J-S33037-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                        IN THE SUPERIOR COURT OF
                                                          PENNSYLVANIA
                            Appellee

                       v.

ALEXANDER DEVERE CARLSON

                            Appellant                   No. 1674 WDA 2015


               Appeal from the PCRA Order September 28, 2015
              In the Court of Common Pleas of Armstrong County
              Criminal Division at No(s): CP-03-CR-0000666-2011


BEFORE: GANTMAN, P.J., OLSON, J., and FITZGERALD, J.*

MEMORANDUM BY GANTMAN, P.J.:                             FILED APRIL 26, 2016

        Appellant, Alexander Devere Carlson, appeals from the order entered

in the Armstrong County Court of Common Pleas, which denied his first

petition filed under the Post Conviction Relief Act (“PCRA”).1 We affirm.

        The relevant facts and procedural history of this case are as follows.

On September 29, 2011, Appellant had his six-year-old stepdaughter

perform oral sex on him in the bathroom of their home. The Commonwealth

filed a criminal complaint on October 5, 2011, charging Appellant with

involuntary deviate sexual intercourse (“IDSI”), indecent assault, and

endangering welfare of children.          On February 2, 2012, Appellant filed a

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1
    42 Pa.C.S.A. §§ 9541-9546.


___________________________

*Former Justice specially assigned to the Superior Court.
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“petition for psychiatric/medical evaluation,” which sought to ascertain

Appellant’s mental health and competency to stand trial.      The trial court

granted the petition on February 7, 2012, and continued the case generally

so Appellant could undergo a psychiatric or psychological evaluation.      On

March 28, 2012, Dr. Christine Martone evaluated Appellant and sent her

report and the accompanying bill to defense counsel, who worked for the

Armstrong County public defender’s office.     On April 4, 2012, the public

defender’s office issued a check request to the county controller’s office for

the bill from Dr. Martone. The county controller’s office sent a check to Dr.

Martone on April 27, 2012.     The district attorney’s (“DA’s”) office was not

copied on any report, invoice, or other communication related to Dr.

Martone’s evaluation of Appellant.

     On February 6, 2013, the DA’s office received a copy of Dr. Martone’s

report from defense counsel.     The court issued a notice of plea court on

March 25, 2013. On April 5, 2013, Appellant filed a motion to continue the

scheduled plea court date.       The court granted the continuance and

rescheduled Appellant to appear for plea court on May 2, 2013. Appellant

failed to enter a plea on that date. The court then scheduled trial for June

10, 2013. On June 6, 2013, Appellant filed a motion to continue the trial.

The court granted the motion and rescheduled trial for July 15, 2013. On

July 10, 2013, Appellant filed another motion to continue the trial. The court

granted the motion and rescheduled trial for August 12, 2013.       The court


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subsequently set a new trial date of September 9, 2013. On September 5,

2013, Appellant pled guilty to one (1) count of IDSI.2 The court sentenced

Appellant on January 7, 2014, to a term of sixty (60) to one hundred twenty

(120) months’ incarceration.          Appellant did not file a direct appeal.   On

March 21, 2014, Appellant pro se filed a timely PCRA petition.          The PCRA

court appointed counsel, who filed an amended petition on November 12,

2014. Counsel subsequently filed two supplements to the amended petition.

Following a hearing, the PCRA court denied relief on September 29, 2015.

Appellant filed a timely notice of appeal on October 22, 2015.          The court

ordered Appellant to file a concise statement of errors complained of on

appeal per Pa.R.A.P. 1925(b), and Appellant timely complied.

        Appellant raises the following issues for our review:

           WHERE FROM THE DATE OF [APPELLANT’S] ARREST, A
           PERIOD OF 701 DAYS ELAPSED BEFORE [APPELLANT]
           ENTERED A GUILTY PLEA, WHERE ONLY 229 OF THOSE
           DAYS ARE ATTRIBUTABLE TO [APPELLANT] FOR PURPOSES
           OF [PA.R.CRIM.P.] 600 LEAVING 472 DAYS ATTRIBUTABLE
           TO THE COMMONWEALTH, WHERE THE COMMONWEALTH
           FAILED TO ACT WITH DUE DILIGENCE IN BRINGING THE
           CASE TO TRIAL, AND WHERE THE DELAY IN BRINGING
           THE CASE TO TRIAL WAS NOT BEYOND THE
           COMMONWEALTH’S       CONTROL,   WAS    [APPELLANT’S]
           CONSTITUTIONAL     RIGHT[]   TO   A  SPEEDY    TRIAL
           VIOLATED?

