HABEAS CORPUS

Excerpt

This is an excerpt of my filings in the Superior Court, including Petition for Writ of Habeas Corpus, Motion for Continuance, and the respective Orders of the Superior Court. The habeas corpus was filed as a result of my increasing understanding of legal procedures, and my concerns about the sufficiency of my PCHA (and the fact that my appeal was limited to the issues as presented therein). And my belief that it would result in a speedier disposition. As stated in my motion, I also had concerns regarding the legal ramifications of these concurrent filings (primarily that both would be thrown out). It would also appear to represent both the source (along with my Motion for Continuance), and the extent, of the "procedural morass" created by the appellant. It is however, only a small part of the "rambling and repetitive account of the asserted deficiencies, shortcomings, and errors presented in the pro se briefs of appellant." And only a very small part of the "exceptional waste of judicial resources which appellant has occasioned thus far". HABEAS CORPUS IN THE SUPERIOR COURT OF PENNSYLVANIA PITTSBURGH, PENNSYLVANIA COMMONWEALTH OF PENNSYLVANIA V GARY D. LAUFFENBERGER : : No. 240 of 1987 : No. 267 of 1986
May 3, 1989

Petition for Writ of Habeas Corpus
1. Prison unit in which confined: S.C.I. CRESSON, PA 2. Name and location of court which imposed sentence: WARREN COUNTY COURT OF COMMON PLEAS 3. The indictment number or numbers (if known) upon which, and the offense, or offenses for which sentence was imposed: (a) No. 240 of 1986 - RECKLESS ENDANGERMENT (b) No. 267 of 1986 - POSS. w/ INTENT TO DELIVER MARIJUANA

4. The date upon which sentence was imposed and the terms of the sentence: (a) JANUARY 16, 1987 2 - 4 YEARS (b) JANUARY 16, 1987 1 - 2 YEARS 5. Check whether a finding of guilt was made (X) after a plea of guilty ( ) after a plea of not guilty ( ) after a plea of nolo contendere 6. If you were found guilty after a plea of not guilty, check whether that finding was made by: ( ) a jury ( ) a judge without a jury 1 7. Did you appeal from the judgment of conviction or the imposition of sentence? NO 8. If you entered "yes" to (7), list: (a) the name of each court to which you appealed (b) the result in which court to which you appealed (c) the date of such action by each appellate court (d) if known, citations of any written opinions or orders entered pursuant to such appeals 9. State briefly and concisely the grounds on which you base your allegations that you are being held in custody unlawfully:

(1) ILLEGAL SENTENCE (2) FALSE ARREST (3) ILLEGAL SEARCH (4) DENIAL OF DUE PROCESS AND EQUAL PROTECTION (5) PLEA NOT KNOWINGLY, VOLUNTARILY, INTELLIGENTLY ENTERED (6) INEFFECTIVE COUNSEL
2 10. State concisely and in the same order the facts which support each of the grounds set out in (9):

l. A. Minimum sentence exceeds one-half of the maximum sentence on misdemeanor-2 (M-2) (No. 240).

