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HomeMy WebLinkAboutCP-21-CR-2905-2006 COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : V. : : STANLEY LUMPKIN : CP-21-CR-2905-2006 IN RE: PETITION FOR POST-CONVICTION RELIEF OPINION AND ORDER OF COURT Bayley, J., July 30, 2008:-- Stanley Lumpkin was charged in an information with a count of retail theft (third 1 or subsequent offense) graded a felony in the third degree, and three counts of theft 2 June 12, 2007 by deception, each graded a misdemeanor in the third degree. On , defendant, while represented by public defender Arla Waller, pled guilty to the count of retail theft in full satisfaction of all charges. The plea colloquy was as follows: MR. KEATING: Number 226, Stanley Lumpkin, Your Honor, Mr. Lumpkin is present in court and is going to be pleading guilty to Count 1 in full satisfaction. Count 1 is retail theft, a third or subsequent offense. It’s a felony of the third degree, maximum fine of $15,000.00, maximum term of imprisonment seven years. The facts of this case occurred in Silver Springs Township at the nd Giant Food Store on June 22, 2006. The defendant walked into the store, made a refund of items that were offered for sale there, and then leaving the store he picked up two cases of coke that were offered for sale. He didn’t pay for them and left the store with the two cases of coke. The total amount $9.98. THE COURT: Does your client wish to plead guilty as indicated? MS. WALLER: Yes, Your Honor. In addition to what Mr. Dailey has said, the Commonwealth is recommending a sentence at the bottom of the standard range, and they’re also recommending work release for Mr. Lumpkin. MR. KEATING: Correct. __________ 1 18 Pa.C.S. § 3929(a)(1) 2 18 Pa.C.S. § 3922. CP-21-CR-2905-2006 MS. WALLER: We would ask, if the Court is available, if we could st have sentencing on August the 21. This will give Mr. Lumpkin time to get everything straight with work release. THE COURT: Sir, did you sign a rights form? THE DEFENDANT: Yes, sir. THE COURT: If you stole this stuff with the intent to deprive the owner of it permanently, that is retail theft. Because of your prior offenses, it is graded a felony three with a maximum penalty of seven years imprisonment and a fine. I will order a presentence investigation Sentencing is at my discretion. and bring you back for sentencing. Do you admit you committed the offense? THE DEFENDANT: Yes, sir. (Emphasis added.) A pre-sentence investigation was ordered and sentencing was set for September 4, 2007. He did not appear for sentencing and a bench warrant was issued for his arrest. He was arrested on the warrant on November 21, 2007. Defendant has an extensive criminal record including convictions for theft in 1999, 2001 and 2006, robbery in 2001, one retail theft in 2000 and four in 2001. The minimum range sentencing guidelines were: mitigated range, 3 months; standard range, 6-16 months; January 8, 2008 and aggravated range, 19 months. On , defendant was sentenced to undergo imprisonment in the Cumberland County Prison for a term of not less than six months or more than eighteen months, to date from November 21, 2007, with additional 3 credit for time served between November 1, 2006 and November 6, 2006. January 14, 2008 On , Lumpkin filed a pro se petition for post-conviction relief. Counsel was appointed. On April 11, 2008, counsel, with required notice to Lumpkin, filed a “no-merit” letter with a motion for leave to withdraw as counsel. The court __________ 3 Lumpkin was paroled on supervision on April 16, 2008. -2- CP-21-CR-2905-2006 provided notice to petitioner that it has reviewed the no-merit letter and that it was the intention of the court to allow counsel to withdraw and to dismiss the post-conviction petition without a hearing. Lumpkin was advised that he could proceed pro se or with 4 privately retained counsel and respond to the notice within twenty days of receipt. The “no merit” letter of counsel sets forth: Petitioner filed a petition for relief pursuant to the Post-Conviction Relief Act pro se on January 14, 2008. By Order of Court, dated January 22, 2008, the undersigned counsel was appointed to represent Petitioner regarding his Petition for Post Conviction Collateral Relief. The petition alleged several general grounds for relief including: (1) that he believed the items at issue were purchased by a friend of the petitioner; (2) that exculpatory surveillance video existed which was not provided to the petitioner, by trial counsel, which would have proven the petitioner’s innocence; (3) that he believed that his plea of guilty to retail theft was made in exchange for a plea to another charge; and (4) the petitioner believed that his sentence would be run concurrently to pending charges in Dauphin County. In an effort to investigate the claim raised by Petitioner in his PCRA Petition, undersigned counsel has reviewed the following items: (a) the Cumberland County Clerk of Court’s Docket and its entries; (b) the transcript of guilty plea proceedings; (c) the Pre-Sentence Investigation Report; (d) the Sentencing proceedings; (e) discovery materials relating to Petitioner; (f) Petitioner’s pro se PCRA Petition and (g) an in person conference with the Petitioner. Upon a thorough review, it is the undersigned counsel’s position that the issues the Petitioner wishes to raise are frivolous and wholly lacking merit. First, pursuant to 42 Pa.C.S. § 9545(b)(1), a PCRA petition must be filed within one year of the date the judgment becomes final. The petition was undoubtedly filed in a timely fashion as it was filed before the judgment of sentence became final since it was filed within thirty (30) days of the Order. As to the merits of the petition, the Petitioner’s first two claims were (1) that he believed the items in question were paid for by a friend and that (2) he believed video tape would prove his innocence and that it was not provided to him by his assigned counsel as he requested. Each of __________ 4 Commonwealth v. Friend, See 896 A.2d 607 (Pa. Super. 