J-S60038-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

TERRANCE BERNARD ROBINSON

                            Appellant                No. 321 MDA 2014


           Appeal from the Judgment of Sentence January 14, 2014
               In the Court of Common Pleas of Adams County
             Criminal Division at No(s): CP-01-CR-0000706-2013


BEFORE: OTT, J., STABILE, J., and JENKINS, J.

MEMORANDUM BY JENKINS, J.:                      FILED DECEMBER 12, 2014

       Appellant, Terrance Bernard Robinson, appeals from the judgment of

sentence entered in the Adams County Court of Common Pleas following his

bench trial convictions for delivery of a controlled substance and criminal

conspiracy.1 We affirm.

       The trial court opinion sets forth the relevant facts and procedural

history of this appeal as follows.

          Appellant was charged with three counts of delivery of a
          controlled substance,[…]; one count of criminal conspiracy
          to deliver a controlled substance, […]; and three counts of
          criminal use of a communication facility, 18 Pa.C.S.A. §
          7512,[2] by [c]riminal [c]omplaint filed on June 19, 2012.
          Subsequent to the filing of the [c]omplaint, Appellant was
____________________________________________


1
 35 P.S. § 780-113(a)(30) and 18 Pa.C.S. § 903(a)(1), respectively.
2
  The Commonwealth later withdrew charges against Appellant for criminal
use of a communication facility.
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           located    in   the   Maryland    Correctional    Institution-
           Hagerstown, Hagerstown, Maryland. A detainer from the
           Pennsylvania charges was filed against him. On April 12,
           2013, the Adams County Clerk of Courts Office received,
           filed, and docketed a request for disposition of the charges
           mailed by [Appellant] under the [Interstate Agreement of
           Detainers (IAD)].[3]     Appellant was returned to this
           jurisdiction by the Adams County Sheriff’s Department on
           June 6, 2013. He was produced before a Magisterial
           District Judge for preliminary arraignment that same date
           with a preliminary hearing date being set for June 12,
           2013.

           By correspondence dated June 6, 2013, and received by
           the Magisterial District Judge on June 7, 2013, Appellant,
           through private counsel, requested a continuance of the
           scheduled June 12, 2013 preliminary hearing. The docket
           transcript for the Magisterial District Judge indicates the
           continuance request was granted on June 7, 2013 when
           the Magisterial District Court continued [Appellant’s]
           preliminary hearing until June 26, 2013. On June 26,
           2013, [Appellant,] through counsel, requested a second
           continuance of the preliminary hearing. The purpose of
           the continuance was Appellant’s desire to retain different
           private counsel.     Accordingly, preliminary hearing was
           rescheduled to July 31, 2013. At the preliminary hearing
           held that date, all charges were bound to court.

           Appellant was formally arraigned on September 23, 2013
           at which time he was scheduled for pre-trial disposition on
           October 28, 2013 with trial scheduled for the term
           commencing December 2, 2013. On December 2, 2013,
           the parties appeared for purposes of jury selection. Prior
           to commencement of jury selection, [Appellant] filed a
           written motion with the [c]ourt seeking dismissal of the
           charges against him based upon a violation of the IAD. In
           order to resolve the motion, [a] hearing was scheduled for
           December 3, 2013 with trial continued as a result of the
           motion until the term commencing January 21, 2014.
           Following hearing, this [c]ourt denied [Appellant’s]
____________________________________________


3
    42 Pa.C.S. § 9101.



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         [m]otion to [d]ismiss. Appellant appeared in open court
         on January 6, 2014 and requested that the charges against
         him be scheduled for nonjury trial on January 14, 2014.

Trial Court Opinion, filed April 21, 2014, at 1-2.

      On January 14, 2014, the trial court found Appellant guilty on three

counts of delivery of a controlled substance and one count of conspiracy to

deliver a controlled substance. The court sentenced Appellant to 5-10 years’

incarceration for each count, to run concurrently.     On January 24, 2014,

Appellant timely filed a post sentence motion, which the court denied on

February 6, 2014. Appellant timely filed a notice of appeal on February 18,

2014. On February 21, 2014, the court ordered Appellant to file a concise

statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b),

which he timely filed on March 12, 2014.

