Judges Opinions, — March 1, 2023 10:52 — 0 Comments

Commonwealth of Pennsylvania v. Charlie Ortiz-Vazquez

Commonwealth of Pennsylvania v. Charlie Ortiz-Vazquez

 

Criminal Action-Constitutional Law-Right to a Speedy Trial-Pa.R.Crim.P. Rule 600-Prosecutorial Delay-Excludable Periods-Due Diligence-Typographical Error-Transcription of FBI Identification Number on Criminal Complaint-Law Enforcement Officer as the Commonwealth

 

Charlie Ortiz-Vazquez (“Defendant”) was charged with drug related offenses on December 16, 2016.  A typographical error was made with regard to the FBI identifying number listed for Defendant on the criminal complaint.  Defendant failed to appear at the preliminary hearing, the case was bound over in abstentia and a bench warrant was issued.  On April 11, 2018, an employee of SCI Huntington informed the Lebanon County Sheriff’s Department that while a Charlie Ortiz-Vazquez was incarcerated at that facility, the FBI number associated with that individual was incorrect.  After receiving a photograph of Defendant from the Lebanon County Sheriff’s Department, the employee at SCI Huntington confirmed that the person in custody was not the person depicted in the photograph.  No further action was taken on the current case until the case was reassigned to another Trooper at the Pennsylvania State Police on February 17, 2021, who discovered the typographical error in the FBI number listed for Defendant in the Criminal Complaint.  The Trooper immediately contacted the Lebanon County District Attorney’s Office, which promptly filed a motion to modify the FBI number and to vacate the bench warrant, both motions that were granted.  Defendant filed a motion seeking to dismiss the matter pursuant to Pa.R.Crim.P. Rule 600.

 

  1. Pa.R.Crim.P. Rule 600 was designed to prevent unnecessary prosecutorial delay in bringing a defendant to trial.

 

  1. Rule 600(A) requires that trial shall commence within 365 days from the date upon which the complaint is filed.

 

  1. Periods of delay caused by a defendant are excluded from the computation of the length of time of any pretrial incarceration.

 

  1. Any other delay that occurs despite the Commonwealth’s due diligence is deemed excusable and results in adjustment to the computation of the length of time since the criminal complaint was filed.

 

  1. The Commonwealth must do everything reasonable within its power to guarantee that a trial begins on time.

 

  1. The Commonwealth bears the burden of proving that it proceeded with due diligence by a preponderance of the evidence.

 

  1. Due diligence includes, among other actions, listing a case for trial prior to the run date, preparedness for trial within the run date and keeping adequate records to ensure compliance with Rule 600.

 

  1. Analysis of a Rule 600 challenge involves a three (3) step process: (1) the Court must use Rule 600(A) to determine the mechanical run date; (2) the Court must determine any excludable time to arrive at an adjusted run date; and (3) if trial occurs after the adjusted run date, the Commonwealth must establish that it acted with due diligence in bringing the case to trial.

 

  1. Since the criminal complaint in this case was filed on December 14, 2016, the mechanical run date for bringing Defendant to trial is December 14, 2017.

 

  1. Law enforcement officers are encompassed in the definition of “the Commonwealth” as contemplated by Rule 600.

 

  1. Since a representative of law enforcement made an error that resulted in misidentification of Defendant by transcribing an incorrect FBI identifying number on the Criminal Complaint that was discovered by way of SCI Huntington on April 11, 2018 and the Commonwealth did not act to remedy the issue until February 17, 2021, the Commonwealth has failed to carry its burden of establishing that it acted with due diligence to excuse the delay from April 11, 2018 through February 17, 2021 such that the Commonwealth failed to bring Defendant to trial in 365 days in violation of the protections afforded by Rule 600.

 

L.C.C.C.P. No. CP-38-CR-0000090-2017, Opinion by Bradford H. Charles, Judge, April 29, 2022.

