Commonwealth v. West

803(2).2 However, Comment, Pa.R.E. See Boykin not raise hearing,

at the PFA theory proffer her support 2/12/04, Thus, N.T., at 16-18.

testimony. argu- preserve not properly

she did 302(a) appeal.

ment for See Pa.R.A.P. be raised that an issue not

(stating. However, appeal). first time on new

Boykin may this issue at the raise have ordered

hearing which we

Opinion. vacated; remanded for case Order hearing in with this

a new accordance

Opinion. Pennsylvania,

COMMONWEALTH

Appellee, WEST, Appellant. L.

Sheldon

Superior Pennsylvania. Court of Nov.

Submitted

Filed Feb. that, action with Gore, course of (holding cussed the advisable 2. Cf. friend, attorney persons, including an de- elapsed after the several three where hours police officers were statements to rape vic- the victim’s parture of the defendant from utterances”). admissible "excited rape victim had dis- apartment, and the tim’s BENDER,

OPINION BY J.: ¶ 1 (Appellant) Sheldon L. appeals West 12, from January 2004 order denying relief under habeas petition. The presented issue is whether Appellant’s rights substantive process due were violat- ed when the trial court Ap- recommitted pellant to prison in 2002 following 9-year delay in which Appellant remained mistak- enly at appeal bond stem- ming from a 1990 conviction. Under the circumstances presented which the courts had on several occasions during 9-year interval recognized the mistake, yet repeatedly failed to act times, recommitting Appellant at those conclude that Appellant’s rights were when he finally violated Therefore, recommitted. we reverse the denying order relief and order discharged from the sentence imposed his 1990 convic- tion.

¶ 2 history The unusual of this case fol- 1989, May 10, lows. police On arrested selling May for cocaine. On 1990, Appellant appeared the trial court before the Loren L. Honorable Lewis. On date, Judge the same Lewis both denied Appellant’s suppress motion physical ev- idence and Appellant' tried without a jury, finding him guilty possession aof con- possession trolled substance and of a con- trolled intent substance with to deliver. This is what we refer herein as the 1990 conviction. July 3 On the trial court

