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Home My WebLink AboutCP-21-CR-0002113-1999 COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : V. : : HENRY FORD WIMBUSH : CP-21-CR-2113-1999 IN RE: PETITION FOR POST-CONVICTION RELIEF OPINION AND ORDER OF COURT Masland, J., December 10, 2012:-- Before the court is Petitioner’s third Petition for relief under the Post- 1 Conviction Relief Act. Perhaps, the court should have followed the lead of the Honorable Edgar B. Bayley who dismissed the Petitioner’s second Petition for Post-Conviction Relief pursuant to Pa.R.Crim.P. 907(1) because he was satisfied that there were no genuine issues concerning any material fact, that Petitioner was not entitled to post-conviction relief, and that no purpose would be served by 2 any further proceedings. Instead, the court appointed counsel and directed that 3 an amended petition, if any, be filed within sixty days. Factual Background The factual summary provided by Judge Bayley in his June 20, 2007 opinion concisely sets the table: May 10, 2000 On , Henry Ford Wimbush was found guilty by a jury on counts of robbery, theft, and September 5, 2000 simple assault. On , defendant was sentenced on the count of robbery to pay the costs of prosecution, restitution to the Wine and Spirits Shop of $695, and undergo imprisonment in a 1 42 Pa.C.S. Section 9541 et. seq. 2 In Re: Opinion in Support of Notice to Dismiss Second Petition for Post-Conviction Relief dated June 20, 2007 at p. 1 (hereafter Dismissal Opinion at ). 3 Order of Court dated June 15, 2012. (Counsel, understandably, did not file an amended petition.) CP-21-CR-2113-1999 state correctional institution for not less than twenty- five years nor more than fifty years, to run from that date and to run concurrent to any sentence currently imposed. The sentence for robbery was imposed as a third strike mandatory minimum required by the Judicial Code at 42 Pa.C.S. Sections 9714(a)(2) and (a.1). The judgment of sentence was affirmed by the August 21, 2001 Superior Court of Pennsylvania on . March 27, 2002 On , the Supreme Court of Pennsylvania denied a petition for allowance of appeal. August 22, 2002 On , defendant filed a petition for post-conviction relief for which counsel was May 2, 2007 appointed. On , the District Attorney of Cumberland County acknowledged, based on Commonwealth v. Shiffler ,879 A.2d 185 (Pa. 2005), that petitioner was entitled to the post- conviction relief of the vacation of his sentence for robbery, and resentencing. The sentence was vacated, and petitioner was resentenced the same day to pay the costs of prosecution, make restitution to the Wine and Spirits Shop of $695, and undergo imprisonment in a state correctional institution for a term of not less than ten years or more than twenty years to date from September 5, 2000, and to run concurrent with any other sentence being served. The minimum term of ten years was the mandatory minimum required as a second strike under Section 4 9714(a)(1) of the Judicial Code. Following his resentencing in Cumberland County, Petitioner was resentenced by the Honorable John F. Cherry in Dauphin County on May 16, 5 2007. Petitioner received two ten to twenty year sentences on two counts of robbery, which were to run concurrently with one another but “consecutive to his 6 Cumberland County sentence imposed at CP2-CR-2113, 1999.” The most salient fact, on which Petitioner bases this Motion for relief, is that at the time 4 Dismissal Opinion at pp. 1-2. 5 As in Cumberland County, Petitioner’s original Dauphin County sentence was vacated pursuant to Commonwealth v. Shiffler, infra. 6 Commonwealth Exhibit 1, at p. 15. -2- CP-21-CR-2113-1999 Petitioner was resentenced in Cumberland County, the court, defense counsel, the prosecutor and perhaps the Defendant, were under the misapprehension that there was an existing Dauphin County sentence to which the Cumberland County sentence could run concurrently. Although the phrase used by Judge Bayley, “to run concurrent to any other sentence being served,” is often employed by courts as a safety valve when the existence of another sentence is unknown, for the purpose of this opinion we will accept as true that the court believed the Petitioner had been resentenced in Dauphin County. Discussion As the Commonwealth ably argued, this Petition is untimely and the issue contained therein has been previously litigated. Nevertheless, the persistent cries of Petitioner and his family call for more than a curt dismissal. Further these proceedings may provide a purpose, even if it is only to forestall further PCRA Petitions. What Petitioner fails to appreciate is that even if everyone in Cumberland County was mistaken as to the status of Petitioner’s sentence in Dauphin County, it would not change the Cumberland County sentence one iota. As succinctly stated by Judge Bayley: We note that any challenge to the sentence imposed on May 2, 2007, is frivolous. The minimum sentence of ten years was the mandatory minimum. The maximum of twenty years could not be less than twice the minimum. 