United States District Court, W.D. Pennsylvania
MEMORANDUM AND ORDER
C. Mitchell, United States Magistrate Judge
Martin Frederick, an inmate at the State Correctional
Institution at Albion has presented a “Motion for
relief pursuant to Fed.R.Civ.P. Rule 60(B)(6)” (ECF No.
24). For the reasons set forth below, the motion will be
is serving a twenty to forty year sentence imposed following
his conviction upon a plea of guilty to charges of attempted
murder, aggravated assault, attempted arson and unlawful
restraint at No. CC201210217 in the Court of Common Pleas of
Allegheny County, Pennsylvania. On March 7, 2013, pursuant to
the plea agreement, the court entered a sentence of twenty to
forty years incarceration at Count 1, and did not impose any
further sentence. In response to a post-conviction petition,
the court vacated the original sentence as illegal and
imposed two consecutive 10 to 20 year sentences at Counts 1
and 3, thus again imposing an aggregate twenty to forty year
sentence. In imposing this corrected sentence on
June 27, 2013, the trial court wrote:
The 20-40 year sentence for criminal attempt-homicide is
illegal and is hereby VACATED. That is the only aspect of the
Court's sentence which is VACATED. The Court's intent
was to carry out the parties wishes through the plea
agreement which called for a 20-40 year sentence. The
mechanics of how that was memorialized by putting it all at
Count 1- criminal attempt murder- was error and it will be
corrected here. at Count 1- the Court's sentence is 10-20
years. At Count 3- criminal attempt arson - the Court's
sentence is 10-20 years. The sentence at Count 3 shall run
consecutive to the sentence imposed at Count.
is, the court resentenced the petitioner to incarceration for
twenty to forty years in accordance with the plea agreement.
pursuing his state court remedies, Frederick filed the
instant petition in this Court. In a Memorandum filed on
December 10, 2015 we conclude that the petitioner had never
challenged his sentence in the courts of the Commonwealth and
hence a procedural default had occurred. In addition, we
noted that the sentences imposed were legal under the
Pennsylvania sentencing provisions. According, the petition
was dismissed and a certificate of appealability was denied.
On April 12, 2016, the Court of Appeals denied a certificate
of appealability, on May 19, 2016, the Court denied an en
banc rehearing and on November 1, 2016 and January 9, 2017
certiorari was denied by the United States Supreme Court.
has now returned to this Court with a Rule 60(b)(6) motion
for relief from judgment seeking to challenge our failure to
review the merits of his original petition but rather
dismissing it as procedurally defaulted that is he contends
“the District Court failed to and/or misapplied the
applicable procedural default standards and exceptions that
would have established cause to permit the Court to hear the
illegal sentence claims” (ECF No.24 at pp.3, 7-8) and
further contending that since the charges all arose out of
the same events the sentences should have been concurrent and
not consecutive (ECF No.24 at p.11).
Satterfield v. District Attorney, 872 F.3d 152, 158
(3d Cir. 2017), the Court wrote “a district court may
only grant relief under Rule 60(b)(6) in ‘extraordinary
circumstances where, without such relief, an extreme and
unexpected hardship would occur'” (citing cases).
instant case, at the time the plea and original sentence were
entered, the Commonwealth waived its right to seek the
mandatory minimum twenty-five year sentence for a third
conviction by a violent offender and agreed to a twenty to
forty year sentence (TT. 3/7/13 at pp. 2-3). This was the
sentence imposed by the court at the original sentencing
hearing and later corrected and reimposed to reflect that
agreement. Thus, as ultimately imposed there was no illegal
sentence and the sentence represented the embodiment of the
addition, the determination of whether sentences are to be
served concurrently or consecutively lies within the sound
discretion of the trial court. Pa.R.Crim. P. 705(B); see
also, Com. v. Phillips, 946 A.2d 103, 112 (Pa.
Super. 2008), appeal denied 600 Pa. 745 (2009), cert. denied
556 U.S. 1254 (2009). In the present case, the court imposed
the agreed upon sentence which it could only accomplish by
imposing consecutive sentences. Thus, petitioner received the
full benefit of his plea agreement and he fails to
demonstrate the basis for any extraordinary relief as
contemplated by Rule 60(b)(6).
his motion will be dismissed and a certificate of
appealability will be denied.
appropriate Order will be entered.
NOW, this 19th day of December, 2017 for the
reasons set forth in the foregoing Memorandum,
petitioner's Rule 60(b)(6) motion (ECF No.24) is ...