J-S27003-21

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

JAMES RICHARD SCHMIDT 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 109 WDA 2021

Appeal from the Judgment of Sentence Entered January 14, 2021

In the Court of Common Pleas of Butler County Criminal Division at 

No(s): CP-10-CR-0000659-2019

BEFORE: OLSON, J., NICHOLS, J., and COLINS, J.*

MEMORANDUM BY OLSON, J.: FILED: December 7, 2021

Appellant, James Richard Schmidt, appeals from the judgment of 

sentence entered on January 14, 2021, following his guilty plea to one count 

of sexual abuse of children. 18 Pa.C.S.A. § 6312(d). We affirm.

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

follows. On December 3, 2020, Appellant entered a negotiated guilty plea to 

the aforementioned offense. The Commonwealth’s recommended sentence, 

which was incorporated into the parties’ agreement, included “a term of 

intermediate punishment of 24 months with the first six months on 

[e]lectronic [m]onitoring, the balance on restorative sanctions[,]” plus any 

court ordered fines and restitution. N.T., 12/3/2020, at 3. The 

Commonwealth noted the crime also constituted a Tier One offense under the 

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* Retired Senior Judge assigned to the Superior Court.
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Sexual Offender Registration and Notification Act (SORNA) and Appellant 

would be required to register as a sex offender for 15 years. Id. at 3, 6-7. 

The trial court accepted the plea agreement, ordered a report from the Sexual 

Offenders Assessment Board (SOAB), and scheduled sentencing for January 

2, 2020. Id. at 8. When the SOAB did not provide a court-ordered report to 

the Commonwealth, the trial court entered an order on January 3, 2020 

generally continuing the matter “to be rescheduled upon receipt of the report.” 

Trial Court Order, 1/3/2020, at 1. The Commonwealth received the SOAB 

report on February 20, 2020. No further action was taken by the trial court 

or the Commonwealth at that time. 

On November 5, 2020, Appellant filed a motion to dismiss the charge 

against him. Citing Pa.R.Crim.P. 704, Appellant alleged that the 

Commonwealth failed to exercise due diligence in sentencing him in a timely

fashion. The trial court held a hearing on Appellant’s motion to dismiss on 

December 4, 2020. Appellant argued that he was “on pre-trial supervision as 

part of his bond” for two years and “if he had been sentenced, he would have 

at least a year already into his sentence [and h]is house arrest period would 

have been done.” N.T., 12/4/2020, at 3. Appellant averred that despite his 

compliance with bond requirements, “he [was] not entitled to credit towards 

his sentence [and,] therefore, in essence denied the benefit of his [] plea 

agreement.” Id. In response, the Commonwealth argued that Appellant was 

not prejudiced because he rejected the Commonwealth’s subsequent offer to 

reduce his negotiated sentence “to 12 months’ probation to essentially give 
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[Appellant] credit for the 12 months he[ was] on pre-trial [supervision] since 

his plea date.” Id. at 4. Finding no prejudice to Appellant, the trial court 

denied Appellant’s motion to dismiss and scheduled sentencing. Id. at 5. The 

trial court entered an order denying Appellant’s motion to dismiss on 

December 8, 2020. On January 14, 2021, the trial court held a hearing and

sentenced Appellant “pursuant to the plea agreement[.]” N.T., 1/14/2021, at 

4. The trial court filed a sentencing order the same day. This timely appeal 

resulted.1

On appeal, Appellant presents the following issue for our review:

Whether the trial court erred as a matter of law[] or abused its 

discretion by denying Appellant’s motion to dismiss pursuant to 

Pa.R.Crim.P. 704?

Appellant’s Brief at 10 (complete capitalization omitted).

Pennsylvania Rule of Criminal Procedure 704 provides that “sentence in 

a court case shall ordinarily be imposed within 90 days of conviction or the 

entry of a plea of guilty[.]” Pa.R.Crim.P. 704(A)(1). “When the date for 

sentencing in a court case must be delayed, for good cause shown, beyond 

the time limits set forth in this rule, the judge shall include in the record the 

specific time period for the extension.” Pa.R.Crim.P. 704(A)(2). “Failure to 

sentence within the time specified in paragraph (A) may result in the discharge 

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1

 Appellant filed a notice of appeal on January 15, 2021. On January 21, 

2021, the trial court ordered Appellant to file a concise statement of errors 

complained of on appeal pursuant to Pa.R.A.P. 1925(b). Appellant complied 

timely on January 25, 2021. The trial court issued an opinion pursuant to 

Pa.R.A.P. 1925(a) on February 25, 2021. 
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of the defendant.” Pa.R.Crim.P. 704, Comment, citing Commonwealth v. 