sentenced to 27 to 54 months’ imprisonment. court later Ap- denied Terrell, Pittsburgh, Herbert A. for ap- pellant’s motion for modification of his sen- pellant. tence. Appellant’s mother hired David Streily, Michael Deputy Atty., W. Dist. DeFazio, Esq., file a direct Robert A. Asst. Willig, Atty., Dist. Pitts- Court on behalf. In addi- Com., burgh, for appellee. tion filing appeal, Attorney DeFazio MELVIN, application filed an BEFORE: release on ORIE BENDER bail POPOVICH, and, pending appeal JJ. on September guidance lack re- because granted Appellant trial court $20,000 Ap- subject, the Blair court called pending appeal. bail lease on Pennsylvania Supreme posted from the pellant’s mother her residence directive clarify Subsequently, period “in surety on the bond. order 30, 1991, September Appellant on or about a defendant’s incarcer- in which sentenced commence, including, pending appeal. was on bail released ation term should taking ap- the ramifications of perhaps, ¶ 1992, 10, af- June this Court On being free on bond.” peal and of Appellant’s judgment firmed at 743. Attorney petition a for allow- DeFazio filed ¶ event, any that apparent 6 In it is Supreme with the ance of by was Rule 1763 Pennsylvania, procedure denied on Márch circumscribed which was 24,1998. 7,1993, evi- Thereafter, in this No record April on not followed case. bail Appellant certified record to the or his Court remanded the dence exists County Allegheny surety Appellant’s Clerk Courts. were notified was affirmed should conviction ¶ history in the point 5 It is at his appear serving in to commence court procedural this case that a flaw occurred 11/4/02, at Hearing, N.T. sentence. See trial whereby properly court failed Appellant remained Consequently, Appellant summon for service his appeal bond mistakenly on his necessary procedure, sentence. The usual i.e., 24, 2002, until, April approximately on upon of his to commit a defendant remand years after the record we remanded following affirmance of his case record court, recog- oversight was the trial sentence, is in found Pa. judgment of by the Honorable upon nized and acted RAP. 1763: an arrest Bigley1 Gerard M. who issued Supersedeas Rule 1763. Vacation of Appellant’s Appellant. warrant See on Affirmance Conviction Finally, Appel- police at 5. arrested brief pursuant otherwise ordered Unless and, 24, 2002, was April lant chapter, upon the remand committed to serve any judg- in matter which the record 1990 conviction. affirmed a defen- ment sentence was 21, 2002, Ap- ap- pending dant who has 7 On October been released committal prison pursuant peal pellant’s shall in the lower court at appear counsel, may present there such time as defendant be Rule a called, Terrell, by Esq., shall committed A. filed be Herbert G. complied until the has The Honorable Kevin corpus petition. court defendant sentence, part evidentiary hearings original with the held Sasinoski performed 4, 2002, thereof which had not and on Janu- been matter on November pursuant at the time defendant was released filed ary opinion 2003. In his pending appeal. 1925(a), filed on June to Pa.R.A.P. on the Blair 2004, Judge relied Sasinoski Pa.R.A.P. 1763. As noted Common- Thereaf- Appellant relief. denying case in (Pa.Su- 738, 740 wealth v. ter, pa- August be- per.1997), a case we discuss detail brief, and, pres- according roled low, time frame in “specifies Rule 1763 no brief parole. Appellant’s remains on ently upon receipt the trial which Nevertheless, proceed- at 7. record, call a defendant to must remanded appeal wherein he instant ing with the his sentence.” appear begin by away this time. Judge passed had Lewis challenges legality offense, of his committal on the writ habeas corpus shall not the 1990 sentence.2 remedy if available post-conviction hearing proceedings