      Appellant raises the following issue for our review:

         DID THE [TRIAL] COURT ABUSE ITS DISCRETION IN
         FINDING THAT A DELAY RESULTING FROM AN OUT-OF-
         COURT ORDER FOR CONTINUANCE WAS EXCLUDABLE
         AGAINST APPELLANT IN CALCULATION OF HIS SPEEDY
         TRIAL RIGHTS UNDER THE INTERSTATE ACT ON
         DETAINERS (IAD), 42 PA.C.S. § 9101 ET SEQ., WHERE
         THE MAGISTERIAL DISTRICT JUDGE FAILED TO RULE
         UPON THE REQUEST FOR CONTINUANCE IN OPEN COURT,
         PURSUANT TO THE MANDATES OF ARTICLE III(A)?

Appellant’s Brief at 4.

      In essence, Appellant argues that because the magisterial district

justice court improperly continued his preliminary hearing nineteen days

from June 7, 2013 until June 26, 2013, the Commonwealth failed to bring


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him to trial within the speedy trial limits set forth in Articles III and IV of the

IAD. We disagree.

      When evaluating speedy trial issues, our standard of review is whether

the trial court abused its discretion. Commonwealth v. Booze, 953 A.2d

1263, 1272 (Pa.Super.2008).            Our Supreme Court defines “abuse of

discretion” as follows:

            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.

Commonwealth v. Chambers, 685 A.2d 96, 104 (Pa. 1996), cert. denied,

522 U.S. 827 (1997).          Both Rule 600 and the IAD seek to bring the

criminally accused to a speedy trial and serve two interests: (1) protection of

the   accused’s     speedy    trial   rights   and   (2)   protection   of   society.

Commonwealth v. Woods, 663 A.2d 803, 809 (Pa.Super.1995).                         In

addition:

            The IAD is a compact among 48 states, the District of
            Columbia and the United States. Cuyler v. Adams, 449
            U.S. 433, 436 n. 1, 101 S.Ct. 703, 66 L.Ed.2d 641 (1981).
            The IAD establishes procedures for the transfer of
            prisoners incarcerated in one jurisdiction (the ‘sending
            state’) to the temporary custody of another jurisdiction
            (the ‘receiving state’), which has lodged a detainer against
            them. Commonwealth v. Williams, 586 Pa. 553, 896
            A.2d 523, 536 n. 5 (2006). ‘The policy of the [IAD] is to
            encourage the expeditious and orderly disposition of
            charges and its purpose is to promote and foster prisoner
            treatment and rehabilitation programs by eliminating
            uncertainties which accompany the filing of detainers.’

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         Commonwealth v. Merlo, 364 A.2d 391, 394
         (Pa.Super.1976) (citations, quotation marks and italics
         omitted).

Commonwealth v. Horne, 89 A.3d 277, 281 (Pa.Super.2014).                The IAD

provides in relevant part:

         Article III

         (a)       Whenever a person has entered upon a term of
         imprisonment in a penal or correctional institution of a
         party state, and whenever during the continuance of the
         term of imprisonment there is pending in any other party
         state any untried indictment, information or complaint on
         the basis of which a detainer has been lodged against the
         prisoner, he shall be brought to trial within 180 days after
         he shall have caused to be delivered to the prosecuting
         officer and the appropriate court of the prosecuting
         officer's jurisdiction written notice of the place of his
         imprisonment and his request for a final disposition to be
         made of the indictment, information or complaint:
         Provided, [t]hat for good cause shown in open court, the
         prisoner or his counsel being present, the court having
         jurisdiction of the matter may grant any necessary or
         reasonable continuance. The request of the prisoner shall
         be accompanied by a certificate of the appropriate official
         having custody of the prisoner, stating the term of
         commitment under which the prisoner is being held, the
         time already served, the time remaining to be served on
         the sentence, the amount of good time earned, the time of
         parole eligibility of the prisoner, and any decisions of the
         state parole agency relating to the prisoner.

