Saunders v. Asure, CIVIL NO. 1:CV-13-3056

• Decision Date: 03 December 2015
• Docket Number: CIVIL NO. 1:CV-13-3056
• Court: U.S. District Court — Middle District of Pennsylvania
• Parties: DAJUAN SAUNDERS, Petitioner v. DONNA ASURE, et al. Respondents

DAJUAN SAUNDERS, Petitioner v. DONNA ASURE, et al. Respondents

CIVIL NO. 1:CV-13-3056

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

December 3, 2015

(Judge Caldwell)

MEMORANDUM

I. Introduction

Petitioner, Dajuan Saunders, an inmate at the state correctional institution in Waymart, Pennsylvania, has filed a pro se petition for a writ of habeas corpus under 28 U.S.C. § 2254. The petition challenges Saunders' conviction in the Court of Common Pleas of Lackawanna County, Pennsylvania, to a second offense of driving under the influence (DUI) of alcohol with the highest rate of blood alcohol content, at least .16% or higher. Petitioner pled guilty to the offense and was sentenced to one to five years of imprisonment.

The petition made four claims for relief. In his reply brief (Doc. 34) and in a document he styled as a "supplemental response" (Doc. 36) to Respondents' answer to the petition, Saunders presented fourteen new claims against his conviction and sentence. We examined the new claims for timeliness and determined that five were timely but that the others were barred by the statute of limitations. Saunders v. Asure, 2015 WL 3737166 (M.D. Pa. Jun. 15, 2015). In total then, Petitioner presents nine grounds for relief, which are as follows:

Ground One: Petitioner's sentence violates the Eighth Amendment and the Due Process Clause of the Fourteenth Amendment because Petitioner did not receive the drug and alcohol evaluation that state law required before sentence was imposed.

Ground Two: the trial court lacked subject-matter jurisdiction over the case because Petitioner had never been given a copy of the "criminal affidavit" against him so that he could have known how his rights were violated.

Ground Three: trial counsel was ineffective in not providing Petitioner with a requested copy of the affidavit of probable cause.

Ground Four: Petitioner's guilty plea is invalid for two reasons: (1) there was no subject-matter jurisdiction based on the lack of service of the criminal affidavit; and (2) Petitioner waived his right to a preliminary hearing in return for a plea of guilty to a first offense DUI, but at the guilty plea hearing it was changed to a second offense DUI with no amendment prior to the plea or on the record.

Ground Five: The court never told Petitioner during the oral guilty-plea colloquy that the Commonwealth had to prove (a) that his BAC was at least 0.16% within two hours of driving and (b) that he had driven, operated and was in physical control of a motor vehicle.

Ground Six: Neither the court nor trial counsel told Petitioner his BAC had to be taken within two hours of driving.

Ground Seven: Petitioner did not understand the nature of the charge to which he was pleading guilty because he did not receive the criminal complaint against him.

Ground Eight: The Commonwealth breached the plea agreement it made with Petitioner.

Ground Nine: Petitioner's trial counsel was ineffective because he did not allow Petitioner to see the criminal complaint so that Petitioner could see if it was filed within five days of his release.

We have decided that relief is not available on any of the grounds except Ground Six, and on that ground we will require further briefing before resolving it.

II. Background

On April 26, 2011, a police officer with the Scranton Police Department filed a criminal complaint against Petitioner. (Magisterial District Judge, No. MJ-45103-CR-0188-2011).¹ The complaint, accompanied by the officer's affidavit of probable cause, charged Petitioner with two offenses occurring on November 20, 2010. (Doc. 36, ECF pp. 5-9). The first offense was a violation of 75 Pa. Cons. Stat. Ann. § 3802(c) and charged Petitioner with driving under the influence (DUI) of alcohol, "highest rate of alcohol" . . . after imbibing a sufficient amount of alcohol such that the alcohol concentration in the actor's blood or breath was .16% or higher within two hours after the actor had driven, operated or been in actual physical control of the movement of the vehicle." (Id., at ECF p. 6). The complaint charged that Petitioner's blood alcohol content (BAC) "was 0.206% at 20 November 2010/0313 hrs." (Id.).² The affidavit of probablecause alleged Petitioner was driving at 01:05. (Id., ECF p. 8). The second offense was a violation of 75 Pa. Cons. Stat. Ann. § 1543(b), driving while operating privileges were suspended or revoked. (Id., ECF p. 6).³

On July 11, 2011, the district attorney filed a two-count Information. Count I charged Petitioner with a violation of section 3802(a)(1), operating a motor vehicle "after imbibing a sufficient amount of alcohol such that he was rendered incapable of safe driving." (Doc. 49-1, ECF p. 3). Count II charged Petitioner with the section 3802(c) offense from the criminal complaint, when the BAC was .16% or higher within two hours of operating the vehicle. The Information alleged that the "BAC was .206% at 1:05 a.m. on November 20, 2010." (Id.).⁴

