| COM ex rel GARY D. LAUFFENBERGER
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V
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No. 240 of 1986
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JEFFREY A BEARD,
SUPERINTENDANT, S.C.I. CRESSON
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No. 267 of 1986
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PETITION FOR WRIT OF HABEAS CORPUS
1. Prison unit in which confined: S.C.I. - CRESSON
2. Name and location of court which imposed sentence:
NN WARREN COUNTY COURT OF COMMON PLEAS, WARREN, PA.
3. The indictment number(s) upon which, and the offense(s) for which sentence was imposed:
NNN(a) No. 240 of 1986
NNN(b) No. 267 of 1986
4. The date upon which sentence was imposed and the terms of sentence:
(a) JANUARY 16, 1987 / 2 - 4 YEARS
(b) JANUARY 16, 1987 / 1 - 2 YEARS (CS)
5. Check whether a finding of quilt was made:
(X) after a plea of guilty
6. Did you appeal from the judgment of conviction or the imposition of sentence? :
NO
7. State briefly and concisely the grounds on which you
base your allegation
that you are being held in custody unlawfully:
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(a) DEFENDANT WAS
RESENTENCED ON FEBRUARY 17, 1987 ON THE CHARGE OF No. 240 of 1986 (RECKLESS ENDANGERMENT),
AT WHICH TIME THE MAXIMUM SENTENCE WAS REDUCED TO TWO (2) YEARS.
DUE TO THE FACT THAT THE MINIMUM SENTENCE WAS
NOT
SPECIFICALLY STATED
AS BEING REDUCED TO NOT MORE THAN ONE- HALF OF THE MAXIMUM,
THE PA. DEPT. OF CORRECTIONS HAS MISINTERPRETED SAID SENTENCE AS HAVING A TWO (2) YEAR MINIMUM/TWO (2) YEAR MAXIMUM,
WHICH IS AN ILLEGAL SENTENCE.
DEFENDANT HAS SERVED THE MAXIMUM LEGAL SENTENCE OF TWO (2) YEARS ON THE AGGREGATED SENTENCES OF No's. 240 and 267 of 1986,
AND IS BEING DENIED THE OPPORTUNITY TO APPLY FOR PAROLE DUE TO THIS MISINTERPRETATION.
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8. State concisely and in the same order the facts which
support each of the grounds set out in
(7):
(a)
(i)
THE PA. DEPT. OF CORRECTIONS HAS INTERPRETED THE SENTENCE OF NO. 240 OF 1986
(RECKLESS ENDANGERMENT M-2),
AS BEING A FLAT SENTENCE OF
TWO (2) YEARS MINIMUM / TWO (2) YEARS MAXIMUM.
(SEE
INITIAL SENTENCE STATUS REPORT, ATTACHED).
(ii)
THIS IS AN ILLEGAL SENTENCE IN THAT THE MINIMUM SENTENCE EXCEEDS ONE-HALF OF MAXIMUM SENTENCE. (
42 Pa. C.S.A. § 9756)
(iii)
SENTENCING JUDGE, THE HONORABLE ROBERT L. WOLFE,
HAS AFFIRMED IN AN OPINION IN RESPONSE TO DEFENDANT'S P.C.H.A. PETITION, AND ENTERED ON NOVEMBER 15, 1988,
THAT DEFENDANT WAS IN FACT SENTENCED TO A TOTAL CONFINEMENT OF TWO TO FOUR YEARS.
(INCLUDES CONSECUTIVE SENTENCE OF ONE TO TWO YEARS ON CHARGE OF No. 267 OF 1986).
(OPINION ATTACHED).
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9. Before this petition, have you filed with respect to this conviction:
(a) any petitions in State or Federal Courts for habeas corpus?
YES
(b) any petitions in the United States Supreme Court for Certiorari other than petitions, if any, already specified in (6)? NO
(c) any other petitions, motions or applications in this any other court?
