J-S73001-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
               v.                              :
                                               :
                                               :
    TERRANCE BERNARD ROBINSON                  :
                                               :
                      Appellant                :   No. 595 MDA 2017

                    Appeal from the PCRA Order March 27, 2017
    In the Court of Common Pleas of Adams County Criminal Division at No(s):
                              CP-01-CR-0000706-2013


BEFORE:      OLSON, J., DUBOW, J., and STRASSBURGER*, J.

MEMORANDUM BY OLSON, J.:                                   FILED JUNE 22, 2018

        Appellant, Terrence Bernard Robinson, appeals from the order entered

on March 27, 2017, dismissing his petition filed pursuant to the Post

Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. We affirm.

        We briefly summarize the facts and procedural history of this case as

follows. In June 2012, the Commonwealth charged Appellant with criminal

conspiracy, three counts of possession with intent to deliver (PWID) cocaine,

and three counts of criminal use of a communications facility. 1      At the time,

Appellant’s whereabouts were unknown.              On September 19, 2012, police

took Appellant into custody on unrelated charges in Baltimore, Maryland.

Thereafter, the Commonwealth entered a detainer against him. On April 12,

____________________________________________


1 18 Pa.C.S.A. § 903, 35 P.S. § 780-113(a)(30), and 18 Pa.C.S.A. § 7512,
respectively.


____________________________________
* Retired Senior Judge assigned to the Superior Court.
J-S73001-17



2013, Appellant requested that the Commonwealth dispose of the charges

pursuant to the Interstate Agreement on Detainers (IAD), 42 Pa.C.S.A.

§ 9101, et seq.2       As a result, Maryland authorities returned Appellant to

Pennsylvania on June 6, 2013. Counsel for Appellant sought, and received,

two continuances of Appellant’s preliminary hearing. The trial court held the

preliminary hearing on July 31, 2013, wherein all charges were bound for

court. On September 23, 2013, the trial court formally arraigned Appellant,

who then formally requested a jury trial.        On December 2, 2013, prior to

jury selection, Appellant presented a motion to dismiss all charges for

violating Article III(a) of the IAD, claiming that he was not brought to trial

within 180 days of his request for final disposition of the charges. The trial

court continued the trial until the January 2014 term, so that it could hold a

hearing on Appellant’s motion to dismiss on December 3, 2013. Following

that hearing, the trial court denied Appellant’s motion to dismiss.

____________________________________________


2 “The IAD is an agreement between forty-eight states, the District of
Columbia, Puerto Rico, the Virgin Islands, and the United States, that
establishes procedures for the transfer of prisoners incarcerated in one
jurisdiction to the temporary custody of another jurisdiction which
has lodged a detainer against a prisoner.” Commonwealth v. Jones, 886
A.2d 689, 695 (Pa. Super. 2005) (citations omitted). “Unlike a request for
extradition, which is a request that the state in which the prisoner is
incarcerated transfer custody to the requesting state, a detainer is merely a
means of informing the custodial jurisdiction that there are outstanding
charges pending in another jurisdiction and a request to hold the prisoner for
the requesting state or notify the requesting state of the prisoner's imminent
release.” Id. (citations omitted).




                                           -2-
J-S73001-17



       On January 14, 2014, Appellant entered into an agreement with the

Commonwealth wherein the parties stipulated to facts that were sufficient to

find Appellant guilty of criminal conspiracy and three counts of PWID.3      In

exchange, the Commonwealth agreed to withdraw the three counts of

criminal use of a communications facility. Further, the parties agreed to an

aggregate sentence of five to ten years of imprisonment, consecutive to any

sentence Appellant was already serving. The stipulated facts were entered

on the record and, after finding Appellant guilty, the trial court sentenced

Appellant according to the sentencing agreement.       We affirmed Appellant’s

judgment of sentence in an unpublished memorandum on December 12,

2014. See Commonwealth v. Robinson, 2014 WL 10752295 (Pa. Super.

2014). On April 15, 2015, our Supreme Court denied further review. See

Commonwealth v. Robinson, 114 A.3d 416 (Pa. 2015).




____________________________________________


3  Appellant agreed to a bench trial on stipulated facts, with a negotiated
sentencing agreement, in order to preserve his right to challenge the trial
court’s ruling on his pre-trial motion to dismiss under the IAD. A stipulated
bench trial functions similarly to a guilty plea except that a guilty plea
constitutes a waiver of all defects and defenses except lack of jurisdiction,
invalidity of the guilty plea, and illegality of sentence. See Commonwealth
v. Eichinger, 108 A.3d 821, 828, (Pa. 2014) (stipulating to evidence is
functionally the same as a guilty plea, but preserves rights to challenge pre-
trial rulings); compare Commonwealth v. Main, 6 A.3d 1026, 1028 (Pa.
Super. 2010) (“The entry of a guilty plea constitutes a waiver of all defects
and defenses except lack of jurisdiction, invalidity of the plea, and illegality
of the sentence.”).




                                           -3-
J-S73001-17



       On April 30, 2015, Appellant filed a pro se PCRA petition. The PCRA

court appointed counsel, who filed an amended PCRA petition.        The PCRA

court held an evidentiary hearing on December 19, 2016 and ultimately

denied Appellant relief by opinion and order entered on March 27, 2017.

