J-S34008-21
2022 PA Super 11
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ROBERT ANTHONY MILLER :
:
Appellant : No. 1524 MDA 2020
Appeal from the Order Entered November 9, 2020
In the Court of Common Pleas of Luzerne County Criminal Division at
No(s): CP-40-MD-0000695-2020
BEFORE: DUBOW, J., McLAUGHLIN, J., and McCAFFERY, J.
OPINION BY DUBOW, J.: FILED JANUARY 24, 2022
Appellant, Robert Anthony Miller, appeals from the November 9, 2020
Order granting the Commonwealth’s Petition for Writ of Certiorari and denying
Appellant’s request to dismiss the charges against him on double jeopardy
grounds. After careful review, we affirm.
The relevant facts and procedural history, as gleaned from the trial
court’s November 9, 2020 Factual Findings and Legal Conclusions (“Opinion”)
and the limited record,1 are as follows. On January 3, 2020, the
Commonwealth charged Appellant with Retail Theft, graded as a felony,2
____________________________________________
1 For reasons articulated infra, the procedural and factual history of this case
spans three lower court docket numbers. The record submitted in this appeal,
however, pertains only to the docket in which the trial court entered the order
now on appeal. We rely on the representations of the parties and the trial
court for our understanding of the matters that transpired at the two earlier
dockets that ultimately, gave rise to this appeal.
2 18 Pa.C.S. § 3929(a)(1).
J-S34008-21
following his December 19, 2019 arrest by Pittstown Police Officer Rudy
Navarro.
On February 18, 2020, Appellant appeared at a preliminary hearing on
the felony Retail Theft charge, represented by counsel. Officer Navarro was
present at the hearing, but the Commonwealth was not represented by a
member of the District Attorney’s office. At or just before the hearing, Officer
Navarro agreed to withdraw the felony Retail Theft charge in exchange for
Appellant’s guilty plea to the reduced charge of Retail Theft graded as a
summary offense. The Magisterial District Judge (“MDJ”) accepted the plea.
Officer Navarro made this agreement with Appellant without approval from
the District Attorney’s office.
Nearly one month later, on March 13, 2020, the Commonwealth refiled
the original felony Retail Theft charge. The magistrate court scheduled a
preliminary hearing for July 21, 2020. On April 2, 2020, Appellant’s counsel
contacted the MDJ by letter to request that the case be dismissed on double
jeopardy grounds. The Commonwealth responded, also by letter, to the MDJ
opposing Appellant’s request.
On July 21, 2020, prior to commencement of the preliminary hearing on
the refiled charge, Appellant served the Commonwealth with a Motion for
Compulsory Joinder. Following the parties’ arguments, the MDJ granted
Appellant’s motion and dismissed the refiled felony Retail Theft charge.
On August 20, 2020, the Commonwealth filed a “Petition for Writ of
Certiorari or Notice of Appeal” asserting that Appellant’s February 18, 2020
-2-
J-S34008-21
plea to summary Retail Theft was a nullity because the MDJ lacked jurisdiction
to withdraw the felony Retail Theft charge without the consent of the
Commonwealth’s attorney or its designee. The Commonwealth also asserted
that the MDJ lacked jurisdiction to accept Appellant’s guilty plea to a summary
offense because the summary offense charge arose as a result of a reduction
in charges.
On September 10, 2020, the trial court held a hearing on the writ/notice
of appeal. On November 9, 2020, after considering the parties’ arguments
and briefs, the court granted the writ, vacated Appellant’s guilty plea to Retail
Theft graded as a summary offense and reinstated the original felony Retail
Theft charge.
This appeal followed. Appellant complied with the trial court’s order to
file a Pa.R.A.P. 1925(b) Statement. In lieu of a Rule 1925(a) Opinion, the trial
court relied on its November 9, 2020 Opinion.
Appellant presents the following issues on appeal:
A. Did the trial court err or abuse its discretion in granting the
Commonwealth’s petition for writ of certiorari or notice of
appeal and reinstating charges at the magisterial level where
those charges resulted from the re-filing of the same charges
and based upon the same set of facts and circumstances to
which [] Appellant had earlier pled guilty before [the MDJ],
which violated the Double Jeopardy Clause of the United States
and Pennsylvania Constitutions, U.S. Const. Amend. V & XIV;
Pa. Const. Art. 1, § 10 and 18 Pa.C.S.[] §§ 109 & 110(a)(1)(ii).
