P.C.H.A. PETITION Sept 1, 1988
PETITION UNDER POST CONVICTION HEARING ACT

COMMONWEALTH OF PENNSYLVANIA COURT AND DOCKET NUMBERS
VS.

GARY D. LAUFFENBERGER
(Name of Petitioner) To be filled in by Clerk of Court

NOTE: List below those informations or indictments & offenses for which you have not completed your sentence.

INFORMATION OR INDICTMENT NUMBERS:
NN No. 240 of 1986
NN No. 267 of 1986

I WAS CHARGED WITH THE FOLLLOWING CRIMES:
NN Aggravated Assault
NN Reckless Endangerment
NN Possession with intent to deliver marijuana
NN Manufacture of marijuana

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1. MY NAME IS:
NN GARY D. LAUFFENBERGER

2. I AM NOW
NN Confined in SCI at Cresson, Pa.

3. I WAS SENTENCED ON January 16, 1987 to a total term of
NN 3 to 6 years, COMMENCING ON NJanuary 16, 1987
NN following
NN a Plea of guilty.

4. I AM ELIGIBLE FOR RELIEF BECAUSE OF:

X The introduction of evidence obtained by an unconstitutional search and seizure.
X The denial of my constitutional right to representation by a competent lawyer.
X A plea of guilty unlawfully induced.
X The unconstitutional suppression of evidence by the state.
X The unconstitutional use by the state of perjured testimony.
X The abridgement of a right guaranteed by the constitution or laws of this state or the constitution or laws of the United States, including a right that was not recognized as existing at the time of the constitution requires retrospective application of that right.
X The unavailability at the time of trial of exculpatory evidence that has subsequently become available and that would have affected the outcome of the trial if it had been introduced.

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5. THE FACTS IN SUPPORT OF THE ALLEGED ERROR(S) UPON WHICH THIS PETITION IS BASED ARE AS FOLLOWS: (State facts clearly and fully; argument, citations,or discussions of authorities shall not be included.)

(A) I know the following facts to be true of my own personal knowledge:

1. That police entered my home on the night of my arrest when no one was home and without an arrest or search warrant. (No. 267)
2. That upon obtaining search warrant, police failed to serve upon me, or to leave complete copy of warrant at the premises. (No. 267)
3. That police destroyed and confiscated property having no connection with criminal activity. (No. 267)
4. That Counsel mislead me concerning the nature and extent of victim's injuries and medical treatment. (No. 240)
5. That Counsel did not inform me of victim's/witnesses character, criminal history, Jail status. (No. 240)
6. That Counsel failed to interview witnesses; meet, prepare defense. (No. 240 & 267)
7. That Counsel failed to investigate my report of perjury by witnesses. (No. 240)
8. That Counsel refused to make timely motions for suppression of evidence and withdrawal of plea. (No. 240 & 267)
9. That Counsel used unfair conduct leading to a guilty plea by active inducement. (No. 240 & 267)
10. That Counsel refused to appeal illegal sentence. (No. 240)
11. Prosecution witness made statement at my preliminary hearing in presence of arresting officer, James Lichtenberg in contradiction to previous sworn statement to said officer. (No. 240)
12. That I was sentenced on a charge of reckless endangerment/with deadly weapons enhancement to a term of two (2) years minimum to two (2) years maximum.
13. That I was charged with 2702,A-1, (causing serious bodily injury). (No. 240)
14. That I was not represented by counsel at Preliminary Hearing and that I did not voluntarily waive my right to counsel. (No. 240)
15. That I was not advised of my right against self-incrimination at the Plea Hearing. (No. 240 & 267)

16. That I was advised by Counsel that merely pointing unloaded rifle was sufficient to prove reckless endangerment. (No. 240)

17. That I was led to believe by the Commonwealth, and accepted by Counsel, that the amount of marijuana seized was 12-15 lbs. (No. 267)
18. That I was told by Counsel and the Court that possession with intent to deliver and Manufacture of Marijuana were Felony-2's carrying 5-10 year sentence. (No. 267)
19. That the Commonwealth made numerous false statements concerning my prior record and circumstances of charges I was being sentenced for. (No. 240 & 267)
20. That I was informed by the Court that I could receive 5 to 10 year sentences on charges of possession with intent to deliver,and manufacture of marijuana (10-20 years consecutive). (No. 267)

21. That I was sentenced in the aggravated range and no reasons were stated for sentences imposed.

(B) The following facts were made known to me by means other than my own personal knowledge (Explain how and by whom you are informed):

In separate conversations with Donald Fowler and Garwood Boyer that Joe Zdarko and other members of his party were grossly intoxicated on alcohol and marijuana.

