Commonwealth v. Blanco

1

COMMONWEALTH OF PENNSYLVANIA Appellee v. RAMON BLANCO Appellant

No. 2290 EDA 2022

No. J-S04020-23

Superior Court of Pennsylvania

May 26, 2023

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

Appeal from the Judgment of Sentence Entered January 5, 2022 In the Court of Common Pleas of Montgomery County Criminal Division at No(s): CP-46-CR-0004230-2020

BEFORE: MURRAY, J., KING, J., and PELLEGRINI J.^[*]

MEMORANDUM

KING J

Appellant Ramon Blanco, appeals nunc pro tunc from the judgment of sentence entered in the Montgomery County Court of Common Pleas, following his bench trial convictions for accidents involving death or personal injury while not properly licensed ("AIDPI"), aggravated assault by vehicle, reckless driving, and related offenses.^[1] We remand this case to the trial court for specific findings regarding Appellant's motion for dismissal pursuant to Pa.R.Crim.P. 600.

The relevant facts of this appeal are as follows. At approximately 11:16 p.m. on August 5, 2019, Jamiee Johnstonbaugh ("Victim") was driving his Honda Pilot eastbound on Sumneytown Pike in Lower Gwynedd Township. Victim stopped for a red light at Sumneytown Pike's intersection with DeKalb Pike. When the light changed, Victim proceeded through the intersection. At the same time, Appellant was approaching the intersection while driving a Chevrolet Suburban northbound on DeKalb Pike. Despite being controlled by a red light, Appellant's vehicle barreled into the intersection and collided with Victim's vehicle. After the crash, Appellant fled the scene on foot. Eyewitnesses helped Victim out of his vehicle, and an ambulance transported Victim to a local hospital for treatment. Victim suffered various injuries due to the crash, including broken bones and a concussion.

Police subsequently apprehended Appellant, and the Commonwealth initially filed a criminal complaint on August 7, 2019. Appellant proceeded to a preliminary hearing, where the magistrate dismissed certain charges. This prompted the Commonwealth to refile the criminal complaint on February 26, 2020. The trial court opinion set forth the remaining procedural history as follows:

The Commonwealth filed a bill of information charging [Appellant] with the following offenses: [AIDPI] (count 1); accidents involving damage to attended vehicle or property (count 2); duty to give information and render aid (count 3); driving without a license (count 4); reckless driving (count 5); failure to stop at red signal (count 6); aggravated assault by vehicle (count 7); accidents involving death or personal injury (count 8); and recklessly endangering another person (count 9).

On July 29, 2021, [Appellant] filed a motion for dismissal pursuant to Rule 600(D)(1) and Commonwealth v. Harth[, ___ Pa. ___, 252 A.3d 600 (2021)]. On September 10, 2021, the Commonwealth filed a response to this motion. The court held a hearing regarding this motion on September 13, 2021. At the conclusion of the hearing, the court directed the parties to submit memoranda. By order dated September 22, 2021, the court denied [Appellant's] motion.

The court conducted a bench trial on October 13, 2021. At the conclusion of the trial, the court found [Appellant] guilty on all counts and directed the completion of a pre-sentence investigation report.

On January 5, 2022, the court imposed the following sentence: count 7, 11 months and 14 days to 23 months and 29 days in the Montgomery County Correctional Facility ("MCCF") to date from August 7, 2019; count 1, 9 to 23 months' incarceration in MCCF to run concurrently with count 7; count 8, 9 to 23 months' incarceration in MCCF to run concurrently with count 7; and count 9, 4 to 23 months' incarceration in MCCF to run concurrently with count 7. The court did not impose further penalty with respect to counts 2-6. Thus, the court imposed an aggregate sentence of 11 months and 14 days to 23 months and 29 days' incarceration in MCCF to date from August 7, 2019.

The court also directed [Appellant] to pay restitution of $1,000 to Aurea Meneses, the owner of the vehicle operated by [Appellant] at the time of the accident, and $1,763 to GEICO.

On January 20, 2022, [Appellant] filed a post-sentence motion in which he sought: (1) a dismissal of all charges pursuant to Pa.R.Crim.P. 600 and Commonwealth v. Harth and (2) judgment of acquittal as to Counts 1, 2, and 7-9 on the basis that the Commonwealth had failed to prove the required mens rea of criminal negligence or recklessness for these counts. By order dated May 3, 2022, the court denied [Appellant's] post-sentence motion.

On June 3, 2022, [Appellant] filed an appeal from: (1) the sentence imposed on January 5, 2022 and (2) the May 3, 2022 order denying his post-sentence motion. By order filed on July 13, 2022, the Superior Court quashed that appeal as untimely filed because [Appellant] had filed his post-sentence motion more than 10 days after the January 5, 2022 imposition of sentence.

