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Brown v. Folino

March 30, 2007

TERRY BROWN, PETITIONER
v.
LOUIS S. FOLINO, ET AL., RESPONDENTS.



The opinion of the court was delivered by: Christopher C. Conner United States District Judge

(Judge Conner)

MEMORANDUM

Presently before the court is a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, filed by petitioner Terry Brown ("Brown"), an inmate currently incarcerated at the State Correctional Institution at Greene ("SCI-Greene") in Waynesburg, Pennsylvania. (Doc. 1.) Brown is challenging his state sentence in the Court of Common Pleas for Bradford County ("Bradford County trial court" or "trial court"). For the reasons that follow, the petition will be denied.

I. Statement of Facts

The relevant procedural history in this case is complex, involving several convictions and sentences in both Bradford and Luzerne counties for various offenses stemming from separate incidents. In May 1994, following a jury trial in Bradford County under case number 92-CR-511, Brown was convicted of unsworn falsification to authorities, see 18 PA.C.S.A. § 4904; retail theft, see 18 PA.C.S.A. § 3929; and, direct criminal contempt, see 42 PA.C.S.A. § 4132. On June 12, 1995, the trial court sentenced Brown to a term of imprisonment for a period not less than eleven (11) months, fourteen (14) days and not more than twenty-four (24) months for unsworn falsification to authorities; a period not less than thirty-two (32) days and not more than ninety (90) days for retail theft; and, a period not less than three (3) months and not more than six (6) months for direct criminal contempt. The trial court ordered those sentences to be served consecutively to each other, resulting in a total sentence of not less than fifteen (15) months, fifteen (15) days, and not more than thirty-six (36) months.

The Bradford County trial court also sentenced Brown on June 12, 1995, on another set of convictions under a separate case number, 93-CR-347. Under 93-CR-347, on June 7, 1995, following a jury trial, Brown was convicted of driving while under the influence of alcohol or controlled substance ("DUI"), see 75 PA.C.S.A. § 3731, and possession of small amount of marijuana, see 35 P.S. § 780-113(a)(31).*fn1

At the June 12, 1995, sentencing hearing, under case number 93-CR-347, the trial court sentenced Brown to a term of imprisonment for a period not less than eleven (11) months and not more than twenty-four (24) months for the DUI, and a period of not less than fourteen (14) days and not more than thirty (30) days for possession of marijuana. The trial court ordered those sentences to be served consecutively to each other, resulting in a total sentence of not less than seventeen (17) months, fourteen (14) days, and not more than thirty-seven (37) months. The trial court also ordered this total sentence to be served consecutively to the sentences imposed under case number 92-CR-511, thus bringing Brown's total aggregate sentence in case numbers 92-CR-511 and 93-CR-347 to a term of imprisonment of not less than thirty-three (33) months and not more than seventy (70) months. (See Doc. 17-2 at 95.)

Approximately eight months later, Brown entered a guilty plea to charges of resisting arrest, see 18 PA.C.S.A § 5104, and recklessly endangering another person, see 18 PA.C.S.A. § 2705, in the Bradford Country trial court under another case number, 95-CR-351. On February 20, 1996, the trial court sentenced Brown on those convictions to a term of imprisonment for a period of not less than three (3) months and not more than twelve (12) months for resisting arrest, and a period of not less than eleven (11) months and not more than twenty-four (24) months for recklessly endangering another person. The trial court ordered these sentences to be served consecutively to each other, and consecutive to the sentences imposed under case numbers 92-CR-511 and 93-CR-347, thus bringing Brown's total aggregate sentence on all three sentences in Bradford County to a term of imprisonment of not less than forty-seven (47) months and not more than one-hundred and six (106) months.

While serving the sentences imposed in Bradford County, on June 24, 1999,*fn2 Brown entered another guilty plea and was sentenced in Luzerne County under case number 98-CP-560 for several crimes committed in that county.*fn3 The Luzerne County trial court sentenced Brown on all counts to a term of imprisonment of not less than six (6) years and not more than twelve (12) years. The record shows that the Luzerne County trial court imposed the sentence for aggravated assault to run consecutively to the Bradford County sentences, resulting in a total aggregate maximum sentence not expiring until January 5, 2015. (Doc. 17-2 at 17 & 17-3 at 11-14.)

Although these sentences are pertinent to the court's disposition of the instant petition, this matter involves only a challenge to Brown's conviction and sentence under Bradford County case number 93-CR-347. As set forth above, in case number 93-CR-347 Brown was charged with DUI and possession of marijuana.

The record reflects that prior to trial Brown elected to proceed to trial pro se. (See Doc. 17-5 at 13-14.)*fn4 Thereafter, the trial commenced on June 5, 1995, initially with voir dire, with Brown proceeding pro se.*fn5

During the Commonwealth's voir dire, the district attorney asked the prospective jurors as a whole if any of them had personal knowledge about Brown or the pending case. Prospective juror number twelve (12), Dorrance Sampson, responded and the two had the following exchange:

[District attorney]: Okay, Mr. Sampson, have you heard something about this particular case?

Juror 12: Yes, I have. I heard it, when it happened, I heard it on the scanner, and I personally know Terry, himself.

[District attorney]: Okay. That's where your knowledge about this incident comes from? From what you heard over the scanner?

Juror 12: Well, I heard a lot of, y'know, from word of mouth too, around -

[District attorney]: Okay, - Mr. Sampson, the things that you've heard about this case, or the things that you heard, or you may know about [Brown], would that interfere with your ability to be a fair and impartial juror and ...


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