This timely appeal followed.4

       Appellant raises the following issues for our review:

       A. The [PCRA c]ourt committed an error of law and/or abused its
          discretion in denying [Appellant’s] PCRA claim [that trial
          counsel was ineffective for failing to bring a motion] pursuant
          to Pa.R.Crim.P. 600 regarding [Appellant’s] right to a speedy
          trial, when the Commonwealth failed to use due diligence in
          bringing [Appellant] to trial within the statutory requirement.

       B. The [PCRA c]ourt committed an error of law and/or abused its
          discretion in denying [Appellant’s] PCRA claim of an illegal
          sentence, whereby the [trial c]ourt imposed sentence outside
          of the sentencing guidelines without disclosing, in open court
          at the time of sentencing, a statement of reason or reasons
          for the sentence imposed. In every case where a court of
          record imposes a sentence outside the sentencing guidelines[,
          there] shall be recorded on the guideline sentence form a
          copy of which shall be transmitted to the Pennsylvania
          commission on sentencing.

       C. The [PCRA c]ourt committed an error of law and/or abused its
          discretion in denying [Appellant’s] PCRA claim of an illegal
          sentence, [based on the contention that] the [trial c]ourt

____________________________________________


4  Appellant filed a notice of appeal on April 3, 2017. On April 10, 2017, the
PCRA court entered an order directing Appellant to file a concise statement
of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). Appellant
complied timely on April 28, 2017. The PCRA court issued an opinion
pursuant to Pa.R.A.P. 1925(a) on May 18, 2017, which also incorporated its
prior decision entered on March 27, 2017.



                                           -4-
J-S73001-17


         improperly imposed mandatory minimum sentences on each
         count.

      D. The [trial c]ourt committed an error of law and/or abused its
         discretion in denying [Appellant’s] PCRA claims related to
         Pa.R.Crim.P. 620 (jury waiver) when trial counsel failed to
         advise [Appellant] of his constitutional right to a jury trial and
         the [trial c]ourt failed to ascertain whether [Appellant]
         knowingly and voluntarily waived his right to a jury trial
         pursuant to Pa.R.Crim.P. [] 620.

Appellant’s Brief at 5.

      Appellant’s first and fourth claims allege, under the PCRA, that trial

counsel was ineffective. We will examine those issues first. Our standard

and scope of review are as follows:

      An appellate court reviews the PCRA court's findings of fact to
      determine whether they are supported by the record, and
      reviews its conclusions of law to determine whether they are free
      from legal error. The scope of review is limited to the findings of
      the PCRA court and the evidence of record, viewed in the light
      most favorable to the prevailing party at the trial level.

      To establish trial counsel's ineffectiveness, a petitioner must
      demonstrate: (1) the underlying claim has arguable merit; (2)
      counsel had no reasonable basis for the course of action or
      inaction chosen; and (3) counsel's action or inaction prejudiced
      the petitioner.

      Furthermore, a PCRA petitioner will be granted relief only when
      he proves, by a preponderance of the evidence, that his
      conviction or sentence resulted from the ineffective assistance of
      counsel which, in the circumstances of the particular case, so
      undermined the truth-determining process that no reliable
      adjudication of guilt or innocence could have taken place.
      Counsel is presumed effective, and to rebut that presumption,
      the PCRA petitioner must demonstrate that counsel's
      performance was deficient and that such deficiency prejudiced
      him.




                                      -5-
J-S73001-17


       Counsel's assistance is deemed constitutionally effective once
       this Court determines that the defendant has not established any
       one of the prongs of the ineffectiveness test.

Commonwealth v. Freeland, 106 A.3d 768, 775 (Pa. Super. 2014)

(internal citations, quotations and brackets omitted).

       In his first issue presented, Appellant claims that trial counsel was

ineffective for failing to raise a violation of Pa.R.Crim.P. 600 prior to the

commencement of trial.         Appellant’s Brief at 9.5    Appellant avers that the

trial court erred by determining that the Commonwealth exercised due

diligence in bringing Appellant to trial within 365 days of filing the criminal

complaint against him.        Id. at 13-14.      More specifically, Appellant argues

that “[a]t the time the charges were filed [in June 2012], Appellant resided

in Baltimore, Maryland at the residence listed on the original criminal

complaint[,]” but “[t]he record is void of any evidence to show that law

enforcement tried to serve a warrant or otherwise secure Appellant’s

apprehension when Appellant’s whereabouts were admittedly known to the

Commonwealth.”          Id. at 14.         Appellant maintains that “[o]nce his

whereabouts were confirmed” the Commonwealth “failed to contact the
____________________________________________


5 Appellant’s trial counsel sought dismissal of the charges under the IAD
prior to jury selection by filing a motion to dismiss on December 3, 2013,
arguing that Appellant was not brought to trial in Pennsylvania within 180
days of his request for final disposition of the charges.    The trial court
denied relief and we affirmed. See Commonwealth v. Robinson, 2014 WL
10752295 (Pa. Super. 2014) (unpublished memorandum). Appellant is now
claiming that trial counsel also should have raised a Rule 600 claim, in
addition to a claim under the IAD, to challenge this same period that he
spent in custody in Maryland.



                                           -6-
J-S73001-17



Baltimore City Detention Center to inquire about Appellant’s availability for

trial in Pennsylvania[,]” “simply put a detainer on Appellant[,]” and did not

make a request for extradition.    Id. at 16.   “Only because Appellant was

pro-active and took the onus upon himself [to request a transfer from

Maryland pursuant to the detainer] to face charges in Pennsylvania, was

Appellant finally transported to Adams County on June 6, 2013.” Id. at 21.

