J-S75022-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    MARVIN JOLLY                               :
                                               :
                       Appellant               :   No. 571 WDA 2017

              Appeal from the Judgment of Sentence April 6, 2017
                  In the Court of Common Pleas of Erie County
              Criminal Division at No(s): CP-25-CR-0000408-2015



BEFORE: SHOGAN, J., OTT, J., and MUSMANNO, J.

MEMORANDUM BY OTT, J.:                                     FILED APRIL 4, 2018

        Marvin Jolly appeals from the judgment of sentence imposed on April 6,

2017, in the Court of Common Pleas of Erie County, after a jury found him

guilty of driving under the influence (DUI), and the trial judge found him guilty

of the summary offenses of driving while license is suspended or revoked, and

restrictions on alcohol (open container).1           Jolly received an aggregate

sentence of nine to eighteen months’ incarceration plus fines. In this timely

appeal, Jolly claims the trial court erred in not granting his motion to dismiss

pursuant to Pa.R.Crim.P. 600 (speedy trial) and the trial court imposed an

illegal sentence. After a thorough review of the submissions by the parties,

relevant law, and the certified record, we agree with Jolly that the trial court


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1   75 Pa.C.S. §§ 3802(a)(1), 1543(b)(1), and 3809(a), respectively.
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imposed an illegal fine pursuant to 75 Pa.C.S. § 1543(b)(1), and affirm the

trial court in all other regards.

      The facts supporting the underlying convictions are not at issue. Those

facts are known to the parties and accordingly there is no need to reiterate

them herein. At issue is the length of time it took the Commonwealth to bring

Jolly to trial, whether the Commonwealth was duly diligent in bringing him to

trial and, therefore, whether Jolly was entitled to dismissal of the charges

against him pursuant to Pa.R.Crim.P. 600. Additionally, Jolly argues he was

illegally sentenced on the charge of driving with a suspended or revoked

license. Specifically, he contends he was illegally subjected to a mandatory

minimum sentence and a $1,000.00 fine rather than the maximum $500.00.

We begin with Jolly’s Rule 600 claim.

      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 ....

      Additionally, when considering the trial court's ruling, this Court is
      not permitted to ignore the dual purpose behind Rule [600]. Rule
      [600] serves two equally important functions: (1) the protection
      of the accused's speedy trial rights, and (2) the protection of
      society. In determining whether an accused's right to a speedy
      trial has been violated, consideration must be given to society's
      right to effective prosecution of criminal cases, both to restrain
      those guilty of crime and to deter those contemplating it.
      However, the administrative mandate of Rule [600] was not



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       designed to insulate the criminally accused from good faith
       prosecution delayed through no fault of the Commonwealth.

       So long as there has been no misconduct on the part of the
       Commonwealth in an effort to evade the fundamental speedy trial
       rights of an accused, Rule [600] must be construed in a manner
       consistent with society's right to punish and deter crime. In
       considering [these] matters ..., courts must carefully factor into
       the ultimate equation not only the prerogatives of the individual
       accused, but the collective right of the community to vigorous law
       enforcement as well.

Commonwealth v. Holt, 175 A.3d 1014, 1018 (Pa. Super. 2017) (citation

omitted).

       Additionally, we note that “time attributable to the normal progression

of a case is simply not “delay” for purposes of Rule 600.” Commonwealth v.

Mills, 162 A.3d 323, 325 (Pa. 2017).

       The timing of this matter has been set forth by the trial court in its May

18, 2017, Pa.R.A.P. 1925(a) opinion.

       On December 10, 2014, [Jolly] was charged in Erie County with
       DUI, Driving Under Suspension, and five summary offenses.
       [Jolly], who, in the meantime had been transferred from Crawford
       County Prison[2] to Mercer County Prison, was incarcerated in
       Mercer County Prison on the date of his preliminary hearing on
       February 5, 2015, but was not transported for the hearing. [Jolly]
       claims he was not notified of the February 5, 2015 preliminary
       hearing. A request for a bench warrant was submitted by the
       magistrate, but for unknown reasons, a bench warrant was never
       issued by the Court of Common Pleas.

