These documents, and the question of just exactly what sentence was imposed, represent an area of MAJOR contention throughout this case. The very simple fact is that this sentence is blatantly illegal.

As simple as this matter is (in reality) - the question of the sentence that I actually received becomes a journey into the world of Alice in Wonderland (courtesy of the entire Commonwealth of Pennsylvania). In fact, this is even more bizarre. In fact it is so bizarre as to practically defy explanation. So, before we even start, I want to emphasize that 42 Pa. C.S.A. § 9756 is absolutely dispositive of this entire matter. That is it - none of anything that follows here is even necessary.

As you will see, precisely what is at issue here is the application of the deadly weapon enhancement - in this case, where the maximum sentence had already been imposed upon the underlying charge. That is, a sentence of 1 to 2 years, which are in fact, the statutory limits for a misdemeanor of the second degree.

The fact is, that such enhcancement can not be imposed in a case where the underlying sentence equals the statutory limit for the underlying charges - as the combined terms of the sentence cannot exceed the statutory limits for said charge.

You will also see that there are, ultimately, two entirely different realities to be dealt with concerning this sentence. One of those realities is the sentence that Judge Wolfe intended to impose. The other is the sentence that was actually imposed by law.

As stated above, this sentence is a matter of major contention throughout this entire case, and is referenced numerous times in the remaining sections. Anyone interested in obtaining a full comprehension of the facts and the law concerning this sentence will find it both convenient and helpful to download this text file containing the primary documents relevant to this sentence to be printed out for reference.

It is interesting to look just below the surface here. For one thing, the record does not indicate that this document (Reconsideration) was ever even filed. Furthermore, the Court issued an Order on January 26, 1987, scheduling argument court on the Commonwealth's Motion for resentence - for February 17, 1987. Obviously, such a proceeding would present an opportunity to "argue" the existence, as well as the effect of 42 Pa. C.S. 9756 AND 9757. Ahh, but there is no argument court of record - so that solves that. They can all simply pretend that it doesn't exist.

This (universally) erroneous interpretation is most clearly expressed in the District Attorney's Memorandum - by his specific request to the court "to resentence Defendant to an effective period of 24 months minimum to 24 months maximum" . . . "with the Deadly Weapon Enhancement applied". He then cites § (303.1 (1) of the Sentencing Guidlines as a basis for that request.

Thus, the specific flaws in the District Attorney's interpretation lie not only in his misunderstanding what this (303.1 (1) section as well as McKeithan actually say, but in completely ignoring the mandate of the underlying (primary) authority, cited within this section, namely 42 Pa. C.S.A. § 9756

In other words, his interpretation recognizes the mandate of this section with regards to the maximum sentence, but totally ignores that the minimum sentence is also statutorily defined - as indicated in his own citations - as not to exceed one-half of the maximum. This is particularly inexplicable in that the guidelines concern only the minimum sentence.

This is true, because the sentence on the charge of reckless endangerment (with the addition of the deadly weapon enhancment) was reduced " pursuant to § 303.1(i) , 204 Pa. Code of the Guidelines and in keeping with COMMONWEALTH vs. McKEITHAN , ___ Pa. Super. ____ , 504 A.2d 294 (1986).

The important point to note is that this sentence was reduced "pursuant to" and "in keeping with" these authorities - NOT "pursuant to" and "in keeping with" the District Attorney's, nor Judge Wolfe's interpretation of these authorities. As such, the actual effect of this sentence was to reduce the sentence to 1 to 2 years on the charge of reckless endangerment, including the deadly weapon enhancement, and a TOTAL sentence (including possession with intent to deliver) of 2 to 4 years.

It should particularly be noted in the context of the intended vs the actual sentence imposed that this (Amended) Sentence was illegal by the Court's violation of 9757 in failing to state the TOTAL MINIMUM SENTENCE as required by this statute. Adherence with this rule would have, at least, clarified exactly what the terms of this sentence were.

The simple fact is, if applied as intended, and as directed by law, the deadly weapon enhancement would not and could not have increased my sentence, as I had already received the statutory maximum sentence for the charge of reckless endangerment of 1 to 2 years.

Everyone else (Judge Wolfe, District Attorneys Hernan, Trypupenko, and Heilman, the Pennsylvania Department of Corrections, the Pennsylvania Board of Probation & Parole, and especially the Superior Court of Pennsylvania), seems to have had a very hard time with this issue. Again, a simple reading of the relevant law - 42 Pa. C.S.A. § 9756 and § 9757  says it all.

