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HomeMy WebLinkAbout94-0716 CRIMINALCOMMONWEALTH CHRISTOPHER L. HAIGH IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 94-0716 CRIMINAL TERM IN RE: SECOND PETITION FOR POST-CONVICTION RELIEF BEFORE BAYLEY, J. OPINION AND ORDER OF COURT Bayley, J., February 7, 2002:-- On September 26, 2000, petitioner, Christopher L. Haigh, filed a second petition for relief under the Post-Conviction Hearing Act, 42 Pa.C.S. Section 9541 et seq. Counsel was appointed and a hearing was conducted. The record was closed on January 30, 2002. HISTORY OF THE CASE On May 23, 1995, while represented by a public defender, petitioner was convicted by a jury on counts of involuntary deviate sexual intercourse,1 and indecent assault? These offenses occurred on April 9, 1994. On June 27, 1995, petitioner was sentenced on the count of indecent assault to pay the costs of prosecution. On the count of involuntary deviate sexual intercourse, he was sentenced to undergo imprisonment in a state correctional institution for a term of not less than six and a half 1 18 Pa.C.S. § 3123. 2 18 Pa.C.S. § 3126. 94-0716 CRIMINAL TERM years or more than twenty years. Petitioner was given credit for 326 days already served, and his sentence was made consecutive to any other sentence he was serving. Petitioner filed a post-sentence motion, which was denied on August 16, 1995. His trial counsel filed a direct appeal to the Superior Court of Pennsylvania, which affirmed the judgment of sentence on March 15, 1996.3 A petition for allowance of appeal to the Supreme Court of Pennsylvania was denied on September 5, 1996.4 Petitioner filed a petition for post-conviction relief on October 16, 1998. New counsel was appointed, and a hearing conducted. The sole issue raised was whether trial/appellate counsel was ineffective for not seeking to suppress statements that petitioner made to the police. The petition was denied on March 16, 1999. The order was affirmed by the Superior Court,5 and a petition for allowance of appeal was denied by the Supreme Court? THE CONVICTION The facts at trial in a light most favorable to the Commonwealth, as set forth in the opinion in support of the order of August 16, 1995, denying post-sentence relief, 3 451 Pa. Super. 595 (1996). The issues raised were (1) a claim of insufficiency of the evidence to support his conviction for involuntary deviate sexual intercourse, (2) an allegation of error in admitting evidence of his prior robbery conviction, and (3) an allegation of error in excluding evidence relating to his reputation. 4 545 Pa. 668 (1996). 662 MDA 1999. 1185 M.D. AIIoc. Dkt. 1999. -2- 94-0716 CRIMINAL TERM are: On the evening of August 8 and the morning of August 9, 1994, the victim met defendant at a card party in Lower Allen Township. They left the party together in the early morning hours of August 9. They were in the victim's car which was parked next to the defendant's car. They kissed and the victim allowed defendant to touch her breasts. She then said she wanted to go. Defendant said aggressively that she "was not going anywhere." Defendant pulled the victim's car seat down and leaned over her. He pulled at her pants; she struggled; he choked her, and he finally got her pants off. He tried to insert his penis into her vagina and then into her anus. He put his finger in her anus. The victim continued to struggle. Defendant then grabbed the victim's head and put it on his penis. He said, "1 know you want it bitch -- you are going to suck it." The victim was afraid and opened her mouth. There was oral sex and defendant ejaculated in the victim's mouth. The victim then got the door of her car open and fell out. Defendant went to his car and left. The victim went to the home of an aunt who lived nearby. The police were called. The victim was taken to a hospital where an examination revealed two linear, bloody scratches on her neck. There were similar marks on her back and on her abdomen that did not bleed. A rape examination was conducted. Spermatozoa was found in a nasal mucus sample removed from the victim. When there is ejaculation in the mouth, spermatozoa is often ingested into the nasal mucus membranes. (Footnote omitted.) THE SECOND POST-CONVICTION PETITION In this second petition for post-conviction relief, petitioner seeks to be re- sentenced. He maintains that (1) his trial/appellate counsel, and (2) his first post- conviction/appellant counsel, were ineffective to failing for have corrected the Pennsylvania sentence guideline computation set forth in the pre-sentence