Jan 23, 1990

RESPONSE FROM DOC (FREDERICK SMITH)

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PENNSYLVANIA DEPARTMENT OF CORRECTIONS P.O. BOX 598 CAMP HILL. PENNSYLVANIA 17001-0598 January 23, 1990 Mr. Gary D. Lauffenberger, AJ-0476 State Correctional Institution at Cresson Drawer A Cresson, Pennsylvania 16630 RE: Correspondence with Commissioner Owens Dated January 9, 1990 Dear Mr. Lauffenberger: Your above-referenced letter to Commissioner Owens was referred back to the authorities at the State Correctional Institution at Cresson for a response. Since I had given a previous legal opinion hich approved the current computation of your sentence, your letter was referred to me for an appropriate reply. As you may or may not be aware, this office has already devoted significant time to resolving the controversy surrounding the computation of your sentence. The original commitments that were received by the Department from Warren County indicated clearly that you were to serve a twenty-four (24) month to twenty-four (24) month sentence (240 -1986) to be followed by a consecutive twelve (12) month to twenty-four (24) month sentence (267-1986). The sentence the court originally had imposed on you would have aggregated to a period of confinement of three to six (3 - 6) years. As a result of your petition to amend that sentence, the maximum term was reduced by two (2) years. However, the court in its order dated February 17, 1987 specifically left both minimum terms intact as originally imposed. Though I had some concerns about this determination, I felt it was most appropriate that these concerns be addressed by an appeal to the Superior Court. Therefore, by memorandum dated May 26, 1987, I approved computing your aggregate sentence as a three to four (3-4) year sentence. ( Copy of memorandum attached). In the latter part of 1988, you provided Dorothy R. Daniel at the State Correctional Institution at Cresson with a copy of an opinion issued by Judge Wolfe on November 10, 1988. The opinion did make a general reference to your having received a sentence of twenty-four (24) months to a maximum of forty-eight (48) months on February 17, 1987, although the opinion as a whole was in support of an order dismissing your PCHA petition with no relief granted. Upon reading this opinion, which Ms. Daniel forwarded to me, I contacted the Warren County District Attorney's office concerning your sentence. I spoke with Rene Heilman, Assistant District Attorney, who advised me on January 6, 1989, that thirty-six (36) months was the correct minimum term and forty-eight (48) months the correct maximum term for your aggregated sentence. Based on that discussion, I saw no need to issue a revision to my previous memorandum dated May 26, 1987, concerning your sentence. The Department of Corrections is obliged to compute your sentence in accordance with the terms of confinement that are set forth on the certified court commitments it receives from your county. Unless or until new commitments are received from your county which direct that your sentence be computed as two consecutive twelve to twenty-four (12-24) month sentences, the Department has no choice but to continue to compute your sentence as an aggregate sentence of thirty-six to forty-eight (36-48) months as required by the commitment currently in our possession. Sincerely, ___________________(signed) Frederick C. Smith, Jr. Assistant Counsel FCS/rir Attachment(s) cc: David S. Owens, Commissioner Fred W. Jacobs, Chairman, Pennsylvania Board of Probation and Parole Martin L. Dragovich, Acting Superintendent Fred Kreashko, Records Office, SCI-Cresson