204 Pa. Code § 303.1(i), (Sentencing Guidelines), and COMMONWEALTH vs. McKEITHAN, ___ Pa. Super. ____ , 504 A.2d 294 (1986) both of which are cited, and in fact, exclusively relied upon by both the District Attorney and the Court, also indicate unequivocally the illegality of this sentence.

In his Memorandum, assistant District Attorney Trypupenko has managed (quite incredibly) to totally misinterpret both of the above authorities, and reaches a conclusion that not only ignores, but in fact contradicts the very clear mandate of his own citations!

The statutory limits for a misdemeanor II are:
MAXIMUM sentence - two years, as set forth in 18 Pa. C.S. §1104 (2)).

MINIMUM sentence - one year (ONE-HALF OF TWO), as required under both 42 Pa. C.S.A. §9756 and §9757. It is as simple as that.

The District Attorney's ludicrous interpretation of these authorities, is of course the original source of this illegal sentence, enabled by "defense" counsel's inexplicable failure to challenge such interpretation, and the sentencing court's, acceptance of this absurd interpretation, and the court's failure to obey the clear requirements of § 9756 and § 9757, and counsel's acceptance of the court's numerous violations of these sentencing procedures - are the specific source of this patently illegal sentence, and the primary basis of all the "confusion" surrounding this issue throught this entire case.

Even beyond, and totally aside from these clear mandates, the simple fundamental fact is that the guidelines never had, or even purported to have, the statutory authority for imposition of a sentence beyond these statutory limits. They were created by a Commission, itself established by the legislature via the enabling legislation for the purpose of adopting guidelines "for sentencing within the limits established by law." Judge Brosky makes this matter fairly clear in his dissent in GREGORY, below.

Furthermore, this sentence is also illegal by reason that the Sentencing Guidelines were declared unconstitutional by the Supreme Court of Pennsylvania in Commonwealth V. Sessoms, 516 Pa. 365, 532 A.2d 775 (1987), cited here in COM v. GREGORY.

See also Judge Browky's dissent in Gregory, supra, regarding the authority of the guidelines. The basis of his dissent is his contention that the issue was waived as it was not specifically challenged, and furthermore that the sentence, even though it clearly included an additional term of confinement based on the "unconstitunal", and "now nullified" guidelines, was nevertheless within the statutorily defined limits (unlike mine), and was therefore not illegal. Of course that is absolutely ridiculous, but even the reasoning of this absurd dissent would agree that a sentence that exceeds the statutory limits is illegal.

Without further comment as to his logic, it does not apply to my case, which DID exceed the statutory limits, and was therefore illegal, and of course therefore not waivable.

In addition to his failures, and even more telling, "attorney" Massa did in fact advise me after resentencing that he believed the sentence was still illegal and that he would appeal. That was the last I ever heard from him. Not only did he not appeal, thereby depriving me of my right of appeal, he failed to even advise me that he had not appealed, thereby delaying my own efforts to resolve the illegality of this sentence. Nor did he even respond to my inquiring letter .

When I eventually had my family contact his office they were advised by Mr. Massa's assistant, Roger Thelin, that they were really sorry, but they had "missed" the deadline for the filing of an appeal. As they "forgot" to notify me of that fact. As they obviously "forgot" to respond to my inquiry.

When this information was related to me, I told my family to advise Mr. Massa's office that there is no deadline for appeal of an illegal sentence, and that I desired for them to file an appeal immediately.

When so advised, Mr. Thelin stated that they would look into it and get back to us. He never did, and when contacted again he advised my family that I was correct (As if they didn't know that!) and that they would file an appeal immediately. No appeal was ever filed. Nor was I ever notified of that fact.

Indeed, at no time after sentencing was I ever contacted by either attorney Massa, Aranyos, or McKeirnan. Not one single time by any one of them.

As demonstrated in both the PCHA, and Appeal sections, attorney Ross W. McKeirnan's actions in this matter were even more (if possible) despicable. The clear facts of record indicate an absolute and INTENTIONAL abridgement of my 6th Amendment right to the effective assistance of counsel, for starters.

The crowning triumph in this entire judicial travesty however, is the Superior Court's preposterous assertions regarding the sentence imposed.

But that is several years (and a LOT of bullshit) down the road.

