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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA             :    IN THE SUPERIOR COURT OF
                                         :          PENNSYLVANIA
                    v.                   :
                                         :
PETER JOHN OLDFIELD,                     :         No. 1134 MDA 2016
                                         :
                         Appellant       :


               Appeal from the Order Entered November 6, 2015,
                  in the Court of Common Pleas of York County
                Criminal Division at No. CP-67-CR-0005960-2013


BEFORE: FORD ELLIOTT, P.J.E., RANSOM, J. AND STEVENS, P.J.E.*


MEMORANDUM BY FORD ELLIOTT, P.J.E.:             FILED DECEMBER 30, 2016

        Peter John Oldfield appeals from the November 6, 2015 order entered

in the Court of Common Pleas of York County that denied his motion for

reconsideration of denial of motion to dismiss criminal conviction based on a

violation of Pa.R.Crim.P. 704 for the trial court’s failure to impose sentence

within 90 days of appellant’s entry of his guilty plea. We affirm.

        The record reflects that following a traffic stop on July 20, 2013,

appellant was charged with driving under the influence1 (“DUI”), possession




* Former Justice specially assigned to the Superior Court.
1
    75 Pa.C.S.A. § 3802(d)(2).
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of a controlled substance (cocaine),2 and failing to signal.3                  Because

appellant    was   on    parole   in    connection   with   a   case   docketed      at

CP-67-CR-161-2001 at the time of his arrest, a parole detainer was lodged

against him. As a result, on July 23, 2013, officials transported appellant to

the state correctional institution (“SCI”) at Camp Hill.        The record further

reflects that although appellant initially opted to proceed pro se, the public

defender’s    office    entered   its   appearance    on    appellant’s     behalf   on

December 13, 2013.

        On January 17, 2014, appellant pled guilty to DUI in return for an

evaluation for eligibility to participate in the state intermediate punishment

program (“SIPP”), and the prosecution nolle prossed the remaining

charges.     Appellant was then imprisoned at SCI Smithfield.             That facility,

however, failed to conduct the SIPP evaluation, and appellant seemingly

“slipped through the cracks.” (Notes of testimony, 12/17/14 at 2.)

        The record further reflects that appellant’s case was initially assigned

to an attorney at the public defender’s office, but as a result of personnel

changes, appellant’s case was reassigned to another attorney; that appellant

wrote a letter to the public defender’s office in June of 2014 concerning the

status of his sentencing; and that “nothing was done after that.”               (Id. at

2-3.) In late October or early November 2014, appellant’s case was again


2
    35 P.S. § 780-113(a)(16).
3
    75 Pa.C.S.A. § 3334(a).


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reassigned due to personnel changes, at which time newly assigned counsel

“immediately recognized that there were issues with the fact that [appellant

had] not been sentenced.” (Id. at 3.)

      On November 6, 2014, appellant’s counsel filed a motion for

appellant’s transfer from SCI Smithfield to the York County Prison and for

imposition of sentence.    On that same date, the parole board granted

appellant re-parole in the case docketed at CP-67-CR-161-2001 contingent,

according to appellant, on a urine screen which, according to appellant, he

submitted after being notified of his re-parole.4 The record further reflects

that on November 10, 2014, the trial court entered an order that scheduled

sentencing for December 17, 2014, and ordered appellant to be transferred

from SCI Smithfield to the York County Prison. The record fails to reflect the

date on which appellant’s transport occurred, but appellant states in his brief

that in early November 2014, an attorney with the public defender’s office

contacted the trial court to schedule a status hearing and appellant “was




4
  The certified record before us contains the parole board’s decision to
re-parole appellant on November 6, 2014, but fails to indicate that re-parole
was dependent on the results of a urine screen. (Notes of testimony,
10/5/15 at defendant’s exhibit 1.) The record also fails to reflect that
appellant submitted urine prior to being transported to the York County
Prison per the trial court’s November 10, 2014 transport order. The record
does contain an “inmate’s request to staff member form” dated January 29,
2015, wherein appellant inquired as to his parole date. (Id. at defendant’s
exhibit 2.) The staff member’s written response, dated February 2, 2015,
was, “[w]hen I receive your urine results, you’ll sign your release order.
Effective the day after that, you’ll start your new sentence.” (Id.)