           WHERE [APPELLANT] APPLIES FOR A CONTINUANCE TO
           OBTAIN A PSYCHOLOGICAL EVALUATION, DOES THE FACT
           THAT THE COMMONWEALTH FAILS TO MONITOR THE
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2
    18 Pa.C.S.A. § 3123(a)(7).



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         STATUS OF THE CASE FOR PURPOSES OF RULE 600 AND
         INSTEAD RELIES SOLELY UPON DEFENSE COUNSEL TO
         INFORM THE COMMONWEALTH THAT THE EVALUATION
         HAS BEEN PERFORMED CONSTITUTE DUE DILIGENCE BY
         THE COMMONWEALTH FOR PURPOSES OF RULE 600
         WHERE THE MECHANICAL RUN DATE HAS EXPIRED?

         WHERE [APPELLANT] APPLIES FOR A CONTINUANCE TO
         OBTAIN A PSYCHOLOGICAL EVALUATION, DOES THE FACT
         THAT THE COMMONWEALTH FAILS TO MONITOR THE
         STATUS OF THE CASE FOR PURPOSES OF RULE 600 AND
         INSTEAD RELIES SOLELY UPON DEFENSE COUNSEL TO
         INFORM THE COMMONWEALTH THAT THE EVALUATION
         HAS BEEN PERFORMED CAUSE THE TIME THAT PASSES
         AFTER THE DATE THAT THE EVALUATION HAS BEEN
         PERFORMED TO BE ATTRIBUTABLE TO [APPELLANT] IN
         THE EVENT THAT DEFENSE COUNSEL DOES NOT INFORM
         THE COMMONWEALTH THAT THE EVALUATION HAS BEEN
         PERFORMED?

(Appellant’s Brief at 7).

      In his issues combined, Appellant argues the Commonwealth failed to

bring his case to trial within the time requirements of Rule 600. Appellant

concedes he is responsible for the 75-day delay from February 2, 2012 (the

date Appellant filed the petition for psychiatric/medical evaluation) to April

17, 2012 (when defense counsel allegedly received Dr. Martone’s report).

Appellant disputes the PCRA court’s conclusion that the entire delay from

February 2, 2012 to February 6, 2013 (the date the DA’s office received a

copy of Dr. Martone’s report from defense counsel), is attributable to

Appellant.   Appellant contends the Commonwealth had a duty to continue

monitoring the case after the trial court granted Appellant’s petition on

February 7, 2012. Appellant asserts the Commonwealth could not just wait



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for defense counsel to forward a copy of Dr. Martone’s report, which counsel

had no obligation to do in the first place. Appellant claims the last possible

date to commence trial under Rule 600 was December 18, 2012. Appellant

maintains the circumstances causing the delay beyond April 17, 2012 were

not beyond the Commonwealth’s control, and the Commonwealth failed to

exercise due diligence. Appellant concludes the Commonwealth violated his

right to a speedy trial, and this Court must reverse his conviction and

dismiss the charges against him. We cannot agree.

      Our standard of review of the denial of a PCRA petition is limited to

examining   whether    the   evidence    of   record    supports    the     court’s

determination   and    whether   its    decision   is   free   of   legal    error.

Commonwealth v. Conway, 14 A.3d 101, 108 (Pa.Super. 2011), appeal

denied, 612 Pa. 687, 29 A.3d 795 (2011). This Court grants great deference

to the findings of the PCRA court if the record contains any support for those

findings. Commonwealth v. Boyd, 923 A.2d 513, 515 (Pa.Super. 2007),

appeal denied, 593 Pa. 754, 932 A.2d 74 (2007).         We owe no deference,

however, to the court’s legal conclusions.     Commonwealth v. Ford, 44

A.3d 1190, 1194 (Pa.Super. 2012). If the record supports a post-conviction

court’s credibility determination, it is binding on the appellate court.

Commonwealth v. Knighten, 742 A.2d 679, 682 (Pa.Super. 1999), appeal

denied, 563 Pa. 659, 759 A.2d 383 (2000).

      Under the PCRA, “an issue is waived if the petitioner could have raised


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it but failed to do so before trial, at trial, during unitary review, on appeal or

in a prior state postconviction proceeding.”           42 Pa.C.S.A. § 9544(b). See

also Commonwealth v. Rachak, 62 A.3d 389 (Pa.Super. 2012), appeal

denied, 620 Pa. 699, 67 A.3d 796 (stating PCRA petitioner waived issue of

voluntariness of his plea because he could have but failed to raise issue

before trial court and on direct appeal).

