Com. v. Conyers, J. ( 2019 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JEROYD P. CONYERS, :
:
Appellant. : No. 388 WDA 2018
Appeal from the Judgment of Sentence, February 12, 2018,
in the Court of Common Pleas of Butler County,
Criminal Division at No(s): CP-10-CR-0000683-2013,
CP-10-CR-0000684-2013, CP-10-CR-0000685-2013,
CP-10-CR-0000686-2013, CP-10-CR-0001004-2013.
BEFORE: BENDER, P.J.E., KUNSELMAN, J., and MURRAY, J.
MEMORANDUM BY KUNSELMAN, J.: FILED MARCH 15, 2019
Jeroyd P. Conyers appeals pro se from the judgment of sentence
imposed after he entered guilty pleas to drug offenses and a firearm violation
on five separate criminal dockets. We affirm.
This case has a long, complicated history, which has resulted in multiple
appeals to this Court. We have summarized the relevant details as follows:
In 2013, Conyers entered open guilty pleas on five dockets for various
drug and firearm violations. The trial court originally imposed an aggregate
sentence of 12 to 24 years of incarceration. Conyers did not file an appeal.
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In 2014, Conyers filed a timely PCRA petition.1 The PCRA court
dismissed this petition and this Court affirmed the dismissal. In a subsequent
pro se PCRA petition, Conyers challenged the legality of his sentence under
Alleyne v. United States, 133 S.Ct. 2151 (2013). By agreement, the PCRA
court granted this petition and, in 2016, resentenced Conyers to an aggregate
11½ to 24 years of incarceration.
Conyers filed a pro se appeal even though counsel still represented him
at that time. Eventually, this Court remanded for a Grazier hearing.2
Following the remand, the trial court held the Grazier hearing, and the trial
court permitted Conyers to proceed pro se. In addition, the court filed a
Pa.R.A.P. 1925(a) opinion, addressing the sentences imposed on all five
dockets.
In 2017, this Court decided Conyers’ appeal from his 2016 sentence,
and found merit to his legality of sentence claims. In that decision, we noted:
In its September 1, 2017 Rule 1925(a) Opinion, the trial
court conceded that [Conyers] is serving at least one illegal
sentence, a mandatory minimum sentence, imposed at No.
CP-10-CR-0000686-2013, of 36 to 72 months’
incarceration. Trial Court Opinion, dated 9/1/17, at 2-3.
The trial court also acknowledged two additional errors
related to [Conyers’] resentencing. Id. As a result, the trial
court requested that this Court “remand these cases to the
Court of Common Pleas for resentencing.” Id. at 3.
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1 Post Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-46.
2 Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).
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Conyers, unpublished memorandum at 8. We agreed that remand was
appropriate “to provide the trial court with the opportunity to rectify several
errors at a resentencing hearing on all five dockets, consistent with the
dictates of Alleyne and its progeny.” Id. The panel thus vacated Conyers’
judgments of sentence and remanded for resentencing. Id.The trial court held a new sentencing hearing on February 12, 2018. At
the beginning of the 2018 proceeding, the trial court acknowledged that, at
Conyers’ 2016 resentencing, it “frankly got some of the numbers mixed up
and didn’t appropriately sentence him.” N.T., 2/12/18, at 3. The court stated
its intention to sentence within the standard range of the guidelines at each
docket. Id.The trial court then asked Conyers’ counsel, whom the court had
previously appointed as Conyers’ PCRA counsel, if he wished to present any
additional information. Id. Counsel requested the sentencing memorandum
that had been prepared when Conyers was originally sentenced in 2013 be
incorporated into the record. Conyers, via video conference, then testified
and gave the court an update as to programs and classes he had completed
or was waiting to attend while incarcerated. See N.T., 2/12/18, at 4. When
asked by the trial court, the Commonwealth stated that it had nothing to add.
Id.The trial court then imposed the following new sentences:
THE COURT: Okay. Well, let’s start with 683 of
2013. It’s a count of possession with intent to deliver. And
I believe the initial sentence we’ll resentence now. Cost of
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prosecution. Fine of $30,000. Undergo imprisonment of not
less than 21 months nor more than 42 months with the
Bureau of Corrections. You’ll receive credit for time served
as allowed by law. And this sentence is consecutive with
any other sentence.
And the next sentence is 684 of 2013. That’s [a] charge
of delivery of a controlled substance. The standard
guideline range for this sentence is 12 to 18 months
minimum. So, the sentence of the Court in this case is
cost[s] of prosecution. $250 fine. Undergo imprisonment
not less than 12 months nor more than 24 months with the
Bureau of Corrections. Credit for time served as allowed by
law. And this sentence will be concurrent with any other
sentence.