Appellant contends that these actions constitute a lack of due diligence by

the Commonwealth and trial counsel should have sought dismissal of the

charges, with prejudice, under Rule 600. Id. at 22.

     Regarding Rule 600, we have stated:

     The proper scope of review is limited to the evidence on the
     record of the Rule 600 evidentiary hearing, and the findings of
     the trial court. An appellate court must view the facts in the light
     most favorable to the prevailing party.

     Additionally, when considering the trial court's ruling, this Court
     is not permitted to ignore the dual purpose behind Rule 600.
     Rule 600 serves two equally important functions: (1) the
     protection of the accused's speedy trial rights, and (2) the
     protection of society. In determining whether an accused's right
     to a speedy trial has been violated, consideration must be given
     to society's right to effective prosecution of criminal cases, both
     to restrain those guilty of crime and to deter those
     contemplating it. However, the administrative mandate of Rule
     600 was not designed to insulate the criminally accused from
     good faith prosecution delayed through no fault of the
     Commonwealth.

     So long as there has been no misconduct on the part of the
     Commonwealth in an effort to evade the fundamental speedy
     trial rights of an accused, Rule 600 must be construed in a
     manner consistent with society's right to punish and deter crime.
     In considering these matters ... courts must carefully factor into
     the ultimate equation not only the prerogatives of the individual

                                    -7-
J-S73001-17


     accused, but the collective right of the community to vigorous
     law enforcement as well.

     Rule 600, [] provides, in pertinent part, that “trial in a court case
     in which a written complaint is filed against the defendant shall
     commence within 365 days from the date on which the
     complaint is filed.” Pa.R.Crim.P. 600(A)(2)(a). For purposes of
     computing when trial must commence, “periods of delay at any
     stage of the proceedings caused by the Commonwealth when the
     Commonwealth has failed to exercise due diligence shall be
     included.... Any other periods of delay shall be excluded from the
     computation.” Pa.R.Crim.P. 600(C)(1). “When a defendant has
     not been brought to trial within the time periods set forth in
     paragraph (A), at any time before trial, the defendant's attorney,
     or the defendant if unrepresented, may file a written motion
     requesting that the charges be dismissed with prejudice on the
     ground that this rule has been violated.” Pa.R.Crim.P. 600(D)(1).

     The Comment to the Rule explains the computation of time, in
     relevant part, as follows:

           For purposes of determining the time within which
           trial must be commenced pursuant to paragraph (A),
           paragraph (C)(1) makes it clear that any delay in the
           commencement of trial that is not attributable to the
           Commonwealth when the Commonwealth has
           exercised due diligence must be excluded from the
           computation of time Thus, the inquiry for a judge in
           determining whether there is a violation of the time
           periods in paragraph (A) is whether the delay is
           caused solely by the Commonwealth when the
           Commonwealth has failed to exercise due diligence.
           If the delay occurred as a result of circumstances
           beyond the Commonwealth's control and despite its
           due diligence, the time is excluded. In determining
           whether the Commonwealth has exercised due
           diligence, the courts have explained that “[d]ue
           diligence is fact-specific, to be determined case-by-
           case; it does not require perfect vigilance and
           punctilious care, but merely a showing the
           Commonwealth has put forth a reasonable effort.”

     Pa.R.Crim.P. 600, Comment (citations omitted).


                                     -8-
J-S73001-17



Commonwealth v. Plowden, 157 A.3d 933, 936–37 (Pa. Super. 2017)

(case citations, quotations and original brackets omitted).

      Moreover, we recognize the Comment to Rule 600 further states:

      In addition to any other circumstances precluding the availability
      of the defendant or the defendant's attorney, the defendant
      should be deemed unavailable for the period of time during
      which     the    defendant    contested   extradition,   or      a
      responding jurisdiction delayed or refused to grant extradition;
      or during which the defendant was physically incapacitated or
      mentally incompetent to proceed; or during which the
      defendant was absent under compulsory process
      requiring his or her appearance elsewhere in connection
      with other judicial proceedings.

Comment, Pa.R.Crim.P. 600 (emphasis added).

      Here, upon review of the record, at the PCRA hearing, Appellant

admitted that he was arrested in Maryland on September 19, 2012 and

facing trial for charges there. N.T., 12/20/2016, at 16. Thus, by his own

admission, Appellant was in custody in connection with other judicial

proceedings. For this reason, we could find Appellant was unavailable during

the time period of September 19, 2012 (when he was arrested and jailed in

Maryland) until June 6, 2013 (when he was returned to Pennsylvania) for

Rule 600 purposes.

      “A criminal defendant who is incarcerated in another jurisdiction is

unavailable   within   the   meaning   of    Rule   600   if   the   Commonwealth

demonstrates by a preponderance of the evidence that it exercised due

diligence in attempting to procure the defendant's return for trial.”

Commonwealth v. McNear, 852 A.2d 401, 404 (Pa. Super. 2004) (citation


                                       -9-
J-S73001-17



omitted).      “The Commonwealth's stewardship       []   must    be    judged

by what was done rather than by what was not done” in Rule 600 cases.

Commonwealth v. Selenski, 919 A.2d 229, 232 (Pa. Super. 2007).

