Opinion
J-S17032-14 No. 1717 MDA 2013
03-28-2014
COMMONWEALTH OF PENNSYLVANIA Appellee v. SAMUEL SANTIAGO Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence September 6, 2013
In the Court of Common Pleas of Lancaster County
Criminal Division at No(s): CP-36-CR-0004103-2010
BEFORE: GANTMAN, P.J., ALLEN, J., and LAZARUS, J. MEMORANDUM BY GANTMAN, P.J.:
Appellant, Samuel Santiago, appeals from the judgment of sentence entered in the Lancaster County Court of Common Pleas, following his jury trial convictions for rape of a child, involuntary deviate sexual intercourse with a child ("IDSI"), indecent assault, indecent exposure, and corruption of minors. We affirm.
18 Pa.C.S.A. §§ 3121(c); 3123(b); 3126(a)(7); 3127(a); 6301(a)(1), respectively.
In its opinion, the trial court fully sets forth the relevant facts and procedural history of this case. Therefore, we have no reason to restate them. Appellant raises one issue for our review:
WHETHER THE TRIAL COURT ABUSED ITS DISCRETION BY REFUSING APPELLANT A REASONABLE CONTINUANCE OF(Appellant's Brief at 4).
THE RETRIAL IN THIS CASE IN ORDER TO PERMIT NEW COUNSEL TO REPRESENT HIM FOLLOWING A BREAKDOWN OF COMMUNICATIONS AND IRRECONCILABLE DIFFERENCES BETWEEN HIM AND DEFENSE COUNSEL DURING THE FIRST TRIAL, THEREBY DEPRIVING HIM OF HIS CONSTITUTIONAL RIGHT TO COUNSEL OF CHOICE?
After a thorough review of the record, the briefs of the parties, the applicable law, and the well-reasoned opinion of the Honorable David L. Ashworth, we conclude Appellant's issue merits no relief. The trial court opinion comprehensively discusses and properly disposes of the question presented. ( See Trial Court Opinion, filed October 18, 2013, at 4-13) (finding: trial court held hearing prior to retrial regarding Appellant's alleged dissatisfaction with initial trial counsel; court addressed Appellant's concerns related to number of witnesses counsel called at initial trial; court highlighted counsel's experience and emphasized that retaining initial trial counsel, who was familiar with all facts of Appellant's case, would best serve Appellant's interests; record lacks evidence of hostility, irreconcilable differences, or communication difficulties between Appellant and counsel which would prevent effective representation; at conclusion of hearing, Appellant expressed desire to proceed with initial counsel at retrial; additionally, Appellant made no formal written or oral motion for continuance; Appellant's request for new counsel for retrial appeared to be tactical decision to delay justice; court did not deny Appellant opportunity to exercise right to choose counsel, where Appellant had over two years to retain counsel of his choosing prior to initial trial; effective and efficient administration of justice required retrial to take place as scheduled; Appellant presented no compelling reason to delay retrial). Accordingly, we affirm on the basis of the trial court's opinion.
We are mindful of the United States Supreme Court's recent decision in Alleyne v. United States, ___ U.S. ___, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013), in which the Court expressly held that any fact increasing the mandatory minimum sentence for a crime is considered an element of the crime to be submitted to the fact-finder and found beyond a reasonable doubt. Id. at ___, 133 S.Ct. at 2155, 2163, 186 L.Ed.2d at ___. Here, the court imposed the mandatory minimum sentence under a prior version of 42 Pa.C.S.A. § 9718 in effect until January 1, 2007 (providing mandatory minimum sentence for defendant convicted of rape of child; or IDSI where victim is under 16 years of age) for Appellant's rape of a child and IDSI with a child convictions. That prior version of Section 9718 did not have subsection (c) (per the current version of the statute) under which the court now determines applicability of the mandatory minimum at sentencing by a preponderance of the evidence (arguably in violation of Alleyne ). In any event, we observe the Commonwealth presented evidence that the victim was under 13 years of age at the time Appellant committed the relevant offenses. By virtue of the jury's verdict convicting Appellant of rape of a child and IDSI with a child (both of which require a victim under 13 years of age), the jury determined beyond a reasonable doubt that Appellant committed offenses against a victim of such young age to warrant imposition of the relevant mandatory minimum sentences. See Commonwealth v. Watley, 81 A.3d 108 (Pa.Super. 2013) (en banc) (holding imposition of mandatory minimum sentence per 42 Pa.C.S.A. § 9712.1—mandating five year minimum sentence for defendant convicted of PWID when at time of offense defendant was in physical possession or control of firearm—was proper, where jury determined beyond reasonable doubt that appellant possessed firearms in connection with drugs). Therefore, we see no issue implicating the legality of Appellant's sentence. See Commonwealth v. Edrington, 780 A.2d 721 (Pa.Super. 2001) (explaining challenge to application of mandatory minimum sentence is non-waiveable challenge to legality of sentence which, assuming proper jurisdiction, this Court can raise sua sponte).
