Judges Opinions, — July 16, 2012 9:57 — 0 Comments

Commonwealth vs. Levi Deitzler

IN THE COURT OF COMMON PLEAS

OF LEBANON COUNTY, PENNSYLVANIA

 

CRIMINAL DIVISION

 

COMMONWEALTH OF                             :

PENNSYLVANIA                                         :

                                                                        :           No. CP-38-CR-0002245-2005

            v.                                                         :

                                                                        :

LEVI DEITZLER                                          :

 

ORDER OF COURT

            AND NOW, to wit, this 11th day of May, 2012, upon careful consideration of Defendant’s Petition for Writ of Habeas Corpus, which we consider to be in the nature of a request for relief pursuant to the Post Conviction Relief Act, the Commonwealth’s Response thereto and the record of this case, Defendant is hereby notified that it is the intention of the Court to dismiss his Petition without a hearing for the reasons set forth in the attached Opinion.  Defendant is afforded twenty (20) days from the date of this Order to file a Response to the proposed dismissal pursuant to Pa.R.Crim.P. Rule 907(1).  Defendant is directed to serve a copy of any Response filed upon the undersigned jurist. 

                                                                                    BY THE COURT:

 

                                                                                    _______________________________, S.J.

                                                                                    Robert J. Eby

 

RJE/jw

 

pc:       District Attorney (Interoffice Mail)

            Public Defender (Interoffice Mail)

            Levi Deitzler (Regular Mail at SCI Greene, Inmate No. HD0330, 175 Progress             Drive, Waynesburg, PA  15370)


 

IN THE COURT OF COMMON PLEAS

OF LEBANON COUNTY, PENNSYLVANIA

 

CRIMINAL DIVISION

 

COMMONWEALTH OF                             :

PENNSYLVANIA                                         :

                                                                        :           No. CP-38-CR-0002245-2005

            v.                                                         :

                                                                        :

LEVI DEITZLER                                          :

 

APPEARANCES:

 

NICHOLE EISENHART, ESQUIRE                      For the Commonwealth

First Assistant District Attorney

 

KIMBERLY A. ADAMS, ESQUIRE                      For the Defendant

First Assistant Public Defender

 

OPINION BY EBY, S.J., MAY 11, 2012:

Before the Court is Defendant’s Petition for Writ of Habeas Corpus, which we consider to be in the nature of a Petition for Post Conviction Collateral Relief filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. § 9541 et seq.  On January 3, 2006, a Criminal Information was filed charging Defendant with three (3) counts each of Forgery and Receiving Stolen Property as a result of Defendant’s alleged theft from a victim’s checking account three (3) times during September of 2005.  On April 20, 2006, Defendant entered a guilty plea to those charges.[1]  On May 24, 2006, the Court sentenced Defendant consistently with the guilty plea agreement.  Defendant did not file post sentence motions or an appeal to the Pennsylvania Superior Court from the judgment of sentence imposed.

Defendant failed to satisfactorily complete the Renaissance Crossroads Program.  Following the initiation of intermediate punishment revocation proceedings, Defendant acknowledged violation of this specific condition of the disposition accorded to him.  On May 30, 2007, the Court found that Defendant violated the intermediate punishment disposition and vacated that disposition.  On Defendant’s Forgery convictions, the Court re-sentenced Defendant to an aggregate term of two (2) to six (6) years’ imprisonment in a state correctional institution.  The Court directed that Defendant be accorded credit for any time served solely on this action number in a correctional facility or prison setting.  However, the Court specifically directed that Defendant should not be afforded any credit for time spent in the Renaissance Crossroads Program.  Defendant did not file post sentence motions or an appeal to the Pennsylvania Superior Court.

On January 10, 2012, Defendant filed the Petition for Writ of Habeas Corpus currently before the Court, wherein he seeks credit against his sentence at this action number for time that he spent in the Renaissance Crossroads Program.[2]  Viewing his Petition as a request for relief under the PCRA, we appointed counsel to represent Defendant throughout the PCRA proceedings and issued a Rule upon the Commonwealth to show cause why a hearing should not be held regarding the issue raised in Defendant’s Petition.  On January 20, 2012, the Commonwealth filed its Response and Motion to Dismiss Defendant’s Petition, asserting that Defendant’s request for time credit was untimely under the PCRA and that Defendant is not entitled to credit for time served in the Renaissance Crossroads Program.

