Loading...
HomeMy WebLinkAboutCP-21-CR-2129-2004 COMMONWEAL TH IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. ROBERTL.ANDERSON CP-21-CR-2129-2004 IN RE: OPINION PURSUANT TO PENNSYLVANIA RULE OF APPELLATE PROCEDURE 1925 Bayley, J., September 26, 2005:-- On December 3, 2004, Robert L. Anderson, pled guilty to statutory sexual assault, a felony in the second degree. On the same date he was sentenced to pay the costs of prosecution, and undergo imprisonment in a state correctional institution for a term of not less than one and a half or more than three years to date from August 23, 2004. No direct appeal was filed from the judgment of sentence. On March 8,2005, Anderson filed a petition for post-conviction collateral relief pursuant to 42 PaC.S. Sections 9541-9546. Counsel was appointed and given additional time to file an amended petition if warranted. On July 22, 2005, an order was entered that, "Charles P. Mackin, Esquire, is allowed to withdraw from representing petitioner." The following notice was sent to petitioner: [p]ursuant to PaR.Crim.P. 907(1), based on the no-merit letter attached by petitioner's counsel, it is the intention of this court based upon there being no genuine issues concerning any material fact, and petitioner is not entitled to post-conviction relief, and that no purpose would be served by any further proceedings, to dismiss the petition. Petitioner may respond in writing to the proposed dismissal within twenty (20) days of the receipt of this notice at SCI Graterford.1 1 See Commonwealth v. Turner, 518 Pa 491 (1988); Commonwealth v. Finley, 379 CP-21-CR-2129-2004 On August 5, 2005, the following order was entered: [p]ursuant to Pa.R.Crim.P. 907, and upon further review of the no-merit letter of petitioner's counsel, and the response filed by petitioner pursuant to this court's order of July 22, 2005, IT IS ORDERED that the within petition for post-conviction collateral relief, IS DENIED WITHOUT A HEARING. You are advised that you have a right to file a direct appeal to the Superior Court of Pennsylvania from this order within thirty days of this date. Defendant has filed a direct appeal from this order to the Superior Court of Pennsylvania. The no-merit letter of counsel set forth the following: On December 3,2004, Mr. Anderson pleaded guilty to one count of statutory sexual assault (18 Pa.C.S.A. S3122.1, F2) in full satisfaction of all charges lodged at the above docket. In exchange for said plea, there was an agreed upon sentence of 1 % years-3 years, SCI. This sentence was at the low end of the standard range for a defendant with a prior record score (PRS) of 4, which the defendant in this case had. After a factual colloquy on the record, and determining that the defendant had signed a rights form, the court accepted the plea, and sentenced in accordance with the agreement. Defendant is currently incarcerated at SCI Graterford serving this sentence. On or about March 8,2005, defendant filed a timely PCRA alleging that his public defender, Timothy Clawges, Esq., was ineffective in that he did not file a direct appeal to the Superior Court. Undersigned was appointed to this matter on March 10, 2005. I have reviewed the initial claim of Mr. Anderson, as well as other issues he subsequently raised, and believe all of them to have no merit. Kindly allow this to serve as a TurnerlFinley letter (518 Pa. 491, 379 Pa. Super 390, respectively). Undersigned wrote to Mr. Anderson on the following dates: March 19, 2005, May 2, 2005, May 22, 2005, and July 15, 2005, seeking further information. In addition, he spoke with Mr. Clawges, and reviewed the case file at the courthouse. As to the initial claim, that is the failure to file a direct appeal, Mr. Clawges advised that no timely request was made. Pa. Super. 390 (1988); Commonwealth v Bishop, 435 Pa Super. 211 (1994). -2- CP-21-CR-2129-2004 This claim has no merit. In correspondence with Mr. Anderson, the following issues were raised: 1. an incorrect PRS; 2. a belief that ADA Sibert stated, on the record that the sentence would be in the mitigated range; and, 3. the defense of mistake as to age (18 Pa.C.S.A. S3102). Each will be addressed separately. Mr. Anderson claims that his PRS was a 4, but was improperly calculated as a 5. According to the Guideline Form in Mr. Anderson's file at the courthouse, he had a PRS of 4. A copy of the form is attached hereto. It should be further noted that the sentence agreed to, and imposed, was at the low end of the standard range for a defendant with a PRS of 4. This claim has no merit. Next, Anderson claims that ADA Sibert stated on the record that the sentence was to be a mitigated one. The transcript of hearing does not support Anderson's claim. Nowhere in the record is the word "mitigated" used. Indeed, at page 6 of the transcript, the court stated: "I am going to impose a sentence which is a standard guideline sentence, but the reason I am imposing this particular sentence is pursuant to the plea agreement upon which it was entered which is acceptable to me." This claim, too, must fall. Finally, Anderson contends that he did not know the age of the victim, and wishes to assert the defense of Mistake as to Age. Like his other issues, this one also lacks merit. First, he pleaded guilty and signed a rights form (copy attached), which specifically noted that he was giving up all possible defenses. Next, at pages 2, 3 and 4 of the transcript, the age of the victim was specifically set out by the ADA and by the court. After explaining the offense of statutory sexual assault to Anderson, the court inquired if he, Anderson admitted that he committed the offense, Anderson stated, "Yes, sir." (Page 5). Further, prior to the imposition of sentence Anderson stated: "Everything's been said in court. Like, nobody came and lied or nothing like that. My lawyer's explained it to me fully, you know what I'm saying. I know basically the law. I'm accountable no matter what I tell you so I accept the plea." The claim -3- CP-21-CR-2129-2004 cannot stand. The court should also be aware that Anderson has asked the undersigned to file a Motion to Modify sentence. Anderson was advised that the time to file such a motion had long since passed. For the above reasons, it is requested that the PCRA in this matter be denied as it has no merit, and that the order appointing the undersigned in this matter be vacated. Anderson should be advised that he may proceed (appeal) pro se, with private counsel, or not at all. Our independent review of the record supports the position of no merit taken by counsel.2 This court was not required to hold a hearing on the meritless claims of petitioner. The order of August 5, 2005, was properly entered. (Date) Edgar B. Bayley, J. Jaime Keating, Esquire For the Commonwealth Robert L. Anderson, GA-7346, Pro se SCI Graterford P.O. Box 244 Graterford, PA 19426-0246 :sal 2 See Commonwealth v. Glover, 738 A.2d 460 (Pa. Super. 1999). -4-