HomeMy WebLinkAbout00-1979 CriminalCOMMONWEALTH
RAYNELL DONALD REYNOLDS
IN RE:
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
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OPINION PURSUANT TO PENNSYLVANIA RULE OF
APPELLATE PROCEDURE 1925
Bayley, J., January 28, 2003:--
On December 19, 2000, defendant pled guilty at the above term and number to
a count of receiving stolen property, a felony in the third degree. On February 6, 2001,
he was sentenced to undergo imprisonment in the Cumberland County Prison for not
less than three months or more than twenty-three months. The sentence was made
consecutive to any other sentence being served. Defendant was paroled for the
balance of his remaining term on June 15, 2001. On September 27, 2002, defendant
was detained in the Cumberland County Prison on a petition for revocation of parole.
The petition alleged that he was charged with theft and receiving stolen property in
each of two separate cases in the Borough of Carlisle. Court records reflect that in the
first case, defendant was charged with theft and receiving stolen property while an
employee of Wal-Mart on September 4, 2002. In the second case, he was charged
with theft and receiving stolen property while an employee of Choice Cigarette Outlet
on September 24, 2002. Defendant appeared with counsel for preliminary hearings on
both cases on November 6, 2002. He waived both cases into court.
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Defendant appeared in court with counsel on November 26, 2002, on the
petition for revocation of parole.~ He admitted that he was in violation of the terms and
conditions of his parole and was recommitted for the balance of his remaining term
without credit for street time. The commitment dates from September 27, 2002.
Defendant subsequently filed a pro se appeal to the Superior Court of Pennsylvania
from the order of November 26, 2002. In a concise statement of matters complained of
on appeal, defendant avers:
1. Revocation counsel, Ellen Barry, Esquire, of the Cumberland
County Public Defender's Office, was ineffective in failing to raise the trial
court's error to give a Gagnon I hearing.
2. Revocation counsel was ineffective in failing to raise the trial
court's error to hold a hearing after Petition for Writ of Habeas Corpus
was filed with the Clerk of Courts Office.
3. Revocation counsel was ineffective in failing to raise the trial
court's error to state its reasons for the particular sentences imposed at
the parole revocation hearing as required pursuant to Pa. R.C.P. § 1405.
4. Revocation counsel was ineffective in failing to raise the trial
court's error to give notice of revocation of parole.
We cannot hold a hearing on defendant's claim of ineffective assistance of
counsel because his direct appeal of his judgment of sentence to the Superior Court
removes our jurisdiction? We do not, however, believe that the specific allegations of
ineffective assistant of counsel requires a hearing so we will address the allegations on
~ Counsel was Ellen Barry, Esquire, the same attorney who represented him at the
preliminary hearings on the new charges on November 6, 2002.
Pennsylvania Rule of Appellate Procedure 1701.
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the merits?
I. Was revocation counsel, Ellen Barry, Esquire, of the Cumberland County
Public Defender's Office, ineffective in failing to raise the trial court's error to
give a Gagnon I hearing?
Defendant waived his preliminary hearings on his new charges thus
acknowledging that there was prima facie evidence to send the cases to court. A
preliminary hearing prompted by the commission of a new crime substitutes for a
Gagnon I hearing. Commonwealth v. Jordan, 430 Pa. Super. 344 (1993).
I1. Was revocation counsel ineffective in failing to raise the trial court's error
to hold a hearing after Petition for Writ of Habeas Corpus was filed with the Clerk
of Courts Office?
Defendant filed a pro se petition for a writ of habeas corpus prior to November
26, 2002, challenging the lawfulness of his detention on the petition for revocation of
parole. Because defendant admitted at the Gagnon II hearing on November 26, 2002,
that he was in violation of the terms and conditions of his parole, his petition for a writ
of habeas corpus became moot and was properly dismissed that day.4
3 If, of course, the Superior Court concludes that a hearing is required, we will expect a
remand for that purpose. See Commonwealth v. Penrose, 669 A.2d 996 (Pa. Super.
1995).
4 We further believe it was not even necessary to rule on the hybrid petition for a writ of
habeas corpus, because defendant was represented by counsel on the petition for the
revocation of his parole which was the basis for his detention. See Commonwealth v.
Pursell, 724 A.2d 293 (Pa. 1999).
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III. Was revocation counsel ineffective in failing to raise the trial court's error
to state its reasons for the particular sentences imposed at the parole revocation
hearing as required pursuant to Pa. R.C.P. § 14057
Defendant was not sentenced on November 26, 2002. Rather, he was
recommitted for the balance of his remaining term. Pennsylvania Rule of Criminal
Procedure 704 (formerly 1405) governs "Procedure at Time of Sentencing," and
requires a judge to state on the record the reasons for a sentence imposed.
IV. Was revocation counsel ineffective in failing to raise the trial court's error
to give notice of revocation of parole?
Defendant and his counsel appeared on November 26, 2002, at which time
defendant admitted that he was in violation of the terms and conditions of his parole.
His claim of lack of notice is frivolous.
(Date)
John Dailey, Esquire
For the Commonwealth
Raynell Donald Reynolds, Pro se
Cumberland County Prison
1101 Claremont Road
Carlisle, PA 17013
:sal
Edgar B. Bayley, J.
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