Com. v. Robinson, T.

J-S73001-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

TERRANCE BERNARD ROBINSON :

:

Appellant : No. 595 MDA 2017

Appeal from the PCRA Order March 27, 2017

In the Court of Common Pleas of Adams County Criminal Division at No(s):

CP-01-CR-0000706-2013

BEFORE: OLSON, J., DUBOW, J., and STRASSBURGER*, J.

MEMORANDUM BY OLSON, J.: FILED JUNE 22, 2018

Appellant, Terrence Bernard Robinson, appeals from the order entered

on March 27, 2017, dismissing his petition filed pursuant to the Post

Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. We affirm.

We briefly summarize the facts and procedural history of this case as

follows. In June 2012, the Commonwealth charged Appellant with criminal

conspiracy, three counts of possession with intent to deliver (PWID) cocaine,

and three counts of criminal use of a communications facility. 1 At the time,

Appellant’s whereabouts were unknown. On September 19, 2012, police

took Appellant into custody on unrelated charges in Baltimore, Maryland.

Thereafter, the Commonwealth entered a detainer against him. On April 12,

____________________________________________

1 18 Pa.C.S.A. § 903, 35 P.S. § 780-113(a)(30), and 18 Pa.C.S.A. § 7512,

respectively.

____________________________________

* Retired Senior Judge assigned to the Superior Court.

J-S73001-17

2013, Appellant requested that the Commonwealth dispose of the charges

pursuant to the Interstate Agreement on Detainers (IAD), 42 Pa.C.S.A.

§ 9101, et seq.2 As a result, Maryland authorities returned Appellant to

Pennsylvania on June 6, 2013. Counsel for Appellant sought, and received,

two continuances of Appellant’s preliminary hearing. The trial court held the

preliminary hearing on July 31, 2013, wherein all charges were bound for

court. On September 23, 2013, the trial court formally arraigned Appellant,

who then formally requested a jury trial. On December 2, 2013, prior to

jury selection, Appellant presented a motion to dismiss all charges for

violating Article III(a) of the IAD, claiming that he was not brought to trial

within 180 days of his request for final disposition of the charges. The trial

court continued the trial until the January 2014 term, so that it could hold a

hearing on Appellant’s motion to dismiss on December 3, 2013. Following

that hearing, the trial court denied Appellant’s motion to dismiss.

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2 “The IAD is an agreement between forty-eight states, the District of

Columbia, Puerto Rico, the Virgin Islands, and the United States, that

establishes procedures for the transfer of prisoners incarcerated in one

jurisdiction to the temporary custody of another jurisdiction which

has lodged a detainer against a prisoner.” Commonwealth v. Jones, 886

A.2d 689, 695 (Pa. Super. 2005) (citations omitted). “Unlike a request for

extradition, which is a request that the state in which the prisoner is

incarcerated transfer custody to the requesting state, a detainer is merely a

means of informing the custodial jurisdiction that there are outstanding

charges pending in another jurisdiction and a request to hold the prisoner for

the requesting state or notify the requesting state of the prisoner's imminent

release.” Id. (citations omitted).

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On January 14, 2014, Appellant entered into an agreement with the

Commonwealth wherein the parties stipulated to facts that were sufficient to

find Appellant guilty of criminal conspiracy and three counts of PWID.3 In

exchange, the Commonwealth agreed to withdraw the three counts of

criminal use of a communications facility. Further, the parties agreed to an

aggregate sentence of five to ten years of imprisonment, consecutive to any

sentence Appellant was already serving. The stipulated facts were entered

on the record and, after finding Appellant guilty, the trial court sentenced

Appellant according to the sentencing agreement. We affirmed Appellant’s

judgment of sentence in an unpublished memorandum on December 12,

2014. See Commonwealth v. Robinson, 2014 WL 10752295 (Pa. Super.

2014). On April 15, 2015, our Supreme Court denied further review. See

Commonwealth v. Robinson, 114 A.3d 416 (Pa. 2015).

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3 Appellant agreed to a bench trial on stipulated facts, with a negotiated

sentencing agreement, in order to preserve his right to challenge the trial

court’s ruling on his pre-trial motion to dismiss under the IAD. A stipulated

bench trial functions similarly to a guilty plea except that a guilty plea

constitutes a waiver of all defects and defenses except lack of jurisdiction,

invalidity of the guilty plea, and illegality of sentence. See Commonwealth

v. Eichinger, 108 A.3d 821, 828, (Pa. 2014) (stipulating to evidence is

functionally the same as a guilty plea, but preserves rights to challenge pre-

trial rulings); compare Commonwealth v. Main, 6 A.3d 1026, 1028 (Pa.

Super. 2010) (“The entry of a guilty plea constitutes a waiver of all defects

and defenses except lack of jurisdiction, invalidity of the plea, and illegality

of the sentence.”).

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On April 30, 2015, Appellant filed a pro se PCRA petition. The PCRA

court appointed counsel, who filed an amended PCRA petition. The PCRA

court held an evidentiary hearing on December 19, 2016 and ultimately

denied Appellant relief by opinion and order entered on March 27, 2017.

