Petition for Writ of Certiorari — Jerome Burnam, Petitioner v. Pennsylvania

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PASC No. 405 WAL 2018

•i

IN THE

SUPREME COURT OF THE UNITED STATES

Jerome Burnam, Petitioner,

FiLED^‘ tJ'S-

/2

2£fici~

V.

Mark v. Capozza, Superintendent et al.,

of the State Correctional Institution at

Fayette, 48 Overlook Drive, LaBelle

Pennsylvania 15450-1050

Respondent(s)

2019

°£fH£

ON PETITION FOR A WRIT OF CERTIORARI TO

SUPREME COURT OF PENNSYLVANIA, WESTERN DISTRICT

PETITION FOR WRIT OF CERTIORARI

Jerome Burnam, BA-6023

SCI-Fayette, 48 Overlook Drive

LaBelle, PA 15450-1050

V

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QUESTIONS PRESENTED

Where the issue involves the Constitutionality of the statue of the

Commonwealth.

I.

Whether Writ of Mandamus jurisdiction was abridged

or if this Petitioner's Due Process Rights were Denied to

Meaningful opportunity to seek Redress, for an issue

surrounding Re-sentencing, when Re-sentencing Court

failed to State its Reasons on the Record for the Imposition

of its Sentence ?

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LIST OF PARTIES

All Parties do not Appear in the Caption of the case on the Cover Page. A list

of all Parties to the Proceeding in the Court whose judgment is the subject of this

Petition is as follows :

Allegheny Court of Common Pleas of Allegheny County

Courthouse, 436 Grant Street

Pittsburgh, PA 15219

Case Number: 1988-13518/1989-01399

SuperionCourt of Pennsylvania

Office of the Prothonotary

310 Grant Street, Suite 600

Pittsburgh, PA 15219-2297

No. 1544 WDA 2015/1674 WDA 2017

Superme Court of Pennsylvania

Western District

Office of the Prothonotary

801 City-County Building

Pittsburgh, PA 15219-2463

Case Number: 405 WAL 2018

The United States District Court

U.S.Post Office & Courthouse

700 Grant Street

Pittsburgh, PA 15219

Case Number: 09-108

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TABLE OF CONTENTS

Page

Opinion Below

1

Jurisdiction

.2

Constitutional and Statutory Provisions involved

3

Statement of the case

4-9

Reasons for Granting Writ

10-23

Conclusion

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INDEX TO APPENDICES

APPENDIX "A" October 27, 2010: Opinion of United States Court of Appeal

APPENDIX "B" March 8, 2010: U.S. District Court Report and Recommendation

APPENDIX "C" July 14, 2016/August 23, 2018:: Superior Court Memorandum

APPENDIX "D" August 29, 2017/October 10, 2017:: Lower Courts Notice of Intent

APPENDIX "E" March 20, 2019 : PA. Supreme Court Denying Allowance of Appeal

APPENDIX "F" April 1, 2002: Judge Dauer's, Law Clerk Reply Letter

APPENDIX "G" December 31,1991: Trial Judge, Ruling/ Memorandum Order

APPENDIX "H" July 24, 2000: Letter from Defense Attorney

APPENDIX "I" November 15, 2001: Letter from Defense Attorney

APPENDIX "J" November 18, 2002: Judge Kelly's Opinion

APPENDIX "K" April 9, 2001: Defense Counsel's 1925(b) Statement of Matters

CERTIFICATE OF COMPLIANCE

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IN THE

SUPREME COURT OF THE UNITED STATES

PETITION FOR WRIT OF CERTIORARI

Petitioner respectfully prays that a Writ of Certiorari issue to review the judgment

below.

OPINION BELOW

Federal Court:

The Opinion of the United States Court of Appeals appears at Appendix "A" to the

petition and is reported at 10-2330 is unpublished.

The Opinion of the United States District Court appears at Appendix "B" to the

petition and is reported at 09-108 is unpublished.

