Simonton v. Glunt

• Decision Date: 07 November 2018
• Docket Number: CIVIL NO. 1:15-CV-1454
• Parties: TERRY SIMONTON, JR., Petitioner v. STEPHEN R. GLUNT, et al., Respondents
• Court: U.S. District Court — Middle District of Pennsylvania

TERRY SIMONTON, JR., Petitioner v. STEPHEN R. GLUNT, et al., Respondents

CIVIL NO. 1:15-CV-1454

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

November 7, 2018

(Chief Judge Conner)

MEMORANDUM

Petitioner Terry Simonton ("Simonton") filed the instant petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging a judgment and conviction imposed in the Court of Common Pleas of Lebanon County, Pennsylvania. (Doc. 1). For the reasons discussed below, the court will deny the petition.

I. Factual Background

The factual background of this case has been aptly summarized by the state trial court as follows:

On March 24, 2005, Teresa Fox called police to report an allegation of sexual abuse involving her teenage son, J.S. (N.T. 18). Ms. Fox reported that the Defendant had sexually abused J.S. back in 2004 when the family lived at 301 South Ninth Street. Detective William Walton of the Lebanon City Police Department was dispatched to conduct a preliminary investigation. Detective Walton conducted a "brief" interview of J.S., who stated that the Defendant had placed his "wee wee" into J.S.' "hiney".

Detective Tames Grumbine is a trained child sex abuse investigator (N.T. 14). Detective Grumbine and Sherry Courchain of Lebanon County Children and Youth Services were assigned to investigate the allegation of abuse committed upon J.S. Numerous interviews were conducted during which J.S. related that "bad things happened" (N.T. 74-77). Eventually, J.S. was able to detail what had occurred using diagrams and anatomically correct dolls (N.T. 106-107; 120-123). As a result, numerous sexually-related charges were filed.

Two jury trials were conducted with respect to the charges filed against the Defendant. During the first trial, a competency hearing was conducted with respect to J.S. We questioned J.S. in-camera and permitted the attorneys to supplement our questions with ones of their own. Following the in-camera hearing, we declared J.S. to be competent. A transcript of this competency hearing has been prepared.

The Defendant's second trial occurred on August 9, 2007. Multiple witnesses provided testimony. J.S. testified that he and his family had previously lived together at 301 South Ninth Street in the City of Lebanon (N.T. 27). At the time, the Defendant was married to J.S.' mother (N.T. 56-57). In addition, J.S.' sister, M.M., also lived at the residence (N.T. 44).

J.S. testified that while he and his family still lived at 301 South Ninth Street, the Defendant would periodically take him to the attic (N.T. 29). There, the Defendant would sexually molest him (N.T. 28). When asked to provide specifics, J.S. stated that the Defendant "sucked" J.S.' penis and made J.S. suck his penis. During these occasions, J.S. stated that the Defendant's penis entered his mouth (N.T. 28). In addition, J.S. indicated that the Defendant inserted his penis into J.S.' butt (N.T. 28). Through Detective Grumbine, the Commonwealth established that J.S. understood these anatomical features of the human body (N.T. 106-109; 120-123).

J.S. could not provide a specific time frame for the incidents of abuse. However, J.S. was clear that the abuse occurred in the attic of 301 South Ninth Street. The Commonwealth established through Teresa Fox and Edward Gustager that J.S. and his family moved away from 301 South Ninth Street during the summer or fall of 2004 (N.T. 92-93; 57). At the time, J.S. was 13 years of age (N.T. 27; 132). Therefore, the Commonwealth circumstantially established that J.S. was 13 years old or younger when the abuse occurred.

J.S. indicated that during one episode of abuse, his sister, M.M., attempted to come up the attic stairs (N.T. 41). J.S. testified that the Defendant instructed M.M. to return downstairs (N.T. 41). J.S.' testimony was corroborated by M.M. M.M. stated that she saw J.S. go to the attic with the Defendant periodically (N.T. 46). On occasion, M.M. would ascend the attic stairs in an effort to see what was goingon. Sometimes the door would be locked (N.T. 46). On other occasions, the Defendant would say "wait a minute" or "hold on" (N.T. 47.)

Following the episodes of abuse, J.S. did tell his sister that the Defendant "touched me at wrong places" when the two were in the attic (N.T. 48). However, J.S. instructed M.M. not to say anything because he "did not want anyone to know" (N.T. 48). J.S. acknowledged this, stating that he did not report the abuse to authorities because "I was afraid that I would get into trouble" (N.T. 41).

The Defendant presented evidence that he denoted was exculpatory. For example, the Defendant established that J.S. told Detective Travis Souders in early 2006: "I lied. I made this up." (N.T. 113). In addition, the Defendant displayed a full-length tattoo of a naked woman that he said had been on his chest for twenty years and argued that J. S. should not be found credible because he did not remember the tattoo (N.T. 165). Further, Defendant himself denied any sexual impropriety regarding J.S. and inferred that the allegations were instigated by his estranged wife (N.T. 163).

