136 A.3d 178
Pa. Super. Ct.2016Background
- Ollie Thompson was arrested Dec 2009 for possession with intent to deliver and convicted at jury trial; originally sentenced to a mandatory 5–10 year term (later reduced for RRRI eligibility).
- Thompson moved to dismiss under Pa.R.Crim.P. 600 (speedy trial); the trial court denied the motion and he appealed.
- This Court, in a prior panel decision, found two significant periods when Thompson was not transported from state custody (Dec 20, 2010–May 9, 2011 and May 9, 2011–Oct 25, 2011), remanded for further factfinding on whether the Commonwealth sought writs to secure his presence, and also vacated the sentence as illegal.
- On remand the Commonwealth presented clerk docket entries and testimony from A.D.A. Alisa Shver that requesting writs was routine but produced no documentary evidence that a writ was sought for May 9, 2011.
- The trial court credited Shver’s testimony and denied the Rule 600 dismissal; Thompson appealed again.
- The Superior Court held the Commonwealth failed to prove by a preponderance that it acted with due diligence to secure Thompson’s presence for the May 9, 2011 date and dismissed the charges with prejudice.
Issues
| Issue | Plaintiff's Argument (Commonwealth) | Defendant's Argument (Thompson) | Held |
|---|---|---|---|
| Whether delay from May 9, 2011 to Oct 25, 2011 is excusable under Rule 600 | Routine practice of requesting writs (testimony) shows due diligence; delays caused by prison noncompliance are not chargeable to Commonwealth | Commonwealth failed to document or prove it sought a writ on May 9, so the delay should be charged to the Commonwealth | Delay not excused; Commonwealth failed to prove due diligence; Rule 600 violation found; charges dismissed |
| Whether sentence was excessive / trial court failed to consider mitigating factors | N/A (Commonwealth prevailed below on sentencing) | Argued sentence excessive and trial court failed to consider mitigating factors | Court did not reach this claim (decision disposed on Rule 600 grounds) |
Key Cases Cited
- Commonwealth v. Thompson, 93 A.3d 478 (Pa. Super. 2014) (prior panel decision remanding for Rule 600 factfinding and vacating illegal sentence)
- Commonwealth v. Brock, 61 A.3d 1015 (Pa. 2013) (overview and application of Rule 600 principles)
- Commonwealth v. Selenski, 994 A.2d 1083 (Pa. 2010) (burden on Commonwealth to prove due diligence by a preponderance)
- Commonwealth v. Ramos, 936 A.2d 1097 (Pa. Super. 2007) (standard of review and evidentiary scope for Rule 600 hearings)
- Commonwealth v. Hill, 736 A.2d 578 (Pa. 1999) (Commonwealth must exercise due diligence throughout pendency)
- Commonwealth v. Hawk, 597 A.2d 1141 (Pa. 1991) (affirmative action required by Commonwealth to list for trial)
- Commonwealth v. Mines, 797 A.2d 963 (Pa. Super. 2002) (distinguishable; clerical gaps in records may not always be charged to Commonwealth)
- Commonwealth v. Caden, 487 A.2d 1 (Pa. Super. 1984) (mere assertions of due diligence insufficient)