HomeMy WebLinkAboutCP-21-CR-0922-2001
COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
V.:
:
JOHN JAY GEPHART : NO. CP-21-CRIMINAL 0922 – 2001
:
:
IN RE: OPINION PURSUANT TO Pa. R.A.P. 1925
Guido, J., August , 2007
Defendant has filed an appeal from our order of April 18, 2007 denying his
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request for relief under the Post Conviction Relief Act (hereafter PCRA). The reasons
for our decision are set forth in this opinion.
On October 9, 2001, defendant John Jay Gephart, was sentenced after being
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convicted of statutory sexual assault, involuntary deviate sexual intercourse, indecent
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assault, and corruption of minors. He filed a timely appeal in which he alleged
ineffectiveness of trial counsel as well as trial court error. On March 6, 2003 the Superior
Court filed a memorandum opinion affirming judgment of sentence in part and vacating it
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in part. The Superior Court dismissed defendant’s ineffectiveness claims without
prejudice so that they could be raised in a PCRA petition. Additionally, the Superior
Court found that this Court did not abuse its discretion in its decision to deny defendant’s
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motion for recusal.
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42 Pa.C.S.A. 9541, et seq. He has actually filed two notices of appeal. One was filed prematurely on
March 28, 2007, apparently in response to our order of March 9, 2007, granting counsel’s request to
withdraw and notifying defendant of our intention to dismiss his PCRA petition. The second was timely
filed on April 28, 2007.
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18 Pa.C.S. § 3122.1
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18 Pa.C.S. § 3123(a)(7).
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18 Pa.C.S. § 3126(a)(8).
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18 Pa. C.S. § 6301(a).
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A portion of the sentencing order not relevant to these proceedings was vacated.
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The disposition of Defendant’s other claims of trial court error are not relevant to the present matter.
NO. CP-21-CRIMINAL 0922 – 2001
On March 10, 2004 defendant filed his first PCRA petition. Defendant asserted
three grounds for relief: 1) ineffectiveness of counsel for failing to call Tanya Dedyo,
M.D. as a witness; 2) ineffectiveness of counsel for failing to move to suppress
defendant’s inculpatory statement made to the police; and 3) trial court error in denying
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defendant’s motion for recusal. An evidentiary hearing was held on September 29,
2004. On December 20, 2004 defendant’s request for relief was denied. Defendant
appealed to the Superior Court. The sole issue raised on appeal was that the PCRA court
erred in denying defendant’s petition with respect to his claim of ineffective assistance of
counsel for failing to call a witness. On December 14, 2005, the Superior Court affirmed
the order denying defendant’s petition for relief under the PCRA.
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On December 26, 2006 defendant filed the instant PCRA petition. On January
16, 2007 counsel was appointed to represent him in connection with that second petition.
Counsel was given 30 days to file an amended petition if he deemed it appropriate. No
amended petition was filed. Instead, on March 8, 2007 counsel filed a motion to
withdraw pursuant to Commonwealth v. Turner, 518 Pa. 532, 544 A.2d 927 (1989). The
motion was granted on March 9, 2007. On April 17, 2007 defendant’s second PCRA
petition for relief was denied without a hearing because it did not raise any issues that had
not already been addressed on his direct appeal and/or the first petition.
__________________ ________________________
DATE Edward E. Guido, J.
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This final claim was dismissed for having been previously litigated on direct appeal.
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This petition was mistakenly labeled as a Writ of Habeas Corpus.
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NO. CP-21-CRIMINAL 0922 – 2001
Jaime Keating, Esquire
For the Commonwealth
Charles Mackin, Esquire
For the Defendant
John Jay Gephart
Probation
Court Administrator
:sld
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