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Inmate receives new hearing

The Pennsylvania Superior Court has ordered a new hearing for an inmate serving a 10-year minimum sentence for striking a corrections officer at the former State Correctional Institution at Cresson.

The inmate, Robert Fennell, now 49, was convicted of several serious offenses for punching a corrections officer in the face and received a 10- to 20-year sentence on Aug. 10, 2010.

The state Superior Court eventually vacated Fennell’s convictions on charges of aggravated assault and simple assault but upheld convictions for assault by a prisoner, resisting arrest and recklessly endangering another person.

The appeals court also allowed the 10- to 20-year sentence to stand.

The prison in Cresson was closed in 2013, and Fennell, according to state records, is completing his time behind bars at the State Correctional Institution at Smithfield.

Meanwhile Fennell has continued to appeal his case, and that has resulted in confusion that the state Superior Court wants clarified.

A three-judge panel this week vacated an order by Cambria Judge Timothy P. Creany dismissing Fennell’s latest post-conviction petition because the record of the case is not clear whether Fennell is representing himself or if he is represented by a court-appointed attorney, Russell Heiple of Cambria County.

Both the defendant and attorney have filed briefs in the case, in which the defense contends the trial attorney for Fennell was ineffective because he failed to determine whether there were any witnesses to the alleged assault that could have provided evidence that was favorable to the defense.

Heiple sent a letter to the sentencing judge concerning the Fennell case, which Superior Court Judges Mary Jane Bowes, Anne E. Lazarus and Dan Pellegrini determined was inadequate in its representation of Fennell.

The Superior Court panel stated, “a lawyer should pursue a matter on behalf of a client despite opposition, obstruction or personal inconvenience to the lawyer, and take whatever lawful and ethical measures are required to vindicate a client’s cause or endeavor.”

The Heiple letter was so unclear that the Superior Court was uncertain if Heiple was withdrawing from the case or if he intended to continue his representation.

Fennell in the meantime began filing petitions on his own behalf.

A defendant cannot represent himself while being represented by an attorney, and the Superior Court panel was critical of Creany for not addressing the issue.

“We note our concern with actions of both attorney Heiple and the PCRA Court (Judge Creany), who collectively failed to ensure, after the appointment of counsel, that Fennell received adequate representation or understood the implications of waiving representation,” the appeals court opinion stated.

The opinion vacated Creany’s dismissal of Fennell’s appeal and ordered a new hearing to determine if Fennell has knowingly given up his right to an attorney or if Heiple intended to withdraw from the case.

It stated if Fennell retracts his desire to represent himself, new counsel must be appointed.

If new counsel finds Fennell’s claims lack merit, that attorney must file a letter stating the claims have no merit and the Cambria judge must agree before allowing the attorney to withdraw from the case, the Superior Court order stated.

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