HomeMy WebLinkAboutCP-21-CR-0002837-2007
COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
:
: CHARGES: (1) UNLAWFUL DELIVERY OR
: MANUFACTURE OR
: POSSESSION WITH INTENT
v. : 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: OPINION PURSUANT TO PA. R.A.P. 1925
OLER, J., February 26, 2009.
1
In this criminal case, Defendant has filed a pro se appeal to the
Pennsylvania Superior Court from an order which, following a hearing, denied his
2
Motion for Post Conviction Collateral Relief. The bases for the appeal as
expressed in Defendant’s statement of matters complained of on appeal are as
follows:
(I) The Court Committed REVERSIBLE ERROR in Violating
PA.R.Crim.P. Rule 907(1), by failing to notify Appellant of it’s intent to
Dismiss Petition, and Allowing Appellant 20 days to Respond before a
final dismissal was order.
(II) Appellant was denied his Fifth Amendment Right To Grand Jury
Presentment, Under the United States Constitution, Pursuant to ARTICLE
6, Clause 2, (the Supremacy Clause) of the United States Constitution, and
pursuant to Being a fundamental Right Gaurinteed To every United States
Citizen, as part of the United States Bill of Rights. And
(III) All Prior Counsel(s) rendered Ineffective Assistance of Counsel,
In failing To Raise and Litigate The issue of The violation of Appellant’s
1
Defendant’s court-appointed counsel in this PCRA proceeding was excused from further
representation of Defendant following the hearing, based upon a no-merit letter. See Order of
Court, January 8, 2009.
2
Defendant’s Notice of Appeal, filed January 30, 2009.
fundamental right as a United States Citizen To Grand Jury Presentment,
Pursuant To Article 6, Clause 2, of the United States Constitution, and the
3
United States Bill of Rights.
The rationale for the court’s order from which Defendant has appealed was
4
provided in an opinion of even date therewith accompanying the order. This
opinion, in the court’s view, addresses the substantive issues contained in
Defendant’s statement of matters complained of on appeal.
With respect to the procedural issue raised in the statement—the failure of
the court to provide notice to Defendant of its intention to dismiss his motion for
post conviction collateral relief pursuant to Pennsylvania Rule of Criminal
Procedure 907(1)—it may be noted that this Rule applies where the court intends
to dispose of such a motion without a hearing. In the present case, the court
afforded Defendant a hearing, which was held on December 15, 2008, prior to
disposing of his motion, and the Rule has no applicability.
Accordingly, the Clerk of Courts is directed to transmit the record to the
Superior Court for purposes of its consideration of Defendant’s appeal.
BY THE COURT,
_________________
J. Wesley Oler, Jr., J.
Michelle H. Sibert, Esq.
Chief Deputy District Attorney
For the Commonwealth
Joshua Raymond Shughart, HA-0933
SCI Bellefonte, Box A
Bellefonte, PA 16823-0820
Defendant pro se
3
Defendant’s Statement of Matters Complained of on Appeal Pursuant to PA.R.A.P. 1925(b),
filed February 23, 2009.
4
See Opinion and Order of Court, January 8, 2009.
2