(C) In the event my appeal is allowed as requested under #4, the following are the matters which I intend to assert on that appeal (Specify the matters to be asserted if appeal is allowed).
1. That guilty plea was induced by illegal search and seizure. (No. 240)
2. That I suffered extreme prejudice due to lack of counsel at preliminary hearing.
3. That Counsel was ineffective in failing to file motion for suppression of evidence obtained in warrantless search. (No. 267)
4. That Counsel was ineffective in failing to file timely motion for withdrawal of guilty plea. (No. 240 & 267)
5. That Counsel was ineffective in preparation of defense as stated in 5-A, Nos. 4,5,6,7,8,9,10. (No. 240 & 267)
6. That guilty plea was unlawfully induced by unfair conduct of counsel. (No. 240 & 267)
7. That I was denied my rights of due process and equal protection. (No. 240 & 267)
8. That sentence of 2 yrs. minimum and 2 yrs. maximum is illegal. (No. 240)
9. That my guilty plea was not knowingly and voluntarily entered. (No. 240 & 267)
10. That colloquy was defective for failure to sufficiently explain nature of the charges and elements of the offenses, also the maximum range of sentences permitted for crimes charged. (No. 240 & 267)
11. That sentences were excessive. (No. 240 & 267)

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6. SUPPORTING EXHIBITS.

(A) In support of this petition I have attached as exhibits:

NNN X Other Supporting Evidence [ Exhibits No. 1)

(B) I have not attached any affadavits, records or other supporting evidence because:

All other matters raised herein, are believed to be matters of the record, and as such, are readily available to the Court.

7. I HAVE TAKEN THE FOLLOWING ACTION(S) TO SECURE RELIEF FROM MY CONVICTIONS OR SENTENCE(S):

(A) Direct appeal
NNN X No.

(B) Previous proceedings in the courts of the Commonwealth of Pennsylvania.

NNN X Yes. (If "YES," name the type of proceedings (such as habeas corpus, etc.) including former proceedings under the Post Conviction Hearing Act the Court(s) in which petition(s) was/were filed, date, term and number, and result, including all appeals.)

January 26, 1987, Reconsideration of Sentence No. 240 of 1986. Reduced from 2 to 4 years to 2 to 2 years.

(C). Habeas Corpus or other petitions in Federal Courts.
NNNN X No.

(D). Other legal proceedings.
NNNN X No.

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8. FOLLOWING MY ARREST, I WAS REPRESENTED BY THE FOLLOWING LAWYER(S): (Give the lawyer's name and the proceeding at which he represented you.)

N Public Defender John Aranyos- Preliminary Hearing No. 267
N Joseph Massa- Plea Court and Sentencing (No. 240 & 267)

9. THE ISSUES WHICH I HAVE RAISED IN THIS PETITION HAVE NOT BEEN FINALLY LITIGATED OR WAIVED BECAUSE: (State facts.)

There is no other Court of competent jurisdiction to rule on the issues herein raised. No issue raised in Post Conviction shall be considered finally litigated until ruled upon by the Supreme Court. This is the first time a petition pursuant to 42 Pa. C.S.9541,et seq, The Pennsylvania Post-Conviction Hearing Act, has been filed. There is no other Court of competent jurisdiction to appoint counsel. Your petitioner has raised the allegation of Constitutionally defective counsel. There are allegations of the abridgement of the Due Process Clause and the Equal Protection Clause of Amendment Fourteen, and there is no other Court of competent jurisdiction to hear, or rule on this issue. There is no other Court of competent jurisdiction to grant the relief herein sought.

10. BECAUSE OF THE FOREGOING REASONS, THE RELIEF WHICH I DESIRE IS:

(A) X Release from custody and discharge
 (B) X A new trial
 (C) X Correction of sentence
 (D) X Other relief (specify): That the present judgement of sentence be vacated, and that the Court schedule an evidenciary hearing.

11. (A) I am X NOT ABLE to pay the costs of this proceeding.

NNNNNNN I have $10.00 in my prison account.

NNN (B) My other financial resources are: none

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12. (A) X I do not have a lawyer and I am without financial resources or otherwise unable to obtain a lawyer.

1. I request the court to appoint a lawyer to represent me.

NN
_________________________ (signed)
(Signature of Petitioner)

NN

AFFIDAVIT

COMMONWEALTH OF PENNSYLVANIA

COUNTY OF WARREN

Personally appeared before me a notary public in and for said County and Commonwealth

GARY D. LAUFFENBERGER
(Name of Petitioner)

who, being duly sworn [or affirmed] according to law, deposes and says:

That he is the petitioner herein and the facts as set forth in this petition are true and correct to the best of his knowledge, information and belief.

