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HomeMy WebLinkAboutCP-21-CR-0003100-2008 (2) COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA v. : : CHRIS A. BALLEK : OTN: K7799831 : CP-21-CR-2749-2008 OTN: K7800063 : CP-21-CR-3100-2008 IN RE: DEFENDANT’S PETITIONS FOR POST CONVICTION RELIEF BEFORE OLER, J. OPINION and ORDER OF COURT OLER, J., December 1, 2010. In these criminal cases in which Defendant pled guilty to three burglaries and an 1 attempted burglary, Defendant has filed petitions (styled “motions”) for collateral relief 2 under the Post Conviction Relief Act. A hearing on Defendant’s petitions, at which he was represented by court-appointed counsel, was held on October 7, 2010. According to a brief submitted by Defendant’s counsel following the hearing, the only issue that is yet to be resolved is whether petitioner’s allegation of promises by the detective and the district attorney were actually made to the defendant, and even if so, whether, by law Judge Bayley could have given him equal credit [at CP-21-2749-2008] 3 to Judge Oler’s sentence [at CP-21-3100-2008]. For the reasons stated in this opinion, Defendant’s request for post-conviction relief will be denied. STATEMENT OF FACTS As a result of incidents in Cumberland County occurring on July 4, 2008, and September 18, 2008, Defendant was charged with one count of burglary and one count of attempted burglary, inter alia, at CP-21-CR-3100-2008, and two counts of burglary, inter alia, at CP-21-CR-2749-2008. He pled guilty before the undersigned judge to the July 4, 1 Order of Court, March 24, 2009, CP-21-CR-3100-2008 (Oler, J.); Order of Court, May 20, 2009, CP-21- CR-2749-2008 (Bayley, P.J.). 2 Defendant’s Motion for Post Conviction Collateral Relief, filed June 24, 2010, CP-21-CR-3100-2008; Defendant’s Motion for Post Conviction Collateral Relief, filed June 24, 2010, CP-21-CR-2749-2008. 3 Defendant’s Memorandum in Support of His Post Conviction Relief Act Petition, at 4. 1 4 2008, burglary and attempted burglary on March 24, 2009, and was sentenced on June 16, 2009, to concurrent prison terms of not less than 24 months nor more than 48 months, 5 with credit from December 1, 2008, to the date of sentencing. He pled guilty before the Honorable Edward E. Guido to one consolidated count 6 of burglary with respect to the September 18, 2008, crimes on February 10, 2009. However, at the time scheduled for sentence on April 28, 2009, he chose to withdraw this 78 plea, asserting that “[he was] innocent,” and the Commonwealth filed an amended Information on May 11, 2009, indicating that one of the burglaries charged was a felony 9 of the first degree and the other a felony of the second degree. Following jury selection, 10 Defendant changed his mind again and entered pleas of guilty to each of the burglary 11 counts, before the Honorable Edgar B. Bayley, on May 20, 2009. The guilty plea colloquy with respect to these charges does not indicate the existence of any agreement as to the sentences to be imposed, and indeed President Judge Bayley cautioned Defendant as follows: THE COURT: . . . I know nothing about you. I will order a presentence investigation. When you come back sentencing will be at my discretion under the law and the facts. Do you understand that? THE DEFENDANT: Yes. THE COURT: We are in a unique situation because I have been advised that you previously entered a plea of guilty and you withdrew it, which as you well knew as a result of that there is a liberal right to withdraw a guilty plea in Pennsylvania. Now we have a jury impaneled and sworn in. If you plead guilty now, the Commonwealth would be prejudiced if you move to withdraw your guilty plea, and I agree with that, and I would not allow you to withdraw your guilty plea a second time. By pleading now, you are waiving your right to do that. Do you understand that? 4 Order of Court, March 24, 2009, CP-21-CR-3100-2008. 5 Order of Court, June 16, 2009, CP-21-CR-3100-2008. 6 Order of Court, February 10, 2009, CP-21-CR-2749-2008. 7 Order of Court, April 28, 2009, CP-21-CR-2749-2008. 8 N.T. 2, Hearing, April 28, 2009, CP-21-CR-2749-2008. 9 Commonwealth’s Amended Information, filed May 11, 2009, CP-21-CR-2749-2008. 10 N.T. 2-5, Trial, May 20, 2009, CP-21-CR-2749-2008. 11 Order of Court, May 20, 2009, CP-21-CR-2749-2008. 