This timely appeal followed.4

Appellant raises the following issues for our review:

A. The [PCRA c]ourt committed an error of law and/or abused its

discretion in denying [Appellant’s] PCRA claim [that trial

counsel was ineffective for failing to bring a motion] pursuant

to Pa.R.Crim.P. 600 regarding [Appellant’s] right to a speedy

trial, when the Commonwealth failed to use due diligence in

bringing [Appellant] to trial within the statutory requirement.

B. The [PCRA c]ourt committed an error of law and/or abused its

discretion in denying [Appellant’s] PCRA claim of an illegal

sentence, whereby the [trial c]ourt imposed sentence outside

of the sentencing guidelines without disclosing, in open court

at the time of sentencing, a statement of reason or reasons

for the sentence imposed. In every case where a court of

record imposes a sentence outside the sentencing guidelines[,

there] shall be recorded on the guideline sentence form a

copy of which shall be transmitted to the Pennsylvania

commission on sentencing.

C. The [PCRA c]ourt committed an error of law and/or abused its

discretion in denying [Appellant’s] PCRA claim of an illegal

sentence, [based on the contention that] the [trial c]ourt

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4 Appellant filed a notice of appeal on April 3, 2017. On April 10, 2017, the

PCRA court entered an order directing Appellant to file a concise statement

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

complied timely on April 28, 2017. The PCRA court issued an opinion

pursuant to Pa.R.A.P. 1925(a) on May 18, 2017, which also incorporated its

prior decision entered on March 27, 2017.

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improperly imposed mandatory minimum sentences on each

count.

D. The [trial c]ourt committed an error of law and/or abused its

discretion in denying [Appellant’s] PCRA claims related to

Pa.R.Crim.P. 620 (jury waiver) when trial counsel failed to

advise [Appellant] of his constitutional right to a jury trial and

the [trial c]ourt failed to ascertain whether [Appellant]

knowingly and voluntarily waived his right to a jury trial

pursuant to Pa.R.Crim.P. [] 620.

Appellant’s Brief at 5.

Appellant’s first and fourth claims allege, under the PCRA, that trial

counsel was ineffective. We will examine those issues first. Our standard

and scope of review are as follows:

An appellate court reviews the PCRA court's findings of fact to

determine whether they are supported by the record, and

reviews its conclusions of law to determine whether they are free

from legal error. The scope of review is limited to the findings of

the PCRA court and the evidence of record, viewed in the light

most favorable to the prevailing party at the trial level.

To establish trial counsel's ineffectiveness, a petitioner must

demonstrate: (1) the underlying claim has arguable merit; (2)

counsel had no reasonable basis for the course of action or

inaction chosen; and (3) counsel's action or inaction prejudiced

the petitioner.

Furthermore, a PCRA petitioner will be granted relief only when

he proves, by a preponderance of the evidence, that his

conviction or sentence resulted from the ineffective assistance of

counsel which, in the circumstances of the particular case, so

undermined the truth-determining process that no reliable

adjudication of guilt or innocence could have taken place.

Counsel is presumed effective, and to rebut that presumption,

the PCRA petitioner must demonstrate that counsel's

performance was deficient and that such deficiency prejudiced

him.

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Counsel's assistance is deemed constitutionally effective once

this Court determines that the defendant has not established any

one of the prongs of the ineffectiveness test.

Commonwealth v. Freeland, 106 A.3d 768, 775 (Pa. Super. 2014)

(internal citations, quotations and brackets omitted).

In his first issue presented, Appellant claims that trial counsel was

ineffective for failing to raise a violation of Pa.R.Crim.P. 600 prior to the

commencement of trial. Appellant’s Brief at 9.5 Appellant avers that the

trial court erred by determining that the Commonwealth exercised due

diligence in bringing Appellant to trial within 365 days of filing the criminal

complaint against him. Id. at 13-14. More specifically, Appellant argues

that “[a]t the time the charges were filed [in June 2012], Appellant resided

in Baltimore, Maryland at the residence listed on the original criminal

complaint[,]” but “[t]he record is void of any evidence to show that law

enforcement tried to serve a warrant or otherwise secure Appellant’s

apprehension when Appellant’s whereabouts were admittedly known to the

Commonwealth.” Id. at 14. Appellant maintains that “[o]nce his

whereabouts were confirmed” the Commonwealth “failed to contact the

____________________________________________

5 Appellant’s trial counsel sought dismissal of the charges under the IAD

prior to jury selection by filing a motion to dismiss on December 3, 2013,

arguing that Appellant was not brought to trial in Pennsylvania within 180

days of his request for final disposition of the charges. The trial court

denied relief and we affirmed. See Commonwealth v. Robinson, 2014 WL

10752295 (Pa. Super. 2014) (unpublished memorandum). Appellant is now

claiming that trial counsel also should have raised a Rule 600 claim, in

addition to a claim under the IAD, to challenge this same period that he

spent in custody in Maryland.