And the next one is 685 of 2013. Delivery of a controlled
substance. Standard guideline range for this case is a
minimum of 12 to 18 months. The sentence the Court will
issue is cost[s] of prosecution. $250 fine. Undergo
imprisonment of not less than 12 months nor more than 24
months with the Bureau of Corrections. Credit for time
served as allowed by law. This sentence is concurrent with
any other sentence.
The next sentence is 686 of 2013. Delivery of a
controlled substance. The guidelines for this sentence is 18
to 36 months. And the sentence of the Court will be costs
of prosecution. $10,000 fine. Undergo imprisonment not
less than 18 nor more than 36 months with the Bureau of
Corrections. Credit for time served as allowed by law. And
this will be consecutive with any other sentence.
And then the final case is 1004 of 2013. That’s a former
convict not to own a firearm. The guidelines are a minimum
sentence of 42-54 months. The sentence at count one,
cost[s] of prosecution. $100 fine. [42] to 84 months at the
Bureau of Corrections. Count two is possession with intent
to deliver. The guidelines for this case is a minimum of 42
months to 54 months. The sentence of the Court will be
cost[s] of prosecution. A fine of $100. Undergo
imprisonment not less than 54 months nor more than 100
months with the Bureau of Corrections. And that will be
consecutive to any other sentence.
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So the aggregate sentence today that [Conyers] will be
getting will be a minimum of 135 months [( 11¼ years)] to
[a] maximum of 270 months [(22 ½ years)]. And then
parole jurisdiction is with the Pennsylvania Bureau of
Probation and Parole. And following sentence you would
have 30 days to file an appeal to the Superior Court.
N.T., 2/12/18, at 5-6 (paragraph breaks added). Upon the court’s inquiry,
the parties had nothing to add, and the resentencing proceeding concluded.
Id. at 6.
This timely pro se appeal followed.3 Both Conyers and the trial court
have complied with Pa.R.A.P. 1925. Conyers raises the following three issues
in his brief:
1. Is Conyers entitled to be resentenced again insofar as the
sentences imposed on February 12, 2018 failed to
comport with the Superior Court’s directives of October
17, 2017 with respect to sentencing Conyers in
consonance with Alleyne and its progeny; and
Pa.R.Crim.P. 590(B); whereas the extra five years is in
contravention by elevation of the floor by 5 years and the
ceiling by two years?
2. Is Conyers entitled to be resentenced again insofar as he
was not physically present (in personam) at sentencing,
diverting paperwork to prior counsel; Conyers’ due
process rights were curtailed by not being able to be
present at all stages of trial, and to act pro se as court
ordered by the trial court?
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3 On or about March 14, 2018, Conyers filed his single notice of appeal that
included all five-docket numbers. Thus, our Supreme Court’s decision in
Commonwealth v. Walker, which was decided on June 1, 2018, and
prospectively requires separate notices of appeal for each docket, is
inapplicable, and does not bar his appeal.
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3. Is Conyers entitled to be resentenced again insofar as the
trial court’s sentencing orders are abstruse and do not
reflect the verbal sentence via video conference by the
trial court; whereas the Court’s statement of time to be
served by Conyers?
See Conyers’ Brief at 7.4 Conyers’ supporting arguments are not the model
of clarity. Nevertheless, to the extent possible, we will discuss each of
Conyers’ sentencing claims individually.
In his first issue, Conyers challenges the legality of his 2018 sentence.
“When we address the legality of a sentence, our standard of review is plenary
and is limited to determining whether the trial court erred as a matter of law.”
Commonwealth v. Bowers, 25 A.3d 349, 352 (Pa. Super. 2011) (citation
omitted). “A challenge to the legality of a sentence may be raised as a matter
of right, is not subject to waiver, and may be entertained as long as the
reviewing court has jurisdiction.” Id. “If no statutory authorization exists for
a particular sentence, that sentence is illegal and subject to correction. An
illegal sentence must be vacated.” Id.Here, the trial court rejected Conyers’ legality challenge:
At the hearing, on February 12, 2018, the trial court
addressed each one of [Conyers’] five (5) cases, rectified
several sentencing errors and sentenced in accordance with
the October 17, 2017 Superior Court directive. Therefore,
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4 The Commonwealth did not file a brief. In addition, in its original Rule
1925(a) opinion, the trial court opined that it could not address Conyers’
claims because he failed to request preparation of the 2018 resentencing
transcript. Our review of the docket revealed that Conyers did so, and the
2018 transcript now appears in the certified record. In addition, the trial court
has prepared a supplemental Rule 1925(a) opinion, which briefly addresses
each issue enumerated above.
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there being no merit to [Conyers’] claim that his sentence
is illegal, this issue should be dismissed.