Judgment of sentence affirmed. Judgment Entered. __________
Joseph D. Seletyn, Esq.
Prothonotary
COURT OF COMMON PLEAS OF LANCASTER COUNTY, PENNSYLVANIA
CRIMINAL
COMMONWEALTH OF PENNSYLVANIA
v.
SAMUEL SANTIAGO
No. 4103-2010
OPINION SUR PA. R.A.P. 1925(a)
BY: ASHWORTH, J.,
Samuel Santiago has filed a direct appeal to the Superior Court of Pennsylvania from the judgment of sentence imposed on September 6, 2013. This Opinion is written pursuant to Rule 1925(a) of the Pennsylvania Rules of Appellate Procedure.
I. Background
On June 10, 2010, the Commonwealth charged Appellant with rape of a child, involuntary deviate sexual intercourse with a child, indecent assault, indecent exposure, and corruption of minors. These charges stemmed from sexual contact with the juvenile female victim, G.V. (DOB 10/06/95), from approximately 2000 through 2008, while the victim, G.V., and her sisters, F.V. and V.V., were cared for by Appellant and his wife, who acted as babysitters for the juvenile females.
18 Pa. C.S.A. § 3121(c), 18 Pa. C.SA § 3123(b), 18 Pa. C.S.A. § 3126(a)(7), 18 Pa. C.S.A. § 3127(a), and 18 Pa. C.SA § 6301(a)(1), respectively.
On November 9, 2012, this case went to trial before a jury. At the close of evidence, a mistrial was declared and the matter was scheduled for retrial.
On December 19, 2012, at the conclusion of a second jury trial, Appellant was found guilty of eight counts of sexual misconduct, committed upon the juvenile female victim, G.V. Sentencing was deferred pending a presentence investigation and an assessment by the Pennsylvania Sexual Offender Assessment Board.
On May 22, 2013, Appellant was sentenced to the following: Count 1, rape of a child, 10 to 20 years, costs and restitution of $2,667.33; Count 2, IDSI with a child, five to ten years, plus costs; Count 3, IDSI with a child, five to ten years, plus costs; Count 4, indecent assault, nine months to five years; Count 5, indecent exposure, 3 months to 12 months; Count 6, indecent exposure, 3 months to 12 months; Count 7, indecent exposure, 3 months to 12 months; Count 8, corruption of minors, dismissed; and Count 9, corruption of minors, merged for sentencing purposes. The sentences on Counts 1, 2 and 3 were imposed as mandatory sentences pursuant to 42 Pa. C.S.A. § 9718, and were imposed as consecutive sentences. On the remaining counts, each sentence was imposed as concurrent with the sentences on all other counts. The aggregate sentence was 20 to 40 years incarceration. Appellant was further found to be a sexually violent predator.
On May 31, 2013, Appellant filed a motion to modify sentence, requesting that his sentence be reduced to 15 to 30 years. On Count 1, rape of a child, Appellant was sentenced to 10 to 20 years' incarceration, pursuant to the mandatory minimum sentence proscribed by 42 Pa. C.S.A. § 9718(a)(3). This mandatory sentence for rape of a child under the age of 13 was made effective as of January 1, 2007, with the prior applicable mandatory minimum sentence being five to ten years. The amended Criminal Information filed against Appellant reflected a time-span between July 1, 2005, and August 31, 2008, for the rape of a child allegations. Appellant argued in his post sentence motion that the trial testimony was general and nonspecific regarding when the anal rape occurred. Accordingly, Appellant's position was that the testimony at trial was insufficient to warrant imposition of the most recent and most severe mandatory sentence required by § 9718 because conduct that occurred prior to January 1, 2007, would require imposition of a five year mandatory minimum sentence as opposed to the more severe ten year minimum.