1. Did the trial court err or abuse its discretion in concluding
that the Commonwealth was the only entity which could
authorize the withdrawal of felony charges and substitute
those offense[s] with a summary offense, before [the
-3-
J-S34008-21
MDJ], to which [] Appellant pled, where an officer acted
as a “designee” of the Commonwealth?
2. Did the trial court err or abuse its discretion in concluding
that the [MDJ] did not possess subject matter jurisdiction
to allow the charges to be withdrawn and, then, accept a
plea to a summary offense and, then, rule upon the bar
of compulsory joinder and double jeopardy?
3. Did the trial court err in granting the Commonwealth’s
petition for writ of certiorari or notice of appeal where
neither was timely filed and, therefore, the trial court did
not possess jurisdiction to grant relief?
4. Was [] Appellant deprived of his right to avoid being
placed twice in jeopardy and the protections afforded by
the principles of compulsory joinder?
Appellant’s Brief at 4.
Each of Appellant’s issues challenges the trial court’s order granting the
Commonwealth’s writ of certiorari. “We will not disturb the lower court’s
issuance of a writ of certiorari unless we find an abuse of discretion.”
Commonwealth v. Noss, 162 A.3d 503, 507 (Pa. Super. 2017). “[C]ertiorari
provides a narrow scope of review in a summary criminal matter and allows
review solely for questions of law.”
Id. (citation omitted). Because our review
here is only of a question of law, our standard of review is de novo, and our
scope of review is plenary.
Id.
In his first issue, Appellant asserts that the trial court erred in concluding
that Officer Navarro was not a Commonwealth designee with authority to enter
into a plea agreement with Appellant. Appellant’s Brief at 11-19. Appellant
argues that because Pa.R.Crim.P. 551 does not limit Commonwealth
designees to attorneys, it is reasonable to conclude that Officer Navarro was
-4-
J-S34008-21
a Rule 551 designee of the Commonwealth who had the attendant authority
to withdraw the felony Retail Theft charge and refile the charge as a summary
offense. Id. at 13.
In support of this claim, Appellant argues that because the
Commonwealth did not exercise its “option to initially assume charge over the
prosecution” by sending an assistant district attorney at Appellant’s
preliminary hearing, and because Officer Navarro initiated the case against
Appellant by filing the criminal complaint against him, “it [was] left to the
officer . . . to prosecute the case.” Id. at 15. Appellant concludes, therefore,
that when the Commonwealth left Officer Navarro alone to prosecute the case,
he was “a de facto ‘designee’ of the attorney for the Commonwealth” and it
was “appropriate for [him] to withdraw the charges before the magisterial
district judge under [Rule] 551.” Id. Stated another way, Appellant argues
that Officer Navarro became the Commonwealth’s designee because of the
lack of contact between Officer Navarro and the assistant district attorney.
Rule 551 provides, in relevant part, that only “the attorney for the
Commonwealth, or his or her designee,” may withdraw charges and “[t]he
withdrawal shall be in writing.” Pa.R.Crim.P. 551.
This Court recently interpreted Rule 551 in Noss, supra. In Noss, we
held that, absent evidence that an assistant district attorney had authorized
one of two police officers who signed the criminal complaint to withdraw a
felony charge against the defendant, the officer was not a Rule 551 designee
of the Commonwealth and, thus, the officer lacked the authority to withdraw
-5-
J-S34008-21
the charge. Noss, 162 A.3d at 508. See also Commonwealth v. Santiago,
__ A.3d __, __,
2022 WL 175802, at *4 -*6 (Pa. Super. filed Jan. 20, 2022)
(applying Noss). Here, there is similarly no evidence that the assistant district
attorney authorized Officer Navarro to act as her designee.
Appellant argues that the holding in Noss is inapplicable here because,
in Noss, the prosecutor “exercised uninterrupted authority over the
prosecution” from its inception by approving and signing the criminal
complaint, being present at the first scheduled preliminary hearing that the
court continued, and again at the second scheduled preliminary hearing to
request an additional continuance. Appellant’s Brief at 16-17, 19. In contrast,
in the instant case, Officer Navarro, and not an assistant district attorney,
exercised authority over the prosecution “from the very beginning through the
preliminary hearing and was the de facto ‘designee’ of the Commonwealth.”
