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 May 3, 1989

IN THE SUPERIOR COURT OF PENNSYLVANIA

PITTSBURGH, PENNSYLVANIA

COMMONWEALTH OF PENNSYLVANIA :
V : No. 240 of 1987
GARY D. LAUFFENBERGER : No. 267 of 1986

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

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

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.

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.

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

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

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 May 8, 1989

IN THE SUPERIOR COURT OF PENNSYLVANIA

PITTSBURGH, PENNSYLVANIA

COMMONWEALTH OF PENNSYLVANIA :
V 01943PGH88
GARY D. LAUFFENBERGER :

MOTION FOR CONTINUANCE

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 May 16, 1989

The Superior Court of Pennsylvania

Sitting at Pittsburgh

David A. Szewczak, ESQUIRE 1015 GRANT BUILDING

PROTHONOTARY PITTSBURGH, PA.
ELEANOR R. VALECKO 15219
DEPUTY PROTHONOTARY (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 May 23, 1989

IN THE SUPERIOR COURT OF PENNSYLVANIA

Sitting In Pittsburgh

COMMONWEALTH EX REL JEFFREY

)
LAUFFENBERGER, etc.
)
No. 1943 Pittsburgh
V. )
1988
)
JEFFREY A. BEARD )

ORDER OF COURT

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 Aug 22, 1989

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,

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 Sept 12, 1989

The Superior Court of Pennsylvania

Sitting at Pittsburgh

David A. Szewczak, ESQUIRE 1015 GRANT BUILDtNG

PROTHONOTARY PITTSBURGH, PA.
ELEANOR R. VALECKO 15219
DEPUTY PROTHONOTARY (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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