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HomeMy WebLinkAboutCP-21-CR-0268-1999 COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : V. : : LOUIS GREENLEY : CP-21-CR-0268-1999 IN RE: POST-CONVICTION PETITION OPINION AND ORDER OF COURT Bayley, J., January 6, 2009:-- July 21, 1999, On a jury convicted Louis Greenley of robbery, aggravated assault, two counts of simple assault, and theft. Prior to trial he pled guilty to unlawful October 19, 1999 possession and use of a firearm. On , defendant was sentenced for robbery to costs, $60 restitution, and imprisonment in a state correctional institution for not less than 25 years nor more than 50 years, to date from January 25, 1999. This was a mandatory minimum sentence imposed pursuant to the provisions of 42 Pa.C.S. 1 Section 9714(a)(2). Defendant was sentenced for aggravated assault to costs and imprisonment in a state correctional institution for not less than 25 years nor more than __________ 1 Section 9714(a)(2) of the Sentencing Code provides: (2) Where the person had at the time of the commission of the current offense previously been convicted of two or more such crimes of violence arising from separate criminal transactions, the person shall be sentenced to a minimum sentence of at least 25 years of total confinement, notwithstanding any other provision of this title or other statute to the contrary. Proof that the offender received notice of or otherwise knew or should have known of the penalties under this paragraph shall not be required. Upon conviction for a third or subsequent crime of violence the court may, if it determines that 25 years of total confinement is insufficient to protect the public safety, sentence the offender to life imprisonment CP-21-CR-0268-1999 50 years, to date from January 25, 1999, to run concurrent with the sentence for robbery. This too was a mandatory minimum sentence under Section 9714(a)(2). Defendant was sentenced for unlawful possession and use of a firearm to costs and imprisonment in a state correctional institution for not less than 5 years nor more than 10 years, to date from January 25, 1999, to run concurrent with the robbery and aggravated assault sentences. For the simple assaults, defendant was sentenced to 2 pay costs. Greenley filed a direct appeal from the judgments of sentence to the Superior Court of Pennsylvania. He challenged the constitutionality of 42 Pa.C.S. Section 9714(d), and the sufficiency of proof offered to establish his prior convictions. On August 7, 2000 3 March , the Superior Court affirmed the judgments of sentence. On 22, 2001 , a petition for allowance of appeal to the Supreme Court of Pennsylvania was 4 April 26, 2001 denied. On , a petition for reconsideration was denied by the Supreme Court. January 12, 2007 On , Greenley filed a pro se petition for post-conviction relief. May 3, Counsel was appointed. Counsel subsequently filed a no-merit letter. On 2007 , counsel was allowed to withdraw and the petition was dismissed without a without parole. 2 No sentence was imposed on the theft count that merged with the count of robbery. 3 764 A.2d 1122 (Pa. Super. 2000). 4 771 A.2d 1279 (Pa. 2001). -2- CP-21-CR-0268-1999 hearing. Petitioner, pro se, filed a direct appeal from the order of dismissal to the May 25, 2007 Superior Court of Pennsylvania. On , we filed an opinion pursuant to Pennsylvania Rule of Appellate Procedure 1925, which stated: This court has no jurisdiction to grant petitioner relief based on the period of limitations set forth in the Post-Conviction Relief Act, 42 Pa.C.S. et seq. Section 9541 The Actprovides in Section 9545(b): Any petition under this subchapter, (1) including a shall be filed within one second or subsequent petition, year of the date the judgment becomes final, unless the petition alleges and the petitioner proves that: the failure to raise the claim previously (i) was the result of interference by government officialswith 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 (ii) predicated were unknown to the petitioner and could not have been ascertained by the exercise of due diligence ;or the right asserted is a constitutional (iii) 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 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.) May 26, 2001 Petitioner’s judgment of sentence became final on , which was thirty days after the order of the Supreme Court of Pennsylvania of April 26, 2001 denying his application for reconsideration -3- CP-21-CR-0268-1999 of the order denying the allowance of appeal. His petition for post- January 12, conviction relief was filed over five and a half years later on 2007 . Because the period of limitations in Section 9545(b) is jurisdictional in nature, we have no jurisdiction to grant petitioner relief because none of the exceptions to the one year time-bar in Section Commonwealth v. Pursell, 9545(b)(1)(i), (ii), (iii) apply to him. See 749 A.2d 911 (Pa. 2000). Therefore, the order dismissing the petition for 5 post-conviction relief was properly entered. 