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Sears v. Clark

United States District Court, W.D. Pennsylvania

May 9, 2017

RICHARD JAMAR SEARS, JR., FC3114, Petitioner,
v.
MICHAEL CLARK, et al., Respondents.

          MEMORANDUM AND ORDER

          Robert C. Mitchell United States Magistrate Judge

         Richard Jamar Sears, Jr., and inmate at the State Correctional Institution at Albion has presented a petition for a writ of habeas corpus.

         Petitioner is presently serving a 7½ to 15 year period of incarceration following his plea of guilty to charges of robbery, kidnapping and indecent assault at No. CP-65-CR-124-2003 in the Court of Common Pleas of Westmoreland County, Pennsylvania. This sentence was imposed on November 29, 2004.[1]

         The events that followed are fully set forth in the Superior Court's Memorandum of August 21, 2015 which appears as Petitioner's Exhibit L1-L7:

On that same date [November 29, 2004], the trial court sentenced Appellant to an aggregate term of 7½ to 15 years' imprisonment to run concurrently with a 7½ to 15 year prison sentence that he received in Allegheny County. Appellant did not file a direct appeal or a PCRA petition.
On May 17, 2005, almost six months after the imposition of sentence, the trial court issued a letter to the Pennsylvania Department of Corrections ("DOC") in response to DOC's inquiry about sentences Appellant previously had received in Cambria County. In the letter, the trial court stated that Appellant's [Westmoreland] sentence must run consecutive to the sentences previously imposed in Cambria County. On May 19, 2011, DOC requested the trial court to issue an order to confirm its May 17, 2005 letter. On June 13, 2011, the trial court issued an order confirming that Appellant's sentence of 7½ to 15 years' imprisonment was consecutive to the Cambria County sentences.
The trial court failed to serve Appellant with a copy of its June 13, 2011 order until December 6, 2013. Appellant did not file a direct appeal from the modified judgment of sentence. On January 27, 2014, he timely filed a PCRA petition, challenging, inter alia, the trial court's ability to modify his November 29, 2004 judgment of sentence more than thirty days after it became final…
On September 26, 2014, the PCRA court dismissed Appellant's PCRA petition … On appeal, Appellant essentially argues that the PCRA court erred in concluding that the trial court had authority to modify the November 29, 2004 judgment of sentence more than thirty days after the sentence became final. We disagree. (footnotes omitted).

         Relying on Pa.R.Crim. P. 705(B) which mandates that a sentencing judge state whether any sentence imposed runs concurrently or consecutively or any other sentence, the Superior Court concluded "the trial court's failure to comply with the strictures of Rule 705 was a patent error… Accordingly, the trial court's June 13, 2011 modification of the November 29, 2004 did not violate the thirty-day limit … of the Judicial Code, because the courts have inherent jurisdiction power to correct patent errors in sentencing order." (Petitioner's Exhibit L6].

         In the instant petition, executed on April 26, 2017, Sears contends he is entitled to relief on the following grounds:

1. The actions of [Judge] McCormick in permitting the DA to proceed against me criminally when there is no saving clauses in Pennsylvania for criminal prosecutions and when said Constitution does no call for the creation/employment of a criminal code was done arbitrarily, sadistically and wantonly…
2. The actions of [Judge] McCormick in permitting the acts or omissions of the DA (John Peck) falsely alleging via information that the alleged offenses occurred in the County of Westmoreland when the criminal complaint at first glance contradicts the information and the alleged victim's testimony all reveal the County of Allegheny as the location where the alleged offenses allegedly occurred…
3. The actions of [Judge] McCormick in permitting the DA (John Peck) to proceed against me criminally via information alleging I violated fourteen (14) alleged counts of Purdon's Consolidated Statutes Annotated when these are merely annotations and said information fail to charge a crime defined and promulgated by a legislative enacting clause…
4. The actions of [Judge] McCormick in permitting the DA to proceed against me criminally via information for alleged indictable offenses absent any indictment from an approving ...

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