Opinion
J-S52008-17 No. 448 MDA 2017
08-23-2017
COMMONWEALTH OF PENNSYLVANIA v. NEIL EUGENE SHUE, Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence January 30, 2017 in the Court of Common Pleas of York County, Criminal Division, No(s): CP-67-CR-0008298-2015 BEFORE: GANTMAN, P.J., LAZARUS and MUSMANNO, JJ. MEMORANDUM BY MUSMANNO, J.:
Neil Eugene Shue ("Shue") appeals from the judgment of sentence entered following his conviction of driving under the influence of alcohol or controlled substance (general impairment) ("DUI"). We affirm.
On October 24, 2015, Shue was arrested and charged with DUI. Following a bench trial on stipulated facts, the trial court found Shue guilty of DUI, and sentenced him to six months of intermediate punishment, "to include 5 days of house arrest and 15 days of alcohol monitoring." N.T., 1/30/17, at 3. Shue filed a post-sentence Motion, requesting that his sentence be stayed pending appeal, and that bail be set. The trial court granted Shue's Motion. Thereafter, Shue filed the instant timely appeal, followed by a court-ordered Pa.R.A.P. 1925(b) Concise Statement of matters complained of on appeal.
Shue now presents the following claim for our review:
Whether the trial court erred in denying [] Shue's Motion to Dismiss Pursuant to Pa.R.Crim.P. 600 where, over a period of 464 days—only six of which are excludable—the Commonwealth made only two half-hearted attempts to bring Shue to trial: 1) listing the case for trial but canceling it to make way for a jury trial that ended up being a guilty plea; and 2) emailing the trial court's chambers four days before the Rule 600 term elapsed to request a trial date[?]Brief for Appellant at 4.
Shue claims that the trial court improperly denied his Rule 600 Motion to Dismiss, where the Commonwealth "showed only two half-hearted efforts to try this case in more than a year's time," and had failed to carry its burden in establishing due diligence. Id. at 19. Regarding the Commonwealth's efforts to bring Shue to trial, Shue claims that on July 27, 2016, he was in court and ready to proceed. Id. at 20. At that time, the clerk of the Honorable Christy H. Fawcett ("Judge Fawcett") explained that she and Judge Fawcett were never notified that the trial would proceed on that date. Id. Only two matters were on Judge Fawcett's schedule for that date: a bench warrant, and a jury trial in "the Servas case[.]" Id. at 21. Shue claims that the Commonwealth should have been aware that the Servas case would not go to trial. Id. According to Shue, Servas's counsel previously had informed the Commonwealth that his client would plead guilty in exchange for no jail time. Id. The prosecutor should have known that there would be no trial, as the Commonwealth intended to make such an offer to Servas. Id. In fact, once the offer was extended, no trial took place. Id. Shue also directs our attention to the fact that the Commonwealth rejected two proposed rescheduled trial dates, based upon its preference for a different judge. Id. at 22. Under these circumstances, Shue argues, the Commonwealth did not exercise due diligence. Id.
Regarding the second delay, Shue states that the Commonwealth requested a trial date on October 24, 2016. Id. at 23. However, when informed that trial could not be scheduled until January 2017, the Commonwealth failed to inform the trial court that the proposed date would be beyond the time allowed under Rule 600. Id. Shue argues that "it can hardly be seen as due diligence to wait until four days before the Rule 600 term elapses to request a trial date, and then do nothing when told the next available date is in three months." Id. According to Shue, "with the slightest exertion, the Commonwealth could have had the case tried in a timely fashion." Id. at 24. Shue also disputes the Commonwealth's explanation that the United States Supreme Court's decision in Birchfield v. North Dakota , ___ U.S. ___, 136 S. Ct. 2160, 195 L. Ed. 2d 560 (2016), which changed the proceeding from a jury trial to a bench trial, caused a delay. Brief for Appellant at 25.
In Birchfield , the United States Supreme Court held that "a breath test, but not a blood test, may be administered as a search incident to a lawful arrest for drunk driving." Birchfield , 136 S. Ct. at 2185, 195 L. Ed. 2d at 588. The Commonwealth asserts that the Birchfield decision "resulted in a surplus of motions being filed to withdraw guilt[y] pleas previously entered[,] and the filing of new motions to suppress, all requiring consideration and court time from the bench." Commonwealth's Brief at 8 n.2. --------
In its Opinion, the trial court set forth the relevant history underlying this appeal and the applicable law, and concluded that Shue's claim lacks merit. See Trial Court Opinion, 4/26/17, at 5-11; see also id. at 1-5 (detailing the relevant history underlying the appeal). We agree with the reasoning of the trial court, as set forth in its Opinion, and affirm on this basis with regard to Shue's claim.
Judgment of sentence affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 8/23/2017
Image materials not available for display.