investigation report, which was relied upon by the sentencing judge. The report set forth that petitioner's "Offense Gravity Score" for involuntary deviate sexual intercourse was nine, and his "Prior Record Score" was three. A mitigated range minimum -3- 94-0716 CRIMINAL TERM sentence was 40 to 54 months; the standard range was 54 to 78 months; and the aggravated range was 78 to 97 months. Following the imposition of the sentence of imprisonment of not less than six and a half years (78 months) or more than twenty years on the count of involuntary deviate sexual intercourse, the court stated: That is a standard range guideline sentence under Pennsylvania law. I have considered everything contained in the presentence investigation report. I have considered all of the evidence that I have heard at trial. I have additionally imposed the standard range sentence based upon the seriousness of the offense that you have committed and the sure fact that at this stage of your life you are an undue risk to commit other violent crimes. Based on two prior convictions of petitioner for robbery in Dauphin County, he maintains that his proper prior record score was two, rather than three. If it was two, the mitigated range minimum sentence would have been 36 to 48 months; the standard range, 48 to 72 months; and the aggravated range, 72 to 90 months. If the prior record score was two, and not three, the court did not sentence defendant in the standard range as stated in the sentencing colloquy. The minimum sentence of 78 months would have been in the aggravated range. ELIGIBILITY Even if an aggravated range rather than a standard range sentence was imposed by the sentencing judge on a mistaken belief that the sentence was in the standard range, petitioner is still not entitled to post-conviction relief. As to a sentence, the Post-Conviction Relief Act provides for relief if, "The imposition of -4- 94-0716 CRIMINAL TERM sentence [was] greater than the lawful maximum." 42 Pa.C.S. Section 9543 (a)(2)(vii). The Crimes Code at 18 Pa.C.S. Section 3123(a), provides that a person commits involuntary deviate sexual intercourse is guilty of a felony of the first degree. The maximum penalty for a felony of the first degree is twenty years. 18 Pa.C.S. § 1103(1 ). Petitioner was sentenced to a term of not less than six and a half years or more than twenty years, thus his sentence was not greater than the lawful maximum. TIME BAR This second petition for post-conviction relief is time barred. The Post- Conviction Relief Act at 42 Pa.C.S. Section 9454(b), provides: (1) Any petition under this subchapter, including a second or subsequent petition, shall be filed within one year of the date of judgment becomes final, unless the petition alleges and the petitioner proves that: (i) the failure to raise the claim previously was the result of interference by government officials with the presentation of the claim in violation of the Constitution or laws of this Commonwealth or the Constitution or laws of the Untied States; (ii) the facts upon which the claim is predicated were unknown to the petitioner and could not have been ascertained by the exercise of due diligence; or (iii) the right asserted is a constitutional right that was recognized by the Supreme Court of the United States or the Supreme Court of Pennsylvania after the time period provided in this section and has been held by that court to apply retroactively. (Emphasis added.) Petitioner is now relying on public court records in Dauphin County, Pennsylvania, of his guilty pleas and sentencing on February 6, 1990, to two counts of robbery. In the case sub judice, petitioner's judgment of sentence was affirmed by the -5- 94-0716 CRIMINAL TERM Superior Court on March 15, 1996, and his petition for allowance of appeal to the Supreme Court of Pennsylvania was denied on September 5, 1996. This second petition for post-conviction relief was filed on September 26, 2000, well over one year from the date his judgment of sentence became final. Petitioner has not proven that the facts upon which his claim is predicated could not have been ascertained by the exercise of due diligence within one year of the date his judgment of sentence became final. See Commonwealth v. Williams, 782 A.2d 517 (Pa. 2001). THE MERITS As a matter of judicial economy, we will address the merits of this second petition for post-conviction relief. Whether the prior record score was three, as set forth in the presentence report, or two as maintained by petitioner, depends on the disposition of two prior charges of robbery against