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Baltimore City Detention Center to inquire about Appellant’s availability for

trial in Pennsylvania[,]” “simply put a detainer on Appellant[,]” and did not

make a request for extradition. Id. at 16. “Only because Appellant was

pro-active and took the onus upon himself [to request a transfer from

Maryland pursuant to the detainer] to face charges in Pennsylvania, was

Appellant finally transported to Adams County on June 6, 2013.” Id. at 21.

Appellant contends that these actions constitute a lack of due diligence by

the Commonwealth and trial counsel should have sought dismissal of the

charges, with prejudice, under Rule 600. Id. at 22.

Regarding Rule 600, we have stated:

The proper scope of review is limited to the evidence on the

record of the Rule 600 evidentiary hearing, and the findings of

the trial court. An appellate court must view the facts in the light

most favorable to the prevailing party.

Additionally, when considering the trial court's ruling, this Court

is not permitted to ignore the dual purpose behind Rule 600.

Rule 600 serves two equally important functions: (1) the

protection of the accused's speedy trial rights, and (2) the

protection of society. In determining whether an accused's right

to a speedy trial has been violated, consideration must be given

to society's right to effective prosecution of criminal cases, both

to restrain those guilty of crime and to deter those

contemplating it. However, the administrative mandate of Rule

600 was not designed to insulate the criminally accused from

good faith prosecution delayed through no fault of the

Commonwealth.

So long as there has been no misconduct on the part of the

Commonwealth in an effort to evade the fundamental speedy

trial rights of an accused, Rule 600 must be construed in a

manner consistent with society's right to punish and deter crime.

In considering these matters ... courts must carefully factor into

the ultimate equation not only the prerogatives of the individual

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accused, but the collective right of the community to vigorous

law enforcement as well.

Rule 600, [] provides, in pertinent part, that “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.” Pa.R.Crim.P. 600(A)(2)(a). For purposes of

computing when trial must commence, “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.... Any other periods of delay shall be excluded from the

computation.” Pa.R.Crim.P. 600(C)(1). “When a defendant has

not been brought to trial within the time periods set forth in

paragraph (A), 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.” Pa.R.Crim.P. 600(D)(1).

The Comment to the Rule explains the computation of time, in

relevant part, as follows:

For purposes of determining the time within which

trial must be commenced pursuant to paragraph (A),

paragraph (C)(1) makes it clear that any delay in the

commencement of trial that is not attributable to the

Commonwealth when the Commonwealth has

exercised due diligence must be excluded from the

computation of time Thus, the inquiry for a judge in

determining whether there is a violation of the time

periods in paragraph (A) is whether the delay is

caused solely by the Commonwealth when the

Commonwealth has failed to exercise due diligence.

If the delay occurred as a result of circumstances

beyond the Commonwealth's control and despite its

due diligence, the time is excluded. In determining

whether the Commonwealth has exercised due

diligence, the courts have explained that “[d]ue

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.”

Pa.R.Crim.P. 600, Comment (citations omitted).

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Commonwealth v. Plowden, 157 A.3d 933, 936–37 (Pa. Super. 2017)

(case citations, quotations and original brackets omitted).

Moreover, we recognize the Comment to Rule 600 further states:

In addition to any other circumstances precluding the availability

of the defendant or the defendant's attorney, the defendant

should be deemed unavailable for the period of time during

which the defendant contested extradition, or a

responding jurisdiction delayed or refused to grant extradition;

or during which the defendant was physically incapacitated or

mentally incompetent to proceed; or during which the

defendant was absent under compulsory process

requiring his or her appearance elsewhere in connection

with other judicial proceedings.

Comment, Pa.R.Crim.P. 600 (emphasis added).

Here, upon review of the record, at the PCRA hearing, Appellant

admitted that he was arrested in Maryland on September 19, 2012 and

facing trial for charges there. N.T., 12/20/2016, at 16. Thus, by his own

admission, Appellant was in custody in connection with other judicial

proceedings. For this reason, we could find Appellant was unavailable during

the time period of September 19, 2012 (when he was arrested and jailed in

Maryland) until June 6, 2013 (when he was returned to Pennsylvania) for

Rule 600 purposes.

“A criminal defendant who is incarcerated in another jurisdiction is

unavailable within the meaning of Rule 600 if the Commonwealth

demonstrates by a preponderance of the evidence that it exercised due

diligence in attempting to procure the defendant's return for trial.”

Commonwealth v. McNear, 852 A.2d 401, 404 (Pa. Super. 2004) (citation

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omitted). “The Commonwealth's stewardship [] must be judged

by what was done rather than by what was not done” in Rule 600 cases.

Commonwealth v. Selenski, 919 A.2d 229, 232 (Pa. Super. 2007).

In addressing Appellant’s current claim, the PCRA court first noted that

“the history in bringing [Appellant] to trial has been extensively discussed by

both [the trial court] and the Superior Court in the context of the IAD.”

PCRA Court Opinion 3/27/2017, at 8. Moreover, the PCRA court recognized

that Appellant did not cite any law, and our independent research on appeal

did not reveal, “that the Commonwealth must comply with the time

requirements of both the IAD and Rule 600 independently.” Id. at 9 n.8.