2 12 THE DEFENDANT: Yes. On July 7, 2009, President Judge Bayley, who has since retired, imposed sentence upon Defendant for the two burglaries that occurred on September 13, 2008, at CP-21- CR-2479-2008. With respect to credit on the sentences, the following transpired as the sentencing proceeding: THE COURT: I have two burglaries. I want to be sure that I have credit right. It looks like he was sentenced by Judge Oler on June [16], 2009, to [24] months to 48 months, and he was given credit from December 1, 2008, is that correct? [DEFENSE COUNSEL]: Yes, Judge, that sounds correct. THE COURT: It also looks on my records, and we checked with the prison, that he was in on these cases that I am sentencing him on from 11/14/08 to 11/30/08 for which he did not receive credit on any other sentence and to which he would be entitled to credit here. That is how I understand the credit situation. He was sentenced in Dauphin County on November 13. Then our detainer held him, and he was returned to the Cumberland Prison on 11/17. I think he is entitled to credit from 11/14 to 11/30. November, December. That would be the day before. He got credit for the remaining time he was in Cumberland 13 County Prison on Judge Oler’s sentence. . . . Defendant’s counsel requested, inter alia, that the sentences to be imposed by Judge Bayley be made to run concurrently with the sentences imposed by the 14 undersigned judge at CP-21-CR-3100-2008. Judge Bayley acceded to this request, noting “I am going to run this sentence from today with credit so that it will have the effect of running concurrent. I believe that is appropriate, especially in light of what happened, the type of burglaries that these were and what was taken and the 15 circumstances. I feel that is an appropriate request. . . .” The sentences imposed for the two burglaries by Judge Bayley were periods of imprisonment in a state correctional institution of not less than 27 months nor more than five years, with credit to be given from November 14, 2008, to November 30, 2008, said sentences to run concurrently with 16 each other and currently with any other sentence being served by Defendant. 12 N.T. 4-5, Trial, May 20, 2009, CP-21-CR-2749-2008. 13 N.T. 2-3, Sentencing Proceeding, July 7, 2009, CP-21-CR-2749-2008. 14 N.T. 4-5, Sentencing Proceeding, July 7, 2009, CP-21-CR-2749-2008. 15 N.T. 5, Sentencing Proceeding, July 7, 2009, CP-21-CR-2749-2008. 16 Order of Court, July 7, 2009, CP-21-CR-2749-2008. 3 Following an unsuccessful challenge to the discretionary aspect of the sentences 17 imposed by Judge Bayley, Defendant twice litigated the issue of credit awarded on the sentences. On October 7, 2009, Defendant filed a “Petition for Time Credit,” stating the following: Petitioner avers that credit for time served in Cumberland County prison prior to sentencing was not afforded to him as shown on his sentencing order, as he was only thth given credit from November 14 2008 to November 30 2008 (17 Days) where as [sic] th petitioner should have been given credit for time served from November 14 2008 th18 through June 18 2009 (217 Days) while incarcerated on these charges. In denying this petition on October 19, 2009, Judge Bayley made the following observation: On both sentences imposed on July 7, 2009, the sentence was to run from that date concurrent with any other sentence being served with credit from November 14, 2008 until November 30, 2008. Defendant seeks additional credit from December 1, 2008 through June 18, 2009. At 31[0]0-2008, on June 16, 2009, defendant was given concurrent state sentences of not less than 24 months or more than 48 months “with credit to be given from December 1, 2008, to the present date.” Accordingly, on these prior sentences defendant was given credit for the additional period of time that he now seeks credit on the within case. A defendant is not entitled to credit for time credited 19 against another sentence. On November 10, 2009, Petitioner filed a “Motion To Correct Time Credit,” asserting the following: 1. On September 30, 2008, the Petitioner was arrested in the above captioned case and charged with Burglary. At the time of arrest, the Petitioner was housed in the Dauphin County Prison on unrelated charges. 2. On November 14, 2008, the Petitioner was transferred to the Cumberland County Prison, to await the disposition of the offenses. 3. On December 1, 2008, the Petitioner was arrested on separate Burglary charges at No. CP-21-CR-3100-2008. 4. At the time of arrest, the Petitioner was instructed that the Burglary charges would be merged into the above captioned case. This did not occur, and the case was assigned to Judge Wesley Oler, Jr. 5. The Petitioner agreed to enter a guilty plea in both cases, and was brought before Judge Oler on June 16, 2009. The Petitioner was sentenced to a term of incarceration of not less than 24, nor more than 48 months. 17 Defendant’s Post-Sentence Motions, filed July 17, 2009, CP-21-CR-2749-2008; Order of Court, July 29, 2009 (Bayley, P.J.), CP-21-CR-2749-2008. 18 Defendant’s Petition for Time Credit, filed October 7, 2009, CP-21-CR-2749-2008. 19 Order of Court, October 19, 2009 n.1 (Bayley, P.J.), CP-21-CR-2749-2008. 4 6. On this sentence, the Petitioner was awarded 198 days of time credit, from December 1, 2008, the day of arrest, through June 16, 2008. 