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White v. Giroux

United States District Court, W.D. Pennsylvania

March 30, 2017

LAWRENCE T. WHITE, Petitioner,
v.
NANCY GIROUX and THE ATTORNEY GENERAL OF THE STATE OF PENNSYLVANIA, Respondents.

          LAWRENCE T. WHITE CY-0479 SCI Albion

          LAWRENCE T. WHITE MV-3538 [2] SCI Albion

          MEMORANDUM OPINION [1]

          Cynthia Reed Eddy United States Magistrate Judge

         Petitioner, Lawrence T. White, is a state prisoner incarcerated at the State Correctional Institution at Albion, Pennsylvania, He seeks a writ of habeas corpus, pro se, pursuant to 28 U.S.C. § 2254. For the reasons set forth below, the petition will be denied.

         I. Procedural History

         Petitioner, Lawrence White (“Petitioner” or “White”), challenges the judgment of sentenced entered on July 26, 2013, which was corrected by Corrected Order of Sentence on November 12, 2013, in the Court of Common Pleas of Allegheny County.

         White was charged with violations of provisions of the criminal and vehicle codes. Prior to trial, an agreement was reached by the parties and approved by the trial court to sever Count 1, the Person Not to Possess/Use Firearm (“PNTP”) offense and Counts 5 and 6, the summary motor vehicle code violations, from the remaining offenses (Counts 2, 3, and 4). A single trial was to occur, with the trial judge trying Counts 1, 5, and 6, and a jury deciding Counts 2, 3, an 4.

         The trial occurred on November 18, 2009. The jury returned a verdict of guilty on all of the counts it considered. The trial court found White guilty of the motor vehicle code violations, but not guilty of Count 1, the PNTP, because the trial court initially found that the Commonwealth had failed to introduce into evidence any testimony or record of White's conviction for a crime that would have disqualified him from possessing a firearm.

         After the verdict was issued, the Commonwealth informed the trial court that it had reached a stipulation with White's counsel that White had been convicted of Criminal Homicide, a conviction which would disqualify him from possession of a firearm. With this information, the trial court changed the verdict to guilty on Count 1. On February 11, 2010, White was sentenced to 54 to 108 months incarceration for the Count 1 conviction; no additional penalty was assessed for the remaining convictions.

         White did not file a direct appeal; but he did file a timely PCRA Petition seeking to reinstate his direct appeal rights. That petition was granted and counsel appointed to represent White on direct appeal. On direct appeal, White asserted three claims of ineffective assistance of counsel and one claim of double jeopardy claiming that his rights were violated when the trial court changed its verdict on Count 1 from not guilty to guilty. The trial court in its 1925(a) opinion agreed that the change in verdict violated White's double jeopardy rights and acknowledged that the case should be remanded for resentencing as White was given no further penalty for his convictions on the other charges. The Superior Court agreed with the trial court and remanded the case for a new sentencing hearing.

         On July 11, 2013, a resentencing hearing was held. On July 23, 2013, the trial court issued a “Revised Order of Sentence, ” which sentenced White as follows:

18 § 6105 §§ C1 - Person Not to Possess/Use Firearms - Fugitive (F2) To be confined for a minimum period of 2 Year(s) and a maximum period of 4 Year(s) at SCI Camp Hill
* * *
To be placed on Probation for a minimum period of 3 Year(s) and a maximum period of 3 Year(s) to be supervised by STATE. The following conditions are imposed: Other: RANDOM DRUG SCREENING
* * *
18 § 6106 §§ A1 - Firearms Not To Be Carried W/O License (F3) A determination of guilty without further penalty.

         July 26, 2013 Sentencing Order (“July Order”). A problem existed with the July Order, however, because White could not be sentenced on this charge as it had been dismissed on appeal on double jeopardy grounds.

         Through counsel, White appealed. On November 12, 2013, while the appeal was pending, the trial court issued a “Corrected ...


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