Pope v. Wingard et al
Filing
34
MEMORANDUM (Order to follow as separate docket entry).Signed by Honorable Malachy E Mannion on 4/12/17. (bs)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF PENNSYLVANIA
BOB POPE,
:
:
Petitioner
CIVIL ACTION NO. 3:14-0109
:
v
:
(JUDGE MANNION)
TREVOR WINGARD, et al.,
:
Respondents
MEMORANDUM
I.
Background
Petitioner, Bob Pope, a former inmate at the Laurel Highlands State
Correctional Institution, Somerset, Pennsylvania1, filed the above captioned
petition for writ of habeas corpus pursuant to 28 U.S.C. §2254. (Doc. 1). He
challenges his resentencing, after being found guilty of probation violations,
by the Court of Common Pleas for Dauphin County, Pennsylvania. Id. Pope
claims violations of the Double Jeopardy Clause when: (1) the trial court
revoked Pope’s probation, (2) the trial increased Pope’s sentence for State
count one, (3) the trial court increased the sentence for State counts seven
and eight, and (4) the trial court increased the sentence for State counts two,
five, six, and fifteen. Id.
1
Subsequent to the filing of the above captioned action, Petitioner was
released on probation, and now resides at 1424 N. 4th Street, Harrisburg,
Pennsylvania. (See (Doc. 29).
In accordance with United States v. Miller, 197 F.3d 644 (3d Cir. 1999),
and Mason v. Meyers, 208 F.3d 414 (3d Cir. 2000), this Court issued formal
notice to Pope that he could either have the petition ruled on as filed but lose
his ability to file a second or successive petition, or withdraw his petition and
file one all-inclusive §2254 petition within the one-year statutory period
prescribed by the Antiterrorism Effective Death Penalty Act (“AEDPA”). (Doc.
3). On April 10, 2014, Pope returned the notice of election, indicating that he
wished to proceed with his petition for writ of habeas corpus as filed. (Doc. 4).
On May 23, 2014, the Respondents filed a motion to dismiss on the grounds
that Pope had not exhausted state court remedies. (Doc. 13).
By Memorandum and Order dated December 23, 2014, the Court,
having concluded that Pope presented a mixed petition, directed Petitioner to
notify the Court as to his intention to delete his unexhausted claims and
proceed on the merits of his exhausted claims, have the Court dismiss his
petition without prejudice, or request a stay and abeyance. (Doc. 18).
Petitioner having indicated to the Court that he wished to delete count
one, his unexhausted claim, and proceed on the merits of counts two, three
and four, his exhausted claims, the Court, by Order dated October 31, 2016,
directed a response to be filed to Petitioner’s exhausted claims, specifically,
counts two, three and four. (Doc. 30).
On December 27, 2016, a response to Petition’s exhausted claims,
counts two, three and four, was filed. (Doc. 33). No traverse has been filed.
2
The petition is ripe for disposition. For the reasons set forth below, the petition
will be denied.
II.
Procedural History
The following account of the procedural history of this case is taken
from the Pennsylvania Superior Court’s May 6, 2013 decision affirming the
denial of Pope’s claims that his sentences were illegal or unconstitutional.
(Doc. 13-4).
On November 3, 2003, [Pope] entered a plea of nolo contendere
to two counts each of criminal solicitation to commit rape,
statutory sexual assault, involuntary deviate sexual intercourse,
aggravated indecent assault, indecent assault, indecent
exposure, and corruption of minors, as well as to one count of
criminal use of a communication facility.
On March 11, 2004, he was sentenced to two to four years of
imprisonment, followed by five years of probation. At the
conclusion of the sentencing hearing, Pope was advised of his
post-sentencing rights. Pope did not file a direct appeal.
On August 29, 2005, Pope file [sic] a petition for relief under the
Post Conviction Relief Act (“PCRA”). On May 23, 2007, the
amended petition was denied in part and granted it [sic] in part.
The Court granted the petition as it pertained to an illegal
sentence based on improper merge [sic] of some of the counts,
and vacated the sentences as those [sic] counts.
