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HomeMy WebLinkAboutCP-21-MD-0804-2006 COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : v. : : : CHARLES F. THOMPSON : CP-21-MD-0804-2006 ORDER OF COURT st AND NOW , this 21 day of May, 2007, upon consideration of the Petition for Leave to File Summary Traffic Appeal Nunc Pro Tunc and the Commonwealth’s Answer DENIED thereto, and after hearing, the defendant’s Petition is . By the Court, ___________________________ M. L. Ebert, Jr., J. Michelle H. Sibert, Esquire Chief Deputy District Attorney One Courthouse Square Carlisle, PA 17013 Craig Sopin, Esquire Attorney for Petitioner 601 Walnut Street The Curtis Center, Suite 160-W Philadelphia, PA 19106 1 COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : v. : : : CHARLES F. THOMPSON : CP-21-MD-0804-2006 OPINION and ORDER OF COURT EBERT, J., May 21, 2007 – Defendant’s Petition arises from his August 5, 2004, conviction in Magisterial District Court 09-3-02 for violating Section 3362 of the Pennsylvania Vehicle Code, 75 Pa.C.S. §3362. Thompson was found guilty following trial and alleges that he failed to file a timely appeal because he was not adequately advised of his right to appeal to the Court of Common Pleas for a trial de novo. Following a hearing held on January 9, 2007, and for the reasons stated in this opinion, Defendant’s Petition to allow an appeal of his summary conviction nunc pro tunc is denied. PRELIMINARY DISCUSSION On May 30, 2004, Defendant was issued two summary traffic citations, in two different magisterial court jurisdictions of Cumberland County, for violating Section 3362 of the Pennsylvania Vehicle Code (speeding) while driving on the Pennsylvania 1 Turnpike. On the first citation, M0188684-6, the defendant did not appear for his summary speeding trial scheduled before Magisterial District Justice Bender. He was 1 Notes of Testimony 4 (Hereinafter N.T. ___), Commonwealth Exhibits “1”, “2”. therefore convicted of this offense on July 7, 2004 and required to take a point exam 2 which he passed on July 19, 2004. Interestingly, the record indicates that the Defendant had been issued an additional citation for exceeding maximum speed limit (67 mph in a 55 mph zone) on June 4, 2004, and was convicted of this offense on July 20, 2004, 1 day after he took his point exam required by the conviction for the Defendant’s first citation 3 in Cumberland County. The Defendant was then to appear for his summary trial involving the case at bar before Magisterial District Justice Shulenberger, (hereinafter 4 “MDJ”), on July 21, 2004, but continued his trial until August 5, 2004. On the citation at issue here, M0188517-0, Defendant was charged with traveling 5 75 mph in a 55 mph zone. Defendant was convicted on that citation following a trial held on August 5, 2004, before MDJ Shulenberger, who is now deceased. Defendant claims not only that the MDJ failed to advise him after his trial that he had the right to appeal his conviction within thirty days, in contravention of Pa.R.Crim.P. 454 (E)(2), but also that he did not receive any notice of the conviction from the Pennsylvania 6 Department of Transportation. On April 10, 2006, Defendant was cited for Driving Under Suspension. The suspension was the result of accumulating excessive points assigned as a consequence of the August 5, 2004 conviction on citation M0188517-0. This suspension was effective September 23, 2004 and the official notice of the suspension was mailed to the Defendant 2 Commonwealth Exhibit “5”, and “6”, at page 4. 3 Commonwealth Exhibit “6” 4 Commonwealth Exhibit “4” 5 Commonwealth Exhibit “2”. 6 N.T. 6, 7 2 7 on August 19, 2004. The Defendant admitted that his address in August 2004 was 108 8 Windsor Circle, North Wales, PA 19454. This address is the same as listed on Commonwealth Exhibits 1, 2, 3 and 4. The Defendant was convicted of Driving While 9 Suspended on July 11, 2006. Four months after receiving the Driving While Suspended citation and some time after his July 11, 2006, conviction, Defendant, in August 2006, consulted with an attorney. According to Defendant, this was the first time he was made aware of his right to appeal his August 5, 2004, conviction before MDJ Shulenberger on 10 citation M0188517-0. However, the Defendant then waited until November 27, 2006, to file this Petition. This was over two years after the date of the underlying citations which caused the suspension, and seven months from the time he knew he had received the citation for driving under suspension. At a hearing held on January 9, 2007, before this Court, Defendant failed to provide any details from the summary hearing except to say that the MDJ had failed to advise him of his right to appeal. A Magisterial District Court Clerk testified that although she had not witnessed the MDJ advise Defendant of his right to appeal, it was 11 the MDJ’s habit to so inform all convicted defendants. The Court takes judicial notice of the fact that MDJ Shulenberger had served as a clerk in her magisterial district for over 18 years before being elected MDJ. She then served as MDJ for over 10 years prior to the Defendant’s summary trial. 