                                 *    *    *


         Article VI

         (a)      In determining the duration and expiration dates
         of the time periods provided in Articles III and IV of this
         agreement, the running of said time periods shall be tolled
         whenever and for as long as the prisoner is unable to


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        stand trial, as determined by the court having jurisdiction
        of the matter.

42 Pa.C.S. § 9101 (emphasis added).           While it is the Commonwealth’s

responsibility to insure that a defendant is tried within the time period

specified by the IAD, Commonwealth v. Mayle, 780 A.2d 677, 682

(Pa.Super.2001), “the IAD may be tolled by the defendant’s own actions,”

including the filing of motions to dismiss and the time it takes to resolve

them. Commonwealth v. Montione, 720 A.2d 738, 741 (Pa. 1998), cert.

denied, 526 U.S. 1098, 119 S.Ct. 1575, 143 L.Ed.2d 671 (1999).

     Regarding Appellant’s contention that he did not join in his counsel’s

request for a continuance, the statute clearly states that continuances may

be granted “for good cause shown in open court, the prisoner or his counsel

being present[.]”   42 Pa.C.S. § 9101, Article III(a).      “The disjunctive ‘or’

clearly indicates that the defendant need not expressly join in his counsel's

request for a continuance.”      Commonwealth v. Diggs, 482 A.2d 1329,

1331-32 (Pa.Super.1984).

     We hold that Appellant was tried within the IAD’s speedy trial time

limits. On April 12, 2013, the Adams County Clerk of Courts Office received,

filed and docketed a request for disposition of the charges mailed by

Appellant under the IAD.     At that point, the IAD’s 180-day run date was

October 9, 2013.       However, by correspondence dated June 6, 2013,

Appellant,   through   private   counsel,   requested   a   continuance   of   the

scheduled June 12, 2013 preliminary hearing.            On June 7, 2013, the


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Magisterial District Court continued Appellant’s preliminary hearing until June

26, 2013.     Nothing was improper about this continuance.            Although

Appellant argues that counsel made the continuance request without his

consent, Appellant did not need to join in counsel’s request for the request

to be valid. Diggs, supra, 482 A.2d at 1331-32. Appellant also contends

that the continuance was invalid because defense counsel made his

continuance request in a letter instead of in “open court”, the location

required under the IAD. 42 Pa.C.S. § 9101, Article III(a). We agree with

the trial court’s reasoning on this issue:

            Certainly, a continuance request sought by the
            Commonwealth should only be granted in open court
            where the defendant and counsel have the
            opportunity to respond. That is not the circumstance
            instantly. Rather, it is the Appellant himself, through
            his attorney, that requested the continuance thus
            voluntarily forfeiting the need for a hearing in open
            court. Rather than being the result of an error by
            which Appellant was denied due process, it was
            Appellant's own actions, through counsel, that tolled
            the IAD. See Montione, supra, 720 A.2d at 741
            (the IAD may be tolled by the defendant's own
            actions). Under these circumstances, the purpose of
            the statute is not frustrated as delay in bringing the
            Appellant to trial was self-created.

Trial Court Opinion, 4-5.

      Appellant does not contend that any other continuances on or after

June 26, 2013 violated the IAD. For the sake of completeness, we note that

all scheduling changes on and after June 26, 2013 did not violate Appellant’s

speedy trial rights under the IAD.     On June 26, 2013, Appellant, through



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counsel, requested a second continuance of the preliminary hearing, and the

court rescheduled the preliminary hearing to July 31, 2013.     The 55 day

period between June 7, 2013, when the court granted Appellant’s first

continuance request, and July 31, 2013, the rescheduled date of the

preliminary hearing, constitutes an excludable delay that extended the 180-

day run date to December 2, 2013.

     On December 2, 2013, Appellant moved to dismiss for violation of the

IAD, and the trial court continued trial until January 14, 2014, in order to

decide the motion.   The filing of this motion tolled the IAD run date until

January 14, 2014, the date Appellant was tried and convicted.           See

Montione, supra. Accordingly, we affirm the judgment of sentence.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/12/2014




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