Commonwealth vs. Zimmerman No. CP-38-CR-1502-2007

Crimes – Pa.R.Crim.P. 600 – Right to Speedy Trial – Federal and State Constitutions – Waiver of Claim – Motion to Dismiss Charges.

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.

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.

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.

The judge shall record the identity of the party requesting the continuance and the reasons for granting or denying the continuance. The judge also shall record to which party the period of delay caused by the continuance shall be attributed, and whether the time will be included in or excluded from the computation of the time within which trial must commence in accordance with Pa.R.Crim.P. 600.

When a defendant has not been brought to trial within the time periods set forth Pa.R.Crim.P. 600, at any time before trial, the defendant’s attorney, or the defendant, if unrepresented, may file a written motion requesting that the charges be dismissed with prejudice on the ground that this rule has been violated.

The right to a speedy trial is guaranteed to criminal defendants by virtue of the Sixth Amendment of the United States Constitution and Article I, Section 9 of the Pennsylvania Constitution. However, the minimum standards guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution are not deemed adequate to provide criminal defendants in Pennsylvania the protection guaranteed by the Pennsylvania Constitution. Rule 600 is a procedural rule which was adopted to protect these constitutional rights. It is designed to give reasonable parameters for the commencement of trial by establishing a definitive period of time for a speedy trail violation, and to prevent unnecessary prosecutorial delay in bringing a defendant to trial.

A criminal defendant who fails to appear for a court appearance of which he has notice waives his right to assert claims under Rule 600.

Once a case has been listed for trial, it is irrelevant whether the defendant absents himself before the proceedings commence or after a substantive event had occurred. A defendant cannot be permitted to frustrate the judicial process in this manner.

The Court held that Defendant’s decision not to appear at either the Call of the List, the November 2007 Trial term or thereafter, resulted in his waiver of all claims under Rule 600. Consequently, the Court denied Defendant’s Motion to Dismiss pursuant to Rule 600.

The Court further held that Defendant’s waiver rendered irrelevant any issue of due diligence on the part of the Commonwealth. The Court noted that once Defendant was apprehended, his trial was required to be held at the reasonable convenience of the trial court and the Commonwealth.

A defendant’s waiver of his Rule 600 rights does not result in a waiver of his Constitutional speedy trial rights. However, a Court will not address that issue unless the defendant has asserted such a claim.

Defendant here failed to assert a speedy trial claim and, therefore, the Court refrained from ruling on that issue.

Defendant’s Motion to Dismiss. C.P. of Lebanon County, Criminal Division, No. CP-38-CR-1502-2007.

COMMONWEALTH OF PENNSYLVANIA

v.

JAMES ZIMMERMAN

APPEARANCES:

NICHOLE EISENHART, ESQUIRE FOR THE COMMONWEALTH

FIRST ASSISTANT DISTRICT ATTORNEY

SCOTT M. JOCKEN, ESQUIRE FOR JAMES ZIMMERMAN

ASSISTANT PUBLIC DEFENDER

OPINION, TYLWALK, P.J., MAY 14, 2014.

On June 18, 2007, a Criminal Complaint was filed which charged Defendant with Driving Under the Influence of Alcohol, High Rate of Alcohol, Third Offense, Driving Under the Influence of Alcohol, General Impairment, Third Offense, and the summary offenses of Driving While Operating Privilege is Suspended or Revoked, DUI-Related, Alcohol in System, and General Lighting Requirements for an incident which occurred on June 6, 2007. Defendant was notified that his Arraignment was scheduled for September 12, 2007 and was directed to appear for the Call of the List scheduled for October 25, 2007 and the term of Criminal Jury Trials on November 5, 2007. He waived his Arraignment on September 12, 2007. However, he failed to appear for Call of the List on October 25, 2007 and a Bench Warrant was issued. At that time, Defendant’s address was listed as 250 Valley Lane, Annville, Pennsylvania 17003.

On May 5, 2008, Defendant was incarcerated in the Lebanon County Correctional Facility (“LCCF”) for a sixty-day period after he pled guilty to the summary offense of Driving While Operating Privilege is Suspended or Revoked, DUI-Related, before the Honorable Michael D. Smith, Magisterial District Judge, 52-3-04 regarding an incident which had occurred on April 11, 2007. He was released from LCCF on July 3, 2008. Sometime subsequent to his release, Defendant moved from his previous address to his current residence at 2842 D Horseshoe Pike, Campbelltown, in Lebanon County.

Defendant was arrested on the Bench Warrant issued in this case on June 29, 2013. He appeared at Bench Warrant Court on July 1, 2013 and bail was set in the amount of five hundred dollars ($500.00). He was directed to appear for the Call of the List scheduled for July 25, 2013. On July 10, 2013, Defendant posted bail and was released from custody.

