HomeMy WebLinkAboutCP-21-CR-0002481-2001
COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
:
v. : CHARGE: (1) THEFT BY UNLAWFUL TAKING
: OR DISPOSITION
DAVID FITZGERALD :
KELLY [BEY] :
OTN: E9362043 : CP-21-CR-2481-2001
IN RE: NOTICE OF INTENT TO DISMISS WITHOUT HEARING
BEFORE OLER, J.
OPINION and ORDER OF COURT
OLER, J., November 6, 2009.
1
The above Defendant has filed a “PCRA Petition” which, inter alia,
2
challenges his 2002 conviction for theft by unlawful taking or disposition. For the
reasons stated in this opinion, the court intends to dismiss this aspect of the
petition without a hearing.
STATEMENT OF FACTS
On February 21, 2002, Defendant entered a counseled plea of guilty to a
charge of theft by unlawful taking or disposition, graded a misdemeanor of the
third degree, on the basis of the following facts, which he admitted:
. . .[B]etween September 7th and September 9th, 2001, at 12 Beidler
Road in North Newton Township, Cumberland County, Pennsylvania, the
Defendant took the victim’s Social Security card and two credit cards.
That victim being David Lloyd Brumbaugh, B-r-u-m-b-a-u-g-h.
It was a Bank of America Visa card and an MBNA Mastercard. He
used those cards to make a number of telephone calls, and also made
1
Defendant’s Motion for Post Conviction Collateral Relief, filed May 14, 2009, at 3.
2
Defendant’s Motion for Post Conviction Collateral Relief, filed May 14, 2009; see Order of
Court, April 2, 2002.
Defendant’s petition also challenges unrelated convictions for two summary Vehicle Code
offenses in 2007. See Defendant’s Motion for Post Conviction Collateral Relief, filed May 14,
2009. This aspect of Defendant’s petition is being dealt with separately. See, e.g., Notice of Intent
To Dismiss without Hearing, October 27, 2009 (order and opinion advising of court’s intent to
dismiss Defendant’s Motion for Post Conviction Relief as it relates to summary offenses).
several attempts to get money from an automated teller machine, thereby
3
committing the offense of Theft by Unlawful Taking.
He was sentenced on this charge on April 2, 2002, to pay the costs of
prosecution, make restitution in the amount of $215.00, and undergo a period of
imprisonment in the Cumberland County Prison of not less than five months nor
more than twelve months, with credit to be given from November 8, 2001, to the
4
date of sentencing. He was paroled immediately, and his maximum sentence
5
expired on November 8, 2002.
No direct appeal was filed from the judgment of sentence, but on
September 3, 2002, Defendant filed a petition under the Post Conviction Relief
Act asserting that his plea bargain had included an agreement that restitution
would be limited to $45.00 and that the additional sum of $170.00 constituted an
6
unlawful award for pain and suffering. The petition also made references to (a) a
violation of the constitution of Pennsylvania or laws of the Commonwealth or the
constitution of the United States which, in the circumstances, so undermined the
truth-determining process that no reliable adjudication of guilt or innocence could
have taken place, (b) the imposition of a sentence greater than the lawful
7
maximum, and (c) a proceeding in a tribunal without jurisdiction.
A hearing on Defendant’s 2002 petition, at which he was represented by
8
court-appointed counsel, was held on December 11, 2002. On January 9, 2003,
the court issued an order denying Defendant’s request for relief under the Post
9
Conviction Relief Act. This order was affirmed by the Pennsylvania Superior
3
N.T. 2, Guilty Plea Colloquy, February 21, 2002.
4
Order of Court, April 2, 2002.
5
Order of Court, April 2, 2002.
6
Defendant’s Motion for Post Conviction Collateral Relief, filed September 3, 2002.
7
Defendant’s Motion for Post Conviction Collateral Relief, filed September 3, 2002.
8
See Order of Court, September 5, 2009.
9
Order of Court, January 9, 2003.
2
10
Court on September 4, 2003. Defendant’s Petition for Allowance of Appeal to
11
the Pennsylvania Supreme Court was denied on March 23, 2004.
