Commonwealth of PA vs. Victor Verdekal No. CP-38-CR-0000225-2010

Criminal Action-Law-Sentencing-Bail Pending Appeal-Delay in Execution of Sentence-Due Process-Prejudice

Defendant, who had a history of exemplary military service and was found guilty by a jury of a fourth Driving Under the Influence Conviction in five (5) years, was sentenced on September 4, 2011 to an intermediate punishment disposition of five (5) years whereby the first one-hundred (100) days of that sentence were to be spent in the Lebanon County Correctional Facility and the next four (4) months were to be spent on house arrest. Defendant was afforded bail pending appeal to the Pennsylvania Superior Court from his judgment of sentence, which sentence was affirmed on March 28, 2013. Following denial of a Petition for Allowance of Appeal to the Pennsylvania Supreme Court, the record was remanded to the Lebanon County Court of Common Pleas on October 9, 2013. The Commonwealth filed a Motion to Revoke Bail on February 5, 2018 after discovering that Defendant had failed to serve the 100 day sentence of imprisonment followed by four (4) months of house arrest following the exhaustion of his appellate rights. Defendant argues that the lengthy delay in execution of that component of his intermediate punishment disposition at this time would violate his due process rights.

1. There is no authority in Pennsylvania allowing for credit toward a sentence or discharge when a defendant who has been sentenced erroneously remained at liberty for an extended period of time before being ordered to commence sentence.
2. Determination of whether a defendant is entitled to relief based upon a claim that his or her right to due process was violated by a lengthy delay in in execution of sentence requires consideration of four (4) factors: (1) Whether the delay itself is sufficient to trigger inquiry; (2) If so, the reason for the delay; (3) Whether defendant timely asserted his or her rights; and (4) Whether any prejudice to defendant resulted from the delay.
3. While the four and one-half (4 ½) year delay in execution of sentence is sufficient to warrant further inquiry, there is no evidence of nefarious intent by the Commonwealth or the Court in the delay in the execution of sentence that inadvertently occurred without wrongful intent with Defendant and his counsel being the individuals who were very well aware of the sentence imposed that Defendant never had served and were careful to avoid mentioning the same in filings with the Court.
4. The mere fact that Defendant does not want to complete his sentence does not constitute the type of prejudice contemplated when viewed in contrast with society’s vested interest in responding to those who commit criminal acts.
L.C.C.C.P. No. CP-38-CR-0000225-2010, Opinion by Bradford H. Charles, Judge, May 7, 2018.

IN THE COURT OF COMMON PLEAS LEBANON COUNTY
PENNSYLVANIA
CRIMINAL DIVISION NO. CP-38-CR-225-2010

ORDER OF COURT
And now, this 7th day of May, 2018, in accordance with the attached Opinion, the DEFENDANT is directed to report on May 15, 2018 at 9:00am to the Lebanon County Correctional Facility in order to begin serving the sentence imposed by this Court on September 19, 2011. Any bail previously imposed by this Court is revoked effective May 15, 2018 at 9:00am. If the DEFENDANT does not report as directed above, a warrant will be immediately issued for his arrest.

BY THE COURT:

BRADFORD H. CHARLES, J.

APPEARANCES
Robert P. Harding, Esquire For Commonwealth of Pennsylvania
DISTRICT ATTORNEY’S OFFICE
Shawn M. Dorward, Esquire For Victor Verdekal

