J-S21034-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA, :            IN THE SUPERIOR COURT OF
                                  :                 PENNSYLVANIA
                                  :
               v.                 :
                                  :
                                  :
    TODD ELVIS PUTMAN,            :
                                  :
                  Appellant       :             No. 1380 WDA 2016

            Appeal from the Judgment of Sentence August 31, 2016
                in the Court of Common Pleas of Potter County
             Criminal Division at No(s): CP-53-CR-0000102-2015

BEFORE:      LAZARUS, DUBOW, and STRASSBURGER*, JJ

MEMORANDUM BY STRASSBURGER, J.:                        FILED JUNE 16, 2017

        Todd Elvis1 Putman (Appellant) appeals from the judgment of sentence

imposed following his guilty plea to theft by deception and authoring bad

checks. Specifically, Appellant challenges the trial court’s order denying his

motion filed pursuant to the speedy trial rule, Pa.R.Crim.P 600.      We are

constrained to affirm.

        On April 24, 2015, a citation was issued charging Appellant with the

aforementioned offenses and two additional counts of forgery. At the time,

Appellant was incarcerated in a state correctional facility.   He was timely



____________________________________________


1
 Given that his demand to this Court is “Turn Me Loose,” perhaps a more
appropriate middle name for Appellant would have been that of a different
50’s singer, Fabian.




*
    Retired Senior Judge assigned to the Superior Court.
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arraigned and waived his preliminary hearing.2            On October 5, 2015,

Appellant completed two forms, a plea agreement and a guilty plea

statement, which outlined the following agreement between the parties: in

exchange for Appellant’s plea to theft by deception and authoring bad

checks, the Commonwealth would nolle pros the remaining counts of

forgery.     There was no agreement as to Appellant’s sentence.           The

agreement was signed by Appellant, his counsel, and the district attorney

assigned to the case; the statement was signed by Appellant and his

counsel. However, this agreement was never presented to the court, nor

placed on the record.

       The record shows no docket activity related to this case until May 2,

2016, when the court issued the following order: “Order [Department of

Corrections] DOC is hereby ordered to detain Deft until [the instant case]

has been resolved.” Order 5/2/2016.              On May 4, 2016, Appellant was

released from state prison. That same day, the trial court issued a second

order dismissing the detainer and instructing Appellant to contact the Potter

County Public Defender upon his release from state prison. On May 9, 2016,

Appellant’s public defender requested to withdraw from the case due to a
____________________________________________


2
  Even though Appellant remained incarcerated past his Rule 600 run date,
there was no violation of Pa.R.Crim.P. 600(B) in this case. Appellant’s bond
was initially set at $2500; however, on June 22, 2015, his bond in this
matter was modified to unsecured so he could continue serving his state
sentence with an anticipated release date in June of 2016. Thus, Appellant
was not incarcerated on this case past the 180 days proscribed in the Rule.



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conflict. Motion to Withdraw, 5/9/2016. This request was granted and, on

May 10, 2016, new counsel was appointed.

       On May 31, 2016, an order was entered placing Appellant’s case on

the call of the list for June 17, 2016.          Appellant filed a motion to dismiss

pursuant to Rule 600 on June 7, 2016, and a hearing was held on July 1,

2016.3 At the hearing, the Commonwealth presented as evidence a copy of

Appellant’s guilty plea agreement which contained a notation that, on

October 4, 2015, the district attorney’s office sent a copy of Appellant’s

paperwork to the court administrator along with a request to set a date for

Appellant’s plea via video-conference as he was still incarcerated at the

time. N.T., 7/1/2016, at 7-8.

       The Commonwealth also presented a series of emails between a

secretary from the district attorney’s office, Emily Robinson, and a court

administrator, Jenny Saulter. The emails indicate that on October 5, 2015

Robinson initially requested a plea date for Appellant.             The read receipt

shows    that   this   email    was    read    by   Saulter   on   October   6,   2016.

Commonwealth’s Exhibit 3.          Robinson followed up with Saulter on January

27, 2016. Commonwealth’s Exhibit 4. After determining that Appellant had

not yet pled guilty, Robinson asked if Saulter could “please set him up for a
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3
  Appellant did not attend the Rule 600 hearing in person because he was in
a medical rehabilitation facility. According to his counsel, he was bedridden
as a result of two broken legs and a broken back. N.T., 7/1/2016, at 1.
Appellant was permitted to attend the hearing by phone. Id. at 3.