On October 28, 2011, Petitioner filled out a written "Guilty Plea Colloquy" form, in which he indicated the following by giving a "yes" answer to certain questions. He wanted "to plead guilty to the charges of DUI as laid out in "11CR1456." (Doc. 33-1, ECF p. 1). He had the opportunity to read the charges pending against him, and he knew"exactly" what he was charged with and "what" he was "pleading to." (Id.). He had "fully discussed" his case with his attorney, was "fully satisfied" that his attorney knew all the facts of his case, and that his attorney had had sufficient time to look into any questions they both might have had about the case. (Id., ECF p. 2).

Petitioner acknowledged his plea agreement with the district attorney was to plead to "DUI Tier 3 - 2nd" with "[a]ll other charges dismissed." (Id., ECF p. 2).⁵ The district attorney made him no other promises in exchange for his guilty plea except the above. (Id., ECF p. 3). Petitioner was not threatened or coerced to plead guilty, and he would be entering his guilty plea of his own free will. (Id.).

Petitioner acknowledged that the court would not be bound by the agreement with the district attorney. (Id.). Petitioner understood the maximum penalty for his offense was "5 years $10,000, 18 months suspension [and] 12 months' interlock" and that the minimum penalty was "90 days - $1,500 18 months suspension," and "12 months interlock." (Id.). Petitioner acknowledged that the following were the elements of the crime charged and to which he was pleading guilty:

A person is guilty of DUI if he drives on the public highways of Pennsylvania while intoxicated to a degree which renders driving unsafe.

(Id.). He also admitted the acts constituting the offense but only by making a reference to the Information the Commonwealth had filed in the case. (Id., ECF p. 4).⁶

Petitioner also recognized that he was waiving certain constitutional rights, among them: his right to trial by a twelve-member jury, his right to a unanimous verdict, the placement of the burden of proof on the Commonwealth beyond a reasonable doubt, his right to cross-examine the Commonwealth's witnesses, and his right not to take the stand. (Id., ECF p. 2). Petitioner initialed the first three pages and then signed the form under a paragraph reading:

I affirm that I have read the above document in its entirety and have reviewed it with my attorney. I affirm that I am aware of the full implications of entering a guilty plea and nevertheless wish to enter a guilty plea to the above-mentioned offenses. I further affirm that my signature on this Guilty Plea Colloquy and initials on each page of this document are true and correct.

(Id., ECF p. 4).

Also on October 28, 2011, Petitioner had an oral guilty-plea colloquy with the court. The prosecutor indicated that Petitioner would be entering a guilty plea to "DUI, a second offense, tier three, which is a misdemeanor one, punishable by 90 days to five years incarceration, a $1500 to $10,000 fine and an 18-month license suspension and 12 months of ignition interlock." (Doc. 30-2, ECF p. 3, guilty-plea transcript). The court then questioned Petitioner. In response to those questions, Petitioner said that hehad signed and initialed the written guilty-plea colloquy form and that he had read, understood, and answered truthfully all the questions. (Id.). He also recognized the minimum and maximum sentences for the offense: 90 days up to five years, and that, because of his prior record, his sentencing guideline range was twelve to eighteen months. (Id., ECF pp. 4-5).

The court then asked the prosecutor to provide the factual basis for the plea. The prosecutor stated:

The Commonwealth alleges that on or about Saturday, November 20, 2010, in this county, the defendant did unlawfully drive a vehicle in Scranton at a time when his blood alcohol content was .206 percent.

(Id., ECF p. 3). The court then asked Petitioner:

Q. Do you admit that on November 20, 2010, here in the city of Scranton, you were driving at a time when your blood alcohol was above the legal limit?

A. Yes.

(Id.). The court then stated it would accept the guilty plea. Defense counsel then moved for sentencing, asking that sentence be set at the low end of the guideline range and that it run concurrently with a previous sentence. (Id., ECF pp. 4-5). The court imposed a sentence of one to five years concurrent to the previous sentence. (Id., ECF p. 10). The offense of driving while operating privileges were suspended or revoked was nolle prossed.

Petitioner filed a pro se motion for reconsideration of sentence.⁷ (Doc. 30-3, ECF pp. 3-5). On November 3, 2011, the trial court denied the motion. (Id., ECF p. 2). Petitioner did not take a direct appeal. On January 5, 2012, Petitioner timely filed his first petition under the Pennsylvania Post Conviction Relief Act (PCRA). 42 Pa. Cons. Stat. Ann. §§ 9541-9546. Counsel was appointed to represent him on the PCRA petition. PCRA counsel sought to withdraw, (Doc. 30-4, ECF p. 24), and was...