The opinion of the court was delivered by: Magistrate Judge Susan Paradise Baxter
Presently before the Court is Petitioner Alan R. Bell's Amended Petition For Writ of Habeas Corpus [ECF No. 27], which he filed pursuant to 28 U.S.C. § 2254. He contends that his judgment of sentence, which was imposed by the Court of Common Pleas of Crawford County on August 23, 2005, was obtained in violation of his Constitutional rights. Also pending is his Motion to Proceed [ECF No. 32], in which he seeks to clarify his some of his claims. That motion is granted.
In or around October 2004, the Commonwealth charged Petitioner with 17 counts of Delivery of a Controlled Substance, 35 P.S. § 780-113(a)(30), and one count each of Possession of a Controlled Substance, 35 P.S. § 780-113(a)(16), Criminal Use Of Communication Facility, 18 Pa.C.S. § 7512(a), and Criminal Conspiracy, 18 Pa.C.S. § 903(a)(2), for alleged criminal activity that occurred between January 23, 2004, through August 21, 2004.
In its charges against him, the Commonwealth alleged that during the dates in question it had used a Confidential Informant ("CI") to engage in controlled drug buys from Petitioner, several occurring at Petitioner's residence. Eventually, the CI introduced an undercover agent of the Commonwealth to Petitioner. The CI and agent together engaged in controlled drug buys from Petitioner; later, the agent and Petitioner conducted transactions without the CI. Illegal activities were alleged to have occurred in Venango, Crawford and Mercer Counties. During part of this period, the Commonwealth had Petitioner under surveillance and intercepted his telephone calls.
Harry Faber White, III, Esq., was appointed as Petitioner's defense counsel. On June 9, 2005, Petitioner pleaded guilty to three counts (Counts 5, 11 and 16) of Delivery of a Controlled Substance, 35 P.S. § 780-113(a)(30); the remaining charges were nolle prossed.
The court sentenced Petitioner on August 23, 2005. For Count 5, the first offense, the court imposed a sentence of 3-10 years' imprisonment. The sentences imposed for Counts 11 and 16 were the subject of much debate and discussion among the parties and the court, and became an issue on appeal. The Commonwealth contended that for the sentences to be imposed on those counts, the court was required to apply the enhancement set forth at 18 Pa.C.S. § 7508(a)(3)(ii), which provides: "If at the time of sentencing, the defendant has been convicted of another drug trafficking offense," the defendant shall be subject to a mandatory minimum sentence of 5 years' imprisonment. The definition of previous conviction is found at § 7508(a.1):
Previous conviction. -- For purposes of this section, it shall be deemed that a defendant has been convicted of another drug trafficking offense when the defendant has been convicted of another offense under Section 13(a)(14), (30) or(37) of The Controlled Substance, Drug, Device and Cosmetic Act, or of a similar offense under any statute of any state or the United States, whether or not judgment of sentence has been imposed concerning that offense.
Petitioner countered that the enhancement should not be applied to the sentences to be imposed on Counts 11 and 16 because his guilty plea on Count 5 arose from the same multiple count information. He argued that his conviction of subsequent counts under the same information could not be deemed recidivism subject to greater punishment under the sentencing statute. Subjecting him to a heavier penalty without a prior conviction, he contended, would undermine the "recidivist philosophy" upon which mandatory minimum sentencing provisions for subsequent offenders are based.
The sentencing court "fully agree[d] with [Petitioner's] position on this matter from a logical standpoint," but determined that it was bound under the Pennsylvania Supreme Court's decision in Commonwealth v. Vasquez, 753 A.2d 807 (Pa. 2000) to apply the enhancement to the sentences to be imposed on Counts 11 and 16. [See ECF No. 29-1 at pp. 26-28, Sentencing Court's Rule 1925 Opinion, Commonwealth v. Bell, CR 2004-1014, slip op. (C.P. Crawford Oct. 5, 2005)]. In that case, the court interpreted a companion subsection, 18 Pa.C.S. § 7508(a)(3)(i), which mandates an enhanced sentence for convictions involving less than ten grams of cocaine "if at the time of sentencing the defendant has been convicted of another drug trafficking offense[.]" Vasquez, 753 A.2d at 808-09. That subsection is identical to the one at issue in Petitioner's case, differing only as to the amount of cocaine possessed (under ten grams as opposed to ten to 100 hundred grams).
In Vasquez, the trial court had applied the enhancement to the defendant and imposed a sentence following the defendant's conviction on a two-count indictment and treated the defendant's first conviction as "another drug trafficking offense," triggering an enhanced sentence for the defendant's second conviction. Id. at 808. On appeal, the Superior Court affirmed in part and reversed in part, citing the objectives of the "recidivist philosophy."
