Commonwealth v. Diaz

51 A.3d 884, 2012 Pa. Super. 175, 2012 Pa. Super. LEXIS 2066
CourtSuperior Court of Pennsylvania
DecidedAugust 22, 2012
StatusPublished
Cited by23 cases

This text of 51 A.3d 884 (Commonwealth v. Diaz) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Diaz, 51 A.3d 884, 2012 Pa. Super. 175, 2012 Pa. Super. LEXIS 2066 (Pa. Ct. App. 2012).

Opinion

OPINION BY

ALLEN, J.:

¶ 1 Michael Diaz, (“Appellant”), appeals from the judgment of sentence imposed following his conviction for persons not to possess firearms.1 We affirm.

¶ 2 The trial court summarized the pertinent factual background as follows:

On April 17, 2010, Troopers Brendan Connor and Andrew Margolin of the Pennsylvania State Police were working the driving under the influence detail on North 9th Street in Reading, Pennsylvania. The Troopers observed a green station wagon driven by [Appellant] with an inoperable front headlight. The Troopers initiated a stop, and upon asking [Appellant] for his paperwork, Trooper Connor noticed that the inspection and emissions stickers looked fraudulent. Trooper Connor asked [Appellant] to step out of the vehicle to get a closer look at the sticker. Trooper Con-nor observed that all of the individuals in the vehicle were wearing blue bandanas, and [Appellant] was wearing a black leather jacket with the word “Assassina-tors” emblazoned on it. Trooper Con-nor asked [Appellant] if he had any weapons on him. After denying possession of a weapon, Trooper Conner patted down [Appellant]. During the pat-down, Trooper Conner felt a hard metal object in the shape of a revolver that he knew was a gun. Trooper Connor seized the loaded gun, a .32 Caliber revolver, and detained [Appellant]. [Appellant] does not have a valid license to carry a firearm.

[886]*886Trial Court Opinion, 4/2/12, at 3 (citations to notes of testimony omitted).

¶ 3 The trial court also detailed the somewhat convoluted procedural history of this case:

After [Appellant’s] April 17, 2010 arrest, Appellant was charged with six offenses. On July 9, 2010, [Appellant] made a motion to sever Count 1, the offense at issue here [persons not to possess firearms], from the remaining five counts. On November 17, 2010, a jury found [Appellant] guilty of Count 2, Firearms not to be Carried Without a License, in violation of 18 Pa.C.S.A. § 6106(a)(1). The same day, [the trial court] found [Appellant] guilty of four related summary traffic offenses. On December 27, 2010, [the trial court] sentenced [Appellant] to not less than 42 months nor more than 7 years of incarceration in a State Correctional Facility with 254 days credit for time served. On January 24, 2011, [Appellant] timely appealed his conviction and Judgment of Sentence. On February 1, 2011, while his appeal was still pending, [Appellant] filed a Petition pursuant to the Post Conviction Relief Act, 42 Pa.C.S.A. § 9541 et. seq. (PCRA). On February 3, 2011, [the trial court] dismissed the PCRA Petition without prejudice. [Appellant] timely filed a Statement of Matters Complained of on Appeal, and the Superior Court affirmed [Appellant’s] Judgment of Sentence on December 14, 2011.
On March 28, 2011, a jury found [Appellant] guilty of the remaining count, Count 1, Person Not to Possess, Use, Manufacture, Control, Sell, or Transfer firearms [at issue here in this appeal]. [Appellant] was originally scheduled to be sentenced on April 7, 2011, but [Appellant] was inadvertently transferred to [the] State Correctional Institute at Gra-terford for classification. [Appellant] originally was sent to SCI Camp Hill, and the Court set a sentencing date for September 21, 2011. Due to an unexpected unavailability of the [trial court], the [trial court] rescheduled the sentencing for December 19, 2011.
On October 7, 2011, [Appellant] informed the [trial court] that he was transferred to SCI Greene, and [the trial court] set a sentencing via videoconferencing with SCI Greene for December 19, 2011. On December 19, 2011, a time conflict due to a lengthy resentencing interfered with SCI Greene’s ability to videoconference with the [trial court], so sentencing was rescheduled for January 9, 2012. On January 9, 2012, [the trial court] sentenced [Appellant] to not less than four (4) nor more than eight (8) years of incarceration to begin on the date of sentencing with, by stipulation, no credit for time served.
On February 8, 2012, [Appellant] timely appealed the Judgment of Sentence. Pursuant to [trial court] order and Pa.R.A.P. 1925(b), on February 28, 2012, [Appellant] timely filed a Concise Statement of Errors Complained of on Appeal. [The trial court filed an opinion pursuant to Pa.R.A.P. 1925(a) ].