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suddenly transported from state prison to the York County Prison.”

(Appellant’s brief at 9.)

      At the December 17, 2014 sentencing hearing, appellant moved for

dismissal of the DUI charge that he pled guilty to, based on a violation of his

speedy-sentencing rights under Pa.R.Crim.P. 704. We note that a review of

the December 17, 2014 hearing transcript reflects that appellant did not

inform the trial court that the parole board granted him re-parole on

November 6, 2014, and that his re-parole was dependent on the results of a

urine screen, the results of which appellant claims he was awaiting.        The

record further reflects that following oral argument at the December 17,

2014 hearing, the trial court denied appellant’s motion to dismiss on

Rule 704   grounds,     after   finding   that the   sentencing   delay was not

attributable to the Commonwealth or the trial court, but rather, to SCI, and

that appellant failed to show that the delay resulted in any prejudice.      In

fact, the hearing transcript reveals that appellant advanced no argument

regarding prejudice.        The trial court then rescheduled sentencing to

January 26, 2015, so that it could have the benefit of a pre-sentence

investigation report.    Appellant remained incarcerated at the York County

Prison as he awaited his January 26, 2015 sentencing.

      At the January 26, 2015 sentencing hearing, appellant’s counsel

confirmed that appellant was sentenced and serving time on the parole

violation, as well as a case docketed at 2401-CR-2012 in which appellant



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was sentenced to 17 months to 5 years of incarceration.            (Notes of

testimony, 1/26/15 at 2-3.)      We note that a review of this sentencing

hearing transcript also reveals that appellant did not inform the trial court

that the parole board granted re-parole on November 6, 2014, and that, as

appellant claims, his re-parole was dependent on a urine screen of which he

was awaiting results. At the conclusion of the sentencing hearing, the trial

court sentenced appellant to 129 days to 23 months of imprisonment, less

time served (552 days), to run concurrent to the sentence imposed for

appellant’s parole violation, followed by a consecutive term of supervision of

3 years plus 1 month.

        The record further reflects that the public defender did not file

post-sentence motions or a direct appeal on appellant’s behalf.            On

February 5, 2015, however, appellant filed a pro se motion for modification

of sentence. Because the public defender’s office still represented appellant,

the trial court refused to accept the pro se filing. On May 6, 2015, appellant

then filed a pro se Post Conviction Relief Act5 petition.     The trial court

appointed counsel, and counsel filed an amended petition.        On July 28,

2015, the trial court entered an order that reinstated appellant’s appeal

rights.   Appellant then filed a post-sentence motion for reconsideration of

the trial court’s order denying appellant’s motion to dismiss based on a

Rule 704 violation, alleging, among other things:


5
    42 Pa.C.S.A. §§ 9541-9546.


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           15.   The basis for the 12-month delay in sentencing
                 was not due to [appellant’s] error, and
                 [appellant] repeatedly wrote to counsel to
                 assert his right to be sentenced in a timely
                 fashion.      Because [appellant] had been
                 forgotten     about     by    the    Court, the
                 Commonwealth, and his counsel, his parole in
                 another case was delayed by three months.
                 The parole delay had the effect of delaying the
                 start of his sentence in this and other matters,
                 and has delayed [appellant’s] release from
                 incarceration in all of his matters.

           16.   The result of the delayed parole was not
                 apparent to [appellant] on December 17,
                 2014, when he appeared before this Court and
                 moved for dismissal of the charges.        The
                 prejudice to [appellant] was not apparent until
                 after his return to state prison following his
                 January 26, 2015 Sentencing Hearing.

Appellant’s Post-Sentence Motion for Reconsideration of Denial of Motion to

Dismiss, 8/28/15 at 3-4, ¶¶ 15-16.

     On October 5, 2015, the trial court6 held a hearing on the motion. On

November 6, 2015, the trial court denied appellant’s motion.             On

November 19, 2015, appellant filed a notice of appeal to this court.