May26, 1987

Mr. Smith's INITIAL MEMORANDUM

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COMMONWEALTH OF PENNSYLVANIA Department of Corrections May 26, 1987 SUBJECT: Legal Opinion Request of April 13, 1987 Gary D. Lauffenberger J-0476 TO: Thomas P. Bender Records Supervisor, SCI-Pittsburgh FROM: Frederick C. Smith Jr. Assistant Counsel I have carefully reviewed the documents included with the above-referenced Request. I have also reviewed the Pennsylvania Superior Court's decision in Commonwealth V. McKeithen, 504 A.2d 294 (1986). While I disagree with Judge Wolfe's interpretation of the McKeithan case, I cannot say that Judge Wolfe's interpretation is incorrect as a matter of law. The language employed by the court in the McKeithan case is sufficiently vague as to permit the type of interpretation that Judge Wolfe apparently has adopted. I have contacted District Attorney Richard A. Hernan of Warren County. Mr. Hernan indicated to me verbally that the case is under appeal. Judge Wolfe's sentence of twenty-four (24) - twenty-four (24) months conflicts with the statutory direction that a minimum term of confinement not exceed half of the maximum term imposed. However, because the legal authorities cited by the judge arguably support the sentence he has imposed in this case, it is my opinion that you should record the sentence exactly as imposed by Judge Wolfe. Hopefully, the appeal of this decision will resolve the legal question that is involved. Judge Wolfe also imposed a second consecutive sentence of twelve (12) to twenty-four (24) months. Ordinarily this consecutive sentence would be aggregated to the first under the Department's aggregation policy. There is no reason to make an exception to this policy in this case even though the minimum term of the aggregated sentence will exceed one-half of the maximum term. The net effect on the time this inmate will serve is the same with or without aggregation. Not aggregating these sentences will only negatively affect the inmate's programming as a result of the re-entry detainer. Aggregate the sentences to a thirty-six (36) to forty-forty-eight (48) month term of confinement. I will keep a file open in this case since I anticipate some changes to result from the appeal. If and when you receive any additional information regarding the status of the sentences, please forward that information immediately to my attention. FCS:smd cc: Bob Best

Feb 20, 1990

REPLY TO FREDERICK SMITH

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Gary D. Lauffenberger February 20, 1990 AJ-0476 S.C.I. Cresson, Pa. 16630 Pa. Dept. of Corrections P.O. Box 598 Camp Hill, Pa. 17001 Attn: Frederick C. Smith Jr. Re: Your letter of January 23, 1990 Dear Mr. Smith, Your prompt reply is greatly appreciated. However, I would question several of your statements as well as the logic and procedures employed by you in your determination of this matter. Concerning your memorandum of May 26, 1987, I would inquire exactly what language you found to be "sufficiently vague to permit", or that would "arguably support", such a sentence as interpreted by the D.O.C. and yourself (2 yrs. min. - 2 yrs. max.)? I of course am not a lawyer, but I can read pretty good and I find no such ambiguity in either McKEITHAN or 204 Pa. Code 303.1 (1). In fact I find both to be quite explicit in regards to guideline sentence not to exceed statutory limit as established by 18 Pa.C.S. 1103 and 1104 (maximum sentences for felonies and misdemeanors) and 42 Pa.C.S. 9755(b) and 9756(b) (minimum sentence not to exceed one-half of maximum sentence). I assume you also aware of the legislation authorizing the adoption of these guidelines "for sentencing within the limits established by law", 42 Pa. C.S. 2154 ? It of course appears incongruous that you mis-interpret this sentence as such, and then assert such sentence to be in conflict with the very same statutory directive "PURSUANT TO" which sentence was imposed! (Obviously we are both speaking here of 42 Pa.C.S. 9756(b), which is referred to in both McKEITHAN, and 204 Pa. Code 303.1(i)). Indeed, your interpretation is in conflict with such directives, and thus conflicts with the actual sentence which was imposed "PURSUANT TO" such directives. I am assuming we both have a proper understanding of the term "PURSUANT TO". I would also question the purpose and the propriety of your actions in contacting the District Attorney in regards to any question concerning a sentence imposed by the Court. Surely you are aware of the adversarial nature of a criminal proceeding ? Incidentally, this case was never under appeal until my pro se P.C.H.A. Petition of Sept. 1, 1988, despite the District Attorney's contrary information. But then I would imagine this is just the type of mis-information one could expect from one's adversary, wouldn't you? As for your letter of January 23, 1990, your statement that the Court's ORDER of February 17, 1987 specifically left both minimum terms intact is obviously the basic point on which we disagree. Assuming that we agree on the definition of "pursuant to", it appears that your position requires either a denial of the fact that I was sentenced "pursuant to 303.1 (i)", or a denial that such section mandates minimum sentence not to exceed one-half of maximum sentence? I also take exception to your statement that the Court's OPINION of Nov. 10, 1988 "did make a general reference to" sentence being 24 to 48 months. I would contend the Court's statement was quite specific, and suggest to you that the reason no relief was granted was that sentence imposed was not an illegal sentence of 3 to 4 years, but a legal sentence of 2 to 4 years. I would again question your purpose in contacting the District Attorney's Office concerning this matter, and inquire since when does an assistant DA. (by telephone), outweigh or overrule the Court's written OPINION as to the sentence imposed ? Perhaps Ms. Heilman has offered a reasonable explanation for this contradiction that you would be willing to share with me? You also state that the Dept. of Corrections is obliged to compute a sentence as set forth on certified court commitments. If this is in fact the case, I would ask why then your office has "devoted significant time to resolving" this matter, and why the Judge and/or Clerk of Courts was not contacted, as surely the D.A. has neither an interest, nor the authority to correct these commitment papers? It is quite apparent that procedures do exist within the Dept. of Corrections for dealing with such a situation and I am concerned whether those procedures have been followed. Also, this is not an isolated incident of what I consider improper actions on the part of the District Attorney's Office. Any other examples of obstructionary conduct that you may be able to relate would be greatly appreciated. As a final matter, am I correct to assume you also received a copy of my letter of January 9, 1990 to Mr. Jacobs, or that you are otherwise familiar with 61 Pa. § 316 (prisoner whose minimum sentence exceeds one-half of maximum eligible for parole at one-half of maximum sentence)? The parole people I have spoken with seem to think this matter is the responsibility of the Dept. of Corrections; specifically the Records Office. Your assistance or advice on this matter would also be very welcome. Sincerely, ___________________(signed) Gary D. Lauffenberger cc: David S. Owens, Commissioner Fred W. Jacobs, Chairman, Pennsylvania Board of Probation and Parole Martin L. Dragovich, Acting Superintendent Fred Kreashko, Records Office, SCI-Cresson

