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Commonwealth v. Noss

Superior Court of Pennsylvania

May 9, 2017

COMMONWEALTH OF PENNSYLVANIA
v.
JOSEPH MICHAEL NOSS, Appellant

         Appeal from the Order Entered December 15, 2015 In the Court of Common Pleas of Luzerne County Criminal Division at No(s): CP-40-MD-0001045-2015

          BEFORE: LAZARUS, J., STABILE, J., and DUBOW, J.

          OPINION

          DUBOW, J.

         Appellant, Joseph Michael Noss, appeals from the December 15, 2015 Order, which granted the Commonwealth's Petition for Writ of Certiorari and vacated Appellant's guilty plea. Upon careful review, we affirm.

         On July 16, 2015, Appellant was charged with Aggravated Assault, a felony, Resisting Arrest, Simple Assault, and Harassment[1] following allegations that he engaged in a violent argument with his paramour. Assistant District Attorney ("ADA") Cara Solimine signed the Complaint approving the charges. Police Officer Kara Kroll and Police Officer Joseph Koch signed the Complaint as co-affiants.

         The Magistrate's Office initially scheduled the preliminary hearing on July 22, 2015. On that date, Magisterial District Judge ("MDJ") Donald Whittaker continued the hearing until August 25, 2015, at the request of the Nanticoke Police Chief. ADA Solimine was present.

         On August 20, 2015, ADA Solimine requested a continuance due to a conflict in her schedule. MDJ Whittaker granted the continuance and rescheduled the hearing to September 2, 2015, at 2:15 PM.

         On September 2, 2015, at approximately 1:40 PM, Assistant Public Defender ("PD") John Donovan informed MDJ Whittaker that the parties had an agreement to present to MDJ Whittaker. PD Donovan, Officer Kroll, and Appellant were present. ADA Solimine was not present and no other ADA was present.

         PD Donovan informed MDJ Whittaker that there was an agreement to allow Appellant to plead guilty to a Disorderly Conduct charge, a misdemeanor of the third degree, and to sentence Appellant to time-served. MDJ Whittaker asked Officer Kroll if she agreed to the "reduced charge" and she responded in the affirmative. The parties did not address whether the District Attorney's Office authorized the guilty plea to a "reduced charge." MDJ Whittaker accepted the agreement. Appellant pleaded guilty only to Disorderly Conduct as a misdemeanor of the third degree[2], and MDJ Whittaker sentenced Appellant to time-served.

         At approximately 2:15 PM, the scheduled time for the preliminary hearing, both ADA Solimine and Officer Koch arrived to the MDJ's office, where they were informed that the matter was complete.

         On September 18, 2015, the Commonwealth filed a Petition for Writ of Certiorari, or in the alternative a Notice of Appeal.

         On December 15, 2015, after a review of the record, a hearing, and oral argument, the trial court granted the Petition for Writ of Certiorari, vacated Appellant's guilty plea, and reinstated all charges.

         Appellant timely appealed. Both Appellant and the trial court complied with Pa.R.A.P. 1925.

         Appellant raises the following issues on appeal:

1. Whether the trial court erred in finding [Appellant] pled guilty to a "reduced charge" before the Magisterial District Judge where the designee of the Commonwealth withdrew charges and amended the Complaint to add a charge of ...

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