Loading...
HomeMy WebLinkAboutCP-21-CR-0949-2007 COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : V. : : COURTNEY A. KELLER : CP-21-CR-0949-2007 IN RE: POST-CONVICTION PETITION OPINION AND ORDER OF COURT Bayley, J., February 27, 2009:-- August 30, 2007 On , Courtney A. Keller, entered a plea of guilty to driving 1 under the influence, high rate, a misdemeanor of the second degree. On the same day, he was sentenced to pay the costs of prosecution, a fine of $750, and undergo 2 imprisonment in the Cumberland County Prison for time served to six months. He was paroled immediately on supervision. No post-sentence motion or direct appeal from the January 22, 2008 judgment of sentence was filed. On , Keller was adjudicated in violation of the terms and conditions of his parole, and was recommitted for the balance January 8, 2008 of his remaining term, without credit for street time, to date from . He February 1, 2008June 13, 2008 was released on . His maximum sentence expired on . November 10, 2008 On , Keller filed a petition for post-conviction relief. He avers that his case was dismissed by a Magisterial District Judge on January 9, 2007; therefore, this prosecution constituted double jeopardy. Counsel was appointed. On __________ 1 75 Pa.C.S. Section 3802(b). 2 The time served dated from August 4, 2007. CP-21-CR-0949-2007 January 9, 2009 , counsel filed a no-merit letter and a petition for leave to withdraw. We agree with counsel that we do not have jurisdiction based on the period of et seq. limitations set forth in the Post-Conviction Relief Act. 42 Pa.C.S. Section 9541 The Act provides in Section 9545(b): Any petition under this subchapter, (1) including a second or shall be filed within one year of the date the subsequent petition, judgment becomes final, unless the petition alleges and the petitioner proves that: (i) the failure to raise the claim previously was the result of interference by government officials with the presentation of the claim in violation of the Constitution or laws of this Commonwealth or the Constitution or laws of the United States; (ii) the facts upon which the claim is predicated were unknown to the petitioner and could not have been ascertained by the exercise of due diligence;or (iii) the right asserted is a constitutional 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. . . . The conviction of petitioner became final on September 29, 2007. This post- conviction petition was not filed until November 10, 2008. None of the exceptions to the period of limitations in 42 Pa.C.S. Section 9545(b)(i), (1)(ii) or (iii) apply. Therefore, Commonwealth v. this petition for post-conviction relief must be dismissed. See Pursell, 3 749 A.2d 911 (Pa. 2000). Having made an independent review of the PCRA petition __________ 3 Defendant is also not entitled to relief under the eligibility requirements of 42 Pa.C.S. -2- CP-21-CR-0949-2007 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 with reasons was sent to petitioner of the intention to dismiss this petition, the following order is entered. ORDER OF COURT IT IS ORDERED: AND NOW, this day of February, 2009, IS GRANTED. (1) The petition of counsel to withdraw, IS DENIED. (2) The petition for post-conviction relief, By the Court, Edgar B. Bayley, J. District Attorney’s Office Dirk Berry, Esquire Courtney Keller Franklin County Prison 1804 Opportunity Avenue Chambersburg, PA 17201 :sal Section 9543(a)(1)(i) because he is not currently serving a sentence of imprisonment, probation or parole on his conviction for this driving under the influence conviction. In fact, his maximum sentence expired prior to his filing this post-conviction petition. -3- COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : V. : : COURTNEY A. KELLER : CP-21-CR-0949-2007 IN RE: POST-CONVICTION PETITION ORDER OF COURT IT IS ORDERED: AND NOW, this day of February, 2009, IS GRANTED. (1) The petition of counsel to withdraw, IS DENIED. (2) The petition for post-conviction relief, By the Court, Edgar B. Bayley, J. District Attorney’s Office Dirk Berry, Esquire Courtney Keller Franklin County Prison 1804 Opportunity Avenue Chambersburg, PA 17201 :sal