As stated above, we consider Defendant’s Petition for Writ of Habeas Corpus to be a request for relief pursuant to the PCRA.  The PCRA is the exclusive vehicle for obtaining post-conviction relief on an application that is filed outside of the time limitations for the presentation of a timely post sentence motion or direct appeal.  Commonwealth v. Kutnyak, 781 A.2d 1259, 1261 (Pa.Super. 2001), citing Commonwealth v. Bronshtein, 752 A.2d 868, 869-870 n. 3 (Pa. 2000).  This is true regardless of the manner in which a filing is titled.  Kutnyak at 1261, citing Commonwealth v. Hutchins, 760 A.2d 50, 52 n. 1 (Pa.Super. 2000).  However, a prayer for relief that does not fall within the remedies afforded by the PCRA should not be considered as an application for relief under the PCRA.  Commonwealth v. Lutz, 788 A.2d 993, 996 n. 7 (Pa.Super. 2001), citing Commonwealth v. Fahy, 737 A.2d 214, 224 (Pa. 1994).  If a defendant challenges a trial court’s failure to award credit for time served in a sentencing or dispositional order, this is a challenge to the legality of sentence, which is a cognizable claim under the PCRA.  Commonwealth v. Beck, 848 A.2d 987, 989 (Pa.Super. 2004), citing Commonwealth v. Hollawell, 604 A.2d 723, 725 (Pa.Super. 1992).  Therefore, although Defendant styles his request for relief as a Petition for Writ of Habeas Corpus, we consider it to be a request for relief under the PCRA.

Any PCRA application must be filed within one (1) year of the date when a defendant’s judgment becomes final.  42 Pa.C.S. § 9545(b)(1).  A judgment becomes final at the conclusion of direct review or at the expiration of time for seeking direct review.  § 9545(b)(3).  When a new sentence is imposed following the vacation of an intermediate punishment disposition, the re-sentencing date must be employed when assessing finality pursuant to § 9545(b)(3) when a defendant challenges the legality of the re-sentence imposed.  Commonwealth v. Cappello, 823 A.2d 936, 940 (Pa.Super. 2003), citing Commonwealth v. Anderson, 788 A.2d 1019, 1021 (Pa.Super. 2001).

Defendant was re-sentenced on his intermediate punishment violation on May 30, 2007.  At that time, we specifically directed that Defendant should not receive any credit for any time that he spent in the Renaissance Crossroads Program.  Defendant had thirty (30) days from the date of his re-sentencing on May 30, 2007, or until June 29, 2007, to file a timely direct appeal to the Pennsylvania Superior Court.  Defendant failed to do so.  Accordingly, his judgment became final on June 29, 2007.  From that date, Defendant had one (1) year, or until June 30, 2008, to file a timely PCRA application requesting credit for time that he spent in the Renaissance Crossroads Program.  Defendant did not file his request for credit for time spent in the Renaissance Crossroads Program until January 10, 2012, over three and one-half (3 ½) years after the time for the presentation of a timely PCRA application had expired.  As asserted by the Commonwealth, Defendant’s PCRA application is untimely on its face.

There are statutory exceptions to the one (1) year time limitation that will confer jurisdiction upon the Court to consider an otherwise untimely PCRA petition.  Commonwealth v. Blackwell, 936 A.2d 497, 500 (Pa.Super. 2007), citing § 9545(b)(1)(i)-(iii).  A PCRA petition will be allowed to proceed despite its untimeliness if the defendant pleads and proves that one (1) of the following exceptions is applicable:

(i) the failure to raise the claim previously was the result of interference by                                  government officials with the presentation of the claim in violation of the                                            Constitutions or laws of Pennsylvania or the United States;

 

(ii) the facts upon which the claim is predicated were unknown to the defendant                                     and could not have been ascertained by the exercise of due diligence; or

 

(iii) the right asserted is a constitutional right that was recognized by the United                           States or the Pennsylvania Supreme Courts after the time period provided in this                                section and has been held by that Court to apply retroactively.

 

§ 9545(b)(1).  It is the defendant’s burden to plead and to prove in the petition that an exception to the one (1) year timeliness requirement is applicable.  Blackwell at 500, citing Commonwealth v. Beasley, 741 A.2d 1258, 1261-1262 (Pa. 1999).

Defendant does not plead that any of the above-stated exceptions are applicable to his untimely request for credit.  The timeliness requirements of the PCRA are jurisdictional in nature and are mandatory, and the Court may not disregard or alter them in order to reach the merits of a request for relief that is filed in an untimely manner.  Commonwealth v. Murray, 753 A.2d 201, 203 (Pa. 2000), citing Fahy at 222.  Accordingly, we have no jurisdiction to entertain the merits of Defendant’s request for credit for time spent in the Renaissance Crossroads Program at this juncture in the proceedings.

