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Pope v. Wingard

United States District Court, M.D. Pennsylvania

December 23, 2014

BOB POPE, Petitioner,
v.
SUPERINTENDENT TREVOR WINGARD, et al., Respondents.

MEMORANDUM

MALACHY E. MANNION, District Judge.

Petitioner Bob Pope has filed a petition for writ of habeas corpus pursuant to 28 U.S.C. §2254. (Doc. 1). He challenges a conviction and sentence imposed by the Court of Common Pleas for Dauphin County, Pennsylvania. Id . Pope raises four grounds for relief: (1) the trial court erred in revoking Pope's probation, (2) the trial court erred in increasing Pope's sentence for State count one, (3) the trial court erred in increasing the sentence for State counts seven and eight, and (4) the trial court erred in increasing the sentence for State counts two, five, six, and fifteen. Id.

In accordance with United States v. Miller, 197 F.3d 644 (3d Cir. 1999), and Mason v. Meyers, 208 F.3d 414 (3d Cir. 2000), this Court issued formal notice to Pope that he could either have the petition ruled on as filed but lose his ability to file a second or successive petition, or withdraw his petition and file one all-inclusive §2254 petition within the one-year statutory period prescribed by the Antiterrorism Effective Death Penalty Act ("AEDPA"). (Doc. 3). On April 10, 2014, Pope returned the notice of election, indicating that he wished to proceed with his petition for writ of habeas corpus as filed. (Doc. 4). On May 23, 2014, the Respondents filed a motion to dismiss on the grounds that Pope had not exhausted state court remedies. (Doc. 13). Because this Court concludes that Pope has presented a mixed petition, the Respondents' motion is denied.

I. Background

The following account of the procedural history of this case is taken from the Pennsylvania Superior Court's May 6, 2013 decision affirming the denial of Pope's claims that his sentences were illegal or unconstitutional. (Doc. 13, Ex. 3).

On November 3, 2003, [Pope] entered a plea of nolo contendere to two counts each of criminal solicitation to commit rape, statutory sexual assault, involuntary deviate sexual intercourse, aggravated indecent assault, indecent assault, indecent exposure, and corruption of minors, as well as to one count of criminal use of a communication facility.
On March 11, 2004, he was sentenced to two to four years of imprisonment, followed by five years of probation. At the conclusion of the sentencing hearing, Pope was advised of his post-sentencing rights. Pope did not file a direct appeal.
On August 29, 2005, Pope file [sic] a petition for relief under the Post Conviction Relief Act ("PCRA"). On May 23, 2007, the amended petition was denied in part and granted it [sic] in part. The Court granted the petition as it pertained to an illegal sentence based on improper merge [sic] of some of the counts, and vacated the sentences as those [sic] counts.
On August 1, 2007, Pope was re-sentenced to the original sentence of two to four years of imprisonment, followed by five years of probation. On August 8, 2007, Pope filed a timely post-sentence motion. The order denying the motion was not entered by the prothonotary until March 7, 2008. [A] timely appeal followed.
This Court affirmed the judgment of sentence. On January 12, 2009, Pope faced a revocation hearing at which the trial court determined Pope was not in violation of his probation.
On January 19, 2011, Pope again faced revocation proceedings. After a hearing, the trial court resentenced Pope to an aggregated period of 24 to 48 months' incarceration followed by 168 months' probation. Pope did not file a motion to modify sentence. Pope filed a notice of appeal on February 8, 2011. Counsel filed a statement of intent to file an Anders brief in lieu of a concise statement of matters on February 24, 2011.
[B]y way of memorandum opinion filed on October 6, 2011, [the Superior Court] denied counsel's petition to withdraw finding the sentence imposed by the trial court to be "facially illegal"... [thereafter, the Superior Court] vacated Pope's judgment of sentence and remanded for re-sentencing.
Upon remand, Pope appeared before the Honorable Richard Lewis for re-sentencing [and]... was resentenced to concurrent terms of 24 to 48 months' imprisonment on Counts 7 ...

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