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Smith v. Desuta

July 17, 2009

DAVID SMITH, PETITIONER,
v.
JOSEPH F. DESUTA, ET AL., RESPONDENTS.



The opinion of the court was delivered by: Judge Vanaskie

MEMORANDUM

Background

David Smith, an inmate presently confined at the State Correctional Institution, Mercer, Pennsylvania (SCI-Mercer), proceeding pro se, commenced this habeas corpus proceeding pursuant to 28 U.S.C. § 2254 in the United States District Court for the Western District of Pennsylvania. The matter was subsequently transferred to this Court. Named as Respondents are the Attorney General for the Commonwealth of Pennsylvania, SCI-Mercer Warden Joseph DeSuta, and the Bradford County District Attorney.*fn1

On April 30, 1996, Petitioner was charged with thirty (30) counts of involuntary deviate sexual intercourse; ten (10) counts of sexual assault; four (4) counts of indecent assault, and one (1) count of corruption of minors. The victim of those alleged offenses was Petitioner's thirteen (13) year old stepdaughter.

Petitioner was arrested on July 10, 1996. Bradford County Public Defender Theodore Hinckley was appointed to represent Petitioner. On the advice of Mr. Hinckley, Petitioner waived his right to a preliminary hearing on the charges. His arraignment was scheduled for September 5, 1996.

When Petitioner's case was called on September 5, 1996, Petitioner immediately informed the presiding judge that he wanted to dismiss his attorney and requested a postponement of the arraignment "until I can seek efficient and effective counsel to help prove my innocence." (Tr. of Sept. 5, 1996, Dkt. Entry # 13-4, at 1.) No reason was given by Petitioner for dismissing his court-appointed lawyer, and the trial court did not solicit an explanation. Instead, the judge asked Mr. Hinckley if he wanted to move to withdraw, and he responded in the affirmative. As a result, the public defender assigned to Smith's case was granted leave to withdraw and the arraignment was rescheduled. Petitioner was advised that if he did not appear with counsel at the re-scheduled arraignment, the arraignment would proceed without representation. (Id. at 2.)

On September 16, 1996, the rescheduled arraignment was conducted. Petitioner, who appeared without counsel, inquired as to whether action had been taken on his pro se motion seeking appointment of counsel and reinstatement of his right to a preliminary hearing. (Tr. of Sept. 16, 1996, Dkt. Entry # 13-5, at 2.) The presiding judge, who had not handled the aborted arraignment on September 5, 1996, explained that he had not been presented with any motion. (Id.) Petitioner asserted that he had "good and fair reason" for dismissing Attorney Hinckley, asserting that he had violated Petitioner's rights by speaking "openly in public about [the case]." (Id.) The trial judge responded by informing Petitioner that so long as there was no reason why the public defender's office could not represent Petitioner, his counsel would be a member of that office. (Id. at 2-3.) Petitioner then informed the court that he would prefer to proceed without counsel. (Id.) Following a colloquy addressing the issue of whether waiver of counsel was knowing and voluntary, Petitioner indicated that he still wanted legal representation. (Id. at 8.) When he learned, however, that Mr. Hinckley would be the attorney assigned by the public defender's office, Petitioner again told the court that he preferred to proceed pro se. Following some additional questions, the trial judge determined that Petitioner had made a knowing, voluntary and intelligent waiver of counsel. Petitioner entered a plea of not guilty and was informed of his right to seek discovery and pursue pretrial motions.

On September 17, 1996, the motion for appointment of counsel to which Petitioner had made reference at the September 16th arraignment was filed. On October 2, 1996, Petitioner filed a number of motions, including one that is described on the docket report as "Motion to Appeal for Legal Counsel." (Dkt. Entry # 13-3 at 2.) A rule was made returnable on this motion for November 4, 1996. (Id.) It appears, however, that Smith did not pursue the matter during the court proceedings conducted in early November.

