| Guilty Plea Transcripts (#240) | Dec 18, 1986 |
|
APPEARANCES:
Jurij Trypupenko, Esq., Assistant District Attorney,
Joseph A. Massa, Jr., Esq., Public Defender, for the
MR. TRYPUPENKO: Good afternoon. Gary Lauffenberger. Mr. Lauffenberger is before the Court on two different informations. He is charged at Number 240 of 1986. Mr. Lauffenberger has a jury selected for Monday on Number 240 of 1986, however, through plea negotiations Mr. Lauffenberger will enter a plea to Count Number 2 at 240 and Count Number I and 2 at Number 267 of 1986 and we will nolle pros Count Number 1 at 240. Count Number 1 will be nolle prossed at 240 and Count Number 2 will be guilty, at Number 267 both counts will be plead guilty to. THE COURT: Mr. Massa? MR. MASSA: That's correct, Your Honor. THE COURT: Was Mr. Lauffenberger fully arraigned or did he waive? I note on September 25 of 1986 -- MR. MASSA: He was present in Court and was fully arraigned. He was arraigned on August 21, 1986 at Number 240 of 1986 and again on September 25, 1986 on the two counts of Number 267 of 1986.
THE COURT: Are you Gary Lauffenberger THE DEFENDANT: Yes, sir. THE COURT: Mr. Lauffenberger, you are charged that you did to Number 240 of 1986 on July 29, 1986 intentionally, knowingly or recklessly cause serious bodily injury to Joseph Zdarko in that you did strike him in the face and head with a lever action rifle which acts are a manifestation of extreme indifference to the value of human life, this is a charge of aggravated assault. You are further charged under Count 2 that you did strike Zdarko about the face and head with a lever action rifle and also placed the barrel of said rifle between the buttocks of Bryan Cordner and did work the action or hammer on the rifle, which conduct placed or could have placed Zdarko and Cordner in danger of serious bodily injury or death, this is a charge of reckless endangerment, it is a misdemeanor of the second degree and as such carries a maximum sentence of two years imprisonment, a fine of $5,000 or both. Your attention is directed to Information Number 267 of 1986, you are charged that
you did on July 29, 1986 in Warren Borough possess a significant quantity of marijuana, a Schedule I Controlled Substance with intent to deliver the said substance, this is a felony and carries a term of five years imprisonment, a fine of $15,000 or both, under the Drug, Device and Cosmetic Act. The second charge is that you did engage in the manufacturing of marijuana, a Schedule I Controlled Substance when you were not licensed or registered to do so, this in violation of the Controlled Substance, Drug, Device and Cosmetic Act, commonly know as manufacturing of marijuana, a felony, carries a maximum sentence of five years imprisonment, a fine of $15,000 or both. The Court has been advised that through plea negotiations in your behalf through your Counsel, Mr. Massa and the District Attorney that you intend to enter a plea of guilty to Count 2 of Information 240 of 1986 and the Commonwealth will nolle pros Count 1, that is, the charge of aggravated assault, also that you will plead guilty to the two counts at Information Number 267 of 1986 Was that your
full understanding of the plea negotiations in your behalf? THE DEFENDANT: Yes, sir. THE COURT: And did you authorize Mr. Massa to enter into those plea negotiations? THE DEFENDANT: Yes. THE COURT: Do you have any prior criminal record? THE DEFENDANT: Yes, sir. THE COURT: All right. Now, first, your attention to Number 240 of 1986, Count 2. What did you do that brought that charge upon you? Explain that. THE DEFENDANT: Well, I maintain that I didn't do that. MR. MASSA: Can I make a preliminary statement, Your Honor? THE COURT: Yes. MR. MASSA: Mr. Lauffenberger, at the Preliminary Hearing for Number 240 of 1986 you were not represented by Counsel at that time; is that correct? THE DEFENDANT: No. MR. MASSA: It is my understanding at the Preliminary Hearing Count 2 was dismissed