      In addressing Appellant’s current claim, the PCRA court first noted that

“the history in bringing [Appellant] to trial has been extensively discussed by

both [the trial court] and the Superior Court in the context of the IAD.”

PCRA Court Opinion 3/27/2017, at 8. Moreover, the PCRA court recognized

that Appellant did not cite any law, and our independent research on appeal

did not reveal, “that the Commonwealth must comply with the time

requirements of both the IAD and Rule 600 independently.”        Id. at 9 n.8.

Regardless, for the reasons that follow, we conclude that the Commonwealth

complied with the Rule 600 time requirements by filing a detainer with

Maryland authorities.

      The PCRA court further opined that “a panel of the Superior Court, in

dicta, signaled the Commonwealth would meet its due diligence requirement

by initiating extradition proceedings within 365 days from the filing of the

complaint for a defendant imprisoned in another state.” PCRA Court Opinion

3/27/2017, at 8 n.8, citing Commonwealth v. Booze, 947 A.2d 1287,

1292 (Pa. Super. 2008). In Booze, “the Commonwealth knew [Booze] was

being held in Maryland yet failed to follow the proper steps to secure her

upon the disposition of the Maryland charges.” Booze, 947 A.2d at 1291.

“Although the Commonwealth faxed a copy of the complaint to the Maryland

authorities, there were no assurances made on behalf of Maryland that this

                                    - 10 -
J-S73001-17



would in fact serve as a detainer.”                Id.   We determined that the

Commonwealth did not exercise due diligence because it did not initiate

extradition proceedings or file a formal detainer with the proper authorities

in Maryland. Id. However, we suggested that “the Commonwealth should

at least initiate extradition proceedings within 365 days from the filing of the

complaint for defendants who are imprisoned in another state in order to

meet its duty as to due diligence [under Rule 600].” Booze, 947 A.2d at

1292 (emphasis in original).         It does not appear that our appellate courts

have addressed what actions constitute the “initiation of extradition.”

       Next, we examine the case law cited by Appellant regarding detainers

and due diligence and, for the reasons that follow, reject his reliance on

them. In arguing his Rule 600 claim, Appellant principally relies on two of

this Court’s prior decisions: Commonwealth v. Alexander, 464 A.2d 1376

(Pa. Super. 1983)6 and Commonwealth v. Colon, 87 A.3d 352 (Pa. Super.

2014).     See Appellant’s Brief at 12, 18, 20, and 22.            In Colon, the

Commonwealth only presented evidence regarding efforts to locate Colon,

before filing a criminal complaint against him.          Thereafter, we noted that

“although the Commonwealth asserted that ‘Trooper Scott faxed a copy of

the [Pennsylvania] complaint’ to the state institution in which [Colon] was


____________________________________________


6  While Appellant purports to cite to a case captioned “Commonwealth v.
Hamilton” at page 22, n.22 in his appellate brief, the legal citation goes to
Alexander, supra.



                                          - 11 -
J-S73001-17



confined, and that ‘a detainer was lodged against [Colon] therefore assuring

his release from state custody’ no evidence was presented to support this

assertion.” Colon, 87 A.3d at 359. Here, there is no dispute that a detainer

was filed against Appellant. Thus, Colon is inapplicable.

     Next, Appellant relies upon our decision in Alexander. In that case,

the Commonwealth filed a complaint against Alexander in March of 1979.

Alexander assured police he would turn himself in, but he did not.

Thereafter, Pennsylvania police entered Alexander’s information into the

National Crime Information Center. In January of 1980, Pennsylvania police

received a call that Alexander was arrested in New Jersey and that there

were outstanding charges pending against him there. On January 22, 1980,

the Commonwealth learned that Alexander was incarcerated in New Jersey.

The Commonwealth took no action, however, until it filed a detainer on

March 27, 1980, after Alexander received his New Jersey sentence on

February 27, 1980.    Following Alexander’s conviction in Pennsylvania, he

appealed to this Court asserting that his right to a speedy trial had been

denied. We agreed, reasoning that the 65-day period between January 22,

1980 (when the Commonwealth became aware of Alexander’s whereabouts)

and March 27, 1980 (when the Commonwealth requested Alexander’s return

from a correctional facility in New Jersey under the Detainers Act) was not

excludable under Rule 600’s predecessor because the Commonwealth failed

to act for an extended period of time after learning of Alexander’s

whereabouts.   See Alexander, 464 A.2d at 1385-1385.        We further held

                                    - 12 -
J-S73001-17



that the Commonwealth’s insufficient efforts to return Alexander to trial in

Pennsylvania over the next six months constituted further grounds to award

relief. As we explain below, these facts are not present in this case.

      Although decisions from other states, as well as the opinions and

standards of the American Bar Association (ABA), are not binding authority

upon us, we may look at them for persuasive value.      See Commonwealth

v. Maguigan, 511 A.2d 1327, 1336 (Pa. 1986).

      The American Bar Association Standards for Criminal Justice provides:

      Standard 12-3.1. Prosecutor's obligations; notice to and
      availability of prisoner

      To protect the right to speedy trial of a person serving a term of
      imprisonment either within or without the jurisdiction, it should
      be provided by rule or statute and, where necessary, interstate
      compact that:

            (a)   if the prosecuting attorney knows that a person
                  charged with a criminal offense is serving a term of
                  imprisonment in a penal institution of that or another
                  jurisdiction, he or she must promptly:

                  (i)      undertake to obtain the presence of the
                           prisoner for trial; or

                  (ii)     cause a detainer to be filed with the official
                           having custody of the prisoner and request
                           the official to so advise the prisoner and to
                           advise the prisoner of his or her right to
                           demand trial[.]