au- above, indicated As find law.”); thorized Commonwealth merit in the first issue Appellant raises in Reese, 1260 (Pa.Super.2001) this appeal i.e., that the in his com — (“The writ of habeas is an extraor- mittal on the 1990 sentence violated his dinary remedy that is available after other rights.3 However, substantive remedies have been exhausted or are inef- before proceed we can with our analysis, fectual or nonexistent. The writ will not we must determine whether the Ap issue remedy if another exists and is avail- pellant sought in his is suited for able. The writ not a is substitute for habeas corpus or whether a remedy exists (citations review”) omitted). appellate under the Post Conviction Relief Act ¶ (PCRA), 9 The trial recognizing that §§ 42 the Pa.C.S. 9541-46. This may PCRA applicable, Appel- threshold is allowed inquiry necessary because if lant to Appellant’s corpus petition amend his habeas claims to could have been seek brought PCRA, alternate under under the then PCRA. habeas corpus Now on appeal, relief would be the Commonwealth unavailable contin- because argue ues to remedy “PCRA petition subsumes of habe falls corpus respect as under to and that may, remedies offered PCRA there- fore, under the Appellant’s petition PCRA[.]” Commonwealth v. Pe conclude that is terkin, 547, 638, 554 Pa. 722 untimely A.2d 640 and dismiss that basis. See 42 (1998). 6503(b) 42 § See § also Pa.C.S. (providing Pa.C.S. 9545 for mandatory (“Where a person by is restrained requirements virtue of timeliness of a peti- PCRA tion).4 sentence after conviction for a criminal We now types examine both 2.The suggest trend in the case law suggested seems to bright-line rule that habeas cor- person that a actually pus need not be persons incarcerat- relief was not available to See, qualify ed requirement parole. e.g., for that he or Commonwealth ex rel. Wood 191, 286, she custody eligible Maroney, Pa.Super. be in as v. so to be 207 for 215 A.2d (1965) corpus (affirming habeas 287 dismissing relief. order Commonwealth v. habeas Hess, 580, corpus petition petitioner 414 pa- Pa. where 1046-47 was on (1980), custody); role Supreme our rather than in state's stated that ''[t]he Common- Burke, Spader wealth ex Pa.Super. restraints rel. on an accused bound over for court (1952) (same). 90 A.2d and released on bail are satisfy sufficient to custody requirement corpus a habeas petition.” See also argues procedural Commonwealth ex rel. also Isaac, Paulinski v. 483 Pa. rights 397 A.2d gov- were violated (1979) committal, (stating corpus delayed applies that habeas ernment's that counsel only failing custody, where is in was ineffective relator but for to inform relator him of the appeal, need not be outcome of his incarcerated meet such direct and that thresh- requirement). underlying Similarly, old search and parolee where a seizure 1990 con- brought illegal. viction petition Because we find corpus against for habeas merit in relating members, the first issue prison parole pro- warden substantive due board cess, we petition corpus reverse the denial of habeas as to warden was moot be- relief on parolee that basis and need not longer cause the was no address these in his custo- however, dy; other issues. petition was not moot with regard parole they board members because responsible imposition were for restrictions If we were to conclude that the PCRA was parolee’s parole. proper freedoms while on procedural Com- employ mechanism to case, then, Cummings, monwealth ex rel. Ensor v. application any 420 Pa. in this absent (1966). exceptions These cases call one-year filing to the PCRA’s question requirement, into some older cases that untimely would be Pe case.” applied [Appellant’s] itself relief. terkin, 722 A.2d at 640. governing The habeas statute provides: 12 The PCRA at 42