On June 11, 2013, Appellant filed a supplement to his motion to modify sentence noting that a June 10, 2013, decision by the United States Supreme Court in Peugh v. United States, — U.S. — 133 S.Ct. 2072 (2013), could potentially be instructive to this Court's determination of Appellant's motion to modify. (See Appellant's Supplemental Motion to Modify at ¶ 4.) Peugh held that the ex post facto clause is violated when a defendant is sentenced under current guidelines that provide a higher range than what was in effect at the time of the offense. Id. at 2084.
The Commonwealth filed a response to Appellant's motions to modify sentence conceding that it could not point to any specific passage of trial testimony that would establish, with specificity, that the conduct alleged in Count 1, rape of a child ("insert[ing] his penis into the anus and/or mouth of the juvenile female G.V." at the First Street residence), occurred on or after January 1, 2007. (See Commonwealth's Response at ¶ 8.) Accordingly, on June 26, 2013, I entered an Order granting Appellant's motion to modify sentence as to Count 1 only, based upon the Commonwealth's failure to establish that the anal sex took place after January 1, 2007.
On September 6, 2013, Appellant was resentenced on the rape charge to a term of incarceration of 10 to 20 years. This term included the pre-2007 mandatory minimum of five to ten years under § 9718. The sentences on the other seven counts remained the same. Appellant, therefore, received an identical aggregate sentence of 20 to 40 years.
A timely notice of appeal to the Superior Court of Pennsylvania from the judgment of sentence was filed on September 23, 2013. Pursuant to this Court's directive, Appellant filed a statement of errors complained of on appeal, in which Appellant raises just one issue: whether this Court abused its discretion by refusing Appellant a reasonable continuance of the retrial in this case in order to permit him to obtain new counsel following a breakdown of communications and irreconcilable differences between him and defense counsel during the first trial, and failing to conduct an adequate and sufficient inquiry into such breakdown in order to afford Appellant the opportunity to establish the basis for the continuance request.
II. Discussion
Appellant contends that the Court's refusal to grant a continuance effectively deprived him of his state and federal constitutional right to choice of counsel. (See Statement of Errors at 1.) In fact, there was no written or oral request for a continuance by Appellant. Rather, following the mistrial in this case in November and the scheduling of the new trial for December 17, 2012, Attorney Heidi Eakin, present appellate counsel, came to chambers and informed me of Appellant's intention to fire his attorney, Alan Goldberg, and to replace him with Ms. Eakin. I informed Ms. Eakin that the retrial had been scheduled for December 17, 2012, upon agreement of counsel, and that no continuances would be granted. Ms. Eakin indicated at that time that she was not prepared to enter her appearance and assume representation of Appellant for a December 17, 2012, trial. (See Notes of Testimony (N.T.), November 30, 2012, Pretrial Hearing at 3.)
The Sixth Amendment to the Federal Constitution states: "In all criminal prosecutions, the accused shall enjoy ... the Assistance of Counsel for his defence." U.S. Const, amend. VI. Article I, Section 9 of the Pennsylvania Constitution states: "In all criminal prosecutions the accused hath a right to be heard by himself and his counsel. . . ." Pa. Const. Art. I, § 9.
In a subsequent conversation with defense counsel and the Commonwealth's attorney, I was informed that Appellant was dissatisfied with his representation and wished to discharge his attorney, Alan Goldberg, and retain new counsel. Accordingly, a hearing was scheduled for November 30, 2012, to address Appellant's representation at the retrial scheduled for December 17, 2012. At the conclusion of that hearing, Appellant indicated that it was his decision to proceed with Mr. Goldberg at the retrial on December 17, 2012. (N.T., November 30, 2012, Pretrial Hearing at 9.)
Appellant now contends that the Court failed to conduct an adequate and sufficient inquiry into the alleged breakdown of communications and irreconcilable differences between Appellant and his defense counsel during the first trial in order to afford Appellant the opportunity to establish the basis for his continuance request to obtain new counsel for the retrial. Appellant's arguments are without merit.