Moreover, even if we had jurisdiction to consider the merits of Defendant’s request for credit, we have received previous requests from other defendants in unrelated cases for credit for time spent in the Renaissance Crossroads Program upon failure to successfully complete that Program, revocation of intermediate punishment disposition and re-sentencing.  As the founder and joint operator of the Renaissance Crossroads Program, this Court is well-aware of the nature and the features of this Program, as well as the voluntary request for entry by each and every defendant into that Program in order to avoid lengthy state sentences and the knowledge imparted to each and every defendant before granting a request for entry into the Program of the repercussions of failing to successfully complete that Program.  In light of the same, we have held that an award of credit for time spent in the Renaissance Crossroads Program is not appropriate. Commonwealth v. Benjamin, L.C.C.C.P. Nos. CP-38-CR-0001273-2004, CP-38-CR-0001417-2004 and CP-38-CR-0001418-2004 (October 10, 2007); and Commonwealth v. Jiminez, L.C.C.C.P. Nos. CP-38-CR-0001973-2007, CP-38-CR-0001974-2007 and CP-38-CR-0001986-2007 (October 2, 2009).[3]  Accordingly, even if we had jurisdiction to consider the merits of Defendant’s application for PCRA relief, we would not find that Defendant is entitled to any credit for time spent in the Renaissance Crossroads Program.

Pa.R.Crim.P. Rule 907(1) governs the disposition of a meritless PCRA application without a hearing.  Rule 907(1) provides:

“the judge shall promptly review the petition, any answer by the attorney for the Commonwealth, and other matters of record relating to the defendant’s claim(s).  If the judge is satisfied from this review that there are no genuine issues concerning any material fact and that the defendant is not entitled to post-conviction collateral relief, and no purpose would be served by any further proceedings, the judge shall give notice to the parties of the intention to dismiss the petition and shall state in the notice the reasons for the dismissal.  The defendant may respond to the proposed dismissal within 20 days of the date of the notice.  The judge thereafter shall order the petition dismissed, grant leave to file an amended petition, or direct that the proceedings continue.”

 

In this case, based upon our review of the record and Defendant’s Petition for Writ of Habeas Corpus, we are satisfied that the Petition is untimely and we have no jurisdiction to consider the merits of the Petition as a result.  Further, regardless of the timeliness of the Petition, we are satisfied that Defendant is not entitled to any relief on the basis alleged.  As such, there are no issues of material fact necessitating a hearing, nor would there be any purpose served by any further proceeding.  Accordingly, we intend to dismiss Defendant’s Petition for Writ of Habeas Corpus without a hearing.  Defendant will be afforded twenty (20) days from the date of this Order to file a Response to the proposed dismissal that sufficiently sets forth any statutory basis upon which we have jurisdiction to entertain his untimely request for PCRA relief and factual and legal grounds upon which he is entitled to PCRA relief in light of the above-discussion.  In the event that Defendant fails to file a Response to the proposed dismissal as directed herein, we will deny Defendant relief and will dismiss his Petition for Writ of Habeas Corpus without a hearing.

We will enter an appropriate Order.



[1] The executed guilty plea colloquy reflects that Defendant’s plea was entered pursuant to a negotiated agreement whereby Defendant asked this Court to impose an Intermediate Punishment disposition and to place him in the Renaissance Crossroads Program in lieu of state incarceration to afford him the opportunity to address his drug addiction.  The Renaissance Crossroads Program is a thirty-four (34) month commitment that includes a twenty-two (22) month inpatient drug and alcohol program operated jointly with the direction of Pennsylvania Counseling Services, the Lebanon County Probation Department, and the Lebanon County Court of Common Pleas.  The program is funded by a grant from the Pennsylvania Commission on Crime and Delinquency and is located at the Lebanon Veterans Administration Medical Center.

 

[2] On November 15, 2011, Defendant filed a Petition for Time Credit, asserting that he was arrested and incarcerated on a new Burglary charge and state parole violations on May 27, 2011.  The new charge was filed at action number CP-38-CR-0000951-2011.  Defendant averred that he was sentenced on the Burglary conviction on October 19, 2011 to be placed on intermediate punishment for a period of five (5) years less one (1) day, with the first eight (8) months of that sentence to be served in the Lebanon County Correctional Facility and the next eighteen (18) months of that sentence to be spent in the Teen Challenge Program.  Although indicating that he received credit for time served from May 27, 2011 against the sentence imposed on the Burglary conviction on October 19, 2011, Defendant also requested that he receive credit for time served from May 27, 2011 for the same period of time served at this action number.  Defendant did not request credit for time served in the Renaissance Crossroads Program at that time.  Defendant’s request for time credit was denied by this Court on November 16, 2011.  No appeal was taken.

 

[3] Our determination that an award of credit for time spent in the Renaissance Crossroads Program was inappropriate was affirmed by the Pennsylvania Superior Court.  Commonwealth v. Benjamin, 1977 MDA 2007 (August 25, 2008).

 

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