7. On July 7, 2009, the Petitioner was brought before this Court for sentencing. This Court sentenced the Petitioner to serve a term of incarceration of not less than 27 months, nor more than 5 years, to be served concurrently to any other sentence the Petitioner was currently serving. 8. This Court awarded time credit of 17 days, the period of time from November 14, 2008 through November 30, 2008. 9. The Petitioner avers that this Honorable Court erred in not awarding time credit from the day of arrest, September 30, 2008, through July 7, 2009, the day of sentencing. 10. While housed in the Dauphin County Prison, the Petitioner was incarcerated for a separate summary offense, on which time served while incarcerated there did not count toward any sentence imposed. 11. Although housed in Dauphin County, the Petitioner avers that he was arrested on September 30, 2008, and any and all time served prior to his transfer to the Cumberland County Prison should be credited toward his sentence. 12. As this Court Ordered the sentence imposed to be served concurrently with the sentence imposed by Judge Oler, the time credit issued on that sentence will not effect any new time credit award on the sentence at issue. The Petitioner would be serving an underlapping concurrent sentence. Additionally, the Petitioner was not awarded time credit on Judge Oler’s sentence until the day of arrest, December 1, 2008, so the time 20 requested here has not been credited toward any other sentence. By order of court dated November 16, 2009, Judge Bayley denied this motion, noting the following: Defendant was given credit on his sentence on July 7, 2009, starting on November 14, 2008 to November 30, 2008. He seeks additional credit for time he spent in Dauphin County Prison from September 30, 2008 until he was transferred to Cumberland County on November 14, 2008. He is not entitled to credit because he was given credit on his Dauphin County sentence on a misdemeanor drug charge from September 28, 2008 until November 13, 2008. He is not entitled to double credit for this 21 period of time against his Cumberland County sentence. Neither of the orders denying Defendant’s request for additional credit on the sentences imposed by Judge Bayley at CP-21-CR-2749-2008 was appealed by 22 Defendant. On June 24, 2010, Defendant filed pro se “Motion[s] for Post Conviction Collateral Relief” at both CP-21-3100-2008 (the undersigned judge’s case) and CP-21- 20 Defendant’s Motion To Correct Time Credit, filed November 10, 2009, CP-21-CR-2749-2008. 21 Order of Court, November 16, 1009 n.1 (Bayley, P.J.), CP-21-CR-2749-2008. 22 N.T. 7, Hearing, October 7, 2010. 5 CR-2749-2008 (Judge Bayley’s case). The motion at the former requested that he “be 23 resentenced.” The motion at the latter requested that he “be re-sentenced—or—given 24 credit for all time spent in custody for these charges.” Both motions asserted that Defendant was eligible for relief because of “[i]neffective assistance of counsel which, in the circumstances of the particular case, so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place,” “[t]he improper obstruction by government officials of the petitioner’s right of appeal where a meritorious appealable issue existed and was properly preserved in the trial court,” and “[t]he 25 imposition of a sentence greater than the lawful maximum.” Counsel was appointed by 26 the court with respect to these motions, and a hearing on both motions was held by the undersined judge on October 7, 2010. g At the hearing, Defendant’s PCRA counsel initially clarified the issue being presented by Defendant as one involving credit on the sentence imposed by Judge Bayley at CP-21-2749-2008 on July 7, 2009, wherein he received credit for time spent in prison on the charge prior to sentence from November 14, 2008, to November 30, 2008. Specifically, Defendant’s counsel indicated the following: [H]e is now telling me that he would—he feels that he deserves to have credit given to 27 him from 9/30/2008, to July 7th, 2009. That is the sole issue. At the hearing, Defendant testified that he believed he deserved credit on the sentence imposed by Judge Bayley at CP-21-2749-2008 from September 30, 2008 to July 28 7, 2009, “[b]ecause [he] was being held in jail on bail for that charge.” Q [T]he bottom line—this whole thing is you want to get credit—that you deserve to have the credit for the time you were incarcerated if it is, in fact, a part of the record; is that correct? 23 Defendant’s Motion for Post Conviction Collateral Relief at 3, CP-21-CR-3100-2008. 24 Defendant’s Motion for Post Conviction Collateral Relief at 3, CP-21-CR-2749-2008. 25 Defendant’s Motion for Post Conviction Collateral Relief at 2, CP-21-CR-3100-2008; Defendant’s Motion for Post Conviction Collateral Relief at 2, CP-21-CR-2749-2008. 