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HomeMy WebLinkAboutCP-21-CR-1991-2004 COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : V. : : TIMOTHY LAWLER YOHE : CP-21-CR-1991-2004 IN RE: PETITION FOR POST-CONVICTION RELIEF BEFORE BAYLEY, J. OPINION AND ORDER OF COURT Bayley, J., February 6, 2008:-- May 7, 2007 On , Petitioner, Timothy Lawler Yohe, filed a petition for post- August conviction relief. Counsel was appointed and an amended petition was filed on 10, 2007October 11, November 19November 27, . Hearings were conducted on and 2007 . Petitioner was charged in an information with unlawful possession with intent to 1 deliver a schedule II (cocaine) controlled substance, a felony and altered, forged or 2 January 10, 2006 counterfeit documents and plates, a misdemeanor one. On , he entered a guilty plea to unlawful possession with intent to deliver a schedule II (cocaine) controlled substance in satisfaction of the other charge. The basis of the plea was set forth in the colloquy: th DISTRICT ATTORNEY: June 9, 2004, at 8:40 in the morning, police were dispatched to the parking lot of Kentucky Fried Chicken, Lemoyne, __________ 1 35 P.S. § 780-113(a)(30) and 780-115. 2 75 Pa.C.S. § 7122(1) and (3). CP-21-CR-1991-2004 Cumberland County, because of reports of two suspicious vehicles in the parking lot and people throwing trash from the vehicles. The defendant, the driver of the Dodge truck was approached. He admitted to owning the truck. The license on the driver’s truck had a counterfeit registration sticker on the license plate. He was placed under arrest. A search warrant was executed on the defendant’s truck, and the search warrant uncovered a container containing baking soda, and electronic scale, a mixing tool, 11 bags containing a combined 24.42 grams of crack cocaine and packaging material. The Commonwealth waived a five year mandatory sentence, and defendant was immediately sentenced under a plea agreement to pay the costs of prosecution, make restitution of $250 to William Fultz, $1,140.90 to Mutual Benefit Group, and $300 to Rick Shuler, and to undergo imprisonment in a state correctional institution for not less 3 January 19, 2006 than three and a half years or more than ten years. On , the Commonwealth filed a motion to modify the sentence to adjust the restitution order. January 30, 2006 The following order was entered on : “the Commonwealth’s Motion to Modify Sentence is hereby GRANTED. Defendant Timothy Lawler Yohe is Ordered to pay $965.90 restitution to William Fultz. All other terms and conditions of the sentence 4 remain unchanged.” Petitioner did not file a direct appeal from the judgment of sentence within thirty days of the order of January 30, 2006, disposing of the Commonwealth’s post-sentence motion. Therefore, the judgment of sentence became __________ 3 It was also ordered that petitioner’s Dodge was forfeited. The mandatory sentence was triggered because petitioner had a prior drug conviction in 1998 for which he was sentenced to not less than six months or more than 23 months. 4 Petitioner, pro se, filed an untimely post-sentence motion on May 26, 2006. It was dismissed without a hearing on May 30, 2006. -2- CP-21-CR-1991-2004 5 final on March 2, 2006. The Commonwealth maintains that this court lacks jurisdiction because the petition for post-conviction relief was filed beyond the one year period of limitations. If et this petition for relief under the Post-Conviction Relief Act, 42 Pa.C.S. Section 9541 seq. , is not filed within the period of limitations set forth in Section 9545(b), this court Commonwealth v. Pursell, has no jurisdiction to grant relief. See 749 A.2d 911 (Pa. 2000). Section 9545(b) provides: (1) Any petition under this subchapter, including a second or subsequent petition, shall be filed within one year of the date the judgment becomes final, unless the petition alleges and the petitioner proves that: (i) the failure to raise the claim previously was the result of interference by government officials with the presentation of the claim in violation of the Constitution or laws of this Commonwealth or the Constitution or laws of the United States; the facts upon which the claim is predicated were (ii) unknown to the petitioner and could not have been ascertained by the exercise of due diligence ;or (iii) the right asserted is a constitutional right that was recognized by the Supreme Court of the United States or the Supreme Court of Pennsylvania after the time period provided in this section and has been held by that court to apply retroactively. (2) Any petition invoking an exception provided in paragraph (1) shall be filed within 60 days of the date the claim could have been presented. (3) For purposes of this subchapter, a judgment becomes final at __________ 5 Pa.R.Crim.P. 721(A)(1) provides “The Commonwealth may challenge a sentence by filing a motion to modify