corpus continues to exist Pa.C.S. persons which convict- an action [flor apply §§ right 6501—6505. The they commit and ed of did not crimes “any corpus relief reserved habeas serving illegal persons sentences person of his within this restrained The action es- collateral relief. obtain 6503(a). § Id. at The Commonwealth[.]” subchapter shall be tablished power has the to “issue the writ of obtaining collateral relief sole means into corpus inquire habeas the cause encompasses all other common any person or for other detention statutory remedies for the same 6502(a). § purpose.” lawful Id. at purpose subchapter that exist when this “writ of habeas is used to deter effect, including takes a petitioner mine whether is entitled to an and coram nobis. immediate release from an unlawful con § for relief eligible Pa.C.S. 9542. To finement.” Commonwealth ex rel. Powell PCRA, must es- petitioner under the the 337, 645 A.2d Rosenberry, Pa.Super. v. 435 tablish, alia, inter that: (1994). 1328, 1330 See also Chadwick v. (Pa.Su

Caulfield, 834 566 resulted from the conviction or sentence ex rel. per.2003) (quoting Commonwealth the following: one or more of Rundle, Butler 407 Pa. 180 A.2d (i) of A violation of the Constitution (1962) (citation (indicat omitted)) 923, 924 or this Commonwealth the Constitution for writ ing of habeas which, in of United States or laws the or illegal “lies correct void sentences or case, particular the of the circumstances detention, illegal or where the record truth-determining so undermined the plea shows a trial or so funda adjudication of process that no rehable mentally unfair toas amount to a denial of taken guilt or innocence could have process rights, due or other constitutional place. or where for the other reasons interests (ii) Ineffective assistance of counsel it”). justice imperatively required “The which, par- the circumstances writ, issued, if restraining directs the au case, the truth- ticular so undermined thority person the produce and state the determining that no ad- process rehable ” Chadwick, ‘true cause the detention.’ could judication guilt or innocence (quoting 834 A.2d at 42 566 Pa.C.S.A. have place. taken 6504). § (iv) by gov- The improper obstruction ¶ 11 To determine whether the re right petitioner’s officials of the ernment governed by lief seeks the appeal- a meritorious where it is sub pre- properly able existed and was issue PCRA, must sumed the “test wheth in the trial court. served remedy [Appellant] er under the PCRA,” must the and “we consider PCRA (i.e., the judgment ments of sentence became final before on its face of sen- amendment to years date of became final before he filed effective