On August 3, 2022, [Appellant] filed a [Post Conviction Relief Act ("PCRA")^[2] petition to reinstate appellate rights nunc pro tunc on the basis that his trial counsel had filed his post-sentence motion late. By order dated August 5, 2022 the court directed the Commonwealth to file an answer to this PCRA petition. On August 26, 2022, the Commonwealth filed a reply stating it did not oppose [Appellant's] request for the nunc pro tunc reinstatement of his appeal rights. By order dated August 26, 2022, the court granted [Appellant's] PCRA petition and stated [Appellant] may file an appeal nunc pro tunc no later than 30 days from the date of the filing of the order. Pursuant to this order, [Appellant] filed the instant appeal on September 1, 2022[.]

(Trial Court Opinion, filed 10/24/22, at 1-3) (internal footnotes and some capitalization omitted). Also on September 1, 2022, the court ordered Appellant to file a Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal. Appellant timely filed his Rule 1925(b) statement on September 20, 2022.

Appellant now raises three issues on appeal, which we have reordered as follows:

Was the evidence insufficient to sustain [Appellant's] conviction, in that the Commonwealth's evidence failed to prove that [Appellant] was operating his vehicle in a "criminally negligent" manner at the time of the accident when it demonstrated only that [Appellant] fell asleep while driving?

Did the [trial] court err in failing to calculate [Appellant's] Pa.R.Crim.P. 600 mechanical run date from the date of filing of the initial criminal complaint against [Appellant] where the Commonwealth was not duly diligent in filing a second complaint?

Did the [trial] court err in denying [Appellant's] motion to dismiss pursuant to Pa.R.Crim.P. 600 where the Commonwealth failed to establish the requisite due diligence in providing discovery that was necessary before court delay attributable to COVID-19 emergency orders could be considered?

(Appellant's Brief at 3).

As a prefatory matter, the trial court suggests that we must quash this appeal. The court emphasizes the PCRA provision mandating that a petitioner must be "currently serving a sentence of imprisonment, probation or parole for the crime" to be eligible for relief. (Trial Court Opinion at 4) (quoting 42 Pa.C.S.A. § 9543(a)(1)(i)). The court contends that Appellant's sentence for the instant offenses expired on August 5, 2021; thus, Appellant had completed his sentence by the time he filed his PCRA petition on August 3, 2022. The court concludes that Appellant "was not eligible for PCRA relief," and it "lacked jurisdiction" to consider the petition and reinstate Appellant's direct appeal rights nunc pro tunc. (Id. at 6) (emphasis added).

In response, Appellant cites Commonwealth v. Fields, 197 A.3d 1217, 1222 (Pa.Super. 2018) (en banc) (plurality), appeal denied, 651 Pa. 593, 206 A.3d 1025 (2019), for the proposition that "[t]he plain language of section 9543 does not mention the jurisdiction of the PCRA court[.]" (Appellant's Brief at 21). Appellant maintains that the court possessed jurisdiction to grant relief, which the Commonwealth did not oppose. Absent some action by the Commonwealth, Appellant insists that any challenge to the grant of PCRA relief is waived, and "the only matter currently before this … Court is [Appellant's] direct appeal filed [nunc pro tunc] on September 1, 2022." (Id.) We agree.

"[I]n drafting the PCRA, the General Assembly included 42 Pa.C.S. § 9545, a separate provision addressing 'Jurisdiction and proceedings.'" Fields, supra at 1222. "Had the General Assembly intended the eligibility requirements of section 9543 to be jurisdictional prerequisites, it would have included that provision within section 9545." Id. "Accordingly, we hold that the requirements set forth in section 9543 establish only a petitioner's eligibility for post-conviction relief, and do not implicate the PCRA court's jurisdiction to act on a petition." Id. at 1223.

Here this Court's interpretation of the relevant provisions of the PCRA refutes the trial court's conclusion that it "lacked jurisdiction" to act on Appellant's petition. See id. To the extent that the PCRA court might have erred in granting relief where Appellant was ineligible, the Commonwealth waived any challenge to the PCRA court's ruling by failing to appeal from the order granting nunc pro tunc relief. See Commonwealth v. Bryant, 566 Pa. 307, 780 A.2d 646 (2001) (reiterating that PCRA court's order granting relief in part was final order that petitioner or Commonwealth could have appealed, and failure to file notice of appeal would have waived review of PCRA court's decision). Consequently, we proceed to address the issues Appellant now raises in this nunc pro tunc appeal from his...