It is well-settled that "a defendant has a constitutional right to choose any lawyer he may desire, at his own cost and expense." Commonwealth v. Rucker, 563 Pa. 347, 349-50, 761 A.2d 541, 542 (2000). The right to counsel of one's choice "is particularly significant because an individual facing criminal sanctions should have great confidence in his attorney." Commonwealth v. McAleer, 561 Pa. 129,136, 748 A.2d 670, 673 (2000). This constitutional right is not absolute, however. It "must be exercised at a reasonable time and in a reasonable manner." Rucker, 563 Pa. at 350, 761 A.2d at 542-43 (quoting Commonwealth v. Novak, 395 Pa. 199, 214, 150 A.2d 102, 110 (1959)). The right of a defendant to choose his own counsel "must be weighed against and may be reasonably restricted by 'the state's interest in the swift and efficient administration of criminal justice.'" Id., 563 Pa. at 351, 761 A.2d at 543 (quoting Commonwealth v. Robinson, 468 Pa. 575, 592, 364 A.2d 665, 674 (1976)). A defendant "clearly cannot be permitted to utilize his right to choose his own counsel so as unreasonably to clog the machinery of justice and hamper and delay the state in its efforts to do justice with regard both to him and to others whose rights to a speedy trial may thereby be affected." Id. (quoting Robinson, 468 Pa. at 592-93, 364 A.2d at 674 (emphasis in original)).
The trial court is given discretion to determine whether it is appropriate to grant a continuance in order to allow a defendant to retain new counsel. Commonwealth v. Kittrell, 285 Pa. Super. 464, 467, 427 A.2d 1380, 1381 (1981). "There are no mechanical tests for deciding when a denial of a continuance is so arbitrary as to violate due process. The answer must be found in the circumstances present in every case, particularly in the reasons presented to the trial judge at the time the request is denied." Id. at 468, 427 A.2d at 1382 (citing Ungar v. Sarafite, 376 U.S. 575, 589 (1963) (Court held that, where defendant had been allowed five days to retain counsel, the refusal to grant a continuance on the day of the hearing to allow newly retained counsel time to prepare the case was not a denial of defendant's right to counsel)).
While there are no "mechanical tests," our Supreme Court has suggested factors that the court should consider in ruling on a request for a continuance to secure the services of private counsel. The court should determine whether the defendant "had been given some actual opportunity to obtain counsel of his own choice." Commonwealth v. Ross, 465 Pa. 421, 429, 350 A.2d 836, 840 (1976). In addition, the court should take into account actual or circumstantial evidence that the defendant sought to delay the proceedings in bad faith. Id. Applying these factors to the circumstances of this case, Appellant was not deprived of his constitutional right to a lawyer of his choosing.
This court concedes that "where a defendant is able to retain counsel of his choice, he must be given a reasonable opportunity to do so." Commonwealth v. Minifield, 310 A.2d 366, 369, 225 Pa. Super. 149, 155 (1973). Appellant had such an opportunity here but failed to pursue it at a reasonable time and in a reasonable manner. Thus, this court's action in refusing the continuance was not in error. Appellant had a period of over two years in which to choose counsel of his liking and in whom he could have trust and confidence. He was never denied the opportunity to exercise his right to choose his own counsel. Appellant knew in September 2012 that his case would be going to trial in November 2012. He could not wait until after a mistrial had been declared and a retrial scheduled to choose another attorney. This would be, under the circumstances in the instant case, "an unreasonable interpretation of his Constitutional rights and would shackle, not promote, justice." Novak, 395 Pa. at 214, 150 A.2d at 110.
Appellant's November 2012 trial took place almost two and one-half years after his arrest and over two years after he retained Attorney Goldberg, who signed Appellant's waiver of arraignment on September 14, 2010.
On three occasions prior to the November 2012 trial, firm trial dates were set by agreement of counsel - first, for the November 2011 criminal court term, then for the January 2012 term, and finally for the March 2012 term of court. All of these trial dates were continued at Appellant's request. However, not one continuance request was for Appellant to retain new counsel.
