The opinion of the court was delivered by: Susan Paradise Baxter United States Magistrate Judge
Magistrate Judge Susan Paradise Baxter
Petitioner, Amy M. Nielsen, has filed a Petition For Writ Of Habeas Corpus pursuant to 28 U.S.C. § 2254, which she subsequently amended. [Document Nos. 1 & 13]. For the reasons set forth below, her request for habeas relief is denied and a certificate of appealability is denied.
In 2000, the Commonwealth charged Petitioner with nine separate counts of writing bad checks in violation of 18 PA.CONS.STAT. § 4105. Her criminal case is docketed in the Court of Common Pleas of Erie County, Pennsylvania, at No. 1617 of 2000.*fn2 The court appointed Christine Fuhrman Konzel, Esq., who at the time was the Chief Public Defender of Erie County, to represent her.
On June 22, 2000, Petitioner pleaded guilty to each count. That same day, the trial court sentenced her to 5 years of Restrictive Intermediate Punishments ("RIP")*fn3 on each count, to be served consecutively. (See Drug Court Plea and Sentencing Hr'g Tr.).*fn4
Petitioner had several drug relapses and her RIP was revoked after a hearing on August 23, 2001. The court resentenced her to 1-2 years' imprisonment at Count 1; a consecutive 1-2 years' imprisonment at Count 2; and, a consecutive 6-12 months' imprisonment at Count 3. The court also imposed a 5-year term of probation for Counts 3 through 9, to be served consecutively. (See Intermediate Punishment Revocation Hr'g Tr. at 10-11).
On August 31, 2001, Petitioner filed a post-sentence motion claiming that her sentence was excessive and requesting a modification to a lesser term of incarceration and probation. (SCR No. 15). In response to the motion, the court modified the sentence so that the terms at Count 2 and Count 3 ran concurrent to Count 1, leaving an aggregate sentence of 1-2 years of imprisonment, to be followed by 25 years of probation. (SCR No. 19).
Petitioner subsequently committed several technical violations of her probation, including failing to abstain from illegal drug use. A probation revocation hearing was held on February 2, 2004, at which Petitioner was represented by Stephen J. Lagner, III, Esq., with the Public Defender's Office. At the end of the hearing, the court revoked Petitioner's probation and resentenced her to consecutive terms of imprisonment of 2 1/2 to 5 years on Count 4 and Count 5, effective from the date she was detained in October 2003. It also reimposed the other periods of probation for Counts 6 through 9. (See State Probation Revocation Hr'g Tr. at 5-17; see also SCR No. 27, ¶¶ 4-6).
On February 9, 2004, Petitioner, through Lagner, filed a motion to modify her sentence, claiming that the court improperly classified her convictions as first degree misdemeanors. (SCR No. 27). The court agreed and during a hearing on March 17, 2004, it vacated its February 2nd sentencing order. It then resentenced her to: 1-2 years' imprisonment at Count 4 (effective March 13, 2002); a consecutive sentence of 6-12 months' imprisonment at Counts 5, 6, and 7; to be followed by consecutive terms of 12 months' probation at Counts 1, 2, 3, 8, and 9, to commence at the expiration of her sentence at Count 7. Thus, Petitioner's aggregate sentence was a term of imprisonment not less than 30 months nor more than 60 months. (Post-Sentencing Motion/Resentencing Hr'g Tr. at 13-15; SCR No. 30).*fn5
Subsequent to that action, Petitioner, through Lagner, filed another post-sentence motion, in which she alleged that her sentence was illegal and that she was entitled to additional credit for time served. (SCR No. 31). On or around March 30, 2004, the court issued an order denying that motion. (SCR No. 33).
Petitioner, through Lagner, filed an appeal to the Superior Court of Pennsylvania on April 29, 2004. (See SCR Nos. 35, 37). She raised the following three claims:
(1) Where the trial court vacated an illegal sentence and resentenced the appellant, did the trial court commit an error as a matter of law when it failed to apply the sentencing guidelines at the time of the March 17, 2004, resentencing?
(2) If the Superior Court determines that the sentencing guidelines were not applicable at the time of the March 17, 2004, resentencing, was the revocation sentence imposed nonetheless manifestly excessive?
(3) If the Superior Court determines that the sentencing guidelines were not applicable to the March 17, 2004, resentencing and the sentence imposed was not otherwise manifestly excessive, did the court err as a matter of law in determining the amount of credit to be applied to the March 17, ...