petitioner in Dauphin County. In that case, petitioner was charged with the two counts of robbery in violation of "18 Pa.C.S. 3701 (a)(1)(i)(ii) & (iv)," and two counts of criminal conspiracy to robbery in violation of 18 Pa.C.S. 903. The information at 3084-89, sets forth: First Count: did intentionally knowingly or recklessly in the course of committing a theft inflict or threaten to inflict bodily or serious bodily injury upon another or intentionally put another in fear of immediate bodily or serious bodily injury. Victim: Troy Hammaker Second Count: did, with the intent of promoting or facilitating the commission of a crime, agree with another person or persons that they or one or more of them would engage in conduct which constituted such crime or an attempt or solicitation to commit such crime or did agree to aid another person or -6- 94-0716 CRIMINAL TERM persons in the planning or commission of such crime or of an attempt or solicitation to commit such crime and in pursuance of such conspiracy an overt act was committed: Crime: Robbery Other Person(s): Delmar Harris, Maynard Robinson Overt Act: defendant participated with others in a cab robbery. This defendant participated in the commission of these offenses with Delmar Harris and Maynard Robinson. (Emphasis added.) A similar information at 3084a-89 charged robbery and conspiracy in which the victim was Frank Davenport. Petitioner appeared in court on February 6, 1990. The District Attorney introduced the case: There is a charge of robbery and criminal conspiracy to commit robbery at 3084, and at 3084-a, there is a second count of robbery and a second count of criminal conspiracy. The Defendant, through his attorney and the District Attorney, have agreed to an aggregate sentence of 15 to 48 months in the state correctional institution, Your Honor. THE COURT: Fifteen to 48 months? MR. NARVOL: Yes. One and a quarter to four years on each count of robbery to run concurrently. THE COURT: All to be concurrent. MR. NARVOL: Yes, sir. Your Honor, the charges stem from an incident which occurred in the uptown section of Harrisburg in the early morning hours of August 13, 1989. The Defendant, it's charged, committed two cab robberies with Delmar Harris and Maynard Robinson as his co-Defendants. Both robberies occurred approximately two hours apart; one at one o'clock in the morning, and one at three o'clock in the morning. Two separate cabs and cab drivers were involved. The charges are that the Defendant did, in the course of committing a theft, threaten to inflict bodily injury, serious bodily injury, upon another, or intentionally put another in fear of immediate serious bodily injury. The first cab driver was Troy Hammaker, and the second cab driver was Frank Davenport. The second count of each docket include a count of criminal conspiracy to commit robbery, It is charged the Defendant got together with Delmar Harris and -7- 94-0716 CRIMINAL TERM Maynard Robinson before each robbery, planned it, and then participated in the offenses. I believe the first cab driver had $90 taken from him, and the second cab driver had--I believe he said he had a hundred-fifty dollars taken from him. One of the co-Defendants, Maynard Robinson, said it was less. It doesn't matter at this time. THE COURT: That's Frank Davenport? MR. NARVOL: That's Frank Davenport. MR. NARVOL: Of the charges against you, Mr. Haigh, the robberies are the most serious ones. They're felonies of the first degree. Do you understand if you took a trial on these charges you could receive up to 20 years on each robbery. Do you understand that? (The Defendant nods his head) THE DEFENDANT: Yes. MR. NARVOL: Do you understand criminal conspiracy is a felony of the second degree, and you could receive up to 10 years on each. Do you understand that? THE DEFENDANT: Yes. MR. NARVOL: So you could receive up to 60 years in prison if you were convicted of all these crimes. Do you understand that? THE DEFENDANT: Yes. MR. NARVOL: Do you agree the sentence of 15 to 48 months is substantially less than the maximum penalty you could receive under the law? THE DEFENDANT: Right. MR. NARVOL: To the charges or robbery and criminal conspiracy at 3084, and the charge of robbery and conspiracy at 3084-a, do you plead guilty? THE DEFENDANT: Yeah. -8- 94-0716 CRIMINAL TERM MR. NARVOL: Will the Court accept the plea and the plea agreement? THE COURT: Yes, I will accept the plea. THE COURT: The sentence on all four counts will be exactly the same; however, the restitution will be different. In connection with Counts I and 2, robbery and