United States District Court, W.D. Pennsylvania
PARADISE BAXTER United States Magistrate Judge
before the Court is a petition for a writ of habeas corpus
filed pursuant to 28 U.S.C. § 2254 by Zachary Thomas
Spada (the "Petitioner"). For the reasons set forth
below, the petition is denied and a certificate of
appealability is denied on all claims.
A. Relevant Background 
August 24, 2011, the Petitioner appeared before the Court of
Common Pleas of Erie County to plead guilty to charges filed
against him in three criminal cases. Kevin M. Kallenbach,
Esquire, was his attorney. At criminal docket 3079 of 2010,
he pleaded guilty to an amended charge of harassment (he had
originally been charged with indecent assault). The factual
basis for his plea at this docket number was his attempt to
grab the "vaginal area" of a 16-year-old girl on
September 23, 2010. (Plea Hr'g Tr. at 9-10). At criminal
docket 3150 of 2010, he pleaded guilty to one count of
terroristic threats and one count of loitering and prowling
around a dwelling for pulling a knife on another victim and
saying to her "[g]et away from me, bitch, or I'm
going to shank you[, ]" on October 18, 2010.
(Id. at 10-11). At criminal docket 1385 of 2011, he
pleaded guilty to harassment for making repeated threats to
two other victims (a mother and daughter) on March 25, 2011.
(Id. at 11).
Petitioner's sentencing hearing was held on October 13,
2011. He did not appear at the scheduled time. The court
asked Attorney Kallenbach about the Petitioner's
whereabouts. The Petitioner had not contacted Kallenbach to
inform him that he would not attend or would be late, and
Kallenbach told the court that the Petitioner had assured his
father he would be in attendance. He thought that perhaps the
Petitioner was "frightened that he was unsuccessfully
discharged [from his Gaudenzia in-patient stay] and that that
would be a factor in his sentencing." (Sentencing
Hr'g Tr. at 2). The court replied that the Petitioner
"did receive notice at the time of his plea, and there
is no justifiable reason why he is not here, so we will
proceed to sentence him in absentia, and I will
issue a bench warrant for his apprehension."
and the prosecutor each made a statement regarding the
sentences the court should impose. (Id. at 3-4).
Before imposing the sentences, the court explained:
The Court has considered a number of things here, the
Pennsylvania Sentencing Code and all its factors, the
guidelines, and the pre-sentence investigative report which
I'm going to make a part of the record, and I've
considered that in its entirety.
Obviously the cases are serious. The one victim impact
statement indicates just how much the one victim was
terrorized by [the Petitioner's] activities. [The
Petitioner] has serious problems. Not only are there mental
health issues, there's anger management problems, and the
Court is extremely concerned that what we have here is a
crime spree where he either harassed or terrorized
individuals, and so he is a clear and present danger to the
community right now until these issues can be brought under
control. The Court is also concerned because he's not
here today, and that as well as the crime spree aspect of
this case leads this Court to believe that these are clearly
(Id. at 5). The court then imposed the following
sentences: 3-12 months for harassment at 1385 of 2011; 3-12
months, consecutively, for harassment at 3079 of 2010; 6-12
months for loitering and prowling at night, consecutive to
the second harassment sentence; and 10-48 months for
terroristic threats, consecutive to the loitering/prowling
sentence. It appears that three of the terms imposed were
within the aggravated sentence range.
the hearing concluded and Kallenbach and the prosecutor had
left the courtroom, the Petitioner arrived with his father.
The court informed the Petitioner that he had been sentenced
and he should speak to his attorney about what happened.
(Id. at 9-10).
Petitioner filed a motion to reconsider his sentence, which
the court denied. Thereafter, he filed an appeal with the
Superior Court of Pennsylvania, which that court quashed
because Kallenbach did not file a brief. However, the
Petitioner's direct appeal rights were subsequently
reinstated nunc pro tunc and William J. Hathaway,
Esquire, was appointed to represent him.
Petitioner, through Attorney Hathaway, filed another motion
to reconsider the sentence in which he contended that the
trial court made errors in sentencing him. He did not
challenge the trial court's decision to sentence him
in absentia. The court denied that motion in an
order dated August 1, 2012.
the Petitioner, through Attorney Hathaway, filed a direct
appeal to the Superior Court in which he raised issues not
relevant to this habeas proceeding. On April 5, 2013, the
Superior Court issued a Memorandum Opinion in which it
affirmed the Petitioner's judgment of sentence.
(Commonwealth v. Spada, No. 1321, 1322 and 1323 WDA
2012 (Pa.Super.Ct. Apr. 5, 2013)).
his direct appeal concluded, the Petitioner filed a pro
se petition for relief under Pennsylvania's Post
Conviction Relief Act ("PCRA"), 42 Pa.C.S. §
9541 et seq. The PCRA court once again appointed
Attorney Hathaway to be the Petitioner's attorney and he
filed a counseled supplement to the PCRA petition. The
Petitioner contended that his trial attorney, Kallenbach,
provided him with ineffective assistance on two grounds that
are not relevant to this habeas proceeding. The Petitioner
also argued that he was denied his "absolute right"
of allocution when the court sentenced him in
absentia. (2/7/14 Supplement to PCRA Motion at 6).
March 3, 2014, the PCRA court presided over an evidentiary
hearing at which the Petitioner and Kallenbach testified. The
PCRA court denied relief in an opinion and order dated March
18, 2014. (Commonwealth v. Spada, Nos. 3079 &