2006). -3- CP-21-CR-2905-2006 these claims concern the validity of the guilty plea, i.e. that the Petitioner, now post-sentencing is suggesting that he did not commit the crime he previously admitted to. In reviewing the guilty plea proceedings, the Court clearly engaged in the required colloquy to establish that the Petitioner voluntarily entered the guilty plea, that he was advised of his rights and that because of his prior convictions that he would be subject to the penalties appurtenant thereto. The Petitioner then admitted he committed the offense of retail theft. Pursuant to 42 Pa.C.S. §9543(a)(2)(ii) the Petitioner must plead and prove by a preponderance of the evidence that “[a] plea of guilty was unlawfully induced where the circumstances make it likely that the inducement caused the petitioner to plead guilty and the petitioner is innocent.” After reviewing all of the information available to the undersigned, there exists no evidence to suggest that the Petitioner was induced into admitting that he took with the intention to permanently deprive the owner thereof, cases of soda and did not pay for them. The Petitioner’s claims do not specifically allege that he did not commit the crime of retail theft and upon the information available and reviewed by the undersigned, the Petitioner’s only claim concerned the items involved in the counts for theft by deception, which were dismissed upon the Court’s acceptance of the guilty plea. It appears clear that the Petitioner is therefore unable to plead and prove by a preponderance of the evidence that he was somehow unlawfully induced into pleading guilty. Rather, it would seem that the Petitioner was dissatisfied with the outcome of his sentence, despite the fact that the sentence imposed was the shortest the Court could impose within the standard range of sentence. As to the third and fourth claims for relief, the Petitioner claims (3) he was under the belief that his retail theft conviction was in exchange for another retail theft and (4) that he was under the belief that his sentence would be run concurrent with another sentence imposed by Dauphin County. When a defendant enters into a negotiated plea agreement, a defendant is permitted to waive valuable rights in exchange for important concessions when entering into a knowing and voluntary plea agreement. Commonwealth v. Byrne, 833 A.2d 729 (Pa.Super. 2003), citing Commonwealth v. Anderson, 643 A.2d 109 (Pa.Super. 1994). At sentencing, Petitioner responded when questioned that he understood that his sentencing range was elevated due to his prior criminal record. Moreover, when he addressed the Court, the petitioner made no claim that he either did not understand the nature of the plea entered approximately seven months prior, or that he believed his sentence imposed was to be concurrent with some other sentence. Rather the -4- CP-21-CR-2905-2006 Petitioner’s arguments concerned his health conditions, the loss of his mother and his desire to “grow up” after making “dumb mistakes over the last 17 years of his life.” The Court noted the Petitioner’s criminal record and the nature of the offense charged and imposed a sentence at the bottom of the standard range. The Petitioner’s claim that he believed his plea was in exchange of another retail theft can only be presumed to mean that did not understand the nature of his plea. There is no suggestion in any evidence or pleading to suggest that the Petitioner did not understand then [sic] nature of his plea. Rather, the Commonwealth stated the facts in support of the plea, and the defendant acknowledged that he committed the offense. The remaining counts of theft by deception were dismissed as per the agreement, thus this claim is without merit. Likewise, neither the written plea colloquy, nor in the oral colloquy presented to the Court on June 12, 2007, contains any mention of an agreement for sentences to be run concurrent with a Dauphin County charge. Rather, the Pre-Sentence investigation report appears to indicate that the Defendant, at the time of sentencing had already served a 21 day sentence in Dauphin County stemming from a December 2006 conviction for Theft by Deception. Thus, it does not appear that this Court could have imposed a concurrent sentence for the instant charge, even if it had been part of the plea agreement. Likewise, the Petitioner indicated he understood that sentencing was at the Court’s discretion when he entered his guilty plea on June 12, 2007. Ineffectiveness of trial counsel should wait until collateral review when no developed record exists at the trial court level. Commonwealth v. Grant, 813 A.2d 726 (Pa. 2002). To prevail on a claim that counsel was ineffective, appellant must overcome the presumption of competence by showing (1) the underlying claim is of arguable merit; (2) the course of conduct pursued by counsel did not have a reasonable basis in effectuating defendant’s interest and (3) but for counsel’s ineffectiveness, a reasonable probability exists that the outcome of the challenged proceeding would have been different. Commonwealth v. Kersteter, 2005 WL 1383329 (Pa.Super. 