On August 9, 2007, the second jury empaneled in this matter rejected the Defendant's arguments and determined that the Commonwealth's evidence was sufficient to establish guilt beyond a reasonable doubt. The jury convicted the Defendant of Rape, Involuntary Deviate Sexual Intercourse, Statutory Sexual Assault and Endangering the Welfare of Children. The Defendant was acquitted of one other count of Involuntary Deviate Sexual Intercourse.

On October 24, 2007, we conducted a sentencing hearing on the two charges for which Defendant was convicted in May and for the remaining four charges on which the Defendant was found guilty in August. The sentences we imposed and the ranges for which sentence are set forth in the following chart:

Count

Charges

Ranges

Sentence

I

Rape

68-84

7-20 years

II

Involuntary Deviate Sexual

Intercourse

N/A

Not Guilty

III

Involuntary Deviate Sexual

Intercourse

66-84

Merges with Count I

IV

Statutory Sexual Assault

15-21

Merges with Count I

V

Endangering Welfare of

Children

12-18

Merges with Count I

VI

Indecent Assault

6-16

SCI 1-2 years

Consecutive with

Count I

VII

Corruption of Minors

6-16

SCI 1-2 years

Consecutive with

Count I but

Concurrent to

Count VI

(Doc. 17-20, at 3-7, Commonwealth v. Simonton, No. CP-38-CR-2014-2006 (Lebanon County Ct. Com. Pl. March 11, 2008)).

II. State Court Proceedings¹

As stated above, Simonton was convicted in two separate jury trials for numerous sexual offenses against his stepson.

Public Defender Brian L. Deiderick represented Simonton at the preliminary hearing, pre-trial hearing, and the initial trial. (See Docs. 17-3, 17-8, 17-9). This first jury trial occurred on May 10 and 11, 2007. (Docs. 17- 8, 17-9, Transcripts from May 2007 Criminal Jury Trial). The jury convicted Simonton of indecent assault and corruption of minors, but it was unable to reach a unanimous verdict on the other charges. (Doc. 17-7, May 2007 Verdict Slip for Criminal Jury Trial).

After the first trial, Simonton retained private counsel, Erin Zimmerer, Esquire. The Commonwealth prosecuted Simonton again on the remaining charges. Following the second trial, the jury convicted Simonton of rape, involuntary deviate sexual intercourse, statutory sexual assault, and endangering the welfare of children. (Doc. 17-14, August 2007 Verdict Slip for Criminal Jury Trial). On October 24, 2007, Simonton was sentenced to eight to twenty-two years' imprisonment in a state correctional institution. (Doc. 17-16, October 24, 2007 Sentencing Order). The trial court denied post-sentence motions. (Doc. 17-20, March 11, 2008 Order and Opinion). Counsel did not file a direct appeal.

On September 10, 2008, Simonton filed a pro se petition for post-conviction collateral relief pursuant to the Post Conviction Relief Act ("PCRA"), 42 PA. CONS. STAT. §§ 9541-46. (Doc. 17-21, PCRA Petition). The PCRA court appointed attorney John Gragson, who subsequently filed an amended petition. (Doc. 17-23, Amended PCRA Petition). Upon review of the PCRA petition, the PCRA court reinstated Simonton's direct appeal rights. (Doc. 17-24, June 15, 2009 PCRA Order). Attorney Gragson then filed a direct appeal raising errors at the preliminary hearing, trial court error in admitting certain testimony, and challenging the weight of the evidence. (Doc. 17-25, Notice of Appeal dated July 15, 2009; Doc. 17-26, Concise Statement of Matters Complained of on Appeal). The Pennsylvania Superior Court rejected the claims, and affirmed the judgment of sentence on the basis of the trial court's opinions. (Doc. 17-29, Commonwealth v. Simonton, No. 1234 MDA 2009, unpublished memorandum (Pa. Super. filed July 29, 2010)).

On March 24, 2011, Simonton filed a second pro se PCRA petition. (Doc. 17-30, PCRA Petition). The PCRA court appointed attorney David R. Warner, Jr., who filed an amended petition. (See Doc. 17-31). On August 11, 2011, the PCRA court held a hearing and, on October 12, 2011, the PCRA court denied the petition. (Doc. 17-31, Transcript from PCRA Hearing; Doc. 17-34, October 12, 2011 PCRA Opinion & Order). On November 1, 2011, Attorney Warner filed a Notice of Appeal. (Doc. 17-35, Notice of Appeal dated November 1, 2011). On May 29, 2012, the Pennsylvania Superior Court dismissed the appeal based on counsel's failure to file a brief. (Doc. 17-39, Pennsylvania Superior Court Order).

Due to several procedural issues, on February 22, 2013, the PCRA court reinstated Simonton's right to appeal from the October 12, 2011 Order as to all issues properly before the court at the time of the August 11, 2011 PCRA hearing. (See Commonwealth v. Simonton, 2014 WL 10986735, *2, 4 (Pa. Super. 2014)). The PCRA court excluded issues not presented on August 11, 2011. (Id.) Simonton filed a timely Notice of Appeal. (Id.) On April 18, 2013, the PCRA court determined that all of Simonton's issues, except one, were...