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HomeMy WebLinkAboutCP-21-CR-0781-2008 COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : V. : : KENNETH JAMES CLARK : CP-21-CR-0781-2008 IN RE: PETITION FOR RELEASE ON NOMINAL BAIL OPINION AND ORDER OF COURT Bayley, J., October 7, 2008:-- 1 Defendant, Kenneth James Clark, is charged with rape of a child, involuntary 23 deviate sexual intercourse, involuntary deviate sexual intercourse with a child, 45 statutory sexual assault, two counts of aggravated indecent assault, two counts of 67 indecent assault, and corruption of minors. On August 24, 2008, pursuant to Pa.R.Crim.P 600, he filed a Petition for Release on Nominal Bail. He maintains that more than 180 days have passed since the criminal complaint was filed, and he has been continuously confined awaiting trial on these charges since the date of his arrest. __________ 1 18 Pa.C.S. § 3121(c). 2 18 Pa.C.S. § 3123(a)(7). 3 18 Pa.C.S. § 3123(b). 4 18 Pa.C.S. § 3122.1. 5 18 Pa.C.S. §§ 3125(a)(7) and 3125(a)(8). 6 18 Pa.C.S. §§ 3126(a)(7) and 3126(a)(8). 7 18 Pa.C.S. § 6301(a)(1). CP-21-CR-0781-2008 The following dates are relevant: March 3, 2008 Criminal complaint filed and defendant arrested and committed to Cumberland County Prison in lieu of $500,000 bail March 4, 2008 Defense counsel requests continuance of preliminary hearing set for March 13, 2008. The preliminary hearing is reset for March 20, 2008 March 20, 2008 Preliminary hearing May 27, 2008 Formal Arraignment Defendant ordered toappear for trial on September 8, 2008, at 9:00 a.m. August 20, 2008 Pre-trial Conference Order of Court –parties indicated case is ready for trial, Defendant is directed to appear for trial September 8, 2008, at 9:00 a.m. August 29, 2008 Defense Petition for Release on Nominal Bail September 2, 2008 Court order – Hearing on the Petition to Release on Nominal Bail set for September 30, 2008 September 8, 2008 Defense Motion for Continuance of Trial September 9, 2008 Court Order – Motion for Continuance granted Trial continued to November 2008 Term of Court September 30, 2008 Hearing on Petition for Release on Nominal Bail -2- CP-21-CR-0781-2008 Pa.R.Crim.P. 600 provides in pertinent part: (A)(2) Trial in a court case in which a written complaint is filed against the defendant, when the defendant is incarcerated on that case, shall commence no later than 180 days from the date on which the complaint is filed. (C) In determining the period for commencement of trial, there shall be excluded therefrom: (3) such period of delay at any stage of the proceedings as results from: (a) the unavailability of the defendant or the defendant’s attorney; (b) any continuance granted at the request of the defendant or the defendant’s attorney. (E) No defendant shall be held in pre-trial incarceration on a given case for a period exceeding 180 days excluding time described in paragraph (C) above. Any defendant held in excess of 180 days is entitled upon petition to immediate release on nominal bail. One hundred eighty days from the date of defendant’s arrest on March 3, 2008, was August 29, 2008. Seven days are excluded for the defense request for a continuance of the preliminary hearing from March 13 to March 20. Thus, the new 180 day date became September 5, 2008. On September 2, 2008, defendant, alleging that more than 180 days had passed since the complaint was filed, sought release on nominal bail. The Commonwealth maintains that the 180 day clock stopped on August 29, 2008, when Defendant filed the Petition for Release on Nominal Bail. The period of time from a defense motion to dismiss until it is addressed is excludable time under the 180 day rule because it is considered delay due to the unavailability of defendant. Commonwealth v. Williams, Commonwealth v. 726 A.2d 389 (Pa. Super. 1999); -3- CP-21-CR-0781-2008 Cook,8 676 A.2d 639 (Pa. 1996). sub judice In the case , defendant did not file a motion to dismiss. Rather, he filed a motion for release on nominal bail. That motion did not affect his availability for trial which is the same whether he is or is not incarcerated. Accordingly, the 180 day clock did not stop on August 29, 2008. It did stop pursuant to Pa.R.Crim.P. 600(C)(3)(b), on September 8, 2008, when defendant filed the motion for a continuance th which was granted on September 9, 2008. However, by that time the 180 day had already passed on September 5, 2008. Defendant is therefore entitled to release on nominal bail because he is incarcerated and his case was not commenced by September 5, 2008. Pa.R.Crim.P. 524(C)(4), states: Release on Nominal Bail: Release conditioned upon the defendant’s depositing a nominal amount of cash which the bail authority determines is sufficient security for the defendant’s release, such as $1.00, and the agreement of a designated person, organization, or bail agency to act as surety for the defendant. ORDER OF COURT AND NOW, this day of October, 2008, the petition of defendant for IS GRANTED. release on nominal bail, Bail is reset at $1.00 with a condition that defendant have no direct or indirect contact with the alleged victim (B.S., a child age 13, or any member of her family), and subject to the approval of this court of a designated person, or organization, or bail agency to act as surety for the defendant. __________ 8 These two cases were decided under the Pa.R.Crim.P. 1100 which is now Rule 600. -4- CP-21-CR-0781-2008 By the Court, Edgar B. Bayley, J. Jaime Keating, Esquire For the Commonwealth H. Anthony Adams, Esquire For Defendant :sal -5- COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : V. : : KENNETH JAMES CLARK : CP-21-CR-0781-2008 IN RE: PETITION FOR RELEASE ON NOMINAL BAIL ORDER OF COURT AND NOW, this day of October, 2008, the petition of defendant for IS GRANTED. release on nominal bail, Bail is reset at $1.00 with a condition that defendant have no direct or indirect contact with the alleged victim (B.S., a child age 13, or any member of her family), and subject to the approval of this court of a designated person, or organization, or bail agency to act as surety for the defendant. By the Court, Edgar B. Bayley, J. Jaime Keating, Esquire For the Commonwealth H. Anthony Adams, Esquire For Defendant :sal