On August 1, 2007, Pope was re-sentenced to the original
sentence of two to four years of imprisonment, followed by five
years of probation. On August 8, 2007, Pope filed a timely postsentence motion. The order denying the motion was not entered
by the prothonotary until March 7, 2008. [A] timely appeal
followed.
3
This Court affirmed the judgment of sentence. On January 12,
2009, Pope faced a revocation hearing at which the trial court
determined Pope was not in violation of his probation.
On January 19, 2011, Pope again faced revocation proceedings.
After a hearing, the trial court resentenced Pope to an aggregated
period of 24 to 48 months’ incarceration followed by 168 months’
probation. Pope did not file a motion to modify sentence. Pope
filed a notice of appeal on February 8, 2011. Counsel filed a
statement of intent to file an Anders brief in lieu of a concise
statement of matters on February 24, 2011.
[B]y way of memorandum opinion filed on October 6, 2011, [the
Superior Court] denied counsel’s petition to withdraw finding the
sentence imposed by the trial court to be “facially illegal” . . .
[thereafter, the Superior Court] vacated Pope’s judgment of
sentence and remanded for re-sentencing.2
Upon remand, Pope appeared before the Honorable Richard
Lewis for re-sentencing [and] . . . was resentenced to concurrent
terms of 24 to 48 months’ imprisonment on Counts 7 and 9. Pope
was not re-sentenced on Count 15.
2
The Superior Court noted in their opinion that:
The issue raised by Appellant’s brief concerns
discretionary aspects of his sentence and implicates
preservation and reviewability issues. However, our
close review of the record leads us to conclude that
the sentence imposed by the trial court is an illegal
one, and we are constrained to address this issue sua
sponte. Essentially, the trial court, when resentencing
Appellant on January 19, 2011, mistakenly referred to
the vacated March 11, 2004 sentencing order as
containing the extant sentence instead of the August
1, 2007 sentencing order. N.T., 1/19/2011,
Revocation, at 36. Consequently, the trial court
sentenced Appellant to counts previously determined
to have merged. Id. at 36-37; N.T., 8.1.07, PCRA
resentencing, at 8-10, C.R. at 76.
4
Id. at 2-4.
On March 9, 2012, Pope filed a notice of appeal with the Court of
Common Pleas, asserting eight statements of error, including all four raised
in this habeas petition. (Doc. 13-3 at 73). On June 11, 2012, the Court of
Common Pleas found that the claims of error were without merit. (Doc. 13-3
at 63). Thereafter, Pope filed an appeal with the Pennsylvania Superior Court,
raising all four issues that have been raised in this habeas petition. (Doc. 13-3
at 1). Pope’s attorney filed a notice of intent to withdraw from the case and
filed an Anders brief3 in support, arguing that Pope’s claims on appeal were
frivolous. Id. The Superior Court agreed that the claims were frivolous, and on
May 6, 2013, affirmed the sentence imposed by the Court of Common Pleas.
(Doc. 13-4). On December 30, 2013, the Pennsylvania Supreme Court denied
an allowance of appeal. Com. v. Pope, 83 A.3d 415 (Pa. 2013).
On March 20, 2015, Pope appeared before Judge Lewis of the Dauphin
County Court of Common Pleas, for a revocation hearing. (Doc. 33-3 at 3).
By Order dated April 10, 2015, Judge Lewis revoked Pope’s probation
on count 7, Aggravated Indecent Assault, and resentenced him to 11½ to 23
months incarceration, followed by 8 years probation. (Doc. 33-3 at 35).
3
If an attorney believes that an appeal is frivolous and without merit, he
or she may file a motion to withdraw, so long as that request is “accompanied
by a brief referring to anything in the record that might arguably support the
appeal.” Anders v. State of Cal., 386 U.S. 738, 744 (1967).
5
On May 7, 2015, Pope filed a direct appeal from his April 10, 2015
revocation, and, on February 16, 2016, the Pennsylvania Superior Court
affirmed his judgment of sentence. (Doc. 13-3 at 37).
III.
Discussion
The Fifth Amendment of the United States Constitution provides that
“[n]o person shall ... be subject for the same offense to be twice put in
jeopardy of life or limb.” U.S. Const. amend V. The Double Jeopardy Clause
“protects against three distinct abuses: a second prosecution for the same
offense after acquittal; a second prosecution for the same offense after
conviction; and multiple punishments for the same offense.” United States v.
