Case Information
PA Super 139 COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA v.
JOSEPH MICHAEL NOSS,
Appellant No. MDA 2016 Appeal from the Order Entered December 15, 2015 In the Court of Common Pleas of Luzerne County Criminal Division at No(s): CP-40-MD-0001045-2015 BEFORE: LAZARUS, J., STABILE, J., and DUBOW, J. FILED MAY 09, 2017
OPINION BY DUBOW, J.: Appellant, Joseph Michael Noss, appeals from the December 15, 2015 Order, which granted the Commonwealth's Petition for Writ Certiorari vacated Appellant's plea. Upon careful review, we affirm.
On July 2015, Appellant charged with Aggravated Assault, felony, Resisting Arrest, Simple Assault, Harassment' following allegations he engaged violent argument with paramour. Assistant District Attorney ("ADA") Cara Solimine signed the Complaint approving the charges. Police Officer Kara Kroll and Police Officer Joseph Koch signed Complaint co-affiants.
' 18 Pa.C.S. § 2702; 18 Pa.C.S. § 5104; 18 Pa.C.S. § 2701; and 18 Pa.C.S. 2709, respectively.
The Magistrate's Office initially scheduled preliminary hearing on July 22, 2015. On date, Magisterial District Judge ("MDJ") Donald Whittaker continued the hearing until August 25, 2015, at the request of the Nanticoke Police Chief. ADA Solimine was present.
On August 20, 2015, ADA Solimine requested continuance due to a conflict her schedule. MDJ Whittaker granted the continuance and rescheduled the hearing to September 2, 2015, at 2:15 PM.
On September 2015, at approximately 1:40 PM, Assistant Public Defender ("PD") John Donovan informed MDJ Whittaker the parties had an agreement to present to MDJ Whittaker. PD Donovan, Officer Kroll, and Appellant were present. ADA Solimine was present other ADA was present.
PD Donovan informed MDJ Whittaker there agreement to allow Appellant to plead guilty to Disorderly Conduct charge, misdemeanor of the third degree, sentence time -served. MDJ Whittaker asked Officer Kroll if she agreed to the "reduced charge" she responded affirmative. The parties not address whether District Attorney's Office authorized the guilty plea "reduced charge." MDJ Whittaker accepted the agreement. pleaded only to Disorderly Conduct a misdemeanor of the third degree2, and MIDJ Whittaker sentenced Appellant time -served.
At approximately 2:15 PM, the scheduled time for the preliminary hearing, both ADA Solimine and Officer Koch arrived the MDJ's office, where they were informed that the matter was complete.
On September 18, 2015, the Commonwealth filed a Petition for Writ of Certiorari, or in the alternative a Notice Appeal.
On December 2015, after review of the record, hearing, and oral argument, trial court granted the Petition for Writ Certiorari, vacated Appellant's guilty plea, reinstated all charges. timely appealed. Both Appellant trial court complied
with Pa.R.A.P. 1925. raises the following issues on appeal:
1. Whether the trial court erred finding [Appellant] pled to "reduced charge" before the Magisterial District Judge where the designee of the Commonwealth withdrew charges amended the Complaint add charge of Disorderly Conduct, misdemeanor third degree?
2. Whether the erred granting the Commonwealth's Petition for Writ of Certiorari where the Commonwealth's Petition unsupported by magisterial record depended on disputed factual matters, rather than pure questions of law? Whether the abused its by vacating
[Appellant]'s guilty plea and sentence before the Magisterial District Court by reinstating charges withdrawn by 18 Pa.C.S. Commonwealth, in violation of the Double Jeopardy Clauses of Unite[d] States Pennsylvania Constitutions? Whether the abused its in granting Commonwealth's Petition for Writ of Certiorari without finding the Magisterial District Judge abused discretion or lacked jurisdiction?
Appellant's Brief at 3 (reordered for ease of disposition) (some capitalization omitted).