 

 

IN THE COURT OF COMMON PLEAS LEBANON COUNTY

PENNSYLVANIA

 

CRIMINAL DIVISION

 

COMMONWEALTH OF PENNSYLVANIA:    

                                                                                    :

  1.                                                          :      No.           CP-38-CR-90-2017                                                                                        :          

CHARLIE ORTIZ-VAZQUEZ                               :          

                                                                                    :

 

AND NOW, this 29th day of April 2022, in accordance with the attached Opinion, the Defendant’s Motion to Dismiss Charges is GRANTED. All charges in relation to the above-captioned case are hereby dismissed with prejudice.

 

BY THE COURT:

 

                                                J.

BRADFORD H. CHARLES

BHC/oeh

 

cc:        Court Administration (Order only)

Courtney McMonagle, Esq. // District Attorney’s Office

Brian Deiderick, Esq. // Public Defender’s Office

 

 

 

 

 

IN THE COURT OF COMMON PLEAS LEBANON COUNTY

PENNSYLVANIA

 

CRIMINAL DIVISION

 

COMMONWEALTH OF PENNSYLVANIA:    

                                                                                    :

  1.                                                          :      No.           CP-38-CR-90-2017                                                                                        :          

CHARLIE ORTIZ-VAZQUEZ                               :          

                                                                                    :

 

APPEARANCES

Courtney McMonagle, Esquire                   For Plaintiff

DISTRICT ATTORNEY’S OFFICE       

 

Brian Deiderick, Esquire                             For Defendant

OFFICE OF THE PUBLIC DEFENDER

OPINION BY CHARLES, J., April 29, 2022

When the Commonwealth files charges against a defendant, it immediately places his fundamental right to liberty in jeopardy. In pursuing these charges, the Commonwealth is equipped with significant resources to investigate and prosecute the case to its just termination. To balance this broad authority wielded by the government, the law affords the government with 365 days to prosecute its case. When the prosecution is delayed by the fault of the Commonwealth, a defendant’s liberty is nearly incurably tainted, and the only remedy is to dismiss the charges against the defendant.

Today, we examine a careless error by the government to accurately record a defendant’s identifying information, and when the error was discovered, the Commonwealth failed to remedy the information for nearly three years. The Commonwealth’s lack of due diligence directly resulted in a violation of the defendant’s constitutional right to a speedy trial. We will thus dismiss the charges against him with prejudice.

  1. FACTS

Charlie Ortiz-Vazquez was born on June 21, 1995. Coincidentally, so was another Charlie Ortiz-Vazquez. It is this misunderstanding that sets the stage for today’s Opinion.

On December 16, 2016, Charlie Ortiz-Vazquez (hereafter, “DEFENDANT”) was charged with one (1) count of Possession of Drug Paraphernalia[1], one (1) count of Driving Under the Influence of a Controlled Substance[2], one (1) count of Possession of Small Amount of Marijuana[3], and two summary offenses[4]. The arresting officer was Trooper Bruce Kleckner (hereafter, “Tpr. Kleckner”), who was assigned to the PSP Jonestown Barracks. Part of Tpr. Kleckner’s responsibilities included taking Mr. Ortiz-Vazquez’s information—including his FBI identifying number—and placing it in the criminal complaint.

A preliminary hearing was scheduled, and DEFENDANT failed to appear. The case was bound over in abstentia, and a bench warrant was issued.

The Lebanon County Sherriff’s Department was notified that one Charlie Ortiz-Vazquez was in the custody of Dauphin County Booking based on newly acquired charges. Mr. Ortiz-Vazquez pled guilty to the Dauphin County case, and was sentenced to serve 70 to 140 months in SCI Huntington on August 18, 2018.

On April 11, 2018, SCI Huntington informed the Lebanon County Sherriff’s Office that one Charlie Ortiz-Vazquez was incarcerated in their facility, but the FBI number associated with him was erroneous. The Lebanon County Sherriff’s Office sent over a picture of DEFENDANT to SCI Huntington. They received the photo and confirmed that the Charlie Ortiz-Vazquez that they had in custody was not the one who appeared in the picture that the Lebanon Sheriff’s Office sent for comparison.

Nothing else was done with respect to this case until the case was reassigned to Pennsylvania State Trooper Ralph Vance (hereafter, “Tpr. Vance”) of the Jonestown Barracks. Tpr. Vance duly investigated his newly-assigned case and came to the realization that there was a typographical error in DEFENDANT’s FBI number.  In fact, the typographical error was such that the incorrect FBI number belonged to a different Charlie Ortiz-Vazquez.