2005); Commonwealth v. Watson, 835 A.2d 786 (Pa.Super. 2003). No allegation of specific error on the part of Attorney Waller was raised establishing that the petition has a claim for ineffective assistance of counsel in failing to raise any of the foregoing claims. Even if Petitioner had asserted in his PCRA petition that it was error of the sentencing court to not render his sentences concurrent, discretionary aspects, not legality, of sentencing, are not cognizable under the PCRA. Commonwealth v. Evans, 866 A.2d 442 (Pa.Super. 2005); Commonwealth v. Guthrie, 749 A.2d 502 (Pa.Super. 2000). -5- CP-21-CR-2905-2006 Finally, the undersigned directs the Court’s attention to the authority cited by the Petitioner to ensure completeness in the review of Petitioner’s claims. The Petitioner relies upon the case of Commonwealth v. Orrs, 640 A.2d 911, (Pa.Super. 1994). In that case, the defendant had challenged the propriety of the grading of the retail theft charge against him because he claimed he did not have notice of the grading in the criminal complaint, even though it was contained in the information. The Superior Court held the conviction and sentence were proper because that lack of information was specifically addressed as part of the plea, because the defendant acknowledged the grading and sentencing range during his plea colloquy and because the sentencing reflected the Commonwealths [sic] agreement to a time-served sentence, which departed significantly from the standard guidelines. This case simply does not apply to the matter at bar as the petitioner never challenged the validity of his 2000 conviction in Cumberland County for retail theft, nor his three convictions for retail theft from 2001 arising out of Dauphin County. Even if the Dauphin County convictions counted as only one prior conviction because the sentences were wholly concurrent, this offense would still count as a third or subsequent offense. Likewise, Angelopoulos v. Lazarus PA, Inc, et al., 844 A.2d 255 (Pa.Super. 2005) is a civil action involving claims in tort brought by a customer who was accused of theft for false imprisonment and battery against the grocery store where the incident occurred. This case is not applicable to the instant matter, particularly to the claims raised by the Petitioner. In the case of Commonwealth v. Clipper, 449 A.2d 741 (Pa.Super. 1981) the Superior Court held that prior convictions for shoplifting under the 1939 Penal Code could not be used as prior convictions for retail theft under the Crimes Code. As stated above, the Petitioner’s prior convictions in this case all occurred since 2000, and were all convictions under the Crimes Code for Retail Theft. The holding of this case is therefore not applicable to the matter at bar. Also, the case of Commonwealth v. Shapiro, 297 A.2d 161 (Pa.Super., 1972), involved a challenge to the weight of the evidence following a trial for shoplifting. In that case the Superior Court held that the element of intent had not been satisfied by the testimony of the store manager who had seen the accused removing a box from the store and when no evidence concerning the intent of the accused was offered under the offense of shoplifting. The Shapiro decision does not involve the Crimes Code violation of Retail Theft, and it does not involve a guilty plea. Rather, the Commonwealth stipulated to the good character of the accused in Shapiro and the Superior Court held that the burden of proof -6- CP-21-CR-2905-2006 as to intent had not been met. Considering the holding of Shapiro it is respectfully submitted that it does not apply to the instant case. Finally, the Petitioner cites to “Warren V. Twp of Derry” without any citation information. The undersigned conducted numerous searches to locate the decision upon which the Petitioner relies but to no avail. -7- CP-21-CR-2905-2006 Following our independent review of the record as set forth herein and in light of the post-conviction petition and the issues raised therein, as well as the contents of the petition of post-conviction counsel to withdraw, satisfies us that the legal position of counsel is correct and that the petition is meritless. Therefore, the following order is entered. ORDER OF COURT AND NOW, this day of July, 2008, the motion of post-conviction IS GRANTED. counsel to withdraw, The petition of Stanley Lumpkin for post-conviction IS DISMISSED. relief, Petitioner may file an appeal from this final order disposing of his petition for post-conviction relief within thirty (30) days of this date to the Superior Court of Pennsylvania. By the Court, Edgar B. Bayley, J. Michelle Sibert, Esquire Assistant District Attorney Stanley Lumpkin, Pro se 2243 Berryhill Street Harrisburg, PA 17104 Nathan C. Wolf, Esquire :sal -8- COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : V. : : STANLEY LUMPKIN : CP-21-CR-2905-2006 IN RE: PETITION FOR POST-CONVICTION RELIEF ORDER OF COURT AND NOW, this day of July, 2008, the motion of post-conviction IS GRANTED. counsel to withdraw, The petition of Stanley Lumpkin for post-conviction IS DISMISSED. relief, Petitioner may file an appeal from this final order disposing of his petition for post-conviction relief within thirty (30) days of this date to the Superior Court of Pennsylvania. By the Court, Edgar B. Bayley, J. Michelle Sibert, Esquire Assistant District Attorney Stanley Lumpkin, Pro se 2243 Berryhill Street Harrisburg, PA 17104 Nathan C. Wolf, Esquire :sal