| PCHA | Introduction | PCHA |
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This sections begins with the filing of my
PCHA Petition (Post-Conviction Hearing Act),
which was occasioned by my discovery that "attorney" Massa had not, in fact, appealed the illegal sentence.
It bears restating that not only did he fail to appeal as he had stated he would, he further failed to
even advise me
of his failure to file an appeal, and further yet refused to even respond to
my inquiries. And then he putlled that crap
all over again.
Of course I didn't fall for it this time. Nevertheless, his actions alone resulted in an unnecessary delay of nearly two years in bringing this matter to the Superior Court - an action I was forced to take myself - without benefit of counsel. This is where my "education" started.
Not only are such failures extremely serious breaches of counsel's duties, but the specific circumstances, and the consistent and repeated nature of these violations leave little doubt these failures were intentional rather than the result of negligence, or oversight. They do, in fact, constitute fraud, either intentional, or constructive.Shortly after I had concluded that "attorney" Massa had not appealed, and was not going to appeal this sentence, one of the individuals who had been involved in the altercation, Garwood S. Boyer, was sent to the same prison where I was. Mr. Boyer advised me that Mr. Zdarko's "injuries" were in fact extremely minor, and also indicated that Mr. Zdarko's "injuries" may very well have been self-inflicted as a result of his stumbling around and falling down drunk in the woods earlier on the night of this incident. He also provided me with a statement, recanting his previous police statement, and stating that Mr. Zdarko had told his friends to say they had seen me strike him. Not only is this statement the recanting of a key witness - it also raises serious questions regarding the statements of the other "witnesses. Mr. Boyer's statement also indicates that Mr. Zdarko had perjured himself at my preliminary hearing on these charges, in stating that he had not been drinking on the night of this incident. This statement was simply totally ignored by the court. The record shows that Ross W. McKeirnan was initially appointed by the Court on September 14, 1988, to represent me on this Petition, as required under these rules. It also shows that a rule was issued upon the Commonwealth (District Attorney) to show cause why a hearing should not be granted. No such showing (of cause) exists in the record.This Petition was simply dismissed, without alteration or amendment by counsel, and without a hearing. Although it is purported that "argument court" was held, there is no record of such. At any rate, such a proceeding does not constitute the (formal) hearing intended by these rules. If this "hearing" existed at all, it was nothing more than a sham, a "secret court", that I was not even permittd to attend. A hearing attended, purportedly, by the judge, the District Attorney, and a "defense attorney" whose TOTAL NON-PARTICIPATION is well-documented in this matter. It is also important to note that, besides being required by law, as well as the fundamental concepts of due process (access to the courts, a RIGHT TO BE HEARD, etc.), a primary purpose of such a hearing is to establish a record so that the actions and findings of the court may be properly reviewed on appeal. Just the fact that such a "hearing" was conducted based upon my pro se petition, without assistance or amendment by counsel, is in itself quite indicative of the true nature of these proceedings. An honest judge would in fact have severely chastized "attorney" McKeirnan for failing to amend this petition and Ordered that he either do so or file a motion to withdraw. The applicable law here regarding hearing is § 9549 of the Post-Conviction Hearing Act, under which the Court is required to grant a hearing if a petition alleges facts that, if proven, would entitle the Petitioner to relief. It is also important to understand that this does not require that these facts actually be proven. (at this point). That is the purpose of a hearing, which was denied by the court. Rather, it is the mere allegation of facts that, if they were to be proven, would entitle the petitioner to relief, that requires the Court to grant a hearing thereon. It is a simple, but very important, and fundamental matter of due process.Conversely, subsection (b) of this rule permits the Court to deny a hearing only "if the petitioner's claim is patently frivolous and without a trace of support either in the record or from other evidence submitted by the petitioner".It should be noted that Judge Wolfe cited these dictates in his 0pinion, but very obviously failed to follow them. This is simply one more example of the twisted, blatant arrogance of this court. It ahould also be noted that nowhere does the court even address the very serious assertion of the withholding of exculpatory evidence - evidence withheld from me by both the District Attorney and amy own attorneys - Massa and Aranyos. Neither the district attorney nor my attorneys were ever required to even answer to this charge. It may also be noted that the Court's Order denying my petition - after a "careful review" of course - is dated November 10, 1988, the same date