State Courts:

The Opinion of the Highest State Court to review the merits appears at Appendix

"C" to the petition and is reported at 1544 WDA 2015 / 1674 WDA 2017 is

unpublished.

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The Opinion of the Allegheny Common Pleas Court appears at Appendix "D" to

the petition and is reported at Case Number(s) 1988-13518 /1989-01399 is

unpublished.

JURISDICTION

Federal Courts:

The date on which the United States Court of Appeal decided my case was May

19,2010. Atimely petition for rehearing was denied by the United States Court

of Appeal on the following date: January 19,2011, and a copy of the Order

,V.

denying rehearing appears at Appendix "A"

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The jurisdiction of this Court is invoked under 28 U.S.C. § 1257(a).

State Court:

The date on which the highest state court decided my case was February 11-15,

1991. A copy of that decision appears at Appendix "C".

The jurisdiction of this Court is invoked under 28 U.S.C. § 1257(a)

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TABLE OF AUTHORITIES CITED

Case:

Page

Commonwealth v. Riggins, 377 A.2d 140 (1977)

11

Commonwealth v. Mullen, 467 A.2d 871 (1983)

11

Commonwealth v. Young, 414 A.2d 681 (1979)

12

Commonwealth v. Anderson, 482 A.2d 1011 (1982)

12

Commonwealth v. Clair, 236 A.2d 272 (1994)

16

Commonwealth v. Appel, 689 A.2d 891 (1997)

16

Commonwealth v. Porreca, 595 A.2d 23 (1991)

17

Commonwealth v. Krob, 654 A.2d 1168,1173 (1995)

17

Commonwealth v. Williams, 660 A.2d 614 (1985)

21

Commonwealth v. Yount, 615 A.2d 1316 (1992)

22

Commonwealth v. Foster, 17 A.3d 332 (2011)

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STATUTES AND RULES:

Acticle 1, Section 9 of Constitution

10

U.S.C.A. § V Due Process

10

U.S.C.A. § Equal Protection

10

42 Pa.C.S.A. § 9545(b)(l)(ii)................................................

22

Shepard v. United States, 257 F.2d 293, 294 (6th cir. 1958)

13

Gardner v. Florida, 97 S.Ct. 1197 (1977).............................

14

Innes v. Dalsheim, 864 F.2d 974 (2nd cir. 1988)..................

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STATEMENT OF THE CASE

The Petitioner in this matter is Jerome Burnam, who is currently incarcerated

at SCI-Fayette, LaBelle, Pennsylvania 15450. On May 8,1990, the Superior Court

entered an Order at 14 PGH 1989 that reversed the trial Court's Order, vacated

the Petitioner's judgment of sentence and remanded his case for a new trial. On

February 11,1991, the Petitioner appeared before the late Honorable Judge

Joseph H. Ridge again to be tried on the Criminal Homicide and Robbery Charges.

During those proceedings, the Petitioner Plead Guilty to a General Charge of

Criminal Homicide, based upon Defense Counsel's Negotiated Plea Agreement

with the Respondent's Office for a verdict "To Something Less Than Second

Degree Murder". On February 25,1991, Petitioner Voiced Trial Counsel's

Ineffectiveness During Post-Trial Motions. This action caused the Court in a

Memorandum Opinion to Order an Evidentiary Hearing. Subsequently, on

December 11,1991, Petitioner's Post-Trial Motions were continued "Generally",

some Seven(7) Years later the effect of Petitioner's December 11,1991 Post-Trial

Motions Proceedings, resulted in the Petitioner being Re-Sentenced to First

Degree Murder, and Life Imprisonment on December 7,1998, without the late Re-

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Sentence Court Judge Robert E. Dauer's 'Reasons for the Sentence being placed

on the Record, and without Petitioner present to speak in his Defense; and

without the Court's determination of factual set forth in an Opinion or a final

Order.

On February 27, 2014, Petitioner Properly Exhausted all State Court Appellate

Remedies with the United States Court of Appeal at Docket No. 14-1200.