by the Magistrate, however, I have exhaustively investigated both the legal and factual ramifications of the chain of events that brought the charges against him. I have advised Mr. Lauffenberger that the actions, that his actions, that brought about his arrest on that particular evening were consistent to a charge of reckless endangerment. THE COURT: Did I understand you to say that Count 2 was dismissed? MR. MASSA: At the Preliminary Hearing Count Number 1 was bound over and I would be glad to outline the facts as I understand them. The actions in total while originally charged by the Commonwealth with aggravated assault are consistent with reckless endangerment. MR. TRYPUPENKO: If I may, there were three counts, two aggravated assault, one reckless endangerment and the second aggravated assault. MR. MASSA: I'm sorry. I apologize, Your Honor. THE COURT: That explains that. MR. MASSA: I believe what Mr. Lauffenberger may be concerned with was the
aggravated assault charge against Bryan Cordner was the one that was dismissed at the Preliminary Hearing, but his actions are consistent, in mv opinion, with reckless endangerment. THE COURT: Well, all right. Thank you. Now, Mr. Lauffenberger, again to the charge, you did strike Zdarko about the face and head with a lever action rifle; did you do that? THE DEFENDANT: No, sir. THE COURT: And, also, that you placed the barrel of the side rifle between the buttocks of Bryan Cordner and did work the action or hammer on the rifle; did you do that? THE DEFENDANT: No, sir. THE COURT: Well, what did you do concerning Zdarko and Cordner on or about July the 29th, 1986? THE DEFENDANT: I chased them down the street with a rifle. THE COURT: That was it? THE DEFENDANT: Yes. THE COURT: Did you shoot at them? THE DEFENDANT: No. THE COURT: Did you threaten to shoot them?
THE DEFENDANT: I didn't have any bullets. THE COURT: I didn't ask you that. Did you threaten to shoot them? THE DEFENDANT: I pointed it at them. THE COURT: Did you verbally threaten to shoot them? THE DEFENDANT: No, sir. THE COURT: You did not. Did they know the rifle wasn't loaded? THE DEFENDANT: No, I don't think so. THE COURT: Well, that charge is one of reckless endangerment. The Court has been advised that you intend to enter a plea of guilty to that charge, why are you entering a plea of guilty to the charge if you think you did not do that? THE DEFENDANT: I did chase them down the road with the gun, I believe that is reckless endangerment. THE COURT: Well, do you understand
then that even though you deny those specific facts under that count, if you enter a plea of guilty to the charge of reckless endangerment, you're saying that in fact the Commonwealth is correct in that charge and that you are guilty of doing what the Commonwealth charges you with doing? THE DEFENDANT: Yes. THE COURT: All right. Do you understand that's a misdemeanor of the second degree and as such the Court could incarcerate you in a prison for a maximum of two years and fine you $5,000? THE DEFENDANT: Yes, sir. THE COURT: All right. Now, your attention to Number 267 of 1986, first count, is that you possessed a quantity of marijuana; is that correct? THE DEFENDANT: Yes. THE COURT: You did so with the intent to deliver it; is that correct? THE DEFENDANT: No, sir. THE COURT: Tell the Court what you did that brought that charge upon you. THE DEFENDANT: I had -- I guess it
was about three or four pounds of marijuana. THE COURT: Were you going to deliver it to any one? THE DEFENDANT: No, sir. THE COURT: And is it your position it was for your own personal use? THE DEFENDANT: Yes. THE COURT: Then why are you entering a plea of guilty to that charge? THE DEFENDANT: It's part of the plea bargain. THE COURT: If you enter a plea of guilty to that charge do you understand that it has the effect of you admitting that that is true? THE DEFENDANT: Yes, sir. THE COURT: And that you can be sentenced accordingly, that is, five years imprisonment? (Whereupon, there was no response from the Defendant.) MR. TRYPUPENKO: Your Honor, may I have a moment with the attorney? (Whereupon, there was a brief discussion off record.) THE COURT: All right. MR. TRYPUPENKO: May I inquire?