       [Jolly] was intermittently incarcerated in the Mercer and Crawford
       County prisons between November 26, 2014 and April 16, 2015
____________________________________________


2 At the time of his arrest for the instant charges, November 24, 2014, Jolly
was wanted on unrelated charges in Crawford County. On November 26,
2014, pursuant to the Crawford County bench warrant, Jolly was transferred
from Erie County Prison to the Crawford County Prison.

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     on various charges pending in Mercer and/or Crawford Counties.
     These charges were unrelated to the Erie County DUI charges. It
     is unclear whether [Jolly] was ever released from either prison at
     any points during this period.

     [Jolly] testified that in March of 2015, while [he] was incarcerated
     in Crawford County, he became aware of the Erie County DUI
     charges, though he did not indicate how he became aware of the
     charges at this time. [Jolly] testified that in March of 2015, he
     applied to Erie County for a public defender to represent him with
     respect to the DUI. On March 3, 2015, the Erie County Public
     Defender’s Office entered an appearance on behalf of [Jolly].
     [Jolly] admits he knew that a public defender had been appointed
     on his behalf. He denied that he supplied any contact information
     to the Public Defender.

     It is believed that [Jolly] was released from the Crawford County
     prison on April 15 or 16, 2015. [Jolly’s] Public Defender must
     have known of [Jolly’s] release, because on April 22, 2015, the
     Public Defender’s Office sent [Jolly] notice of a guilty plea
     agreement and a plea hearing scheduled for April 29, 2015 at
     1:30, to addresses other than the Crawford County Prison. The
     Public Defender’s notice of hearing was sent to three addresses:
     569 North Street, Meadville, 129 East 23rd Street, Erie, Apt. #2,
     and 322 East 21st St., Erie. [Jolly] admits that as of the time of
     the letter, April 22, 2015, he was living with his nephew “for a
     couple of weeks” at the Meadville address. Despite the fact that
     the letter was sent to an address at which he was residing, [Jolly]
     claims not to have received the letter giving notice of the guilty
     plea hearing. [Jolly] failed to appear for the plea hearing.

     After [Jolly] failed to appear for the April 29, 2015 plea hearing, a
     bench warrant was issued for his arrest. Pursuant to that bench
     warrant of April 29, 2015, Erie County Sheriff Jeffrey Guild,
     received a tip from the Crawford County Sheriff’s Department that
     [Jolly] might be found at 129 East 23rd Street, or 322 West 21st
     Street, in Erie. Erie County Corporal Bowers testified that it would
     have been his practice to follow up on such tips, but that [Jolly]
     was not found at either address. [Jolly] was free from mid-April
     2015 until October of 2015. Despite his knowledge that charges
     had been brought against him in this Erie DUI matter, he failed to
     contact anyone, including his public defender, during this time.




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       On October 11, 2015, new charges arose against [Jolly] in
       Crawford County. On October 12, 2015, [Jolly] was taken in
       custody at the Crawford County Jail. Erie County became aware
       that [Jolly] had been detained in Crawford County. Deputy Guild
       faxed the warrant to Crawford County and “told them we would
       like to have him.” However, Crawford County informed Deputy
       Guild that they would not release him “until they were done with
       him.” Almost a year later, [Jolly] was sentenced in Crawford
       County on September 6, 2016. Erie County again requested
       custody of [Jolly]. Erie County deputies retrieved [Jolly] from the
       Crawford County Prison on November 8, 2016. Guild testified that
       “as soon as he’s available, we go get him.”

Trial Court Opinion, 5/18/2017 at 2-4 (citations to record omitted).

       On November 15, 2016, Jolly filed a pro se motion to dismiss pursuant

to Rule 600. Counsel filed a supplement to that motion and a hearing was

held on January 18, 2017. The motion was denied on January 31, 2017.

       Pennsylvania Rule of Criminal Procedure 600 requires, in relevant part,

the Commonwealth to bring a defendant to trial within 365 days of the filing

of the complaint. Specifically, the rule states:

       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.

       (2) Trial shall commence within the following time periods.

         (a) Trial in a court case in which a written complaint is filed
         against the defendant shall commence within 365 days from
         the date on which the complaint is filed.

Pa.R.Crim.P. 600(A)(1),(2)(a).3


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3 Because Jolly was not incarcerated pursuant to the DUI charge, the rules
regarding pretrial incarceration are not applicable.

