HomeMy WebLinkAbout99-2302 criminalCOMMONWEALTH IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
V.
WARREN HARRISON RILEY 99-2302 CRIMINAL TERM
IN RE: OPINION PURSUANT TO PENNSYLVANIA RULE OF APPELLATE
PROCEDURE 1925
Bayley, J., May 2, 2000:--
On January 19, 2000, defendant, Warren Harrison Riley, was found guilty by a
jury of aggravated harassment by a prisoner in violation of the Crimes Code at 18
Pa.C.S. Section 2703.1. He spit on a correctional officer while incarcerated at the State
Correctional Institution at Camp Hill. On February 29, 2000, defendant was sentenced
to undergo imprisonment in a state correctional institution for a term of not less than two
years nor more than four years, to run consecutive to any sentence previously imposed.
On March 10, 2000, defendant's court-appointed trial counsel filed a timely optional
post-sentence motion, stating that "Defendant requests a new trial on the basis that his
court-appointed counsel was ineffective .... "On March 13, 2000, defendant's court-
appointed trial counsel was allowed to withdraw and new counsel was appointed to
represent defendant?
On March 24, 2000, defendant filed a direct appeal from the judgment of
~ Trial counsel cannot proceed on a claim alleging his own ineffectiveness.
Commonwealth v. Davis, 652 A.2d 885 (Pa. Super. 1995).
99-2302 CRIMINAL TERM
sentence to the Superior Court of Pennsylvania. He has filed a concise statement of
matters complained of on appeal alleging that:
a. Trial counsel failed to file a motion for discovery pursuant to
Pa.R.Crim. P. 305, and as such, trial counsel was not familiar with all of
the evidence the Commonwealth used to gain a conviction against the
defendant; and
b. Trial counsel was ineffective in failing to secure a more
favorable plea bargain for the benefit of the defendant which would have
enabled the defendant to avoid a trial in this case.
Defendant then sought a hearing on these claims of ineffectiveness of trial counsel.
Pennsylvania Rule of Appellate Procedure 1701(a) provides:
Except as otherwise prescribed by these rules, after an appeal is
taken.., the trial court.., may no longer proceed further in the matter.
The exceptions in Rule 1701 as to when a trial court does not lose jurisdiction upon the
filing of an appeal are not present in this case.
Under Pa.R.Crim. P. 1410(B)(2)(b), a trial judge is to determine whether a
hearing is required when an optional post-sentence motion is filed. Under Rule
1410(B)(3) a decision must be rendered on an optional post-sentence motion within
120 days of its filing, or within 150 days if a thirty-day extension has been granted,
otherwise, the motion is denied by operation of law. Under Rule 1410(A)(2), a
defendant may file a direct appeal to the Superior Court of Pennsylvania within thirty
days of the entry of an order denying an optional post-sentence motion or within thirty
days of the date the motion was denied by operation of law.
A hearing is required in this case on defendant's claim that his trial counsel was
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99-2302 CRIMINAL TERM
ineffective. In Commonwealth v. Penrose, 669 A.2d 996 (Pa. Super. 1995),
defendant, after sentence, obtained new counsel and filed a direct appeal to the
Superior Court of Pennsylvania which included three substantive claims and three
ineffective assistance of counsel claims. The Superior Court affirmed on all issues
except for two of the ineffective assistance of counsel claims on which it relinquished
jurisdiction and remanded to the trial court to determine those issues. While we have
time in which to set a hearing and decide defendant's optional post-sentence motion
challenging the effectiveness of his trial counsel, we have nevertheless lost jurisdiction
by virtue of defendant having filed a direct appeal from his judgment of sentence to the
Superior Court of Pennsylvania. We must wait until we again have jurisdiction to
proceed further. ~y
Edgar B. Bayle
Michael Ferguson, Esquire
Assistant District Attorney
Michael A. Scherer, Esquire
Court-appointed for defendant
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