OPINION BY CHARLES, J., May 7, 2018
Following the DEFENDANT’s unsuccessful appeal four years ago, this case fell through proverbial cracks in the Lebanon County Justice System. The question we must answer today is how our system should now respond. The DEFENDANT argues that a delay in the effective date of his sentence is a violation of Due Process that should relieve him of any responsibility to comply with criminal sanctions. The Commonwealth argues that any oversight in failing to recognize that the DEFENDANT remained free on bail after his appeal was decided should not enable the DEFENDANT to avoid responsibility for the crime he committed. Because we agree with the Commonwealth, we will be ordering the DEFENDANT to report to the Lebanon County Correctional Facility in order to serve the sentence that was imposed by this Court on September 14, 2011.
I. FACTS
On January 27, 2010, Military Police Officer Charles Agee observed a pick-up truck driving suspiciously on the Fort Indiantown Gap Military Reservation in close proximity to a building containing classified equipment designed for use if a weapon of mass destruction is ever unleashed within the Commonwealth of Pennsylvania. Fulfilling his duty to investigate, Officer Agee stopped the vehicle. He encountered the DEFENDANT, who was quickly perceived to be intoxicated.
After extensive pre-trial litigation, the charges against the DEFENDANT proceeded to a trial by jury. On June 9, 2011, the jury found the DEFENDANT guilty of Driving Under the Influence of Alcohol-General Impairment. See, 75 Pa. C.S.A. § 3802(a)(1).
On September 14, 2011, the DEFENDANT appeared before this Court for sentencing. We learned that the above-referenced case represented the DEFENDANT’s fourth DUI conviction within a period of five (5) years. On the other hand, we also learned that the DEFENDANT had an “exemplary history of military service.” Largely because of his service to our country, this Court did not place him within a State Correctional Institution. Rather, we imposed an intermediate punishment sentence of five (5) years. The first one hundred (100) days of this sentence was to be spent in the Lebanon County Correctional Facility and the next four (4) months were to be spent on house arrest with electronic monitoring. At the time, we viewed the DEFENDANT’s sentence as lenient given his history…and we continue to hold that belief today.
Following sentencing, the DEFENDANT filed Post-Sentence Motions. Following our denial of those Motions, he appealed his conviction to the Pennsylvania Superior Court. Shortly after sentencing, the DEFENDANT filed a Motion for Bail Pending Appeal. On September 28, 2011, we granted that Motion and the DEFENDANT was released from custody pending a resolution of his Appellate issues.
On March 28, 2013, the Pennsylvania Superior Court issued an Opinion affirming the DEFENDANT’s judgment of sentence. A Copy of this Opinion was forwarded to this Court, to the District Attorney and to the DEFENDANT’s attorney. Neither the Court nor the Commonwealth remembered or realized that the DEFENDANT had not finished serving his prescribed period of incarceration. Neither the DEFENDANT nor the DEFENDANT’s counsel communicated anything to the District Attorney’s Office or the Court regarding the DEFENDANT’s need to fulfill the terms of his sentence.
The DEFENDANT filed a Petition for Allowance of Appeal with the Pennsylvania Supreme Court on April 29, 2013. The Supreme Court denied this Petition on September 12, 2013. The record was remanded to this Court on October 9, 2013 and a copy of the Remand Remittal was provided to counsel of record and this Court.
The DEFENDANT also filed a Motion for Modification of Sentence on June 18, 2014 and a Motion for Reconsideration on July 25, 2014. Neither of the DEFENDANT’s Motions indicated that the DEFENDANT remained free on bail, nor did either of the DEFENDANT’s Motions reference that he had not begun serving any portion of his sentence. This Court denied both of the DEFENDANT’s Motions seeking a change of his sentence.
On April 16, 2015, the DEFENDANT sent a letter to the Lebanon County Clerk of Courts. In its entirety, that letter read:
“My name is Victor Verdekal. I have recently moved and my new address is now 7 Allegheny Center Apartment 815, Pittsburgh, PA 15212. It is no longer 1321 S Main Street, Wilkes-Barre PA 18706. Thank you. Victor Verdekal 570-899-7773”
The letter was placed inside the DEFENDANT’s file. No copy was provided to either the Court or the District Attorney’s Office.
On February 5, 2018, the Lebanon County District Attorney learned that the DEFENDANT had not undertaken to complete his sentence following his exhaustion of all Appellate rights. The Commonwealth immediately filed a Motion to Revoke the DEFENDANT’s bail. The DEFENDANT filed a response, stating that any sentence at this point would violate his due process rights. This Court conducted a hearing on the issue on March 28, 2018. Following that hearing, we directed both parties to file briefs in support of the respective positions. Both parties have done so and the issue is now before this Court for disposition.