Trial Court Opinion, 11/14/18, at 1. Our review of the sentencing transcript
supports the trial court’s conclusion.
In his argument in support of his first issue, Conyers does not specify
sufficiently how his 2018 aggregate sentence was increased by five years on
the minimum (“the floor”) and by two years on the maximum (“the ceiling”).
These increases are not evident from our review of the record. We believe he
is simply mistaken about these numbers; alternatively, we find he has failed
to adequately develop his argument.
As noted above, at the resentencing hearing, the trial court stated its
intention to impose a standard range sentence at each count, without any
mention of a mandatory minimum that was invalidated by the appellate cases
applying the Alleyne decision to Pennsylvania’s sentencing statutes. Further,
to the extent Conyers believes the the trial court’s changing certain sentences
from concurrent to consecutive renders his sentence illegal under Alleyne and
its Pennsylvania progeny, he is mistaken. See Conyer’s Brief at 12 n.2.; 14
n.6. Indeed, Conyers’ new aggregate minimum sentence is ¾ of a year lower
than the aggregate minimum sentence the trial court originally imposed in
2013.5 Moreover, Conyers’ 2018 standard-range aggregate sentence clearly
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5To the extent that Conyers references Pa.R.Crim.P. 590 and infers that his
new aggregate sentence violates his plea agreement, this Court, in Conyers,
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falls within the potential statutory maximum Conyers faced for his crimes, that
is, an aggregate 160 years. See Guilty Plea Colloquy, 10/11/13, at 1.
Conyers first claim of error fails.
In his second issue, Conyers asserts that his due process rights were
violated when he physically was not present at the 2018 resentencing hearing,
and only testified by video conference. The trial court found no merit to this
claim:
At the February 12, 2018 hearing, [Conyers] appeared via
video. The scheduling order dated January 30, 2018 and
docketed on February 7, 2018 states that “[c]ourt
administration shall determine if [Conyers] wishes to be
resentenced via video.” The transcript of the February 12,
2018 hearing fails to indicate anywhere that [Conyers]
and/or his counsel objected to appearing at [the] hearing
via video. Therefore, as this issue, was not raised below, it
was not preserved for appeal and must fail.
Trial Court Opinion, 11/14/18, at 1. We agree that this issue is not properly
before us. See generally, Pa.R.A.P. 302(a). Further, Conyers cites no
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supra, has already determined that Conyers entered open pleas at the five
dockets with no promises regarding sentencing. See Conyers, infra.
In addition, although Conyers argues an “appearance of reprisal” he
does not properly develop this claim. See Conyers’ Brief at 10; 18 n.10. Thus,
we will not consider it further. See Commonwealth v. Hardy, 918 A.2d 766,
771 (Pa. Super 2007) (stating, “[t]his court will not act as counsel and will not
develop arguments on behalf of an appellant”). The same holds true for
Conyers’ claim regarding the use of his prior convictions. See Conyers’ Brief
at 13 n.4.
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authority for the proposition that appearance by video conference—when he
fails to object—nevertheless violates his due process rights.6 See generally
Pa.R.Crim.P. 119. Thus, Conyers’ second issue entitles him to no relief.
In his final issue, Conyers states that the above sentencing order is
“abstruse,” that is, difficult to understand, insofar as his award of credit for
time served. See Conyers’ Brief at 18-20. In support, he references certain
exhibits he attached to his brief from the Pennsylvania Department of
Corrections. As these documents do not appear in the certified record, we
cannot consider them. See generally, Commonwealth v. Kennedy, 151
A.3d 1117 (Pa. Super. 2016). Moreover, our review of the record confirms
the trial court’s statement that “[t]he sentencing orders generated at [the]
hearing accurately and clearly reflect what the trial court stated at the
hearing.” Trial Court Opinion, 11/14/18, at 1.7
More specifically, when imposing a new sentence at each docket, the
trial court stated that Conyers was “entitled to credit for time served as
allowed by law.” To the extent Conyers disagrees with the Department of
Corrections’ calculation of credit for time served, the trial court has no
authority to grant relief. Rather, the only procedural avenue by which a
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6 Given his failure to object to appearing by video conference, we find no merit
to his claim regarding the presence of counsel.
7In a final footnote, Conyers’ raises a merger issue, claiming that all of the
underlying dockets arose from the “same event.” Conyers’ Brief at 20 n.12.
We will not consider this undeveloped argument. Hardy, supra.
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criminal defendant can pursue a claim alleging that the Department of
Corrections miscalculated his credit for time served is by filing a separate
lawsuit in Commonwealth Court. See generally, Commonwealth v. Wyatt,
115 A.3d 876 (Pa. Super. 2015).
Having found no merit to any sentencing issue raised by Conyers, we
affirm his judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/15/2019
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