Here, Appellant hired a lawyer of his choosing, Attorney Goldberg - a very capable and experienced trial attorney. Attorney Goldberg was involved with this case almost from its inception. He represented Appellant from the time of his arraignment through the first trial. Attorney Goldberg was well prepared for trial and presented a thorough and effective defense at the first trial. He ably presented every factual argument and every legal argument which could be made. He fully discharged his duties responsibly, competently and diligently. There is no evidence or even suggestion that Attorney Goldberg was unable or unprepared to provide Appellant with the same at the retrial.
Appellant was given an opportunity at the pretrial hearing on November 30, 2012, to express any concerns he had about his attorney. He never indicated any dissatisfaction with Attorney Goldberg and never requested a continuance of the trial in order to secure new counsel. Nor was appellate counsel present at that hearing. When asked by the court to express his concerns about his representation, Appellant briefly stated: "1 want a fair trial, Your Honor. I just want to prove my innocence, and I want to use my witness that I have. That is all, Your Honor. I want a fair trial." (N.T., November 30, 2012, Pretrial Hearing at 7.) After assuring Appellant that a fair trial was what the court wanted as well, Appellant repeated: "I want to make sure it's a fair trial, show my innocence. That's it." (Id.)
Trial counsel suggested to the court that one of his client's concerns related to the number of witnesses called for the defense at the original trial. (N.T., November 30, 2012, Pretrial Hearing at 11.) I explained to Appellant at great length that the fairness of atrial is not determined by the number of witnesses on either side. (Id. at 11-12.) I detailed the particular jury instruction that is given regarding the quantity of witnesses versus the quality of witnesses. (Id.) It was further noted that cumulative testimony was not permitted in the first trial and would not be permitted in the retrial, and this further limits the number of witnesses at trial. (Id. at 12-13.) Appellant indicated that he understood these concepts regarding witnesses at trial. (Id. at 14.)
With regard to Appellant's insistence that a particular witness be called on his behalf (N.T., November 30, 2012, Pretrial Hearing at 7), the court explained that it is in the best interests of a criminal defendant to defer to his or her counsel's expertise and experience as to the suitability of a particular witness based on a number of factors explained to Appellant. (Id. at 14-15.) Appellant stated that he understood my explanations and had no further concerns or questions regarding his representation. (Id. at 16.)
I noted at the pretrial hearing that in order to ensure a fair trial for Appellant it was my job to make sure he was represented by an experienced, qualified attorney who was able to do the job properly. (See N.T., November 30, 2012, Pretrial Hearing at 9.) Therefore, it was in Appellant's best interests to continue with Attorney Goldberg. (Id. at 8.) I cautioned Appellant that he did not have to always agree with his counsel, nor did he have to like him. (Id. at 9.) See, generally, Morris v. Slappy, 461 U.S. 1,13-14 (1983) (Sixth Amendment right to counsel does not include right to a "meaningful [attorney-client] relationship" and therefore the Court found no abuse of discretion in the denial of defendant's request for a continuance where defendant's attorney was fully prepared and ready for trial). The record, however, establishes the absence of any evidence to support a conclusion that either hostility, irreconcilable differences or communication difficulties between Appellant and Attorney Goldberg prevented effective representation.
It is necessary in cases like this one to balance the desirability of permitting a defendant additional time to retain new private counsel against the equally desirable public need for the efficient and effective administration of justice. "[T]he accused's 'right to select his own counsel cannot be [exercised] in a manner that will obstruct an orderly procedure in courts of justice, and deprive such courts of the exercise of their inherent powers to control the same.'" Commonwealth v. Harding, 245 Pa. Super. 333, 336, 369 A.2d 429, 430 (1976) (quoting Lee v. United States, 235 F.2d 219, 221 (1956)). "The conclusion becomes inescapable, therefore, that although the right to counsel is absolute, there is no absolute right to a particular counsel." Commonwealth v. Minifield, 310 A.2d 366, 369, 225 Pa. Super. 149, 155 (1973) (quoting United States ex rel. Carey v. Rundle, 409 F.2d 1210, 1214-15 (3rd Cir. 1969)).