Id. at 19. Given the officer’s alleged status as “de facto designee”, Appellant
concludes that Officer Navarro “possessed the authority to amend or withdraw
the charges . . . and, then, re-file the charges as summary offenses.” Id.
We are unpersuaded by Appellant’s effort to distinguish Noss. Simply,
our holding in Noss hinged not on the level of involvement of the prosecutor
in the case prior to and at the time the officer withdrew the felony charge.
Rather, the basis for the Noss holding is the absence of record evidence
indicating that the prosecutor had authorized the police officer to act as its
designee.
-6-
J-S34008-21
Here, there is similarly no record evidence that the assistant district
attorney authorized Officer Navarro to act as her designee. Accordingly,
Appellant has not established that Officer Navarro was acting as the
Commonwealth’s designee when he withdrew the felony charge and purported
to enter into a plea agreement with Appellant. Appellant’s guilty plea was,
thus, a legal nullity. See Santiago, supra, at *6 (concluding that the
improper withdrawal of a felony charge and resulting conversion to a summary
offense rendered the guilty plea to the summary offense null).
Moreover, Appellant has not cited any authority supporting the
propositions that (1) the absence of evidence indicating that the
Commonwealth authorized a police officer to act as its designee indicates that
the officer has de facto authorization to act as such and (2) the less contact
an officer has with a prosecutor, the more “designated” the officer becomes,
and we have found none. For the foregoing reasons, Appellant is, thus, not
entitled to relief on his first claim.3
In his next issue, Appellant claims that the trial court erred in granting
the Commonwealth’s writ of certiorari or notice of appeal where the
Commonwealth untimely filed them. Appellant’s Brief at 23-25.
____________________________________________
3 In Appellant’s bootstrapped second issue, he claims that the trial court erred
when it concluded that the MDJ lacked subject matter jurisdiction to permit
the withdrawal of the felony Retail Theft charges and accept Appellant’s plea
to a summary offense because Officer Navarro was acting as the
Commonwealth’s designee when he withdrew the felony charges and, thus,
only the summary offense over which the MDJ unquestionably had jurisdiction
was ever before the MDJ. Appellant’s Brief at 20-23. In light of our disposition
of Appellant’s first issue, we need not address this claim.
-7-
J-S34008-21
Generally, the trial court lacks jurisdiction to issue a writ of certiorari to
a petitioner who files the petition for writ more than 30 days after a conviction.
Commonwealth v. Menezes, 871 A.2d 204, 207 (Pa. Super. 2005).
Similarly, Pa.R.Crim.P. 460 provides, in relevant part, that an appeal from a
summary proceeding must be filed within 30 days after the entry of a guilty
plea. Pa.R.Crim.P. 460(A).
Here, however, the timeliness rules are not applicable. In light of our
conclusion that Appellant’s guilty plea to summary Retail Theft was a legal
nullity, there is no plea upon which to apply the timeliness rules. Accordingly,
Appellant’s third claim fails.
Last, Appellant claims that the trial court violated the double jeopardy
clauses of the United States and Pennsylvania Constitutions when it reinstated
the felony charge after the MDJ had accepted Appellant’s guilty plea.
Appellant’s Brief at 25-28. We disagree.
As the Noss Court recognized, jeopardy does not attach where the
proceeding upon which the conviction is based was itself a legal nullity. Noss,
162 A.3d at 509 (citing United States v. Tateo,
377 U.S. 463, 465 (1964)
(concluding that the Fifth Amendment does not preclude retrying a defendant
whose conviction is set aside because of an error in the proceedings leading
to conviction)).
Instantly, as explained above, Officer Navarro was not authorized to act
as the Commonwealth’s designee when he withdrew the felony charge and
agreed to Appellant’s guilty plea. Thus, Appellant’s plea was a legal nullity
-8-
J-S34008-21
and jeopardy did not attach. Accordingly, we find that the trial court did not
violate the double jeopardy clause of the United States and Pennsylvania
Constitutions.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 01/24/2022
-9-