Defendant’s present petition sub judice under the Post Conviction Relief
12
Act was filed on May 14, 2009. As it relates to the 2002 conviction for theft by
unlawful taking or deposition, the petition claims eligibility for relief on the basis
of (a) a violation of the Constitution of this Commonwealth or the Constitution or
laws of the United States which, in the circumstances, so undermined the truth-
determining process that no reliable adjudication of guilt or innocence could have
13
taken place and (b) a proceeding in a tribunal without jurisdiction.
The facts in support of the alleged errors upon which the petition is based
are expressed in the petition as follows:
Petitioner states that he was Convicted and Sentence under a void
Judgment and Sentence in which the trial court lacked Subject Matter
Jurisdiction that was used to Enhance his Criminal Convictions in his
Present Criminal Case No. 2145-09 Dauphin County and 595-07; 1026-07
and 1025-07 Franklin County. Thus, such Conviction in Case No. 2481-01
Cumberland County is a Void Conviction and Judgment rendered Where
as Court lack Subject Matter Jurisdiction. Therefore, Petitioner With
Adopted his Pro’se Motion to Dismiss for lack of Subject Matter
Jurisdiction Nunc Pro Tunc and Memorandum of law in support Attached
to this Pro’se PCRA Petition. See Exhibit “A” As this Point to be Argued
14
for which Relief is being Sought herein
Defendant’s petition includes a 20-page “Memorandum of Law,” which
contains sections entitled “The Nature of Subject Matter Jurisdiction,” “By
Constitutional Mandate, all Laws Must Have an Enacting Clause,” “What is the
Purpose of the Constitutional Provision for an Enacting Clause?” “Laws must be
Published and Recorded with Enacting Clauses,” “The Referenced to in the
Complaints Contain no Titles,” “The Pennsylvania Statutes are of an Unknown
10
Order of Court, September 4, 2003, 212 MDA 2003 (Pa. Superior Ct.).
11
Order of Court, March 23, 2004 (Pa. Supreme Ct.).
12
Defendant’s Motion for Post Conviction Collateral Relief, filed May 14, 2009.
13
Defendant’s Motion for Post Conviction Collateral Relief, filed May 14, 2009.
14
Defendant’s Motion for Post Conviction Collateral Relief, filed May 14, 2009.
3
15
and Uncertain Authority,” and “Caveat.” In the latter section, Defendant warns
16
the court that “[t]o assume jurisdiction in this case would result in TREASON.”
The court appointed counsel for Defendant with respect to this petition on
17
May 18, 2009. However, Defendant ultimately decided that he wished to
18
represent himself, and the court, following a hearing, acceded to his wishes.
On September 10, 2009, the Commonwealth filed a motion to dismiss
19
Defendant’s present Post Conviction Relief Act petition without a hearing. The
motion noted, inter alia, that Defendant’s petition had been filed far beyond the
one-year period provided for in the Post Conviction Relief Act and had not
pleaded one of the statutory exceptions to this timeliness rule and that issues raised
in Defendant’s current petition had been waived by virtue of the filing of his
previous petition.
The court issued a Rule upon Defendant to show cause why the
20
Commonwealth’s motion should not be granted, on September 8, 2009.
21
Defendant did not file a response to this Rule, and the Commonwealth filed a
22
motion to make the rule absolute on October 12, 2009.
15
Defendant’s Motion for Post Conviction Collateral Relief, filed May 14, 2009.
16
Defendant’s Motion for Post Conviction Collateral Relief, filed May 14, 2009.
17
Order of Court, May 18, 2009.
18
Order of Court, August 26, 2009. The court also acceded to a request of Defendant for a
postponement of the hearing previously scheduled on the petition. Order of Court, August 27,
2009.
19
Commonwealth’s Motion To Dismiss the Defendant’s Second P.C.R.A. Petition As Untimely,
filed August 26, 2009.
20
Order of Court, September 8, 2009.
21
Defendant did file a response to a Rule issued by the court in connection with a motion of the
Commonwealth to dismiss Defendant’s petition as it related to the summary offenses referred to
in note 2 supra. See Defendant’s Answer to Commonwealth’s Motion To Dismiss P.C.R.A
Petition, filed September 15, 2009.
22
Commonwealth’s Motion To Make Rule Absolute, filed October 12, 2009.