Regardless, for the reasons that follow, we conclude that the Commonwealth

complied with the Rule 600 time requirements by filing a detainer with

Maryland authorities.

The PCRA court further opined that “a panel of the Superior Court, in

dicta, signaled the Commonwealth would meet its due diligence requirement

by initiating extradition proceedings within 365 days from the filing of the

complaint for a defendant imprisoned in another state.” PCRA Court Opinion

3/27/2017, at 8 n.8, citing Commonwealth v. Booze, 947 A.2d 1287,

1292 (Pa. Super. 2008). In Booze, “the Commonwealth knew [Booze] was

being held in Maryland yet failed to follow the proper steps to secure her

upon the disposition of the Maryland charges.” Booze, 947 A.2d at 1291.

“Although the Commonwealth faxed a copy of the complaint to the Maryland

authorities, there were no assurances made on behalf of Maryland that this

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would in fact serve as a detainer.” Id. We determined that the

Commonwealth did not exercise due diligence because it did not initiate

extradition proceedings or file a formal detainer with the proper authorities

in Maryland. Id. However, we suggested that “the Commonwealth should

at least initiate extradition proceedings within 365 days from the filing of the

complaint for defendants who are imprisoned in another state in order to

meet its duty as to due diligence [under Rule 600].” Booze, 947 A.2d at

1292 (emphasis in original). It does not appear that our appellate courts

have addressed what actions constitute the “initiation of extradition.”

Next, we examine the case law cited by Appellant regarding detainers

and due diligence and, for the reasons that follow, reject his reliance on

them. In arguing his Rule 600 claim, Appellant principally relies on two of

this Court’s prior decisions: Commonwealth v. Alexander, 464 A.2d 1376

(Pa. Super. 1983)6 and Commonwealth v. Colon, 87 A.3d 352 (Pa. Super.

2014). See Appellant’s Brief at 12, 18, 20, and 22. In Colon, the

Commonwealth only presented evidence regarding efforts to locate Colon,

before filing a criminal complaint against him. Thereafter, we noted that

“although the Commonwealth asserted that ‘Trooper Scott faxed a copy of

the [Pennsylvania] complaint’ to the state institution in which [Colon] was

____________________________________________

6 While Appellant purports to cite to a case captioned “Commonwealth v.

Hamilton” at page 22, n.22 in his appellate brief, the legal citation goes to

Alexander, supra.

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confined, and that ‘a detainer was lodged against [Colon] therefore assuring

his release from state custody’ no evidence was presented to support this

assertion.” Colon, 87 A.3d at 359. Here, there is no dispute that a detainer

was filed against Appellant. Thus, Colon is inapplicable.

Next, Appellant relies upon our decision in Alexander. In that case,

the Commonwealth filed a complaint against Alexander in March of 1979.

Alexander assured police he would turn himself in, but he did not.

Thereafter, Pennsylvania police entered Alexander’s information into the

National Crime Information Center. In January of 1980, Pennsylvania police

received a call that Alexander was arrested in New Jersey and that there

were outstanding charges pending against him there. On January 22, 1980,

the Commonwealth learned that Alexander was incarcerated in New Jersey.

The Commonwealth took no action, however, until it filed a detainer on

March 27, 1980, after Alexander received his New Jersey sentence on

February 27, 1980. Following Alexander’s conviction in Pennsylvania, he

appealed to this Court asserting that his right to a speedy trial had been

denied. We agreed, reasoning that the 65-day period between January 22,

1980 (when the Commonwealth became aware of Alexander’s whereabouts)

and March 27, 1980 (when the Commonwealth requested Alexander’s return

from a correctional facility in New Jersey under the Detainers Act) was not

excludable under Rule 600’s predecessor because the Commonwealth failed

to act for an extended period of time after learning of Alexander’s

whereabouts. See Alexander, 464 A.2d at 1385-1385. We further held

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that the Commonwealth’s insufficient efforts to return Alexander to trial in

Pennsylvania over the next six months constituted further grounds to award

relief. As we explain below, these facts are not present in this case.

Although decisions from other states, as well as the opinions and

standards of the American Bar Association (ABA), are not binding authority

upon us, we may look at them for persuasive value. See Commonwealth

v. Maguigan, 511 A.2d 1327, 1336 (Pa. 1986).

The American Bar Association Standards for Criminal Justice provides:

Standard 12-3.1. Prosecutor's obligations; notice to and

availability of prisoner

To protect the right to speedy trial of a person serving a term of

imprisonment either within or without the jurisdiction, it should

be provided by rule or statute and, where necessary, interstate

compact that:

(a) if the prosecuting attorney knows that a person

charged with a criminal offense is serving a term of

imprisonment in a penal institution of that or another

jurisdiction, he or she must promptly:

(i) undertake to obtain the presence of the

prisoner for trial; or

(ii) cause a detainer to be filed with the official

having custody of the prisoner and request

the official to so advise the prisoner and to

advise the prisoner of his or her right to

demand trial[.]