of the "hearing", which was held at 1:30 p.m. Concerning the nature of Mr. Zdarko's supposed injuries, the essential facts are that both the Criminal Complaint, and the District Attorney's Information charge that I did "... cause serious bodily injury to Joseph Zdarko." The only evidence concerning Mr. Zdarko's "injuries" is my Supporting Exhibit attached to my PCHA Petition, which consists of Mr. Garwood S. Boyer's recanting statement", and which indicates that such injuries were in fact extremely minor. The lack of any further evidence, ie., any medical and/or hospital reports concerning Mr. Zdarko's injuries, is of course the result of what is merely the first of McKeirnan's absolute failures in these matters, despite my specific request that these records be obtained. Nevertheless, this statement certainly constitutes a "trace of support". And of course the Commonwealth was free to submit evidence indicating Mr. Zdarko's injuries did indeed constitute "serious boduily injury". The relevent questions to be addressed at a (real) hearing are, precisely, what were the nature of Mr. Zdarko's injuries? And, if they were in fact minor - whether the District Attorney was aware of the false nature of these charges, and if so, whether he advised "attorney" Massa of that fact. And, if he was aware of such, and if he did advise "attorney" Massa, when, in what manner, and why wasn't it done properly - by means of formal discovery? And of course, similiar questions for "attorney" Massa. Of course, that could all get kinda messy. Better just to call it frivolous.At any rate, it is certainly clear that this was not a determination based on the "facts" of this case, that is, the truth as to the actual nature of Mr. Zdarko's injuries. Or whether or not this information was in fact withheld from me. What the record does show, however, is that it was not disclosed through normal discovery procedures. And you can bet that no one told me this charge was false, unless you think I'm stupid enough to plead guilty to charges I was told (by counsel AND the Court) could result in 11 to 22 years in prison, 10 to 20 years of which were based on charges resulting from a warrantless search of my residence (based on this false charge), and without the benefit of a suppression hearing - in exchange for the nolle pros of a false charge.What the Court is stating of course, is that it is perfectly all right for a guilty plea to be obtained in this way. And, indeed, that it is frivolous (utterly ridiculous) to even assert such a claim! I believe it is clear the reason no hearing was granted was not that these issues are frivolous, but rather just the opposite, that they are of an extremely serious nature. The court also makes much of the fact that I had no complaints regarding counsel's actions, while ignoring the obvious fact that I was not aware of any of any these essential facts at the time of my plea, most notably the true nature of Mr. Zdarko's injuries. Furthermore, in addition to the witholding of the true nature of Mr. Zdarko's "injuries", and counsel's failure to file a suppression motion regarding the search of my residence (both of which were unknown to me at the time), my claims of ineffective counsel involve attorney Massa's failure to ensure that the guilty plea colloquy itself was complete and correct. And his further, subsequent, failure to advise me of that fact, and of the fact that I had both grounds, and the right, to file motion to withdraw guilty plea. Obviously, none of which could I possibly have been aware of at the time of making this statement. It is also indicative, in fact it is incredible, that nowhere does the court even address the specific and numerous violations of Pa. R. Crim. Proc. 319 as alleged in my petition. This rule requires that a plea be knowingly, voluntarily, and intelligently entered. It also sets forth the minimum matters of which a defendant must be advised - jury rights - elements of offense - permissible range of sentence - appellate rights, etc., in order to constitute a knowing, voluntary plea. It is apparent that rather than address these matter, the Court chose instead to rely upon self-serving, and irrelevent rhetorical nonsense. The fact is that the court failed to comply with every single one of these minimum requirements. One of these requirements which may be most easily demonstrated by the record (and without reference to case law) is the requirement that the defendant be (properly, of course) informed of the permissable range of sentences for the offenses charged. The record shows that I was informed by the court that I could be sentenced to a term of imprisonment on the charge of reckless endangerment of one to two years. In fact, I was sentenced to twice that amount. And even upon resentence, I received a minimum sentence of two years, which was twice the legal minimum, and was therefor of course an illegal sentence. Furthermore, this sentence contained a term based upon the deadly weapon enhancement - an enhancement declared unconstitutional by the Pennsylvania Supreme Court. The fact that I received a 2 year minimum sentence on the charge of reckless endangerment also constitutes a violation Rule 319 - paragraph (b). I was further advised by the Court that I could receive a sentence of five to ten years on each of the charges of possesion