tence mandatory grace timeli- peri- PCRA that instituted petition and missed the instant 641). Peterkin, provisions, 722 A.2d at petitioners judg- see whose ness od afforded PCRA (vi) unavailability The at the time of Appellant argues trial of return exculpatory prison subsequent placement evidence has parolee as a after years of inaction subsequently become available conviction, bond from the 1990 changed would have outcome “shocks thereby the conscience” violating if trial it had been introduced. his substantive process rights, due espe (vii) imposition of a sentence because, claims, cially as Appellant he was greater than the lawful maximum. I, not at delay. fault “Article (viii) A proceeding in a with- tribunal Pennsylvania Section of Constitution jurisdiction. out and the Fourteenth Amendment of the 9643(2)©, (ii), (iv), (vi)-(viii). § 42 Pa.C.S. guarantee United States Constitution a de In the alleg- instant is not right fendant to due ing the truth-determining process law.... process provision [T]he underlying convictions was un- Pennsylvania Constitution not pro does dermined constitutional violations or greater protections vide than its federal ineffective assistance of counsel. He does Louden, counterpart.” Commonwealth v. challenge an interference with his (2002). 569 Pa. 803 A.2d right appeal, the imposition of a sen- “So-called process pre substantive due greater maximum, than tence the lawful government vents the from engaging jurisdiction or the of a tribunal. He does conscience, conduct that shocks the or in discovery not assert later exculpa- rights implicit terferes with in the concept tory evidence. none of the bases Karivalis, liberty.” of ordered Porter v. under PCRA address (Pa.Super.1998) (quoting unique presented situation in this case. Salerno, United States v. 481 U.S. ¶ Accordingly, our of examination the (1987)). S.Ct. 95 L.Ed.2d 697 of purpose the PCRA and the bases for Blair, 15 In upon the case which the provided under the PCRA lead us to trial court relied in denying Appellant re- the conclusion that Appellant’s claim that lief, (Blair) the defendant was convicted of process rights his substantive due were aggravated and simple assault. Id. at 738. lengthy delay violated the in the execu- 24, 1993, February On the trial court sen- tion his a sentence is not claim that is imprison- tenced Blair to to 60 months’ cognizable but, rather, under the PCRA ment and Blair permitted post to bond in corpus. Appellant sounds habeas is not pending appeal judgment his from his or challenging legality discretionary the bond, at Id. 739. While free aspects of the actual imposed, sentence Blair appeal, filed his notice and our claiming and he is not the innocence of judgment Court affirmed his of sentence. Rather, challenging 1990 crimes. he is the 31, 1994, May Id. On this Court remand- legality of or his detention committal to the ed record the trial and the prison subsequent following parole the record was received the trial court on 9-year period mistakenly in which was he However, June 1994. Id. because the liberty appeal at bond. The PCRA his record, papers missing bond were from the provide type does not relief for the court impres- was under the mistaken Rather, Appellant’s plea claim. for relief already serving sion Blair was and, therefore, in sounds prison actually sentence when remained proceed now the merits of Appellant’s free bond. Id. two Over process argument later, years September substantive due within in the De- partment inquired the habeas framework. of Corrections into the the to- cases examine The trial that “more current appeal. of Blair’s Id. status surrounding investigated matter and deter- tality court of the circumstances Blair, had not been incarcerat- mined that Blair of sentence.” delay execution Following hearing, ed. a court Id. deal- cases “Specifically, A.2d at 741.5 begin serving Blair his sentence ordered sentencing, delay execution ing sought 1763. Blair pursuant Pa.R.A.P. alleged due have examined federal courts judgment to dismiss or sen- vacate under the theories of process violations and, this mo- tence the denial of or Id. We described estoppel.” waiver motion to tion and the denial of Blair’s as follows: these theories reconsider, appealed Blair to our Court. theory, Addressing waiver argued that he was entitled to He gov Martinez court declared erroneously liberty credit for time at to incarcerate right waives the ernment with Pa. comply to the court’s failure to actions are so only agents’ its “when 1763. Id. Our overall task was to R.A.P. negli affirmatively grossly improper failing if oversight determine the court’s in unequivocally it gent that would Blair prison required to summon Blair principles ‘fundamental consistent with spent at to be credited with the legal require a liberty justice’ at 740. on his bond. to be in its aftermath.” served Although we concluded he was not Martinez, .... Under 837 F.2d credit, analysis entitled to such our includ- theory, the Martinez estoppel such as ed considerations of due requiring four-part test identified those raised in the instant case. estopped following: party to be thorough 16 In we conducted a facts; he must intend must know the early examination from various cases upon conduct shall be acted jurisdictions, general applied which party asserting must act so that final common law rule that “where a sen- it is right has a so estoppel believe rendered, imprisonment tence of had been intended; asserting estop- party executing such a sentence did facts; of the pel ignorant must subsequent preclude enforcement party rely on the former’s must that, at noted sentence.” Id. 741. We Martinez, injury. 837 conduct to his Martinez, United 837 F.2d 861 States F.2d at 865.... (9th Cir.1988), of the United States Court Blair, 741. “In A.2d at addition 699 Appeals recognized for the Ninth Circuit exceptions noting estoppel the waiver and per- that “under common law a convicted ... rule ... Martinez to the common law must, erroneously liberty at when the son exception/trend, recognized an additional discovered, the error is serve full sentence of ‘credit for time doctrine specifically, Blair, at imposed.” (quoting 699 A.2d 741 ” Un- 864). liberty.’ at Martinez, Nevertheless, erroneously spent F.2d at 837 doctrine, person “a convicted is this recognized, we as did the Martinez der decades, recog- most courts In have characterizes com- recent One commentator words, his to alleviate the draconian mon law rule draconian. two doctrines nized many Chin, applied by rule courts "[t]he traditional approach.” Gabriel J. effect of this long a defendant was no matter how harsh: Getting Credit Jail Free: Sentence Out for of negligent spent liberty, no how at matter Liberty, 45 U.L. Rev. Periods Mistaken Cath. of been, regardless government and of (footnotes omitted) (referring to doctrines brought the issue the defendant whether waiver/estoppel of credit and the doctrine authorities, the defendant the attention of the liberty). erroneously at for time required to serve his full would against entitled to credit In applying analysis,- we Barker erroneously -liberty was at delay must first determine provided showing simple there ais itself is sufficient to in- trigger further mere negligence govern- does, on behalf of the quiry; delay if it the reason provided ment delay examined, execution is defendant’s assertion through no sentence was fault of-his examined, and, his or her rights is final- Martinez, own.” at 742 (quoting ly, any resulting prejudice to the defen- 865). F.2d at dant is considered.