American Bar Association, Standards for Criminal Justice, Standard 12-3.1

(2d ed.1980).

      The commentary following ABA standard 12-3.1 states that the



                                    - 13 -
J-S73001-17


      above standard, addressed to the broader problem of a
      prisoner's right to speedy trial, requires the prosecutor to initiate
      procedures whereby the prisoner may demand trial whenever
      the prosecutor does not choose to undertake an immediate trial.

American Bar Association, Standards for Criminal Justice, Standard 12-3.1,

Commentary at 12.37.

      Moreover, the commentary to ABA standard 12-2.2(a) states that

      [t]he prisoner should have the option (1) of demanding trial in
      order to overcome whatever disadvantages flow from the fact a
      detainer has been lodged against him, or (2) of not making the
      demand in the hope that the charges will be dropped before or
      at the time he completes his sentence [in the foreign
      jurisdiction].

American Bar Association, Standards for Criminal Justice, Standard 12-2.2,

Commentary at 17-18.

      Several courts have implemented the above-mentioned American Bar

Association standards in determining due diligence requirements under state

speedy trial right rules.   See State v. Anderson, 828 P.2d 1161, 1165

(Wash. App. 1992) (“While requiring prosecutors to lodge detainers against

defendants and promptly secure their presence for trial may result in

additional expense or give rise to some of the problems associated with

detainers, these considerations do not outweigh the fundamental concerns

underlying a defendant's right to a speedy trial.”); Conway v. State, 707
P.2d 930, 936 (Alaska App. 1985) (“The prosecutor must either undertake

to obtain the presence of the prisoner for trial by, for example, instituting

extradition proceedings or filing a habeas corpus petition with the court in

the jurisdiction in which the prisoner is incarcerated, seeking the defendant


                                     - 14 -
J-S73001-17



for purposes of trial, or the prosecutor must file a detainer with the

appropriate officials and request that the defendant be made aware of the

detainer.”).

      Moreover, several other jurisdictions have examined their speedy trial

rules, in conjunction with federal and state constitutional principles, and

determined that lodging detainers constitutes due diligence. See State v.

Grant, 738 P.2d 106, 109 (Montana 1987) (“The time chargeable to

defendant began on January 22, 1985, when the State of Montana issued

the first detainer to defendant and the State of Idaho notifying them of

charges pending against defendant in Montana. That time, as chargeable to

defendant, ceased to run on June 19, 1985[,] when defendant asserted his

right to a speedy trial by requesting final disposition of the charges against

him in Montana.... Knowing that charges were pending against him in

Montana, it was up to defendant to request speedy and final disposition of

the charges against him.”); see also O'Bryan v. State, 326 So. 2d 83, 87

(Fla. App. 1976) (“The period for speedy trial is made to commence on the

concurrence of the foreign prisoner's demand for trial and the State's filing

of a detainer[.]”); see also Eaddy v. State, 352 So. 2d 98 (Fla. App. 1977)

(Filing   of   a detainer against       an      accused     who    is    in    prison

outside jurisdiction of   authority    which    filed detainer does     not   activate

180-day period within which accused must be tried under speedy trial rule;

rather, speedy trial time     begins     to      run      when    authority     which

filed detainer obtains custody of accused); see also State v. Wood, 924

                                       - 15 -
J-S73001-17



S.W.2d 342, 348 (Tenn. 1996) (“Wood deliberately chose to forgo

a speedy trial request, hoping instead that the Tennessee charges would die

of neglect. He acquiesced in the delay from the time he learned of

the detainer in 1984 until 1990, after Alabama had offered conditional

parole.”); see also State v. Dolack, 533 P.2d 1282, 1292 (Kan. 1975) (To

obtain a speedy trial guaranteed by state Bill of Rights, as legislatively

defined, it is incumbent upon an accused incarcerated in a penal institution

to comply with all provisions of legislation applicable to his incarceration,

including the preparation of his written request for disposition of detainer to

be addressed to court in which the indictment, information or complaint is

then pending against him and to the county attorney charged with the duty

of prosecuting it.).

       In this matter, the PCRA court ultimately determined there was no

violation of Rule 600, offering the following calculations:

       The criminal complaint was filed against [Appellant] on June 17,
       2012.     Therefore, the mechanical run-date of 365 days
       thereafter require[d] the Commonwealth to have brought
       [Appellant] to trial under Rule 600 on or before June 17, 2013.
       [Appellant] was arrested in Maryland in September 19, 2012 and
       returned to this jurisdiction under the IAD on [June 6, 2013].[7]
       This time is clearly excludable[]. Removal of this [260-day] time
       period from the mechanical calculation results in an adjusted
____________________________________________


7 The PCRA court incorrectly noted the date of Appellant’s return to Adams
County, Pennsylvania as April 12, 2013. That date is the date on which
Appellant’s request for disposition of the Pennsylvania charges was received
by the Adams County District Attorney’s office. Appellant was not returned
to Pennsylvania until June 6, 2013.