7 Commonwealth Exhibit “6” at page 4. 8 N.T. 19 9 Commonwealth Exhibit “6” at page 4. 10 N.T. 8, 19-21. 11 N.T. 26, 27. 3 The defendant does not claim that any other step in the appeal notification process was lacking. The backs of both citations issued to the Defendant on May 30, 2004, stated that, “[i]f you are found guilty by the District Justice, or you plead guilty, and you wish to appeal, you have THIRTY (30) days to file an appeal for a trial in the Court of Common 12 Pleas.” When the MDJ notified the Defendant in writing of his August 5, 2004, hearing 13 date, the notice informed the defendant of his appellate rights. When Defendant failed to appear for his summary speeding hearing before Magisterial District Justice Bender, he 14 was sent written notification of his sentence and his appellate rights. Following issuance of the Driving While Suspended citation on April 10, 2006, his conviction for this violation on July 11, 2006, and his subsequent visit to an attorney, he 15 filed this Petition on November 27, 2006, 844 days from the date of his conviction for a May 30, 2004, speeding violation. DISCUSSION OF LAW An appeal nunc pro tunc is intended to be an extraordinary remedy to vindicate the right to an appeal where that right has been lost due to some extraordinary circumstance. Com. v. Stock, 679 A.2d 760 (1996). Where a party has been prevented from appealing by reason of fraud or the equivalent, or by the negligent act of a court official, the court may allow enlargement of time for appeal or appeal nunc pro tunc. Com. v. Englert, 457 A.2d 121 (Pa. Super. 1983), Com. v. Bassion, 568 A.2d 1316, 1318 (Pa. Super. 1990). 12 Commonwealth Exhibits “1” and “2”. 13 Commonwealth Exhibit “4”. 14 Commonwealth Exhibit “5”. 15 The Proof of Service was dated November 17, 2006; however, the Petition is stamped with a date of November 27, 2006. 4 Furthermore, the party seeking leave to appeal nunc pro tunc bears the burden of acted promptly to assert such a right establishing that they upon learning of the existence of the grounds relied on for such relief. Bassion, 568 A.2d at 1319. In the present case, Defendant does not allege that “fraud or the equivalent” prevented him from filing a timely appeal. The issues before this Court are (1) whether the Defendant had notice of his appellate rights, and (2) whether Defendant acted promptly to assert his rights upon learning that he had grounds for seeking relief. A. NOTICE OF APPELLATE RIGHTS Based on the record presented to the Court at the hearing of January 9, 2007, this Court does find that Defendant did receive notice of his right to appeal his speeding conviction of August 5, 2004. MDJ Shulenberger was an experienced Magisterial District Judge with over 10 years of service on the bench at the time of the Defendant’s hearing. Additionally, she had served in this magisterial district office as a staff person for over 18 years before being elected Magisterial District Justice in 1993. Unfortunately, MDJ Shulenberger died in August 2005 and was unavailable to testify on January 9, 2007. However, her legal secretary, Christine Michaels did testify that MDJ Shulenberger followed the rules of criminal procedure which required the announcement of the verdict in open court and advising the Defendant of his right to appeal within 30 16 days for a de novo hearing in the Court of Common Pleas. 16 N.T. 27. 5 The only evidence which contradicts Ms. Michaels’ testimony that MDJ Shulenberger as a matter of habit always followed the Rules of Criminal Procedure is the 17 Defendant’s self serving testimony that she did not advise him of his right to appeal. As is often stated, “the weight of the evidence is exclusively for the finder of fact who is free to believe all, part, or none of the evidence and to determine the credibility of the witnesses.” Commonwealth v. Kim 888 A.2d 847 (Pa.Super. 