       The previous version of Rule 600 provided, in pertinent part:3

          Rule 600. Prompt Trial

                                       *       *   *

              [(A)](3)  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.

                                       *       *   *

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

                                       *       *   *

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3
  Appellant failed to file a Rule 600 motion at any stage of the proceedings.
The previous version of Rule 600 was in effect, however, when Appellant
requested a continuance to seek a psychiatric/psychological evaluation, and
on the latest date Appellant alleges trial could have commenced. The
current version of Rule 600 became effective on July 1, 2013.



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            (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 (prior version).          “Rule 600 generally requires the

Commonwealth to bring a defendant…to trial within 365 days of the date the

complaint was filed.”    Commonwealth v. Hunt, 858 A.2d 1234, 1240

(Pa.Super. 2004) (en banc), appeal denied, 583 Pa. 659, 875 A.2d 1073

(2005). To obtain relief, a defendant must have a valid Rule 600 claim at

the time he files his motion for relief. Id. at 1243.

      “The mechanical run date is the date by which the trial must

commence under Rule 600.” Commonwealth v. McNear, 852 A.2d 401,

406 (Pa.Super. 2004).

         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.

Id.

      In the context of Rule 600, “excludable time” is differentiated from

“excusable delay” as follows:

         “Excludable time” is defined in Rule 600(C) as the period

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          of time between the filing of the written complaint and the
          defendant’s arrest, provided that the defendant could not
          be apprehended because his whereabouts were unknown
          and could not be determined by due diligence; any period
          of time for which the defendant expressly waives Rule 600;
          and/or 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. “Excusable delay” is not
          expressly defined in Rule 600, but the legal construct takes
          into account delays which occur as a result of
          circumstances beyond the Commonwealth’s control and
          despite its due diligence.

Hunt, supra at 1241 (internal citations and footnote omitted) (emphasis

added).

       Significantly, “A plea of guilty effectively waives all nonjurisdictional

defects and defenses.” Commonwealth v. Gibson, 561 A.2d 1240, 1242

(Pa.Super. 1989), appeal denied, 525 Pa. 642, 581 A.2d 568 (1990).            A

defendant who pleads guilty may not raise a Rule 600 challenge unless he

can show the Rule 600 violation affected the voluntariness of the plea itself.

Id.

       Instantly, Appellant failed to raise a Rule 600 claim at any time before

the trial court.      Appellant did not move to withdraw his plea either.

Appellant also failed to pursue a direct appeal. Therefore, Appellant’s Rule

600 challenge is waived.4 See 42 Pa.C.S.A. § 9544(b). Further, Appellant

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4
 In his amended PCRA petition, Appellant further alleged defense counsel
was ineffective for failing to raise a Rule 600 claim. On appeal, however,
(Footnote Continued Next Page)


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pled guilty; and he does not claim the plea was coerced by the alleged

deprivation of his speedy trial rights.           Therefore, Appellant’s guilty plea

provides an additional basis for waiver.5 See Gibson, supra. Based on the

foregoing, we affirm the denial of Appellant’s PCRA petition.

      Order affirmed.




                       _______________________
(Footnote Continued)

Appellant presents no argument regarding defense counsel’s representation.
Therefore, that issue is not before us.
5
  Moreover, even if we were to address Appellant’s Rule 600 issue, we would
agree with the PCRA court that the entire delay from February 2, 2012, to
February 6, 2013, was attributable to Appellant. The trial court granted
Appellant a general continuance so he could seek a psychiatric/psychological
evaluation. The DA’s office followed its customary practice and removed the
case from its active case management system because it had been
continued generally at Appellant’s request. Defense counsel was in a
position to know when the report was done and had the obligation to notify
the DA’s office or the court of that fact so the case could proceed. No
evidence exists that the DA’s office was aware Dr. Martone’s report had been
completed until February 6, 2013. When the 370-day excludable delay
attributable to Appellant is added to the initial mechanical run date (October
4, 2012), it yields an adjusted run date of October 8, 2013. The adjusted
run date would be even later after accounting for Appellant’s several
requested continuances following the resumption of docket activity in March
2013.     Appellant pled guilty on September 5, 2013, which was the
equivalent of trial commencing for purposes of Rule 600. See Pa.R.Crim.P.
600(B). Therefore, even if Appellant had preserved the issue, he would not
have had a viable Rule 600 claim at any stage of the proceedings. See
Pa.R.Crim.P. 600(C)(3)(b); Hunt, supra; McNear, supra.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/26/2016




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