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HomeMy WebLinkAbout83-0859 CriminalCOMMONWEALTH Vo RANDY WAYNE BRYNER IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 83-859 CRIMINAL TERM IN RE: DEFENDANT'S MOTION FOR RESENTENCING BEFORE OLER, J. ORDER OF COURT AND NOW, this r/l~ay of April, 2000, upon consideration of Defendant's motion for resentencing, following a hearing and for the reasons stated in the accompahying opinion, the motion is denied. Jaime Keating, Esq. Chief Deputy District Attorney Darrell C. Dethlefs, Esq. 3805 Market Street Camp Hill, PA 17011 Attorney for Defendant BY THE COURT, J/jC/esley Oler, COMMONWEALTH Vo RANDY WAYNE BRYNER IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 83-859 CRIMINAL TERM IN RE: DEFENDANT'S MOTION FOR RESENTENCING BEFORE OLER, J. OPINION and ORDER OF COURT OLER, J., April 7, 2000. In this criminal case Defendant has filed a motion for resentencing. The original sentence (for third degree murder) in 1984 contained a calculation of credit which the Department of Corrections has recently indicated it does not believe it can legally apply. The effect of the Department's position, if sustainable, is an extension of the maximum date of the sentence beyond that implied by the original judgment.~ Defendant's motion for resentencing is predicated upon the theory that the original sentence was illegal.2 For the reasons stated in this opinion, the motion will be denied. STATEMENT OF FACTS As the result of an incident on the night of June 29, 1983, Defendant was charged with murder, in connection with the death of a man named Gary Lovett.3 On February 16, 1984, Defendant was found guilty of murder in the third degree following a ~ The minimum date of the sentence would also be extended, but it has long since passed under either calculation. 2 Defendant's "Extraordinary Circumstances for Motion To Re-Sentence and Modify Nunc pro Tunc," at 5 (hereinafter Defendant's motion for resentencing, at __). 3 N.T. 11-12, Trial, February 14-15, 1984 (hereinafter Trial, N.T. ~. jury trial.4 On August 16, 1984, he was sentenced by the trial judge, who has since retired, as follows: AND NOW, August 16, 1984, at 11:50 a.m., the defendant, Randy Wayne Bryner, now appearing for sentence together with Court-appointed counsel, Hubert X. Gilroy, Esquire, he previously having been convicted after a trial by jury of murder in the third degree, and post trial motions having been denied, the court being in receipt of a pre-sentence investigation report, Sentence of the court is that the defendant pay the costs of prosecution, [and] undergo imprisonment in a State Institution for not less than nine and a half nor more than twenty years. Sentence to date from September 30, 1983. In imposing the above sentence, the court has considered the alternatives and guidelines under the Sentencing Code, the character of the defendant, and the particular circumstances of this particular offense. The court believes that the above sentence is a minimum sentence that is consistent with the protection of the public, the gravity of the offense, and the rehabilitative needs of the defendant. The court also notes for the record that the above sentence is within the mitigated range under the guidelines established by the Pennsylvania Commission on Sentencing. The court has specifically considered the age of the defendant, his prior adjudications for delinquency in juvenile court, and his past convictions as an adult. The court has also considered the fact that it was the defendant who searched out the victim in this case and stabbed him to death because he felt the victim had ripped him off in a drug deal. In conclusion, the court believes that total confinement is required and that any lesser sentence would tend to depreciate the seriousness of the offense. The court would also note for the record that prior to sentencing [today] the court did receive a letter from Mr. Gilroy, counsel for the defendant, which letter has set forth the factors that Mr. Gilroy believed were mitigating factors in connection with this particular charge.5 An examination of the sentencing colloquy makes clear that the credit (of 11-1/2 Trial, N.T. 156-57. Order of Court, August 16, 1984. 2 months preceding sentence) accorded Defendant by the trial judge was based upon the date of his arrest for the homicide.6 As it happened, he was serving another state sentence during this period.7 Defendant's conviction became final8 on March 17, 1986,9 and the United States Supreme Court denied a petition for writ of certiorari on October 6, 1986.~° Several petitions for post conviction collateral relief followed. ~ On October 27, 1999, Defendant filed the motion for resentencing sub judice, in the form of a document entitled "Extraordinary Circumstances for Motion To Re- Sentence and Modify Nunc pro Tunc.' The court appointed an attorney to represent him in the matter, and indicated that a hearing on the motion would be scheduled at counsel's request.