American Bar Association, Standards for Criminal Justice, Standard 12-3.1

(2d ed.1980).

The commentary following ABA standard 12-3.1 states that the

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above standard, addressed to the broader problem of a

prisoner's right to speedy trial, requires the prosecutor to initiate

procedures whereby the prisoner may demand trial whenever

the prosecutor does not choose to undertake an immediate trial.

American Bar Association, Standards for Criminal Justice, Standard 12-3.1,

Commentary at 12.37.

Moreover, the commentary to ABA standard 12-2.2(a) states that

[t]he prisoner should have the option (1) of demanding trial in

order to overcome whatever disadvantages flow from the fact a

detainer has been lodged against him, or (2) of not making the

demand in the hope that the charges will be dropped before or

at the time he completes his sentence [in the foreign

jurisdiction].

American Bar Association, Standards for Criminal Justice, Standard 12-2.2,

Commentary at 17-18.

Several courts have implemented the above-mentioned American Bar

Association standards in determining due diligence requirements under state

speedy trial right rules. See State v. Anderson, 828 P.2d 1161, 1165

(Wash. App. 1992) (“While requiring prosecutors to lodge detainers against

defendants and promptly secure their presence for trial may result in

additional expense or give rise to some of the problems associated with

detainers, these considerations do not outweigh the fundamental concerns

underlying a defendant's right to a speedy trial.”); Conway v. State, 707

P.2d 930, 936 (Alaska App. 1985) (“The prosecutor must either undertake

to obtain the presence of the prisoner for trial by, for example, instituting

extradition proceedings or filing a habeas corpus petition with the court in

the jurisdiction in which the prisoner is incarcerated, seeking the defendant

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for purposes of trial, or the prosecutor must file a detainer with the

appropriate officials and request that the defendant be made aware of the

detainer.”).

Moreover, several other jurisdictions have examined their speedy trial

rules, in conjunction with federal and state constitutional principles, and

determined that lodging detainers constitutes due diligence. See State v.

Grant, 738 P.2d 106, 109 (Montana 1987) (“The time chargeable to

defendant began on January 22, 1985, when the State of Montana issued

the first detainer to defendant and the State of Idaho notifying them of

charges pending against defendant in Montana. That time, as chargeable to

defendant, ceased to run on June 19, 1985[,] when defendant asserted his

right to a speedy trial by requesting final disposition of the charges against

him in Montana.... Knowing that charges were pending against him in

Montana, it was up to defendant to request speedy and final disposition of

the charges against him.”); see also O'Bryan v. State, 326 So.2d 83, 87

(Fla. App. 1976) (“The period for speedy trial is made to commence on the

concurrence of the foreign prisoner's demand for trial and the State's filing

of a detainer[.]”); see also Eaddy v. State, 352 So.2d 98 (Fla. App. 1977)

(Filing of a detainer against an accused who is in prison

outside jurisdiction of authority which filed detainer does not activate

180-day period within which accused must be tried under speedy trial rule;

rather, speedy trial time begins to run when authority which

filed detainer obtains custody of accused); see also State v. Wood, 924

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S.W.2d 342, 348 (Tenn. 1996) (“Wood deliberately chose to forgo

a speedy trial request, hoping instead that the Tennessee charges would die

of neglect. He acquiesced in the delay from the time he learned of

the detainer in 1984 until 1990, after Alabama had offered conditional

parole.”); see also State v. Dolack, 533 P.2d 1282, 1292 (Kan. 1975) (To

obtain a speedy trial guaranteed by state Bill of Rights, as legislatively

defined, it is incumbent upon an accused incarcerated in a penal institution

to comply with all provisions of legislation applicable to his incarceration,

including the preparation of his written request for disposition of detainer to

be addressed to court in which the indictment, information or complaint is

then pending against him and to the county attorney charged with the duty

of prosecuting it.).

In this matter, the PCRA court ultimately determined there was no

violation of Rule 600, offering the following calculations:

The criminal complaint was filed against [Appellant] on June 17,

2012. Therefore, the mechanical run-date of 365 days

thereafter require[d] the Commonwealth to have brought

[Appellant] to trial under Rule 600 on or before June 17, 2013.

[Appellant] was arrested in Maryland in September 19, 2012 and

returned to this jurisdiction under the IAD on [June 6, 2013].[7]

This time is clearly excludable[]. Removal of this [260-day] time

period from the mechanical calculation results in an adjusted

____________________________________________

7 The PCRA court incorrectly noted the date of Appellant’s return to Adams

County, Pennsylvania as April 12, 2013. That date is the date on which

Appellant’s request for disposition of the Pennsylvania charges was received

by the Adams County District Attorney’s office. Appellant was not returned

to Pennsylvania until June 6, 2013.

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trial date of approximately [March 4, 2014]. After [Appellant]

was returned to this jurisdiction, through counsel, his

preliminary hearing date was continued [twice from June 12,

2013] until July 31, 2013. As this [49-day time period] is also

excludable, [Appellant’s] adjusted Rule 600 run-date extends [to

late April 2014]. […T]he charges against [Appellant] were

resolved in January 14, 2014. […] Accordingly, [Appellant] is not

entitled to relief on his [Rule 600] claim as counsel cannot be

held ineffective for failing to pursue a meritless position.

