Opinion
J-S70036-13 No. 1552 EDA 2013
04-29-2014
JUNE OAKES Appellee v. JASON OAKES Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence of April 11, 2013
In the Court of Common Pleas of Delaware County
Criminal Division at No.: 2011-080948
BEFORE: GANTMAN, J., OLSON, J., and WECHT, J. MEMORANDUM BY WECHT, J.:
Jason Oakes ("Oakes") appeals from his April 11, 2013 judgment of sentence. Specifically, Oakes pleaded guilty to indirect criminal contempt ("ICC") for violating a protection from abuse ("PFA") order entered against Oakes for the benefit of June Oakes ("Wife"). Due to irregularities in the certified record, we remand for further proceedings.
This case concerns multiple PFA orders obtained by Wife against Oakes. On June 23, 2011, Wife filed an emergency PFA petition. We note that the original emergency PFA petition and order are absent from the certified record. The only document confirming the existence of this emergency PFA is a copy of the emergency PFA petition appended as an exhibit to one of Oakes' motions. See Exhibit B to Oakes' Motion to Withdraw Guilty Plea, 5/8/2013, at 1. However, the timing of that petition is unclear. The version of the emergency PFA petition attached to Oakes' "Motion to Withdraw Guilty Plea" is dated as having been filed on June 23, 2011, but also represents that an ex parte hearing respecting the emergency PFA petition was conducted on June 24, 2011. Id.
On June 26, 2011, Wife filed a criminal complaint alleging that Oakes had violated the aforementioned emergency PFA order by texting Wife:
[Wife] . . . related that her husband, [Oakes], had contacted her by way of text messaging. The victim related that the text messaging started on 06/26/11 at 1127 hours and stopped on 06/2[6]/11 at approx. 1315 hours. [Wife] related she had filed an Emergency PFA against her husband on 06/23/11 and subsequently the order was served. The emergency PFA ordered [Oakes] to refrain from having any contact with the victim.See Affidavit of Probable Cause, 6/26/2011, at 1 (unpaginated). An arrest warrant was issued for Oakes the same day. On June 27, 2011, Wife filed a petition seeking a temporary PFA order. See Wife's Temporary PFA Petition, 6/27/2011, at 1-7 (partially unpaginated). That same day, the PFA court entered a temporary PFA order in Wife's favor. See Temporary PFA Order, 6/27/2011, at 1-4. Oakes was served with notice of this temporary PFA order by the Chemung County Sheriff's Department in New York, apparently while he was incarcerated in that state on unrelated crimes. See Sheriff's Service Process Receipt, and Affidavit of Return, 7/12/2011, at 1-2 (unpaginated); see also Oakes' Brief at 4.
On or about March 21, 2013, Oakes turned himself in to Pennsylvania authorities. Oakes' Brief at 5. On April 11, 2013, Oakes pleaded guilty to ICC for violation of a PFA order. See 23 Pa.C.S. § 6114(a). The PFA court sentenced Oakes to six months of probation, and ordered Oakes "to submit to random drug testing and to attend an anger management program[.]" PFA Court Opinion ("P.C.O."), 6/28/2013, at 1. On May 8, 2013, Oakes filed a "Motion to Withdraw Guilty Plea" alleging that his "guilty plea was not knowing, intelligent, and voluntary because the . . . protection from abuse order had expired when the acts alleged were committed by [Oakes]." Id. at 2. That same day, Oakes also filed a notice of appeal to this Court. "A hearing upon the 'Motion to Withdraw Guilty Motion' was scheduled for May 23, 2013[,] before the Honorable Nathaniel C. Nichols." Id. On May 23, 2013, Judge Nichols dismissed the motion for "lack of prosecution" when Oakes and counsel did not appear at the hearing.
On May 28, 2013, the PFA court directed Oakes to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). On June 18, 2013, Oakes timely complied. On June 28, 2013, the PFA court filed a Rule 1925(a) opinion.
Oakes raises the following issues for our consideration:
1. Was [Oakes'] Guilty Plea made knowingly, intelligently, or voluntarily when [Oakes] was unaware that there was no legal or factual basis to support the allegation of a violation of a PFA [order] due to the Emergency PFA Order having expired?Oakes' Brief at 2. "In the context of a [PFA] order, we review the trial court's legal conclusions for an error of law or [an] abuse of discretion." Commonwealth v. Walsh, 36 A.3d 613, 617-18 (Pa. Super. 2012) (citing Stamus v. Dutcavich, 938 A.2d 1098, 1100 (Pa. Super. 2007)) (brackets in original). Before contending with the merits of the issues raised by Oakes, we must address deficiencies that we have discovered in the certified record. Specifically, the dispositive fact in this case, which is the date upon which Wife's emergency order took effect and, subsequently, the date upon which it expired, is not clear from our review of the certified record, or from our reading of the PFA court's Rule 1925(a) opinion.
2. Was [Oakes] denied his right to effective assistance of counsel when [trial counsel] had no reasonable or strategic basis for her failure to investigate the record and review the various [PFA orders] filed by [Wife] against [Oakes] to
determine whether there was a factual or legal basis to support a charge of [ICC]?