1. B. Sentence exceeds statutory limit for minimum sentence on misdemeanor-2 (M-2). C. Sentence contains a period of incarceration based on the now nullified Deadly Weapons Enhancement. 2. A. Petitioner was falsely charged with a F-2, AGGRAVATED ASSAULT, 2702 a (l), that he did "cause serious bodily injury to Joseph Zdarko," when no such injury was inflicted. He was further falsely charged with a second F-2, AGGRAVATED ASSAULT, 2702 a (4), that he did "put a barrel of a lever action rifle between the buttocks of Bryan Cordner," when there are no reports, statements, evidence, or other grounds to support such a charge. Further 2702 a(4) is a misdemeanor one, not a felony two. 3. A. Police conducted a warrantless nighttime search of defendants' apartment based on allegedly exigent circumstances of the above false charges, at which time they discovered the quantity of marijuana for which defendant was subsequently charged. 3 4. A. Defendant was denied Due Process and Equal Protection when Magistrate required that he sign waiver of counsel in order that he be allowed to question witnesses at his preliminary hearing on the charges of No. 240. B. At said hearing police knowingly allowed perjured testimony to be entered by Commonwealth witness that was prejudicial to defendant and likewise suppressed fact of previous police statement that was contradictory to her testimony at hearing. C. District Attorney failed to disclose exculpatory evidence which was, or should have been known by him, and continued to prosecute defendant on charge of Aggravated Assault upon Joseph Zdarko, despite defendant's obvious innocence of the charge. The evidence in question concerns the extremely minor injuries of Mr. Zdarko. 5. A. Guilty plea colloquy was defective in failing to insure defendant had full and proper understanding of the true nature and elements of the offenses charged. B. Defendant was not informed of the additional penalty of the Deadly Weapon Enhancement, as imposed.

C. The Court misinformed defendant concerning the permissible range of sentences on charges of Possession with intent to deliver and Manufacture of marijuana. 4 D. The Court failed to inform the defendant of the attendant rights of Jury trial, namely, the Presumption of Innocence, and the requirement of Unanimous Verdict. E. The Court's instructions regarding defendant's right to file Motion to withdraw guilty plea, rights of Appeal, and of the consequences of failing to do so, were insufficient. F. Defendant was misinformed by counsel, and the Commonwealth that amount of marijuana involved was 6.93 kilos, when in fact actual amount was 1.4 kilos. G. Counsel misadvised defendant that pointing of an unloaded rifle, or his actions of chasing individuals, was sufficient to prove Reckless Endangerment. 6. A. Counsel failed to file Motion to suppress evidence obtained as a result of a warrantless search based on false charges. B. Counsel misled defendant concerning true nature and extent of victim's (Joseph Zdarko's) injuries. C. Counsel improperly advised defendant that his actions were sufficient to prove Reckless Endangerment. D. Counsel failed to ascertain and in fact misled defendant concerning actual amount of marijuana. E. Counsel recommended plea bargain not in defendant's best interest, in that Aggravated Assault charge was false and should have been quashed. F. Counsel failed to Move to quash obviously false charge of Aggravated Assault. G. Counsel failed to insure that guilty plea colloquy was complete, and failing that, further failed to inform defendant that he had proper grounds to withdraw his guilty plea. H. Counsel failed to appeal illegal sentence.
11. Before this petition, have you filed with respect to this conviction

(a) any petitions in State or Federal Courts for Habeas Corpus? NO (b) any petitions in the United States Supreme Court for Certiorari other than petitions, if any, already specified in (8)? NO (c) any other petitions, motions, or applications in this or any other court? YES 5 12. If you answered "yes" to any part of (11), list with respect to each petition, motion or application: (a) The specific nature thereof: (1) MOTION FOR RECONSIDERATION (2) P.C.H.A. PETITION (3) APPEAL FROM ORDER DISMISSING P.C.H.A. PETITION (b) The name and location of the court in which each was filed: (1) WARREN COUNTY COURT OF COMMON PLEAS (2) WARREN COUNTY COURT OF COMMON PLEAS (3) SUPERIOR COURT OF PENNSYLVANIA, PITTSBURGH, PA (c) The disposition thereof: (1) SENTENCE AMENDED (No, 240) 2 - 2 YEARS (2) P.C.H.A PETITION DISMISSED AS BEING WITHOUT MERIT (3) NOTICE OF APPEAL FILED PRO SE - BRIEF DUE 5/6/89 (d) The date of each such disposition: (1) 2/17/1987 (2) 11/10/1988 (3) PENDING (e) If known, citations of any written opinions or orders entered pursuant to each such disposition: (1) 303.1 (i), 204 Pa CODE OF THE GUIDELINES (3) N/A (f) The name of the court, and the date, in which any evidentiary hearing was held: (1) WARREN COUNTY COURT OF COMMON PLEAS 2/17/87 (ARGUMENT) (2) UNKNOWN (3) N/A 6

