Com. v. Bernard, J.
2487 EDA 2016
| Pa. Super. Ct. | Sep 11, 2017Background
- On June 9, 2015, while on authorized leave from Lehigh County Community Corrections, Bernard failed to return; he later drove a Chrysler minivan dangerously through traffic and a WalMart parking lot, triggering a police pursuit.
- The pursuit continued into Allentown; officers located Bernard exiting an apartment and found him hiding under a bed. He clenched his fists, refused commands, struggled with officers, and attempted to grab an officer’s service weapon before being subdued.
- Bernard pled guilty on June 30, 2016 to escape (18 Pa.C.S. § 5121), fleeing/attempting to elude police (75 Pa.C.S. § 3733), and resisting arrest (18 Pa.C.S. § 5104) pursuant to a negotiated plea calling for standard-range consecutive sentences for two offenses and a concurrent standard-range sentence for the third.
- The court imposed 1–2 years for escape, 1–2 years consecutive for fleeing/eluding, and 6 months–2 years concurrent for resisting arrest, for an aggregate of 2–4 years’ state incarceration.
- Bernard filed a post-sentence motion seeking (inter alia) a county-served or treatment-oriented placement and arguing the court failed to consider his remorse and remote, nonviolent prior record; the motion was denied and this appeal followed.
Issues
| Issue | Plaintiff's Argument (Bernard) | Defendant's Argument (Commonwealth/Trial Court) | Held |
|---|---|---|---|
| Whether the court abused discretion by imposing a state (rather than county-served) sentence and imposing a harsh/excessive sentence | Bernard argued his negotiated expectation or promise (or at least reasonable expectation) included county-served placement or treatment and that state prison was unduly harsh given his addiction and remorse | The plea was negotiated and the terms (standard-range consecutive/concurrent sentences) were placed on the record; no promise of county placement existed and the court was bound to the bargained terms | Denied. A negotiated plea that specifies sentencing terms precludes challenging discretionary aspects of that sentence; no county-placement promise was shown |
| Whether the court failed to state reasons for sentence length and nature | Bernard claimed the court did not adequately explain reasons and failed to account for addiction and remorse | The court explained guideline ranges on the record before acceptance; Bernard agreed to those terms and conceded sentence fell within the guideline range | Denied. Sentence within negotiated guideline range, so discretionary-review bar applies |
| Whether prior record score was improperly calculated and overrepresented criminality | Bernard contended his prior convictions were remote, related to addiction, and produced an inflated prior record score impacting guideline ranges | Commonwealth set out offense grades, OGS, guideline ranges, and prior record score on the record; Bernard raised no contemporaneous objection and did not preserve the issue in post-sentence motion or Rule 1925(b) statement | Waived. Failure to object or preserve issue below precluded appellate review |
| Whether consecutive sentences were improper | Bernard implicitly challenged consecutive sentencing as harsh | The consecutive standard-range sentencing was part of the negotiated plea and accepted on the record | Denied. Consecutive terms were bargained-for and binding on appeal |
Key Cases Cited
- Commonwealth v. Tirado, 870 A.2d 362 (Pa. Super. 2005) (plea negotiation ordinarily precludes challenge to negotiated sentence)
- Commonwealth v. Dalberto, 648 A.2d 16 (Pa. Super. 1994) (allowing post-plea sentence challenges would undermine negotiated plea process)
- Commonwealth v. Zirkle, 107 A.3d 127 (Pa. Super. 2014) (discretionary-aspects sentencing review treated as a petition for permission to appeal)
- Commonwealth v. Powell, 956 A.2d 406 (Pa. 2008) (issue not raised in lower court is waived on appeal)
- Commonwealth v. Melvin, 103 A.3d 1 (Pa. Super. 2014) (failure to raise issue in Rule 1925(b) statement results in waiver)