with intent to deliver, and the manufacture of marijuana. These charges in fact carry a maximum sentence of 2 1/2 to 5 years imprisonment. It may not seem prejudicial that I received less than what I thought, what I was told I could get. The fact is though, it was precisely because of this (10 -20 year) sentnece that I felt I could not take even a chance of being convicted of a crime that carried a mandatory sentence of 5 to 10 years. A crime I was charged with, and a crime my own attorney told me I was guilty of. That is, that Jospeh Zdarko had indeed suffered "serious bodily injury". To any reasonable, objective mind, the fact that I pled guilty to two charges to which I believed, and was told would get me 20 years - in exchange for dismissal of another charge would indicate I was quite convinced that charge was valid. This colloquy was further defective for the Court's failure to properly advise me regarding my rights to a jury trial, and the attendant rights of the presumption of innocence, and the requirement of unanamous verdict. Although this rule mentions the right to jury trial, and the presumption of innocnce separately, and does not mention the requirement of unanimous verdict, case law basically consolidates these matters as necessary elements of a valid waiver of a defendant's right to a trial by jury. That is, a defendant must be advised not only that he has a right to a trial by jury, but also of the attendant elements of that right - the presumption of innocence and the requirement of unanimous verdict - in order to constitute a valid waiver of the right to jury trial. While the record shows that the Court advised me of my right to a jury trial, it failed to advise of either the presumption of innocence or the requirement of a unanimous verdict, and thus failed to meet the requirements of this rule, resulting in an invalid waiver of this right, and the entry of an invalid guilty plea. Of course the most disingenuous of the court's actions is in simply ignoring the fact that I had even raised the issue of illegal sentence in my PCHA petition - and then stating in it's Opinion (as though it were a matter of procedural history), that the sentence had been amended to two to four years.At that time, I believed the matter of this sentence had been resolved. However,as I advised attorney McKeirnan in my letter of December 4, 1988, the DOC records office would not accept this Opinion, and required specific confirmation directly from Judge Wolfe. This letter was simply ignored by "attorney" McKeirnan.Here is some of the bullshit I put up with from the D.o.C. during this particular period regarding the matter of this sentence. This was of course a particularly dispicable (and inexplicable) failure on the part of McKeirnan for the fact that my sentence as stated in the Judge's Opinion would move my minimum sentence to less than six weeks away from the date of my letter to him. And my girlfriend was dying. My own response to this situation was delayed by both my believing that McKeirnan was taking care of this matter ( as advised by my mother), and once I realized he hadn't, my own uncertainty as to how to proceed in such a bizarre situation. I subsequently filed my Motion for Clarification of Sentence January 30, 1989. This petition, which quite clearly stated the situation, was simply, and flatly denied by Judge Robert L. Wolfe.I then filed a Petition for Writ of Habeas Corpus concerning this matter of Sentence and the court's Opinion, which stated the matter even more explicitly. This petition was simply ignored by the Court. It appears the basis for the (lower) court's failure to adjudicate the instant petition was the fact of McKeirnan's re-appointment, (a ludicrous and futile act in itself) which obstensibly, apparently, had the effect ( according to Deputy Clerk Kosinski) of removing my legal standing to file motions, etc. Also, presumably, by the purported return of the record to Superior Court on July 7, 1989. The court's actions regarding these last two petitions are of course the strongest indication of the court's true intent in these matters, namely, that I serve as much time as possible - regardless of the illegality of this sentence. Another interesting question that arises from these proceedings is that if Mr. McKeirnan was re-appointed on June 1, 1989, why was I not notified of that appointment until July 7, 1989, and only after my filing of this (habeas corpus) petition. And why was the record not returned to Superior Court immediately upon Mr. McKeirnan's (re) appointment (June 1, 1989). Although the lower court docket indicates the record was returned July 7, 1989, the Superior Court docket indicates the record, which was DUE June 22, 1989, was not RECEIVED until August 23, 1989. The net effect of the court's actions, and "attorneys" Massa and McKeirnan's "representaion", was not only to deny me the assistance of counsel, but of access to the Courts as well. And just about every other fundamental constitutional right you can possibly think of.Of course this entire incident (McKeirnan's reappointment) was nothing but a shell game involving the record in the first place. The net result of which was to delay the disposition of this matter, and enable this asshole to do it all over again. WHICH HE DID!
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