HomeMy WebLinkAboutCP-21-CR-2837-2007
COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYVANIA
:
: CHARGES: (1) UNLAWFUL DELIVERY OR
: MANUFACTURE OR
: POSSESSION WITH INTENT
: TO DELIVER A SCHEDULE
: I CONTROLLED SUBSTANCE
: (2) UNLAWFUL DELIVERY OR
: MANUFACTURE OR
: POSSESSION WITH INTENT
: TO DELIVER A SCHEDULE
: II CONTROLLED SUBSTANCE
JOSHUA RAYMOND :
SHUGHART, :
OTN: K624778-0 : CP-21-CR-2837-2007
IN RE: DEFENDANT’S MOTION FOR
POST CONVICTION COLLATERAL RELIEF
BEFORE OLER, J.
OPINION and ORDER OF COURT
OLER, J., January 8, 2009.
In this criminal case, Defendant entered a counseled guilty plea in 2008 to one
felony count of unlawful delivery of marijuana within 500 feet of a school and one felony
1
count of unlawful delivery of cocaine within 500 feet of a school, subject to an
2
agreement that the sentences be made to run concurrently with each other. He was
sentenced in accordance with the mandatory minimum sentences applicable to the
offenses to a period of imprisonment in a state correctional institution of not less than two
3
years nor more than four years.
For disposition at this time is a Motion for Post Conviction Collateral Relief filed
4
by Defendant. The motion is predicated upon (a) the Commonwealth’s utilization of an
1
See Act of April 14, 1972, P.L. 233, §13(a)(30), as amended, 35 P.S. 780-113(a)(30) (2008 Supp.).
2
Order of Court, March 13, 2008.
3
Order of Court, June 3, 2008.
4
Motion for Post Conviction Collateral Relief, filed September 4, 2008.
information as opposed to an indictment in his case and (b) the absence of a saving clause
5
in the Pennsylvania Constitution.
For the reasons stated in this opinion, the motion will be denied.
DISCUSSION
6
As the result of an incident on October 24, 2006, Defendant pled guilty to the two
7
felony offenses referred to above on March 13, 2008. He was sentenced on June 3,
8
2008. Defendant’s present request for post-conviction relief, predicated as indicated
9
above, was the subject of a hearing held on December 15, 2008, at the conclusion of
10
which the matter was taken under advisement. After careful consideration, the court is
of the view that Defendant’s contentions lack merit.
With respect to Defendant’s contention that the prosecution was defective due to
utilization of an information rather than a grand jury indictment, it may be noted (a) that
11
the Pennsylvania Constitution authorizes the use of informations, (b) the federal
constitutional provision respecting grand jury indictments is not binding upon the states
12
through the due process clause of the fourteenth amendment, and (c) the information
13
procedure has withstood other constitutional challenges.
With respect to Defendant’s contention that the prosecution was defective due to
the absence of a saving clause in the Pennsylvania Constitution, it may be noted that a
saving clause, as the term relates to criminal law, is a clause in a current statute which
preserves the government’s authority to prosecute violations of a prior law that
5
N.T. 4, PCRA Hearing, December 15, 2008.
6
N.T. 2-3, Guilty Plea Proceeding, March 13, 2008.
7
Order of Court, March 13, 2008.
8
Order of Court, June 3, 2008.
9
Defendant was represented by court-appointed counsel at the hearing. Subsequent to the hearing, the
counsel submitted a no-merit letter, which will be acted upon by order of even date herewith.
10
Order of Court, December 15, 2008.
11
Pa. Const., Art I, §10.
12
See Commonwealth v. Slick, 432 Pa. Super. 563, 639 A.2d 482 (1994).
13
See, e.g., Commonwealth v. Webster, 462 Pa. 125, 337 A.2d 914 (1975) (equal protection).
2
criminalized conduct no longer prohibited under the current law. See, e.g.,
Commonwealth v. Bangs, 259 Pa. super. 68, 393 A.2d 720 (1978). The absence of a
saving clause in the Pennsylvania Constitution has no relevance to a case where, as here,
no constitutional or statutory change, of a decriminalizing nature, occurred subsequent to
the conduct for which Defendant was prosecuted.
For these reasons, the following order will be entered:
ORDER OF COURT
th
AND NOW, this 8 day of January, 2009, upon consideration of Defendant’s
Motion for Post Conviction Collateral Relief, and following a hearing held on December
15, 2008, the motion is denied.
DEFENDANT is notified of his right to appeal to the Pennsylvania Superior Court
from this order within 30 days of its entry.
BY THE COURT,
s/ J. Wesley Oler, Jr.
J. Wesley Oler, Jr., J.
Michelle H. Sibert, Esq.
Chief Deputy District Attorney
Joshua Raymond Shughart, HA-0933
Box A
Bellefonte, PA 16823-0820
Defendant, Certified and Regular Mail
Nathan C. Wolf, Esq.
10 West High Street
Carlisle, PA 17013
Court-appointed Counsel
for Defendant
3
4
COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYVANIA
:
: CHARGES: (1) UNLAWFUL DELIVERY OR
: MANUFACTURE OR
: POSSESSION WITH INTENT
: TO DELIVER A SCHEDULE
: I CONTROLLED SUBSTANCE
: (2) UNLAWFUL DELIVERY OR
: MANUFACTURE OR
: POSSESSION WITH INTENT
: TO DELIVER A SCHEDULE
: II CONTROLLED SUBSTANCE
JOSHUA RAYMOND :
SHUGHART, :
OTN: K624778-0 : CP-21-CR-2837-2007
IN RE: DEFENDANT’S MOTION FOR
POST CONVICTION COLLATERAL RELIEF
BEFORE OLER, J.
ORDER OF COURT
th
AND NOW, this 8 day of January, 2009, upon consideration of Defendant’s
Motion for Post Conviction Collateral Relief, and following a hearing held on December
15, 2008, the motion is denied.
DEFENDANT is notified of his right to appeal to the Pennsylvania Superior Court
from this order within 30 days of its entry.
BY THE COURT,
_________________
J. Wesley Oler, Jr., J.
Michelle H. Sibert, Esq.
Chief Deputy District Attorney
Joshua Raymond Shughart, HA-0933
Box A
Bellefonte, PA 16823-0820
Defendant, Certified and Regular Mail
Nathan C. Wolf, Esq.
10 West High Street
Carlisle, PA 17013
Court-appointed Counsel
for Defendant