IN THESE COLLATERAL PROCEEDINGS

On December 23, 2014, Petitioner filed Petition for Writ Habeas Corpus Ad

Subjiciendum. On January 21, 2015, President Judge, Jeffrey A. Manning, filed

Order that gave "Notice of Intention to Dismiss", pursuant to Pennsylvania Rules

of Criminal Procedure(Pa.R.Crim.P.) rule 907, the Petitioner's Writ of Habeas

Corpus Ad Subjiciendum because listed reasons :

"1.. This is the Defendant's second or subsequent request for

relief and he failed to set forth any facts that would

establish a miscarriage of justice; and

2. The Defendant's petition is untimely".

On February 17, 2015, Petitioner filed "Objections" : That contested Judge

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Manning's Order of "Intention to Dismiss", its characterization of the defendant's

petition for Writ of Habeas Corpus as more properly titled a Petition for Relief

under the PCRA, and its error in Law to adjudge pursuant to PCRA rule 907 the

Writ of Habeas Corpus Ad Subjiciendum.

On February 17, 2015, Petitioner filed also, an "ADDENDUM TO RELATOR'S

WRIT OF HABEAS CORPUS AD SUBJICIENDUM".

On February 24, 2015, Judge Manning filed Order that Denied Petition for

Post-Conviction Collateral Relief Act/IFP Granted.

On August 25, 2015, Petitioner sent a letter to the Allegheny Clerk of Court

Offices that asked whether the Court had addressed the Petitioner's "Objections"

to its "Notice of Intention to Dismiss the Petitioner's Writ of Habeas Corpus Ad

Subjiciendum.

On September 2, 2015, Petitioner was only informed, by review of Docket

Statement in reply letter sent from Allegheny County Clerk of Court Offices, that

Seven Month earlier on February 24, 2015 that Judge Manning had entered a final

Order, pursuant to PCRA rule 907, that denied the Petitioner's Writ of Habeas

Corpus Ad Subjiciendum.

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SUBSEQUENT PROCEEDING

On September 22, 2015, within 30 dayes of Petitioner being informed about

Judge Manning's final Order on February 24, 2015, the Petitioner filed a Notice of

Appeal in the Superior Court of Pennsylvania at Docket No. 1544 WDA 2015.

On October 21, 2015, Petitioner acted to protect his Appellate Rights and

Notice to Appeal Rights None Pro Tunc, when he filed with Allegheny County

Clerk's Office a PCRA petition to have that Court to preserve the same herein

issue of Breakdown of Judicial Process.

On November 4, 2015, the Superior Court of Pennsylvania entered Order

instructed Petitioner to Show Cause, why the Appeal should not be Quashed as

untimely, in the form of a letter addressed to the Prothonotary Office.

On November 16, 2015, Petitioner filed a letter that complied with the Court's

Order.

On November 16, 2015, Judge Jeffrey A. Manning entered Notice of Intent to

Dismiss PCRA.

On December 8, 2015, the Superior Court of Pennsylvania entered Order held

"the Court having received a response to its order dated November 4,2015, the

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rule is Discharged and the Appeal shall proceed".

On December 21, 2015, Petitioner presented Objections to Judge Manning's

Notice of Intent to Dismiss.

On January 12, 2016, the Allegheny County Clerk of Court Office forward to the

Petitioner copy of the certificate and transmittal of record to Appellate Court. An

entry thereon is made on December 22, 2015 shows that Judge Manning had filed

an opinion of the Court.

On January 20 2016, Petitioner write a Letter to the Clerk of Court Office

seeking-information whether indicated opinion was Judge Manning's entered in

regard above PCRAfile on October 21, 2015, no reply has been received at this

filing.

Petitioner after Exhausting all adequate and alternative remedies (concerning

the Clerk of Court's failure to Mail Petitioner a copy of the Judge final Order to

Petitioner's place of confinement), Petitioner Notice that he still did not have the

Re-sentencing Judge Opinion or his Re-sentencing Decision(Transcript).

