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Home My WebLink About94-0045 CriminalCOMMONWEALTH Ve KEITH ALLEN RITZ OTN: 3005123-6 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 94-0045 CRIMINAL TERM CHARGES: (A) BURGLARY (B) CRIMINAL CONSPIRACY (C) CRIMINAL TRESPASS IN RE: DEFENDANT'S MOTION FOR POST-CONVICTION COLLATERAL RELIEF BEFORE OLER, J. ORDER OF COURT AND NOW, this ~ day of July, 1996, after careful consideration of Defendant's "Pro-Se Motion for Post-Conviction Collateral Relief," and for the reasons stated in the accompanying opinion, the motion is DENIED. Thomas A. Placey, Esq. Assistant District Attorney BY THE COURT, J~- Wesley Ole-r~. ~ Keith Allen Ritz ATT-0993 Smithfield State Correctional Institution 1120 Pike Street P.O. Box 999 Huntingdon, PA 16652 Pro Se Probation Office SCI-Smithfield 1120 Pike Street P.O. Box 999 Huntingdon, PA 16652 : rc Vo KEITH ALLEN RITZ OTN: 3005123-6 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 94-0045 CRIMINAL TERM CHARGES: (A) BURGLARY (B) CRIMINAL CONSPIRACY (C) CRIMINAL TRESPASS IN RE: DEFENDANT'S MOTION FOR POST-CONVICTION COLLATERAL RELIEF BEFORE OLER, J. OPINION and ORDER OF COURT Oler, J. In this criminal case, Defendant has filed a "Pro-Se Motion for Post-Conviction Collateral Relief," requesting that he be resentenced to "time served, and/or a 10 year suspended sentence."~ The basis for the motion is a contention that the sentence initially imposed was illegal,2 that Defendant has been rehabilitated while in prison3 and that his mother's health requires his presence.4 The premise that the sentence initially imposed was unlawful is based upon the assumption that the court intended Defendant's state sentence to run concurrently with his back state parole time - a result inconsistent with statute and unacceptable to state prison authorities,s For the reasons stated in this opinion, Defendant's motion must be denied. Id. Id. , at 2. Id. Id. Pro-Se Motion for Post-Conviction Collateral Relief, at 1. NO. 94-0045 CRIMINAL TERM STATEMENT OF FACTS As the result of an incident which occurred on December 29, 1993, Defendant was found guilty following a jury trial on June 16, 1994, of burglary, conspiracy to commit burglary and criminal trespass. On August 2, 1994, the court imposed sentence as follows: AND NOW, this 2nd day of August, 1994, the Defendant, Keith Allen Ritz, now appearing for sentence with the Public Defender, Arla M. Waller, Esquire, and having previously been found guilty during a jury trial of Burglary at Count A, a felony of the first degree, Conspiracy To Commit Burglary at Count B, a felony of the second degree, and Criminal Trespass at Count C, a felony of the third degree, and the Court being in receipt of a pre-sentence investigation report, upon which it relies, the sentence of the Court is as follows: At Count A, Burglary, the Defendant is sentenced to pay the costs of prosecution and make restitution jointly and severally with the co-defendants in the amount of $900.00 and undergo a period of imprisonment in a state correctional institution of not less than one and a half years nor more than five years, with credit to be given from December 29, 1993, but only to the extent that such credit is required by law. At Count B, Criminal Conspiracy, the Defendant is sentenced to pay the costs of prosecution and undergo a period of imprisonment in a state correctional institution of not less than one year nor more than five years, with said sentence to run concurrently with the sentence imposed at Count A. · The Court believes that the offense of Criminal Trespass at Count C merges for NO. 94-0045 CRIMINAL TERM purposes of sentencing with the charge at Count A of Burglary, and therefore no additional sentence will be imposed on that charge. The sentences imposed herein are to run concurrently with any other sentence presently being served by the Defendant. The reasons for the sentence are that this was a residential burglary, and the Defendant has an extensive prior criminal record. On the other hand, the sentence is a departure from the guidelines downward because of the Defendant's youth and because the Defendant does not have a record of seriously violent crimes. The Cumberland County Sheriff is directed to transport the Defendant to the appropriate state correctional institution.6 The sentence imposed with respect to the burglary charge represented a substantial departure in Defendant's favor from the guideline ranges. Specifically, the 18-month minimum sentence imposed contrasted with guideline sentences of 32 to 43 months (mitigated range), 43 to 64 months (standard range) and 64 to 80 months (aggravated range).7 No appeal was taken from the judgment of sentence. At the time of the commission of the offenses herein, Order of Court, August 2, 1994 (emphasis added). This sentence was modified on August 10, 1996, by a reduction in the restitution figure to $485, in response to a motion to modify sentence in that respect filed on behalf of Defendant. Order of ~ourt, August 10, 1996. 