13. Has any ground set forth in (9) been previously presented to this or any court, state or federal, in any petition, notion or application which you have filed? YES 14. If you answered "yes" to (13), identify: (a) Which grounds have been previously presented (1) ALL GROUNDS HEREIN HAVE BEEN PRESENTED PREVIOUSLY (b) The proceedings in which each ground was raised: (1) P.C.H.A. PETITION - WARREN COUNTY COURT OF COMMON PLEAS 15. If any ground set forth in (9) has not previously been presented to any court, state or federal, set forth the ground, and state concisely the reasons why such ground has not previously been presented: N/A 16. Were you represented by an attorney at any time during the cause of (a) Your arraignment and plea? YES (b) Your trial, if any? YES (c) Your sentencing? YES (d) Your appeal, if any, from the judgment of conviction or the imposition of sentence? NO (e) preparation, presentation or consideration of any petitions, motions or applications with respect to this conviction, which you filed? UNKNOWN 7 17. If you answered "yes" to one or more parts of (16), list (a) The name and address of each attorney who represented you and whether he was employed by you or was appointed by the court: (1) JOSEPH MASSA, WARREN CO. CT. HOUSE PUBLIC DEFENDER (2) ROSS McKEIRNAN, PENN BANK BLDG. WARREN PA, CT APPOINTED (b) The proceedings at which each such attorney represented you (1) ARRAIGNMENT, PLEA, SENTENCING, RESENTENCE (2) P.C.H.A. ROSS McKEIRNAN'S PARTICIPATION UNKNOWN I do hereby state that the statements contained in this document are true and correct to the best of my knowledge and belief, and are made subject to the penalties of 18 Pa C.S. 4904.

_________________________(signed) Gary D. Lauffenberger petitioner, pro se J0476 S.C.I. Cresson, Pa. 16630
Date: May 3, 1989

8

APPLICATION FOR CONTINUANCE IN THE SUPERIOR COURT OF PENNSYLVANIA PITTSBURGH, PENNSYLVANIA COMMONWEALTH OF PENNSYLVANIA V GARY D. LAUFFENBERGER MOTION FOR CONTINUANCE

May 8, 1989

: 01943PGH88 :

Gary D. Lauffenberger, Petitioner, respectfully files Motion that Your Honorable Court grant him a continuance for time of filing brief. In support of this application he states the following: 1. Petitioner has been abandoned by Court appointed counsel and is proceeding reluctantly pro se in appeal of the lower Court's dismissal of this P.C.H.A. petition. 2. He has missed a previous deadline for filing of brief and has evidently been granted an unrequested continuance until May 6, 1989. 3. Meanwhile he has filed a Petition For Writ of Habeas Corpus, May 3, 1989. 4. Petitioner fears that submission of his appeal brief at this time may subject his Petition For Writ (or appeal), to a conflict with the other with unintended prejudicial consequences. Wherefore, petitioner respectfully requests that Your Honorable Court grant continuance for 30 days, or until disposition of Petition For Writ of Habeas Corpus, whichever is later. Respectfully submitted, ___________________(signed) Gary D. Lauffenberger J 0476 S.C.I Cresson, Pa. 16630 Dated: May 8, 1989

Correspondence/ORDER from Superior Court The Superior Court of Pennsylvania Sitting at Pittsburgh David A. Szewczak, ESQUIRE PROTHONOTARY ELEANOR R. VALECKO DEPUTY PROTHONOTARY