Baird, 63 F.3d 1213, 1215 (3d Cir. 1995). It is well-settled that the revocation
of parole or probation and the corresponding imposition of confinement does
not violate the Double Jeopardy Clause because “these criminal sanctions do
not involve the increase of a final sentence, and ... defendant is aware at the
original sentencing that a term of imprisonment later may be imposed .”
Ralston v. Robinson, 454 U.S. 201, 220 n.14 (1981) (citing United States v.
DiFrancesco, 449 U.S. 117, 137 (1980)).
The receipt of a probationary sentence is not a right guaranteed by the
federal constitution, but is a privilege granted through legislative grace. Escoe
6
v. Zerbst, 295 U.S. 490 (1935); Berman v. United States, 302 U.S. 211, 213
(1937). The Pennsylvania Legislature has conferred upon the State Courts
the power, in its discretion, to place on probation a person found guilty of a
criminal offense, except murder in the first degree.4 The same courts are
empowered to revoke probation and impose any sentence which could have
been pronounced originally whenever the probationer shall violate the terms
of his probation.5
Pope’s claims violations of the Double Jeopardy Clause in the following
three instances: (1) when the trial court increased Pope’s sentence for State
count one, (2) when the trial court increased the sentence for State counts
seven and eight, and (3) when the trial court increased the sentence for State
4
Act of August 6, 1941, P.L. 861, §25, 61 P.S. §331.25. This section
provides in part:
The court shall have the power, in its discretion, if it believes the
character of the person and the circumstances of the case to be
such that he is not likely again to engage in a course of criminal
conduct and that the public good does not demand or require the
imposition of a sentence of imprisonment, instead of imposing
such sentence, to place the person on probation for such definite
period as the court shall direct, not exceeding the maximum
period of imprisonment allowed by law for the offense for which
such sentence might he imposed.
Also see Act of June 19, 1911, P.L. 1055, §1, as amended, 19 P.S. §1051,
and Act of May 10, 1909, P.L. 495, §1, 19 P.S. §1081.
5
Act of June 19, 1911, P.L. 1055, §4. This statute does not require that
the probation violation take place within the probationary period and the
probation was revoked during such period.
7
counts two, five, six, and fifteen. Id. However, “there is no double jeopardy
protection against revocation of probation and the imposition of
imprisonment.” U.S. v. DiFrancesco, 449 U.S. at 137 (citing Thomas v. United
States, 327 F.2d 795 (10th Cir. 1964). Revocation does not implicate double
jeopardy because probation or parole is merely the continuation of an already
imposed sentence. Id.
In this case, the fact that Pope’s probation was revoked and he was
sentenced to an additional term of imprisonment does not violate the
protection against double jeopardy. Double jeopardy only prevents the
sentencing court from prescribing greater punishment than the legislature
intended. See Garret v. United States, 471 U.S. 773, 780 (1985). Upon
sentencing following a revocation of probation, the trial court is limited only by
the maximum sentence that it could have imposed originally at the time of the
probationary sentence. Commonwealth v. McAfee, 849 A.2d 270, 275
(Pa.Super. 2004). Pope does not allege, and the record does not reflect, that
Pope’s resentencing resulted in a term of imprisonment in excess of the
statutory maximum. As such, Pope’s resentencing as a result of his parole
violations does not violate his protection against double jeopardy. Id.
Accordingly, Petitioner’s claims clearly lack merit.
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IV.
Conclusion
Based on the foregoing, Pope’s habeas petition, (Doc. 1), will be denied
without an evidentiary hearing. See 28 U.S.C. §2254(e). There are no
grounds to issue a certificate of appealability pursuant to 28 U.S.C.
§2253(c)(1). A separate Order will be issued.
s/ Malachy E. Mannion
MALACHY E. MANNION
United States District Judge
Dated: April 12, 2017
O:\Mannion\shared\MEMORANDA - DJ\CIVIL MEMORANDA\2014 MEMORANDA\14-0109-02.wpd
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