HomeMy WebLinkAbout01-2272 CRIMINALCOMMONWEALTH
· IN THE COURT OF COMMON PLEAS OF
· CUMBERLAND COUNTY, PENNSYLVANIA
DWAYNE JAY WALKER
: CHARGE: APPEAL FROM SUMMARY
DRIVING WHILE OPERATING
PRIVILEGE IS SUSPENDED
OR REVOKED (DUI-RELATED)
:NO. 01-2272 CRIMINAL
IN RE: DEFENDANT'S MOTION TO DISMISS
BEFORE OLER~ J.
OPINION and ORDER OF COURT
OLER, J., June 7, 2002·
In this criminal case, Defendant has appealed to this court from a summary
conviction before a district justice. For disposition at this time is Defendant's pretrial
motion requesting that the instant charge of driving under suspension (DUI-related) be
dismissed on the ground that Section 110 of the Crimes Cede~ bars the prosecution
because Defendant previously pled guilty to another summary offense arising out of the
same criminal episode.
For the reasons stated in this opinion, the motion will be denied.
STATEMENT OF FACTS
On July 3, 2001, Patrolman Jeffery D. Kurtz of the Carlisle Borough Police
Department stopped a Ford pickup truck that Defendant, Dwayne Jay Walker, was
driving on East Penn Street in the borough? Patrolman Kurtz concluded that Defendant
was driving a vehicle that was unregistered, in violation of Section 1301 (a) of the Vehicle
Cede,3 and driving under suspension (DUI-related), in violation of Section 1543(b)ef the
~ Act of Dec. 6, 1972, P.L. 1482, § 1, 18 Pa.C.S.A. § 110 (West 1998 & Supp. 2001).
2 N.T. 13, Hr'g, May 21, 2002 (hereinafter N.T.__(May 21, 2002).
3 Act of June 17, 1976, P.L. 162, § 1, as amended, 75 Pa. C.S.A. § 1301(a) (West 1998 & Supp.
2001).
Vehicle Code.4 Patrolman Kurtz informed Defendant at the scene of the charges and
subsequently filed the citations with the appropriate Cumberland County district justice's
office on July 5, 2001.5
The district justice mailed copies of the citations to Defendant.6 Defendant
returned his copies to the district justice with his signature indicating his entry of pleas of
guilty on both charges.7 However, because of the mandatory 90-day prison sentence
applicable to the driving under suspension (DUI-related) charge, the district justice
advised Defendant by letter that she would prefer that he consult an attorney to be sure
that the plea was fully informed.8 She indicated that she would permit a withdrawal of the
4 Act of June 17, 1976, P.L. 162, § 1, as amended, 75 Pa. C.S.A. § 1543(b) (West 1998 & Supp.
2001); see Commonwealth's Ex. 1-2, Hr'g, May 21, 2002 (hereinafter Commonwealth' s/Def. 's
Ex.__ (May 21, 2002)).
5 N.T. 14, 17-18 (May 21, 2002); Commonwealth's Ex. 1-2 (May 21, 2002).
6 N.T. 7 (May 21, 2002).
7 N.T. 8 (May 21, 2002).
8 N.T. 7-8 (May 21, 2002); Commonwealth's Ex. 3 (May 21, 2002). The letter to Defendant
read, in pertinent part, as follows:
Dear Mr. Walker,
Please be advised that I am in receipt of your guilty plea and partial
payment request on the above mentioned citation.
Please note that a conviction on this violation carries a mandatory penalty
of ninety (90) days incarceration in addition to the $1,000. Fine and costs. In view
of this penalty, a plea is not ordinarily accepted until you have had the
opportunity to discuss the matter with legal counsel.
Please consider this official notification that I am granting you [thirty]
(30) days to contact an attorney to discuss this matter. I will then allow you to
withdraw your guilty plea, if that is your decision. If you cannot afford an
attorney, please contact this office and apply for a public defender. Your $200.00
payment has been put in escrow pending clarification of your plea.
I have scheduled you to appear at this court on the following date:
9/12/01 ~ 10:00AM
The purpose of this hearing is to clarify your plea ....