On November 27, 1996, Smith, still proceeding pro se, entered a guilty plea to two (2) counts of involuntary deviate sexual intercourse. See Commonwealth v. Smith, 717 A.2d 1032, 1033 (Pa. Super. 1998). The plea was the result of an offer presented to Petitioner by the Commonwealth. During the plea colloquy, Petitioner acknowledged that he knew that each count carried a prison term of 5 to 20 years, and that consecutive sentences, totaling 10 to 40 years, would be sought by the prosecutor. Petitioner also acknowledged that he understood that he was admitting to the offense as defined by the judge, and in particular admitted to having oral sex with a child of less than 13 years of age. (Tr. of November 27, 1996, Dkt. Entry # 13-6, at 7.) He later explained, however, that he was pleading guilty because he was unable to obtain a lawyer and he did not want to put his step-daughter through the ordeal of testifying. (Id. at 19-20.)*fn2 The trial court scheduled sentencing for December 23, 1996, reserving the decision whether to accept the plea and plea agreement until the time of sentencing. (Id. at 21-22.) Petitioner was informed that he could move to withdraw his guilty plea prior to his sentencing or within ten (10) days after sentencing, with an explanation that it would be easier to have the motion granted if filed before sentencing. (Id. at 22.)

Petitioner did not move to withdraw his plea prior to the scheduled sentencing date. On December 23, 1996, he was sentenced to an aggregate ten (10) to forty (40) year term of imprisonment.*fn3 During sentencing Petitioner indicated to the court that he was represented by counsel who was not present. However, the sentencing proceeding continued after the court concluded that no attorney had entered an appearance on behalf of the defendant.*fn4

Post-sentence motions, although having been delivered to a Bradford County Prison official for filing before Petitioner was transferred to a state correctional institution in late December of 1996, were not forwarded to the court but were instead returned to Petitioner. He then mailed them to the court and the motions were docketed on January 27, 1997. The post-sentence motions were dismissed summarily as untimely.*fn5 Petitioner did not appeal the dismissal of his post-sentence motions. Instead, on February 12, 2007, he filed for relief pursuant to Pennsylvania's Post Conviction Relief Act (PCRA), 42 Pa. C. S. A. § 9541, et seq. Following appointment of counsel, an Amended PCRA Petition was submitted. The Amended PCRA Petition was denied by the Court of Common Pleas on the basis that Petitioner had waived the right to seek relief by not filing a timely post-sentence motion or direct appeal asserting the issues presented in his amended PCRA petition.

On July 31, 1998, the Pennsylvania Superior Court remanded Smith's PCRA action with instructions that the Court of Common Pleas conduct an evidentiary hearing to determine whether his post-sentence motions should have been regarded as timely by application of the "prisoner mailbox rule" so as to preclude a determination that Petitioner had waived the right to seek PCRA relief. (Dkt. Entry # 13-9.) The Pennsylvania Supreme Court denied allowance of appeal on July 9, 1999. See Commonwealth v. Smith, 740 A.2d 232 (Pa. 1999)(Table).

After conducting a hearing, the PCRA court, on December 23, 1999, again concluded that Petitioner's post-sentence motions were untimely and that he had not filed a timely direct appeal, and denied the PCRA petition. (Dkt. Entry # 13-14.) Thereafter, a June 7, 2001 unpublished decision by the Superior Court concluded that Smith's post-sentence motions were timely by virtue of application of the "prisoner mailbox rule." (Dkt. Entry # 13-17, at 11.) Consequently, Petitioner had not waived the right to seek relief under the PCRA. The case was remanded with instructions that the PCRA court conduct an evidentiary hearing as to his argument that he was denied his right to counsel. (Id.)

Following a January 9, 2002 hearing, the Court of Common Pleas issued an Order on April 17, 2002 which found that Petitioner was not denied his right to counsel. (Dkt. Entry # 13-19.) The Superior Court affirmed that decision on May 14, 2003. (Dkt. Entry # 13-22.) A petition for allowance of appeal was denied by the Pennsylvania Supreme Court on February 18, 2004. See Commonwealth v. Smith, 847 A. 2d 1284 (Pa. 2004)(Table). Thereafter, Smith's request for reconsideration was denied by the Supreme Court on March 24, 2004. (Dkt. Entry # 13-23.)

On April 21, 2005, more than one (1) year after the conclusion of the PCRA proceedings, Smith initiated this action in the United States District Court for the Western District of Pennsylvania.*fn6 His pro se petition claims that he was provided with ineffective assistance of counsel by the Bradford County Public Defender's office. Specifically, Smith asserts that counsel coerced him into entering a plea agreement; improperly waived his right to a preliminary hearing; continued to represent him despite a conflict of interest; aided and abetted the prosecution; refused to provide zealous representation; and conspired with the Commonwealth because of his belief that Petitioner was guilty. Smith also argues that he was incompetent to enter a guilty plea and is actually innocent of all charges. Furthermore, Petitioner contends that ...


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