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plea date via video.” Id.   On March 30, 2016, Robinson sent an email to

Mary Durst at the Potter County Public Defender’s Office asking whether

Appellant had been sentenced. Commonwealth’s Brief at 5. Durst responded,

acknowledging receipt of the email, and promised to respond the next day.

Id. There is no record of any further communication between Robinson and

Durst.

      On April 8, 2016, Robinson emailed Saulter to ask whether she had

“had any luck” scheduling Appellant for a plea date. Commonwealth’s Exhibit

6.   In her April 8 email, Robinson informed Saulter that she “believed”

Appellant was still in state custody.   Id.   Saulter replied that she “totally

forgot” about Appellant’s case and would work on it that afternoon. Id. On

April 12, 2016, a notice was filed with the Potter County Clerk of Courts

scheduling Appellant’s plea and sentencing via video-conference for May 4,

2016. Commonwealth’s Exhibit 7.      This document does not appear on the

docket.

      Following the hearing, the trial court denied Appellant’s motion finding

that the delay in bringing Appellant to trial was attributable to “a failure to

promptly schedule through the Office of the Court Administrator, and

through no fault of either [Appellant] or the Commonwealth.” Order,

7/6/2015. The parties were ordered to determine a resolution for the case

within 5 days. On July 7, 2016, Appellant entered a plea to one count of

theft by deception and one count of bad checks. On August 31, 2016, he


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was sentenced to an aggregate term of seven to 14 months’ incarceration.

This timely appeal followed.4 Appellant was ordered to file a concise

statement of errors on appeal pursuant to Pa.R.A.P. 1925(b) and one was

filed. In response, the trial court filed an opinion in support of order stating

that its reasoning was contained in the July 1, 2016, Rule 600 hearing

transcript and accompanying order denying Appellant’s motion.

        On   appeal,    Appellant     challenges   the   trial   court’s   Rule   600

determination. We address this claim mindful of the following.

        We review challenges to Rule 600 rulings pursuant to the following

standard and scope of review:

              In evaluating Rule [600] issues, our standard of review of
        a trial court’s decision is whether the trial court abused its
        discretion. Judicial discretion requires action in conformity with
        law, upon facts and circumstances judicially before the court,
        after hearing and due consideration. An abuse of discretion is not
        merely an error of judgment, but if in reaching a conclusion the
        law is overridden or misapplied or the judgment exercised is
        manifestly unreasonable, or the result of partiality, prejudice,
        bias, or ill will, as shown by the evidence or the record,
        discretion is abused.

               The proper scope of review ... is limited to the evidence on
        the record of the Rule [600] evidentiary hearing, and the
        findings of the [trial] court. An appellate court must view the
        facts in the light most favorable to the prevailing party.

Commonwealth v. Ramos, 936 A.2d 1097, 1100 (Pa. Super. 2007) (en

banc).

____________________________________________


4
    Sentence was stayed pending appeal.



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       The case at issue here was initiated on April 29, 2015; thus, Rule 600

required that trial commence within 365 days, or before April 28, 2016.

Appellant’s plea ultimately occurred on July 7, 2016. The Rule provides that

“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.” Pa.R.Crim.P. 600 (C)(1). The Comment to the Rule explains

that

       [f]or purposes of determining the time within which trial must be
       commenced pursuant to paragraph (A), paragraph (C)(1) makes
       it clear that any delay in the commencement of trial that is not
       attributable to the Commonwealth when the Commonwealth
       has exercised due diligence must be excluded from the
       computation of time. Thus, the inquiry for a judge in determining
       whether there is a violation of the time periods in paragraph (A)
       is whether the delay is caused solely by the Commonwealth
       when the Commonwealth has failed to exercise due diligence. If
       the delay occurred as the result of circumstances beyond the
       Commonwealth’s control and despite its due diligence, the
       time is excluded. In determining whether the Commonwealth
       has exercised due diligence, the courts have explained that
       [d]ue 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.

Pa.R.Crim.P. 600 Comment (emphasis added; citations omitted)

       Instantly, the trial court and the parties agree that Appellant was not

brought to trial within 365 days, and that there was no delay attributable to

Appellant. N.T., 7/1/2016, at 18-19. However, the court found credible the



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Commonwealth’s evidence that the delay was due to oversights by the court

administrator in failing to schedule promptly Appellant’s plea. Id. at 20

(“What I’ve said here today, sir, is that there is no doubt that you were not

brought to trial as contemplated by [Rule 600], that did not happen. That

was not your fault[;] however, it also wasn’t the fault of the Office of the

District Attorney. Somewhere in the court system in the Office of the Court

Administrator apparently the matter simply did not get scheduled.       I can’t

hold you responsible for that anymore than I can hold the District Attorney’s

Office responsible for that.”). In so doing, the court did not make a finding

regarding the Commonwealth’s exercise of due diligence.