¶ Despite recognizing existence Blair, 699 at 745. also A.2d See Common- exceptions rule, these to the common (Pa.Su- Still, wealth v. 783 A.2d opted, we under the circumstances in per.2001) (indicating process that due anal- Blair, not to “an apply exception to the ysis requires length considerations person common law rule that erroneous- delay, delay, reason for the “the defen- ly at must serve the full sentence timely untimely dant’s assertion of imposed after the error is discovered.” “any rights,” resulting prejudice to the Blair, (emphasis origi- at 743 protected by interests his ... due process nal).6 now rights”). apply We the Barker test to the facts of case. case, 18 In the instant as- serts he is specifically relying regard that 20 With first prong exceptions analysis, delay waiver or see the Barker estoppel, we find years enough brief at and he does not of nine itself to trigger present any argument regard inquiry. to the further See 699 A.2d at erroneously doctrine of credit for time 745 (concluding delay of over two Rather, above, liberty. years as indicated trigger sufficient to further in predicates Additionally, his argument quiry). on due find that the ex grounds alleging the government’s length delay weighs treme of this in Appel Greer, conduct shocks the conscience. lant’s favor. Commonwealth v. See (1989) Pa.Super. ¶19 Blair Fortunately, gives also us (concluding year delay sentenc 7% because, some guidance respect al- weighed ing defendant in his favor under though waiver, rejecting application of the prong analysis). of the Barker estoppel, exceptions credit under the ¶ 21 particular circumstances of that regard With to the second prong, i.e., Blair in a engage four-prong delay, the reason for the we have said process analysis derived from Barker v. that “a attempt deliberate should 2182, Wingo, heavily 407 U.S. 92 weighed against govern S.Ct (1972).7 We L.Ed.2d described this ment while more neutral reason such ‘[a] four-prong negligence weighted test as follows: as ... should be less Specifically, discussing procedure addressing 6. the Blair after of criminal the dilem- exceptions, stated “in this choose presented case we ma the circumstances herein.” apply exception not to an to the common Id. 742-43 Blair, (emphasis rule....” 699 A.2d at 743 Thus, added). appears it that we not "It analysis is well settled that same but, rather, reject exceptions outright these speedy used to examine trial claims which they apply found that did not under the facts pre-trial arise used to examine and, Blair; above, as noted asked also Blair, post-sentencing." which arise claims Supreme for a directive from the issue (citations omitted). at 745 regard setting Court with a rule "definitive Appellant was heavily consid- ter and determine nevertheless should be but discharged for and released. responsibility the ultimate still bond or ered since gov- However, any with the that action such circumstances must rest no exists record ” and, rather than with the defendant.’ point ernment that by the court at was taken Blair, (quoting at 745-46 Com- 699 A.2d continued re- consequently, Glover, 500 Pa. 458 A.2d monwealth appeal bond. main free on his (1983)). Blair, In we conclud- 938-39 multiple contacts also had not government’s ed that criminal County with the Westmoreland but, rather, resulted from its deliberate drug-related in 1994 and 1995 courts knowledge lack of that Blair remained free charges. Id. at He was sentenced pa- on his because bond bond years’ probation concurrent terms five Blair, missing from his record. pers were crimes, apparently id. at but these at 746. stated that “[s]uch We any with recognize issue the court did not heavily.” negligence weighed less will be in Allegheny regard to the 1990 conviction Id. Then, County. Westmoreland ¶ 22 presents case circum instant Appellant’s proba- County Court revoked different from those in Blair quite stances tion, conviction, whereup- a DUI regard prong of the test. pre- preparation court ordered took the court action it first in- report. presentence Id.. The sentence recognized period the issue of Blair’s Appellant was that vestigator recognized liberty. Contrastingly, Appel mistaken and that had been convicted lant several contacts with the criminal had appeal. Id. at 11. She pending released Allegheny justice system both in Information report in the included during period Westmoreland counties noting there remained out- well as Yet, op liberty. despite of mistaken regard to whether standing question with portunities the courts had to address the had served. the 1990 sentence been outstanding question of whether matter, she investigated the Although she sentence, they repeatedly served his 1990 any find ... “did not evidence so, recognizing failed do even after Despite Id. at 12. sentence was served.” question about existed the matter. County to the Westmoreland report her ¶ 23 Specifically, Appellant’s most re Court, any take still failed to authorities in, Al cent occurred arrest and conviction the 1990 regard action at that time with legheny drug posses in 1996 on a County no there is evidence 1/27/03, Hearing, at 21. charge. sion N.T. any further pursued courts record Despite outstanding sen took other inquiry the matter or into tence, Appel attorney the district offered matter, Appellant testi- action on the (a sen “plea disposition quickly” lant a not of the informa- fied that he was aware ARD), apparently tencing option similar report. the presentence contained tion recognizing that the 1990 without 11/4/02, Hearing, at 60. N.T. at 21-22. On been served. Thus, that the despite recognizing 3, 1996, Department of September Appellant served question of whether a letter to the same Corrections sent outstanding, remained sentence case, ex judge presided over the 1996 who failed to consistently nevertheless courts that their records indicated plaining until it address the matter investigate and appeal Appellant remained free on the the- attention of finally brought was asking his sentence and bond from after we a decade Judge Bigley almost investigate the mat- judge’s staff was, stated, remanded the record on appeal. appeal Appellant direct “After so Accordingly, the factor the Bark- second I many-years thought appeal was won. weighs heavily .against er the govern- test my Just on with at life.” Id. 47. went distinguishes ment is what primarily there is no evidence that Blair, case this from the court ad- where attempted to his conceal whereabouts dur- problem dressed the as it soon was period ing liberty, his of mistaken as he recognized.8 did change not his name or residence. - ie., Similarly, mother, at regard prong, Appellant’s With to the 43-44. third rights, defendant’s assertion of posted surety his who had her residence as Blair found “Blair asserted his -bond, that she too testified did only process right after the trial court agency not hear from the bond regarding appear ordered him to sentencing.” the status of her son’s bail and that Attor- Blair, 699 746. Similarly, Appel- A.2d at ney DeFazio never told her of the outcome lant until rights did assert his after he appeal. 