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Home My WebLink AboutCP-21-MD-0000579-2008 COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA v. : : DAVID F. KELLY BEY : CP-21-MD-579-2008 NOTICE OF INTENT TO DISMISS WITHOUT HEARING BEFORE OLER, J. OPINION and ORDER OF COURT OLER, J., October 27, 2009. 1 On May 14, 2009, the above Defendant filed a “PCRA Petition” which, 2 inter alia, challenges his October 23, 2007, summary convictions for speeding and 3 driving under suspension. With respect to these offenses, according to Defendant he “was sentenced to time served. On November 26, 2007, a payment hearing was 1 Defendant’s Motion for Post Conviction Collateral Relief, filed May 14, 2009, at 3. 2 Defendant’s Answer to Commonwealth’s Motion To Dismiss P.C.R.A. Petition, filed September 15, 2009, at ¶2. 3 Defendant’s Answer to Commonwealth’s Motion To Dismiss P.C.R.A. Petition, filed September 15, 2009. Defendant’s petition also challenges an unrelated conviction, docketed at CP-21-CR-2481-2001 (Cumberland County). Defendant’s Motion for Post Conviction Collateral Relief, filed May 14, 2009. This aspect of the petition will be dealt with separately by the court. The present petition, as it relates to the summary offenses, was preceded by an earlier filing at CP-21-MD-579-2008 requesting that a detainer purportedly based upon the convictions and lodged at Defendant’s state correctional institution be quashed. See Defendant’s Motion To Quash Detainer and Dismiss, filed August 20, 2008. In an answer to this motion to quash, the Commonwealth noted that “[t]he defendant was sentenced to time served. On November 26, 2007, a payment hearing was held and all fines levied against defendant were cleared. . . . There are no outstanding detainers related to the charges the defendant is contesting.” Commonwealth’s Answer to Defendant’s Motion To Quash and Dismiss, filed September 9, 2008. Defendant filed a reply to the Commonwealth’s Answer, maintaining that the revocation of a license was akin to slavery. Defendant’s Petition for Writ of Error in the Alternative Motion of Opposition and Objection to Commonwealth Answer to Defendant’s Motion To Quash and Dismiss, filed September 15, 2008. Although seemingly mooted, the issues raised in Defendant’s Motion To Quash and Dismiss will be deemed subsumed by his present petition under the Post Conviction Relief Act. 4 held and all fines levied against [him] were cleared.” Defendant has chosen to 5 proceed pro se. 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 6 the disputed sentence. Under Pennsylvania Rule of Criminal Procedure 907(1), “[i]f the judge [upon review of a Post Conviction Relief Act petition] is satisfied from this review 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.” Pennsylvania Rule of Criminal Procedure 907(3), further provides that The judge may dispose of only part of a petition without a hearing by ordering dismissal of or granting relief on only some of the issues raised, while ordering hearing on other issues. In the present case, none of the prerequisites for relief under the Post Conviction Relief Act is present with respect to Defendant’s speeding and driving under suspension convictions in 2007. Accordingly, the following order will be entered as to that aspect of Defendant’s request for relief under the Post Conviction Relief Act: 4 Defendant’s Answer to Commonwealth’s Motion To Dismiss P.C.R.A. Petition, filed September 15, 2009, at ¶4. 5 Defendant chose to decline the services of an attorney appointed to represent him in this matter, and following a hearing was granted leave to represent himself. Order of Court, August 26, 2009. 6 42 Pa. C.S. §9543(a)(1). 2 ORDER OF COURT th AND NOW, this 27day of October, 2009, upon consideration of Defendant’s Motion for Post Conviction Collateral Relief as it relates to summary convictions for speeding and driving under suspension in 2007, 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 those convictions 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 15450 Defendant, pro Se Certified Mail David F. Kelly Bey, HE-7413 P.O. Box 9999 LaBelle, PA 15450 Defendant, pro Se First-Class Mail David F. Kelly Bey c/o 301 E. Catherine Street Chambersburg, PA 17201 Defendant, pro Se Certified Mail 3 David F. Kelly Bey c/o 301 E. Catherine Street Chambersburg, PA 17201 Defendant, pro Se First-Class Mail 4 COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA v. : : DAVID F. KELLY BEY : CP-21-MD-579-2008 NOTICE OF INTENT TO DISMISS WITHOUT HEARING BEFORE OLER, J. ORDER OF COURT th AND NOW, this 27 day of October, 2009, upon consideration of Defendant’s Motion for Post Conviction Collateral Relief as it relates to summary convictions for speeding and driving under suspension in 2007, 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 those convictions 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 15450 Defendant, pro Se Certified Mail 6 David F. Kelly Bey, HE-7413 P.O. Box 9999 LaBelle, PA 15450 Defendant pro Se First-Class Mail David F. Kelly Bey c/o 301 E. Catherine Street Chambersburg, PA 17201 Defendant, pro Se Certified Mail David F. Kelly Bey c/o 301 E. Catherine Street Chambersburg, PA 17201 Defendant, pro Se First-Class Mail