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Home My WebLink AboutCP-21-CR-0991-1998 (3) COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : v. : : NICHOLAS A. PRACHT : CP-21-CR-0991-1998 IN RE: DEFENDANT’S MOTION FOR POST CONVICTION COLLATERAL RELIEF BEFORE OLER, J. OPINION and ORDER OF COURT OLER, J., June 30, 2005 This criminal case stems from Defendant’s conviction on four counts of 1 involuntary deviate sexual intercourse and four counts of corruption of minors. Defendant’s judgment of sentence was affirmed by the Pennsylvania Superior Court in 2 2001. Defendant is currently incarcerated at the Graterford State Correctional Institution 3 in Montgomery County, Pennsylvania. Defendant’s first request for post conviction relief was filed during the pendency 4 of his direct appeal and was dismissed for that reason. Defendant’s second request for post conviction relief, which raised a number of issues, was the subject of a hearing and 5 was denied by this court. Defendant’s third request for post conviction relief, which was accompanied by a number of hand-written documents, was not the subject of a hearing 6 and was denied by this court. Defendant has recently filed his fourth request for post 7 conviction relief with this court. On March 30, 2005, this court, pursuant to Pennsylvania Rule of Criminal Procedure 907(1), gave Defendant notice of its intention 1 Verdict and Order of Court, Oct. 28, 1998. 2 Order of Superior Court, 106 MDA 1999, May 8, 2001. 3 Defendant’s Motion for Post Conviction Collateral Relief, filed Feb. 16, 2005. 4 Order of Court, Dec. 13, 1999. 5 Order of Court, Dec. 31, 2003. 6 Order of Court, Dec. 9, 2004; Order of Court, Jan. 10, 2005. 7 Defendant’s Motion for Post Conviction Collateral Relief, filed Feb. 16, 2005. 8 to dismiss Defendant’s petition. Defendant responded by filing, inter alia, a petition for 9 reconsideration. For the reasons stated in this opinion, Defendant’s petition for reconsideration will be denied, and Defendant’s Motion for Post Conviction Collateral Relief, dated February 16, 2005, will be dismissed. STATEMENT OF FACTS On October 28, 1998, Defendant was found guilty by a jury of four counts of 10 involuntary deviate sexual intercourse and four counts of corruption of minors, and on December 8, 1998, he was sentenced by the Honorable George E. Hoffer to a term of 11 imprisonment of six to fifteen years. Defendant then filed a direct appeal of his 12 sentence to the Pennsylvania Superior Court on January 7, 1999. The Superior Court 13 affirmed Defendant’s judgment of sentence on May 8, 2001. During the pendency of the direct appeal, Defendant filed his first request for post 1415 conviction relief, which was dismissed as premature. Defendant’s second request for 16 post conviction relief was filed on March 25, 2002. A hearing was held on this petition 1718 on July 23, 2003, and the petition was denied on December 31, 2003. The denial of this petition was accompanied by a 43-page opinion which set forth a detailed history of 8 Order of Court, Mar. 30, 2005. 9 Application/Petition for Reargument/Reconsideration of Appellant’s Petitions for Post Conviction Collateral Relief as Well as of Various Supplemental Pleadings, filed May 25, 2005. 10 Verdict and Order of Court, Oct. 28, 1998. 11 In re: Sentence Colloquy, Dec. 8, 1998. 12 Defendant’s Notice of Appeal, filed Jan. 7, 1999. 13 Order of Superior Court, 106 MDA 1999, May 8, 2001. 14 Defendant’s Post Conviction Relief Act Motion, filed Aug. 25, 1999. 15 Order of Court, Dec. 13, 1999. 16 Defendant’s Motion for Post Conviction Collateral Relief, filed Mar. 25, 2002. 17 Order of Court, July 23, 2003. 18 Order of Court, Dec. 31, 2003. 2 19 the case. A copy of the opinion on Defendant’s second request for post conviction relief is attached to this opinion as an appendix. Defendant’s third request for post conviction relief was filed on September 2, 2004, and was accompanied by a number of other related petitions, motions, and 20 applications. On December 10, 2004, this court, pursuant to Pennsylvania Rule of 21 Criminal Procedure 907(1), gave notice of its intent to deny Defendant’s third petition, 22 and on January 10, 2005, denied Defendant’s petition. On January 14, 2005, this court denied Defendant’s petition for reconsideration of his third post conviction relief 23 petition. No appeal was filed from this matter. Defendant’s current request for post conviction relief—his fourth—was filed on 24 February 16, 2005. As with Defendant’s prior filings, the contents of his fourth petition are of questionable import, duplicative of earlier filings, incomprehensible, or illegible. On March 30, 2005, this court, pursuant to Pennsylvania Rule of Criminal Procedure 25 907(1), gave notice of its intent to deny Defendant’s petition. Defendant responded to 26 this notice by filing, inter alia, a petition for reconsideration. DISCUSSION Several principles of law are pertinent to a disposition of Defendant’s latest request for post conviction relief. Each of these principles tends to militate against a favorable disposition of Defendant’s claims sub judice. First, under Section 9578(a) of the Judicial Code: 19 Commonwealth v. Pracht, No. CP-21-CR-0991-1998 (Cumberland County, Dec. 31, 2003). 