                                          - 16 -
J-S73001-17


       trial date of approximately [March 4, 2014]. After [Appellant]
       was returned to this jurisdiction, through counsel, his
       preliminary hearing date was continued [twice from June 12,
       2013] until July 31, 2013. As this [49-day time period] is also
       excludable, [Appellant’s] adjusted Rule 600 run-date extends [to
       late April 2014].      […T]he charges against [Appellant] were
       resolved in January 14, 2014. […] Accordingly, [Appellant] is not
       entitled to relief on his [Rule 600] claim as counsel cannot be
       held ineffective for failing to pursue a meritless position.

Trial Court Opinion, 3/27/2017, at 8-9 (footnote omitted).

       Upon review, we discern no abuse of discretion or error of law in

finding no merit to Appellant’s Rule 600 claim.        Initially we note that

Appellant’s argument centers primarily on the actions he believes the

Commonwealth should have taken; however, we must review only the

actions actually taken by the Commonwealth.       See Selenski, 919 A.2d at

232.   The ABA Standards suggest, and courts in Washington and Alaska

agree, that in order to comply with speedy trial rights regarding a defendant

incarcerated in a foreign jurisdiction, a state must initiate procedures to

obtain their presence for trial.   Without actually deciding the issue, we

suggested as much in Booze and are guided by that decision.        In further

examining the initiation of transfer procedures, we recognize there are two

mechanisms available to the Commonwealth to procure a defendant’s return

to Pennsylvania: (1) by formal extradition or, (2) by lodging a detainer with

the foreign jurisdiction so that the defendant can then demand trial. Jones,

886 A.2d 689, 695. Thus, we summarily reject Appellant’s suggestion that

the Commonwealth was required to initiate extradition proceedings. Here,

there is no dispute that the Commonwealth, in fact, promptly filed a detainer


                                    - 17 -
J-S73001-17



against Appellant with Maryland authorities. Other jurisdictions, as well as

the ABA, have determined that lodging a detainer qualifies as due diligence

for speedy trial purposes.    Taken together, the record supports the PCRA

court’s findings that the Commonwealth took diligent steps to secure

Appellant’s presence for trial in Pennsylvania, by lodging a detainer with

Maryland authorities and informing him that there were outstanding charges

against him in Pennsylvania. Appellant then started the extradition process.

Accordingly, the time between the Commonwealth’s filing of the detainer

and Appellant’s return to Adams County is excluded from the speedy trial

calculation and the PCRA court properly determined that Appellant’s time

spent in custody in Maryland was excludable under Rule 600.           Moreover,

since there is no dispute that extensions requested by defense counsel were

excludable, it is clear, as the PCRA court found, that the disposition of

Appellant’s criminal complaint was reached within 365 days after the filing of

the criminal complaint when the original mechanical run date is adjusted by

the delays attributable to Appellant.    Accordingly, we need not review the

time period between the filing of the complaint and Appellant’s subsequent

arrest in Maryland. As such, trial counsel was not ineffective for failing to

raise a Rule 600 claim. Hence, Appellant’s first issue fails.

      In his fourth issue presented, Appellant claims that trial counsel was

ineffective for failing to advise Appellant of his right to a jury trial pursuant

to Pa.R.Crim.P. 620. Appellant’s Brief at 38. Appellant claims that the trial

court did not orally colloquy him regarding waiver of his right to a jury trial,

                                     - 18 -
J-S73001-17



and he did not sign a written colloquy. Id. at 39. Appellant claims that the

trial court erred by determining that he was a savvy criminal defendant who

was familiar with the criminal justice system and jury trial waivers when he

proceeded to a stipulated bench trial.         Id. at 40-42.   In sum, Appellant

claims that “the [trial c]ourt, the Commonwealth, and trial counsel

presumed that Appellant knew [his] rights or did not care to confirm said

presumption, or just flatly forgot Appellant’s constitutional rights and their

respective obligations.” Id. at 43.

      Our Supreme Court has stated:

      Of course, lawyers have an obligation to counsel their clients in
      conjunction with the waiver of basic rights, including the waiver
      of a jury; but the mere absence of [an on-the-record] oral
      waiver colloquy does not automatically prove that a right was
      relinquished unknowingly or involuntarily and that the trial
      lawyer was ineffective for causing the waiver. When a
      presumptively-valid waiver is collaterally attacked under the
      guise of ineffectiveness of counsel, it must be analyzed like any
      other ineffectiveness claim. Such an inquiry is not resolved by
      the mere absence of an oral waiver colloquy; instead, the
      analysis must focus on the totality of relevant circumstances.
      Those circumstances include the defendant's knowledge of and
      experience with jury trials, his explicit written waiver (if any),
      and the content of relevant off-the-record discussions counsel
      had with his client.

                          *             *             *

      Absence of an oral colloquy alone does not prove that
      a jury waiver was in fact unknowing or involuntary; rather, the
      PCRA court must look to the totality of the circumstances
      including the discussions between the lawyers and their clients
      regarding the jury waiver. The analysis regarding the underlying
      merits of appellants' ineffectiveness challenge must be more
      precise and must account for all relevant circumstances
      surrounding the waiver.

                                      - 19 -
J-S73001-17



Commonwealth v. Birdsong, 24 A.3d 319, 339 (Pa. 2011) (internal

citations, quotations, and ellipses omitted).

      Furthermore, we have previously determined:

      For a waiver to be knowing, the defendant must be made aware
      of the “essential ingredients” of the right he or she is waiving to
      ensure there is an understanding of the significance of what he
      or she is giving up.