MR. MASSA: May I make a suggestion, please, Your Honor? THE COURT: Yes. MR. MASSA: I have spoken with Mr. Lauffenberger for nearly an hour in preparation of a change of plea and numerous times in preparation of trial, which was scheduled for Monday, December 22nd, and there is some reluctance on Mr. Lauffenberger's part which we have discussed at considerable detail. May I suggest that the Commonwealth briefly outline the factual background so the Court will understand the ramifications. THE COURT: All right. MR. MASSA: Thank you. MR. TRYPUPENKO: Your Honor, the case stemmed from Mr. Lauffenberger pursuing certain individuals which were Zdarko and Cordner with a rifle. The police were called, they arrived at his house and found baggles of marijuana in a bag, they went and got a search warrant and searched the house and found marijuana plants in different stages of growth in the basement, that is why the charges were filed, Your Honor. I would be glad to ask Mr.
Lauffenberger about the facts, but those are the facts as we have them. MR. MASSA: I would like to add one other thing, Your Honor. THE COURT: Yes. MR. MASSA: The chain of events unfolded roughly at 1:30 a.m., Mr. Lauffenberge was walking back to his domicile on Pennsylvania Avenue, he was walking on Pennsylvania Avenue East returning from a bar, some words were exchanged with a group of male individuals across the street. One or more of those individuals crossed the street, this took place Your Honor, on Pennsylvania Avenue East near the V & J Restaurant, across the street on Schantz where Schantz intersects with Pennsylvania there is a vacant lot and west of the vacant lot is the Grace Church. Mr. Lauffenberger was in the location of the lot when words were exchanged to instigate, I'm not certain, but at any rate one or more of the individuals came across the street, further words were exchanged and an invitation to fight was made and Mr. Lauffenberger felt that he was outnumbered by two, three, four, five other individuals and
he proceeded to his house on Schantz Street, which is immediately north of the vacant lot. It's his contention that several of the individuals were following him up the street, there were no b1ows - no physical contact up to that point in time. Mr. Lauffenberger went inside of his house, exited shortly thereafter in a moment with a rifle, stood on the porch of his domicile, cocked the rifle, the individuals dispersed and he followed them up Schantz Street across Pennsylvania Avenue and located or cornered one of the individuals by the Firestone store. It's my opinion the Commonwealth could prove at the very least through several eyewitnesses that he pointed the rifle. I believe the Commonwealth will acknowledge that it was not loaded, but he pointed the rifle at one or more of the individuals. Mr. Lauffenberger contends that he did not physically kick Zdarko or hit him in the back of the head with the rifle, nor did he place the rifle -- in or about the particular area of the other individual. I have advised him that after extensive physical investigation by Mr. Thelin and discussing
the matter with probable Commonwealth witnesses that there would be several individuals who would probably corroborate the Commonwealth's allegations. At any rate I advised him that his actions of leaving his house and chasing the individuals up the street with a gun placing them in the mental frame of mind that they did was in itself sufficient to prove a charge of reckless endangerment. Mr. Lauffenberger then left the scene and went back home by a circuitous route, the police were summoned by a young lady who was at the Kwik Fill Station, a number of the police arrived and determined that it was Mr. Lauffenberger who had the altercation, knew where his domicile was, traced him there, entered through a screen door in search of him and made some observations of several marijuana plants growing in plain view. Several of them detained Mr. Lauffenberger and secured the house while another officer secured a search warrant, a search warrant was obtained, served, and additional marijuana plants or baggies were found.
Mr. Lauffenberger has questioned and challenged to me the legality of the search. I have again -- Mr. Aranyos represented Mr. Lauffenberger at the Preliminary Hearing on the drug charges and we have advised him very candidly that in our opinion the search was proper and would stand the scrutiny of a suppression hearing and based upon that background, Your Honor, we have recommended to him for his consideration the plea that has been presented to the Court. MR. TRYPUPENKO: Your Honor, just regarding the marijuana charges and the intent to deliver, it's the Commonwealth's position that whether or not the Defendant will say that he intended to deliver the evidence is such that the charge is founded. I would just tell the Court the four items of controlled substances that were seized, the first one, two baggies of marijuana at 443 grams of marijuana, the second was 86 grams of marijuana, the third item was 840 grams of marijuana, the fourth item contained 59 grams of marijuana, that certain1y is not conducive to personal use. THE COURT: Now, then gentlemen, that
certainly assists the Court. Mr. Lauffenberger, did you hear the District Attorney's colloquy to the Court? THE DEFENDANT: Yes. THE COURT: Did you hear your Counsel's statement to the Court? THE DEFENDANT: Yes. THE COURT: Now are those statements correct in your opinion? THE DEFENDANT: I was wondering about the quantities, is that the plants that you were talking about that weight? MR. TRYPUPENKO: I'm sorry. THE DEFENDANT: Is that the plants you were talking about? MR. TRYPUPENKO: It's the total amount of marijuana found in your house. THE COURT: Do you agree that that's essentially correct what the District Attorney said? THE DEFENDANT: Yes, sir. THE COURT: Do you agree then that what Mr. Massa said is essentially correct?