4
DISCUSSION
Statement of law. Under Pennsylvania Rule of Criminal Procedure 907(1),
it is provided as follows, with respect to most petitions under the Post Conviction
Relief Act:
If the judge is satisfied from [a] review [of the petition] that there are
no genuine issues concerning any material fact and that the defendant is
not entitled to post-conviction collateral relief, and no purpose would be
served by any further proceedings, the judge shall give notice to the parties
of the intention to dismiss the petition and shall state in the notice the
reasons for the dismissal. The defendant may respond to the proposed
dismissal within 20 days of the date of the notice. The judge thereafter
shall order the petition dismissed, grant leave to file an amended petition,
or direct that the proceedings continue.
Rule 907(3) adds that “[t]he judge may dispose of only part of a petition without a
hearing by ordering dismissal of . . . only some of the issues raised, while ordering
a hearing on other issues.”
The comment to Rule 907 is helpful in describing some of the situations in
which a petition is appropriately dismissed without a hearing:
The judge is permitted, pursuant to paragraph (1), to summarily
dismiss a petition for post-conviction collateral relief in certain limited
cases. To determine whether a summary dismissal is appropriate, the judge
should thoroughly review the petition, the answer, if any, and all other
relevant information that is included in the record. If, after this review, the
judge determines that the petition is patently frivolous and without support
in the record, or that the facts alleged would not, even if proven, entitle the
defendant to relief, or that there are no genuine issues of fact, the judge
may dismiss the petition [without a hearing].
A summary dismissal would also be authorized under this rule if the
judge determines that a previous petition involving the same issue or
issues was filed and was finally determined adversely to the defendant. See
42 Pa.C.S. § 9545(b) for the timing requirements for filing second and
subsequent petitions.
Second or subsequent petitions will not be entertained unless a strong
prima facie showing is offered to demonstrate that a miscarriage of justice
may have occurred. See Commonwealth v. Szuchon, 534 Pa. 483, 486, 633
A.2d 1098, 1099 (1993) (citing Commonwealth v. Lawson, 519 Pa. 504,
549 A.2d 107 (1988). This standard is met if the petitioner can
5
demonstrate either: (1) that the proceedings resulting in the petitioner’s
conviction were so unfair that a miscarriage of justice occurred which no
civilized society can tolerate; or (2) that the petitioner is innocent of the
crimes charged. See Commonwealth v. Szuchon, 534 Pa. 483, 487, 633
A.2d 1098, 1000 (1993).
Under Section 9543(a) of the Judicial Code, in order to be eligible for relief
under the Post Conviction Relief Act, the moving party must plead and prove by a
preponderance of the evidence that he has been convicted of a crime and is (a)
currently serving a sentence of imprisonment, probation or parole for the crime,
(b) awaiting execution of a death sentence, or (c) serving a sentence which must
expire before the person may commence serving the disputed sentence. Act of
May 13, 1982, P.L. 417, §2, as amended, 42 Pa. C.S. §9543(a).
In addition, under Section 9544(a)(3) of the Judicial Code, it is provided
that an issue is considered to have been previously litigated if “it has been raised
and decided in a [prior] proceeding collaterally attacking the conviction or
sentence.” Id. §9544(a)(3). In addition, under Section 9544(b) of the act “an issue
is waived if the petitioner could have raised it but failed to do so before trial, at
trial, during unitary review, on appeal or in a prior state postconviction
proceeding.” Id. §9544(b).
Finally, under Section 9545(b)(1) of the Judicial Code, it is provided as
follows:
(1) Any petition under this subchapter, including a
second or subsequent petition, shall be filed within one
year of the date the 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
6
provided in this section and has been held by that court to
apply retroactively.
Id. §9545(b). Any petition invoking an exception to this provision must be filed
within 60 days of the date the claim could have been presented. Id. §9545(b)(2).
The timeliness rule under the act is generally regarded as being of jurisdictional
dimension. Commonwealth v. Robinson, 575 Pa. 500, 508, 837 A.2d 1157, 1161
(2003).