We will not disturb the lower court's issuance of writ of certiorari unless we find abuse discretion. Commonwealth v. Elisco, 666 A.2d 740 (Pa. Super. 1995). We recognize "[c]ertiorari provides a narrow scope of review summary criminal matter allows review solely questions of law." Id. (citations omitted). Since our review is solely the review of questions of law, the standard of review is de novo and our scope of review plenary. Bastian v. Sullivan, A.3d 338, 342- Super. 2015).
Appellant's first issue whether erred finding that pleaded "reduced charge" before the MDJ where a "designee of the Commonwealth[,]" i.e. Officer Kroll, "withdrew charges amended the Complaint add charge of Disorderly Conduct, misdemeanor third degree[.]" Appellant's Brief
Section 1515 the Judicial Code provides MDJs over crimes categorized misdemeanors of the third degree, provided the following criteria met:
(A) The misdemeanor is not the result of a reduced charge. (B) Any personal injury or property damage is less than $500. (C) The defendant pleads guilty.
(D) The defendant is not subject the provisions of Chapter 42 Pa.C.S. § 1515(a)(6)(i)(A)-(D) (emphasis added).
In the instant case, Appellant originally facing charges of Aggravated Assault related charges. Aggravated Assault is graded as either a felony of first or second degree. 18 Pa.C.S. § 2702(b). Appellant pleaded guilty Disorderly Conduct as a misdemeanor third degree, a crime that the Commonwealth not originally charge a crime carries a reduced grading. A plain reading of Section 1515 clearly provides because pleaded a misdemeanor of the third degree, reduced charge, the MIDJ lacked jurisdiction to hear plea. See 42 Pa.C.S. § 1515(a)(6)(i)(A). argues misapplied Section 1515 that
"the most natural, commonsense interpretation of 'reduced charge' is a charge reduced sua sponte by [MIDJ] following preliminary hearing." Appellant's Brief We disagree.
"When the words statute are clear free from all ambiguity, letter of it not to be disregarded under the pretext of pursuing its spirit." Pa.C.S. 1921(b). The language of Section 1515 reads, pertinent part, MDJs shall have over "[o]ffenses under Title (crimes offenses) . . which are classified misdemeanors the third degree, if . (A) The misdemeanor the result of the following criteria met: reduced charge." Pa.C.S. 1515(a)(6)(i)(A) (emphasis added). Contrary to Appellant's argument, the language is not ambiguous. further avers Officer Kroll was a designee of the
Commonwealth, Officer Kroll had the authority to withdraw original felony charge agree to allow to plead a new, lesser charge of Disorderly Conduct as misdemeanor of the third degree. Appellant's Brief
Rule 551 Pennsylvania Rules of Criminal Procedure provides that only "the attorney the Commonwealth, or or her designee," may withdraw charges "[t]he withdrawal shall be writing." Pa.R.Crim.P. Appellant offers rule, regulation, statute, case, or evidence to support the position police officer automatically designee of an attorney for the Commonwealth pursuant to Pa.R.Crim.P. 551.
ADA Solimine signed arrest Complaint, appeared at first preliminary hearing, personally requested one continuance, appeared at rescheduled preliminary hearing at the designated time. ADA Solimine not speak with Officer Kroll prior the hearing. ADA Solimine was clearly the attorney for the Commonwealth on this case, and there no evidence she authorized Officer Kroll to withdraw charges her designee. Thus, Officer Kroll was designee of the Commonwealth pursuant Pa.R.Crim.P. 551.
In second issue on appeal, Appellant claims that trial court abused its when it granted the Commonwealth's Petition for Writ Certiorari. Appellant's Brief at 10. avers that it was improper to grant certiorari where there was record of the proceedings before the MD] and where the Commonwealth's Petition depended on disputed facts. Id. at 10-11.