7 Presentence Investigation Report, July 21, 1994. 3 NO. 94-0045 CRIMINAL TERM Defendant was on state parole.8 A parole board detainer was lodged against him as a result of the new charges, on January 7, 1994.9 At the time of sentence, a parole revocation hearing to determine whether his parole would be revoked was pending for August 15, 1994.~° It would appear, based upon Defendant's present motion, that the hearing resulted in a revocation of his parole and the imposition of back time. DISCUSSION Alleqed illegality of Defendant's sentence. By statute in Pennsylvania, it is provided that, "[i]f a new sentence is imposed upon" a parolee who during the period of parole commits any crime punishable by imprisonment for which he is found guilty by a judge or jury or to which he pleads guilty or nolo contendere, "the balance of the ... term originally imposed shall precede the commencement of the new term imposed" if the parolee is paroled from a state correctional institution and the new sentence imposed upon him is to be served in a state correctional institution.~ It is thus correct that an attempt by a sentencing court to impose a state sentence concurrent with a period of back state parole time Id. Id. Id. Act of August 6, 1941, amended, 61 P.S. ~331.21a(a)(1). P.L. 861, §21.1, as added and NO. 94-0045 CRIMINAL TERM resulting from the commission of the new offense would be resisted by state authorities.~2 In the present case, however, the court was aware of this fact and made no such attempt. At the time of sentencing, Defendant's parole had not been revoked; the reference in the court's order to concurrency "with any other sentence presently being served" did not encompass back time incident to a future revocation. In addition, the court's award of credit to Defendant for time spent in prison prior to his sentence "only to the extent that such credit is required by law" represented an acknowledgment of the policy against running Defendant's new state sentence concurrently with any back state time that might be imposed. The sentence imposed upon Defendant was not, therefore, illegal in the sense that it represented an attempt by the court to run Defendant's new sentence concurrently with his back time. For this reason, Defendant's motion for resentencing based upon an alleged illegality of the initial sentence can not be sustained.~3 ~ See, e.g., McCaskill v. Pennsylvania Board of Probation and Parole, 158 Pa. Commw. 450, 456, 631 A.2d 1092, 1095 (1993); Patrick v. Pennsylvania Board of Probation and Parole, 110 Pa. Commw. 121, 130, 532 A.2d 487, 491-92 (1987). ~3 In view of the court's disposition of this aspect of Defendant's motion it is unnecessary to discuss the effect of language in the Post Conviction Relief Act with respect to reviewable unlawful sentences which seems to limit collateral review to cases involFing those sentences where the court imposed a penalty "greater than the lawful maximum." Act of May 13, 1982, P.L. 417, §2, as amended, 42 Pa. C.S. §9543(a)(2)(vii) (1996 Supp.). NO. 94-0045 CRIMINAL TERM Discretionary aspects of Defendant's sentence. To the extent that Defendant's motion may be construed as a challenge to the discretionary aspects of his sentence, several factors militate against granting relief. First, such a basis for collateral relief is not among the grounds for such relief listed in the Post Conviction Relief Act.TM Second, the issue has been waived by Defendant's failure to file a motion to modify on the grounds now asserted~s and failure to file an appeal from the judgment of sentence.~6 Third, this court has long since lost jurisdiction to reconsider the discretionary aspects of its sentencing order.~7 And, finally, on the merits, the sentence initially imposed was sufficiently favorable to the Defendant when compared to the guideline ranges that a reduction in the sentence would not be defensible. For the foregoing reasons, the following order will be entered: Act of May 13, 1982, P.L. 417, §2, as amended, 42 Pa. C.S. §9543(a)(2). ~ Commonwealth v. Jarvis, 444 Pa. Super. 295, 298, 663 A.2d 790, 791-92 (1995). ~6 See Commonwealth v. McGriff, 432 Pa. Super. 467, 473, 638 A.2d 1032, 1035 (1994). ~ Commonwealth v. Miller, 440 Pa. Super. 380, 380 n.2, 655 A.2d 1000, 1002 n.2 (1995). 6 NO. 94-0045 CRIMINAL TERM ORDER OF COURT AND NOW, this ~t~ day of July, 1996, after careful consideration of Defendant's "Pro-Se Motion for Post-Conviction Collateral Relief," and for the reasons stated in the accompanying opinion, the motion is DENIED. BY THE COURT, s/ J. Wesley Oler, Jr. J. Wesley Oler, Jr., J. Thomas A. Placey, Esq. Assistant. District Attorney Keith Allen Ritz ATT-0993 Smithfield State Correctional Institution 1120 Pike Street P.O. Box 999 Huntingdon, PA 16652 Pro Se Probation Office SCI-Smithfield 1120 Pike Street P.O. Box 999 Huntingdon, PA 16652 : rc