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        Pursuant to Rule 600, time is computed in the following manner:

        (C) Computation of Time

        (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.

Id. at (C)(1).

        The DUI complaint against Jolly was filed on December 10, 2014.

Accordingly, the Commonwealth had until December 10, 20154 – 365 days

later – to bring Jolly to trial. Jolly was not tried until February 10, 2017; 793

days, by our calculation, after the complaint was filed. Also by our calculation,

Jolly was tried 428 days past his mechanical run date.

        Jolly argues that the Commonwealth did not proceed with due diligence

in procuring his presence for trial. Therefore, he argues, the trial court erred

in failing to dismiss the charges against him.       Specifically, Jolly cites to

Commonwealth v. Pichini, 454 A.2d 609 (Pa. Super. 1982) in support of

his claim that the Commonwealth failed to take reasonable steps to bring him

to trial while he was incarcerated post-October 12, 2016. This argument is

unavailing.

        Pichini is easily distinguishable from the instant matter. In Pichini,

the relevant charges were brought against the defendant in Dauphin County.

____________________________________________


4   This is known as the mechanical run date.


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His mechanical run date was March 16, 1981, 180 days after the complaint

was filed. The facts in Pichini demonstrated that from October 2, 1980 and

February 11, 19815 Pichini had been incarcerated on other charges in

Huntingdon and Mifflin Counties.          The difference between Pichini and the

instant case is that in Pichini, the Commonwealth did nothing to locate the

defendant and bring him back to Dauphin County for trial. Pichini reasoned:

        In the instant case, the Commonwealth failed to meet its burden
        of showing that it had exercised due diligence. On the contrary,
        the evidence disclosed the existence of that very inattention which
        Rule 1100[6] was intended to prevent. The Commonwealth proved
        no more than that appellant had been incarcerated continuously
        in Pennsylvania during the 180 day period. It failed to show that
        it had expended any time or effort in attempting to commence
        trial within the time allowed. In the absence of a showing that it
        could not with due diligence have commenced trial within 180
        days, the Commonwealth was not entitled to an extension. It did
        not suffice to show merely that appellant had been transferred
        between prisons on several occasions. Similarly, it did not suffice
        to show that appellant had failed to appear for arraignment when,
        in fact, he was incarcerated and wholly without notice of the date
        on which arraignment was being held. That he could readily have
        been found within the prison system and made available for
        arraignment and trial in Dauphin County is amply demonstrated
        by the record. It is confirmed by the ease with which appellant
        was found and served with a warrant on the very same day that
        he failed to appear for arraignment.

Pichini, 454 A.2d at 611.

        Here, as the trial court noted, the Commonwealth attempted to locate

Jolly when he failed to appear for his April 29, 2015 hearing by sending a
____________________________________________


5 February 11, 1981 was the date of the initial arraignment, despite the
complaint having been filed approximately five months earlier.

6   Rule 1100 was the prior version of Rule 600.

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sheriff to two addresses at which Jolly had allegedly been seen. That those

leads proved fruitless is not indicative of a lack of diligence on the part of the

Commonwealth. Then, when Jolly was taken into custody in Crawford County,

the Commonwealth informed Crawford County of the Erie County bench

warrant and sought Jolly’s return. However, Crawford County, for reasons

undisclosed, would not return Jolly until his Crawford County case had

resolved. Once Crawford County released Jolly, Erie County transported him

back to Erie County and the case proceeded. The Erie County District Attorney

cannot be held responsible for the time from October 12, 2015 and November

8, 2016 because they lodged a detainer in Crawford County.

      We do not believe the trial court abused its discretion in determining the

time discussed above did not count against the 365 days of Rule 600. This

means that from April 29, 2015 to October 11, 2015 (when Jolly failed to

appear for his hearing, to when he was rearrested) is properly excludable

time. This represents, by our calculations, 173 days. Then, from October 12,

2015 to November 8, 2016 (the time he was under the authority of Crawford

County) is also properly excludable time, as Erie County attempted to

reacquire Jolly. This represents an additional 393 days of excludable time.

