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THOMAS v. ZIMMERMAN

February 29, 1984

EDWARD THOMAS
v.
CHARLES ZIMMERMAN, Sup't. and THE ATTORNEY GENERAL OF THE STATE OF PENNSYLVANIA; EDWARD THOMAS v. CHARLES ZIMMERMAN and THE ATTORNEY GENERAL OF THE STATE OF PENNSYLVANIA



The opinion of the court was delivered by: BRODERICK

 BRODERICK, J.

 Edward Thomas (Thomas), an inmate confined in the State Correctional Institute at Graterford, has filed two pro se petitions for writs of habeas corpus. The petition in No. 83-0699 attacks a conviction for voluntary deviate sexual intercourse upon which Thomas has completely satisfied the sentence imposed. The petition in No. 83-0698 attacks the convictions for robbery and related offenses for which he is presently incarcerated. Magistrate Peter B. Scuderi has issued a report with a recommendation that (1) the petition in No. 83-0699 be granted and Thomas' conviction for voluntary deviate sexual intercourse be voided and (2) the petition in No. 83-0698 also be granted, and that execution of the writ be stayed for 90 days so as to afford an opportunity to either re-sentence Thomas to reflect the time spent in custody as a pretrial detainee, or otherwise correct the records so as to give Thomas credit on his present sentence for time incarcerated as a pretrial detainee.

 I. Background

 The Magistrate's Report sets forth a detailed account of the facts and procedural history of this case, which the Court will only summarize. On January 16, 1976, Thomas was incarcerated in Lehigh County Prison as a pretrial detainee on charges of burglary and receiving stolen property. On January 17, 1976, he allegedly committed an act of sodomy with another inmate. As a result, he was charged with simple assault, terroristic threats, and involuntary deviate sexual intercourse. On February 4, 1976, he pleaded not guilty to these latter three charges.

 The charges upon which Thomas originally was detained at the Lehigh County Prison were dismissed. On March 10, 1976, he posted bail on the remaining three charges and was released pending trial. On May 8, 1976, while out on bail, Thomas was again arrested and charged with robbery, conspiracy, terroristic threats, and the commission of a crime with a firearm. He did not post bail on these new charges and was incarcerated pending trial.

 Thomas was tried before a jury from September 14 to September 16, 1976, and was found not guilty of simple assault, terroristic threats, and involuntary deviate sexual intercourse in connection with the sodomy incident. Thomas was found guilty, however, of voluntary deviate sexual intercourse, a misdemeanor.

 The court reporter's notes of the Court's jury charge were never transcribed and, in fact, were inexplicably destroyed. See N.T., P.C.H.A. Hearing, October 14, 1980, at 6-11. At a subsequent hearing, however, it was conceded that the trial judge, apparently believing voluntary deviate sexual intercourse to be a lesser-included offense of involuntary deviate sexual intercourse, charged the jury on both crimes. See N.T., P.C.H.A. Hearing, October 14, 1980, at 5-12.

 On September 20, 1976, Thomas' counsel filed post-trial motions contending, inter alia, that the voluntary deviate sexual intercourse statute was unconstitutional. Shortly after Thomas' counsel filed the post-trial motions, he left the employ of the Public Defender's Office, and a second public defender was appointed to represent Thomas.

 From September 20 to September 23, 1976, Thomas was tried before a jury on the robbery and related offenses. He was found guilty of all charges. He remained in custody from September of 1976 until June of 1977. On June 29, 1977, the post-trial motions filed in connection with the voluntary deviate sexual intercourse conviction were dismissed because his counsel either did not appear or was unprepared to argue on three occasions, and failed to file a brief in support of the motions. No appeal was taken, although, as shall be discussed below, the record shows that Thomas expected his counsel to pursue the reinstatement of his post-trial motions and to arrange for the filing of a direct appeal.

 On July 25, 1977, Thomas was sentenced on the voluntary deviate sexual intercourse conviction to a prison term of 11 to 23 months. He was given credit on the sentence for the approximately fifteen months he had been in custody as a pretrial detainee on the robbery charges. It appears from the record that Thomas became angered by his counsel's failure to pursue the post-trial motions, and became involved in an altercation with his counsel in the presence of the sentencing judge, who sentenced him to an additional term of thirty days for contempt of court.

 On October 25, 1977, the post-trial motions from the robbery and related offenses were denied. On November 29, 1977, Thomas was sentenced to ten to twenty years on the robbery conviction; five to ten for conspiracy; two to five on the weapons offense; and one to five for the terroristic threats -- all sentences to run concurrently. On direct appeal the robbery and related convictions were affirmed by the Pennsylvania Superior Court, and the Pennsylvania Supreme Court denied allocatur.

 On August 4, 1977, prior to his sentencing on the robbery and related offenses and following his sentencing on the voluntary deviate sexual intercourse conviction, Thomas filed a pro se petition for habeas corpus with the state court, seeking reinstatement of his post-trial motions in connection with the voluntary deviate sexual intercourse conviction. He alleged that his counsel's conduct amounted to ineffective assistance of counsel. After a hearing at which he was represented by new counsel, the court dismissed his petition, ruling that his sole remedy was by way of the state's Post Conviction Hearing Act (P.C.H.A.), 42 Pa. Cons. Stat. Ann. § 9541 et seq. (Purdon's 1983). His counsel was directed to refile under the P.C.H.A., but instead appealed the dismissal of the habeas petition. On December 26, 1978, the Pennsylvania Superior Court affirmed the trial court's dismissal of the habeas petition.

 In November of 1978, Thomas filed another petition for a writ of habeas corpus in the state court, claiming that the fifteen months he spent in custody following his arrest on the robbery charge should be credited to the robbery sentence rather than to the voluntary deviate sexual intercourse conviction. The trial court denied his habeas petition, the Superior Court affirmed, and the Pennsylvania Supreme Court denied allocatur.

 On September 4, 1979, Thomas filed yet another petition for habeas corpus in the state court attacking his voluntary deviate sexual intercourse conviction, alleging that the statute under which he had been found guilty was unconstitutional and that he had received ineffective assistance of counsel. After a hearing on October 15, 1979, at which Thomas was represented by counsel, the court again directed counsel to withdraw the habeas petition and refile under the Post Conviction Hearing Act, which was done. On November 6, 1980, following a hearing, the court dismissed his P.C.H.A. petition on the ground that since he was no longer in custody on the voluntary deviate sexual intercourse conviction, he therefore was ineligible for relief. Although state court factual determinations are afforded a presumption of correctness under 28 U.S.C. § 2254(d), it does not appear that the state court made any factual findings on the ineffective assistance of counsel claim when it dismissed the P.C.H.A. petition on jurisdictional grounds. Once again, the Superior Court affirmed the dismissal of the petition, and the Pennsylvania Supreme Court denied allocatur. In May ...


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