42 Pa.C.S. § 9756(b). The sentence was made to date from September 5, 2000, which was the same date the original sentence dated from, and it was made to run concurrent to any other sentence being served, which was the state sentence imposed in Dauphin County. The resentence -3- CP-21-CR-2113-1999 imposed in this court on May 2, 2007, could not legally have been more favorable to petitioner, and can in no way be affected by his resentencing in 7 Dauphin County of May 16, 2007. In addition to this sound reasoning, the holding of our Supreme Court in Commonwealth v. Holz, 397 A.2d 407 (Pa. 1979) is instructive. In Holz a judge in Montgomery County sentenced the defendant to a term of imprisonment to run consecutively to a sentence in a homicide case in Philadelphia County where defendant had been found guilty but had not yet been sentenced. The Supreme Court stated perfunctorily and persuasively, “if there is no prior sentence, there is nothing for the instant sentence to run concurrent with or consecutive to.” Id. at 408. Therefore, because there was no sentence to which the Cumberland County sentence could have run concurrently, the most this court could do to “correct” this alleged error would be to strike “concurrent” from the sentence imposed. This would effectively change nothing. The suggestion of defense counsel is that we strike the entire sentence as illegal and resentence the Petitioner anew, making our sentence second in time to the Dauphin County sentence, with the obvious request that we make our sentence concurrent. In essence, Petitioner wants this court to speculate on what Judge Bayley would have done if he had known that Judge Cherry had not already sentenced the Petitioner in Dauphin County. Would he have postponed sentencing to ensure his sentence could run concurrently? Knowing Judge Bayley, that is very unlikely, but if he had, what would Judge Cherry have done if he had known his sentence was first in time? 7 Dismissal Opinion at p. 3, Footnote 8. -4- CP-21-CR-2113-1999 As is evident from the Dauphin County sentencing colloquy on May 16, 2007, (Commonwealth’s Exhibit 1), Judge Cherry was prepared to issue a twenty to forty year sentence and run the same consecutively to the sentence imposed in Cumberland County. He refrained from doing so but still imposed a ten to twenty year consecutive sentence. Perhaps, had he been first in time Judge Cherry would have imposed a twenty to forty year sentence to ensure the Petitioner served a minimum of twenty years regardless of what Cumberland County would do. Because we find that Judge Bayley’s sentence was not only legal but was truly the best possible bargain the Petitioner could have received, we need not speculate on what might have happened had the sentencing order been reversed. Nevertheless, let there be no speculation as to what sentence this court would impose if Judge Bayley’s sentence is vacated. Based on our independent review of Petitioner’s file, anything less than a minimum ten to twenty years, running consecutively with the sentence in Dauphin County, would depreciate the seriousness of the offense in Cumberland County. Thus, a resentencing would not provide the “mercy” that Petitioner and his family seek. Although we laud Petitioner for the strides he has made to rehabilitate himself, sometimes, mercy takes a form different than we desire. Petitioner desires the form described by Shakespeare that “droppeth as the gentle rain from heaven upon they place beneath. It is twice blest: it blesseth 8 him that gives and him that takes.” However, in extending or receiving mercy, 8 The Merchant of Venice, Act 4, scene 1. -5- CP-21-CR-2113-1999 9 we must be “deliver[ed] … from assuming [that] mercy is gentle.” Not only are we satisfied that the legalities of justice were followed in the 2007 resentencings, but we are also content that mercy was dispensed properly by the courts. Any further mercy must be dispensed by the Pennsylvania Board of Probation and Parole. Accordingly, we enter the following order: ORDER OF COURT AND NOW, this day of December, 2012, after hearing, DENIED. Petitioner’s third Petition for Post-Conviction relief is By the Court, Albert H. Masland, J. Matthew Smith, Esquire For the Commonwealth Gregory B. Abeln, Esquire For Petitioner :sal 9 Ted Loder, Pry Me off Dead Center, Guerillas of Grace, Philadelphia:Innisfree Press, Inc., 1984. -6- COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : V. : : HENRY FORD WIMBUSH : CP-21-CR-2113-1999 IN RE: PETITION FOR POST-CONVICTION RELIEF ORDER OF COURT AND NOW, this day of December, 2012, after hearing, DENIED. Petitioner’s third Petition for Post-Conviction relief is By the Court, Albert H. Masland, J. Matthew Smith, Esquire For the Commonwealth Gregory B. Abeln, Esquire For Petitioner :sal