Mar 12, 1990

RESPONSE FROM Mr. Smith

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David S. Owens Commissioner        Deputy Commissioners Administration  LEE T. BERNARD II Programs ERSKIND DERAMUS PENNSYLVANIA DEPARTMENT OF CORRECTIONS P.O. BOX 598 CAMP HILL, PENNSYLVANIA 17001-0598 March 12, 1990 Mr. Gary Lauffenberger AJ0476 SCI-Cresson RE: Your Letter dated February 20, 1990 Dear Mr. Lauffenberger: Thank you for your above-referenced letter. I appreciate your concerns with the matters discussed in your letter. As an Assistant Counsel for the Department of Corrections, I provide legal advice to that agency. However, I am not an appellate court judge. It is not "my interpretation" of your sentence that is the source of your discontent. It was Judge Wolfe's interpretation of the law which has resulted in your receiving a sentence of three to four years in a state correctional institution. I cannot properly advise the Department to ignore the court-imposed sentence in this case, even if I might personally disagree with the Court's legal reasoning. If, as you allege, Judge Wolfe is in complete agreement with yourself that the appropriate sentence in this case is a two to four year aggregate sentence, then you should prevail upon Judge Wolfe to direct his Clerk of Courts to send amended commitments to the Department of Corrections which clearly indicate that this was the actual sentence imposed. As you have been repeatedly advised in the past, the current commitments on file expressly indicate that you have been sentenced to consecutive sentences of one (1) to two (2) years and two (2) years to two (2) years, which aggregate to a three (3) to four (4) year sentence. I do not believe there is anything improper about my contacting the Office of the District Attorney to seek clarification of an ambiguity in your commitment papers. This is a routine practice I follow when clarification of vague or ambiguous sentencing commitments or orders are received. I was forwarded a copy of only your letter to Commissioner Owens. I did not receive a copy of any of the attachments to that letter. I have not seen your January 9, 1990 letter to Mr. Jacobs. Therefore, I cannot comment on that letter. You have indicated that my assistance or advice would be welcome. The best advice I can give you is to write to the attorney who represented you at your criminal trial and to Judge Robert L. Wolfe, whom you allege also agrees with your position. The Department will recompute your sentence if and when corrected commitments are received from Warren County indicating that a recomputation is necessary. Sincerely, ___________________(signed) Frederick C. Smith, Jr. Assistant Counsel FCS:bs cc: Martin L. Dragovich, Acting Superintendent, SCI-Cresson