THE DEFENDANT: Yes THE COURT: Now, on the charge of possession with intent to deliver and, also, the charge of manufacturing of marijuana, despite your reluctance and, indeed, your denial that those charges are correct, do you understand that if you enter a plea of guilty that you're saying that the Commonwealth's position is correct and that you are, in fact, guilty as you are charged? THE DEFENDANT: Yes, sir. THE COURT: And do you understand that despite your denial if you enter a plea of guilty it is the duty of the Court to impose sentence or make other proper disposition of your case? THE DEFENDANT: Yes, sir. THE COURT: Do you understand that you cannot withdraw that plea of guilty before sentence without the permission of the Court? THE DEFENDANT: Yes, sir. THE COURT: Now, you were arraigned in this Court on August 21, 1986 on the charge of aggravated assault and reckless endangerment and you were also arraigned in this Court on September 25th on the two counts of delivery and manufacturing of marijuana; do you recall
those two arraignments? THE DEFENDANT. Yes, sir. THE COURT: Now, I am going to review some of those rights that you received at that time with you to refresh your memory. First I will ask you what is your definition of possession of contraband, namely, marijuana with the intent to deliver? How would you define that? What's that mean to you? THE DEFENDANT: That you possess mari]uana in a quantity that someone would think that you were going to deliver it. THE COURT: And do you understand that whether you delivered it is not the charge against you that you had possession with intent to deliver? THE DEFENDANT: Yes, sir. THE COURT: And also what is your understanding of manufacturing of marijuana? What does that mean to you? THE DEFENDANT: Growing it. THE COURT': Growing it. A11 right. Were you, in fact, growing this marijuana in your home?
THE DEFENDANT: Yes, sir. THE COURT: What's your definition of reckless endangerment? What does that mean to you? THE DEFENDANT: To act in a way that could cause injury to someone. THE COURT: A11 right. Now, your jury has been selected and your trial is scheduled to commence at nine o'clock on Monday, December 22, 1986. You are represented by Mr. Massa and you're entitled to the jury trial and before the jury may return a verdict of guilty as charged the Commonwealth must prove that you are guilty beyond a reasonable doubt on all of the principle elements of the charges against you, otherwise, it's the jury's duty to return a verdict of not guilty; do you understand that? THE DEFENDANT: I'm not sure about that. On the aggravated assault would it be aggravated or nothing? THE COURT: If the case goes to trial it will go to trial on all four charges including aggravated assault, reckless endangerment -- MR. MASSA: No, it would be just Number 240, Your Honor, on Monday.