II. DISCUSSION
The DEFENDANT argues that execution of his sentence at this point in time would violate his constitutional right to due process. He relies upon cases where our Appellate Courts have declared that a lengthy delay in sentencing can entitle a defendant to a discharge under Pa.R.Crim.P. 704. See, e.g. Commonwealth v. Anders, 555 Pa. 467 (1999). Without citing any statutory or decisional precedent, the DEFENDANT boldly argues: “Imposing a criminal sentence after a four and a half year delay – where Verdekal bears no fault for the delay 1 – is manifestly a denial of fundamental fairness. Moreover, prejudice would result to Verdekal serving any sentence handed down by the Court at this time.” (DEFENDANT’s Brief).
What the DEFENDANT conveniently ignores in his Brief is that sentence has already been imposed in this case. The only thing that has not occurred is the DEFENDANT’s compliance with the terms of that sentence. The DEFENDANT has not cited any cases, and we are aware of none, where a DEFENDANT has been relieved of his debt to society in a situation similar to the one at hand.
Fortunately, there is a line of decision precedent to guide us in this case. In Commonwealth v. Blair, 699 A.2d 738, 76 ALR 5th 741 (Pa. Super 1997), like in this case, the Defendant posted bond and was released from prison during the pendency of an Appeal. The case was eventually remanded to the Trial Court. However, nothing was done to revoke the Defendant’s bail and he remained free from the obligations of his sentence. Over two years later, the Trial Court learned that the Defendant never served his sentence. He was ordered to do so. The Defendant appealed the Trial Court’s decision and sought credit for the time he was “erroneously at liberty.”
The Superior Court began its analysis by distinguishing the Blair case from those cases where sentencing was not imposed within the time period allotted by Pa.R.Crim.P. 1405. The Court stated:
“Blair was, in fact, sentenced. Rather, at issue is Blair’s time at liberty between this Court’s affirmance of his judgment of sentence and the Trial Court’s Order to begin serving sentence. We must determine whether this oversight justifies crediting Blair’s sentence for his time at liberty.” Id at page 739.
The Superior Court acknowledged that “There is no Pennsylvania authority allowing for either credit toward sentence or discharge under these circumstances, i.e., where a defendant has erroneously remained at liberty for an extended period of time before being ordered to commence sentence.” Id at page 740.
The Superior Court conducted a survey of decisional precedent from other states. The Court concluded that “Courts from various jurisdictions applied the rule that where a final sentence of imprisonment has been rendered, delay in executing such a sentence did not preclude a subsequent enforcement of the sentence.” Id at page 740. See also, 98ALR 2d 687. The Court specifically cited the case of United States v. Martinez, 837 F.2d 861 (9th Cir 1988), where the 9th Circuit Court of Appeals stated: “Under common law a convicted person erroneously at liberty must, when the error is discovered, serve the full sentence imposed.” Id at page 864.
The Superior Court went on to conclude that Mr. Blair should serve his sentence as imposed. In rendering this decision, the Court reasoned as follows:
“We acknowledge the fact that Blair failed to be incarcerated because of an error not his own. Further, Blair did nothing to hinder the Order to commence service of sentence;…Blair claims that he did not have knowledge, during the time period in question, that his judgment of sentence had been affirmed by this Court. While we sympathize with Blair’s plight, we conclude, however, that these factors do not and cannot nullify any portion of Blair’s sentence of imprisonment. We will not allow the Court system’s inadvertent error to cancel any part of Blair’s punishment for the crimes for which he was justly convicted and sentenced. Society has an interest in knowing that its criminals are serving the punishment to which they have been sentenced, regardless of an unintended delay or negligent error attributable to the government. The fact remains that, regardless of the delay, Blair has not served the time he was so ordered to serve. Blair’s “erroneous time at liberty” was spent, by his own admission, engaging in normal activities as a member of free society. Considering Blair’s accomplishments in maintaining employment and pursuing educational goals, the argument could be made that he actually benefitted from his time at liberty. Indeed, it is difficult to accept Blair’s plea of “enormous prejudice” in light of these circumstances.” Id at page 743.