      For     example,     for   a    defendant     to   knowingly  and
      intelligently waive his right to a jury trial, the defendant must
      know the essential ingredients, basic to the concept of
      a jury trial, including the requirements that the jury be chosen
      from members of the community (a jury of one's peers), that the
      verdict be unanimous, and that the accused be allowed to
      participate in the selection of the jury panel.

Commonwealth v. Baker, 72 A.3d 652, 667 (Pa. Super. 2013) (internal

citations and most quotations omitted).

      On this issue, the trial court determined:

      Although instantly an oral colloquy was not conducted with
      [Appellant], he undoubtedly understood his rights at the time of
      waiver. [Appellant] did not present before the [c]ourt as a first
      [time] offender[,] but rather had previously been convicted of
      two felony drug offenses. Trial counsel’s hearing testimony as to
      [Appellant’s] sophistication and knowledge of criminal law is
      corroborated by his numerous pro se pleadings in this matter as
      well as his discussions with the [c]ourt during various
      proceedings. This fundamental knowledge of his rights was
      supplemented at the time of his arraignment when he waived
      formal arraignment and acknowledged in writing that he
      received and understood his rights including the right to a jury
      trial. Additionally, trial counsel testified that on at least two
      occasions following arraignment, he discussed with [Appellant]
      his right to a jury trial. On one of those occasions, [Appellant]
      initialed and signed a plea colloquy.




                                     - 20 -
J-S73001-17



PCRA Court Opinion, 3/27/2017, at 10-11 (footnotes omitted). The PCRA

court found trial counsel’s testimony credible and concluded that Appellant

understood his right to a jury trial prior to entering his plea. Id. at 11-12.

      Upon review, we agree that although the trial court did not formally

advise Appellant of his right to a trial by jury, based upon the totality of the

circumstances, Appellant was aware of such right before opting to proceed

with a stipulated bench trial.    Here, the trial court credited trial counsel’s

testimony that he discussed the essential elements of the right to a jury trial

with Appellant. We will not usurp that determination on the record before

us. Moreover, while not admitted into evidence at the stipulated bench trial,

Appellant had signed and initialed a written guilty plea colloquy earlier. That

written colloquy addressed all of the questions that the trial court should

have covered in an oral jury waiver colloquy, including the requirements that

the jury be chosen from members of the community, that the verdict be

unanimous, and that the accused be allowed to participate in the selection of

the jury panel.   Moreover, while this written colloquy was not entered into

the record at the time of the stipulated bench trial, Appellant does not

contest that he signed it or claim that trial counsel did not discuss it with

him prior to the stipulated trial. Finally, the PCRA court properly considered

the fact that Appellant is a savvy defendant, having been twice convicted of

drug-related   felonies   and   filing    numerous   legally   supported   pro   se

documents in this matter. Thus, we agree with the trial court that Appellant




                                         - 21 -
J-S73001-17



was properly informed of his right to a jury trial and there is no merit to

Appellant’s claim that counsel was ineffective in this regard.

      Appellant’s   second   and   third   claims   involve   somewhat   related

sentencing issues, so we will examine them together. In his second issue,

Appellant avers that the trial court abused its discretion or erred as a matter

of law in imposing a sentence outside of the sentencing guidelines without

stating the reason for the deviation on the record. Appellant’s Brief at 24-

25. More specifically, Appellant collectively challenges his three concurrent

sentences for PWID, five to ten years of imprisonment each, contending that

“[w]ith a prior record score of [four] (and an offense gravity score of [seven]

or [eight] depending on the weight of the drug) the [s]tandard [g]uideline

range for PWID is 21 to 27 months.” Id. at 26. Appellant claims that the

sentencing guidelines were inaccurately calculated and ignored, and that the

trial court never explained the reasons for deviating from them. Id. at 28.

Instead, Appellant suggests that the trial court “only colloquied Appellant on

the maximum penalties he could face for each charge [and d]efense counsel

never objected to this error[.]” Id. at 29.

      In his third issue presented, Appellant “believes he was sentenced to

mandatory minimum sentences” on each count of PWID and “relies on the

sentencing guideline forms filled out after sentencing to support his claim.”

Id.   Appellant posits that “[i]f the [trial c]ourt sentenced Appellant to a

mandatory minimum sentence, then Appellant believes said sentences are




                                     - 22 -
J-S73001-17



illegal in consideration of Alleyne v. U.S., 133 S. Ct. 2151 (2013)[.]” Id. at

31.

       Initially, we note that Appellant commingles two legally distinct

sentencing issues, the discretionary aspects of sentencing and the illegality

of his sentence.8 We have previously determined:

       the term “illegal sentence” refer[s] to a class of cases that
       includes: (1) claims that the sentence fell outside of the legal
       parameters prescribed by the applicable statute; (2) claims
       involving merger/double jeopardy; and (3) claims implicating the
       rule in Apprendi v. New Jersey, 530 U.S. 466 (2000).
       […I]llegal sentencing claims challenge the fundamental legal
       authority of the court to impose the sentence that it did.

Commonwealth v. Farrow, 168 A.3d 207, 212 (Pa. Super. 2017) (some

quotations and citations omitted).

       “A challenge to the legality of a particular sentence may be reviewed

by any court on direct appeal; it need not be preserved in the lower courts

to be reviewable and may even be raised by an appellate court sua sponte.”