3. Were [Oakes'] Due Process rights denied when there was a breakdown in the processes at the Delaware County Office of Judicial Support such that it failed to notify [Oakes] and his attorney of the May 23, 2013 hearing date?
4. Was [Oakes] deprived of the opportunity to prosecute his Motion to Withdraw Guilty Plea by presenting an accurate relation of the record that had previously been so confused that it resulted in [Oakes] being charged with [ICC], which [Oakes] did not commit due to a lack of legal or factual basis for the charge?
According to the relevant statutory dictates, an emergency PFA order expires "at the end of the next business day the court deems itself available." See 23 Pa.C.S. § 6110(b). Therefore, an emergency PFA order entered on Thursday, June 23, 2011, would expire at the end of business on Friday, June 24, 2011. An emergency PFA petition entered on Friday, June 24, 2011, would not expire until the end of business on Monday, June 27, 2011. Id. The temporary PFA order in this case was not filed until Monday, June 27, 2011. As Oakes' allegedly violative conduct took place on Sunday, June 26, 2011, the timing of the emergency PFA order in this case is vitally important to our disposition. If the emergency PFA order expired on Friday, June 24, 2011, as Oakes argues, the underlying factual basis for his guilty plea would be undercut. Unfortunately, there is significant confusion regarding Wife's emergency PFA order.
There is nothing to indicate that the courts of common pleas in Delaware County were "unavailable" on Friday, June 24, 2011.
As previously stated, the only documentation related to Wife's emergency PFA order in the certified record is a photocopy attached to Oakes' "Motion to Withdraw Guilty Plea." That photocopy is contradictory, as it lists June 23, 2011, as the filing date, but also represents that the magisterial district judge did not hold an ex parte hearing on Wife's emergency PFA petition until June 24, 2011. On its face, the document appears to suggest that the emergency PFA order was granted before the court conducted an ex parte hearing on Wife's allegations. Oakes claims that the June 24, 2011 date on Wife's emergency PFA petition was "doctored," arguing that there are "serious questions as to the authenticity of that handwritten date." Oakes' Brief at 10. We are constrained to countenance Oakes' misgivings, especially in the absence of an original document. It does appear as though the date of the ex parte hearing originally was listed on the document as June 23, 2011. The PFA court's Rule 1925(a) opinion does not address this factual discrepancy. Rather, it merely references Wife's "June 23, 2011 temporary protection from abuse order" in passing. P.C.O. at 1 -2. To be clear, there is nothing in the certified record suggesting that Wife was granted a temporary PFA order prior to June 27, 2011. Moreover, the substance of Wife's June 27, 2011 temporary PFA petition alleges that "[a] temporary PFA was put into place on Saturday, June 25[.]" See Wife's Temporary PFA Petition, 6/27/2011, at 4 (partially unpaginated). There also is nothing to support Wife's version of events in the certified record.
By our calculation, the parties and the PFA court have advanced three potential dates, and two potential formats, describing the PFA order of which Oakes was found to be in contempt. The certified record simultaneously confirms and refutes these competing descriptions. We simply are unable to determine, based upon the incomplete record in this case, when Wife's emergency PFA order actually was filed. Furthermore, we have significant doubts regarding the actual format of the at-issue PFA order.
"It is within the power of an appellate court of this Commonwealth to remand a case, on its own initiative, with directions that omissions from the record be corrected and a supplemental record be certified and transmitted." Commonwealth v. Jackson, 506 A.2d 885, 887 (Pa. 1986) (citing Pa.R.A.P. 1926); see Commonwealth v. Doranzo, 455 A.2d 708, 709-10 (Pa. Super. 1983) (remanding to trial court for a new hearing and creation of a "proper record" where original record was "carelessly developed" such that it supported neither the defendant nor the Commonwealth's version of events). Furthermore, in relevant part, Pa.R.A.P. 1926 provides as follows:
Rule 1926. Correction or Modification of the Record.Pa.R.A.P. 1926 (emphasis added).
(a) If any difference arises as to whether the record truly discloses what occurred in the trial court, the difference shall be submitted to and settled by that court after notice to the parties and opportunity for objection, and the record made to conform to the truth.
(b) If anything material to a party is omitted from the record by error, breakdown in processes of the court, or accident or is misstated therein, the omission or misstatement may be corrected by the following means:
(1) by the trial court or the appellate court upon application or its own initiative at any time; in the event of correction or modification by the trial court, that court shall direct that a supplemental record be certified and transmitted if necessary . . . .
Consequently, we are constrained to remand this case for a new hearing and the creation of a proper record by the PFA court. We specifically direct the PFA court to reach a factual determination, supported by the evidence of record, as to the specific date, if any, that Wife's first PFA order took effect. Additionally, we direct the PFA court to reach a factual determination, supported by the evidence of record, as to what kind of PFA order initially was entered for Wife's benefit. We order that the trial court complete this fact-finding within ninety (90) days of the entry of this memorandum.
Case remanded for proceedings consistent with this memorandum. Jurisdiction relinquished.
Gantman, J. concurs in the result. Judgment Entered. __________ Joseph D. Seletyn, Esq.
Prothonotary