5 We note that the issue raised in the petition for post-conviction relief is a challenge to the imposition of the mandatory sentence under 42 Pa.C.S. Section 9714. A challenge to that sentence was previously litigated; therefore, petitioner is not eligible for relief pursuant to 42 Pa.C.S. Section 9543(a)(3). March 11, 2008 On , the Superior Court entered an order vacating this court’s order of May 3, 2007, and remanded for further proceedings consistent with a memorandum opinion filed in support of the order. The Superior Court stated: Commonwealth Here, PCRA counsel, contrary to the mandate of [ v. Friend , 896 A.2d 607 (Pa. Super. 2006)], did not advance appellant’s contention that the recent Supreme Court decision of Cunningham v. California, U.S. , 127 S. Ct. 856, 166 L.Ed.2d 856 (2007), extended a newly-recognized constitutional right with retroactive application which would render his sentence illegal, or explain in the “no- merit” letter why counsel believes that this argument lacks merit. Moreover, counsel failed to comply with the requirement of Friend to provide notice to appellant that he would be required to retain other counsel or proceed pro se if the court granted appointed counsel’s motion to withdraw. Finally, it is not apparent, either from the trial court’s order dated May 3, 2007, or its opinion dated May 25, 2007, that the trial court conducted its own independent review of the PCRA petition and the issues set forth therein, as there is no analysis of appellant’s McClintic claim. See: Commonwealth v. Friend, supra at 616 (remanding case for further proceedings including an “autonomous judicial expression of the reasons for dismissal”). Accordingly, we must vacate the order that dismissed appellant’s PCRA petition, and remand the case to the trial court for further proceedings consistent with this memorandum. Further, we direct -4- CP-21-CR-0268-1999 appointed counsel, in the event that counsel continues to seek to withdraw, to file a proper “no-merit” letter which complies with the dictates of Friend. Pursuant to the order of remand we reappointed counsel for petitioner. On December 10, 2008 , counsel filed another no-merit letter and provided required notice to petitioner. The convictions of petitioner for which he received the enhanced sentences were for a robbery committed at a Rite Aid drugstore in Cumberland County, and an aggravated assault against a police officer who responded to that robbery on July 21, 1999. As set forth in our opinion in support of an order on October 13, 1999, finding that defendant was subject to the mandatory minimum sentence of at least twenty-five years of total confinement under 42 Pa.C.S. Section 9714(a)(2) and a maximum of twice the mandatory minimum sentence under 42 Pa.C.S. Section 9714(a.1): [t]he Commonwealth has proven by a preponderance of the evidence that defendant has prior convictions for (1) two counts of robbery arising out of a single transaction that occurred on August 23, 1991, (2) a single count of robbery that occurred on August 24, 1991, and (3) two counts of robbery arising out of a single transaction that occurred on February 8, 1994. * * * Therefore, the mandatory sentencing provisions in Section 9714(a)(2) and (a.1) are applicable on defendant’s conviction in this court on the counts of robbery and aggravated assault as this is the fourth conviction of a crime of violence based on the three prior transactions in Allegheny County that each resulted in a conviction for a crime of violence. Commonwealth v. The decision of the Supreme Court of Pennsylvania in -5- CP-21-CR-0268-1999 McClintic, 909 A.2d 1241 (Pa. 2006), does not provide petitioner with relief. In McClintic , the defendant committed a burglary and robbery in a single incident on June 27, 2002, and committed another burglary and robbery in a single incident on July 5, 2002. The issue was whether the trial court properly imposed two separate sentence