Discovering this error, Tpr. Vance immediately contacted the Lebanon County District Attorney’s Office. The District Attorney’s Office promptly filed a Motion to modify the FBI numbers and to remove the bench warrants on February 23, 2021. On February 24, 2021, the Commonwealth’s Motion was granted.

A guilty plea was scheduled for November 18, 2021. DEFENDANT filed a continuance for the guilty plea hearing on November 17, 2021. The continuance was granted that same day. In January of 2022, DEFENDANT filed a motion seeking to dismiss the matter pursuant to Pa.R.Crim.P. 600.

A hearing was held before this Court on February 7, 2022. We heard testimony from various members of law enforcement, including Tpr. Vance, who described the impact that the typographical error had on effectively prosecuting this case. At the conclusion of the February 7, 2022 hearing, we solicited Briefs from the parties to be submitted within 45 days of the hearing. We timely received the Commonwealth’s Brief on March 25, 2022. DEFENDANT has not filed a Brief in support of his argument.

We issue this Opinion in support of our conclusion that law enforcement failed to exercise due diligence in prosecuting this case in a timely manner. We therefore will dismiss the charges against DEFENDANT with prejudice.

  1. DISCUSSION

Rule 600 was designed to prevent unnecessary prosecutorial delay in bringing a defendant to trial. Commonwealth v. Brock, 61 A.3d 1015, 1021 (Pa. 2013).

Generally, [the Rule] serves to protect a defendant’s speedy trial rights, as well as society’s right to effective prosecution of criminal cases. To balance these rights, Rule 600(G) requires the court to consider whether the Commonwealth exercised due diligence, and whether the circumstances occasioning the delay of trial were beyond the Commonwealth’s control. Further, the rule states, [i]f, at any time, it is determined that the Commonwealth did not exercise due diligence, the court shall dismiss the charges and discharge the defendant.

Commonwealth v. Thompson, 136 A.3d 178, 182 (Pa. Super. 2016) citing Commonwealth v. Selenski, 994 A.2d 1083, 1088 (Pa. 2010) (internal punctuation and citations omitted).

Rule 600 requires that trial shall commence within 365 days from the date on which the complaint is filed. Pa.R.Crim.P. 600(A). This “mechanical run date” is not rigid, however. Indeed, periods of delay caused by a defendant are excluded from the computation of the length of time of any pretrial incarceration. Pa.R.Crim.P. 600(C). Any other delay that occurs, despite the Commonwealth’s due diligence, is deemed excusable and results in further adjustments to the effective run date. Pa.R.Crim.P. 600(G).

Our Supreme Court has made clear that “the Commonwealth must do everything reasonable within its power to guarantee that a trial begins on time.” Commonwealth v. Matis, 710 A.2d 12, 16 (Pa. 1998). The burden lies with the Commonwealth to prove that they proceeded with due diligence, and such due diligence must be weighed by a preponderance of the evidence. Selenski, supra at 1089. Indeed:

Due diligence is fact-specific, to be determined case-by-case; it does not require perfect vigilance and punctilious care, but merely a showing the Commonwealth has put forth a reasonable effort.

Selenski, supra at 1089.

Due diligence includes, among others, listing a case for trial prior to the run date, preparedness for trial within the run date, and keeping adequate records to ensure compliance with Rule 600. Commonwealth v. Ramos, 936 A.2d 1097, 1102 (Pa. Super. 2007) (emphasis supplied). Moreover, the Commonwealth must act with due diligence “throughout the period” for each delay not caused by the defendant. Commonwealth v. Hill, 736 A.2d 578, 586 (Pa. 1999).

The Rule 600 analysis entails three steps:

First, Rule 600(A) provides the mechanical run date. Second, we determine whether any excludable time exists pursuant to Rule 600(C). We add the amount of excludable time, if any, to the mechanical run date to arrive at an adjusted run date.