6
  The record reflects that the Honorable Thomas H. Kelley, VI, presided over
the December 15, 2014 and January 26, 2015 proceedings. The record
further reflects that the Honorable Craig T. Trebilcock presided over the
October 5, 2015 motion for reconsideration. Following Judge Trebilcock’s
deployment by the United States Army in November 2015, the Honorable
Harry M. Ness was assigned to appellant’s case. Judge Ness wrote and filed
the Rule 1925(a) opinion in this appeal, which incorporated his February 5,
2015 Rule 1925(a) opinion and Judge Trebilcock’s November 6, 2015 order
and opinion.


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Appellant complied with the trial court’s concise statement order, and the

trial court filed a Pa.R.A.P. 1925(a) opinion on February 5, 2016.

      By order dated May 19, 2016, however, this court dismissed

appellant’s appeal for failure to file a brief.   Commonwealth v. Oldfield,

No. 2029 MDA 2015, order (Pa.Super. filed May 19, 2016.)           On June 13,

2016, appellant filed a petition to reinstate his appellate rights with the trial

court. On June 16, 2016, the trial court reinstated appellant’s appeal rights.

Appellant then timely filed a notice of appeal to this court.          Appellant

complied with the trial court’s concise statement order, and the trial court

filed a Rule 1925(a) opinion that incorporated its February 5, 2016

Rule 1925(a) opinion, as well as the trial court’s November 6, 2015 order

denying appellant’s motion to reconsider and accompanying opinion.

      Appellant raises the following issue for our review:

            Whether the trial court erred in denying the
            Appellant’s Post-Sentence Motion for Reconsideration
            of the Denial of Motion to Dismiss, erring in its
            conclusion that the Appellant’s Sentencing Hearing
            was not delayed without good cause and that the
            Appellant was not prejudiced by the delay in
            sentencing?

Appellant’s brief at 3.

      Pa.R.Crim.P. 704 provides, in pertinent part:

            (A)    Time for Sentencing.

                   (1)    Except as provided by Rule 702(B),
                          sentence in a court case shall
                          ordinarily be imposed within 90



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                           days of conviction or the entry of a
                           plea of guilty or nolo contendere.

                     (2)   When the date for sentencing in a
                           court case must be delayed, for
                           good cause shown, beyond the
                           time limits set forth in this rule, the
                           judge shall include in the record
                           the specific time period for the
                           extension.

Pa.R.Crim.P. 704(A)(1) and (2).

      With respect to claims of untimely sentencing, it has been explained,

as follows:

              The appropriate remedy for a violation of
              Pa.R.Crim.P. 1405 [now Pa.R.Crim.P. 704], is
              discharge.    However, the remedy does not
              automatically apply whenever a defendant is
              sentenced more than [ninety] days after conviction
              without good cause. Instead, a violation of the
              [ninety-day] rule is only the first step toward
              determining whether the remedy of discharge is
              appropriate.

              ....

              [A] defendant who is sentenced in violation of
              Pa.R.Crim.P.      1405 [now Pa.R.Crim.P. 704], is
              entitled to a discharge only where the defendant can
              demonstrate that the delay in sentencing prejudiced
              him or her. . . . [T]o determine whether discharge is
              appropriate, the trial court should consider:

              (1)    the length of the delay falling outside of
                     [the Pa.R.Crim.P. [90-day-and-good-
                     cause provisions]; (2) the reason for the
                     improper delay; (3) the defendant’s
                     timely or untimely assertion of his rights;
                     and (4) any resulting prejudice to the
                     interests protected by his speedy trial
                     and due process rights. Prejudice should


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                    not be presumed by the mere fact of an
                    untimely sentence. Our approach has
                    always been to determine whether there
                    has in fact been prejudice, rather than to
                    presume that prejudice exists. The court
                    should examine the totality of the
                    circumstances, as no one factor is
                    necessary, dispositive, or of sufficient
                    importance to prove a violation.

