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Randy Drawbaugh v. Superintendent John Kerestes

May 19, 2011

RANDY DRAWBAUGH, PETITIONER
v.
SUPERINTENDENT JOHN KERESTES, :
RESPONDENT



The opinion of the court was delivered by: Judge Muir

Petition Filed 11/05/10

MEMORANDUM AND ORDER

Petitioner, Randy Drawbaugh, filed the instant petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, in which he attacks a conviction imposed by the Court of Common Pleas for York County, Pennsylvania. (Doc. 1). For the reasons that follow, the petition will be dismissed as untimely.

Background

The following background has been extracted from the Pennsylvania Superior Court's July 27, 2009 Opinion affirming the denial of Drawbaugh's petition pursuant to the Post Conviction Relief Act (PCRA).

The relevant facts and procedural history are as follows: From February to April 2005, Appellant knowingly wrote over twenty personal checks from accounts, which had been closed, and he used the checks to purchase thousands of dollars worth of goods. The police arrested Appellant, and the Commonwealth filed seventeen separate complaints against Appellant charging him with multiple counts of theft by deception, 18 Pa.C.S.A. § 3922(a), receiving stolen property, 18 Pa.C.S.A. § 3925(a), and bad checks, 18 Pa.C.S.A. § 4105. The cases were consolidated, and represented by Assistant Public Defender Erin Thompson, Appellant proceeded to a jury trial, at the conclusion of which Appellant was convicted of multiple counts of theft by deception, receiving stolen property, and bad checks. On October 24, 2005, the trial court sentenced Appellant to an aggregate of ninety-three months to two hundred and twenty-eight months in prison. On November 2, 2005, Appellant filed a motion seeking reconsideration of his sentence, and on November 9, 2005, the trial court denied the motion.

Appellant did not file a timely direct appeal to this Court; however, on November 16, 2005, Appellant filed a PCRA petition. Since the PCRA petition was filed before the thirty-day time period in which to file an appeal to this Court had expired, the PCRA court dismissed the petition without prejudice on November 22, 2005. See Commonwealth v. Chambers, 920 A.2d 892, 895 n.2 (Pa. Super. 2007)(indicating an appellant's PCRA petition was denied as being premature when it was filed prior to the expiration of the direct appeal period). Thereafter, Appellant did not file a direct appeal from his judgment of sentence.

On July 5, 2006 Appellant filed a timely pro se PCRA petition, and Vincent Spadafora, Esquire, was appointed to represent Appellant. On December 21, 2006, the PCRA court denied the PCRA petition. Appellant did not file an appeal to this Court; however, on April 25, 2007, Appellant filed a document entitled "Motion to Reinstate His Rights to Appeal and Appoint New Counsel" with regard to the denial of his PCRA petition. Appellant averred he did not receive timely notice of the PCRA court's December 21, 2006 order. By order filed on May 2, 2007, the PCRA court denied Appellant's document entitled "Motion to Reinstate His Right to Appeal and Appoint New Counsel," and Appellant did not file an appeal to this Court.

On December 11, 2007, Appellant filed the instant pro se PCRA petition, and Dawn Marie Cutaia, Esquire was appointed to represent Appellant. Counsel filed an amended PCRA petition on behalf of Appellant, the matter proceeded to a PCRA hearing, and on April 23, 2008, the PCRA court denied Appellant's PCRA petition. This timely appeal followed. By order filed on April 30, 2008, the PCRA court directed Appellant to file a Pa.R.A.P. 1925(b)

Commonwealth v. Drawbaugh, 981 A.2d 916 (Pa. Super. Jul 27, 2009). By Memorandum Order filed July 27, 2009, the Pennsylvania Superior Court affirmed the PCRA court's denial of Drawbaugh's PCRA petition. Id. Petitioner filed for allowance of appeal to the Pennsylvania Supreme Court, which was denied on May 26, 2010. Commonwealth v. Drawbaugh, 606 Pa. 670, 996 A.2d 490 (Pa. May 26, 2010) (Table, No. 6328 MAL 2009).

On November 5, 2010, Drawbaugh filed the instant petition for writ of habeas corpus in which he raises the following challenges to his conviction and sentence:

1. Trial counsel was ineffective for failing to object to the trial court permitting charges, Case No. 3289-2005 and 2986-2005, over which it did not have jurisdiction to allow these cases to go to the jury, and for not having the jurisdiction to sentence the defendant on these cases.

2. Trial counsel was ineffective for failing to object and for failing to make a timely request with the court of a move for a mistrial when both prosecution witnesses testified before the jury with inflammatory statements that was prejudicial to the defendant and violating defendant's Constitutional right to a fair and impartial trial.

3. Trial counsel was ineffective for failing to object to the consolidation of all the theft by deception cases with the trial court, for which was extremely prejudicial to the defendant for one jury to hear all 17 cases together, when all the cases were separate transactions and should have been tried separately, therefore ...


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