On June 26, 2017, Petitioner file a pro se "Petition for Writ of Mandamus

and/or Extraordinary Relief". The Honorable Jeffrey A. Manning in a Order dated

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August 29, 2017, issued Notice of his Intent to Dismiss Petitioner's Petition. In an

Order entered on the record on October 10, 2017, Judge Manning denied

Petitioner's Petition, which the Court labeled the Petition pursuant to the PCRA.

On November 9, 2017, Petitioner filed a pro se Notice of Appeal to the

Superior Court of Pennsylvania, the Court in a Memorandum Ruling Affirmed the

Lower Court's Decision on August 23, 2018.

On September 25, 2018, Petitioner filed a "Petition for Allowance of Appeal" in

the Supreme Court of Pennsylvania. On March 20, 2019, the Supreme Court

;

Denied Petitioner's petition for Allowance of Appeal. [Id. at Appendix "E"

And this Writ of Certiorari Follows :

I c-

REASON FOR GRANTING THE PETITION

I.

The District Court, and the Pennsylvania Supreme Court Decision is Contrary to

the Law, because Mr. Burnam (petitioner herein) was Denied his Federal

Constitutional Rights, his Equal Protection of the law and his Due Process of the

Law when the Integrity of the Court has been Compromised by the

implementation removing Legal Advocate and Subverting the Judicial System;

Thus, violating Petitioner's Pennsylvania and United States Constitutional Rights

to Due Process and Equal Protection, which is Governed by Petitioner's Rights

under Acticle 1, Section 9 of the Constitution, U.S.C.A. § Due Process and U.S.C.A.

§ Equal Protection to the Constitution of America.

Moreover, Petitioner argues that this case during Resentencing should not

have arise to Life imprisonment. As-A-Matter-of-Fact, Petitioner's retrial

■ proceeding show that the inception of this 'complaint' arose from Post-Trial

motions, which resulted in a Memorandum of Law derived from Supplemental

Post-trial Motions. What remained from these Post-trial Motions was "a hearing

on the claims of 'Ineffective Assistance of Counsel', and the necessary result of

either the Affirmation of the Death Penalty or other relief".

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On February 25,1991, Petitioner voiced trial counsel's ineffectiveness, on

December 11,1991, Petitioner's Post-trial Motions were continued "Generally".

Some eight (8) yesrs later, the results of Petitioner's December 11,1991, Post-trial

Proceeding resulted in Petitioner being Resentenced to First Degree Murder, and

Life imprisonment on December 7,1998 without a Court Opinion or the Reasons

for the Sentence being placed on the record, and not in the presene of Petitioner.

It is beyond cavil that in this instant case, a 'Riggins' violation has occurred

when the re-sentencing Court failed to place on the record at re-sentencing, and

absent a Court Opinion, the reasons for the sentence imposed. See

Commonwealth v. Riggins. 474 Pa. 115, 377 A.2d 140 (1977), where Mr. Justice

Roberts of our State Supreme Court wrote in his opinion for the Court,"... We are

persuaded that the sentencing process will be improved by requiring a trial court

to state, on the record, the reasons for the sentence imposed." [id. at 474 Pa.

137] Likewise a similar case for this instant case be found in Commonwealth v.

Mullen. 321 Pa.Super. 19, 467 A.2d 871 (1983), Thereat the Superior Court having

to decided an issue, where the defendant Mullen claimed that the trial court did

not state sufficient reasons on the record for the sentence it imposed, while also

contending that the reconsideration of sentence procedure could not correct the

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initial inadequate sentencing. The Court found that "No case specifically holds

that the reasons {for the sentence} be recorded during a sentencing hearing, and

that they be made within the presence of the defendant". [Id. at 321 Pa.Super.

23}, going on to cite 'Young', even though in that case the Court had filed an

opinion stating its reasons relied upon for sentencing 'Young', by stating :

"One complelling reason for Riggins' requirement is that without

a statement of reasons at the time of sentencing the defendant

lacks an opportunity at that time to bring to the Court's

attention any erroneous facts or conclusion upon which

it may have relied and is unable thereafter to file a petition

for sentencing challenging the court's reasons for imposing

sentence". Young, supra., 272 Pa.Super. Ct. 84, 414 A.2d 681 (1979).