11/4/02, N.T. Hearing, her son’s committed; however, finally was in Blair at 65-66. Since no action was taken on we further question stated: “While we Appellant’s bond and because Blair’s assertion that he did not know that preoccupied mother became with her hus- affirmed, his sentence had been we must multiple band’s serious health issues dur- why assume that he refrained from ing period, the intervening she made no asserting any claim before that time.” Id. inquiries. at further 67-68. Based on We make assumption the same the in- record, we cannot fault Appellant for stant as there is no evidence that asserting process rights his due for the given was ever his notice that following first time his 2002 committal on judgment of sentence on convic- the 1990 This factor sentence. therefore tion until was affirmed he was arrested on weigh against does not him. by Judge Bigley bench warrant issued ¶ The fourth prong of the Barker test in 2002. requires any resulting prej- us to consider ¶27 Indeed, by the time the first Blair, udice to defendant. 699 A.2d at hearing on matter on November that, argued during Blair 2002, Attorney purged DeFazio had his two-year period and four-month time in Appellant’s record 1990 case and could at mistakenly he was due to the not remember whether he Ap- had notified trial court’s comply failure Rule pellant Appellant’s mother that the Su- “gainfully he had become employed, perior Court had affirmed his apartment, purchased secured own an judgment testified automobile, and continuing was his edu- that he was not notified source that ... gains cation when all his ‘were judgment his of sentence had been af- ripped away from him ... when Court, Supreme firmed our that our ” jail[.]’ required to return Id. at 739. denied for allowance of We stated: appeal, that he had to turn himself in to acknowledge the fact that Blair We serving commence his sentence. NT. 11/4/02, 43, 47, Hearing, failed be incarcerated because 59-60. When Further, thought asked what Blair the outcome error not his own. vein, Rather, according plain appeal. In this same we note Pa.R.A.P. to the lan- rule, places per- guage responsibili- no convicted burden it is court's ty person appear to turn son himself to the court to call convicted fol- judgment lowing affirmance of his remand of his record. Second, the court Blair com- blameworthiness. to hinder order to nothing sentence; into their interjects policy argument did not a service of he mence flee, identity, society’s in- by noting not conceal his lived analysis prejudice Pennsylva- and in the Western worked criminals serve having terest in convicted area, nia and had attended the Commu- Al- them. imposed upon the sentences Blair nity College Allegheny County. impacts a fail to see how though we knowledge, dur- he did not have claims policy we note that this prejudice analysis, ing period question, the time in in instant case be- implicated is not judgment of had been affirmed already cause, has point, Appellant at this sympathize we this court. While on the 1990 his minimum sentence served conclude, with Blair’s howev- plight, we parole, out presently and is conviction er, factors not and cannot that these do essentially paid society being his debt nullify any portion Blair’s sentence point, most rele- point. at this third not imprisonment. We allow the will is that prejudice argument, vant to Blair’s to can- system’s inadvertent error time at court considered Blair’s the Blair any part punishment cel of Blair’s than benefited him rather have justly was con- crimes for which he he did become prejudiced him because an Society and has victed sentenced. However, during that time. productive knowing in its criminals are interest court also notes “[t]he the Blair they to which serving punishment respect is not uniform sentenced, regardless been have conduct after is mistak- prisoner’s not delay or at- negligent unintended error in enly is a relevant consideration released government. tributable The fact liberty.” determining for time at credit that, delay, regardless remains all, prejudice 743 n. 10. at Blair time he so has served the was little analysis provides guidance in Blair ordered serve. Blair’s “erroneous the instant case. at was his own liberty” spent, by time argues that 29 Our admission, activ- engaging in the normal delay committing him on the court’s society. ities Con- of member free prejudice him be- 1990 conviction caused accomplishments sidering Blair’s witnesses cause, such as “vital evidence” maintaining employment pursuing missing, evidence are now scientific goals, argument educational could be transcript from the 1990 con- and the trial actually benefitted from made viction is “lost and cannot re-created.” Indeed, it liberty. at is difficult sup- at 11. The record Appellant’s brief plea prej- Blair’s of “enormous accept the 1990 Appellant’s assertion that ports light circumstances. udice” these missing accept Ap- transcript (footnote omitted). pas- at This that, due to the inor- proposition pellant’s key sage certain considerations the reveals the court’s perpetuated dinate First, in denying Blair court used relief. inaction, vital continuous course certain as “in- government’s it error described and that missing stale or evidence contrast, The instant advertent.” unavailable witnesses would be certain govern- a situation in which the illustrates difficulty recalling this case. have would continually failed to address ment file a Appellant could if even so, despite opportunities to do problem, its it point, PCRA timely years. period of during an extended any potentially be difficult assess would Thus, really Blair court address- circum- these issues under meritorious test ing prong second Barker lack of stances. government’s when it noted the

