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Johnson v. Tennis

January 22, 2007

JAMES R. JOHNSON, PETITIONER,
v.
FRANKLIN J. TENNIS, RESPONDENT



The opinion of the court was delivered by: Thomas I. Vanaskie United States District Judge

(JUDGE VANASKIE)

MEMORANDUM

I. Introduction

Petitioner James R. Johnson, an inmate currently confined at the State Correctional Institution at Rockview, in Bellefonte, Pennsylvania, filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, asserting his plea counsel was ineffective "for advising the Defendant/Petitioner to plead guilty in exchange for a sentence with eligibility for boot camp and the Department of Corrections refused him admission to the program due to the nature of his sexual offense." (Dkt. Entry 1, Petition.) For the following reasons, Johnson's Petition for Writ of Habeas Corpus will be denied.

II. Factual and Procedural Background

The following background has been extracted from the statement of the York County Court of Common Pleas filed pursuant to Pa. R.A.P. § 1925(a) following the denial of Johnson's Post Conviction Relief Act (PCRA) petition for relief. (Dkt. Entry 13-8, Appendix 7, Trial Court's § 1925(a) Statement, July 16, 2004):

A Criminal Complaint was filed on May 1, 2002 charging the Defendant with Rape (§3121(a)(1) and (2) of the Crimes Code); Involuntary Deviate Sexual Intercourse (§ 3123(a)(1), (2), and (7) of the Crimes Code); Statutory Sexual Assault (§ 3122.1 of the Crimes Code); Sexual Assault (§ 3124.1 of the Crimes Code); Aggravated Indecent Assault (§ 3125(a)(1), (2), (3), and (8) of the Crimes Code); Indecent Assault (§ 3126(a)(1), (2), (3) and (8) of the Crimes Code) and Corruption of Minors (§ 6301(a) of the Crimes Code). The allegations of sexual assault were related to the Defendant having various forms of sexual contact with S.H. (Date of birth: 11/9/88), a female child, during the month of February 2002.*fn1 S.H. was then 13 years of age while the Defendant (10/20/81) was 20 years of age. The Defendant retained the services of Harold N. Fitzkee, Jr, Esquire to represent him throughout the proceedings.*fn2 On May 12, 2003 the Defendant pled guilty to Statutory Sexual Assault (based upon vaginal sexual intercourse, § 3122.1 of the Crimes Code); Indecent Assault (general sexual touching, § 3126(a)(8) of the Crimes Code) and Corruption of Minors (sexual contact with a minor, § 6301(a) of the Crimes Code). Under the terms of the Defendant's plea agreement the remaining charges of Rape, Involuntary Deviate Sexual Intercourse, Sexual Assault and Aggravated Indecent Assault were to be nol prosed and the Defendant would receive a sentence of 21/2 to 5 years on the offense of Statutory Sexual Assault and concurrent sentences of 1 to 2 years on Indecent Assault and Corruption of Minors.

On the same date, namely May 12, 2003, the Defendant was sentenced in accordance with the plea agreement and it was . . . stated:

The court further deems the Defendant an appropriate candidate for boot camp at such time as he should otherwise become eligible for that in the State Correctional setting.

Thereafter on May 28, 2003 the Defendant directed a letter to the court's chambers in which he represented that:

"I was forced to take the plea ... I respectfully ask that you consider taking my plea back and look my case over."

In response to that letter the Trial Court entered an Order on June 2, 2003 which provided in part:

Inasmuch as the referenced letter [from the Defendant] suggests that the Defendant's plea was not knowingly and voluntarily entered and suggests ineffective representation of Trial/Plea Counsel, we appoint the Public Defender's Office to further represent the Defendant. A representative of the Public Defender's Office shall meet with the Defendant to consider the Defendant's assertions and take appropriate action on his behalf.

Thereafter and due to a conflict in representation of the Defendant within the Public Defender's Office the trial Court appointed Ronald J. Gross, Esquire to ...


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