criminal conspiracy, filed to 3084 C.D. 89, and Counts 1 and 2, robbery and criminal conspiracy, filed to 3084-a C.D. 89, the sentences are as follows: AND NOW, February 6, 1990, the sentence of the Court is that the Defendant in each of the four cases pay the costs of prosecution, and that he undergo confinement in the state correctional institution for a term of not less than 15 months and no more than 48 months, to begin and be computed from September 21, 1989. The Sheriff of Dauphin County--the sentences will all run concurrently .... (Emphasis added.) At both 3084 and 3084-a, the docket entries in the office of the Clerk of Court for Dauphin County show that petitioner pled guilty to counts one and two. The Crimes Code at 18 Pa.C.S. Section 3701, defines robbery as follows: (a) Offense defined.-- (1) A person is guilty of robbery if, in the course of committing a theft, he: (i) inflicts serious bodily injury upon another; (ii) threatens another with or intentionally puts him in fear of immediate serious bodily injury; (iii) commits or threatens immediately to commit any felony of the first or second degree; (iv) inflicts bodily injury upon another or threatens another with or intentionally puts him in fear of immediate bodily injury; or (v) physically takes or removes property from the person of another by force however slight. -9- 94-0716 CRIMINAL TERM (2) An act shall be deemed "in the course of committing a theft" if it occurs in an attempt to commit theft or in flight after the attempt or commission. (b) Grading.--Robbery under subsection (a)(1)(iv) is a felony of the second degree; robbery under subsection (a)(1)(v) is a felony of the third degree; otherwise, it is a felony of the first degree. (Emphasis added.) Petitioner argues that he pled guilty to the Dauphin County robberies under Section 3701(a)(1)(vi) of the Crimes Code. A violation of that section is a felony in the second degree under Section 3701(b), in which case petitioner's prior record score in the case sub judice would have been two. If he pled guilty to either Sections 3701 (a)(1)(i) or (ii), each a felony in the first degree under Section 3701 (b), then his prior record score in the case sub judice was three, which was the score utilized in determining the sentencing guidelines as set forth in the presentence report. On each Dauphin County information, the charge was that petitioner "did intentionally, knowingly or recklessly in the course of committing a theft inflict or threaten to inflict bodily or serious bodily injury upon another or intentionally put another in fear of immediately bodily or serious bodily injury," in violation of "18 Pa.C.S. 3701 (a)(1)(i)(ii) & (vi)." The specific facts set forth in the plea colloquy to which petitioner pled guilty tracked the informations. Those facts were "[t]hat the Defendant did, in the course of committing a theft, threaten to inflict bodily injury, serious bodily injury, upon another, or intentionally put another in fear of immediate serious bodily injury." Thus, petitioner pled guilty as charged in both informations. The pleas covered all of the subsections of robbery charged under Sections -10- 94-0716 CRIMINAL TERM 3701(a)(1)(i) and (iv). Petitioner was specifically told that "the robberies are the most serious [charges]. They are felonies of the first degree. Do you understand if you took trial on these charges you could receive up to 20 years on each robbery," to which he acknowledged that he understood. If petitioner had pled guilty to only Section 3701(a)(1)(vi), the maximum penalty he could have received on each robbery would have been ten years. In imposing the sentence as agreed to by the parties, the judge specifically stated that "In connection with Counts 1 and 2, robbery.., filed at 3084 C.D. 89, and Counts 1 and 2, robbery.., filed to 3084-a C.D. 89, the sentences are .... "The docket entries then properly reflected that petitioner pled guilty at both 3084 and 3084-a to counts one and two. Since petitioner pled guilty to two counts of robbery as charged, the most serious grade being a felony in the first degree, his prior record score in the case sub judice was properly calculated at three. Therefore, he was sentenced in the standard guideline range as is set forth in the sentencing colloquy. ORDER OF COURT AND NOW, this day of February, 2002, this second petition of Christopher L. Haigh for post-conviction relief, IS DENIED. By the Court, Edgar B. Bayley, J. -11- 94-0716 CRIMINAL TERM Jaime Keating, Esquire For the Commonwealth Darrell C. Dethlefs, Esquire For Petitioner :sss -12-