DISTRICT ATTORNEY'S BRIEF

Nov 2, 1989

IN THE SUPERIOR COURT OF PENNSYLVANIA PITTSBURGH DISTRICT NO. 1943PGH89 COMMONWEALTH OF PENNSYLVANIA, COMMONWEALTH OF PENNSYLVAAppellee COMMONWEALTHVS. GARY D. LAUFFENBERGER, COMMONWEALTH OF PENNAppellant BRIEF FOR APPELLEE Appeal from the Post-Conviction Hearing Act dated November 10, 1988, from the Court of Common Pleas of the 37th Judicial District, Criminal Division, at nos. 240 and 267 of 1986     OFFICE OF THE DISTRICT ATTORNEY of Warren County RICHARD A. HERNAN, JR. District Attorney PA I.D. No. 21210 BRIAN CHUDZIK Assistant District Attorney PA. I.D. No. 52740 Warren County Court House Warren, PA 16365 (814) 723-7550 TABLE OF CONTENTS   Page(s) STATEMENT OF THE QUESTION INVOLVED........... 1   COUNTER-STATEMENT OF THE CASE .......... 2,4   ARGUMENT ............................... 5   CONCLUSION ............................. 8         -i- STATEMENT OF QUESTION INVOLVED Whether the Appellant is imprisoned on a sentence which does not have a minimum length as required by law.       - 1- COUNTER-STATEMENT OF THE CASE The Appellant in the case at bar, Gary D. Lauffenberger was charged at Information No. 240 of 1986 with two (2) counts of Aggravated Assault and one (1) count of Reckless Endangerment. The Appellant was further charged at Information No. 267 of 1986 with one (1) count of Possession with Intent to Deliver and one (1) count of Manufacturing Marijuana. These charges all stemmed from the incident that occurred early on the morning of July 29, 1986, and a subsequent search of the Appellant's residence. Pursuant to plea negotiations, the Appellant pled guilty to Reckless Endangerment at Information No. 240 of 1986 and Possession with Intent to Delivery and Manufacturing Marijuana at Information No. 267 of 1986. On January 16, 1987, the Appellant was sentenced to pay the costs of prosecution on all charges and on the charge of Reckless Endangerment, Appellant was sentenced to 24 to 48 months with deadly weapons enhancement and a $500 fine. On the charges of Possession with Intent to Deliver and Manufacturing Marijuana, the Appellant was sentenced to 12 to 24 months to run consecutive at Western Diagnostic and Classification Center in Pittsburgh. Thus, the Appellant was sentenced to 36 to 72 months in total. -2- COUNTER-STATEMENT OF THE CASE On January 26, 1987, Appellant's counsel filed a Motion for Reconsideration of Sentence. The Honorable Robert L. Wolfe on February 17, 1987, issued an Amended Sentence in response to the Appellant's Motion for Reconsideration of Sentence. This Order amended the sentence on the charge of Reckless Endangerment to 12 to 24 months, then applying the deadly weapons enhancement to 24 to 48 months but reduced to 12 to 24 months. Appellant on September 7, 1989, filed a Post-Conviction Hearing Act Petition in the Warren County Court of Common Pleas. After argument on this Petition, the Court by Order dated November 10, 1988, denied the Appellant relief on the P.C.H.A. Petition. Appellant then appealed this Order to the Superior Court but the appeal was dismissed by Order of the Superior Court for failure to file a brief. At this point the record becomes somewhat unclear to the Commonwealth. It appeals (sic) that the Appellant in May of 1989, filed a Petition for Writ of Habeas Corpus with the Superior Court. The Commonwealth did not receive this petition. Then the Appellant on June 28, 1989, also filed a Petition for Writ of Habeas Corpus with the Warren County Court of Common Pleas. There has been no disposition on this Petition. It is unclear to the Commonwealth whether the Petitioner is appealing his P.C.H.A. dismissal or seeking review of his Writ of Habeas Corpus Petition. The Commonwealth had a lengthy conversation with the Prothonotary of the Superior Court and was still unable to resolve what the Appellant is before the Superior Court for. On October 16, 1989, the Commonwealth received a pro se Motion on the part of the Appellant entitled "Application for Continuance, Replacement of Counsel, Permission to Amend Petition, Clarification of Proceedings". In this document, Appellant asks for an Extension of Time among other requests. By the Appellant's own admission in paragraph 7(c) of his pleading, he is not really sure what is on appeal to the Superior Court. -3- DA'S ARG ARGUMENT Appellant is imprisoned on a sentence that does not have a minimum term that is equal or less than one-half the maximum term. The sentence that Appellant is currently serving on the charge of Reckless Endangerment (M-2) of 24 to 24 months is an illegal sentence. Title 42 §9756 requires that a Court must impose a minimum sentence that will not exceed one-half of the maximum sentence imposed. The Commonwealth asserts that all other issues have been waived since they were not preserved for appeal.     -5- CONCLUSION For the above mentioned reasons, Appellee respectfully requests that this Honorable Court remand this case back to the lower court for proper sentencing.       Respectfully submitted, ________________________     Brian E. Chudzik Assistant District Attorney N N OFFICE OF DISTRICT ATTORNEY WARREN COUNTY WARREN, PA.