Anders, 725 A.2d 170 (Pa. 1999) (discharge is appropriate remedy for 

violation of Rule 704 time limits, but only if the defendant can demonstrate 

that the delay in sentencing was prejudicial to the defense).

We have previously determined:

[...When considering] whether discharge is appropriate, the trial 

court should consider: (1) the length of the delay falling outside 

Rule 704's 90-day–and–good–cause provisions; (2) the reason for 

the improper delay; (3) the defendant's timely or untimely 

assertion of his rights; and (4) any resulting prejudice to the 

interests protected by his speedy trial and due process rights. 

Prejudice should not be presumed by the mere fact of an untimely 

sentence.

Commonwealth v. Fox, 953 A.2d 808, 811–812 (Pa. Super. 2008) (internal 

citations omitted).

In weighing the prejudice that emerges from a delay in the imposition 

of a criminal sentence, our Supreme Court has stated:

prejudice to the defendant, must be assessed within the context 

of those interests which the speedy trial right protects: (1) 

preventing oppressive pretrial incarceration; (2) minimizing the 

accused's anxiety and concern; and (3) limiting the impairment of 

the defense. The last consideration, impairment of or prejudice 

to the defense, represents the most serious of these three 

concerns, because the inability of a defendant adequately to 

properly prepare his case for trial skews the fairness of the entire 

system.

Commonwealth v. DeBlase, 665 A.2d 427, 436 (Pa. 1995), citing Barker 

v. Wingo, 407 U.S. 514, 532 (1972).

“Because evidentiary hearings are necessary under Pa.R.Crim.P. 704, it 

follows that whether to discharge a defendant [] cannot be a pure question of 
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law for de novo review by this Court.” Commonwealth v. Neysmith, 192 

A.3d 184, 192 (Pa. Super. 2018). Thus, we have “conclude[d] that whether 

discharge is required when sentencing occurs after the 90 days under Rule 

704 presents a mixed question of fact and law.” Id. Since Rule 704 requires 

“courts to evaluate amorphous concepts such as ‘length of delay,’ ‘good 

cause,’ and ‘prejudice[]’ [which] are case-specific and fact-intensive[,] we 

[have] conclude[d] that factual aspects predominate this mixed question of 

law and fact, and the trial judges sit in the best position to determine the 

causes and impacts of delays in their own courtrooms.” Id. “Hence, we defer 

to the trial court's judgment on this issue of alleged undue delay and shall 

reverse only for an abuse of discretion.” Id. “We have long held that mere 

errors in judgment do not amount to abuse of discretion; instead, we look for 

manifest unreasonableness, or partiality, prejudice, bias, or ill-will, or such 

lack of support so as to be clearly erroneous.” Id. (internal citations and 

quotation omitted). “In addition, a trial court abuses its discretion if the law 

is overridden or misapplied.” Id. at 193 (internal quotation and citations 

omitted). “[O]ur scope of review is limited to the evidence on the record of 

the Rule 704 evidentiary hearing and the factual findings of the trial court. 

Also, we must view the facts found in the light most favorable to the prevailing 

party.” Id.

Appellant contends that he encountered unnecessary and unreasonable 

delay in sentencing, arguing that the trial court violated Pa.R.Crim.P. 704 in 

two ways: 1) failing to provide a specific time-frame for sentencing when
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generally continuing the matter for the preparation of a report from the SOAB; 

and, 2) finding Appellant was not prejudiced by the delay. Appellant’s Brief 

at 14. Appellant maintains:

[...T]he length of delay falling outside of the 90[-]day time frame 

set forth by Pa.R.Crim.P. 704 is substantial. [Appellant] was 

ultimately sentence[d] over one year from his original 

sentence[ing] date and one year less one month following the 

SOAB assessment. No viable reason has been submitted to justify 

such a delay. The error began with the trial court’s failure to set 

forth a specific time frame for the extension of sentencing and was 

followed by the Commonwealth’s seeming complete inattention. 

The Commonwealth presented no reason, nor did the trial court 

make any finding of good cause for the delay. It was [] Appellant’s 

actions in filing a [m]otion to [d]ismiss that was the impetus for 

any movement of his case. The trial court found Appellant’s 

argument regarding resulting prejudice from the delay 

unpersuasive. However, the delay did result in cognizable 

prejudice to [] Appellant and therefore, dismissal is the 

appropriate remedy.