NN
_________________________ (signed)
(Signature of Petitioner)

NN

Sworn to and subscribed before me this
1 day of September 1988

__________________________________ (signed)
NNNNNNNN Dorothy R. Daniel
NNNNNNNNNNNNotary Public

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N
COMMONWEALTH OF PENNSYLVANIA IN THE CRIMINAL COURTS OF THE COUNTY OF
VS WARREN
GARY D. LAUFFENBERGER Criminal
Action No. 240 and 267 of 1986

ORDER

AND NOW THIS 14 day of September, 1988 Upon consideration of the foregoing petition:

1. X Petition is returned to petitioner for amendment as follows, such amendment to be made on or before

2. X A rule is granted upon the Commonwealth of Pennylvania to show cause why a hearing should not be granted. The rule is returnable on or before November 10, 1988    (1:30 P.M.)

3. X The request to proceed as a poor person, without payment of costs, is X granted.

4. X Upon finding that petitioner is unable to obtain a lawyer Ross McKeirnan, Esq. is appointed to represent him.

5. X The Clerk of this Court is ordered and directed to do the following forthwith:

(a) To serve a copy of this petition and this order upon the District Attorney of Warren County

(b) To send a copy of this petition and this order to Ross McKeirnan, Esq, the lawyer for the petitioner.

(c) To send a copy of this order to the petitioner.

6. X The Court Reporter is authorized and directed to transcribe the notes of all court proceedings at county cost and file same with the Prothonotary and deliver a copy thereof to defense counsel.

Case is listed for argument only on the petition.

Robert L Wolfe

Bonnie: 176 days to live

OPINION Nov 10, 1988
IN THE COURT OF COMMON PLEAS
OF THE 37TH JUDICIAL DISTRICT OF PENNSYLVANIA
WARREN COUNTY BRANCH
CRIMINAL

COMMONWEALTH OF PENNSYLVANIA:
: No. 240 of 1986
VS.: No. 267 of 1986
:
GARY D. LAUFFENBERGER:

OPINION

Defendant was charged at No. 240 of 1986 with one count of aggravated assault and one count of reckless endangerment. Defendant was charged at No. 267 of 1986 with one count of possession with intent to deliver a controlled substance and one count of engaging in the manufacture of marijuana.

Defendant was arraigned on December 18, 1986, on these charges, and through plea negotiations Defendant entered a plea of guilty to Count 2 at information No. 240 of 1986 and entered a plea of guilty to the two counts at information No. 267 of 1986. The Court accepted the plea negotiations and Defendant's respective pleas after an extensive colloquy to Defendant concerning his constitutional rights.

Defendant was sentenced on January 16, 1987, and that sentence was amended on February 17, 1987, to conform to the charges and the law, and Defendant was sentenced to a total confinement for a minimum period of 24 months to a maximum period of 48 months and pay a fine of $500.00.

In Defendant's post-conviction hearing petition for relief he charges that he was not represented by competent counsel, his plea of guilty was unlawfully induced, certain evidence obtained against him should have been suppressed, the unconstitutional use by the Commonwealth of perjured testimony, the abridgment of a right guaranteed by the Constitution of the Commonwealth and the United States, and finally, exculpatory evidence subsequent to sentence.

We have carefully reviewed all of the Defendant's specific allegations to support his petition for relief, and after reviewing the record find no merit to any of the reasons for relief advanced. Under Section 9549 of the Post-Conviction Hearing Act, the Court is required to grant a hearing if a petition alleges facts that, if proven, would entitle the petitioner to relief. Subsection (b) permits the Court to deny an evidentiary hearing if the petitioner's claim is patently frivolous and without a trace of support either in the record or from any other evidence submitted by the petitioner.

Our review of the record prepared in this case leaves no doubt Defendant knowingly and voluntarily entered into a plea negotiation after a jury was selected for trial. Defendant outlined to the Court his conduct that brought the charges upon him, had no objection to the course of conduct his counsel took in his defense, and was of the opinion his counsel was competent and effective criminal trial counsel. All of the arguments advanced in the post-conviction hearing petition were clearly known to counsel at time of the defendant's plea colloquy. It is apparent

Defendant has now, subsequent to sentence, retraced his conduct and is attempting now to overreach his counsel, despite the fact at time of entering the plea he advised the court he had fully disclosed his conduct to counsel and did not want to proceed with a jury trial.

Nor do we find the sentence excessive in that Defendant has an extreme prior criminal record, and the sentence was well within the sentencing guidelines.

For these reasons we enter the following Order:

ORD ORDER
IN THE COURT OF COMMON PLEAS
OF THE 37TH JUDICIAL DISTRICT OF PENNSYLVANIA
WARREN COUNTY BRANCH
CRIMINAL

COMMONWEALTH OF PENNSYLVANIA:
: No. 240 of 1986
VS.: No. 267 of 1986
:
GARY D. LAUFFENBERGER:

ORDER

AND NOW, to-wit, this 10th day of November, 1988, the Defendant's petition for relief under the post-Conviction Hearing Act is dismissed.

BY THE COURT,

_____________________

Robert L. Wolfe, P.J.

Bonnie: 105 days to live


 

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