~2 On February 1, 2000, Defendant's counsel requested such a hearing, which was scheduled by order of court dated February 9, 2000.~3 A hearing on Defendant's motion for resentencing was held on March 10, 2000. At the hearing, it was stipulated by counsel that until June 25, 1998, the Department of 6 N.T. 2-3, Sentencing Hearing, August 16, 1984. 7 See N.T. 2-4, Hearing, March 10, 2000; Defendant's Exhibit 1 (Sentence Status Change Report), Hearing, March 10, 2000. ~ See Act of May 13, 1982, P.L. 417, § 2, as amended, 42 Pa. C.S. § 9545(b). 9 Allowance of appeal denied, No. 244 M.D. Allocatur Docket 1985 (Pennsylvania Supreme Court, March 17, 1986). ~0 Petition for Writ of Certiorari Denied, No. 85-7048 (United States Supreme Court, October 6, 1986). ~ See Opinion of Court, August 26, 1999, at 5. ~2 Order of Court, November 1, 1999. ~3 Order of Court, February 9, 2000. 3 Corrections had calculated Defendant's minimum and maximum sentence dates in accordance with the credit provision contained in the sentencing order, and that on June 25, 1998, the Department issued a "Sentence Status Change Report," concluding that no credit prior to the imposition of sentence was due because Defendant had been serving another state sentence during that period. ~4 Defendant's counsel summarized Defendant's history and present position as follows: [I]n this case ... back in 1983, at Cumberland County docket number 687--83, he had been sentenced to two years to five years. That occurred on December 6th of 1983. Credit on that was back to August 19th of 1983. Subsequent to that, on a case that we're before the court on, at docket number 859--1983, he was sentenced to 9 and a half to 20 years on a third degree murder charge .... [The trial judge] ordered in that sentencing order that credit was to run from September 30th, 1983. For 15 years, the Department of Corrections calculated his sentence, according to [the trial judge's] order, with a minimum date of March 30th, 1993, and a maximum date of September 30th, 2003. On June 25th of 1998, the Department of Corrections unilaterally changed their calculations in a sentence status change report and they recalculated it, stating that [the trial judge's] order in 1983 was an illegal sentence or calculation. They said they could not issue that order, 'and they recalculated it on their own, making the effective date 8/16/84, and with a minimum date of 2/16/94 and a maximum date of 8/16/2004, increasing the maximum date by 11 months, 14 days. We think that that action by the Department of Corrections was inappropriate and contrary to what [the trial judge] specifically ordered. I think at the time, all the parties were in agreement that credit would run from September 30th, 1983. So it's our position, that correction should be ordered to recalculate the sentence back to the way it had been for 15 years and the way it was originally ordered by [the trial judge]. 15 ~4 N.T. 2-4, Hearing, March 10, 2000; Defendant's Exhibit 1 (Sentence Status Change Report), Hearing, March 10, 2000. 15 N.T. 2-3, Hearing, March 10, 2000. 4 Counsel for the Commonwealth at the hearing, in opposing a resentencing of Defendant, noted that the original sentence had not been the result of a plea bargain wherein a certain amount of credit had been promised to Defendant,16 and contended that the sentence imposed was not illegal,l? that Defendant's presentation of the issue at this point was untimely,ia and that jurisdiction in the matter lay elsewhere.~9 At the conclusion of the hearing, the court took the matter under advisement.2° DISCUSSION Defendant's desire for relief in the instant case is understandable. As noted by the court in an opinion which accompanied an order denying an earlier, unrelated petition under the Post Conviction Relief Act, "[i]t is apparent ... that [Defendant] has been incarcerated far beyond his minimum sentence and longer than had been anticipafed at the time of sentencing." The position of the Department of Corrections that the credit calculated by the trial judge can not be recognized, if correct, will further extend his potential period of incarceration. In addition, certain principles lend a degree of cogency to Defendant's argument that a resentencing should occur. It has often been said that an illegal sentence is subject to judicial correction notwithstanding certain waiver principles.21 Furthermore, a 16 N.T. 4, Hearing, March 10, 2000. l? N.T. 5, Hearing, March 10, 2000. In arguing the basic legality of the sentence, however, the Commonwealth's attorney did not take a position on the credit issue. N.T. 4, Hearing, March 10, 2000. la N.T. 5, Hearing, March 10, 2000; see Act of May 13, 1982, P.L. 417, {}2, as amended, 42 Pa. C.S. §9545(b) (time for filing PCRA petition). ~9 N.T. 4-5, Hearing, March 10, 2000. 