Although the dissenting opinion by the Honorable Judge, Wieand, agreed with

the En Banc Court in 'Mullen', insofar as there being a need for perfect

compliance with the mandates of 'Riggins'. Yet the Honorable Judge Wiend

proposed that, "However, sentencing proceedings are not concluded irrevocably

when sentence is initially imposed, they continue even throught Appellate review.

Commonwealth v. Anderson. 304 Pa.Super. 476,482 A.2d 1011 (1982). The

means by which errors can be corrected by the sentencing Court have not been

rigidly limited or narrowly defined by substantive or procedural rule or law." Id. at

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321 Pa.Super. 26. "The Majority hold that the additional reasons cited in the

Court's Order may not recited in Petitioner's presence. Therefore, the Majority

remands so that the Court may repeat it recorded reasons in Petitioner's

presence," Id. at 321 Pa.Super. 27.

The Honorable Judge Wieand's statement seems to suggest that the Majority's

ruling in 'Mullen' is an exercise in futility, of which this writer does concede. In

view of the rising cost of litigation, and the over burdening of frivolous appeals

presented to the courts, there may be circumstances where alternative remedies

may be deemed proper jn the future. Apropos of this instant case, even Judge

Wieand's solution can not cure the instant case where the Trial Court failed to

even submit a Court Opinion. In light of such a circumstances, it is clear how Mr.

Justice Stewart, (while a judge on the Sixth Circuit Court of Appeals}, observed:

"Justice is measured in many ways, but to a convicted criminal its surest measure

lies in the fairness of the sentence he receives". Shepard v. United States. 257

F.2d 293, 294 (6th cir. 1958).

13

Undoubtly Mr. Justice Stewart's observance that, "[sentencing is a] most

important dimension of fundamental justice." Id supra., was a contributing factor

in the United States Supreme Court's finding that, "It is now clear that the

sentencing process, as well as the trial itself must satisfy the requirements of the

Due Process." See Gardner v. Florida. 423 U.S. 349, 358, 97 S.Ct. 1197, 51 L.Ed.2d

393 (1977)(plurality opinion), Mr. Justice Stevens. Consequently, where the

Court in this instant case failed to give the reasons for the sentence imposed upon

the Petitioner, and neglected to write an Opinion in this instant case, the

Petitioner's Due Process has been violated. It because obvious why the Superior

Court En Bac, concluded, [As should this Honorable Court],"... {T}hat because the

reason given for the lower Court's imposition of sentence does not comport with

Riggins, we are constrained to vacate the judgement of sentence and remand for

resentencing." Id supra at 231 Pa.Super. 25.

Even though there has been a clear 'Riggins' violation in the instant case, had

the sentence vested upon the Petitioner been commensurate to the Plea

Agreement with the Commonwealth, then surely, for the Petitioner to seek

Redress on the wings of a 'Riggins' violation would be an exercise in fruitility.

Arguably, a cursory read-through of the Colloquy of February 11,1991, shows a

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IdT

complete and firm colloquy, rendering any further complaints the Petitioer may

claim frivolous. However, upon a close and detailed review, there can be no

argument that to a laymen, never facing a legal courtroom as an adolescent or an

adult, thus would be inexperienced in the legal ramifications of the colloquy

given. Especially when coupled with an understanding from his Defense Attorney

that he would receive Third Degree if he Pled "General" to the Homicide Charge,

and the Prosecutor verifying Petitioner's belief by stating on the record to the

Court that "We are seeking Something Less Then Second Degree, that because of

the Mitigating Circumstances' weight against the Aggravating Circumstances",

coupled with the Court stating "it seem that somehow this turns into ... you

pleading to Third which is General, but it seem to fall somewhere to Third

Degree." Demonstrates that a reasonable person of sound mind would believe

that he was going to be sentenced to a term of sentence that had a maximum and

minumum, not the Death Penalty, or Eight (8) years later, re-sentenced to First

Degree Homicide, and life imprisonment. This surreal memory was foremost in

the Petitioner's mind as he was brought before the late Honorable Robert E.

