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04/18/97 COMMONWEALTH PENNSYLVANIA v. FREDERICK

April 18, 1997

COMMONWEALTH OF PENNSYLVANIA
v.
FREDERICK CECILO SISNEROS, APPELLANT



Appeal from JUDGMENT OF SENTENCE November 17, 1994, in the Court of Common Pleas of Lancaster County, Criminal Division, Nos. 796-90, 900-90, 947-90, 2477-90, 2821-90, 274-91, 275-91, 276-91, 277-91, 279-91, 280-91, 283-91, 284-91, 285-91, 286-91, 287-91, 327-91. Before ECKMAN, J.

Before: Cirillo, P.j.e.; Johnson and Olszewski, JJ. Opinion BY Olszewski, J. Concurring And Dissenting Opinion BY Johnson, J.

The opinion of the court was delivered by: Olszewski

OPINION BY OLSZEWSKI, J.:

FILED APR 18 1997

Just twenty-five years old, appellant Frederick Cecilo Sisneros is a study in our state's criminal Justice system. Sisneros's odyssey began on March 12, 1991, when he pled guilty to eighteen indictment numbers containing fourteen counts of burglary, seventeen counts of theft, ten counts of criminal conspiracy, three counts of criminal mischief and one count of criminal trespass. In May of 1991, Sisneros was sentenced to ten to twenty years imprisonment. Subsequently, Sisneros appealed to this Court alleging that his sentence was defective and that trial counsel was ineffective. On June 29, 1992, this Court vacated the judgment of sentence and remanded for an evidentiary hearing. After the evidentiary hearing was completed, Sisneros was resentenced to his original term of incarceration. Sisneros next filed another appeal to this Court alleging that his guilty plea was defective in that he was never informed that the sentences for his crimes could be imposed consecutively. On May 31, 1994, this Court agreed with Sisneros and vacated appellant's judgment of sentence and remanded for a new trial.

On November 4, 1994, Sisneros filed a motion to dismiss alleging that the Commonwealth had failed to bring him to trial within the time specified in Pennsylvania Rule of Criminal procedure 1100. Four days later, this motion was denied by the trial court. On November 17, 1994, pursuant to a negotiated agreement with the Commonwealth, Sisneros again pled guilty to the numerous counts of burglary, theft, criminal conspiracy, criminal mischief and criminal trespass. On the same day, he was sentenced to six to twenty years imprisonment. Sisneros failed to file a direct appeal.

On March 29, 1995, Sisneros, acting pro se, filed a Writ of Habeas Corpus alleging that his earlier Rule 1100 argument possessed merit and that his trial counsel was ineffective in failing to file an appeal on this issue. Said petition was denied by the trial court on August 21, 1995. Sisneros, still acting pro se, next filed an appeal to this Court. Once again, this Court granted relief to appellant. In a memorandum decision, a panel of this Court decided to "grant [Sisneros] the right to appeal nunc pro tunc and remand to the trial court for the appointment of counsel." Commonwealth v. Sisneros, 453 Pa. Super. 686, 683 A.2d 314 (Pa. Super., 6/24/96). On October 10, 1996, new counsel was, in fact, appointed and the matter is now before this Court for Disposition. *fn1

On appeal, Sisneros alleges solely that his guilty plea was made involuntarily due to trial counsel's failure to protect his rights under Pa.R.Crim.P. 1100. The Commonwealth responds by contending that Sisneros's claim must fail because a guilty plea constitutes a waiver of all Rule 1100 violations. In resolving this matter, we find this Court's decision in Commonwealth v. Gibson, 385 Pa. Super. 571, 561 A.2d 1240 (1989), to be most informative. There, we stated:

A plea of guilty effectively waives all nonjurisdictional defects and defenses. Commonwealth v. Coles, 365 Pa. Super. 562, 530 A.2d 453 (1987). As such, this Court has unequivocally held that an irregularity in proceedings prior to a plea of guilty, including an alleged violation of Rule 1100, would be reviewable to the extent that it effected the voluntariness of the guilty plea itself. Commonwealth v. Riviera, 254 Pa. Super. 196, 385 A.2d 976 (1978). Accordingly, although a violation of Rule 1100 would normally constitute reversible error, said violation may not be challenged where it does not effect the voluntariness of the plea. Id.

Where, however, the appellant can demonstrate that he did not knowingly waive his right to challenge said violation, and if he can demonstrate that the violation of Rule 1100 induced his guilty plea, he may be entitled to pursue his claim. Commonwealth v. Harris, 492 Pa. 381, 424 A.2d 1242 (1981). As such, the appellant may allege that the waiver resulted from the ineffective assistance of trial counsel. Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987).

Pa. Super. at , 561 A.2d at 1242. Further, the standard of review for claims of ineffective assistance of counsel is well-settled. In order to prevail, appellant must demonstrate that the underlying claim is of arguable merit, that counsel's actions had no reasonable basis designed to effectuate appellant's interests and that counsel's actions prejudiced appellant. See, e.g., Commonwealth v. Correa, 444 Pa. Super. 621, 664 A.2d 607, 609 (1995); Commonwealth v. Howard, 538 Pa. 86, , 645 A.2d 1300, 1304 (1994).

Instantly, Sisneros's underlying claim may very well be of arguable merit. Pa.R.Crim.P. 1100(d) (2) provides:

When an appellate court has remanded a case to the trial court, if the defendant is incarcerated on that case, trial shall commence within 120 days after the date of remand as it appears in the appellate court docket. If the defendant has been released on bail, trial shall commence within 365 days of the termination order.

In the case at hand, there is no question that Sisneros was incarcerated during the entire period leading up to his guilty plea. Accordingly, we must determine whether more than 120 days had lapsed before his plea was entered. Id. There is, however, great confusion surrounding "the date of remand" in this case. This Court entered its decision, which reversed Sisneros's judgment of sentence and ordered the case remanded, on May 31, 1994. Nevertheless, the date on which the appellate court enters its order is not the "remand date." Commonwealth v. Hall, 352 Pa. Super. 569, 508 A.2d 1216 (1986). Instead, "the remand date" is the date on which the prothonotary actually remands the record to the trial court. Id. How do we determine this date? Rule 1100(d) (2) states that the date must be found on the appellate docket. Moreover, the comment to Pennsylvania Rule of Appellate Procedure 2571, which also speaks to this issue, reads:

In order that the 120 day retrial provision of Pa.R.Crim.P. 1100 may be applied, and at the request of the Criminal Procedural Rules Committee, these rules have been added to require that the date of remand of the record from the appellate court be noted on the appellate docket and a notation of that date be physically incorporated into the remanded record. The time for retrial could then run from the date of remand.

Instantly, the appellate court docket, which is included in the official record, does not contain a date of remand. The record does contain, however, a "Certificate of Contents of Remanded Record and Notice of Remand under Pennsylvania Rules of Appellate Procedure 2571 and 2572." This Certificate, which is signed by the Superior Court's prothonotary, contains a line which reads, "The date on which the record is remanded is: ." What is placed on the blank space following this line is most suspect. "July 5, 1994" is typed onto the line. This date, however, has been crossed out by pen ...


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