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Spada v. Cameron

United States District Court, W.D. Pennsylvania

February 23, 2017

KEN CAMERON, et. al., Respondents.

          OPINION [1]

          SUSAN PARADISE BAXTER United States Magistrate Judge

         Presently 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.

         I. A. Relevant Background [2]

         On 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).

         The 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." (Id.)

         Kallenbach 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 aggravating factors.

(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.

         After 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).

         The 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.

         The 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.

         Next, 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)).

         After 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).

         On 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 & ...

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