2005). Additionally, Pennsylvania law has long recognized the principle that in weighing a criminal defendant’s testimony, it is perfectly permissible for the trier of fact to consider that he has a vital interest in the outcome of his hearing. That interest may be taken into account in determining his credibility. Pa. SSJI (Crim) 3.09 In this case, the Court finds that the Defendant was not credible in his testimony that Magisterial District Justice Shulenberger did not advise him of his right to appeal his conviction within 30 days to the Court of Common Pleas. Even assuming arguendo that the District Justice did not notify Defendant of his 30 day right to appeal, the record before this Court is replete with numerous other evidence showing that the Defendant had notice of his appeal rights. First, on each of the citations the Defendant received, the citations clearly state in item 3 under “Rights and Obligations” that “if you are found guilty by the District Justice you have THIRTY (30) 18 days to file an appeal for a trial in the Court of Common Pleas.” Furthermore, the Defendant admitted having received his order imposing sentence from District Justice 17 N.T. 6 18 Commonwealth’s Exhibits 1, 2 and 7. 6 Bender for his July 7, 2004 conviction on the speeding charge listed on citation 19 M0188684-6. On that order imposing sentence it again clearly states you have the right to appeal to the Court of Common Pleas within 30 days for a trial de novo. It is important to note that the Defendant consistently maintained that his address during the time in 20 question in 2004 was 108 Windsor Circle, North Wales, PA 19454. Again on Commonwealth’s Exhibit 4, the Notice of Trial Summary Case sent by MDJ Shulenberger to the Defendant scheduling his trial on citation M0188517-0, the notice clearly states that if you are found guilty “you have the right to appeal within THIRTY (30) days for a trial de novo.” These notices establish the fact that the Defendant did have notice of his right to appeal and the time in which to do so. See Commonwealth v. White, 806 A.2d 45 (Pa. Super. 2002). As Commonwealth’s Exhibit Number 6 at page 4 clearly points out, the Department of Transportation mailed the official notice of his 365 day suspension which was effective September 23, 2004, on August 19, 2004. Again, as noted previously, the Defendant was residing at 108 Windsor Circle, North Wales, PA 19454 at that time. Obviously, he did receive notice of his summary trial on citation M0188517-0 since he quickly responded to the MDJ in order to continue his summary trial until August 5, 2004. It has long been held that sending of written notice of driving license suspension to the Defendant’s current address is one of the many factors that may be considered in determining whether the Defendant was aware of his suspension. Commonwealth v. 19 N.T. 15. 20 N.T. 13-14, 19. 7 Vetrini, 734 A.2d 404 (Pa. Super 1999). Circumstantially, it is clear that he was receiving his mail from the Department of Transportation because he responded to the requirement of taking a point exam on July 19, 2004, as a result of other speeding convictions, and rescheduling his summary trial date before MDJ Shulenberger. B. PROMPT ASSERTION OF RIGHT For the purposes of this opinion, even if this Court would have found that the MDJ had not advised the Defendant of his right to appeal, the Defendant would still not be entitled to relief because he did not promptly assert his right to obtain an appeal nunc pro tunc. Defendant’s request for appeal nunc pro tunc was prompted by his April 10, 2006 citation for driving with a suspended license. At that time, Defendant was made aware that his license was under suspension. The suspension was the result of his May 30, 2004, and June 4, 2004, speeding citations. In rationally assessing the Defendant’s situation during the August 2004 time frame, it is clear that the Defendant had motive to simply ignore the suspension and drive his car rather than submit to a 365 day license suspension for which it appears he had no viable legal defense. Even after conviction for driving while suspended in July 2006, and talking to a lawyer in August 2006, he did not petition for appeal nunc pro tunc until November 27, 2006. This Court finds that the Defendant was put on notice by the April 2006 violation that there was an obvious problem with his driver’s license. His failure to file an appeal until November 2006 convinces this Court that he failed to act promptly to assert his rights. 8 ORDER OF COURT st AND NOW , this 21 day of May, 2007, upon consideration of the Petition for Leave to File Summary Traffic Appeal Nunc Pro Tunc and the Commonwealth’s DENIED Answer, the defendant’s request is . By the Court, ___________________________ M. L. Ebert, Jr., J. Michelle H. Sibert, Esquire Chief Deputy District Attorney One Courthouse Square Carlisle, PA 17013 Craig Sopin, Esquire Attorney for Petitioner 601 Walnut Street The Curtis Center, Suite 160-West Philadelphia, PA 19106 9