A

SENTENCE

Jan 15, 1987

IN THE COURT OF COMMON PLEAS OF THE 37th JUDICIAL DISTRICT OF PENNSYLVANIA WARREN COUNTY BRANCH CRIMINAL NNNNN CONMONWEALTH OF PENNSYLVANIA : No. 240 of 1986 : Chg: Reckless endangerment VS : No. 267 of 1986 : Chg: Poss. with intent to : deliver GARY D. LAUFFENBERGER : Manufactiture of marijuana : Plea: Guilty SENTENCE      AND NOW, to-wit, this 16th day of January, 1987, Defendant is sentenced to pay the costs of prosecution on all charges. On the charge of reckless endangerment Defendant is sentenced in the aggravated range of the sentencing guidelines to stand committed to Western Diagnostic and Classification Center at Pittsburgh for a minimum period of 12 months to a maximum period of 24 months, and the deadly weapon enhancement period is imposed and as imposed Defendant shall stand committed for a minimum period of 24 months to a maximum period of 48 months and shall pay a fine of $500.00. On the charge of possession with intent to deliver Defendant shall stand committed to said institution for a minimum period of 12 months to a maximum period of 24 months, sentence imposed in the aggravated range. Sentences to run consecutive and not concurrent. Defendant is further ordered to pay an amount of $15.00 under the Victims' Compensation Act and to make restitution to the victim. Credit to be given on the within sentence from January 16, 1987, the date of commitment, and the Clerk of Courts is directed to calculate the days spent in custody by the Defendant for such offenses prior to the imposition of sentence. The Defendant shall comply with any special conditions of probation or parole imposed by the supervision staff of the Board of Probation and Parole. The pre-sentence report to the Court is made part of the record. STAND COMMITTED. BY THE COURT _______________________(signed) Robert L. Wolfe, P.J.

B

MOTION FOR RECONSIDERATION

Undated

IN THE COURT OF COMMON PLEAS OF THE 37th JUDICIAL DISTRLCT OF PENNSYLVANIA WARREN COUNTY BRANCH CRIMINAL COMMONWEALTH OF PENNSYLVANIA : No. 240 of 1986 VS : GARY D. LAUFFENBERGER : MOTION FOR RECONSIDERATION OF SENTENCE TO THE HONORABLE JUDGE, ROBERT L. WOLFE: The Petition of Gary D. Lauffenberger by his Attorney, Joseph A. Massa, Jr., Public Defender of Warren County respectfully presents that: 1. Gary D. Lauffenberger is the Defendant in the above captioned case. He was charged with the criminal offenses of Aggravated Assault and Reckless Endangerment. 2. Through plea negotiations, on December 18, 1986, the Defendant plead guilty to Reckless Endangerment, a Misdemeanor of the second degree. 3. The statutory maximum imprisonment for a misdemeanor of the second degree is two (2) years. (See 18 Pa. C.S. 1104 (2)). 4. On January 16, 1987, the Court imposed a sentence for the Reckless Endangerment charge of a minimum period of incarceration of twenty-four (24) months to a maximum period of forty-eight (48) months. 5. The above sentence exceeds the statutory maximum sentence for a misdemeanor of the second degree. WHEREFORE, because the sentence imposed exceeds the maximum permissible sentence allowed by statute, Gary D. Lauffenberger, through his Attorney, Joseph A. Massa Jr., respectfully prays the Honorable Court modify the above sentence to a sentence within the maximum permissible sentence allowed by statute. Respectfully submitted, ______________________(signed) Joseph A. Massa, Jr., Esquire Public Defender of Warren County