Dauer for re-sentencing. Though the sentence of Death occurs prior to the re­

sentencing, and the late Judge Dauer as resentencing Judge, is responsible for

correcting the error by the late Judge Joesph H. Ridge. Yet still the resulting

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correction of being found guilty of First Degree Homicide with life imprisonment

could not and did not cure the original sentence by replacing it with another,

albeit lesser, illegal sentence. Absent an on-the-record reason for the resentence

or a Court Opinion, only a look at the law can be stated herein to give aid to this

Honorable Writ of Mandamus Court, where it follows that where Petitioner is

challenging the property of his sentence, he should do so first at the trial Court

level, See Commonwealth v. Clair. 458 Pa. 418, 236 A.2d 272 (1994).

It is long established that if a defendant is charged with murder, acceptance of

the guilty plea is to murder general, the Commonwealth then has the burden to

establish the particular degree of murder at a degree of guilt hearing, See

Commonwealth v. Appel. 547 Pa. 171, 689 A.2d 891, 895 n.3 (1997). However, it

is the Petitioner's contention that where the Plea has been entered in return for a

Negotiated on-the-record recommendation of a particular sentence of

"Something Less Then Second Degree", by the Commonwealth, Petitioner is

entitled to withdraw his Plea because the Trial Judge did not advise him that he

could withdraw the Plea if the Judge wishes to impose a higher sentence.

Conversely, if the trial Judge had expressly warned the Petitioner that the

sentence may exceed the recommendation there would be no right to withdraw

16

a

his Plea, See Commonwealth v. Porreca. 528 Pa. 46, 595 A.2d 23 (1991)(en banc),

Appeal Denied 528 Pa. 622, 597 A.2d 1151 (1991).

Given that the colloquy demonstrates a "General" plea was tendered on the

one hand, while simultaneously the Commonwealth offering a plea agreement,

and the Court acknowledging this agreement in open court for something less

than second degree, coupled with the defense Attorney stating the Petitioner

would receive a third degree sentence, the Petitioner begs this Honorable Court

to conclude that the most that can be said of the colloquy is that it is ambiguous,

and the ambiguity should be construed in favor of the Petitioner, See

Commonwealth v. Kroh. 440 Pa.Super. 1, 654 A.2d 1168,1173 (1995)("Although

the agreement is ambiguous ... we will construe this ambiguity against the

Commonwealth,); Innes v. Dalsheim. 864 F.2d 974 (2nd Cir. 1988), cert, denied

493 U.S. 809,110 S.Ct. 50,107 L.Ed.2d 19 (1989).

PRESERVATION OF ISSUES

II

Whether Writ of Mandamus Jurisdiction was abridged

or if this Petitioner's Due Process Rights were Denied

to Meaningful opportunity to seek Redress, for an

issue surrounding Re-sentencing, when Resentencing

Court failed to State its reasons on the Record for

the Imposition of its sentence.

>

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1 B

Petitioner avers that he should have had a new hearing to Redress the Claims

that was set-forth back in April 2, 2002 [Id. at APPENDIX "F" ], right after the

passing of the Re-sentencing Judge, Robert E. Dauer.

Since Petitioner was force

to undergo an Direct Appeal on issue's that has been already decided and

Adjudication taken place [Id. at APPENDIX "G" ], and right after Exhausting all

Adequate and Alternative Remedies, Issue's that was decided by Post-Trial

Proceeding;

Petitioner Contends that those proceeding in essence amounted to

nothing more than a 'Smoke-Screen'. [Id. at APPENDIX "A" & "B" ]

On June 26, 2017, Petitioner file a Pro se "Petition for Writ of Mandamus

and/or Extraordinary Relief".

