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Baney v. Palakovich

June 9, 2010

JEREMY MICHAEL BANEY, PETITIONER
v.
JOHN PALAKOVICH, WARDEN, RESPONDENT



The opinion of the court was delivered by: Malcolm Muir United States District Judge

Petition Filed 9/17/08

MEMORANDUM AND ORDER

Petitioner, Jeremy Michael Baney, filed the instant petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. He attacks a conviction imposed by the Court of Common Pleas for Clinton County, Pennsylvania, for his role in a drug distribution ring that operated across Lycoming, Clinton and Centre counties in Pennsylvania, between 1997 and September, 2001. (Doc. 1). For the reasons that follow, the Court will deny the petition.

I. Background

On March 3, 2002, Baney was arrested at the conclusion of a statewide grand jury investigation and charged as a result of his role in a drug distribution ring that operated across Lycoming, Clinton and Centre counties between 1997 and September, 2001. (Doc. 19, Ex. II, Memorandum Opinion of the Superior Court of Pennsylvania dated December 24, 2008). Clinton County was selected as the jurisdiction in which Baney's case would be tried. Id.

On May 19, 2003, Baney entered into a negotiated plea agreement with the Commonwealth wherein he agreed to plead guilty to charges of possession with intent to deliver a controlled substance (twenty-two counts), 35 P.S. § 780-113(a)(30); criminal use of a communication facility (one count), 18 Pa.C.S.A. § 7512(a); corrupt organizations (one count), 18 Pa.C.S.A. §911(b)(3); dealing in proceeds of unlawful activity (five counts), 18 Pa.C.S.A. § 5111(a)(1); and criminal conspiracy (one count), 18 Pa.C.S.A. § 903. Id.

On August 11, 2003, in accordance with the plea agreement, Baney was sentenced to an aggregate sentence of not less than two hundred forty (240) months nor more than four hundred sixty-eight (468) months of incarceration. Id. The Commonwealth further agreed to request a nolle prosequi of the remaining sixty-one counts listed on the criminal information. Id.

On September 17, 2003, Baney filed a direct appeal to the Superior Court of Pennsylvania. (Doc. 19, Ex. D, Direct Appeal). He raised the following grounds for relief:

1. Whether the trial court had jurisdiction over the charges pertaining to offenses occurring in Centre and Lycoming Counties;

2. Whether the trial court imposed an illegal sentence because the minimum sentence exceeds one-half the maximum in violation of 42 Pa.C.S. § 9756(b) (the "minimum-maximum rule");

3. Whether the trial court imposed an illegal sentence by not merging Baney's conspiracy and corrupt organizations convictions for sentencing purposes;

4. Whether the trial court abused its discretion in imposing its sentence; and

5. Whether Baney entered his negotiated guilty plea knowingly and voluntarily.

(Doc. 19, Ex. G, Memorandum Opinion of the Superior Court of Pennsylvania dated Sept. 3, 2004, at p. 6). Subsequent to the filing of petitioner's direct appeal, Baney's counsel filed a motion and supporting brief pursuant to Anders v. California, 386 U.S. 738, (1967). (Doc. 19, Ex. D, Baney's counseled Superior Court brief).

On or about February 3, 2004,after counsel submitted his Anders brief, Baney filed a pro se brief in support of his appeal. (Doc. 19, Ex. E, Pro Se Superior Court brief).

In a published opinion filed on September 3, 2004, the Pennsylvania Superior Court affirmed Baney's judgment of sentence and permitted counsel to withdraw from the case. (Doc. 19, Ex. G, Commonwealth v. Baney, 860 A.2d 127 (2004), Memorandum Opinion of the Superior Court of Pennsylvania dated Sept. 3, 2004, at p. 6).

On December 6, 2004, Baney filed a pro se petition for allowance of appeal to the Pennsylvania Supreme Court. (Doc. 19, Ex. H, Petition for Allowance of Appeal).

On June 7, 2005, the Pennsylvania Supreme Court denied Baney's petition for allowance of appeal. (Doc. 19, Ex. I, Order)

On July 12, 2005, Baney filed a pro se petition for relief under the Pennsylvania Post Conviction Relief Act ("PCRA"), 42 PA. CONS. STAT. §§ 9541-9546. (Doc. 19, Ex. L, Pro Se PCRA Petition). He raised the following issues for relief:

1. The oral and written guilty plea was invalid due to defective oral and written plea colloquies;

2. The plea agreement as accepted by the court did not provide for imposition of fines as a consequence of the plea.

3. The lower court erred by imposing fines without conducting an inquiry into Baney's ability to pay;

4. The lower court erred by directing Baney to pay restitution;

5. The lower court erred by improperly considering Baney's forty-seven (47) prior arrests when imposing sentence;

6. The lower court demonstrated bias when imposing sentence;

7. The lower court erred by imposing consecutive sentences when the crimes should have merged for sentencing purposes; and

8. Prior counsel was ineffective for failing to raise the foregoing issues.

Id. The PCRA Court then appointed counsel to represent Baney, and on October 21, 2005, counsel filed an amended PCRA petition, raising the following issues for review:

1. Baney's sentence was imposed based upon a "message to the community" which was improper;

2. All convictions should have merged with the corrupt organizations charge at the time of sentencing;

3. There was no determination of Baney's ability to pay when the court imposed a fine in the amount of $50,000.00 at the time of sentencing; and

4. The lower court failed to inquire as to whether Baney understood the nature of his plea, the elements of the crimes with which he was charged, and whether there was a factual basis for the plea.

(Doc. 19, Ex. N, Counseled Amended PCRA Petition).

The amended petition also raised the following claims of ineffective assistance of counsel:

5. Failure of counsel to properly advise Baney of the elements of the offenses, the possible range of sentences and the possible effects of a guilty plea;

6. Failure of counsel to properly prepare for the sentencing hearing in that he failed to present testimony and evidence to support a lesser sentence;

7. Failure to obtain discovery and explore possible defenses with Baney;

8. Failure to properly investigate the allegations against Baney;

9. Failure to file motions to suppress, namely the wiretap evidence; and

10. Failure to obtain a psychological evaluation of Baney which may have assisted in the trial ...


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