Trial Court Opinion, 3/27/2017, at 8-9 (footnote omitted).

Upon review, we discern no abuse of discretion or error of law in

finding no merit to Appellant’s Rule 600 claim. Initially we note that

Appellant’s argument centers primarily on the actions he believes the

Commonwealth should have taken; however, we must review only the

actions actually taken by the Commonwealth. See Selenski, 919 A.2d at

232. The ABA Standards suggest, and courts in Washington and Alaska

agree, that in order to comply with speedy trial rights regarding a defendant

incarcerated in a foreign jurisdiction, a state must initiate procedures to

obtain their presence for trial. Without actually deciding the issue, we

suggested as much in Booze and are guided by that decision. In further

examining the initiation of transfer procedures, we recognize there are two

mechanisms available to the Commonwealth to procure a defendant’s return

to Pennsylvania: (1) by formal extradition or, (2) by lodging a detainer with

the foreign jurisdiction so that the defendant can then demand trial. Jones,

886 A.2d 689, 695. Thus, we summarily reject Appellant’s suggestion that

the Commonwealth was required to initiate extradition proceedings. Here,

there is no dispute that the Commonwealth, in fact, promptly filed a detainer

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against Appellant with Maryland authorities. Other jurisdictions, as well as

the ABA, have determined that lodging a detainer qualifies as due diligence

for speedy trial purposes. Taken together, the record supports the PCRA

court’s findings that the Commonwealth took diligent steps to secure

Appellant’s presence for trial in Pennsylvania, by lodging a detainer with

Maryland authorities and informing him that there were outstanding charges

against him in Pennsylvania. Appellant then started the extradition process.

Accordingly, the time between the Commonwealth’s filing of the detainer

and Appellant’s return to Adams County is excluded from the speedy trial

calculation and the PCRA court properly determined that Appellant’s time

spent in custody in Maryland was excludable under Rule 600. Moreover,

since there is no dispute that extensions requested by defense counsel were

excludable, it is clear, as the PCRA court found, that the disposition of

Appellant’s criminal complaint was reached within 365 days after the filing of

the criminal complaint when the original mechanical run date is adjusted by

the delays attributable to Appellant. Accordingly, we need not review the

time period between the filing of the complaint and Appellant’s subsequent

arrest in Maryland. As such, trial counsel was not ineffective for failing to

raise a Rule 600 claim. Hence, Appellant’s first issue fails.

In his fourth issue presented, Appellant claims that trial counsel was

ineffective for failing to advise Appellant of his right to a jury trial pursuant

to Pa.R.Crim.P. 620. Appellant’s Brief at 38. Appellant claims that the trial

court did not orally colloquy him regarding waiver of his right to a jury trial,

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and he did not sign a written colloquy. Id. at 39. Appellant claims that the

trial court erred by determining that he was a savvy criminal defendant who

was familiar with the criminal justice system and jury trial waivers when he

proceeded to a stipulated bench trial. Id. at 40-42. In sum, Appellant

claims that “the [trial c]ourt, the Commonwealth, and trial counsel

presumed that Appellant knew [his] rights or did not care to confirm said

presumption, or just flatly forgot Appellant’s constitutional rights and their

respective obligations.” Id. at 43.

Our Supreme Court has stated:

Of course, lawyers have an obligation to counsel their clients in

conjunction with the waiver of basic rights, including the waiver

of a jury; but the mere absence of [an on-the-record] oral

waiver colloquy does not automatically prove that a right was

relinquished unknowingly or involuntarily and that the trial

lawyer was ineffective for causing the waiver. When a

presumptively-valid waiver is collaterally attacked under the

guise of ineffectiveness of counsel, it must be analyzed like any

other ineffectiveness claim. Such an inquiry is not resolved by

the mere absence of an oral waiver colloquy; instead, the

analysis must focus on the totality of relevant circumstances.

Those circumstances include the defendant's knowledge of and

experience with jury trials, his explicit written waiver (if any),

and the content of relevant off-the-record discussions counsel

had with his client.

* * *

Absence of an oral colloquy alone does not prove that

a jury waiver was in fact unknowing or involuntary; rather, the

PCRA court must look to the totality of the circumstances

including the discussions between the lawyers and their clients

regarding the jury waiver. The analysis regarding the underlying

merits of appellants' ineffectiveness challenge must be more

precise and must account for all relevant circumstances

surrounding the waiver.

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Commonwealth v. Birdsong, 24 A.3d 319, 339 (Pa. 2011) (internal

citations, quotations, and ellipses omitted).

Furthermore, we have previously determined:

For a waiver to be knowing, the defendant must be made aware

of the “essential ingredients” of the right he or she is waiving to

ensure there is an understanding of the significance of what he

or she is giving up.

