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HomeMy WebLinkAbout02-0345 CRIMINALCOMMONWEALTH VS. BRYAN E. GIMBARA IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 02-0345 CRIMINAL IN RE: APPEAL FROM SUMMARY CONVICTION BEFORE HESS, J. OPINION AND ORDER Before the court is a motion of the defendant to dismiss a charge of driving under suspension. In this appeal from the district justice, the defendant makes the argument that the Commonwealth violated the "Compulsory Joinder Rule" set forth in the Crimes Code (18 Pa. C.S.A. Section 110(1)(ii)) and that his conviction for driving under suspension should be overturned pursuant to the Pennsylvania Supreme Court holding in Commonwealth v. Failor, 564 Pa. 642, 770 A.2d 310 (2001). The facts and procedural history of this matter, adduced at a hearing held in April of 2002, are as follows: On October 12, 2001, the defendant, Bryan E. Gimbara, was cited for speeding, 75 Pa.C.S.A. Section 3362, and driving while his operating license was suspended (DUI related), 75 Pa.C.S.A. Section 1543(b)(1). The defendant subsequently pled guilty to the speeding charge and not guilty to the charge of driving under suspension. The pleas were entered simultaneously through the mail. The district justice set a hearing date for the resolution of the driving under suspension charge after receiving the defendant's plea of not guilty. In the meantime, the guilty plea was processed by the district justice' s office. The hearing was held on the suspension charge on January 28, 2002, and the defendant was found guilty. 02-0345 CRIMINAL According to the defendant, the facts of this case implicate the compulsory joinder rule set out in Section 110 of the Crimes Code. This section requires that all known charges based upon the same criminal conduct or arising out of the same criminal episode be consolidated for trial. The Pennsylvania Supreme Court has stated two distinct policy considerations for this rule's existence: "First, it protects a defendant from the governmental harassment of being subjected to successive trials for offenses stemming from the same criminal episode. Secondly, the rule assures finality without unduly burdening the judicial process by repetitious litigation." Com. v. Failor, 564 Pa. 642, 647, 770 A.2d 310, 313 (2001).~ The Supreme Court has also held that Section 110 applies to prosecutions for summary offenses, such as the speeding and driving under suspension offenses sub judice. See Com. v. Geyer, 546 Pa. 586, 687 A.2d 815 (1996). In Com. v. Failor, supra, the Pennsylvania Supreme Court established a four-part test to determine whether Section 110 would prohibit the Commonwealth from subsequently prosecuting a defendant on a related offense after it had previously prosecuted the defendant for another related offense in a separate judicial proceeding. In Failor, 565 Pa. at 648, 770 A.2d at 313, the court described the test as follows: Under Section 110(1)(ii), the specific provision applicable to Appellant's cases, the Commonwealth is prohibited from prosecuting a defendant based on its former prosecution of the defendant if the following four-part test is met: (1) the former prosecution resulted in an acquittal or a conviction; (2) the current prosecution must be based on the same criminal conduct or have arisen from the same criminal episode as the former prosecution; (3) the prosecutor must have been aware of the current charges before the commencement of the trial for the former charges; ~ This case involves two matters which were consolidated on appeal. The defendant in the other case was Blosser. 2 02-0345 CRIMINAL Id. and (4) the current charges and the former charges must be within the jurisdiction of a single court. (citations omitted) The court found that the facts presented in Failor satisfied all four parts of the test and the appellants' convictions were reversed. We are satisfied that the case presently before this court can successfully be distinguished on its facts from those in Failor. Appellant Failor was cited for speeding on or about October 30, 1997. A few months later, the issuing officer discovered that Failor had been driving under suspension when he was cited for speeding. Failor was subsequently cited for driving under suspension on or about December 3, 1997. On December 12, 1997, Failor appeared before the district justice and pled guilty to the speeding charge. Subsequently, Failor appeared before the district justice to plead guilty to the driving under suspension charge. On appeal, the Pennsylvania Supreme Court reversed the conviction for driving under suspension as a violation of the Compulsory Joinder Rule. Appellant Blosser, whose appeal had been joined with that of Failor, was cited simultaneously but separately for speeding and driving under suspension on or about November 9, 1997. On December 2, 1997, Blosser appeared before the district justice and pled guilty to the charge of speeding. At that time, the district justice arranged for the appointment of defense counsel for the driving under suspension charge. On January 28, 1998, Blosser was found guilty of driving under suspension. Again, on appeal, the Pennsylvania Supreme Court reversed this conviction as a violation of the Compulsory Joinder Rule. 02-0345 CRIMINAL In this case, the defendant was cited simultaneously but separately for speeding and driving under suspension. He pled guilty to the speeding charge through the mail. The entry of the plea in this manner entailed no action by the district justice, rather, the receipt of the plea and moneys was simply recorded by the office staff. See PaR. CrimP. 409.2 Gimbara was not subjected to governmental harassment of any kind nor was he forced to undergo successive trials for offenses stemming from the same criminal episode. His only appearance before a district justice was for the purpose of resolving the charge of driving under suspension. He was not subjected to multiple trials nor was the judiciary, itself, burdened as there was only one "trial" held to resolve the issues involved. For these reasons, we do not believe it appropriate to extend the holding in Failor to apply to the situation in this case. ORDER AND NOW, this day of July, 2002, the motion of the defendant to dismiss based upon a violation of the rule regarding compulsory joinder is DENIED. BY THE COURT, Kevin A. Hess, J. : If a defendant did not mail in pleas as to all of the charges at the same time, the office staff, of course, would have no way of knowing, following receipt of the first plea, that other charges were outstanding. To date, we know of no procedural rule which has been adopted to address this problem. ~ It should be noted that the Honorable J. Wesley Oler, Jr., of this court recently faced the issue of compulsory joinder in a situation where a defendant had initially tendered pleas of guilty to driving an unregistered vehicle and driving under suspension (DUI related). Upon receipt of the guilty pleas, the district justice deferred acceptance of the guilty plea on driving under suspension as it carded a 90-day prison term and it appeared that the defendant was uncounselled. After he was given the opportunity to do so by the district justice, the defendant consulted an attorney and, eventually, withdrew his plea to driving under suspension. A summary trial was conducted notwithstanding the fact that the district justice had already accepted the plea of guilty to the speeding charge. Judge Oler went on to conclude that the policy considerations of the Compulsory Joinder Rule were also not implicated in this scenario. See Com. v. Dwayne Jay Walker, 01-2272, Opinion of June 7, 2002. 4 02-0345 CRIMINAL Jaime Keating, Esquire Chief Deputy District Attorney H. Anthony Adams, Esquire Assistant Public Defender :rlm COMMONWEALTH VS. BRYAN E. GIMBARA IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 02-0345 CRIMINAL IN RE: APPEAL FROM SUMMARY JUDGMENT BEFORE HESS, J. ORDER AND NOW, this day of July, 2002, the motion of the defendant to dismiss based upon a violation of the rule regarding compulsory joinder is DENIED. BY THE COURT, Jaime Keating, Esquire Chief Deputy District Attorney H. Anthony Adams, Esquire Assistant Public Defender :rlm Kevin A. Hess, J.