Defendant applied for and was granted court-appointed counsel on July 15, 2013. After he submitted an application for the Lebanon County DUI-Court program, his Call of the List date was continued from July 25, 2013 to August 29, 2013, and then again to October 24, 2013. On October 24, 2013, Defendant appeared and entered a negotiated plea for a sentence of a nine-month minimum, with the Judge to set the maximum, and standard DUI conditions. On December 18, 2013, Defendant appeared for Sentencing but requested and was granted a continuance to January 22, 2014 to investigate potential Rule 600 issues.

On January 15, 2014, Defendant filed a Motion to Dismiss Pursuant to Rule 600 of the Pennsylvania Rules of Criminal Procedure on the basis that the Commonwealth failed to bring him to trial within the 365 days permitted by Pa.R.Crim.P. 600. The Commonwealth filed its Response on January 30, 2014 and on February 12, 2014, we conducted a hearing on the Motion. The Commonwealth presented no testimony at the hearing and rested on its Response. At the conclusion of the hearing, we granted the parties leave to submit Briefs. Both parties have filed Briefs and the matter is now before us for disposition.

Pa.R.Crim.P. 600 provides, in part:

Pa.R.Crim.P. 600(A)(1)(2(a), (C)(1)-(3)(a)(ii), (D)(1-2).

The right to a speedy trial is guaranteed to criminal defendants by virtue of the Sixth Amendment of the United States Constitution and Article I, Section 9 of the Pennsylvania Constitution. Commonwealth v. Colon, 87 A.3d 352 (Pa. Super. 2014). However, the minimum standards guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution are not deemed adequate to provide criminal defendants in Pennsylvania the protection guaranteed by the Pennsylvania Constitution. Id. Rule 600 is a procedural rule which was adopted to protect these constitutional rights. Id. It is designed to give reasonable parameters for the commencement of trial by establishing a definitive period of time for a speedy trial violation, Commonwealth v. Steltz, 560 A.2d 1390 (Pa. 1992) (discussing prior Pa.R.Crim.P. 1100, renumbered Pa.R.Crim.P. 600), and to prevent unnecessary prosecutorial delay in bringing a defendant to trial. Commonwealth v. Brock, 61 A.3d 1015, 1021 (Pa. 2013).

Here, the Criminal Complaint was filed on June 18, 2007. Defendant contends that the 365 days within which he was to be tried under Rule 600 expired on June 17, 2008 and that once the Bench Warrant was issued on October 25, 2007, the Commonwealth made no effort to ensure that it complied with this requirement. He argues that since the Commonwealth had his address and he was incarcerated in LCCF, it would have been possible to locate and apprehend him through the exercise of due diligence. The Commonwealth counters that Defendant waived his right to assert these Rule 600 claims by his failure to appear as directed for the Call of the List on October 25, 2007. We agree with the Commonwealth and will deny Defendant’s Motion.

A criminal defendant who fails to appear for a court appearance of which he has notice waives his right to assert claims under Rule 600. Commonwealth v. Brock, 61 A.3d 1015, 1021 (Pa. 2013); Commonwealth v. Steltz, 560 A.2d 1390 (Pa. 1989). In Commonwealth v. Steltz, 560 A.2d 1390 (Pa. 1989), the defendant had been released on bail. He appeared for the call of the criminal trial list which occurred prior to the expiration of the time period allowed for trial under Rule 1100, the predecessor of Rule 600. However, he failed to appear for jury selection which was to occur late that same day and the judge ordered a recess until the following day. When he again failed to appear the following day, the judge issued a capias. He was apprehended eleven days later and a trial date was set for a date beyond the expiration of the allowable time. The trial court granted the defendant’s motion for dismissal and the Superior Court affirmed. In reversing and remanding to the trial court, the Pennsylvania Supreme Court noted that:

Commonwealth v. Steltz, 560 A.2d at 1391.

In Commonwealth v. Brock, supra, the defendant, who was on house arrest, also failed to appear for a trial listing. After a Bench Warrant was issued, the police went to his residence and when he was not there, made no further attempts to locate him. When authorities were notified that he was in custody in another county, no attempt was made to secure his return. After the police were notified that he was incarcerated in a state correctional facility, they finally arranged for his return for trial. By the time he was returned, 365 days from the filing of the criminal complaint had passed. The defendant moved for dismissal and the Commonwealth argued that he had waived his Rule 600 claims. The trial court dismissed based on its finding of Rule 600 violation and the Superior Court affirmed. The Pennsylvania Supreme Court found the defendant had waived his Rule 600 claims for dismissal under Steltz and reversed and remanded.

