Commonwealth v. Gaerttner

649 A.2d 139, 437 Pa. Super. 84, 1994 Pa. Super. LEXIS 2915
CourtSuperior Court of Pennsylvania
DecidedOctober 18, 1994
StatusPublished
Cited by5 cases

This text of 649 A.2d 139 (Commonwealth v. Gaerttner) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Gaerttner, 649 A.2d 139, 437 Pa. Super. 84, 1994 Pa. Super. LEXIS 2915 (Pa. Ct. App. 1994).

Opinion

OLSZEWSKI, Judge.

Donald Gaerttner appeals the denial of his petition for post-trial relief. In 1979 Gaerttner, who was in his forties, committed several sex crimes against a twelve-year-old girl, [P.D.]. In 1980 a jury acquitted Gaerttner of the one rape charge, but convicted him on all other counts: promoting prostitution, indecent assault, sexual abuse, and corrupting the morals of a minor. Sentencing was delayed until 1982, and new counsel was appointed. The trial court considered Gaerttner’s admittedly extensive criminal history, and imposed the statutory maximum sentence — 18 to 36 years.

New counsel was again appointed for Ga-erttner’s direct appeal to this Court. Gaertt-ner raised nineteen claims of error, including numerous allegations that his trial counsel were ineffective. A panel of this Court affirmed the judgment of sentence in an extremely detailed memorandum decision. See appellee’s brief at A-7. Our Supreme Court declined review.

Gaerttner then raised the same allegations of error in federal habeas corpus petition. Because almost all of his claims had been litigated and disposed of on direct appeal, his petition was eventually denied. See Magistrate’s Report and Recommendation, appel-lee’s brief exhibit B. The only new claim Gaerttner raised in his habeas petition was that he received a disproportionately long sentence. The federal court considered this a cognizable habeas claim, but dismissed it because Gaerttner had not yet litigated it in the Pennsylvania courts. Id. at B-8 and B-9.

Gaerttner next brought this petition for post-conviction relief, once again raising all of the same allegations as before. Appointed counsel, attorney William Hathaway, wrote a Finley no-merit letter stating that all of Gaerttner’s claims had been either previously litigated or waived. Appellee’s brief at A-1 and A-2. The trial court agreed, granted counsel’s petition to withdraw, and dismissed Gaerttner’s PCRA petition without an evi-dentiary hearing. This appeal followed.

Because his court-appointed counsel was granted permission to withdraw, Gaerttner has filed an enormous pro se brief with this Court to support his PCRA appeal. It reiterates every allegation ever raised in his case, which he has been litigating for almost 15 years now. It is a considerable task simply to read through it in order to identify which claims have been previously litigated— a task that Gaerttner’s appointed counsel was apparently not up to.

Hathaway’s two-page Finley letter does not make any attempt to list, or even categorize, Gaerttner’s numerous and varied claims. It merely states that all his ineffectiveness of trial counsel claims have been previously litigated or waived. See appellee’s brief at A-2. We would not fault counsel for grouping many of Gaerttner’s claims together for easier disposition, since it is obvious that most of them have been dealt with before. Still, we cannot pretend that Hathaway’s letter even comes close to meeting the requirements for withdrawal set forth in Commonwealth v. Finley, 379 Pa.Super. 390, 550 A.2d 213 (1988). Finley requires counsel to list each issue the petitioner wishes to have reviewed, and explain why the issue is meritless. Id. at 393, 550 A.2d at 215. Hathaway’s purported Finley letter makes no attempt to list, explain, structure or elucidate any of Gaerttner’s myriad claims. Instead of researching his client’s lengthy case, counsel simply punted.

We, however, have taken the time to study Gaerttner’s pro se brief, and separate the wheat of cognizable claims from the previously litigated chaff. Our independent review [142]*142satisfies us that none of Gaerttner’s claims have merit, so we will affirm the trial court’s order despite counsel’s failure to present his client’s case.

I.

The bulk of Gaerttner’s 53-page brief is devoted to sentencing issues (pp. 9-21), the allegedly ineffective assistance of his trial counsel (pp. 23-38), and other alleged pretrial and trial errors concerning district justices, bias, publicity and venue (pp. 40-50). After a careful review of the record, we find that all of these claims have been either previously litigated or are not cognizable un-' der the PCRA.

Gaerttner raised 19 claims of error in his direct appeal, many alleging ineffective assistance of trial counsel. We agree with the Finley letter’s summary conclusion that all claims of ineffective assistance of trial counsel have been previously litigated or waived by this point, since they should have been raised on direct appeal by Gaerttner’s new counsel. See 42 Pa.C.S.A. §§ 9543(a)(3)(iii), 9544(a) and (b); Commonwealth v. Tanner, 410 Pa.Super. 398, 600 A.2d 201 (1991), alloc. denied, 530 Pa. 654, 608 A.2d 29 (1992).

The claims regarding Gaerttner’s sentence are not cognizable under the PCRA, because they do not challenge the sentence’s legality or involve the truth-determining process. 42 Pa.C.S.A. § 9543(a)(2); Commonwealth v. Lewis, 430 Pa.Super. 336, 634 A.2d 633 (1993). The alleged errors at the preliminary hearing are also not cognizable. Commonwealth v. Bond, 428 Pa.Super. 344, 630 A.2d 1281 (1993). The four pages devoted to [P.D.] ’s bias were matters which the jury considered and resolved against Gaerttner. The remaining allegations about pre-trial publicity and venue were addressed by this Court in Gaerttner’s direct appeal, so we need not reconsider them. See appellee’s brief at A-8, 9.

Having grouped Gaerttner’s old and unre-viewable claims together and addressed them, we may now turn our attention to the few cognizable issues Gaerttner presents.

II.

Page 22 of Gaerttner’s brief alleges that he has been keeping track of similarly situated criminal defendants, and they all have received much shorter sentences than himself. Gaerttner is apparently alleging that his disproportionately heavy sentence (the statutory maximum) constitutes a violation of equal protection. The federal court which dismissed Gaerttner’s habeas petition noted that this was a cognizable habeas claim, but dismissed it nonetheless because it had not yet been litigated in a state court proceeding. See appellee’s brief at B-8, B-9. This claim is cognizable under the PCRA, since it alleges a violation of the Constitution which could require the granting of federal habeas corpus relief to a state prisoner. 42 Pa.C.S.A. § 9543(a)(2)(v).

Gaerttner does not document his claim. Moreover, Gaerttner concedes that his ease is not exactly like any other case which he has studied in terms of the “severity and repetitiveness of the crimes committed.” Our review of the record leaves no doubt that the reason Gaerttner was given such a long sentence was because of his exceptionally long rap sheet, and peculiar involvement with child pornography. See sentencing transcript, 1/18/82 at 33-45. Thus, Gaerttner’s punishment was tailored to fit his admittedly unique crimes and criminal history; we see no equal protection violation.

III.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Com. v. Maxwell, E.
Superior Court of Pennsylvania, 2022
Com. v. Hayward, Q.
Superior Court of Pennsylvania, 2020
Com. v. MacColl, D.
Superior Court of Pennsylvania, 2017
Com. v. Pacheco, R.
Superior Court of Pennsylvania, 2015
Commonwealth v. McKinney
772 A.2d 1023 (Superior Court of Pennsylvania, 2001)

Cite This Page — Counsel Stack

Bluebook (online)
649 A.2d 139, 437 Pa. Super. 84, 1994 Pa. Super. LEXIS 2915, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-gaerttner-pasuperct-1994.