Trial Court Opinion, 4/2/12, at 1-3.

¶ 4 On appeal, Appellant raises the following issue for our review:

1. WHETHER APPELLANT’S DUE PROCESS AND SPEEDY TRIAL RIGHTS WERE VIOLATED WHEN THE [TRIAL] COURT DENIED APPELLANT’S ORAL MOTION OF FAILING TO SENTENCE HIM ACCORDING TO THE TIME LIMITS IN Pa. R.Crim.P. 704, AS APPELLANT WAS CONVICTED ON MARCH 28, 2011 AND HE WAS NOT SENTENCED UNTIL JANUARY 9, [887]*8872012, AND APPELLANT WAS PREJUDICED BECAUSE HE HAD BEEN SERVING AN EARLIER SENTENCE ON THE SEVERED CHARGES FROM THE SAME DOCKET AND RECEIVED A CONCURRENT SENTENCE FOR THE INSTANT CHARGE BUT NO CREDIT TIME FOR ANY OF THE TIME HE HAD BEEN INCARCERATED AND SERVED ON THE EARLIER SENTENCE?

Appellant’s Brief at 4.

¶ 5 Appellant asserts that the trial court violated his due process rights and his rights to a speedy trial by sentencing him 278 days after he had been convicted, in violation of Pa.R.Crim.P. 704. Appellant’s Brief at 13-25.

¶ 6 Pa.R.Crim.P. 704 provides, in pertinent part, as follows:

(A) Time for Sentencing.
(1) Except as provided by Rule 702(B), sentence in a court case shall ordinarily be imposed within 90 days of conviction or the entry of a plea of guilty or nolo contendere.
(2) When the date for sentencing in a court case must be delayed, for good cause shown, beyond the time limits set forth in this rule, the judge shall include in the record the specific time period for the extension.

Pa.R.Crim.P. 704.

¶7 With regard to claims of untimely sentencing, this Court has explained:

The appropriate remedy for a violation of Pa.R.Crim.P. 1405 [now Pa.R.Crim.P. 704], is discharge. However, the remedy does not automatically apply whenever a defendant is sentenced more than [ninety] days after conviction without good cause. Instead, a violation of the [ninety-day] rule is only the first step toward determining whether the remedy of discharge is appropriate.
[A] defendant who is sentenced in violation of Pa.R.Crim.P. 1405 [now Pa.R.Crim.P. 704], is entitled to a discharge only where the defendant can demonstrate that the delay in sentencing prejudiced him or her.... [T]o determine whether discharge is appropriate, the trial court should consider:
(1) the length of the delay falling outside of [the Pa.R.Crim.P. [90-day-and-good-cause provisions]; (2) the reason for the improper delay; (8) the defendant’s timely or untimely assertion of his rights; and (4) any resulting prejudice to the interests protected by his speedy trial and due process rights. Prejudice should not be presumed by the mere fact of an untimely sentence. Our approach has always been to determine whether there has in fact been prejudice, rather than to presume that prejudice exists. The court should examine the totality of the circumstances, as no one factor is necessary, dispositive, or of sufficient importance to prove a violation.

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Cite This Page — Counsel Stack

Bluebook (online)
51 A.3d 884, 2012 Pa. Super. 175, 2012 Pa. Super. LEXIS 2066, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-diaz-pasuperct-2012.