The opinion
J-A23032-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
AHMED MEHRAN SUMIT :
:
Appellant : No. 270 MDA 2021
Appeal from the Judgment of Sentence Entered February 23, 2021
In the Court of Common Pleas of Lycoming County Criminal Division at
No(s): CP-41-CR-0001378-2019
BEFORE: PANELLA, P.J., MURRAY, J., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED: NOVEMBER 2, 2021
Appellant Ahmed Mehran Sumit appeals the judgment of sentence
entered by the Court of Common Pleas of Lycoming County. Appellant argues
that the trial court erred in denying his motion to dismiss based on Appellant’s
allegation that he was denied a “speedy sentence.” We affirm.
The trial court summarized the procedural history of this case as follows:
By way of background, the Commonwealth charged
[Appellant] with twenty-four counts of Sexual Abuse of Children –
Child Pornography, and one count of Criminal Use of a
Communication Facility.1
On October 20, 2020, Appellant pleaded guilty to a
consolidated count of Sexual Abuse of Children – Child
Pornography, a felony of the second degree. The court directed
Appellant to undergo an assessment with the Pennsylvania Sexual
Offender Assessment Board (“the Board”) to determine whether
____________________________________________
* Former Justice specially assigned to the Superior Court.
1 18 Pa.C.S.A. §§ 6312(d), 7512, respectively.
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he met the criteria for a sexually violent predator. The court
scheduled Appellant’s sentencing hearing for January 5, 2021.
On January 4, 2021, the Commonwealth requested a
continuance of the sentencing hearing. The Commonwealth noted
that the Board required 90 days to complete its assessment and
requested a sentencing date after January 18, 2021. The court
granted the continuance over Appellant’s objection and
rescheduled the sentencing hearing for February 23, 2021.
On January 5, 2021, Appellant requested modification of his
bail so that he could be released from incarceration because his
plea agreement was for a time-served sentence. The court denied
Appellant’s motion.
On February 22, 2021, Appellant filed a motion to dismiss
for failure to timely sentence, because the court did not sentence
him within 90 days of his guilty plea and it extended or continued
his sentencing hearing without “good cause shown.”
On February 23, 2021, the court denied Appellant’s motion
and sentenced Appellant to incarceration in the Lycoming County
Prison for a minimum of 220 days and a maximum of 544 days.
Appellant completed his sentence on February 23, 2021, but he
could not be released except to his Immigration and Customs
Enforcement (ICE) detainer.
On February 26, 2021, Appellant filed a notice of appeal.
Trial Court Opinion (T.C.O.), 4/28/21, at 1-3 (footnotes omitted).
Appellant’s sole claim on appeal is that “the court erred in not
discharging [Appellant] for violating his right to a speedy sentence.”
Appellant’s Brief, at 5. Appellant cites to Pennsylvania Rule of Criminal
Procedure 704, which provides in relevant part:
Rule 704. Procedure at Time of Sentencing.
(A) Time for Sentencing.
(1) Except as provided by Rule 702(B), sentence in a court case
shall ordinarily be imposed within 90 days of conviction or the
entry of a plea of guilty or nolo contendere.
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(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).
In determining whether Appellant’s sentencing violated Rule 704, a
court must consider four factors: “the length of the delay, the reason for the
delay, the defendant’s assertion of his rights, and prejudice to the defendant.
In conducting such an analysis, we 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, 889 (Pa.Super. 2012).
In this case, Appellant entered his guilty plea on October 20, 2020.
Appellant was not sentenced until 126 days later on February 23, 2021,
beyond the ninety-day limit imposed by Rule 704. The Commonwealth does
not challenge the trial court’s finding that Appellant timely asserted his rights
under Rule 704. As such, we must review the reasons for the delay and
whether Appellant suffered prejudice from the delay.
The trial court found that it was necessary to delay Appellant’s
sentencing as the trial court could not legally sentence Appellant without first
requesting an assessment from the Sexual Offenders Assessment Board. See
42 Pa.C.S.A. § 9799.24 (“after conviction but before sentencing, a court shall
order an individual convicted of a sexually violent offense to be assessed by
the board”).
The comment to Rule 704(A)(2) acknowledges that this pre-sentence
assessment procedure is required by statute and constitutes an extraordinary
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circumstance that justifies the extension of the time limit for sentencing set
forth in the Rule 704.
Paragraph (A)(2) is not intended to sanction pro forma requests
for continuances. Rather, it permits the judge to extend the time
limit for sentencing under extraordinary circumstances only. For
example, additional pre-sentence procedures may be required by
statute. See 42 Pa.C.S. §§ 9799.11-9799.41 for pre-sentence
assessment and hearing procedures for persons convicted of
sexually violent offenses.
Pa.R.Crim.P. 704(A), cmt.
Statutory law defines “sexually violent offense” as an “offense specified
in section 9799.1 (relating to sexual offenses and their tier system) as a Tier
I, Tier II, or Tier III sexual offense committed on or after December 20, 2012,
for which the individual was convicted.” 42 Pa.C.S.A. § 9799.12. Appellant
pled guilty to Sexual Abuse of Children – Child Pornography under 18
Pa.C.S.A. 6312(d), which is classified as a Tier I sexual offense pursuant to
42 Pa.C.S.A. § 9799.14, in connection with an offense that occurred on
February 1, 2018. As such, the trial court was required by statute to order
Appellant to submit to the pre-sentence assessment by the Board.
While Appellant suggested that the Commonwealth should be held
responsible for the delay in his sentencing, the trial court noted that the
Board’s failure to conduct the assessment was at least, in part, due to the
COVID-19 pandemic restrictions that limited the Board from conducting
interviews to complete this assessment.
We agree with the trial court’s assessment that the Commonwealth had
no part in causing the Board to fail to comply with their statutory duty. We
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find the delay in Appellant’s sentencing was neither intentional or inexcusable
conduct on the part of the Commonwealth or the trial court.
Appellant quotes the comment section to Rule 704(A)(1) to support his
contention that a trial court may not sentence a defendant more than 120
days after the defendant is convicted or enters a plea. The comment section
related to Rule 704(A) provides that:
[u]nder paragraph (A)(1), sentence should be imposed within 90
days of conviction or the entry of a plea of guilty or nolo
contendere, unless the court orders a psychiatric or psychological
examination pursuant to Rule 702(B). Such an order should
extend the time for sentencing for only as much time as is
reasonably required, but in no event should sentencing be
extended for more than 30 days beyond the original 90-day limit.
In summary appeal cases, however, sentence must be imposed
immediately at the conclusion of the de novo trial.
Pa.R.Crim.P. 704(A)(1), cmt.
However, Appellant fails to acknowledge that the language in this
commentary which suggests that in “no event should sentencing be extended
for more than 30 days beyond the original 90-day limit,” applies when the trial
court delays sentencing to order psychiatric or psychological examination
pursuant to Rule 702(B).
Moreover, Appellant has not shown that he was prejudiced by the
minimal delay in his sentencing. “In evaluating a Rule 704 motion for
discharge, a defendant must establish actual prejudice.” Diaz, 51 A.3d at 891
(quoting Commonwealth v. Fox, 953 A.2d 808, 811 (Pa.Super. 2008)).
While Appellant was sentenced 126 days after he entered his guilty plea, he
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admitted he was subject to a detainer from ICE and likely would have
remained incarcerated pending his proceedings in federal immigration court.
Accordingly, we conclude that the trial court did not err in denying
Appellant’s motion for discharge under Rule 704.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/02/2021
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