If the trial takes place after the adjusted run date, we apply the due diligence analysis set forth in Rule 600([D]). As we have explained, Rule 600[ ] encompasses a wide variety of circumstances under which a period of delay was outside the control of the Commonwealth and not the result of the Commonwealth’s lack of diligence. Any such period of delay results in an extension of the run date. Addition of any Rule 600[ ] extensions to the adjusted run date produces the final Rule 600 run date. If the Commonwealth does not bring the defendant to trial on or before the final run date, the trial court must dismiss the charges.

Commonwealth v. Wendel, 165 A.3d 952, 956–57 (Pa. Super. 2017) (citation omitted).

As mentioned supra, the mechanical run date is the date 365 days from the date in which the Commonwealth filed its complaint. Here, the Complaint was filed on December 14, 2016. Thus, the mechanical run date is December 14, 2017. Since the mechanical run date has since elapsed, we must determine whether the Commonwealth may be entitled to excusable time to allow them to remain within the 365 day window to prosecute this action.

The Commonwealth would have us believe that the error of the FBI number assigned to DEFENDANT was not the fault of the Commonwealth; rather the mistaken FBI number was a “clerical error”. DEFENDANT submits that the error was the result of Tpr. Kleckner making a typographical error on DEFENDANT’s rap sheet. We find DEFENDANT’s argument more persuasive.

The Commonwealth relies heavily on our Supreme Court’s holding in Commonwealth v. Bradford, 46 A.3d 693 (Pa. 2012). In Bradford, the defendant’s charges were bound over at the preliminary hearing stage. The District Judge’s record was never received by court administration, which resulted in the case never appearing in the county’s internal docketing system. Id. The mechanical run time elapsed, and Bradford filed a motion to dismiss the charges. The trial court dismissed the charges, reasoning that the District Attorney’s Office had notice of the charges, and thus the Commonwealth had failed to exercise due diligence in bringing the case to trial. The Superior Court agreed. In her dissenting Opinion, Judge Bowes of the Superior Court questioned whether the Rule 600 violation resulted not from the Commonwealth’s lack of due diligence, but rather from judicial delay. Indeed, Judge Bowes opined:

Thus, the district attorney in Lewis[,429 A.2d 721 (Pa. Super. 1981)] was considered duly diligent despite the fact that he had actual notice of the case and a potential Rule 600 problem, just as the district attorney herein knew about Appellee’s charges because a prosecutor was present at the preliminary hearing. Despite this actual knowledge, we held in Lewis that the district attorney had been diligent because the circumstances causing the delay were caused by the court system rather than the prosecutor…. Herein, I refuse to fault the Commonwealth with failing to demand that the minor judiciary adhere to its Supreme Court-mandated responsibilities. I reject the notion that asking the magisterial district judge to do his job is necessary to demonstrate due diligence.

Bradford, 2 A.3d 628, 647-48 (Pa. Super. 2010) (Bowes, J., dissenting). The Pennsylvania Supreme Court reversed the Superior Court, finding that the prosecutor involved did exercise due diligence, and that the failure of Bradford’s case to be properly docketed in the county system was judicial error. Bradford, 46 A.3d 693, 705 (Pa. 2012). The Commonwealth avers that the situation in Bradford is similar to the case before us because the typographical error was outside of the control of the District Attorney’s Office.

The District Attorney in Bradford was unable to prosecute the case as a result of a judicial error outside of the control of the Commonwealth. Indeed, because the county court system failed to supply Mr. Bradford with a case number, there was effectively no record of his case for the District Attorney to reference in order to track the proceedings of the case. In the case at hand, however, the typographical error of DEFENDANT’s FBI number was caused by someone employed in law enforcement. Indeed, during our hearing conducted on February 7, 2022, Tpr. Vance’s testimony established that the typographical error was made by the Pennsylvania State Police. To illustrate this, consider the following excerpts from our February 7, 2022 hearing:

  1. DEIDERICK: You are then responsible as you sit at your terminal – because we don’t use typewriters anymore – but you sit at your terminal and you take that FBI number from the screen and place it into the box that says: FBI number, on the Criminal Complaint form. Is that correct?

[TROOPER VANCE]: Correct.

  1. DEIDERICK: You would agree with me that there is a box on the front page that says: FBI number? Is that correct?

[TROOPER VANCE] Yes, sir.