For example, for a defendant to knowingly and

intelligently waive his right to a jury trial, the defendant must

know the essential ingredients, basic to the concept of

a jury trial, including the requirements that the jury be chosen

from members of the community (a jury of one's peers), that the

verdict be unanimous, and that the accused be allowed to

participate in the selection of the jury panel.

Commonwealth v. Baker, 72 A.3d 652, 667 (Pa. Super. 2013) (internal

citations and most quotations omitted).

On this issue, the trial court determined:

Although instantly an oral colloquy was not conducted with

[Appellant], he undoubtedly understood his rights at the time of

waiver. [Appellant] did not present before the [c]ourt as a first

[time] offender[,] but rather had previously been convicted of

two felony drug offenses. Trial counsel’s hearing testimony as to

[Appellant’s] sophistication and knowledge of criminal law is

corroborated by his numerous pro se pleadings in this matter as

well as his discussions with the [c]ourt during various

proceedings. This fundamental knowledge of his rights was

supplemented at the time of his arraignment when he waived

formal arraignment and acknowledged in writing that he

received and understood his rights including the right to a jury

trial. Additionally, trial counsel testified that on at least two

occasions following arraignment, he discussed with [Appellant]

his right to a jury trial. On one of those occasions, [Appellant]

initialed and signed a plea colloquy.

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PCRA Court Opinion, 3/27/2017, at 10-11 (footnotes omitted). The PCRA

court found trial counsel’s testimony credible and concluded that Appellant

understood his right to a jury trial prior to entering his plea. Id. at 11-12.

Upon review, we agree that although the trial court did not formally

advise Appellant of his right to a trial by jury, based upon the totality of the

circumstances, Appellant was aware of such right before opting to proceed

with a stipulated bench trial. Here, the trial court credited trial counsel’s

testimony that he discussed the essential elements of the right to a jury trial

with Appellant. We will not usurp that determination on the record before

us. Moreover, while not admitted into evidence at the stipulated bench trial,

Appellant had signed and initialed a written guilty plea colloquy earlier. That

written colloquy addressed all of the questions that the trial court should

have covered in an oral jury waiver colloquy, including the requirements that

the jury be chosen from members of the community, that the verdict be

unanimous, and that the accused be allowed to participate in the selection of

the jury panel. Moreover, while this written colloquy was not entered into

the record at the time of the stipulated bench trial, Appellant does not

contest that he signed it or claim that trial counsel did not discuss it with

him prior to the stipulated trial. Finally, the PCRA court properly considered

the fact that Appellant is a savvy defendant, having been twice convicted of

drug-related felonies and filing numerous legally supported pro se

documents in this matter. Thus, we agree with the trial court that Appellant

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was properly informed of his right to a jury trial and there is no merit to

Appellant’s claim that counsel was ineffective in this regard.

Appellant’s second and third claims involve somewhat related

sentencing issues, so we will examine them together. In his second issue,

Appellant avers that the trial court abused its discretion or erred as a matter

of law in imposing a sentence outside of the sentencing guidelines without

stating the reason for the deviation on the record. Appellant’s Brief at 24-

25. More specifically, Appellant collectively challenges his three concurrent

sentences for PWID, five to ten years of imprisonment each, contending that

“[w]ith a prior record score of [four] (and an offense gravity score of [seven]

or [eight] depending on the weight of the drug) the [s]tandard [g]uideline

range for PWID is 21 to 27 months.” Id. at 26. Appellant claims that the

sentencing guidelines were inaccurately calculated and ignored, and that the

trial court never explained the reasons for deviating from them. Id. at 28.

Instead, Appellant suggests that the trial court “only colloquied Appellant on

the maximum penalties he could face for each charge [and d]efense counsel

never objected to this error[.]” Id. at 29.

In his third issue presented, Appellant “believes he was sentenced to

mandatory minimum sentences” on each count of PWID and “relies on the

sentencing guideline forms filled out after sentencing to support his claim.”

Id. Appellant posits that “[i]f the [trial c]ourt sentenced Appellant to a

mandatory minimum sentence, then Appellant believes said sentences are

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illegal in consideration of Alleyne v. U.S., 133 S.Ct. 2151 (2013)[.]” Id. at

31.

Initially, we note that Appellant commingles two legally distinct

sentencing issues, the discretionary aspects of sentencing and the illegality

of his sentence.8 We have previously determined:

the term “illegal sentence” refer[s] to a class of cases that

includes: (1) claims that the sentence fell outside of the legal

parameters prescribed by the applicable statute; (2) claims

involving merger/double jeopardy; and (3) claims implicating the

rule in Apprendi v. New Jersey, 530 U.S. 466 (2000).

[…I]llegal sentencing claims challenge the fundamental legal

authority of the court to impose the sentence that it did.

Commonwealth v. Farrow, 168 A.3d 207, 212 (Pa. Super. 2017) (some

quotations and citations omitted).

“A challenge to the legality of a particular sentence may be reviewed

by any court on direct appeal; it need not be preserved in the lower courts

to be reviewable and may even be raised by an appellate court sua sponte.”

