Dockery v. Diguglielmo

Full title: DEVON DOCKERY, Petitioner, v. DAVID DIGUGLIELMO, et al., Respondents

Court: United States District Court, E.D. Pennsylvania

Date published: Apr 5, 2007

CIVIL ACTION NO. 04-6025 (E.D. Pa. Apr. 5, 2007)

Opinion

CIVIL ACTION NO. 04-6025.

April 5, 2007

MEMORANDUM AND ORDER

RONALD BUCKWALTER, District Judge

Magistrate Judge David R. Strawbridge's Report and Recommendation recommended staying the proceedings pending a response by the Pennsylvania Supreme Court to the question certified by the Third Circuit Court of Appeals in Kendrick v. District Attorney of Philadelphia, et al., No. 02-3158 (3^rd Cir.).

That decision has now been handed down ( See Kendrick v. District Attorney of Philadelphia County, 2007 PA LEXIS 361 (PA Feb. 20, 2007).

The Respondent in its brief filed March 12, 2007 (Docket No. 35) stated that it "will no longer contest Petitioner's claim that the trial court erred in accepting his guilty plea to a violation of Pennsylvania's Corrupt Organization Act, 18 Pa. C.S. § 911" ( see first page of Docket No. 35).

The only remaining question, according to both Petitioner and Respondent, is the appropriate remedy.

Respondent believes that a conditional writ should be issued giving the trial court "the chance to reconsider the matter" presumptively to "preserve its original sentencing scheme." The position of Respondent overlooks the obvious error, according to the Pennsylvania Supreme Court, in accepting Petitioner's plea to the violation aforesaid.

The remedy is reflected in the following order:

AND NOW, this 4^th day of April, 2007, it is hereby ORDERED that the petition for writ of habeas corpus is GRANTED, and the sentence imposed on Petitioner for violation of the Pennsylvania Corrupt Organization Act is VACATED.