THE COURT: Well, all right. MR. MASSA: Then it would be subsequent trials on the drug charges. MR. TRYPUPENKO: That's correct. THE COURT: Well, let me put it this way, Mr. Lauffenberger, on Monday you would go to trial on the aggravated assault, that's the one that's scheduled? MR. MASSA: Yes, sir. THE COURT: But you would also stand trial after that with a different jury on the charge of reckless endangerment-- MR. TRYPUPENKO: Your Honor, aggravated assault and reckless endangerment are Monday and the drug charges are going to be the next trial term. THE COURT: I guess the Court has it correct. I want you to understand this what you're going to go to trial on Monday is the charge of aggravated assault and the charge of reckless endangerment. THE DEFENDANT: Yes, sir. THE COURT: Do you understand that? THE DEFENDANT: Uh-huh. THE COURT: Do you have any other
questions about that? At a subsequent date with a different jury you would be going to trial on the marijuana charges. MR. MASSA: I believe he did have a specific question on the charges at Number 240. THE COURT: What's your question on that? THE DEFENDANT: Would the jury be able to find me guilty of simple assault instead aggravated assault? THE COURT: No, because you're not charged with simple assault. However, in the Court's opinion reckless endangerment, if you're found guilty on both, would merge with aggravated assault. If you're found guilty on both aggravated assault and reckless endangerment, the jury can return a verdict of guilty on both of those and if they do, for the purpose of sentencing the Court could only sentence you on the charge of aggravated assault, a felony of the second degree, carries a maximum sentence of ten years imprisonment, a fine of $25,000 or both. Does that answer your question? THE DEFENDANT: I believe so. THE COURT: Do you have any other
questions? THE DEFENDANT: No, sir. THE COURT: Do you desire the jury trial on Monday? THE DEFENDANT: No. THE COURT: All right. Now, have you told all of the facts to Mr. Massa that has brought this charge upon you? You raise your right hand, I am going to -- do you swear the answers you will give the Court during the course of this colloquy will be the truth, the whole truth, and nothing but the truth so help you God. THE DEFENDANT: I do. THE COURT: Now, did you tell Mr. Massa all of the facts that brought this charge upon you? THE DEFENDANT: Yes, sir. THE COURT: Did you tell him the truth? THE DEFENDANT: Yes. THE COURT; And how old are you? THE DEFENDANT: Thirty-nine. THE COURT: How far in school have you gone?
THE DEFENDANT: Twelfth. THE COURT: And do you have any difficulty in reading or writing the English language? THE DEFENDANT: No, sir. THE COURT: Are you having any difficulty in understanding me? THE DEFENDANT: No. THE- COURT: Do you consider Mr. Massa to be a competent and effective criminal trial attorney? THE DEFENDANT: Yes. THE COURT: Do you have any complaint in the manner in which he's guided your case to this point? THE DEFENDANT: No. THE COURT: And has Mr. Massa or any of his staff refused to do anything in behalf of your defense that you requested? THE DEFENDANT: I don't believe so. THE COURT: Well, you think about it. Have you asked Mr. Massa to do something for your defense and he's told you he will not do it or has refused to do it? THE DEFENDANT: No, sir.
THE COURT: Did you give any confession to any law enforcement officers at the time of your arrest or thereafter? THE DEFENDANT: No, sir. THE COURT: Are you on any drugs or alcohol at this time? THE DEFENDANT: No, sir. THE COURT: Have you been given any promises of the disposition of these cases on sentencing? THE DEFENDANT: No, sir. THE COURT: Has any one held out to you what the sentence might be? THE DEFENDANT: Yes. THE COURT: You explain that to the Court.- What was that? I asked you if any one has told you what the Court, that is myself, may do at time of sentence, that is, the nature of the sentence that may be imposed upon you. THE DEFENDANT: That on the reckless endangerment I can get one to two years and on the manufacturing and possession I can get five to ten years. THE COURT: All right. Is that what you were told?
THE DEFENDANT: Yes, sir. THE COURT: Do you understand that the Court could run those sentences consecutive and not concurrently? THE DEFENDANT: No, sir, I do not. THE COURT: Well, do you understand that if you enter a plea of guilty to reckless endangerment that is a misdemeanor of the second degree it is a maximum period of two years imprisonment and a minimum period of one the Court could go -- THE DEFENDANT: Right. THE COURT: or less than one year. All right. Then on each count of possession with intent to deliver the Court could sentence you to five to ten years on each count? THE DEFENDANT: Yes, sir. THE COURT: And run the one sentence one after another which would mean on the two charges if the Court went to the max1mum would be ten years to twenty years; do you understand that? THE DEFENDANT: I did not know that. I understand it now.