We reiterate that "[c]ertiorari provides narrow scope of review summary criminal matter allows review solely questions of law." Elisco, supra at (citations omitted). Consequently, "[q]uestions of fact, admissibility, sufficiency or relevancy of evidence questions may not be entertained by the reviewing court on certiorari." Id. at 740-41 (citation omitted). argues because there disputed facts this case, should not have granted certiorari. The trial court acknowledged "[t]here conflicting testimony as to [how] if negotiated plea reached." Trial Court Opinion, filed 7/28/16, at However, the trial
court explained it granted certiorari based on question of jurisdiction: "it clear decision by [this] court [is] based on any disputed facts but rather whether [MDJ] had jurisdiction enter order dismiss charges." Id.
Undoubtedly, issues pertaining are pure questions of law. Commonwealth v. John, 854 A.2d 591,593 Super. 2004). The trial court's grant of certiorari was based on the undisputed fact the MD] accepted plea to a reduced charge. The properly applied this undisputed fact the language Section 1515 and concluded the MD] lacked to accept the plea. See 42 Pa.C.S. 1515(a)(6)(i)(A). This legal conclusion and the disputed facts about the events leading the plea are irrelevant the analysis about jurisdiction. Accordingly, we find abuse of discretion the trial court's grant certiorari.
Appellant next avers the violated the double jeopardy clauses of the United States and Pennsylvania Constitutions when it reinstated charges after MD] accepted the plea and sentenced Appellant. Appellant's Brief 22. We disagree.
It well settled "[t]he double jeopardy protections afforded by United States Pennsylvania Constitutions are coextensive prohibit successive prosecutions multiple punishments for the same offense." Commonwealth v. States, 891 A.2d 737, (Pa. Super. 2005) (citations omitted); see also U.S. Const. amend. V Pa. Const. art. I, § "We employ unitary analysis of the state federal double jeopardy clauses since the protections afforded by each constitution are identical." Commonwealth v. Keenan, 530 A.2d Super. 1987) (citations omitted). "The protections afforded by double jeopardy generally recognized to fall within three categories - (1) protection against second prosecution same offense after acquittal; (2) protection against second prosecution for the same offense after conviction; and (3) protection against multiple punishments the same offense." Id. (citations omitted). in which court lacks subject matter jurisdiction to
In case adjudicate criminal charges, jeopardy attaches there no bar to a second prosecution. Id. 93-94; see United States v. Tateo, U.S. (1964) (the Fifth Amendment does not preclude retrying a defendant whose conviction set aside because of error in proceedings leading conviction); see also Commonwealth v. Oliver, 869 A.2d 1167, 1170 Cmwlth. 2005) (determining proceedings before the MD] were legal nullity because the MD] had lacked jurisdiction, thus, jeopardy never attached).
In the instant case, the MD] lacked accept Appellant's plea, so the plea legal nullity jeopardy did not attach. Accordingly, we find violate the double jeopardy clauses United States Pennsylvania Constitutions.
In his final issue, asserts erred in granting the Commonwealth's Petition for Writ Certiorari without finding MD] abused his or lacked jurisdiction. Appellant's Brief at While raises this issue his Statement Issues section, he fails develop the issue or mention the issue whatsoever Argument
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section. Accordingly, we find this issue be waived.3 See Lackner v. Glosser, 892 A.2d 21, 29-30 Super. 2006) ("arguments which are not appropriately developed waived").
In conclusion, the trial court properly granted the Commonwealth's Writ of Certiorari and determined as matter of law MIDJ lacked jurisdiction accept Appellant's guilty plea because plea the result reduced charge. Therefore, the trial court properly vacated Appellant's guilty plea and sentence reinstated all of the original charges.
Order affirmed.
Judgment Entered.
J seph D. Seletyn,
Prothonotary
Date: 5/9/2017 In the alternative, this issue lacks merit. In its 1925(a) Opinion, the trial
court stated, "[b]y granting the Commonwealth's motion vacating the plea and sentence, the determined matter law [MDJ] did have jurisdiction therefore abused its discretion." Trial Court Opinion, filed 7/28/16, The find MIDJ abused lacked and, thus, this issue lacks merit.
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