We believe the Steltz and Brock holdings compel the same result here. Defendant attempts to distinguish these cases on the basis that he merely failed to appear for the Call of the List and not the actual Trial of his case. A similar issue was addressed in Brock. In that case, the Superior Court had distinguished the facts from Steltz on the basis that the defendant in Steltz absconded after the jury venire had been empaneled, which it deemed a substantive stage leading to the guilt determining process, and in Brock the jury had not yet been impaneled. In addressing this issue, the Supreme Court noted that although preliminary calendar calls do not constitute commencement of a trial, “… [t]he impact of the defendant’s failure to appear is equally adverse regardless of the stage of the proceedings; once a case has been is (sic) listed for trial, it is irrelevant whether the defendant absents himself before the proceedings commence or after a substantive event had occurred, as in Steltz. A defendant cannot be permitted to frustrate the judicial process in this manner.” Brock, supra at 1022.

Here, Defendant was on the Criminal Call of the List and had not only been ordered to appear at the Call on October 25, 2007, but had also been directed to appear for Trial during the Term of Criminal Jury Trials which would commence a few days later on November 5, 2007. He failed to appear at both proceedings. Regardless of whether he absented himself from Call of the List or on the day scheduled for the commencement of jury trials, his conduct disrupted the orderly process of his case and frustrated the Commonwealth’s efforts to comply with Rule 600. Under the reasoning of the Brock decision, we cannot approve his manipulation and frustration of the judicial process in this manner.

Defendant argues that the fact that his guilty plea was entered beyond the expiration of the 365 time period requires that we dismiss the charges against him. In asserting this argument, he points to Commonwealth v. Bowes, 839 A.2d 422 (Pa. Super. 2003). In that case, the Defendant initially entered his guilty plea prior to the expiration of the 365 days. He was subsequently permitted to withdraw his guilty plea and proceed to trial. Immediately prior to the beginning of his trial, he moved for dismissal under Rule 600. After the court denied his motion, he was tried and convicted of the charges. He then absconded prior to his sentencing. After being apprehended, he made a second motion for dismissal based on the expiration of the 365 day period. The court simply held that the running of the time period under Rule 600 was tolled by the entry of his guilty plea prior to the expiration of the 365 days and engaged in a calculation of time periods under Rule 600.

Defendant claims that Bowes somehow supports a different result here since he did not use his guilty plea to toll the running of the 365 days. We fail to see how this is so. In Bowes the defendant had absconded after his trial and, as such, there was no waiver issue. Here, Defendant’s decision not to appear at either the Call of the List, the November 2007 Trial term or thereafter, resulted in his waiver of all claims under Rule 600. This is a different scenario which was caused by Defendant’s disruption of the timely and orderly process toward the conclusion of his case and the timing of his guilty plea does not affect the outcome of this matter.

Defendant further complains that the issuance of a bench warrant does not constitute due diligence and that the Commonwealth has presented no evidence of any attempts to bring Defendant in on the Bench Warrant in order to establish that it exercised due diligence in an effort to have him tried by June 17, 2008. Under the holdings in Steltz and Brock, however, Defendant’s waiver rendered irrelevant any issue of due diligence on the part of the Commonwealth and any consideration of the running of the Rule 600 time period. See, Commonwealth v. Brock, supra.

Once Defendant was apprehended, his trial was required to be held at the reasonable convenience of the trial court and the Commonwealth. See, Commonwealth v. Williams, 726 A.2d 389 (Pa.Super. 1999). After Defendant was picked up on the Bench Warrant on June 29, 2013, he was directed to appear for the Call of the List on July 25, 2013. He applied for and was appointed counsel on July 15, 2013. After he submitted an application for DUI-Court, his case was continued to the Call of the List scheduled for August 29, 2013, and then to October 24, 2013, when he entered his plea. We find that the time period involved in the continuances was attributable to Defendant and the date set for trial calls on October 24, 2013 was reasonable under all of the circumstances.

We note that a speedy trial analysis normally involves a two-step inquiry: (1) whether the delay violated the Pennsylvania procedural Rule 600; and, if not, then (2) whether the delay violated the defendant’s right to a speedy trial guaranteed by the Sixth Amendment to the United States Constitution. Commonwealth v. Colon, supra. at 356, citing Commonwealth v. DeBlase, 665 A.2d 427, 431 (Pa. 1995). In Brock, the Pennsylvania Supreme Court noted that the defendant’s waiver of his Rule 600 rights did not result in a waiver of his Constitutional speedy trial rights but the court did not address that issue as the defendant had not asserted such a claim. Brock, supra at 1022, n. 7. Defendant here has likewise failed to assert such a claim and therefore, we refrain from ruling on that issue.

For these reasons, we will deny Defendant’s Motion for Dismissal and direct him to appear for Sentencing in this matter.