sentence . . . .” Rule 720(A)(4) provides: If the Commonwealth files a timely motion to modify sentence pursuant to Rule 721, the defendant’s notice of appeal shall be filed within 30 days of the entry of the order disposing of the Commonwealth’s motion. -3- CP-21-CR-1991-2004 the conclusion of direct review, including discretionary review in the Supreme Court of the United States and the Supreme Court of Pennsylvania, or at the expiration of time for seeking the review. (Emphasis added.) Petitioner maintains that the facts upon which this post-conviction claim of ineffective assistance of trial counsel is predicated did not become known to him until after he hired a private attorney who, at the end of April or the beginning May, 2007, obtained a copy of a search warrant that was issued on June 10, 2004, which he maintains he had never seen before he entered his plea of guilty. He then filed this post-conviction petition within the sixty days required in Section 9545(b) of the Post- Conviction Relief Act. He claims that his plea of guilty was unlawfully induced because his counsel did not file a motion to suppress all evidence seized by Officer Hair, a police officer in the West Shore Regional Police Department in Cumberland County, that was recovered from his Dodge truck during the search on June 10, 2004, at Ken’s Service Center in New Cumberland, York County. June 10, 2004 On , Officer Hair filed an affidavit of probable cause before a Magisterial District Judge in York County to obtain a search warrant for petitioner’s 1996 Dodge that the officer had towed from Lemoyne, Cumberland County, to Ken’s Service Center, 335 Pleasant View Road, New Cumberland, York County. The affidavit of probable cause set forth: On Wednesday, June 9, 2004 at 0845 hours I was dispatching [sic] to the parking lot of Kentucky Fried Chicken, 313 Lowther Street, Lemoyne, PA 17043, for three suspicious individuals throwing trash out of a truck and letting it lay on the ground. This was reported by the manager -4- CP-21-CR-1991-2004 of the business. i [sic] arrived on the scene and spoke with the manager who directed me to a white Oldsmobile and a white Dodge. I went to those vehicles and made contact with a white female, white male and a black male. I got identification from all three and asked County Control to run the license plates on the vehicles. The white male, identified by a Pennsylvania Identification Card as Timothy Lawler Yohe, 126 Spring Road, Dillsburg, PA 17019, said that he was operating the Dodge truck and that it was registered to his business. The plate displayed on the truck was Pennsylvania YLC-3736. The check showed that it expired 03/04 but a sticker of 05/05 was displayed. I spoke with Yohe who told me his current address is 4501 Far Green Road, Linglestown, PA 17110. He also said that the sticker was not valid and should not be on that plate. Yohe was taken into custody for altered, forged or counterfeit documents or plates. Ken’s Service Center, 3353 Pleasant View Road, New Cumberland, PA 17070, was contacted to impound the vehicle. Prior to the removal, an inventory of the vehicle was started. Drug paraphernalia was observed in the vehicle and the inventory was stopped. Based on this affiant’s training and experience, I am aware that people involved in the use, sale and distribution of illegal drugs often keep those drugs and other indicia of such activity in their vehicles. A search warrant was issued and Patrolman Hair searched petitioner’s Dodge at Ken’s Service Center on June 10, 2004. The cocaine that was seized during the search formed the basis of the count of unlawful possession with intent to deliver a schedule II (cocaine) controlled substance to which petitioner pled guilty. Patrolman Hair had no involvement with a York County police officer or a Pennsylvania State policeman in either obtaining the search warrant from the Magisterial District Judge in York County, or when he searched petitioner’s Dodge at Ken’s Service Center in York County. It is on that basis that petitioner maintains that all evidence recovered from that search should have been suppressed. -5- CP-21-CR-1991-2004 June 18, 2004 On , Patrolman Hair filed another affidavit of probable cause before the same York County Magisterial District Judge seeking to again search petitioner’s Dodge vehicle at Ken’s Service Center in York County. After setting forth the same facts that are set forth in the affidavit of probable cause for the search warrant that was issued on June 10, 2004, the affidavit continues: A search warrant was served on the Dodge truck as well as the Oldsmobile on 06/10/04 at Ken’s Service Center, a secured lock up facility, and drugs, pipes and other paraphernalia were seized from the white Dodge truck. In the driver’s door panel an electronic scale, baking powder and a small milling device were found along with a clear plastic baggie