Batts, 163 A.3d at 434. We review the legality of a sentence de novo and

our scope of review is plenary. Farrow, 168 A.3d at 212 (internal citation,

____________________________________________


8 “For appellate review purposes, challenges to a criminal sentence typically
fall into one of two categories, implicating either the legality of
the sentence or the discretionary aspects of the sentence.” Commonwealth
v. Batts, 163 A.3d 410, 434 (Pa. 2017). “[A] claim challenging a sentencing
court's legal authority to impose a particular sentence presents a question of
sentencing legality.” Id. “This distinction is critical, as the determination
also encompasses matters of issue preservation, [an appellate court’s]
jurisdiction to decide the question presented, and the level of deference the
reviewing court must give to the decision of the sentencing court.” Id.



                                          - 23 -
J-S73001-17



quotation, and brackets omitted).          Our Supreme Court has instructed that

we must presume that statutes are constitutional and in order to declare a

statute unconstitutional it must clearly, plainly, and palpably violate the

constitution. Id.

       Here, Appellant was sentenced concurrently to five to ten years of

imprisonment for each of three counts of PWID cocaine and for one count of

conspiracy.     The statutory maximum sentence for PWID cocaine is fifteen

years of incarceration.      See 35 P.S. § 780-113(f).     Moreover, as a repeat

felony offender,9 Appellant was exposed to twice that prison time on each

PWID offense. See N.T., 1/14/2014, at 935; see also Trial Court Opinion,

3/27/2017, at 10 (Appellant “had previously been convicted of two felony

drug offenses.”); see also 35 P.S. § 780-115(a) (“Any person convicted of a

second or subsequent offense [of PWID] or of a similar offense under any

statute of the United States or of any state may be imprisoned for a term up

to twice the term otherwise authorized, fined an amount up to twice that

otherwise authorized, or both.”) Inchoate crimes, like conspiracy, have the

same maximum sentences as the underlying crimes to which they relate, but

are not subject to sentencing enhancements. See Commonwealth v.

Hoke, 962 A.2d 664, 668, 599 Pa. 587, 593 (Pa. 2009). Thus, Appellant’s

statutory maximum penalty for conspiracy was also fifteen years of

____________________________________________


9 Appellant does not challenge his prior felony convictions or contend his
prior criminal record was inaccurately reflected before entering his plea.



                                          - 24 -
J-S73001-17



imprisonment, but not subject to doubling under the repeat offender

enhancement.

      Despite Appellant’s attempt to characterize all mandatory minimum

sentences as illegal following Alleyne/Apprendi, our Supreme Court has

determined Section 780-115 is constitutional.         See Commonwealth v.

Aponte, 855 A.2d 800, 809 (Pa. 2004) (statute doubling statutory

maximum penalty for PWID upon proof of a prior conviction without

requiring proof beyond a reasonable doubt before a jury did not violate

defendant’s due process rights where prior drug convictions were capable of

objective proof).   Here, each of Appellant’s five to ten year sentences fell

within constitutional, statutory maximums for the various crimes and, as

such, Appellant did not receive illegal sentences.

      Appellant’s related claim that the trial court failed to state its reasons

for deviating from the sentencing guidelines is a discretionary aspect of

sentencing claim, rather than a challenge to the illegality of sentence.

See Commonwealth v. McLaine, 150 A.3d 70, 76 (Pa. Super. 2016).

Unlike legality of sentence claims, which can be raised for the first time on

appeal as long as the reviewing court has jurisdiction, discretionary aspects

of sentencing claims must be properly raised below, even those couched in

ineffective assistance of counsel under the PCRA.      See Commonwealth v.

Taylor, 65 A.3d 462, 465 (Pa. Super. 2013).          Appellant did not raise his

claim that the trial court failed to state its reasons for deviating from the




                                    - 25 -
J-S73001-17



sentencing guidelines in his PCRA petition or his amended PCRA petition.

Thus, Appellant waived this aspect of his sentencing claim.

      Regardless,   the   issue     is   otherwise    without   merit.   “Assuming

[a] plea agreement is legally possible to fulfill, when the parties enter

the plea agreement on the record, and the court accepts and approves

the plea, then the parties and the court must abide by the terms of

the agreement.” Commonwealth v. Parsons, 969 A.2d 1259, 1268 (Pa.

Super. 2009). If the sentencing court gives a defendant “a lesser sentence

than called for in the parties' agreement, the court overstep[s] its bounds,

defeat[s]   the   Commonwealth's         rightful   expectations,   and frustrate[s]

the quid pro quo of the plea bargain.” Id. at 1269–1270. Appellant has not

cited law, and our independent research has not revealed any, that would

suggest that the trial court has to consider the sentencing guidelines prior to

accepting a negotiated plea agreement where the sentences all fall within

the statutory guideline maximums. Here, the parties placed the terms of the

completely negotiated plea agreement on the record and the trial court

properly accepted it and is now bound by it. Moreover, Appellant does not

challenge the plea process or otherwise suggest that his plea was entered

unknowingly, involuntarily, or unintelligently. Accordingly, there is no merit

to Appellant’s sentencing claims.

      Order affirmed.

      Judge Strassburger joins the memorandum.

      Judge Dubow concurs in result of the memorandum.

                                         - 26 -
J-S73001-17


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 06/22/2018




                          - 27 -