Appellant’s petition without a hearing, pursuant to Pa.R.Crim.P. 907.

Appellant responded on January 22, 2016, and the PCRA court dismissed the

petition without a hearing on February 29, 2016.                This timely appeal

followed. Appellant presents two questions for review:

        1.    Did the [PCRA] court err by dismissing the PCRA and not
              throwing out the guilty plea when [Appellant’s] guilty plea
____________________________________________


1
    18 Pa.C.S.A. §§ 3701, 6105, and 35 P.S. § 780-113(a)(30), respectively.
2
   Appellant raised collateral claims in his direct appeal. We concluded that
Appellant did not intend to waive his right to file a subsequent PCRA petition,
and we affirmed the judgment of sentence without prejudice to Appellant’s
right to seek collateral review. Id. at 1166.
3
   Rule 600 was amended effective July 1, 2013. The amendments do not
affect the result in this case.



                                           -2-
J-S09027-17


               was not given knowingly, intelligently, or voluntary [sic]
               because he was not adequately informed of the status of
               his Rule 600 rights?

       2.      Did the [PCRA] Court err by dismissing the PCRA petition
               without a hearing when the factual issues were present,
               such as the amount of excludable time present in relation
               to Rule 600?

Appellant’s Brief at 4.

       On review, we must determine whether the record supports the PCRA

court’s     findings,   and   whether     its   ruling   was   free   of   legal   error.

Commonwealth v. Pitts, 981 A.2d 875, 878 (Pa. 2009). To succeed on a

claim of ineffective assistance of counsel, a PCRA petitioner must establish

that the underlying claim is of arguable merit; that counsel had no

reasonable strategic basis for the action or inaction; and that counsel’s error

prejudiced the petitioner.       Commonwealth v. Sattazahn, 952 A.2d 640,

652 (Pa. 2008), cert. denied, 556 U.S. 1283 (2009).

       As noted above, the Commonwealth filed the first of its complaints in

this matter on January 14, 2011.           Under Rule 600(A), the mechanical run

date was January 14, 2012. Appellant pled guilty 55 days later, on March 9,

2012.4 Rule 600(C)(2) provides that delay attributable to the defendant is

excluded from computation of the one-year period. Pa.R.Crim.P. 600(C)(2).

At docket numbers 811 and 1349 of 2011, Appellee concededly signed a
____________________________________________


4
   The Rule 600 run period concludes when the trial judge calls the case to
trial, or when the defendant enters a plea of guilty or nolo contendere.
Pa.R.Crim.P. 600.



                                           -3-
J-S09027-17


Rule 600 waiver excluding 58 days from the Rule 600 computation.

Appellee’s Brief at 9-10.      This waiver alone accounts for the 55-day delay

between the mechanical run date and Appellee’s guilty plea. We note that

this is a consolidated prosecution of cases filed at three different docket

numbers, and the Rule 600 waiver is only of record for numbers 811 and

1349 of 2011. As to docket number 1350 of 2011, a time-stamped order

reflects that Appellant requested a continuance at the May 4, 2011 pretrial

conference, resulting in a rescheduled pre-trial conference on June 21, 2011,

48 days later. Pre-Trial Conference Order, 5/4/11. At a July 26, 2011 call of

the list, Appellant once again requested a continuance. Order, 7/26/11. The

case was rescheduled to the September 22, 2011 call of the list, 58 days

later.    These delays account for the 55 days between the mechanical run

date and Appellant’s March 9, 2012 guilty plea.            Appellant’s Rule 600

argument lacks arguable merit.

         Appellant also argues that his counsel was ineffective for signing the

Rule 600 waivers.      Appellant’s Brief at 13.    Appellant fails to develop any

substantive argument for why a defense continuance constituted ineffective

assistance in this case, and the record does not divulge the reasons for the

continuances. Even so, we do not believe a hearing was necessary because

Appellant     cannot   prove    prejudice.    We     cannot   assume   that   the

Commonwealth would have failed to bring the case to a timely trial absent

the Rule 600 waiver. In addition, Appellant’s counsel was able to negotiate


                                       -4-
J-S09027-17


a plea bargain whereby Appellant pled guilty to a fraction of the felony

charges he was facing and received a minimum sentence of 10 years of

incarceration.   The record does not support a conclusion that Appellant

would have been acquitted or would have received a more favorable

sentence had counsel foregone the continuances and proceeded to trial.

      For all of the foregoing reasons, we affirm the PCRA court’s order.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/24/2017




                                    -5-