Commonwealth v. Diaz, 51 A.3d 884, 887 (Pa.Super. 2012) (citation

omitted; brackets in original).

      Here, with respect to the length of the delay, appellant pled guilty on

January 17, 2014. The trial court imposed sentence on January 26, 2015,

which was 284 days beyond the 90-day provision set forth in Rule 704. The

sentencing delay, therefore, was significant.

      With respect to the reason for the sentencing delay, appellant

contends that it:

            was not due to the [appellant’s] error, and
            [appellant] repeatedly[7] wrote to counsel to assert
            his right to be sentenced in a timely fashion.
            Because [appellant] had been forgotten about by the
            trial court, the Commonwealth, and his counsel, his
            parole release in another case was delayed by three
            months.

Appellant’s brief at 11.    Appellant fails to advance any argument that the

sentencing delay resulted from inexcusable or intentionally dilatory conduct

by the Commonwealth or the trial court which Rule 704 was meant to



7
  The record reflects that appellant wrote to counsel at the public defender’s
office once. (Notes of testimony, 12/17/14 at 3.)


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ameliorate. See Diaz, 51 A.3d at 889 (reiterating that the underpinning of

Rule 704 is to protect the accused from inexcusable or intentional delay on

the part of the court or the Commonwealth, “the ‘whim’ or power of the

state.” (citation omitted)). Rather, appellant complains that the delay was

not his fault and that the system essentially forgot about him. Although we

do not condone the delay in appellant’s sentencing, appellant’s claim that

the system forgot about him is insufficient to support discharge for a

Rule 704 violation because it fails to implicate inexcusable or intentional

delay on the part of the trial court or the Commonwealth. See id.

      With respect to appellant’s timely or untimely assertion of his rights,

the record reflects that appellant sent a letter to the public defender’s office

regarding   the   status   of   his   sentencing   in   June   2014,   which   was

approximately six months after he pled guilty.

      Finally, with respect to prejudice, the December 17, 2014 sentencing

transcript reveals that the trial court was not only cognizant of, but

sympathetic to, the delay in appellant’s sentencing. The record reflects that

after defense counsel thoroughly informed the trial court of the delay, the

trial court immediately suggested that it could impose a retroactive

concurrent sentence. (Notes of testimony, 12/5/14 at 5.) Additionally, after

finding that the delay was not attributable to the trial court or the

Commonwealth, the trial court expressed its “default position” that it

“sentence [appellant] concurrently or partially concurrently” to the other



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sentences. (Id. at 6-8.) We note that the Commonwealth agreed with that

remedy    and    stated   that   it   “wouldn’t   have   a   problem   running   it

concurrently[,] [g]iven everything that has happened in this case.” (Id. at

8, 10.)   Moreover, defense counsel informed the court that appellant was

“hoping” that it would run a concurrent sentence. (Id. at 9.)

     The record, therefore, reflects that the reason that the trial court

imposed 129 days to 23 months of incarceration to run concurrent to the

sentence imposed for the parole violation was to remediate any prejudice

suffered by the Rule 704 violation.               Appellant’s argument that his

approximate three-month incarceration in York County, which was caused by

his delayed sentencing, caused the delay of his re-parole, as well as the

delay of the date that he would have begun to serve his next sentence,

because his county imprisonment took him out of the state system which

resulted in appellant not knowing that he needed to re-submit urine for re-

parole purposes necessarily assumes that appellant would have received the

same sentence if he was sentenced within the 90-day period prescribed by

Rule 704.      The record, however, reveals that the trial court carefully

considered the sentencing delay when it sentenced appellant to 129 days to

23 months to run concurrent to the sentence for the parole violation.

Therefore, appellant has failed to establish prejudice because the argument

he raises rests entirely on speculation.          See Diaz 51 A.3d at 891-892

(holding that discharge is not warranted under Rule 704 where defendant’s



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claim of prejudice is speculative).    Accordingly, dismissal under Rule 704

was not warranted.

     Order affirmed.



     Stevens, P.J.E. joins this Memorandum.

     Ransom, J. concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 12/30/2016




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