Commonwealth v. Vasquez, 726 A.2d 396, 399-400 (Pa.Super. 1999). It concluded that those objectives would not be advanced by imposition of an enhanced sentence to the second conviction of a two-count indictment. The Pennsylvania Supreme Court reversed and analyzed the provision as follows:
[E]ven if we were to conclude that these transactions could be construed as a single criminal episode, the statute at issue specifically focuses on a defendant's prior "convictions" at the time of sentencing, and makes no distinction between convictions that arise from a multiple count complaint, or a separate complaint. We are bound by the unambiguous language of the statute and cannot read language into it that simply does not appear. 1 Pa.C.S.A. § 1921(b). The wording of the statute is unambiguous, and clearly requires that as long as at the time of sentencing, a defendant "has been convicted" of another qualifying "offense," the defendant shall receive the enhanced sentence.
Vasquez, 753 A.2d at 809 (emphasis in original).*fn2
In accordance with Vasquez, when sentencing Petitioner for Counts 11 and 16, the court imposed enhanced sentences of 5-10 years' incarceration as prescribed by § 7508(a)(3)(ii), to run concurrently with each other but consecutive to the sentence for Count 5, for a total aggregate sentence of 8-20 years' incarceration.
Petitioner, through Attorney White, filed a direct appeal with the Superior Court in which he raised the following two claims:
(1) The trial court erred when it applied the enhanced sentencing provision of § 7508(3)(ii) when it sentenced him at Counts 11 and 16; and,(2) The application of the enhanced sentencing provision to Petitioner violated his equal protection and due process rights.
[ECF No. 29-1 at pp. 2-17, Brief Of Appellant in Commonwealth v. Bell, 1632 WDA 2005 (Pa.Super)]. Giving Petitioner the benefit of the doubt, this Court will assume that he is advancing the same federal constitutional claims in the instant habeas proceeding that he advanced on direct appeal.
On June 5, 2006, the Superior Court issued an Opinion in which it rejected Petitioner's claims on the merits and affirmed his judgment of sentence. [ECF No. 29-3 at pp. 2-11, Commonwealth v. Bell, 1632 WDA 2005, slip op. (Pa.Super June 5, 2006)]. The Pennsylvania Supreme Court denied his petition for allowance of appeal on May 23, 2007. He did not seek a writ of certiorari.
On May 7, 2008, Petitioner filed a pro se motion under Pennsylvania's Post Conviction Relief Act ("PCRA"), 42 Pa.C.S. § 9541 et seq. Then, on May 14, 2008, he filed a pro se petition for writ of habeas corpus with this Court, which was held in abeyance while Petitioner pursued his state court remedies.
In the meantime, the PCRA Court appointed Daniel A. Durst, Esq., to represent Petitioner. On October 15, 2008, Attorney Durst filed an amended PCRA petition in which he raised the following claims:
(1) trial counsel was ineffective for not objecting that the Commonwealth failed to meet its burden of proof to allow the Court to impose the sentence enhancement at § 7508(a)(3)(ii); and, (2) trial counsel was ineffective for failing to request a reduced sentence based on the doctrine of sentence manipulation or entrapment.
[ECF No. 29-4 at p. 10 (quoting Amended PCRA Petition)]. Giving Petitioner the benefit of the doubt, this Court shall assume that he is raising those same two claims in the instant habeas proceeding.
The PCRA Court presided over an evidentiary hearing at which Petitioner and his trial counsel, Attorney White, testified. On March 23, 2009, the court issued a Memorandum and Order in which it denied the Amended PCRA Petition. [ECF No. 29-4 at pp. 25-33, Commonwealth v. Bell, CR 2004-1014, slip op. (C.P. Crawford Mar. 23, 2009)].
Petitioner, through Attorney Durst, filed an appeal with the Superior Court in which he argued that the PCRA Court erred in denying each of his claims. [ECF No. 29-4 at pp. 2-23, Appellant's Brief in Commonwealth v. Bell, 657 WDA 2009 (Pa.Super.)]. On December 14, 2009, the Superior Court issued a Memorandum in which it denied Petitioner's claims on the merits and affirmed the PCRA Court's decision. Commonwealth v. Bell, 657 WDA 2009, slip op. (Pa.Super. Dec. 14, 2009), attached hereto as Exhibit A.
Pending now before this Court is Petitioner's Amended Habeas Petition [ECF No. 27], which he filed under the federal statute applicable to state prisoners, 28 U.S.C. §2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, 110 Stat. 1214, April 24, 1996 ("AEDPA"). Under this statute, habeas relief is only available on the grounds that Petitioner's judgment of sentence was obtained in violation of his rights under the United States Constitution. 28 U.S.C. § 2254(a). Petitioner claims that it was, and in support he raises the following claims:
Claim I "Petitioner was tried and convicted by a court acting without jurisdiction and Petitioner was thereby and as hereinafter described denied due process in violation of his rights secured by the United States Constitutional and its amendments 1, 4, 5, 6, 8, 9, 14" because:
A. he was indicted by a grand jury outside the proper vicinage;
B. the information filed against him was void because it did not specify the applicability of mandatory minimum sentences;
C. the information filed against him was void because approval of the information by the prosecution violates the doctrine of separation of powers;
D. the prosecution engaged in "judge shopping";
E. counsel at all levels were ineffective per se for not enforcing petitioner's rights ...