Com. v. Bard, J.
Com. v. Bard, J. No. 1460 MDA 2016
| Pa. Super. Ct. | Mar 21, 2017Background
- Defendant Jay Tyler Bard pled guilty to forgery (2012), retail theft (2013), and simple possession (2014) and received probation/alternative sentences in each case.
- Bard repeatedly violated probation/ISP on multiple occasions and accrued new criminal charges; the court found sufficient cause to revoke.
- At resentencing on August 10, 2016, the court imposed confinement: 9–60 months (forgery), 6–36 months (retail theft), and 3–12 months (possession) to be served in state correctional institutions.
- Bard filed a post-sentence motion seeking service of confinement in the county jail (to preserve work release/employment and proximity to family); the trial court denied the motion and Bard timely appealed.
- Appellate counsel filed an Anders brief and petition to withdraw; the Superior Court reviewed the record independently and concluded no non-frivolous issues warranted relief.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trial court abused its discretion by sending Bard to state prison after probation revocation (forgery) | Commonwealth: sentence within court's discretion after revocation; recommended by Probation Department | Bard: requested county jail to maintain work release, family support, and due to pending charges/payment issues | Held: Affirmed — court properly considered facts/character and law; incarceration at SCI lawful |
| Whether the trial court abused its discretion by sending Bard to state prison after probation revocation (retail theft) | Commonwealth: sentence permissible and recommended; aggregate sentence appropriate | Bard: requested local confinement for work/family reasons | Held: Affirmed — sentencing within discretion and legal following revocation |
| Whether the trial court abused its discretion by sending Bard to state prison after probation revocation (possession) | Commonwealth: sentence lawful after probation violations and prior interventions | Bard: sought county jail placement to facilitate employment and family contact | Held: Affirmed — court considered record and alternatives; no abuse of discretion |
Key Cases Cited
- Anders v. California, 386 U.S. 738 (U.S. 1967) (standards for counsel seeking to withdraw on appeal)
- Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009) (requirements for Anders brief under Pennsylvania law)
- Commonwealth v. Orellana, 86 A.3d 877 (Pa. Super. 2014) (procedural requirements before counsel withdraws on appeal)
- Commonwealth v. Wimbush, 951 A.2d 379 (Pa. Super. 2008) (appellate court’s duty to independently review Anders claims)
- Commonwealth v. Cook, 941 A.2d 7 (Pa. Super. 2007) (four-part test for discretionary sentencing claims)
- Commonwealth v. Clarke, 70 A.3d 1281 (Pa. Super. 2013) (what presents a substantial question on sentencing)
- Commonwealth v. Coolbaugh, 770 A.2d 788 (Pa. Super. 2001) (grounds permitting confinement after probation revocation)
- Commonwealth v. Crump, 995 A.2d 1280 (Pa. Super. 2010) (requirement that record reflect consideration of crime and offender on revocation sentencing)
- Commonwealth v. Paul, 925 A.2d 825 (Pa. Super. 2009) (case-by-case evaluation of substantial question)
- Commonwealth v. Hartle, 894 A.2d 800 (Pa. Super. 2006) (county-jail vs. state-prison placement can present a substantial question when tied to sentencing guidelines)
- Commonwealth v. Kalichak, 943 A.2d 285 (Pa. Super. 2008) (preservation requirement for discretionary sentencing challenges)