C

DA's MEMORANDUM

Jan 26, 1987

Office of the District Attorney WARREN COUNTY COURT HOUSE WARREN, PENNSYLVANIA PHONE 814 723-7550 January 26, 1987 NNNNN RICHARD A. HERNAN, JR. District Attorney The Honorable Robert L. Wolfe Judge's Chambers Warren County Court House Warren, PA 16365 RE: COM V GARY D. LAUFFENBERGER: Reconsideration of Sentence No. 240 of 1986 Dear Judge Wolfe: This memorandum is an addition to the Defendant's Motion For Reconsideration of Sentence which was submitted by the Office of the Public' Defender. In addition to the charge of Reckless Endangerment, the Defendant was also sentenced on January 16, 1987, on the charges of Possession of Marijuana with Intent to Deliver, a Felony, and Manufacture of Marijuana, also a Felony, at No. 267 of 1986. A charge of Aggravated Assault at No. 240 of 1986 was nolle prossed through plea negotiations. The Defendant was sentenced on January 16, 1987, on the above three charges. The Court properly applied the Deadly Weapons Enhancement pursuant to 303.4 of the Sentencing Guidelines to the Reckless Endangerment charge. There was question during the Sentencing Proceeding whether on a Reckless Endangerment charge, which is a Misdemeanor of the Second Degree, a Sentence exceeding the two-year statutory limit could be imposed because of the Deadly Weapons Enhancement. By written Sentence entered on the 16th day of January, 1987, the Court sentenced the Defendant in the Aggravated Range of the Sentencing Guidelines to stand committed to Western Diagnostic and Classification Center at Pittsburgh for 12 to 24 months and then imposed a Deadly Weapons Enhancement thereby increasing the Defendant's sentence on Reckless Endangerment to 24 to 48 months. The Commonwealth requests the Court to resentence Defendant to an effective period of 24 months minimum to 24 months maximum in the standard guideline range with the Deadly Weapon Enhancement applied for the following reasons: A. The Standard guideline Range for a misdemeanor of the Second Degree with a prior record score of 2 is 0-12 months. Therefore, the Court could properly sentence the Defendant within the standard guideline range to 12 months imprisonment and apply a 12 month Deadly Weapons Enhancement for a total of 24 months. B. Even though the Defendant's enhanced sentence on the maximum range would be 48 months, the sentence should be reduced to a maximum of 24 months . Section 303.1 (i), 204 Pa. Code, of the Guidelines states that: (i.) When the guideline sentence exceeds that permitted by 18 Pa. C.S. §1103 and 1104 (relating to sentence of imprisonment for felonies and misdemeanors) and 42 Pa. C.S. §9755 (b) and 9756 (b)(relating to sentence of partial and total confinement) or other applicable statute setting maximum term of confinement, then the statutory limit is the guideline sentence. Thus, any confinement time that exceeds the statutory maximum because of the application of the guidelines is cut off to conform to the statutory maximum. A defendant subject to a Deadly Weapons Enhancement is in a position not significantly distinguishable from other convicted defendants during the sentencing phase. Com. V. McKeithan, 504 A.2d 294 (Pa. Super. 1986). Therefore, the Commonwealth would respectfully request that your Honorable Court resentence the Defendant or amend his sentence regarding the Reckless Endangerment charge to a sentence of 12 months in the Standard Range to 24 months and apply the Deadly Weapons Enhancement of 12 months to 24 months, but reduce the maximum sentence to 24 months pursuant to Section 303.1 (i) 204 Pa. Code and Com. v. McKeithan, 504 A.2d 294 (Pa. Super. 1986). Sincerely, Juri Trypupenko Assistant District Attorney JT/pwp cc: Public Defender

D

AMENDED SENTENCE

Feb 17, 1987

IN THE COURT OF COMMON PLEAS OF THE 37th JUDICIAL DISTRLCT OF PENNSYLVANIA WARREN COUNTY BRANCH CRIMINAL NNNNN CONMONWEALTH OF PENNSYLVANIA : No. 240 of 1986 : Chg: Reckless endangerment VS : No. 267 of 1986 : Chg: Poss. with intent to : deliver GARY D. LAUFFENBERGER : Manufactiture of marijuana : Plea: Guilty AMENDED SENTENCE      AND NOW, to-wit, this 17th day of February, 1987, after argument on the Commonwealth's motion for resentence of the Defendant for the reason the sentence imposed of January 16, 1987, exceeds the maximum statutory sentence permissible in that Defendant was sentenced to total confinement for a minimum period of 24 months to a maximum period of 48 months and pay a fine of $500.00 on the charge of reckless endangerment applying the deadly weapon enhancement period, it is THEREFORE ORDERED that the sentence of January 16, 1987, is partially amended and as amended on the charge of reckless endangerment Defendant shall stand committed to the Western Diagnostic and Classification Center at Pittsburgh for a minimum period of twelve (12) months in the standard range of the sentencing guidelines to a maximum period of twenty-four (24) months and applying the deadly weapons enhancement the Defendant is sentenced in addition thereto to stand committed to said institution for a minimum period of twelve (12) months to a maximum period of twenty-four (24) months, or a total confinement on the charge of reckless endangerment of a minimum of 24 months to a maximum of 48 months, but reduced to a maximum sentence of 24 months pursuant to § 303.1(i) , 204 Pa. Code of the Guidelines and in keeping with COMMONWEALTH vs. McKEITHAN , ___ Pa. Super. ____ , 504 A.2d 294 (1986)   The other aspects of the sentence imposed of January 16, 1987, remain unaffected. BY THE COURT _______________________(signed) Robert L. Wolfe, P.J.

E

LETTER TO MASSA

Sept 24, 1987