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[U] Commonwealth v. Wise

Superior Court of Pennsylvania

February 11, 2014

COMMONWEALTH OF PENNSYLVANIA Appellee
v.
KENNETH A. WISE Appellant

NON-PRECEDENTIAL DECISION

Appeal from the Order April 8, 2013 In the Court of Common Pleas of Dauphin County Criminal Division at No(s): CP-22-SA-0000036-2008

BEFORE: MUNDY, J., WECHT, J., and FITZGERALD, J. [*]

MEMORANDUM

MUNDY, J.

Appellant, Kenneth A. Wise, appeals from the April 8, 2013 order granting the Commonwealth's motion to quash Appellant's summary appeal as untimely filed. After careful review, we reverse and remand for a trial de novo.

The trial court summarized the relevant factual and procedural history as follows.

A summary trial was held [on] February 13, 2008 before Magisterial District Judge Barbara Piank, and fines in the amount of $500 and costs in the amount of $90 were assessed against Appellant [for abandoning his vehicle on a highway, a violation of the motor vehicle code]. On February 14, 2008, Appellant made a payment of $100 toward his penalties. Appellant appealed to the Dauphin County Court of Common Pleas on February 15, 2008. A trial de novo, at which Appellant failed to appear, was held on May 27, 2008 before Judge Joseph H. Kleinfelter and costs in the amount of $500 were imposed against Appellant.
On April 3, 2013, Appellant filed a motion to set aside his summary conviction, in which he claimed that he never received notice of the May 27, 2008 summary appeal hearing and was unaware of his summary appeal conviction until March 21, 2013. Appellant claimed that he only became aware of his conviction after he received a letter from Mr. Brendon Bellinger at the Dauphin County Adult Probation and Parole Office stating that he owed outstanding fines and costs. In his motion, Appellant also asserted that he had a valid defense to the charges. On April 5, 2013, [the trial court] issued a Rule to Show Cause on the Commonwealth.
On April 4, 2013, the Commonwealth filed a Motion to Quash Appellant's Summary Appeal because Appellant failed to appeal timely. On April 8, 2013, after a review of the record, [the trial court] granted the Commonwealth's Motion to Quash.

Trial Court Opinion, 6/25/13, at 2 (footnotes omitted). On May 8, 2013, Appellant filed a timely notice of appeal.[1]

On appeal, Appellant raises the following issue for our review.
[1.] Whether or not the trial court denied [] Appellant due process when he was convicted of a certain summary offense upon his failure to appear at his summary appeal hearing where he was not notified of the scheduled date of said hearing[?]

Appellant's Brief at 4.

Our review is guided by the following.

Our standard of review of a trial court's adjudication entered following a de novo trial on a summary offense is limited to whether the trial court committed an error of law and whether the findings of the trial court are supported by competent evidence. Commonwealth v. Askins, 761 A.2d 601, 603 (Pa.Super. 2000). The adjudication of the trial court will not be disturbed on appeal absent a manifest abuse of discretion. Id. "An abuse of discretion exists when the trial court has rendered a judgment that is manifestly unreasonable, arbitrary, or capricious, has failed to apply the law, or was motivated by partiality, prejudice, bias, or ill will." Commonwealth v. Holder, [] 765 A.2d 1156 ([Pa. Super.] 2001).

Commonwealth v. Parks, 768 A.2d 1168, 1171 (Pa.Super. 2001).

Instantly, the crux of Appellant's argument is that the trial court erred when it denied his motion to set aside his summary conviction on the basis that he never received notice of the hearing. Appellant's Brief at 9. Specifically, Appellant argues that he "filed a summary appeal to the adjudication of the Magisterial District Judge to the trial court and waited for his day in court through a summary appeal hearing." Id. Alleging he never received notice of the May 27, 2008 hearing, Appellant asserts he was denied due process of law.[2] Id. The Commonwealth, however, asserts that Appellant was notified on March 1, 2008 of the May 27, 2008 date of his summary appeal trial. Commonwealth's Brief at 8.

In support of his argument Appellant cites to Parks, wherein this Court held that Parks was denied his fundamental right to due process when Parks was not provided with a copy of a rescheduling order for his trial de novo. Parks, supra. Specifically, the Parks Court, citing to Pennsylvania Rule of Criminal Procedure 9025, currently Pa.R.Crim.P. 114, held that because the clerk of courts failed to enter a copy of Parks rescheduling order on the docket, there was no evidence of the existence of the order or notice to Parks. The Park s Court held as follows.