20 Order of Court, March 10, 2000. 21 See, e.g., Commonwealth v. Wolfe, 398 Pa. Super. 94, 99 n. 1, 580 A.2d 857, 860 n.1 (1990). 5 sentence which awards an unlawful credit to a defendant may be challenged by the Commonwealth as illegal? Finally, it has been suggested that relief may be available from a sentencing court to a defendant where credit negotiated by the defendant in a plea bargain is discovered to be uncognizable.23 Several factors, however, militate against granting Defendant's motion for resentencing. First, it is not uncommon for the Department of Corrections to independently assess the legality of a given period of credit in the sentence of a state prisoner and to act in accordance with that determination. See, e.g., Fajohn v. Commonwealth of Pennsylvania, Department of Corrections, 547 Pa. 649, 692 A.2d 1067 (1997); Brown v. Commonwealth of Pennsylvania, Department of Corrections, 686 A.2d 919 (Pa. Commonwealth Ct. 1996); Doxsey v. Commonwealth of Pennsylvania, Bureau of Corrections, 674 A.2d 1173 (Pa. Commonwealth Ct. 1996). Notwithstanding the commonness of this practice, no authority has been found for the proposition that each such reassessment, resulting in a refusal to recognize credit, will afford a defendant an opportunity for resentencing, even if the initial calculation of credit was not the product of a plea bargain. Second, the adoption of such a rule would obviously have a significant potential impact upon the state's criminal justice system in view of the number of cases which might be subject to reconsideration and the difficulty involved in a given case in reevaluating a sentence remote in time. A lower court may be well advised to defer to the appellate courts for adoption of an innovation of this type. See Stonehedge Square Ltd. Partnership v. Movie Merchants, Inc., 454 Pa. Super. 468, 481, 685 A.2d 1019, 1026 22 See, e.g., Commonwealth v. Conahan, 388 Pa. Super. 369, 565 A.2d 798 (1989). 23 Fajohn v. Commonwealth of Pennsylvania, Department of Corrections, 547 Pa. 649, 692 A.2d 1067 (1997); Brown v. Commonwealth of Pennsylvania, Department of Corrections, 686 A.2d 919 (Pa. Commonwealth Ct. 1996); Doxsey v. Commonwealth of Pennsylvania, Bureau of Corrections, 674 A.2d 1173 (Pa. Commonwealth Ct. 1996). 6 (1996), citing Spector Motor Service, Inc. v. Walsh, 139 F.2d 809, 823 (2d Cir. 1943) (L. Hand, dissenting), vacated, 323 U.S. 101, 65 S. Ct. 152, 89 L. Ed. 101 (1944). Third, judicial review of a determination by the Department of Corrections that a period of credit is not legally cognizable is available to a defendant through the mandamus process. "[A] writ of mandamus can be used to compel the Department of Corrections to compute properly a prisoner's prison sentence." Doxsey v. Commonwealth of Pennsylvania, Bureau of Corrections, 674 A.2d 1173, 1175 (Pa. Commonwealth Ct. 1996) (emphasis omitted). Thus, a denial of the request of Defendant herein would not foreclose a determination of the issue of credit on the merits. Fourth, the traditional definition of an illegal sentence is "one that exceeds the statutory limits." Commonwealth v. Archer, 722 A.2d 203,209 (Pa. Superior Ct. 1998).24 It is obvious that the alleged deficiency in the sentence imposed upon Defendant does not rise to that level of defect. The illegal sentence doctrine, however, has also provided a basis for correction of a sentence at the Commonwealth's behest where unauthorized credit has been awarded. See, e.g., Commonwealth v. Conahan, 388 Pa. Super. 369, 565 A.2d 798 (1989). In such a case, however, the sentence is preserved by the removal of the illegality; it does not follow that, at a defendant's behest, the sentence should be invalidated by preservation of the illegality. Finally, the implicit premise of Defendant's motion for resentencing is the presumption that the sentencing court, in 1984, would have imposed a lesser maximum sentence had it been aware of the credit issue discussed herein. In view of changes in circumstances in the timing of parole in murder cases in the intervening years, and the sentencing judge's unavailability herein, such an assumption is particularly speculative in this case. 24 The defect involved in an illegal sentence is sometimes referred to as jurisdictional in nature. Commonwealth v. Archer, 722 A.2d 203,209 (Pa. Superior Ct. 1998). 7 For the foregoing reasons, and without suggesting that Defendant's position may not be worthy of appellate consideration, the following order will be entered: ORDER OF COURT AND NOW, this 7th day of April, 2000, upon consideration of Defendant's motion for resentencing, following a hearing and for the reasons stated in the accompanying opinion, the motion is denied. BY THE COURT, J. Wesley Oler, Jr. J. Wesley Oler, Jr. Jaime Keating, Esq. Chief Deputy District Attorney Darrell C. Dethlefs, Esq. 3805 Market Street Camp Hill, PA 17011 Attorney for Defendant