The Commonwealth refused to hold a hearing and redress Petitioner's

Claims. However, on August 29, 2017, the Court issued a 907 Application

explaining why Petitioner's petition would be dismiss. [Id. at APPENDIX "D-l"]

Unfortunate, On October 10, 2017, the Court in its Order set-forth in the Notice of

Intention to Dismiss filed August 30, 2017, Denied petitioner petition, but labeled

it pursuant to the PCRA. [Id. at APPENDIX "D-2 ]

Petitioner in a Counterclaim, states that he should have had an hearing to

determine circumstances that had been going on back in July 24, 2000, and

November 15, 2001. [Id. at APPENDIX "H" and "I" ], instead the Commonwealth

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wanted to make allegation that Petitioner has been properly Sentenced.

On November 18, 2002 the Honorable Judge Robert E. Kelly draft out an

Opinion ( since the Re-sentencing Judge had passed away) [Id. at APPENDIX "J" ],

that report show that Judge kelly's arguments was raised from Petitioner's April 9,

2001 "Statement of Matters Complained of on Appeal" application filed by

Defense Counsel Robert E. Stewart esq., during Supplemental Post-Trial

Proceeding [Id. at APPENDIX "K" ]

Petitioner avers that those issues in Judge Kelly's Opinion are in Contrary with

the late Judge Robert E. Dauer's Re-sentencing of the Petitioner; As-a-matter-offact, those issues was before the late Honorable Joesph H. Ridge, and sent to the

late Honorable Robert E. Dauer during Supplemental Post-Trial And the reason

why those issues went before Judge Dauer was because of Judge Ridge December

31,1991 Memorandum Opinion . [Id. at APPENDIX "G" ]

On December?, 1998, the late Honorable Judge Robert E. Dauer set-aside the

Death Penalty and Re-sentenced Petitioner to First Degree Homicide and Life

imprisonment without an Court Opinion.

19

The Commonwealth by failing to Redress this Claim and refusing to remand

this case back for further action, not only deprived the Petitioner of Due Process

of Law, and his Equal Protection of the Law because they depended upon the

Honorable Judge Kelly's draft out Opinion, which was articulated from Petitioner's

April 9, 2001 Statement of Matters Complained of on Appeal, filed on behalf of

Petitioner's Post Trial Motions .

Petitioner argues that since those issues had already been adjudicate by the

Post-Trial Motions Judge, and the Supplemental Post-Trial Proceeding Judge, and

a result of Petitioner being Re-sentenced without an Opinion, This Case should be

sent back down to the Lower Court for Re-sentencing or Other Relief.

More accurately, thyis instant case is a quagmire of Post-trial Motions, and

Petitions, that are replete with a plethora of State Law violations, and State and

Federal Constitutional violations, and justice would be served and Due Process

Satisfied if an Officer of the Court cared to take up the true banner of lady Justice,

and unmask these covert violations instead of giving this case a Lackadaisical

approach by 'resting on their laurel's with the oft time used PCRA rubber stamp of

waiver', procedural default; and jurisdictional time bar.’ Which apropos, is not,

and never has been applicable to the issue in the instant case, nor subject to the

'waiver' or 'time restraints' rules under the PCRA.

20

The facts are clear in the instant case, that a challenges to the legality of a

Sentence can not be waived, conforms to Commonwealth v. Williams. 442

Pa.Super. 590, 660 A.2d 614 (1985); also Commonwealth v. Yount. 419 Pa.Super.

613, 615 A.2d 1316 (1992). In the instant case, the issue of the Rational of the

Court in imposing sentence, lacking an Opinion from the Resentencing Judge, it is

impossible to determine the cause behind the sentence imposed. Where

Resentencing, adsent an 'Opinion', does not reflect whether it was "Center[ed]

upon the Court's Statutory Authority" to impose a sentence, or the "Court's

exercised of discretion in fashioning" the sentence.