Commonwealth's Ex. 3 (May 21, 2002).
2
plea if he wished.9
Defendant consulted an attorney, who then moved to withdraw the plea.l° The
letter to the district justice containing this request read, in pertinent part, as follows:
This letter is to inform you that I am representing Dwayne J. Walker
in reference to a traffic citation he received while driving while his license
was suspended. He tells me that he plead guilty on August 6, 2001, and
would like to withdraw that plea. I will have my office contact you shortly
to discuss how we might go about this, or whether we must simply file an
appeal. Obviously, if it can be done without filing an appeal, I prefer to do
11
it that way.
The district justice permitted the withdrawal of the plea, a summary trial was
conducted before her on October 15, 2001, Defendant was found guilty, and he was
sentenced to the mandatory fine and term of imprisonment required by law. ~2 On October
~3
31,2001 Defendant filed an appeal to this court, requesting a trial de nava.
A de nava trial in this court was scheduled for December 18, 2001.TM At the
commencement of the trial, Defendant orally raised an objection to the charge on the
basis of Section 110 of the Crimes Code.~5 After receiving the initial positions of the
parties on this issue, the court granted a continuance of the trial at the request of
Defendant and directed Defendant to file a formal motion to facilitate a proper review of
the issue raised.~6 On December 26, 2001, Defendant filed a formal motion to dismiss.~7
9 Commonwealth's Ex. 3 (May 21, 2002).
l0 N.T. 8 (May 21, 2002); Commonwealth's Ex. 4 (May 21, 2002).
~ Commonwealth's Ex. 4 (May 21, 2002).
~2 N.T. 9 (May 21, 2002). Defendant had previously paid the fine on the vehicle registration
offense. Def.' s Ex. 1 (May 21, 2002).
~3 Def.'s Notice of Appeal, filed Oct. 31, 2001.
14 See N.T. 2, Hr'g, Dec. 18, 2001 (hereinafter N.T. __ (Dec. 18, 2001)).
~5 N.T. 2 (Dec. 18, 2001). The evidence is conflicting as to whether this issue had been raised
before the district justice during the initial summary trial. See N.T. 10, 23 (May 21, 2002).
~6 N.T. 8-9 (Dec. 18, 2001).
~? Def.'s Mot. To Dismiss, filed Dec. 26, 2001.
3
The Commonwealth filed an answer on January 18, 2002.~8 An evidentiary hearing was
held on the matter on May 21, 2002. At the conclusion of the hearing the matter was
taken under advisement. 19
DISCUSSION
Defendant in this case argues that his prosecution for driving under suspension is
barred by Section 110 of the Crimes Code,2° which provides in pertinent part as follows:
Although a prosecution is for a violation of a different provision of
the statutes than a former prosecution or is based on different facts, it is
barred by such prosecution under the following circumstances:
(1) The former prosecution resulted in an acquittal or in a
conviction as defined in section 109 of this title (relating to when
prosecution barred by former prosecution for the same offense) and
the subsequent prosecution is for:
(ii) any offense based on the same conduct or
arising from the same criminal episode, if such offense
was known to the appropriate prosecuting officer at the
time of the commencement of the first trial and was
within the jurisdiction of a single court unless the court
ordered a separate trial of the charge of such offense;
18 Pa. C.S.A. § 1 lO(1)(ii).
The Pennsylvania Supreme Court has expressed the policy considerations implicit
in the statutory provision as follows:
This compulsory joinder rule serves two distinct policy considerations.
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.
~8 Commonwealth's Answer to Def.'
~9 Order of Ct., May 21, 2002.
20 N.T. 26 (May 21, 2002).
s Mot. To Dismiss, filed Jan. 18, 2002.
4
Commonwealth v. Failor, 564 Pa. 642, 647, 770 A.2d 310, 313 (2001).
Stated otherwise, the statute serves the interests of defendants by ensuring that
they are not "subjected to unnecessary successive prosecutions of any kind ... [and] the
interests of judicial economy ... by relieving the court system of repetitious litigation of
any nature." Commonwealth v. Geyer, 546 Pa. 586, 593, 687 A.2d 815, 818 (1996)
(emphasis added). This compulsory joinder rule encompasses summary offenses as well
as misdemeanors and felonies. Failor, 564 Pa. at 647, 770 A.2d at 313.
