The former Texas man whose Labor Day weekend crime spree in 1984
led to criminal convictions in three counties is appealing a ruling
from McKean County Court which upholds his sentence of 26 to 52
years in prison for local charges including attempted murder and
burglary.

Joe Lynn Kinney, 42, currently incarcerated in State
Correctional Institute at Fayette on charges from Erie County, is
appealing a decision by President Judge John Cleland which denied
his petition for post conviction collateral relief. Cleland
dismissed Kinney’s petition for relief, saying there were no issues
concerning any material fact and that Kinney was not entitled to
relief.

By Pennsylvania law, a post conviction relief petition must be
filed within one year of the day judgment became final. Kinney was
sentenced Dec. 19, 1985; he had 30 days in which to file a direct
appeal, but did not. Therefore, his sentence became final on Jan.
18, 1986.

Kinney had one year after that date to file his petition.

However, the petition was filed March 10, 2006 – 21 years later.
Therefore, Cleland ruled, he is not permitted by law to consider
the arguments in the petition. Cleland also points out that Kinney
did not argue that his petition fit any of the exceptions to the
law which would have allowed him to consider it despite the time
delay.

“However, even if I had jurisdiction to hear Kinney’s claim, his
claim would still fail,” Cleland wrote.

From Aug. 29 to Sept. 1, 1984, Kinney and Donald Biauce began in
Erie County trying to steal car batteries. The men were captured
and taken to a hospital, from where they escaped. They held a
family hostage in Union City before leaving with a truck, guns and
cash. A security guard who pursued the pair was shot three
times.

On Aug. 31, 1984, the men broke into a residence outside of
Warren, held a couple hostage and made the couple drive them to
McKean County. Along the way, Biauce and Kinney shot at state
troopers at a roadblock.

When the car ran out of gas, the fugitives attempted to stop
other vehicles by shooting at them, wounding several people. They
broke into a residence in Marshburg, left the Warren couple behind,
took an all-terrain vehicle and fled into the woods.

When the ATV broke down, the men continued on foot, breaking
into a home in Lewis Run before eventually being captured in the
borough.

Kinney’s argument in his petition for relief was that his
sentence was illegal because his offenses were all part of the same
criminal episode – an argument that Cleland refuted using a state
Superior Court decision in another case from McKean County, that of
Daniel Wittenburg in 1996.

Wittenburg also argued that his offenses were part of the same
criminal episode, beginning with the armed robbery of a convenience
store in Marienville, continuing with another armed robbery in
Emlenton and a third in Kane, where Wittenburg fired a bullet
through a canopy over top of gas pumps. He then went to an
establishment in Ludlow, where he held the bartender and several
patrons at gunpoint and fired several shots into the wall behind
the bar.

He left the bar in his car, followed by police into Warren
County where the chase ended when his car became stuck in a ditch
at a roadblock. A shoot-out with police ensued and Wittenburg was
shot three times.

A Warren County judge ruled in 1997 that Wittenburg would be
immune from prosecution there because he had entered a plea to
charges in another county from “the same criminal episode.” The
Warren County district attorney appealed and won.

Wittenburg attempted the same argument in McKean County. Cleland
ruled that Wittenburg would be prosecuted here for his crimes. The
order was upheld by the Superior Court.

The Superior Court ruled that, for the offenses to be considered
as one criminal act, “a court should inquire into whether there is
a substantial duplication of factual and/or legal issues presented
by the offenses; if there is substantial duplication, then the
offenses are logically related and must be prosecuted at one
trial.”

In the Kinney ruling, Cleland said the issue Kinney brought
forth had been addressed in the trial of Kinney’s accomplice,
Donald Biauce. In that case, the judge, the late Vernon Roof, ruled
that the argument did not justify post conviction relief because
there was not substantial duplication of facts or legal issues in
the offenses committed in Erie, Warren and McKean counties.

Roof ruled that the crimes committed in McKean County were done
in an attempt to avoid apprehension and were not a part of the
prior offenses. The same applies to Kinney’s case, Cleland
states.

Cleland dismissed Kinney’s petition, and Kinney filed an appeal
to the state Superior Court. Kinney had been represented by
attorney Barry Klenowski of Warren, who asked Cleland to allow him
to withdraw from the case. Klenowski said he feels Kinney’s
argument has no merit and was not filed in a timely manner,
according to court records.

Kinney’s appeal to the Superior Court is pro se, or without
legal counsel.

In the appeal, Kinney is arguing, among other things, that
McKean County had no jurisdiction over his case, and therefore
cannot impose a time limit for his post conviction relief petition.
He also argued that his learning disability prevented him from
understanding the time constraints involved in the process.