Mar 26, 1990

REPLY TO Mr. Smith

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Gary D. Lauffenberger March 26, 1990 AJ-0476 S.C.I. Cresson, Pa. 16630 Pa. Dept. of Corrections P0 BOX 598 Camp Hill, Pa. 17011 Attn: Frederick C. Smith Re: Your letter of March 12, 1990 N Dear Mr. Smith, Once again your timely response is much appreciated. I am of course disappointed that this matter remains unresolved. Particularly so as I feel you have failed to respond in a meaningful sense to any of the issues or questions that I have raised. Quite frankly, it appears that you are determined to defend a position which you recognize to be indefensible, through whatever means are necessary, including a total disregard of the relevant and compelling facts. Naturally, I can only wonder why that is? Most to the point, you have failed to advise me of the specific language of the cited authorities (204 Pa. Code 303.1(i), and/or McKEITHAN, that you found to be "sufficiently vague to permit", or would "arguably support" such a sentence.   Nor have you denied that the sentence was imposed "pursuant to 303.1(i)", or that said section prohibits minimum sentence exceeding one-half of maximum sentence. Obviously, your position requires a denial of one or the other of these facts. Also, I do not believe the fact that it is your usual practice to contact the District Attorney's office in regards to such matters in any way lends validity to such procedure, particularly as to the exclusion of any other procedures. I am especially incredulous that you would accept an assistant District Attorney's verbal statement regarding sentence imposed as prevailing over the Court's (Sentencing Judge's), written OPINION issued in response to my P.C.H.A. claim of illegal sentence! In your letter of March 12, you state "This is a routine practice I follow when clarification of vague or ambiguous sentencing commitments or orders are received." Am I correct to understand then that (other) clarification was in fact received? Also you state that I "have been repeatedly advised in the past", of the sentences as indicated in the commitment papers currently on file. Certainly I am aware of those sentences and commitment papers, although I have no recollection of having been repeatedly advised of same. Perhaps there is some discrepancy in correspondence sent (or believed sent), to me and that actually received by me? I hope that this is not perceived as a personal attack. However, I must advise that I find your assertion that it is not "your interpretation" at issue, but that of Judge Wolfe's, to be most presumptuous. Any attempt to ascertain the intent of another person's words or actions is a subjective act which by it's very nature necessarily requires an interpretation of those words or acts. Unless of course, Judge Wolfe has himself advised you of his appraisal of the statutes and directives in question? Thus, your position is in fact based upon "your interpretation" of the sentence imposed, and is, in fact, contrary to the controlling statutes pursuant to which sentence was imposed. I find such an interpretation particularly inexplicable as resulting in an obviously illegal sentence, and is, therefore, also contrary to the presumption of the regularity of proceedings, a legal doctrine of which I assume you are familiar. I can appreciate one point that you have raised, that being the sentence as recorded on the commitment papers. However, under the circumstances I suggest it would be reasonable to suspect that the Clerk of Courts had mis-interpreted this sentence. This is the primary reason that I so vehemently challenge your limiting your investigation of this matter to an inquiry of the D.A.'s Office. Obviously, neither the Clerk's, nor the D.A.'s interpretation has any bearing on the sentence actually imposed. I would even go so far as to suggest that Judge Wolfe's interpretation of 204 Pa. Code 303.1 (i), (whatever it may be), is irrelevant, the controlling factor being that mandate clearly enunciated in the directive pursuant to which sentence was imposed (204 Pa. Code 303.1 (i), citing conformity with 42 Pa. C.S. 9756 {b) (MINIMUM