YES
10. If you answered "yes" to any part of (9), list with respect to each petition, motion or application:
(a) the specific nature thereof:
(1)
MOTION FOR RECONSIDERATION OF SENTENCE
(2) P.C.H.A. PETITION
(3) NOTICE OF APPEAL
(4) PETITION FOR CLARIFICATION OF SENTENCE
(5) APPLICATION FOR CONTINUANCE
(6) MOTION FOR WRIT OF HABEAS CORPUS
(b) the name and location of the court in which each was filed:
(1) WARREN CO. COURT OF COMMON PLEAS
(2) WARREN CO. COURT OF COMMON PLEAS
(3) WARREN C0. COURT OF COMMON PLEAS / PA. SUPERIOR COURT
(4) WARREN CO. COURT OF COMMON PLEAS
(5) SUPERIOR COURT OF PENNSYLVANIA, PITTSBURGH, PA.
(6) SUPERIOR COURT OF PENNSYLVANIA, PITTSBURGH, PA.
(c) the disposition thereof:
(1)
SENTENCE AMENDED -
MAXIMUM REDUCED TO TWO YEARS, (240 of 1986)
(2)
DISMISSED AS BEING WITHOUT MERIT
(3)
DOCKETED
(4)
DENIED
(5)
DENIED
(6)
PETITION DENIED -
APPEAL REMANDED FOR APPOINTMENT OF COUNSEL
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10. (d) the date of each such disposition:
(1) FEB. 17, 1987
(2) NOV. 10, 1988
(3) DEC. 12, 1988
(4) FEB. 8, 1989
(5) MAY 12, 1989
(6) MAY 23, 1989
(e) if known, citations of any written opinions or orders entered pursuant to each disposition:
(1) § 303.1(i), 204 Pa CODE OF THE GUIDELINES;
COM V McKEITHAN, __Pa. SUPER__. 504 A.2d__294 (1986)
(2) SECTION 9549 OF P.C.H.A.
(3) N/A
(4) NONE
(5) NONE
(6) NONE
(f) the name of the court, and the date, in which any evidentiary hearing was held:
(1) UNKNOWN
(2) UNKNOWN
(3) N/A
(4) UNKNOWN
(5) UNKNOWN
(6) UNKNOWN
11. Has any ground set forth in (7) been previously presented to this or any other court, state or federal, in any petition, motion or application which you have filed? YES
12. If you answered "yes" to (11), identify:
(a) which grounds have been previously presented:
(1)
THE GROUND PRESENTED HEREIN (7-a) HAS BEEN PREVIOUSLY
PRESENTED
(b) the proceeding in which each ground was raised.
(1)
PETITION FOR CLARIFICATION OF SENTENCE - WARREN COUNTY COURT OF COMMON PLEAS
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13. Were you represented by an attorney at any time during the course of:
(a) your arraignment and plea? YES
(b) your trial, if any? N/A
(c) your sentencing? YES
(d) your appeal, if any, from the judgment of conviction or the imposition of sentence?
NO
(e) preparation, presentation or consideration of any petitions, motions or applications with respect to this conviction, which you filed?
UNKNOWN
14. If you answered "yes" to one or more parts of (13), list:
(a) the name and address of each attorney who represented you and whether he was employed by you or appointed by the court:
(1)
JOSEPH MASSA - WARREN COUNTY COURT HOUSE - COURT APPOINTED
(2)
ROSS McKEIRNAN - PENN BANK BLD, WARREN, PA - COURT APPOINTED
(b) the proceedings at which each such attorney represented you:
(1)
ARRAIGNMENT, PLEA, SENTENCING, RESENTENCE
(2)
P.C.H.A., ROSS McKEIRNAN'S PARTICIPATION UNKNOWN
N
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WHEREFORE, Your Petitioner respectfully moves this Honorable Court issue under the Hand and Seal of this Court an AMENDED SENTENCING ORDER,
specifically stating the minimum and maximum term of confinement imposed on the charge of No. 240 of 1986,
and direct that the Clerk of Court tender a certified copy of said ORDER upon Your Petitioner, the Pa. Dept. of Corrections, and the Pa. Dept. of Parole and Probation.
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Respectfully submitted,
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| _____________________(Signed)
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| Petitioner, Pro Se |
| Gary D. Lauffenberger |
| AJ-0476 Drawer A S.C.I. |
| Cresson, PA 16630 |
Date: June 26, 1989
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