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HomeMy WebLinkAboutCP-21-CR-0002382-2005 COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : V. : : CP-21-CR-2382-2005 SHELBY UNGER-BACZ : CP-21-CR-2383-2005 IN RE: OPINION PURSUANT TO PENNSYLVANIA RULE OF APPELLATE PROCEDURE 1925 Masland, J., July 27, 2011:-- Both Petitioner, Shelby Unger-Bacz, and Respondent, the Commonwealth of Pennsylvania, appeal this court's order granting in part and denying in part Petitioner's Post Conviction Relief Act (PCRA) petition. For the following reasons, and those previously stated, the Superior Court should affirm this court's order in all respects. At the outset, the court notes that it will rely on its opinion and order dated May 13, 2011, which addresses all but one of both appellants' claims of error. The court will, however, address here the Commonwealth's first claim of error as the issue could not be addressed in the court's initial opinion. The Commonwealth argues: The Court's determination that trial counsel was ineffective for failing to litigate the applicability of the mandatory minimum sentence at the sentencing hearing by arguing that some of the controlled substances involved were possessed for personal use rather than for delivery was improperly arrived at sua sponte. That precise issue was neither raised by Petitioner in her counseled amended PCRA petition nor addressed at the PCRA evidentiary hearing and was therefore waived. The Commonwealth was deprived of notice that such a claim was at issue, was deprived of an opportunity to develop the record on CP-21-CR-2382-2005 CP-21-CR-2383-2005 that specific point and rebut the claim, and the Court improperly acted as an advocate for the Petitioner in this regard. Commonwealth's Concise statement of Errors Complained of on Appeal at ¶1. The Superior Court should reject this argument as the failure to litigate the applicability of the mandatory sentence was raised both in Petitioner's amended petition and at the hearing on the petition. Although the precise words “failed to litigate applicability of mandatory sentence” do not appear in the PCRA petition, several of Petitioner's allegations of ineffective assistance relate directly to trial counsel's failure to take the steps necessary to prevent the application of the seven to fourteen year mandatory minimum sentence Petitioner ultimately received. See PCRA Pet. at ¶19(A) (“[T]he Commonwealth failed to state the quantity of controlled substance in either case that Defendant was alleged to have possessed with intent to deliver ….”); ¶19(B) (“Trial counsel was ineffective for failing to object to the Commonwealth's amendment of the Guideline Sentence Form from less than 2.5 grams to 101 grams after the jury's verdict of guilty. … The effect of the amendments was to trigger mandatory minimum sentences based upon quantity and constituted sentencing entrapment.” (emphasis added)); ¶19(F) (“Trial counsel was ineffective for not raising or preserving the discretionary aspects of Defendant's sentences in these matters.”). A fair reading of the PCRA petition properly notified the Commonwealth of -2- CP-21-CR-2382-2005 CP-21-CR-2383-2005 Petitioner's allegation that trial counsel was ineffective during the sentencing phase of the case by failing to take any steps whatsoever to prevent the application of the seven to fourteen year mandatory minimum sentence. The issue was also clearly raised during the hearing on the petition. There, Petitioner's PCRA counsel cross-examined trial counsel extensively on the precise issue of litigating the application of a mandatory sentence. The following exchange occurred: Q At the time of sentencing, you made no objection to the mandatory sentence? A Correct. Q Basically your testimony here today was there's no way to avoid those mandatories? A Correct. Q Have you ever heard of a Carroll hearing? I believe it's called. A There is a recollection of that, yes. Q During the trial, multiple witnesses, including Shelby herself, testified that she was a heavy drug user, correct? A Correct. Q And is a Carroll hearing where basically counsel asks the Court to apportion the drugs between personal use and those being held for sale? A If you want to define it that way. That's the way you're defining it. I'll accept that definition. -3- CP-21-CR-2382-2005 CP-21-CR-2383-2005 Q Is that what it is? A Basically. Q Did you ask for that in this case? A No. Notes of Testimony, PCRA Hearing, Sept. 3, 2010 at 222-23. The “Carroll” referred to is Commonwealth v. Carroll, 651 A.2d 171, 173 (Pa. Super. 1995), a case this court relied upon in partially granting PCRA relief. As such, the issue was clearly raised and preserved at the evidentiary hearing on the petition for post-conviction relief. The issue of trial counsel's failure to litigate the applicability of a mandatory sentence was raised generally in the PCRA petition and specifically at the evidentiary hearing on that petition. Therefore, it was not waived and instead constituted a legitimate basis for this court's limited grant of post-conviction relief. In all other respects, the court relies on its previous opinion to address the matters complained of on appeal raised by both the Commonwealth and Petitioner. For those reasons and the reasons stated here, this court's order granting in part and denying in part the petition for post-conviction relief should be affirmed. By the Court, Albert H. Masland, J. -4- CP-21-CR-2382-2005 CP-21-CR-2383-2005 William R. Stoycos, Esquire Appeals and Legal Services Section th 16 Floor, Strawberry Square Harrisburg, PA 17120 Senior Deputy Attorney General Jacob Jividen, Esquire For Shelby Unger-Bacz District Attorney’s Office :saa -5-