26 Order of Court, June 28, 2010, CP-21-CR-3100-2008; Order of Court, June 28, 2010, CP-21-CR-2749- 2008. 27 N.T. 4, Hearing, October 7, 2010. 28 N.T. 11-12, Hearing, October 7, 2010. 6 29 A Yes. Defendant also testified that, “[f]rom day one when I got arrested, I was told that 30 all of the charges were going to be consolidated into one case” that he had nevertheless 31 pled guilty before Judge Bayley because he had become “frustrated,” and that his attorney had not told him that an intermediate punishment sentence was a possibility in 32 his case. He conceded that he “did the charges,” but noted that he “need[ed] help” in 33 terms of treatment for drug abuse. At the conclusion of the October 7, 2010, hearing, the court took the matter under 34 advisement and established a briefing schedule. DISCUSSION Under the Post Conviction Relief Act, as a general rule a petitioner is not eligible for relief with respect to an issue where the issue has either been either 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 where, inter alia, “it has been raised and decided in a proceeding collaterally attacking the conviction or sentence.” Id. §9544(a)(3). An issue is deemed 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). With specific reference to a guilty plea, the rule is that “[t]he entry of a guilty plea constitutes a waiver of all defects and defenses except lack of jurisdiction, invalidity of the plea, and illegality of the sentence.” Commonwealth v. Tareila, 2006 PA Super 56, ¶4, 895 A.2d 1266, 1267. Under Section 9760(1) of the Judicial Code, it is provided that, 29 N.T. 12, Hearing, October 7, 2010. 30 N.T. 12, Hearing, October 7, 2010. 31 N.T. 14, Hearing, October 7, 2010. 32 N.T. 15, Hearing, October 7, 2010. 33 N.T. 16, Hearing, October 7, 2010. 34 Order of Court, October 7, 2010. 7 [c]redit against the maximum term and any minimum term [of a criminal sentence] shall be given to the defendant for all time spent in custody as a result of the criminal charge for which a prison sentence is imposed or as a result of the conduct on which such a charge is based. Credit shall include credit for time spent in custody prior to trial, during trial, pending sentence, and pending the resolution of an appeal. Act of December 30, 1974, P.L. 1052, §1, as amended, 42 Pa. C.S. §9760(1). However, when a person receives credit on one sentence for time spent in jail as a result of the offense to which that sentence applies, he or she is not entitled to the same credit on a subsequent sentence, notwithstanding that he or she may have also been in jail on the offense to which the later sentence applies. Commonwealth v. Merigris, 452 Pa. Super. 78, 80-81, 681 A.2d 194, 195 (1996). The rationale for this rule is that the crediting of time to the earlier sentence effectively deprived the period of incarceration in question of being “a result of the conduct” for which the subsequent sentence was imposed. Id. at 81-82, 681 A.2d at 195. In more blunt language relating to double credit, the Pennsylvania Superior Court has stated that “[t]his court does not deal in ‘volume discounts.’” Commonwealth v. Hollawell, 413 Pa. Super. 42, 48, 604 A.2d 723, 726 (1992). Finally, in a hearing under the Post Conviction Relief Act, credibility determinations are the responsibility of the court as trier-of-fact. See Commonwealth v. Johnson, 600 Pa. 329, 966 A.2d 523 (2009). In the present case, it appears clear that Defendant previously litigated the issue of credit which he seeks to present on the petitions sub judice. In addition, Defendant’s open guilty plea at CP-21-CR-2749-2008 waived any contention that it was predicated on an agreement as to the nature of the sentence to be imposed or upon an understanding that the case was to be consolidated with another. Finally, on the merits, the credible record does lead this court to believe that Judge Bayley erred in computing the credit to which Defendant was due. Accordingly, the following order will be entered: ORDER OF COURT st AND NOW, this 1 day of December, 2010, upon consideration of Defendant’s Motion[s] for Post Conviction Collateral Relief at CP-21-CR-3100-2008 and CP-21-CR- 8 2749-2008, following a hearing held on October 7, 2010, and for the reasons stated in the accompanying opinion, the motions are denied. PURSUANT TO Pennsylvania Rule of Criminal Procedure 908(E), Defendant is hereby notified of his right to file an appeal to the Pennsylvania Superior Court from this order within 30 days of its entry. BY THE COURT, s/ J. Wesley Oler, Jr. J. Wesley Oler, Jr., J. Matthew P. Smith, Esq. Chief Deputy District Attorney Gregory B. Abeln, Esq. Court-appointed Counsel for Defendant Chris A. Ballek, ES-4008 SCI-Frackville 1111 Altamont Blvd. Frackville, PA 17931 Defendant [BY CERTIFIED AND REGULAR MAIL] 9