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HomeMy WebLinkAbout94-1401 CriminalCOMMONWEALTH IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA vs. : 94-1401 CRIMINAL TERM : CARL E. SHIPE : IN RE: OPINION PURSUANT TO RULE 1925 The defendant, Carl Edward Shipe, has appealed this court's denial of a petition for post- collateral relief. He had been convicted following a jury trial on January 19, 1995, of one count of involuntary deviate sexual intercourse, one count of aggravated indecent assault, one count of indecent assault, and one count of corruption of minors. The allegation was that the forty-year old defendant, Carl Shipe, sexually abused a nine-year old victim, Jessica W., during the period of April 1994 to July 1994. Mr. Shipe was a friend of the victim's mother, Cheryl W. The defendant filed a pro se motion for relief, pursuant to the Post-Conviction Relief Act, 42 Pa.C.S. Section 9541 et seq., on December 1, 1997. Therein, he alleges that court-appointed counsel at his previous PCRA hearing was ineffective because he, counsel, failed to amend the PCRA petition in order to raise certain issues. This court had held a hearing on September 26, 1996. At the hearing, the defendant, represented by newly appointed counsel, attempted to show that trial counsel, Aria Waller, Esquire, was ineffective. The procedural history of this case is, otherwise, as follows. After being convicted, the defendant filed a post-trial motion alleging insufficiency of evidence. On April 25, 1995, we denied this motion. The defendant appealed and we filed an opinion pursuant to Pa.R.A.P. 1925. The Superior Court affirmed the conviction on December 11, 1995. The defendant then filed his first PCRA petition and alleged ineffective assistance of counsel. This court held a hearing on September 26, 1996. On September 30, 1996, we denied 94-1401 CRIMINAL the defendant's petition, finding that his representation at trial had been entirely adequate. The defendant again appealed and we issued another opinion pursuant to Pa.R.A.P. 1925 on February 5, 1997. The Superior Court affirmed on November 20, 1997. Upon receipt of defendant's most recent PCRA petition, we issued an order, on January 7, 1998, pursuant to Pa.R. Crim. P. 1507(a), notifying the defendant of our intention to dismiss his motion. The cited rule provides that such an order may be entered if the judge is satisfied that there are no genuine issues of material fact and that no purpose would be served by any further proceedings. The defendant was given ten days within which to respond to the proposed dismissal. Mr. Shipe did not respond and we dismissed his PCRA motion on an order dated January 20, 1998. While reviewing the procedural rules in connection with the drafting of this opinion, we discovered that Pa.R.Crim. P. 1507(a) had been amended on December 1, 1997, changing the amount of time for response to a proposed order dismissing a PCRA petition from ten days to twenty days. Thus, our order of January 7th should have given the defendant twenty days within which to respond. We suggest, however, that this error is not fatal to the action we have taken in dismissing the defendant's petition. In Commonwealth v. Granberry, 434 Pa. Super. 524, 644 A.2d 204, 210 (1994), the appellant claimed that the trial court did not properly notify him of the summary dismissal of his petition as required in Pa.R.Crim. P. 1507(d). The Superior Court held that since "the appellant has had the opportunity to raise all issues that he desired in this appeal and in two prior appeals to this court, we find this issue to be without merit." Id_~. As in Granberry, we are satisfied that 2 94-1401 CRIMINAL the defendant has had every opportunity to raise issues in prior proceedings in this matter and that his current contentions are without merit. In his current PCRA petition, the defendant alleges that at his earlier PCRA hearing counsel was ineffective. Mr. Shipe alleges that his lawyer failed to amend the PCRA petition he filed on June 3, 1996, thus failing to raise certain issues. The PCRA hearing transcript, however, belies this contention. The record makes clear that the defendant was offered and, in fact, accepted the opportunity to raise issues which had not been alleged in his petition. The hearing transcript contains the following exchange between Mr. Shipe and his lawyer: Q (Appellant's attorney) I believe those were all the issues that were mentioned in your petition and that we talked about ourselves. Am I correct in that? A (Appellant) Be a little more clear on that. I don't quite, understand what you are saying. Q I believe I have covered all the issues that you have written in the motion and that you and I have talked about outside the motion. Are there any other issues that I haven't talked about that should be raised at this time? A Yeah. Exceptyou weren't aware of them either. Only I was. And they have to do with evidence that I feel is important. And they are based on these briefs that I have here and points, issues, that I feel are very, very important, and should at least be heard and leave, you know, you people take it from there. Q If I could ask what are those issues? 94-1401 CRIMINAL PCRA Hearing at 12-13 (emphasis added). The appellant went on to testify at length about many issues he thought were important and should be raised. These were then passed upon by the court. The defendant was not limited in his testimony to the contentions in his first PCRA petition. Instead, his PCRA attorney assured his client a full opportunity to be heard and counsel was, therefore, not ineffective. June g' * , 1998 Jaime Keating, Esquire Chief Deputy District Attorney Carl E. Shipe Number CX-3910 P. O. Box 1000 Houtzdale, PA 16690-1000 Defendant :rlm Kevig,A. Hess