  1. DEIDERICK: That would be the information that Trooper Kleckner would have put into the Criminal Complaint; is that correct?

[TROOPER VANCE] Yes, sir.

THE COURT: Coming back to my original question: The person who messed up and made an incorrect entry was actually Trooper Kleckner in the original Complaint.

  1. DEIDERICK: Correct. I believe that. If you ask me what my position was, that is absolutely it, Your Honor. Trooper Vance had nothing to do with it. It was Trooper Kleckner that made that entry.

THE COURT: Okay. Anything else for Trooper Vance?

  1. McMONAGLE: Nothing from me.

(N.T. at p. 33, 34-35, 39-40). We gather from this interaction that it was Tpr. Kleckner who made the typographical error on the FBI number. Tpr. Kleckner was a member of law enforcement, not the court system. With this in mind, we find that the Commonwealth’s reliance upon Bradford is misguided. While we agree that the District Attorney’s Office was not responsible for the error, it was certainly not the error of the judiciary or Lebanon County Court Administration that DEFENDANT’s FBI number was incorrectly entered.

The question remains: is law enforcement encompassed in Rule 600’s definition of “the Commonwealth?” Case law suggests that the police are generally considered “the Commonwealth” for Rule 600 purposes. See e.g., Commonwealth v. Mitchell, 372 A.2d 826 (Pa. 1977); Commonwealth v. Dorsey, 440 A.2d 619 (Pa. Super. 1982) (police must exercise due diligence in locating an accused person under Rule 600). Moreover, the Mitchell court guides our holding that police must be considered “the Commonwealth” with respect to Rule 600 issues, stating:

Based on this language, the Commonwealth reasons that Rule 1100 addresses itself to prosecutorial officers and not police. Thus, the Commonwealth would have us rule that the mandatory period begins to run from the time of preliminary arraignment where an arrest is made pursuant to a warrant because otherwise we would be interpreting the Rule as addressing itself to police.

The argument is devoid of merit. When the police file a complaint they initiate criminal proceedings against an accused, Pa.R.Crim.P. 101, and thus are clearly prosecutorial officers….

The Commonwealth need only show unavailability of the accused and due diligence on the part of police in executing the warrant. The risk of dismissal is justified by the accused’s right to a speedy trial, and can be avoided by due diligence.

Mitchell, supra at 830-31.

Here, a representative of law enforcement made an error that misidentified DEFENDANT. The Commonwealth then became aware of this error by way of SCI Huntington in April, 2018. The Commonwealth did nothing to address or remedy the problem until 2021. We cannot classify this inadequate record of DEFENDANT’s identifying information—and then doing nothing to correct the error for nearly three years—as due diligence by the Commonwealth. This time is inexcusable with respect their Rule 600 run time. Accordingly, the Commonwealth will not be excused the time period of April 11, 2018 through February 17, 2021.

Taking into account the excluded time periods other that between April 11, 2018 and February 17, 2021, the Commonwealth ran 1,043 days beyond the mechanical run time. The Commonwealth is clearly beyond the 365 days they are allotted. We are thus constrained to dismiss above-captioned case under Pa.R.Crim.P. 600. An order effectuating such will be entered in today’s date.

III.       CONCLUSION

When the Commonwealth files a criminal complaint against an accused, it is the responsibility of all members of law enforcement to exercise due diligence to bring the matter to its just conclusion. Such due diligence was overlooked when a typographical error resulted in the delay of DEFENDANT’s case by almost three years. Stated simply, the due diligence by Tpr. Vance in 2021 should have been undertaken by Tpr. Kleckner in 2018. Because he did not exercise the requisite due diligence, the accused was denied his constitutional right to a speedy trial. We will therefore dismiss the charges against DEFENDANT with prejudice.

 

[1] 35 Pa.C.S. § 780-113(A)(32)

[2] 75 Pa.C.S. § 3802(D)(1)(iii)

[3] 35 Pa.C.S. § 780-113(A)(31)(I)

[4] 75 Pa.C.S.§ 3362(A)(1.1-18); 75 Pa.C.S. § 3714(A)

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