with white residue. Under the driver’s seat a cut metallic beer can with burnt residue was found and behind the driver’s seat a silver metallic pipe was found along with a clear plastic baggie with white substance. From inside the center arm rest area a plastic baggie with 8 tablets of an unknown substance were found. A Pepsi can with burnt residue was located behind the passenger seat. A Kodak film canister with white powder, a clear plastic baggie containing 8 smaller baggies with white powder and a red plastic straw with white residue was found in the leg/support of the rear bench seat on the passenger side of the truck. On Monday 6/14/04 information was received after the first search warrant was issued from Newberry Township Police Department from a confidential informant to them. The informant stated that the white Dodge truck at Kens had five pounds of marihuana on the frame. Contact was made with ADA Dave Freed who requested a Narcotic Dog and handler be brought to that location for an exterior search. Previously drugs were field tested and the testing was positive for Cocaine. On Thursday 6/17/04 Trooper Housel and Police Narcotics Dog “Willy” were called to Ken’s Service Center for an exterior search of a Dodge truck previously impounded and in the presence of Patrolman Todd Ambrose, West Shore Regional Police Department and Detective James Heck of the Cumberland County Drug Task Force. Willy and Trooper Housel are trained and certified as a team by the Pennsylvania State Police since November of 2000. Willy is trained to detect the odor of marihuana, hashish, cocaine, crack cocaine, methamphetamine and heroin. As Willy went around the truck he gave an alert, which was noted -6- CP-21-CR-1991-2004 by a head turn and an increase in breathing. He then gave an indication to the presence of one of these odors by scratching at the passenger side doors and the underneath of the truck bed. This was noted by Willy scratching and biting at these areas which are the trained behaviors of K- 9 Willy when he encounters the odors he is trained to detect. A search warrant was issued and the Dodge was searched that day by Patrolman Hair. No contraband was found. At the post-conviction hearing, petitioner testified that this was the only search warrant that he saw prior to his entering a plea of guilty. His trial counsel testified that she had a copy of the search warrant that was issued on June 10, 2004 in her files, and she believes she provided a copy to th petitioner. Counsel testified that she knew of the June 10 warrant before petitioner entered his plea of guilty, and she knew that the seizure of the cocaine from petitioner’s vehicle was as a result of that warrant. She testified that she would never have allowed petitioner to plead guilty to possession with intent to deliver that cocaine if she had not been aware that it was seized from his vehicle on June 10, 2004. For petitioner to suggest he entered a plea of guilty to possession with intent to deliver cocaine based only on knowledge of a search of his vehicle on June 18, 2004, when no contraband was found, is as absurd as to believe that his trial counsel would have allowed him to enter the plea if she did not know the cocaine which he was admitting he possessed with an intent to deliver was recovered from his vehicle pursuant to the search warrant issued on June 10, 2004. Petitioner’s own testimony is belied by the fact that he acknowledges that he had in his possession before his plea of guilty the affidavit of probable cause for the search warrant issued on June 18, 2004, -7- CP-21-CR-1991-2004 which starts as follows: A search warrant was served on the Dodge truck as well as the Oldsmobile on 06/10/04 at Ken’s Service Center, a secured lock up facility, and drugs, pipes and other paraphernalia were seized from the white Dodge truck. We find that the facts upon which petitioner’s current claim is predicated were known to him at the time of his plea, and thus clearly were ascertainable to him with the exercise of due diligence well within one year from the date his conviction became final. This court has no jurisdiction to decide the merits of the claim raised in this petition for post-conviction relief. ORDER OF COURT AND NOW, this _________ day of February, 2008, the within petition for post- IS DISMISSED. conviction relief, By the Court, Edgar B. Bayley, J. Michelle Sibert, Esquire Assistant District Attorney Allen C. Welch, Esquire For Petitioner :sal -8- COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : V. : : TIMOTHY LAWLER YOHE : CP-21-CR-1991-2004 IN RE: PETITION FOR POST-CONVICTION RELIEF BEFORE BAYLEY, J. ORDER OF COURT AND NOW, this _________ day of February, 2008, the within petition for post- IS DISMISSED. conviction relief, By the Court, Edgar B. Bayley, J. Michelle Sibert, Esquire Assistant District Attorney Allen C. Welch, Esquire For Petitioner :sal