HomeMy WebLinkAbout94-1370 criminal (2)COMMONWEALTH
TIMOTHY RAY SWEGER
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
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IN RE: PETITION FOR POST-CONVICTION RELIEF
OPINION AND INTERIM ORDER OF COURT
BAYLEY, J., July 29, 1999:--
On March 29, 1995, while represented by the public defender, petitioner herein,
Timothy Ray Sweger, was convicted by a jury of rape, statutory rape, involuntary
deviate sexual intercourse, furnishing liquor to minors, and two counts of terroristic
threats. On May 2, 1995, Sweger was sentenced on the count of involuntary deviate
sexual intercourse to undergo imprisonment in a state correctional institution for a term
of not less than five years or more than ten years, to date from July 22, 1994. He was
sentenced to a concurrent term of imprisonment of not less than five years or more than
ten years on the count of rape. On all other counts he was assessed the costs of
prosecution.
On May 2, 1995, new counsel was appointed to represent petitioner. Petitioner
then filed an optional post-sentence motion raising numerous issues including an
allegation of ineffective assistance of trial counsel. A hearing was conducted on the
ineffectiveness claim. On September 8, 1995, an order was entered supported by a
written opinion denying petitioner relief on his assignments of error. Petitioner then filed
a direct appeal to the Superior Court of Pennsylvania, which on September 20, 1996,
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affirmed the judgment of sentence.~ On April 7, 1997, the Supreme Court of
Pennsylvania denied a petition for an allowance to appeal?
On April 21, 1997, Sweger filed a pro se petition for post-conviction relief. New
counsel was appointed to represent him. A hearing was conducted on the sole issue
raised by petitioner which was that he was denied a right to a full, direct appeal to the
Superior Court due to his appellate counsel's failure to raise three issues that he
wanted to be raised on appeal. In an order dated December 2, 1997, supported by a
written opinion, we held that petitioner was afforded his right to a direct appeal from his
judgment of sentence and therefore we denied the petition for post-conviction relief. No
appeal was taken from this order.
Petitioner has now filed a second petition for relief with the appointment of
counsel under the Post-Conviction Relief Act. 42 Pa.C.S. § 9541 et seq. Petitioner
avers that his sentences to imprisonment are "unlawful indefinite terms of
imprisonment," and that he has a right to parole at the expiration of his minimum
sentences. The claim is frivolous as the concurrent sentences for involuntary deviate
sexual intercourse and rape of not less than five years or more than ten years
conformed with the requirements of the sentencing code at 42 Pa.C.S. Section 9756(b)
that provides:
455 Pa. Super. 660 (1995).
547 Pa. 754 (1996).
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(b) Minimum sentence.--The court shall impose a minimum
sentence of confinement which shall not exceed one-half of the maximum
sentence imposed?
The minimum sentencing procedure established by 42 Pa.C.S. Section 9756(b)
(formerly 19 P.S. Section 1057) is constitutionally firm. Commonwealth v. Kempka,
272 Pa. Super. 336 (1979). The authority granted to the Pennsylvania Board of Parole
in 61 P.S. 331.19 of exclusive discretionary power of parole in a case such as
petitioner's is constitutionally firm. Gahagan v. Pennsylvania Board of Probation and
Parole, 444 F.Supp. 1326 (ED Pa. 1978).
Pa.R.Crim. P. 1504(b) provides:
On a second or subsequent motion, when an unrepresented
defendant satisfies the judge that the defendant is unable to afford or
otherwise procure counsel, and an evidentiary hearing is required as
provided in Rule 1508, the judge shall appoint counsel to represent the
defendant.
Rule 1504(c) provides that: "The judge shall appoint counsel to represent a defendant
whenever the interests of justice require it." Rule 1508(a) provides: "Except as
provided in Rule 1507, the judge shall order a hearing on all material issues of fact
raised by the motion and answer, if any .... "However, Rule 1507(a) provides:
The judge shall promptly review the motion, any answer by the
attorney for the Commonwealth, and other matters of record relating to
the defendant's claim(s). If the judge 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
3 The concurrent minimum sentences imposed on each offense of five years
were mandatory minimum terms of imprisonment under 42 Pa.C.S. § 9718(a).
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no purpose would be served by any further proceedings, the judge
shall give notice to the parties of the intention to dismiss the motion
and shall state in the notice the reasons for the dismissal. The
defendant may respond to the proposed dismissal within 10 days of
the date of the notice. The judge thereafter shall either order the motion
dismissed, or grant leave to file an amended motion, or direct that the
proceedings continue. (Emphasis added).
Pursuant to this Section, the interest of justice does not require the appointment
of counsel or a hearing on these frivolous claims. Accordingly, the following interim
order is entered.
INTERIM ORDER OF COURT
AND NOW, this '~ day of July, 1999, notice is given to petitioner
of the intention to dismiss this second petition for post-conviction relief. Petitioner may
proceed in forma pauperis and respond to the proposed dismissal within ten (10) days
of the date of this notice.
Jaime Keating, Esquire
For the Commonwealth
Timothy Ray Sweger, CT-5510, Pro se
SCI Coal Township
1 Kelley Drive
Coal Township, PA 17866
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