The Pennsylvania Supreme Court has derived a four-part test to be applied in
determining whether Section l l0(1)(ii) of the Crimes Code precludes a prosecution.
Under this test, the Commonwealth is prohibited from prosecuting a charge if:
(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
prosecution must have been aware of the current charges before the
commencement of the trial for the former charges; and (4) the current
charges and the former charges must be within the jurisdiction of a single
court.
Id. at 648, 770 A.2d at 313.
Thus, when a police officer has instituted successive prosecutions a month apart
for summary offenses arising out of the same criminal episode, and a guilty plea has been
accepted by the district justice on the first prosecution prior to consideration of the
second, the policy considerations of the compulsory joinder rule of Section 110(1)(ii) are
implicated and the second prosecution will be barred. Id. at 648, 770 A.2d at 313-14.
Similarly, when a district justice has disposed of one summary offense by accepting a
guilty plea without regard to the pendency of a second summary prosecution arising out
of the same criminal episode, as to which an attorney is appointed for the defendant and a
trial held, the policy considerations of the compulsory joinder rule are deemed implicated
and the second prosecution will be barred. Id.
On the other hand, the policy considerations of the compulsory joinder rule are not
implicated when prosecutions for offenses arising out of the same criminal episode are
severed through a defendant's affirmative action in changing a plea. See Commonwealth
5
v. Tarver, 467 Pa. 401, 408, 357 A.2d 539, 543 (1976). As Justice Pomeroy observed in
Tarver, under these circumstances
[w]e have a situation where the separateness of the trials for the different
offenses was brought about by the defendant himself through his different
pleas in two sets of charges. It was by his choice, not that of the state, that
two separate proceedings were had to determine his guilt or innocence in
charges arising from the same criminal episode. In these circumstances
there is no reason in logic or policy that should prevent separate
dispositions.
Id at 409-10, 357 A.2d at 543, citedwith approval in Failor, 564 Pa. at 650, 770 A.2d at
315.
In the present case, in which the police officer filed both citations against
Defendant at the same time, Defendant filed guilty pleas to both charges with the district
justice at the same time, and Defendant subsequently moved to withdraw one of the pleas
and was permitted to do so by the district justice, it does not appear to the court that the
policy considerations underlying the compulsory joinder rule of Section 110(1)(ii) of the
Crimes Code are implicated, either in terms of harassment of Defendant by successive
prosecutions or lack of judicial economy. For these reasons, Defendant's motion to
dismiss the instant prosecution by reason of the prior disposition of a vehicle registration
offense arising out of the same criminal episode will be denied.
ORDER OF COURT
AND NOW, this 7th day of June, 2002, upon consideration of Defendant's Motion
To Dismiss, and for the reasons stated in the accompanying opinion, the motion is
denied. The District Attorney's Office is directed to list this matter for trial.
s/J. Wesley Oler, Jr.
J. Wesley Oler, Jr., J.
Michael W. Mervine, Esq.
Assistant District Attorney
6
Karl E. Rominger, Esq.
155 South Hanover Street
Carlisle, PA 17013
Attorney for Defendant
7
COMMONWEALTH
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
Vo
DWAYNE JAY WALKER
: CHARGE: APPEAL FROM SUMMARY
DRIVING WHILE OPERATING
PRIVILEGE IS SUSPENDED
OR REVOKED (DUI-RELATED)
: NO. 01-2272 CRIMINAL TERM
IN RE: DEFENDANT'S MOTION TO DISMISS
BEFORE OLER~ J.
ORDER OF COURT
AND NOW, this day of June, 2002, upon consideration of Defendant's Motion
To Dismiss, and for the reasons stated in the accompanying opinion, the motion is
denied. The District Attorney's Office is directed to list this matter for trial.
J. Wesley Oler, Jr., J.
Michael W. Mervine, Esq.
Assistant District Attorney
Karl E. Rominger, Esq.
155 South Hanover Street
Carlisle, PA 17013
Attorney for Defendant