FRANKLIN v. KLOPOTOSKI et al
ORDER THAT THE THIRD SUPPLEMENTAL REPORT AND RECOMMENDATION IS APPROVED AND ADOPTED. PETITIONER'S PETITION FOR WRIT OF HABEAS CORPUS IS GRANTED. PETITIONER'S SENTENCE IMPOSED FOR RAPE OF A CHILD IS VACATED. THIS ACTION IS REMANDED TO THE TR IAL COURT FOR RESENTENCING UNDER THE 2/7/03 STATUTORY MAXIMUM OF TWENTY YEARS INPRISONMENT. THERE IS NO BASIS FOR ISSUING A CERTIFICATE OF APPEALABILITY. SIGNED BY HONORABLE NORMA L. SHAPIRO ON 9/30/13. 10/1/13 ENTERED AND COPIES MAILED TO PRO SE PETTIONER AND E-MAILED. (jpd)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
MICHAEL KLOPOTOSKI, et al.,
AND NOW, this 30th day of September, 2013, upon careful and independent
consideration of the petition for a writ of habeas corpus and after review of the Third
Supplemental Report and Recommendation of United States Magistrate Judge Timothy R. Rice,
it appearing that:
The petition for habeas corpus relief under 28 U.S.C. § 2254 was filed August 21, 2009
and referred to Magistrate Judge Rice for a Report and Recommendation by order of
August 27, 2009.
Magistrate Judge Rice filed a Report and Recommendation on January 15, 2010.
By order of May 5, 2010, the court remanded this action to Magistrate Judge Rice for a
Supplemental Report and Recommendation addressing petitioner’s claims ten and eleven.
Magistrate Judge Rice filed a Supplemental Report and Recommendation on June 3,
Petitioner filed objections to the Supplemental Report and Recommendation on June 23,
2010. In those objections, he asserted for the first time that his sentence for rape
exceeded the statutory maximum that was in effect under Pennsylvania law at the time he
committed the offense.
By order of November 18, 2010, respondents were given leave until December 14, 2010
to file a response to petitioner’s objections. No response was filed and the court assumes
that the District Attorney concedes the validity of petitioner’s objection.
By order of January 6, 2011, this action was remanded to Magistrate Judge Rice for a
Second Supplemental Report and Recommendation on the merits of petitioner’s objection
that his sentence for rape exceeded the statutory maximum.
On April 1, 2011, petitioner’s counsel filed a motion to stay this action while petitioner
exhausted the new claim in state court.
On April 26, 2011, Magistrate Judge Rice issued a Second Supplemental Report and
Recommendation. Magistrate Judge Rice found that the new claim was unexhausted and
recommended that the court grant petitioner’s motion for a stay. By order of May 20,
2011, the court approved and adopted the Second Supplemental Report and
Recommendation and stayed the petition for a writ of habeas corpus.
In a letter dated November 19, 2012, counsel for petitioner advised the court that
petitioner’s state court remedies have now been exhausted. The state court had dismissed
petitioner’s second PCRA petition raising the new claim as untimely. Petitioner filed
objections to the Second Supplemental Report and Recommendation on February 27,
By order of March 20, 2013, the court remanded this action to Magistrate Judge Rice for
a Third Supplemental Report and Recommendation on whether petitioner’s claim that his
sentence exceeded the statutory maximum is barred by procedural default and, if not, on
the merits of that claim.
On August 7, 2013, Magistrate Judge Rice issued a Third Supplemental Report and
Recommendation. Magistrate Judge Rice found that petitioner’s claim that the sentence
imposed for rape of a child exceeded the statutory maximum was not barred by
procedural default and he examined the merits of that claim. At trial, Franklin was
convicted of one count of rape of a child on an unspecified date between January 1, 2001
and January 30, 2004. The trial court imposed a sentence of twenty-to-forty years
imprisonment, the maximum possible sentence under the current Pennsylvania rape
statute. See 18 Pa. C.S. § 3121(e)(1). In December 2002, the Pennsylvania legislature
modified the sentencing provisions of Section 3121. The modified provisions became
effective on February 7, 2003. This statutory change doubled the maximum sentence for
rape of a child from twenty years to forty years imprisonment. It is impossible to
determine whether the jury found that the rape for which Franklin was convicted occurred
before or after the February 7, 2003 statutory change, thus the rule of lenity requires that
the trial court should have sentenced Franklin for the lesser offense. Franklin should have
been sentenced under the pre-February 7, 2003 Pennsylvania rape statute, 18 Pa. C.S. §
3121(a)(6) (2002), which carried a maximum penalty of twenty years imprisonment.
Magistrate Judge Rice recommended the court grant petitioner’s petition for writ of
habeas corpus, vacate petitioner’s sentence imposed for rape of a child, and remand the
case for resentencing under the pre-February 7, 2003 rape statute. Magistrate Judge Rice
informed the parties that failure to file objections within fourteen days of service of the
Third Supplemental Report and Recommendation might constitute a waiver of appellate
No objections to the Third Supplemental Report and Recommendation were timely filed.
Therefore, for the reasons stated above and in the Third Supplemental Report and
Recommendation, it is ORDERED that:
The Third Supplemental Report and Recommendation is APPROVED and ADOPTED.
Petitioner’s petition for writ of habeas corpus is GRANTED.
Petitioner’s sentence imposed ib his convection for rape of a child is VACATED.
This action is REMANDED to the trial court for resentencing under the pre-February 7,
2003, statutory maximum of twenty years imprisonment.
There is no basis for issuing a certificate of appealability.
/s/ Norma L. Shapiro
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