Id. at 17-18. More specifically, Appellant contends:

[he] had significant limitations placed on him pursuant to the 

conditions of pretrial services [while on non-monetary bond]. 

Those conditions remained in place for almost [two] years, 

including one year which was the result of the unnecessary delay 

in this matter. Appellant is not entitled to any credit towards his 

sentence for that nearly two[-]year time period, but nevertheless, 

he diligently reported and complied with probation conditions. 

Appellant can never recoup that time. The pretrial conditions are 

identical to that of a probation sentence. In essence, Appellant 

was serving a probation sentence without having been 

sentenced.[2] 

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2

 Appellant avers that he was required to report to, and follow the instructions 

of, the Office of Adult Probation; obtain permission to change residences or 

travel outside Butler County; report any contact with law enforcement; abstain 

from and submit to testing for alcohol or controlled substance use; relinquish 

(Footnote Continued Next Page)
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Id. at 19. Appellant also claims that his inability to begin his sentence and 

complete his SORNA registration caused him anxiety and concern and, 

therefore, prejudiced him. Id. at 20. Accordingly, Appellant argues that the 

trial court erred by denying his motion to dismiss pursuant to Pa.R.Crim.P. 

704. 

Here, the trial court found that Appellant failed to demonstrate 

prejudice.3 Trial Court Opinion, 2/25/2021, at 2. We agree. The trial court 

recognized that Appellant was not incarcerated prior to sentencing. Id. 

Accordingly, the conditions of his bond and pretrial services did not qualify as 

“oppressive pretrial incarceration” under the facts of this case.4 Moreover, 

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possession of firearms; authorize searches of his person and property; and 

refrain from any unsupervised contact with minors. Appellant’s Brief at 18-

19.

3

 We note that the Commonwealth concedes that it did “not have good cause 

for the delay in sentencing” and that “sentencing was delayed due to 

negligence, not some intentional delay on the part of the Commonwealth.” 

Commonwealth’s Brief at 5-6. As such, we confine our review to whether 

Appellant was prejudiced by the delay.

4 Appellant does not cite any authority to suggest that pretrial services or 

probation constitute oppressive pretrial incarceration. Upon independent 

review, we note that our Supreme Court has held that under the Pennsylvania 

Sentencing Code, “[t]ime spent on bail release [] does not qualify as custody 

for purposes of [] credit against a sentence of incarceration.” 

Commonwealth v. Kyle, 874 A.2d 12, 20 (Pa. 2005). “Bail is neither a form 

of, nor in any way synonymous with, custody or imprisonment; rather, it is a 

form of release from custody.” Id. (emphasis in original), citing

Commonwealth v. Chiappini, 782 A.2d 490, 503 (Pa. 2001), abrogated on 

other grounds. “[C]ommon bail conditions (such as surrendering a passport, 

a stay-away order, drug testing or a reporting requirement), which defendants 

often welcome, and even request, [are] desirable means of avoiding 

(Footnote Continued Next Page)
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Appellant pled guilty to the charged offense before the delay in sentencing. 

At the time of the plea, Appellant had already negotiated his sentence. Thus, 

Appellant knew that he would be sentenced in accordance with his plea 

agreement, which included a term of 24 months of intermediate punishment 

with the first six months on house arrest, together with a SORNA reporting 

requirement lasting 15 years. Once the trial court accepted Appellant’s guilty 

plea, it minimized Appellant’s anxiety and concern over the imposition of his 

sentence. Furthermore, Appellant’s guilty plea eliminated his need to

adequately prepare his case for trial and, thus, his defense clearly was not 

impaired by the delay in sentencing. Viewing the totality of the evidence in 

the light most favorable to the Commonwealth as required, because Appellant 

has not demonstrated he was prejudiced, we discern no abuse of discretion in 

the delay in sentencing Appellant. Accordingly, Appellant’s sole appellate 

issue lacks merit.

Judgment of sentence affirmed. 

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placement in actual custody in an institutional prison setting.” Kyle, 874 

A.2d at 21. The Kyle Court noted that “the very nature of bail” almost always 

imposes some type of restriction on a defendant, but that “[p]lainly stated, an 

individual who is released from custody cannot be said to be in custody.” Id.

at 22 (citation omitted).
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/7/2021