20 Defendant’s Motion for Post Conviction Collateral Relief et al., filed Sept. 2, 2004. 21 Order of Court, Dec. 9, 2004. 22 Order of Court, Jan. 10, 2005. 23 Order of Court, Jan. 14, 2005. 24 Defendant’s Motion for Post Conviction Collateral Relief, filed Feb. 16, 2005. 25 Order of Court, Mar. 30, 2005. 26 Application/Petition for Reargument/Reconsideration of Appellant’s Petitions for Post Conviction Collateral Relief as Well as of Various Supplemental Pleadings, filed May 25, 2005. 3 No further review shall be available [following disposition of a prior petition for post conviction relief] unless a petition is filed … alleging that: (1) 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 of the United States or laws of the United States or the Constitution of Pennsylvania or laws of this Commonwealth; (2) the facts upon which the claim is predicated were unknown to the petitioner and could not have been ascertained in the exercise of due diligence; or (3) 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. Act of November 17, 1995, P.L. 1118, § 2, 42 Pa. C.S. § 9578(a). Second, under Section 9543 of the Judicial Code, a request for post conviction relief is not available where “the allegation of error [relied upon by the petitioner] has … been previously litigated or waived.” Act of May 13, 1982, P.L. 417, § 2, as amended, 42 Pa. C.S. § 9543(a)(3). An issue is deemed previously litigated if “the highest appellate court in which the petitioner could have had review as a matter of right has ruled on the merits of the issue” or “it has been raised and decided in a proceeding collaterally attacking the conviction or sentence.” Id. § 9544(a). An issue is deemed waived if “the petitioner could have raised it but failed to do so before trial, at trial, … on appeal or in a prior state postconviction proceeding.” Id. § 9544(b). “[R]epetitive applications for post conviction relief ignore ‘the waiver provisions [of the Act] … and render the “finally litigated” concept illusory.’” Place, The Post Conviction Relief Act § 5.01, at 98 (rev. ed. 2004). Finally, as a general proposition, Pennsylvania courts are not required to entertain submissions which are incoherent, incomprehensible or unintelligible. See, e.g., Commonwealth v. Albert, 522 Pa. 331, 561 A.2d 736 (1989); Commonwealth ex rel. Swann v. Shovlin, 423 Pa. 26, 223 A.2d 1 (1966). 4 In the present case, Defendant’s most recent petition for post conviction relief is repetitious of earlier requests for such relief. The Defendant raises issues that are not intelligibly expressed or irrelevant in some instances, are preempted by prior petition, and have been finally litigated or waived. For these reasons, the following order will be entered: ORDER OF COURT th AND NOW, this 30 day of June, 2005, upon consideration of Defendant’s Motion for Post Conviction Collateral Relief and Defendant’s petition for reconsideration, and following Notice provided by Order of Court dated March 30, 2005, in accordance with Pennsylvania Rule of Criminal Procedure 907(1), of the court’s intention to dismiss Defendant’s Motion for Post Conviction Collateral Relief, and for the reasons stated in the above opinion, Defendant’s petition for reconsideration is denied, and Defendant’s Motion for Post Conviction Collateral Relief is dismissed. BY THE COURT, s/ J. Wesley Oler, Jr. J. Wesley Oler, Jr., J. Office of the District Attorney Nicholas A. Pracht, DV-0813 SCI-Graterford P.O. Box 246, Route 29 Collegeville, PA 19428-0246 Defendant, Pro Se [Certified Mail] 5 COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : v. : : NICHOLAS A. PRACHT : CP-21-CR-0991-1998 IN RE: DEFENDANT’S MOTION FOR POST CONVICTION COLLATERAL RELIEF BEFORE OLER, J. ORDER OF COURT th AND NOW, this 30 day of June, 2005, upon consideration of Defendant’s Motion for Post Conviction Collateral Relief and Defendant’s petition for reconsideration, and following Notice provided by Order of Court dated March 30, 2005, in accordance with Pennsylvania Rule of Criminal Procedure 907(1), of the court’s intention to dismiss Defendant’s Motion for Post Conviction Collateral Relief, and for the reasons stated in the above opinion, Defendant’s petition for reconsideration is denied, and Defendant’s Motion for Post Conviction Collateral Relief is dismissed. BY THE COURT, _________________________ J. Wesley Oler, Jr., J. Office of the District Attorney Nicholas A. Pracht, DV-0813 SCI-Graterford P.O. Box 246, Route 29 Collegeville, PA 19428-0246 Defendant, Pro Se [Certified Mail] 6