As our Supreme Court has made abundantly plain: "[T]he Clerk of Courts has a mandatory duty [under this rule], to furnish a copy of orders by mail or personal delivery to each party or attorney." Commonwealth v. Baker, 547 Pa. 214, 222, 690 A.2d 164, 167 (1997). As our Court has also very recently reminded: "In a criminal case, the date of entry of an order is the date the clerk of courts enters the order on the docket, furnishes a copy of the order to the parties, and records the time and manner of notice on the docket." Commonwealth v. Jerman, 762 A.2d 366, 368 (Pa.Super. 2000) (emphasis supplied), citing Rule 9025.

Id.

Rule 114, in its current version, and the version enacted in 2008 at the time of Appellant's summary appeal, states as follows.

Rule 114. Orders and Court Notices: Filing; Service; and Docket Entries

(A) Filing

(1) All orders and court notices promptly shall be transmitted to the clerk of courts' office for filing. Upon receipt in the clerk of courts' office, the order or court notice promptly shall be time stamped with the date of receipt.
(2) All orders and court notices promptly shall be placed in the criminal case file.
(B) Service

(1) A copy of any order or court notice promptly shall be served on each party's attorney, or the party if unrepresented.
(C) Docket Entries

(1) Docket entries promptly shall be made.
(2) The docket entries shall contain:
(a) the date of receipt in the clerk's office of the order or court notice;
(b) the date appearing on the order or court notice; and
(c) the date of service of the order or court notice.
(D) Unified Practice. Any local rule that is inconsistent with the provisions of this rule is prohibited, including any local rule requiring a party to file or serve orders or court notices.

Pa.R.Crim.P. 114. (emphasis added).

As noted, Appellant filed a notice of appeal from the magistrate's summary conviction on February 15, 2008. The record is devoid of a copy of the notice of the summary appeal hearing, or any evidence of it being entered on the docket or sent to Appellant. Rather, the docket entry after Appellant's February 10, 2008 notice of appeal is the summary appeal trial on May 27, 2008. Specifically, the docket entries are as follows.

Notice of Summary Appeal 02/15/2008
Summary Appeal Trial Scheduled 05/27/2008
Guilty 05/27/2008
Order- Sentence/Penalty Imposed 05/27/2008
DL-21S to be Prepared 06/03/2008
Certification Sent to State 06/03/2008
Penalty Assessed 06/03/2008
Motion of Defendant to Set Aside Summary Conviction 04/03/2013

Court of Common Pleas of Dauphin County Docket Number: CP-22-SA-0000036-2008. Based on the evidence in the certified record, we are constrained to conclude Appellant was not provided notice of the May 27, 2008 summary trial. Specifically, the docket entries relevant to the May 27, 2008 summary trial do not include any notice of the hearing date sent to Appellant, nor do they document service of the disposition in contravention of Rule 114. Additionally, the transcript from the May 27, 2008 trial de novo reveals that when Appellant failed to appear, the trial court asked the Commonwealth whether Appellant had been notified. On the record, the Commonwealth stated, "[s]ent March 1st, 2008. That is the address on the notice of appeal." N.T., 5/27/08, at 2. The Commonwealth neither produced a record of said notice, nor included it in the record. It is not clear from the record what document the Commonwealth was referencing, but in the absence of competent docket entries, the Commonwealth's testimony does not satisfy the requirement that Appellant was served with notice.

Instantly, because notice of Appellant's May 27, 2008 hearing was not entered on the docket, and there is no record that Appellant received notice of the May 27, 2008 trial de novo, we conclude Appellant is entitled to relief. Further, as no hearing was held on Appellant's April 3, 2013 motion to set aside his summary conviction, there is no evidence in the record that Appellant was ever notified of the May 27, 2008 summary appeal hearing, or that said notice was made a part of the certified record. Therefore, similar to the circumstances in Parks, we are constrained to agree with Appellant that the trial court erred in granting the Commonwealth's motion to quash Appellant's appeal.

Accordingly, we reverse the trial court's April 8, 2013 order and remand for a trial de novo on Appellant's summary conviction.

Order reversed.

Case remanded. Jurisdiction relinquished. Judgment Entered.

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