Application of law to facts. In the present case, several factors have led the
court to a conclusion that Defendant can not prevail on the present petition under
the Post Conviction Relief Act as it relates to Defendant’s 2002 conviction and
sentence for theft by unlawful taking and disposition and that a hearing on that
aspect of the petition is not necessary. First, the record reveals the absence of any
of the general statutory prerequisites for post conviction collateral relief under
Section 9543(a) of the Judicial Code, where Defendant’s sentence has long since
expired.
Second, principles of previous litigation and waiver preclude relief under
Section 9544 of the Judicial Code, where a previous Post Conviction Relief Act
petition of Defendant challenging his conviction and sentence on the basis of a
violation of the constitution of Pennsylvania or laws of the Commonwealth or the
constitution of the United States and the legality of his sentence was filed and
finally litigated several years ago. Nothing in the record or current petition would
support a conclusion that the proceedings resulting in Petitioner’s conviction were
so unfair that a miscarriage of justice occurred which no civilized society can
tolerate or that Defendant is innocent of the crime charged.
Third, the legal argument expressed in Defendant’s petition that
Pennsylvania criminal statutes lack the force of law, to the extent that the
argument is comprehensible, is insupportable as a matter of law and the petition is
most aptly characterized as frivolous.
7
Finally, it may be noted that Defendant has neither pled an exception to the
time constraints of Section 9545(b), nor responded to a rule issued by the court
23
which provided him an opportunity to do so.
For the foregoing reasons, the following order will be entered:
ORDER OF COURT
th
AND NOW, this 6 day of November, 2009, upon consideration of
Defendant’s Motion for Post Conviction Collateral Relief as it relates to
Defendant’s conviction and sentence for theft by unlawful taking and disposition
in 2002 at CP-21-CR-2481-2001, and for the reasons stated in the accompanying
opinion, Notice is hereby given to Defendant pursuant to Pennsylvania Rule of
Criminal Procedure 907(1) of the court’s intention to dismiss the Defendant’s
motion as it relates to that conviction and sentence without a hearing and to cancel
the hearing previously scheduled as it related to that aspect of Defendant’s motion.
BY THE COURT,
s/ J. Wesley Oler, Jr.
J. Wesley Oler, Jr., J.
Michelle H. Sibert, Esq.
Chief Deputy District Attorney
David F. Kelly Bey, HE-7413
P.O. Box 9999
LaBelle, PA 16450
Defendant, pro Se
First Class and Certified Mail
David F. Kelly Bey
c/o 301 E. Catherine Street
Chambersburg, PA 17201
Defendant, pro Se
First Class Mail and Certified Mail
23
Normally, however, “[a] PCRA petition may not be dismissed due to delay in filing except
after a hearing on a motion to dismiss.” Comment, Pa. R. Crim. P. 907. In the present case,
8
additional factors have led to the court’s conclusion that Defendant can not prevail on the
petition.
9
10
COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
:
v. : CHARGE: (1) THEFT BY UNLAWFUL TAKING
: OR DISPOSITION
DAVID FITZGERALD :
KELLY [BEY] :
OTN: E9362043 : CP-21-CR-2481-2001
IN RE: NOTICE OF INTENT TO DISMISS WITHOUT HEARING
BEFORE OLER, J.
ORDER OF COURT
th
AND NOW, this 6 day of November, 2009, upon consideration of
Defendant’s Motion for Post Conviction Collateral Relief as it relates to
Defendant’s conviction and sentence for theft by unlawful taking and disposition
in 2002 at CP-21-CR-2481-2001, and for the reasons stated in the accompanying
opinion, Notice is hereby given to Defendant pursuant to Pennsylvania Rule of
Criminal Procedure 907(1) of the court’s intention to dismiss the Defendant’s
motion as it relates to that conviction and sentence without a hearing and to cancel
the hearing previously scheduled as it related to that aspect of Defendant’s motion.
BY THE COURT,
_________________
J. Wesley Oler, Jr., J.
Michelle H. Sibert, Esq.
Chief Deputy District Attorney
David F. Kelly Bey, HE-7413
P.O. Box 9999
LaBelle, PA 16450
Defendant, pro Se
First Class and Certified Mail
David F. Kelly Bey
c/o 301 E. Catherine Street
Chambersburg, PA 17201
Defendant, pro Se
First Class Mail and Certified Mail
12