enhancements of twenty-five to fifty years for both the robbery and the burglary that occurred on June 27, 2002. The Supreme Court concluded that the legislature intended to apply sentencing enhancements for all crimes arising from a criminal transaction, rather than for each individual crime within such transaction. Accordingly, sub judice, the court remanded the case to the trial court for resentencing. In the case we considered the Allegheny County convictions for two counts of robbery arising out of the same transaction on August 23, 1991, as one transaction and a single strike, the single count of robbery on August 24, 1991, as a second strike, and the two counts of robbery arising out of the same transaction on February 8, 1994, as one transaction McClintic and a third strike. This conformed with . Cunningham v. California, In 549 U.S. 270, 127 S.Ct. 856, 166 L.Ed.2d 856 Apprendi v. New (2007), the United States Supreme Court, citing its decision in Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d. 435 (2000), held that a California sentencing statute was unconstitutional because it placed sentence-elevating fact finding within a judge’s province, thus violating defendant’s right to a trial by jury under the Sixth and Fourteenth Amendments to the United States Constitution. Cunningham was convicted of sexual abuse of a child under age fourteen. Under a California -6- CP-21-CR-0268-1999 determinate sentencing law (DSL), that offense was punishable by one of three precise terms of imprisonment: a lower term sentence of 6 years, a middle term sentence of 12 years, or an upper term sentence of 16 years. The DSL obliged the trial judge to sentence Cunningham to the 12-year middle term unless the judge found one or more additional “circumstances in aggravation.” “Circumstances in aggravation” were facts that justify the upper term and needed to be established by a preponderance of the evidence. A judge found by a preponderance of the evidence six aggravating facts, including the particular vulnerability of the victim, and one mitigating fact, that Cunningham had no record of prior criminal conduct. Concluding that the aggravators outweighed the sole mitigator, the judge sentenced Cunningham to the upper term of 16 years. sub judice, In the case the sentencing enhancements were applied to petitioner because of his prior convictions in Allegheny County for crimes of violence. As already set forth by the Superior Court when it affirmed petitioner’s judgment of sentence on August 7, 2000: We note that the recent decision of the United States Supreme Court in Apprendi v. New Jersey, 2000 U.S. Lexus 4304, decided June 26, 2000, is not applicable to the issues raised in this appeal since the Court there [o]ther than the fact of a prior conviction, held that “any fact that increases the penalty for a crime beyond the prescribed statutory Id. maximum must be submitted to a jury.” at 43 (emphasis supplied). See: Almendarez – Torres v. U.S., 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998) (holding that a recidivist sentencing enhancement which increased the permissible sentence to life imprisonment was not unconstitutional). -7- CP-21-CR-0268-1999 Cunningham v. California Accordingly, does not support petitioner’s position. Therefore, having made an independent review of the PCRA petition and determined that there are no genuine issues concerning any material fact, petitioner is not entitled to post-conviction relief, no purpose would be served by any further proceedings, and a required notice was given to petitioner with reasons for the intention to dismiss this petition, the following order is entered. ORDER OF COURT IT IS ORDERED: AND NOW, this day of January, 2009, IS GRANTED. (1) The request of counsel to withdraw, IS DENIED. (2) The petition for post-conviction relief, By the Court, Edgar B. Bayley, J. District Attorney’s Office Stacy Wolf, Esquire Louis Greenley, EB 2922, Pro se SCI Somerset 1600 Walters Mill Road Somerset, PA 15510 :sal -8- COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : V. : : LOUIS GREENLEY : CP-21-CR-0268-1999 IN RE: POST-CONVICTION PETITION ORDER OF COURT IT IS ORDERED: AND NOW, this day of January, 2009, IS GRANTED. (1) The request of counsel to withdraw, IS DENIED. (2) The petition for post-conviction relief, By the Court, Edgar B. Bayley, J. District Attorney’s Office Stacy Wolf, Esquire Louis Greenley, EB 2922, Pro se SCI Somerset 1600 Walters Mill Road Somerset, PA 15510 :sal