An incorrect verdict slip that led a jury to convict a Philadelphia drug dealer of an offense for which he was never charged could mean the defendant will get out of prison 10 years earlier than expected.
Michael Serrano, 36, was sentenced nearly a year ago by Senior Judge Thomas Peoples of Blair County to 31 to 82 years in state prison for the delivery of cocaine, possession with intent to deliver heroin, conspiracy to possess cocaine and heroin, and criminal use of a communication facility.
A three-member panel of the Superior Court has found that while Serrano may have supplied heroin to Gene "Shorty" Carter for distribution in the Altoona area, he was not the source of Carter's cocaine.
Senior Judge John L. Musmanno and Superior Court judges John T. Bender and Cheryl Lynn Allen this month vacated Serrano's long jail term on the cocaine charge and ordered that Peoples resentence Serrano.
Resentencing must take place within 90 days, according to Serrano's Blair County attorney, Thomas Farrell.
The Superior Court upheld Serrano's convictions on the heroin charge and criminal use of a communication facility and told the judge to clarify his sentence for conspiracy to possess cocaine and heroin.
The prosecution claimed that the mistake of including cocaine on the Serrano's verdict slip was "harmless," amounting to no more than a typographical error. It should have read "delivery of a controlled substance [heroin]."
The panel stated that was not the situation in the Serrano case.
Serrano, the judges found, was not charged with delivery of cocaine but the jury found him guilty of the offense.
"The law is clear ... that a court is without jurisdiction to convict a defendant of a crime for which he was not charged." stated the Superior Court opinion, written by Allen.
Farrell isn't sure what the full impact of the decision might be.
Recently the Superior Court returned a Blair County case involving a child molester for resentencing, concluding that his life sentence was illegal. In resentencing the defendant, the judge gave him a minimum sentence of 75 years. Now the defendant is appealing that sentence on the premise that 75 years amounted to a reimposition of the life sentence.
Farrell was asked if Peoples could increase the sentences on the charges that have been upheld by the Superior Court - possession with intent to deliver heroin, conspiracy with Carter and criminal use of a communication facility.
Farrell said he would have to research that question before the resentencing hearing.
Farrell said Wednesday that while a 10- to 30-year sentence has been vacated, he was disappointed that the court didn't adopt his primary criticism of Peoples' handling of the case.
He argued that Serrano and Carter should never have been tried together.
Carter, he pointed out, was the subject of a major police investigation that included cocaine and heroin buys by confidential informants, video surveillance and taps on his telephone.
Farrell said Carter faced many more charges than Serrano, and that led to jury confusion. The confusion led the jurors to convict Serrano of acts - delivery of cocaine - for which he was not charged, argued Farrell.
The Superior Court found "no abuse of discretion" in Peoples' decision not to sever the case, noting charges against both men arose from "the same course of events."
The same evidence would have been used against both men - including recorded conversations - and the same witnesses would have been called in Serrano's trial as were called in Carter's.
Carter was sentenced to 104 to 216 years in prison.
The three-judge panel said the judge is to resentence Serrano on all offenses "because our vacating the judgment of sentence for delivery of cocaine may upset the [judge's] sentencing scheme, and, for the trial court, at sentencing, to take into consideration the fact [Serrano] was not charged with and could not be convicted of criminal conspiracy [to distribute cocaine]."