The issue raised implicates the legality of the sentence imposed. Especially,

when the Court had before it a 'Recommendation' from the 'Commonwealth' of a

Sentence of "Something Less Than Second Degree Homicide".

See Commonwealth v. Foster, at 609 Pa. 502,17 A.3d 332 {2011 Pa.Lexis 681]; Id.

at Appendix "L"

The Facts Which These Claims are Predicated

Were Unknown to the Petitioner Despite Due Diligence

42 Pa.C.S.A. § 9545(b)(l)(ii) requires facts upon which claims are predicated must

have been unknown to the Petitioner, and could not have been learn by due

21

diligence. Hopefully, in regards Petitioner's claims' merits, its prudent and useful

to review the details of diligence :

1)

On February 3,2000. Attorney Robert E. Stewart in reply letter

stated that hearing of Supplemental Post Trial proceedings ’ and re­

sentence Transpripts requested would be forth coming.

See, Appendix X

2) On March 23.2000. Robert E. Stewart, Esq., letter shows Relator

continued to request for copies of the “Court’s Opinion” and

Supplemental Post Trial proceedings’Transcripts.

See, Appendix

3)

On Mav 7.2002. Administrative law Clerk, for Judge Joseph

' M. James, assured the Relator that the “Court’s Opinion” was

to be filed in the near futur€>_$e^, Appendix 3

• ,

4) On April 1.2002. Law Clerk, Steven H. Bowyz’s, reply letter

stated the Court’s Opinion would be filed prior to April 30, 2002

and that the Re-sentencing Transcripts were incomplete.

See, Appendix “p*'!

5) i On November 15,2001. a letter detailed why the Court’s

‘Opinion’ was not forth coming, and that the “Resentencing

Transcripts” were still sought by Counsel Robert E. Stewart and

the judge’s clerks. See, Appendix*

6) Between November 15.1999 through June 72005, the Relator

pursued “Direct Appeal” regarding trial issues, which continued.

While still on appeal, in June /2005, Relator discovered that the

Late honorable Judge Robert E. Dauer passed away in his home.

See, Docket Entries: 70, 85, 87,90-94, 99,103,113, 115, 118,

121, and 123 all show Relator’s attempts to pursue this issue

continuously, which constituted due diligence. Furthermore,

this instant Petition was filed just after exhausting his last appeal,

June 19.2014,

22

* /

In Summation, in this instant case, it is impossible to accurately submit

accurate claims that rise to the height of Pennsylvania and Federal Constitutional

v

magnitudes where there is no Court Opinion of Record from the Re-sentencing

Judge. Furthermore, the Petitioner was not even present at his Re-sentencing to

afford him the opportunity to form the Court of the inaccuracies of his sentence

as articulated infra. It may be as the Majority [in Riggins] suggests, that there will

be occasion when the facts relied upon by the sentencing Court will be erroneous

and when the Petitioner must be given an opportunity to correct or Refute them.

Because the Petitioner in the instant case never had an opportunity to correct his

Re-sentence or had the opportunity to Refute it in accordance with the

Aforementional errors, this Honorable Court should not take into consideration

the Honorable Judge Robert E. Kelly's draft out opinion, because though issues

raised by Judge Kelly, has already been an adjudication, by the late Post-Trial

Judge Joesph H. Ridge, and sent to the late Honorable Judge Robert E. Dauerfor

complete determination; Petitioner state that since [we] will never know why

petitioner has been remove from Death Row and a re-sentence impose, Petitioner

should be granted a new trial or a new re-sentencing hearing after 'Twenty-one

years of Appealing this case', and 'Thirty-one years of confinement'.

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CONCLUSION

THEREFORE, Petitioner prays, after consideration of presented questions

and inclusive claims, this Honorable Court will grant:

1.

Writ of Mandamus, to have fulfilled plea agreement terms.

2.

Or, other Relief that the Court deems will afford due process

review of claims' merits.

Respectfully submitted,

X.

Jerome Burnam, Pro se

BA-6023: SCI-Fayette

48 Overlook Drive

La Belle, PA 15450-1050

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