May 16, 1989

1015 GRANT BUILDING PITTSBURGH, PA. 15219 (412) 565-7592 May 16, 1989

Mr. Gary Lauffenberger Drawer A - S.C.I. Cresson, Pa. 16630 In Re: Commonwealth of Pennsylvania V Gary D. Lauffenberger No. 1943 Pittsburgh 1988 Dear Mr. Lauffenberger: The Court has entered the following Order on your Motion filed in the above-captioned matter: ORDER OF COURT AND NOW, to-wit, this 12th day of May, 1989, upon consideration of appellant's application for Continuance, said request is hereby denied pending disposition of the petition for writ of habeas corpus and request for appointment of appellant counsel to be made to the trial court. "Per Curium" Very truly yours, __________________(signed) DEPUTY PROTHONOTARY ERV/smc cc: Richard A. Hernan Jr., Esquire Honorable Robert L. Wolfe, P.J.

ORDER
IN THE SUPERIOR COURT OF PENNSYLVANIA Sitting In Pittsburgh COMMONWEALTH EX REL JEFFREY LAUFFENBERGER, etc. V. JEFFREY A. BEARD ORDER OF COURT ) ) ) ) )

May 23, 1989

No. 1943 Pittsburgh 1988

AND NOW, to-wit, this 23rd day of May, 1989, upon consideration of the Petition for Writ of Habeas Corpus, the above-captioned appeal is remanded to the trial court to appoint Ross MCKIERNAN to act as appellate counsel. See Pa.R.Crim.P. 1503(b). The petition for habeas corpus is denied and referred to counsel of record. A new briefing schedule shall be issued upon return of the record from the trial court. "Per Curiam"

Letter to Prothonotary
Mr. David A. Szewczak, Esquire 1015 Grant Bldg. Pittsburgh, Pa. 15219 Re: Com V Lauffenberger 01943PGH88 Com ex rel Lauffenberger V Jeffrey A. Beard Dear Mr. Szewczak,

Aug 22, 1989

I am writing to inquire as to the status of the above appeals. Please note that as a result of the ORDER of the SUPERIOR COURT of May 23, 1989, the lower court of Warren County issued an ORDER June 1, 1989, appointing Attorney Ross McKeirnan to represent me on my petition for Writ of Habeas Corpus. All of this has resulted in some confusion (and discomfiture), on my part in that said petition was filed as a result of my being abandoned (and other

malicious, ineffective and prejudicial actions) by Mr. McKeirnan. This petition was filed in an effort to avoid further delay than that already caused by said counsel, in my firm belief that the record clearly supported the validity of my claims. Furthermore, I never requested counsel. Under these circumstances I feel it necessary to request that I be kept informed (current status, briefing schedule, docket entries, etc.), and any other developments which may indicate further failure or non - participation on the part of Mr. McKeirnan. I am also requesting the OPINION regarding the ORDER of May 23, 1989, of the SUPERIOR COURT, dismissing the above petition for Writ of Habeas Corpus. Thank you. __________________(signed) Gary D. Lauffenberger AJ 0476 Drawer A, S.C.I. Cresson, Pa. 16630 August 22, 1989

Correspondence from Superior Court
The Superior Court of Pennsylvania Sitting at Pittsburgh David A. Szewczak, ESQUIRE PROTHONOTARY ELEANOR R. VALECKO DEPUTY PROTHONOTARY

Sept 12, 1989

1015 GRANT BUILDtNG PITTSBURGH, PA. 15219 (412) 565-7592

September 12, 1989 Mr. Gary Lauffenberger AJ-0476 S.C.I. Cresson, Pa. 16630 In Re: Commonwealth of Pennsylvania V Gary Lauffenberger No. 1943 Pittsburgh 1988 Dear Mr. Lauffenberger: In response to your recent letter, be advised that all correspondence in this matter is being forwarded to your attorney of record. A copy of the Superior Court Docket is attached so that you may see how the case has progressed to this point. Finally, no

opinion was issued in support of the Order of May 23, 1989, and furthermore it is not the policy of this office to provide copies of court documents to inmates without the proper fee required. Very truly yours, __________________(signed) Eleanor R. Valecko DEPUTY PROTHONOTARY ERV/ smc

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