Even more clear than Blair, is the Appellate litigation that occurred in the case of Commonwealth v. Sheldon West. Mr. West was convicted of selling cocaine. On July 17, 1991, he was sentenced to serve 27 – 54 months of imprisonment. He appealed and he posted a $20,000 bond to secure his release from prison pending resolution of the appeal. In 1992, the Superior Court affirmed the Defendant’s judgment of sentence. One year later, the Supreme Court denied the Defendant’s Petition for Allowance of Appeal. Thereafter, nothing happened until nine years later. At that point, the Court discovered that the Defendant never had served his sentence. A warrant for his arrest was issued by the Court and he was eventually committed to prison. Relying upon the Blair decision, the lower Court denied the Defendant’s efforts to challenge the viability of his sentence.
Based upon the above facts, Pennsylvania’s Superior Court granted a habeas corpus Petition filed by the Defendant. See, Commonwealth v. West, 868 A.2d 1267 (Pa. Super. 2005). The Superior Court concluded that the Defendant’s “substantive due process rights were violated by the lengthy delay in the execution of his sentence…” The Court concluded that nine years of inaction following the Defendant’s conviction “shocks the conscience, thereby violating [Defendant’s] substantive due process rights…”
The Superior Court’s decision was appealed to Pennsylvania’s Supreme Court. The Supreme Court reversed the Superior Court. Pennsylvania’s Supreme Court held that a four-pronged test established by the United States Supreme Court in Barker v. Wingo, 407 US 514, 92 S.Ct. 2082, 33LED 2d 101 (1972) “provides the appropriate framework for analyzing whether West is entitled to relief based on a claim that his right to due process was violated…” Barker required consideration of four factors:
(1) Whether the delay itself is sufficient to trigger inquiry;
(2) If so, what was the reason for the delay;
(3) Did the defendant timely assert his rights; and
(4) Whether there was any prejudice to the defendant resulting from the delay?
The Supreme Court then analyzed each of these four factors as follows:
(1) The Supreme Court agreed with the Superior Court and stated: “We too find that the nine-year delay at issue was sufficient to warrant further inquiry.” Id at page 1047.
(2) With respect to the reason for the delay, the Court indicated that the case involving West was far different from those cases where the government deliberately attempted to delay a case “with the specific purpose of hampering the defense”. The Court concluded “There is nothing demonstrating that any government entity definitively received such notification [that the defendant remained at liberty erroneously] and deliberately failed to take steps to rectify the error. Absent anything definitive in this regard, it was within the Trial Court’s province to conclude that the reason for the error…did not amount to anything more than negligence on the part of the government.” Id at page 1048.
(3) With respect to whether West timely asserted his rights, the Supreme Court would not accept the Commonwealth’s premise that West was aware of his sentence and was “essentially biding his time while erroneously at liberty”. Rather, the Supreme Court stated “We also assume for the sake of analysis that West was unaware of the error until his arrest in June of 2002. Thus, this factor does not weigh against West.” Id at page 1048-1049.
(4) With respect to the issue of prejudice, the Court departed from the Superior Court analysis. The Supreme Court stated “This finding [by the Superior Court] that West suffered prejudice, however, is merely speculative and not based upon the loss of any real potential meritorious claim.” Id at page 1049.
Weighing all of the factors set for the in Barker, the Supreme Court held that West’s due process rights were not violated. Accordingly, Mr. West’s judgment of sentence was reaffirmed despite the nine years that he was erroneously at liberty.
Like the Courts in Blair and West, we will apply the four factors articulated in Barker to the facts of this case:
(1) Length of delay:
In this case, the delay in execution of the DEFENDANT’s sentence has been four and one-half years. Like the Courts in Blair and West, we recognize that a four and one-half year delay is sufficient “to warrant further inquiry”.
(2) The reason for the delay:
