Man’s minimum 25-year sentence for drug dealing upheld

Herring claimed judge’s ruling was ‘excessive’ despite prior convictions

An Altoona man described as a mid-level drug dealer has lost his bid to overturn his conviction and 25- to 117-year prison sentence, according to a Superior Court opinion issued late last week.

Darwin Maurice Herring Sr., 41, incarcerated in the State Correctional Institution at Rockview in Centre County, argued in his appeal that he did not receive a fair trial because jury selection proceeded in his absence.

He also challenged the sentence imposed by Blair County Judge Jackie A. Bernard as being "manifestly excessive" and "unduly harsh."

He contended in his appeal, filed by Pittsburgh attorney Stephanie Michelle Noel, that his lengthy sentence was the result of "judicial vindictiveness" and an attempt by the prosecution to impose a "trial tax" on him for rejecting a plea agreement and deciding to exercise his right to a jury trial.

A Superior Court panel consisting of Judges John T. Bender, Anne E. Lazarus and Deborah A. Kunselman on Friday rejected the defense arguments, pointing out that Herring, who failed to appear for jury selection, was prejudiced.

The opinion, written by Bender, stated Herring "has not demonstrated that his absence from jury selection undermined the fairness of that proceeding or the fairness of his trial overall."

The opinion continued Herring does not claim, in any specific manner, that the jury chosen was incompetent, unfair, biased or prejudiced against him and "he does not point to any portion of the record that would support such a claim."

In reviewing Bernard's lengthy sentence, the Superior Court panel pointed to Herring's prior history of drug trafficking offenses.

From age 16 through his 30s, Herring had been involved with drug trafficking, Bernard pointed out.

His record included 17 prior convictions and 10 prior confinements. He had five prior paroles and one revoked parole.

His most recent arrest involved five sales of methamphetamine to a police confidential informant.

"We believe (the defendant) has been offered numerous opportunities to revise his behavior," Bernard stated.

She said that Herring was a poor candidate for rehabilitation, and she concluded, "the court would note there is an overwhelming need, we believe, based upon this behavior to protect society."

The Superior Court, in rejecting Herring's arguments that his sentence was overly harsh, stated, "We conclude the court convincingly addressed and rejected (Herring's) sentencing challenges."

Herring failed to show the judge acted with "prejudice, bias or ill will" when sentencing him, according to the appeals court.

Herring, according to the testimony at trial, was part of a drug distribution operation that was dealing in methamphetamine.

He would arrange sales by phone.

He was convicted not only of distributing the drug but also criminal conspiracy and unlawful use of a communication facility.

At a Sept. 27, 2021, pretrial conference, he appeared in court with his attorney James DePasquale. During the conference, he was informed jury selection was to be held on Oct. 4, 2021 and trial would start on Oct. 25.

Herring did not appear for jury selection, and the judge, after meeting with the attorneys, decided to proceed. She also issued an order to search for and apprehend Herring.

He was found in a Monroeville hotel where he admitted using drugs.

His excuse for not attending jury selection was that he had tested positive for COVID-19, but as the Superior Court pointed out, he never produced evidence of having the disease.

And he produced no evidence of having contacted his attorney that day to inform him he wasn't feeling well.

Bernard found Herring had "taken unilateral action to absent himself from the court proceedings."

He argued that he was entitled to a new trial because his constitutional right to be present at every stage of his case had been breached.

The appeals court however found his absence did not taint his right to a fair trial.

"Thus, we cannot discern any non-speculative reason that conducting the jury selection in his absence could have contributed to the verdict," according to the court.

When arguing his sentence was unduly harsh, Herring pointed out the judge failed to consider his "tough upbringing" in which he was "surrounded" by drug and gang activity.

Three of his brothers and a son were victims of homicide, he emphasized.

He said the judge did not consider that he was a "loving and supporting father" and that he made an effort to earn an honest living by opening a barber shop and operating a food and ice cream truck.

He complained the judge "cruelly portrayed him as nothing more than a serial recidivist with no rehabilitative potential."

The Superior Court supported Bernard's analysis of Herring's background and it stated, "we conclude that no relief is due."

In a footnote, the Superior Court opinion reported that upon the announcement of the verdicts, and after the jury had been excused, Herring grabbed a stainless steel container from the counsel table and hurled it in the direction of the prosecution.

Instead, it struck and broke a large screen TV in the courtroom.

Bernard witnessed this episode and commented in her opinion that it was "almost an all-out fiasco in the courtroom."

Herring's anger at the verdict, she said, demonstrated "almost brawl-like behavior."