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HomeMy WebLinkAboutCP-21-CR-0737-2004 COMMONWEAL TH IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. CHRISTAL R. BUTLER CP-21-CR-737 -2004 IN RE: MOTION OF DEFENDANT TO QUASH NOLLE PROSEQUI OPINION AND ORDER OF COURT Bayley, J., March 29, 2005:-- On May 17, 2004, the District Attorney filed an information against defendant, Christal R. Butler, charging her with counts of obtaining drugs by fraud, 1 criminal conspiracy to obtaining drugs by fraud,2 unlawful delivery or manufacture or possession with intent to deliver a schedule II, controlled substance,3 unlawful delivery or manufacture or possession with intent to deliver a schedule III, controlled substance,4 and unlawful delivery, manufacture or possession with intent to deliver schedule IV, controlled substance.5 On or about January 10, 2005, the District Attorney filed a motion to nolle prosequi the above counts. He averred that he did not desire to further prosecute the 135 P.S. S 780-113(a)(12) and 18 PaC.S. S 306. 218 PaC.S. S 903. 335 P.S. S 780-113(a)(30) and 18 PaC.S. S 306. 435 P.S. S 780-113(a)(30) and 18 PaC.S. S 306. 535 P.S. S 780-113(A)(30)IV and 18 PaC.S. S 306. CR-21-CR-737 -2004 charges because additional charges were going to be filed. On January 10, 2005, this court granted the motion. On January 19, 2005, the District Attorney entered a Nolle Prosequi. On January 26, 2005, defendant filed a motion to quash the nolle prosequi. A Rule was entered against the Commonwealth to show cause why the relief should not be granted. The District Attorney responded to a Rule, averring that he personally told counsel for defendant that he was going to nolle pros the case. A hearing was conducted on March 22, 2005. The record shows that when the motion of the District Attorney for a nolle prosequi was presented to the court, no notice was then provided to defendant with an opportunity to oppose the motion before the court granted permission to the District Attorney to enter a nolle prosequi. Defendant, citing PaR.Crim.P. 585(A), maintains that she is entitled to relief because there was no notice to her with an opportunity to be heard before the nolle prosequi was entered. Rule 585(A) provides: Upon motion of the attorney for the Commonwealth, the court may, in open court, order a nolle prosequi of one or more charges notwithstanding the objection of any person. (Emphasis added.) In Commonwealth v. Rega, 856 A.2d 1242 (Pa Super. 2004), a trial court approved the entry of a nolle prosequi on the motion of a District Attorney that did not contain a reason. The District Attorney then entered a nolle prosequi. On appeal, the defendant contented inter alia that the Commonwealth failed to proffer the reason for its nolle prosequi motion, the trial court should not have inferred a reason, and the motion should have been addressed in open court. The Superior Court of -2- CR-21-CR-737 -2004 Pennsylvania held that the trial court abused its discretion in approving the entry of the nolle prosequi. Citing Pa.R.Crim.P. 585, the Court stated: Our Supreme Court has stated: [T]here are two factors to be considered when a request for a nolle prosequi is made: (1) is the reason given by the Commonwealth for requesting the nolle prosequi valid and reasonable, and (2) does the defendant, at the time the nolle prosequi is requested, have a valid speedy trial claim? [Commonwealth v. Reinhart, 466 Pa. 591 (1976)], at 599-600, 353 A.2d at 853 (emphasis added). Moreover, when a court considers a motion for nolle prosequi, it should afford both parties an opportunity to "argue the merits" of the motion. Id. at 597, 353 A.2d at 851-51. The Court held that: [t]he trial court did not act in conformity with [Commonwealth v. Reinhart, 466 Pa. 591 (1976)] and failed to follow proper procedure, when it granted the Commonwealth's motion for nolle prosequi, without affording Appellant notice and an opportunity to argue the merits of the Commonwealth's request. See [Commonwealth v. Krick, 164 Pa. Super. 516 (1949)]. Appellant must be given notice and an opportunity to oppose any Commonwealth motion for nolle prosequi. See Pa.R.Crim.P. 585(A). (Emphasis added.) This court is bound by the holding Rega. It is not sufficient that a District Attorney told defense counsel that he was going to nolle prosequi the charges. Because no notice with an opportunity to oppose the Commonwealth's motion for a nolle prosequi was given to defendant by the trial court after the motion was presented, the motion of defendant to quash the nolle prosequi must be granted. Accordingly, the following order is entered. -3- CR-21-CR-737 -2004 ORDER OF COURT AND NOW, this day of March, 2005, the nolle prosequi entered by the District Attorney on January 19, 2005, IS QUASHED. By the Court, Edgar B. Bayley, J. Jaime Keating, Esquire For the Commonwealth Susan K. Pickford, Esquire F or Defendant :sal -4- COMMONWEAL TH IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. CHRISTAL R. BUTLER CP-21-CR-737 -2004 IN RE: MOTION OF DEFENDANT TO QUASH NOLLE PROSEQUI ORDER OF COURT AND NOW, this day of March, 2005, the nolle prosequi entered by the District Attorney on January 19, 2005, IS QUASHED. By the Court, Edgar B. Bayley, J. Jaime Keating, Esquire For the Commonwealth Susan K. Pickford, Esquire F or Defendant :sal