      “The Commonwealth … has the burden of demonstrating by a

preponderance of the evidence that it exercised due diligence. As has been

oft stated, [d]ue 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.

Bradford, 46 A.3d 693, 701–02 (Pa. 2012) (citations and quotation marks

omitted).

      Here, the Commonwealth offered seven exhibits at the Rule 600

hearing as evidence that it met its burden under the Rule. While the court

was correct in its determination that the court administrator bears some

responsibility for the delays in this matter, the records provided by the

Commonwealth do not demonstrate that it acted with due diligence


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throughout the course of this case. Nonetheless, we conclude that Rule 600

has not been violated.

      The 159 days from the initiation of this case on April 29, 2015 until the

submission of Appellant’s guilty plea paperwork on October 5, 2015 was

properly included in the 365-day calculation.    However, the following 113

days, from October 6, 2015 through January 27, 2016, during which time

the district attorney’s office attempted to schedule promptly a plea date for

Appellant, evidences a delay caused by circumstances outside of the

Commonwealth’s control and despite its exercise of due diligence. Thus, we

must exclude from the Rule 600 calculation those 113 days.                See

Pa.R.Crim.P. 600(c)(1) (“[P]eriods 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.”)

      The remaining time, from January 28, 2016 through the April 28, 2016

run date, and the 70 day period from the run date until Appellant entered his

guilty plea and was sentenced on July 7, 2016, evidences complete lack of

concern on the part of the District Attorney about compliance with Rule 600.

Not once in any of her four emails did Robinson even mention the impending

April 28, 2016 Rule 600 run date.      We are cognizant that Potter County

operates in trial terms, N.T., 7/1/2016, at 9-10, which makes scheduling a


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challenge.   But this is all the more reason for the Commonwealth to stay

abreast of, and make administration aware of, approaching Rule 600 dates.

Yet, the Commonwealth never petitioned the Court to schedule Appellant’s

plea in light of the court administrator’s inaction and, most disturbingly, did

not petition to move the May 4, 2016 video conference plea date

despite knowing the date fell past Appellant’s April 28, 2016 Rule

600 run date.     In fact, the first time the Court was made aware of the

potential Rule 600 violation was when Appellant filed his motion on June 7,

2016 and even then it took a month for the case to resolve. This certainly

does not fall within the “reasonable effort” contemplated by the Rule.

      However, exclusion of the 113 day period from October 2015 to

January of 2016 places Appellant’s adjusted Rule 600 run date at August 19,

2016. Thus, we are constrained to find that no violation of the Rule occurred

where Appellant’s July 7, 2016 plea was entered within the adjusted time

period. Accordingly, although we cannot condone what occurred here, we

find no error in the court’s denial of Appellant’s Rule 600 motion.

      At the Rule 600 hearing, the district attorney explained that

Appellant’s case was “currently on the backup list” for July 7, 2016. N.T.,

7/1/2016, at 10 (emphasis added). According to the district attorney, there

were “only two criminal trial days available for jury trial … August 4th and

August 17th” and the cases listed for those days had “priority time wise

even over [Appellant’s].” Id. (emphasis added). It bears noting that


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Appellant ultimately entered a guilty plea in this matter.     That plea was

identical to that which was negotiated in October of 2015. Thus, the

agreement had already been negotiated, and the paperwork completed,

months prior to the actual plea date. We cannot conceive of an easier case

to resolve.   The fact that it took so long to allow Appellant to enter a

previously negotiated plea is unbelievable.    The fact that other cases took

precedence “time wise” over one that was already, at the time of the

hearing, 64 days past the original Rule 600 date in potential violation of the

Rule, is concerning to this Court. We remind the court, Potter County Court

Administration and, most importantly, the Office of the District Attorney that

“the rule is intended to protect the right of criminal defendants to a speedy

trial, protect society’s right to effective prosecution of criminal cases, and

help eliminate the backlog in criminal cases in the courts of Pennsylvania.”

Pa.R.Crim.P. 600 Comment.          While perfect vigilance is not required, a

recognition of the importance of this Rule and its counterbalanced interests

is essential to the effectuation of justice.

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/16/2017




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