There is absolutely no evidence of nefarious intent on the part of the Commonwealth or the Court System in causing a delay in the execution of the DEFENDANT’s sentence. Neither this Court nor the District Attorney had any vested interest in delaying execution of the sentence; in fact the opposite was true. Not even the DEFENDANT has alleged that anyone was affirmatively aware of his non-compliance with the sentence and deliberately failed to take action to rectify the error. The delay in execution of the DEFENDANT’s sentence inadvertently occurred without any wrongful intent on the part of the Court or the District Attorney.
On the other hand, the DEFENDANT was very well aware that he had been sentenced to spend time in prison and then on supervision. More than anyone else, the DEFENDANT knew that he never served the sentence that was imposed by the Court. Despite the fact that it is common practice in Lebanon County for defense attorneys to arrange for their clients to report to serve their sentence after the denial of an appeal, the DEFENDANT’s attorney in this case said nothing to anyone. In fact, the DEFENDANT’s attorney was very careful to avoid mentioning that his client remained free on bail when he filed his Motion for Modification of Sentence and Motion for Reconsideration of Sentence in 2014.2
We conclude that the DEFENDANT and his attorney chose to essentially sit back and do nothing knowing that the DEFENDANT’s obligation to comply with sentencing had slipped through the proverbial cracks of the justice system. While the DEFENDANT is correct that there is no specific legal obligation imposed upon a defendant in cases such as this, we are nevertheless compelled to conclude that the DEFENDANT was well aware of his non-compliance with our judgment of sentence. This non-compliance could have been easily cured had the DEFENDANT or his counsel worked cooperatively with the Court and the District Attorney’s office to identify a date of reporting to commence implementation of the sentence. To the extent necessary, we conclude that the DEFENDANT was at least partly responsible for the delay that occurred in this case.
(3) Whether the DEFENDANT timely asserted his rights:
As noted above, we conclude that the DEFENDANT was well aware that he remained erroneously at liberty following the exhaustion of his appellate rights. Between 2014 and 2018, the DEFENDANT did nothing to affirmatively notify the Court or the District Attorney that he remained free from any obligations under his Sentencing Order. To the extent that the DEFENDANT now claims that it would be unfair to sentence him given the current posture of his life, we conclude that his decision to essentially sit back and do nothing contributed to his current situation.
(4) Prejudice:
Without question, serving a sentence is always inconvenient and perhaps even prejudicial to a criminal defendant. Punishment is one purpose of criminal sanctions. However, the mere fact that the DEFENDANT does not want to fulfill the terms of a sentence that was imposed is not the type of “prejudice” that the Courts envisioned in Barker, Blair or West.
On the other hand, society has a vested interest in responding to those who commit criminal acts. In this case, the DEFENDANT was before this Court for his fourth DUI within a period of five years. Although this Court could have placed the DEFENDANT in a State Prison, we chose not to do so. Rather, we responded to the DEFENDANT’s criminal behavior by imposing a sentence that included time in local prison, house arrest and drug and alcohol counseling. Given the jury’s verdict and the DEFENDANT’s past history, it would be unconscionable for the DEFENDANT to avoid all responsibility simply because there has been a delay in his compliance with our sentence. To the extent necessary, we conclude that the Commonwealth of Pennsylvania would suffer prejudice if the DEFENDANT is not required to complete the terms of his sentence.
As we weigh all of the factors outlined above, we conclude without hesitation that the DEFENDANT should begin serving his sentence immediately. The facts of this case are at least as compelling as the facts presented in Commonwealth v. Blair, Supra and Commonwealth v. West, Supra. In both Blair and West, our Appellate Courts ultimately determined that when a defendant does not immediately begin serving a sentence when all appellate rights are exhausted, his day of reckoning may be delayed but not denied. In this case, the day of reckoning for the DEFENDANT will be one (1) week from today. On that date, the DEFENDANT is to report to the Lebanon County Correctional Facility to begin serving the sentence imposed by this court on September 19, 2011. An Order to accomplish this decision will be entered today’s date.

1 We disagree that Verdekal is blameless in the events that have transpired

2 Likewise, we found it curious that the DEFENDANT submitted a letter to the Clerk of Court in 2015 to advise of his change of address knowing that his letter would be made part of the record in this case. Yet the DEFENDANT did not provide a copy of his letter to either the Court or the District Attorney.