Together, this represents 566 days of excludable time. There were 793 days

from the filing of the complaint to the date of trial. Subtracting 566 from 793




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we are left with 227 days counting against the Rule 600 time limit.7

Accordingly, there was no Rule 600 speedy trial violation.

       Next, Jolly argues an illegal sentence was imposed upon him for his

violation of 75 Pa.C.S. § 1543(b)(1). The trial court imposed a 90-day term

of incarceration and a $1,000.00 fine.           Jolly argues this is the sentence

associated with 75 Pa.C.S. § 1543(b)(1.1), driving with a suspended or

revoked license and refusing to take a blood test. Jolly asserts that pursuant

to Birchfield v. North Dakota, ___ U.S. ___, 136 S.Ct. 2160 (2016),

criminal sanctions associated with the refusal to take a blood test are invalid.

See also, Commonwealth v. Giron, 155 A.3d 635, 640 (Pa. Super. 2017)

(We hold that, pursuant to Birchfield, in the absence of a warrant or exigent

circumstances justifying a search, a defendant who refuses to provide a blood

sample when requested by police is not subject to the enhanced penalties

provided in 75 Pa.C.S. §§ 3803-3804).8

       We agree with Jolly that the trial court could not impose sentence

pursuant to § 1543(b)(1.1). We also agree that the $1,000.00 fine is only

found in § 1543(b)(1.1). Pursuant to §1543(b)(1.1), the defendant must be
____________________________________________


7 The trial court arrived at a slightly different number, also within the 365-day
limit. The trial court subtracted some additional time from the 793 days due
to delay caused by the filing of and hearing on the Rule 600 motion. Because
we have determined no Rule 600 violation without examining those dates, we
did not. However, we find no fault with the trial court’s analysis.

8While Giron only refers to penalties found at 75 Pa.C.S. §§ 3803, 3804, we
see no reason why the holding should not apply to 75 Pa.C.S. § 1543 also.



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sentenced to 90 days’ incarceration.           However, a 90-day sentence is also

allowable under § 1543(b)(1). The maximum fine allowed under § 1543(b)(1)

is $500.00.

        While Jolly claims it is obvious he was sentenced pursuant to an invalid

section,9 the certified record is unclear as to how the trial court arrived at the

sentence. Jolly points out that at the end of the trial, the trial judge stated

Jolly was subject to a mandatory sentence on § 1543.10 Then, Jolly asserts

that his presentence report stated he was subject to the mandatory sentence.

We cannot confirm this because the presentence report has not been included

in the certified record. At sentencing, the trial judge made no mention of

imposing a mandatory sentence when he imposed 90 days and $1,000.00

fine. Further, all charging documents and sentencing documents found in the

certified record refer to § 1543(b)(1), not §1543(b)(1.1).

        Accordingly, we are faced with two possibilities. Either the trial court

imposed an entirely illegal sentence pursuant to 75 Pa.C.S. § 1543(b)(1.1),

without reference to that section in the certified record, or the trial court

imposed a sentence pursuant to § 1543(b)(1) but imposed an incorrect fine.

Because it is Jolly’s burden of proof, as Appellant, to demonstrate his sentence
____________________________________________


9   Jolly’s Brief, at 25.

10 This is not entirely correct. By our reading of the notes of testimony, the
trial judge stated he believed there was a mandatory sentence associated with
§ 1543 and that was why he acquitted Jolly of a number of other summary
offenses. See N.T. Trial 2/9/2017 at 101.



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is illegal, and he has not demonstrated his entire sentence is illegal, we cannot

accept the first possibility. Rather, we are constrained to find that Jolly’s 90-

day term of incarceration is legal11 under § 1543(b)(1), but his $1,000.00 fine

is not.   Accordingly, we affirm the imposition of the 90-day sentence but

vacate the imposition of the $1,000.00 fine and amend the sentence to include

the $500.00 fine required for a violation of 65 Pa.C.S. § 1543(b)(1).

       Judgment of sentence is affirmed in part, vacated in part, and remanded

for the trial court to amend the sentence associated with violation of 75

Pa.C.S. § 1543(b)(1) to include a $500.00 fine. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/4/2018




____________________________________________


11 Because the 90-day sentence runs concurrently with the nine month
sentence imposed for DUI, it does not appear that Jolly will suffer any adverse
consequences.

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