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Miller v. Erie County Court of Common Pleas

United States District Court, Third Circuit

September 19, 2013

EMMANUEL JOSH MILLER, Petitioner,
v.
ERIE COUNTY COURT OF COMMON PLEAS, et al., Respondents.

MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

SUSAN PARADISE BAXTER, Magistrate Judge.

I. RECOMMENDATION

It is respectfully recommended that the petition for a writ of habeas corpus be denied and that a certificate of appealability be denied.

II. REPORT[1]

A. Relevant Background

In March of 2011, the Petitioner, Emmanuel Josh Miller, appeared before the Court of Common Pleas of Erie County and pleaded guilty to one count of Firearms Not to be Carried Without a License, a felony in the third degree. On April 28, 2011, the court sentenced him to 36-72 months' of imprisonment. (CP Dkt. No. 7). He did not file a direct appeal with the Superior Court of Pennsylvania.

On November 21, 2011, Petitioner filed a pro se motion under Pennsylvania's Post Conviction Relief Act ("PCRA"), 42 Pa.C.S. ยง 9541 et seq. in which he challenged the sentence imposed. (CP Dkt. No.14). The court appointed William J. Hathaway, Esquire, to represent him. Hathaway subsequently filed a petition for leave to withdraw as counsel and an accompanying "no-merit" letter pursuant to Commonwealth v. Turner , 544 A.2d 927 (Pa. 1988) and Commonwealth v. Finley , 550 A.2d 213 (Pa. 1988). (CP Dkt. Nos. 26, 27). Hathaway explained:

The Petitioner has asserted that the Court imposed an illegal sentence, that is a sentence greater than the lawful maximum. The Petitioner's argument is predicated on his assertion that the gravity score [sic] of nine was improperly calculated and applied in that juvenile adjudications were included in said calculation wherein it was his understanding and expectation that his juvenile record would be expunged upon reaching the age of majority and not be subject to further sanction. The Petitioner's averments instead purport to implicate the prior record score application underlying the sentencing guidelines.
.... Under the limited parameters of the PCRA, the sole basis to secure relief in regard to sentencing is to plead and prove the imposition of an illegal sentence, that is a sentence greater than the lawful maximum. The Petitioner cites this contention, but the Petitioner was sentenced within the statutory parameters. Thus, the instant judgment of sentence is patently legal in nature and there is no necessity to establish a further record in that regard. The Petitioner's argument as to improper utilization of his prior criminal record including juvenile adjudications in the calculation of the sentencing guidelines in any form including the prior record score is without any arguable merit. Upon review of the sentencing records, the guideline form evidences that the total of nine (9) is correct including application of a prior juvenile record including a prior robbery adjudication which did not affect the offense gravity score as alleged by the Petitioner herein and was duly incorporated in the prior offense score of 9 designating the Petitioner as a REVOC. The Petitioner was confronted with a statutory maximum sentence under the guidelines given the significant prior record score which was discussed at the time of sentencing including the prior juvenile record for the benefit of the Petitioner's understanding, however, the Court departed from the guidelines and imposed [a] sentence slightly below the applicable ranges further evidencing that the instant sentence did not exceed the statutory parameters as mandated to state a colorable claim under the PCRA statute as to an illegal sentence.

(CP Dkt. No. 18 at 1-2 (bracketed text in original)).

The PCRA court granted Hathaway's petition for leave to withdraw as counsel. (CP Dkt. No. 20). It also issued a Notice of Intent to Dismiss PCRA Without a Hearing Pursuant to Pa.R.Crim.P. 907(1), in which it held:

The Court, having considered the Defendant's PCRA Petition, Court appointed counsel's "no merit" letter dated January 13, 2012 (copy attached), and having conducted its own independent review of the record, hereby concludes that Defendant's plea was voluntarily and knowingly entered, his sentence was appropriate and within the statutory requirements, and the guidelines were properly calculated pursuant to the Defendant's prior record, and he was deemed to be a REVOC based on a prior record score of nine.
Further, the Court's sentence was outside and below the applicable guideline ranges. The Court can find nothing in the plea proceedings, sentencing or applicable guidelines which would ...

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