THE COURT; And do you understand that if the Court accepts this plea negotiations and you enter a plea of guilty as negotiated that after the imposition of sentence you may only question before this Court and if denied before the Superior Court whether or not the sentence imposed was legal and proper; if the Court has the jurisdiction over you to impose the sentence; and, if your plea negotiations and plea today was freely and voluntarily and knowledgeably entered; do you understand that? THE DEFENDANT: Yes, sir. THE COURT: Do you have any other questions whatsoever concerning this plea? THE DEFENDANT: No, sir. THE COURT: Do you believe you have any legal defense to the charges against you, otherwise, has Mr. Massa told you should go to trial because you have a legal defense? THE DEFENDANT: In regards to what, sir? THE COURT: Well, any of the charges or all of them? THE DEFENDANT: I believe I have a
defense against aggravated assault. THE COURT: Well, aggravated assault under the plea negotiation is going to be dismissed. THE DEFENDANT: Yes. THE COURT: You're going to plea to the charge of reckless endangerment? THE DEFENDANT: Yes, sir. THE COURT: Do you understand when you enter a plea of guilty as negotiated that you're acknowledging you did what the Commonwealth charges you with doing? THE DEFENDANT: Yes, sir. THE COURT: All right. The Court will accept the plea negotiations and to Number 240, Mr. Lauffenberger, how do you plea to Count 2, reckless endangerment? THE DEFENDANT: Guilty, Your Honor. THE COURT: And to Information Number 267 of 1986 Count I, how do you plea? THE DEFENDANT: Guilty. THE COURT: And Count 2. THE DEFENDANT: Guilty. THE COURT: Enter a plea. MR. TRYPUPENKO: Let the record
reflect the Defendant has entered a written and counseled plea of guilty to Number 267 of 1986, Counts I and 2; and to Number 240 of 1986 guilty to Count Number 2 and the Commonwealth will nolle pross Count Number 1 at 240. Thank you, Your Honor. THE COURT: Court is adjourned. (Whereupon, Court was adjourned at 3:35 p.m.)
CERTIFICATE OF COURT REPORTER I hereby certify that the proceedings are contained fully and accurately in the notes taken by me on the hearing of the above petition and that it is a correct transcript of the same. Charles R. Rapp Court Reporter I approve this transcript, and direct it to be filed. Hon. Robert L. Wolfe, P.J.
|
| Written Pleas (#240 & 267) | Aug 21 - Dec 18, 1986 |
|
I, GARY D. LAUFFENBERGER the Defendant in the within Information in open Court, hereby enter a plea of not guilty Date 8/21/86 Defendant Gary Lauffenberger (signed) Attorney for Defendant Joseph A. Massa (signed)
I, GARY D. LAUFFENBERGER the Defendant in the within Information, in open Court, hereby say: 1. That I have been advised of the offense(s) in the within Information and of the rights to which I am entitled, and 2. That, if I am not represented by counsel, I have been advised of my rights to the services of the Public Defender's Office at no cost and do not want an attorney to represent me; and 3. That I hereby enter a plea of guilty to count 2 (RECKLESS ENDANGERMENT) C will nolle pros count 1 information and consent to the Court imposing sentence Date: 12 - 18 - 86 Defendant Gary Lauffenberger (signed) Attorney for Defendant Joseph A. Massa (signed)
|
| Nolle Prosse (#240) | Jan 16, 1987 |
|
IN THE COURT OF COMMON PLEAS OF THE 37th JUDICIAL DISTRICT
OF PENNSYLVANIA
TO THE HONORABLE ROBERT L. WOLFE, PRESIDENT JUDGE OF SAID COURT: The Petition of Jurij Trypupenko, Assistant District Attorney of Warren County, Pennsylvania, respectfully represents as follows: 1. That the above named defendant was charged with the offense noted above.
2. That it appears to be fitting and proper and in the interest of justice that the prosecution be terminated by entering a nolle prosequi
because the defendant through his counsel has entered into plea bargaining with the District Attorney's Office,
and the District Attorney agreed to nolle prosequi this charge.
The defendant has entered a guilty p1ea to Reckless Endangerment (M3) at this number and to Posssession with intent to deliver (F) and Manufacturing of Marijuana (F) at No. 267 of 1986 and has agreed to pay costs and to make restitution on the charge of aggravated assault.
WHEREFORE, your Petitioner respectfully prays that your Honorable Court grant permission for the entering of a nolle prosequi in the above case.
COMMONWEALTH OF PENNSYLVANIA:
COUNTY OF WARREN
JURIJ TRYPUPENKO, being duly sworn according to law, deposes and says that the facts set forth in the foregoing Petition are true and correct to the best of his knowledge, information, and belief.
Jurij Trypupenko (signed)
Susan Kosinski (signed)
|