¶ Thus, overall, discharged we find that from his sentence this case. weigh Barker factors of Appel- Accordingly, favor I respectfully dissent. lant’s due violation claim act in government’s returning Appel- prison delay

lant inordinate government’s

attributable to the course

recognizing, ignoring, outstanding then

question served sentence, grounds constitutes dis- Pennsylvania, COMMONWEALTH Appellant from charge his sentence at this Appellee, time. ¶ reasons, For foregoing we re- denying

verse order habeas JOHNSON, Appellant. R. James discharged order from Superior Pennsylvania. in this case. ¶ Order reversed. Jan. Submitted Filed Feb. Judge ORIE MELVIN files a dissenting statement.

DISSENTING STATEMENT BY MELVIN,

ORIE J.: I respectfully dissent from the Ma- Opinion

jority’s discharging Appellant imposed

from the sentence on his 1990

drug conviction on the basis sub- process rights

stantive due were violated.

¶ Upon review of the set forth factors Wingo, supra, disagree Barker v. I prejudiced

Appellant has been as a result recommitment. The record

reflects that while mistak- bond,

enly on his he was

charged and convicted other of- Allegheny

fenses Westmoreland Furthermore, if Appellant

counties. even timely petition, ap-

could file PCRA it

pears that raise the sup- he would same

pression- already claim which was ad- appeal by panel

dressed direct of this Therefore,

Court. the fact the trial tran-

script missing and that certain evidence stale no is of moment when the

suppression previously claim has been liti- Therefore, in

gated. the absence I

prejudice, disagree Appellant should granted relief and be

Case Details

Case Name: Commonwealth v. West

Court Name: Superior Court of Pennsylvania

Date Published: Feb 15, 2005

Citation: 868 A.2d 1267

Court Abbreviation: Pa. Super. Ct.