Batts, 163 A.3d at 434. We review the legality of a sentence de novo and

our scope of review is plenary. Farrow, 168 A.3d at 212 (internal citation,

____________________________________________

8 “For appellate review purposes, challenges to a criminal sentence typically

fall into one of two categories, implicating either the legality of

the sentence or the discretionary aspects of the sentence.” Commonwealth

v. Batts, 163 A.3d 410, 434 (Pa. 2017). “[A] claim challenging a sentencing

court's legal authority to impose a particular sentence presents a question of

sentencing legality.” Id. “This distinction is critical, as the determination

also encompasses matters of issue preservation, [an appellate court’s]

jurisdiction to decide the question presented, and the level of deference the

reviewing court must give to the decision of the sentencing court.” Id.

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quotation, and brackets omitted). Our Supreme Court has instructed that

we must presume that statutes are constitutional and in order to declare a

statute unconstitutional it must clearly, plainly, and palpably violate the

constitution. Id.

Here, Appellant was sentenced concurrently to five to ten years of

imprisonment for each of three counts of PWID cocaine and for one count of

conspiracy. The statutory maximum sentence for PWID cocaine is fifteen

years of incarceration. See 35 P.S. § 780-113(f). Moreover, as a repeat

felony offender,9 Appellant was exposed to twice that prison time on each

PWID offense. See N.T., 1/14/2014, at 935; see also Trial Court Opinion,

3/27/2017, at 10 (Appellant “had previously been convicted of two felony

drug offenses.”); see also 35 P.S. § 780-115(a) (“Any person convicted of a

second or subsequent offense [of PWID] or of a similar offense under any

statute of the United States or of any state may be imprisoned for a term up

to twice the term otherwise authorized, fined an amount up to twice that

otherwise authorized, or both.”) Inchoate crimes, like conspiracy, have the

same maximum sentences as the underlying crimes to which they relate, but

are not subject to sentencing enhancements. See Commonwealth v.

Hoke, 962 A.2d 664, 668, 599 Pa. 587, 593 (Pa. 2009). Thus, Appellant’s

statutory maximum penalty for conspiracy was also fifteen years of

____________________________________________

9 Appellant does not challenge his prior felony convictions or contend his

prior criminal record was inaccurately reflected before entering his plea.

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imprisonment, but not subject to doubling under the repeat offender

enhancement.

Despite Appellant’s attempt to characterize all mandatory minimum

sentences as illegal following Alleyne/Apprendi, our Supreme Court has

determined Section 780-115 is constitutional. See Commonwealth v.

Aponte, 855 A.2d 800, 809 (Pa. 2004) (statute doubling statutory

maximum penalty for PWID upon proof of a prior conviction without

requiring proof beyond a reasonable doubt before a jury did not violate

defendant’s due process rights where prior drug convictions were capable of

objective proof). Here, each of Appellant’s five to ten year sentences fell

within constitutional, statutory maximums for the various crimes and, as

such, Appellant did not receive illegal sentences.

Appellant’s related claim that the trial court failed to state its reasons

for deviating from the sentencing guidelines is a discretionary aspect of

sentencing claim, rather than a challenge to the illegality of sentence.

See Commonwealth v. McLaine, 150 A.3d 70, 76 (Pa. Super. 2016).

Unlike legality of sentence claims, which can be raised for the first time on

appeal as long as the reviewing court has jurisdiction, discretionary aspects

of sentencing claims must be properly raised below, even those couched in

ineffective assistance of counsel under the PCRA. See Commonwealth v.

Taylor, 65 A.3d 462, 465 (Pa. Super. 2013). Appellant did not raise his

claim that the trial court failed to state its reasons for deviating from the

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sentencing guidelines in his PCRA petition or his amended PCRA petition.

Thus, Appellant waived this aspect of his sentencing claim.

Regardless, the issue is otherwise without merit. “Assuming

[a] plea agreement is legally possible to fulfill, when the parties enter

the plea agreement on the record, and the court accepts and approves

the plea, then the parties and the court must abide by the terms of

the agreement.” Commonwealth v. Parsons, 969 A.2d 1259, 1268 (Pa.

Super. 2009). If the sentencing court gives a defendant “a lesser sentence

than called for in the parties' agreement, the court overstep[s] its bounds,

defeat[s] the Commonwealth's rightful expectations, and frustrate[s]

the quid pro quo of the plea bargain.” Id. at 1269–1270. Appellant has not

cited law, and our independent research has not revealed any, that would

suggest that the trial court has to consider the sentencing guidelines prior to

accepting a negotiated plea agreement where the sentences all fall within

the statutory guideline maximums. Here, the parties placed the terms of the

completely negotiated plea agreement on the record and the trial court

properly accepted it and is now bound by it. Moreover, Appellant does not

challenge the plea process or otherwise suggest that his plea was entered

unknowingly, involuntarily, or unintelligently. Accordingly, there is no merit

to Appellant’s sentencing claims.

Order affirmed.

Judge Strassburger joins the memorandum.

Judge Dubow concurs in result of the memorandum.

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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 06/22/2018

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