The efficient and effective administration of justice required that this matter proceed to retrial on December 17, 2012. The prejudice that would have resulted to all parties from a continuance of this matter following the mistrial was noted by the court. (See N.T., November 30, 2012, Pretrial Hearing at 6, 8.) The Commonwealth, the prosecuting officer and defense counsel were all prepared for the retrial. Most importantly, perhaps, the victim was prepared. This case involved the sexual assault of a child over an eight-year period. There had already been a delay of two and one-half years between Appellant's arrest and the time of trial. After enduring this delay, the victim in this case was subjected to hours of direct and cross examination at the first trial. Through no fault of her own, the first proceeding resulted in a mistrial which necessitated her taking the stand for a second time to reiive the horror of that prolonged assault yet again. To subject that child victim to another delay of six or eight or ten months would have been cruel and unnecessary. As the Supreme Court of the United States has remarked:
[I]n the administration of criminal justice, courts may not ignore the concerns of victims. Apart from all other factors, such a course would hardly encourage victims to report violations to the proper authorities; this is especially so when the crime is one calling for public testimony about a humiliating and degrading experience such as was involved here. . . .Morris, 461 U.S. at 14-15. Moreover, "trial judges necessarily require a great deal of latitude in scheduling trials. Not the least of their problems is that of assembling the witnesses, lawyers, and jurors at the same place at the same time, and this burden counsels against continuances except for compelling reasons." Commonwealth v. Sandusky, — A.3d —, 2013 WL 5477235 at *6 (Pa. Super. 2013) (quoting Morris, 461 U.S. at 11). There simply were no compelling reasons articulated by Appellant for delaying the retrial in this case.
The intention of the defendant in seeking a continuance is critical, and the trial court must determine if the motion for a continuance is a reasonable attempt to delay the proceedings for the legitimate purpose of obtaining new counsel, or if it is intended to obstruct the process of justice and frustrate the operation of the court. In this case, given Appellant's failure to express any dissatisfaction with or loss of confidence in Attorney Goldberg, I determined that Appellant was being manipulative and that the request for new counsel was a tactical decision on his part to further delay justice in this case. As cautioned by the Supreme Court in Novak, "[i]f a defendant who engages his own counsel refuses for two years to engage other counsel and waits until the trial of his case to demand an opportunity to engage other counsel, he can repeat this strategy every time his case is called for trial, and society would not receive the protection and equal justice to which both they and the accused are entitled." 395 Pa. at 214-15, 150 A.2d at 110. This, obviously, was a concern to this court as well, and it was expressed to Appellant. (See N.T., November 30, 2012, Pretrial Hearing at 6-7.) As such, Appellant was not deprived of his constitutional right to a lawyer of his choosing. See Commonwealth v. Thomas, 879 A.2d 246 (Pa. Super. 2005) (where colloquy indicates that appellant's request for a continuance was sought as much for the purpose of avoiding trial, as for retaining private counsel, appellant not denied his constitutional right to counsel of his choice).
After waiving his arraignment on these charges on September 14, 2010, Appellant requested and was granted trial continuances eight times over the next two years - December 14, 2010, February 15, 2011, June 21, 2011, August 16, 2011, December 22, 2011, February 27, 2012, April 30, 2012, and September 19, 2012. Additionally, as noted above, three trial dates were continued at Appellant's request. The Commonwealth, on the other hand, was granted two continuances on April 19, 2011, and July 2, 2012.
III. Conclusion
For the reasons set forth above, it is respectfully suggested that the judgment of sentence of Samuel Santiago be affirmed.
Accordingly, I enter the following:
COURT OF COMMON PLEAS OF LANCASTER COUNTY, PENNSYLVANIA
CRIMINAL
COMMONWEALTH OF PENNSYLVANIA
v.
SAMUEL SANTIAGO
No. 4103-2010
ORDER
AND NOW, this 18th day of October, 2013, the Court hereby submits this Opinion pursuant to Rule 1925(a) of the Pennsylvania Rules of Appellate Procedure.
BY THE COURT:
DAVID L. ASHWORTH
JUDGE
ATTEST: Copies to: Susan E. Mover, Assistant District Attorney
Heidi Fisher Eakin, Esquire, Costopoulos, Fosters Fields, 831 Market
Street, P.O. Box 222, Lemoyne, PA 17043