SENTENCE NOT TO EXCEED ONE-HALF OF MAXIMUM SENTENCE). This mandate is likewise, and quite simply reflected in McKEITHAN - "Thus a defendant subject to a deadly weapons enhancement is in a position not significantly distinguishable from other convicted defendants during the sentencing phase". It would of course be absurd to suggest that a two year minimum is not significantly distinguishable from a one year minimum sentence. ALSO PLEASE NOTE THAT THE MANNER IN WHICH THIS SENTENCE WAS IMPOSED IS IN VIOLATION OF 42 Pa. C.S. 9757 (requiring the court to indicate the minimum sentence to be served for the TOTAL of all offenses). This statute also requires that such minimum sentence shall not exceed one-half of the maximum sentence imposed. This failure of the court is of course the primary source of the confusion surrounding this sentence, and yet another example of the illegality of this sentence. Your advice is well received. Unfortunately, the court has consistently rejected my best efforts, and both trial, and P.C.H.A. counsel have just as consistently refused to act on this matter, and have in fact, long ago abandoned me. It would appear that everyone, including the D.O.C. and the Parole Board, is quite determined that I serve this sentence whether it is legal or not. Of course I do not believe the popularity of this cause renders it a just one, in fact I view this situation as the result of criminal collusion. At any rate, the advice and assistance requested pertains to the matter of Title 61 Pa. § 316 (enclosed). To reiterate, the parole people whose attention I have brought to this matter, appear unaware of this statute. They also appear unwilling to so much as acknowledge the existence of such a statute, what vague responses I have received seeming to imply that this matter is the responsibility of the Dept. of Corrections. I do not know whose responsibility it is. I would expect it to be a responsibility of the Parole Board, although it seems reasonable to expect that this matter (parole eligibility at one-half of maximum), would be reflected on my Initial Sentence Status Sheet, which I believe is a function of the Department of Corrections (records office). I would appreciate if you would look into this matter and advise the responsible parties of this statute and the attendant circumstances. Throughout your correspondence you have repeatedly expressed your doubts of the legality of this sentence. In the event that you harbor any doubts whatsoever, I am enclosing copies of several of the relevant documents which were included in my letter of January 9, 1990 letter to Commissioner Owens, including 204 Pa. Code 303.1(i), as reproduced from the Guideline Implementation Manual (Pa.C.Sent.3d), page 83 of that publication (dealing quite explicitly with the subject of minimum sentence) and Title 42 9756 (b). Also Title 42 9757. If you are still unconvinced, I would suggest that you contact the District Attorney and inquire of his current position regarding this sentence, as stated in his appellate (Superior Court) brief. Finally, a review of my letter of January 9 to Commissioner Owens will, I believe, reveal that the primary thrust of that letter was to establish that I am, and have been, illegally detained as a result of a blatantly illegal sentence, and that I have, additionally, been denied (against due process), the right to apply for parole as of January 15, 1989, and that therefore it is unreasonable, indeed, manifest1y unjust, that I be required to complete level III programming as a precondition of parole. I would simply request that you advise the Commissioner of the legal status of this sentence in order that he may make an informed decision in regards to my request that this condition be dropped. I would further request that you advise the appropriate agency of the existence and content of Title 61 Pa. § 316, and ensure that such notification is properly acknowledged and reflected in the record. Thank you. Sincerely, ___________________(signed) Gary D. Lauffenberger enc/ 204 Pa. Code Pa. 303.1(i) C.Sent.3d, page 83 Title 42 Pa. 9756 (b) Title 42 Pa. 9757 Title 61 Pa. § 316   NO RESPONSE