Com. v. Bivens, R.
2492 EDA 2015
| Pa. Super. Ct. | Aug 19, 2016Background
- On December 8, 2014, Ricardo Bivens led police on a 20.5-mile high-speed pursuit (speeds up to 120 mph), crossing state routes and I-80, creating risk to motorists and officers.
- Arrested in New Jersey; charged in Pennsylvania with fleeing/attempting to elude (75 Pa.C.S.A. § 3733), recklessly endangering, and traffic offenses; pleaded guilty to fleeing/attempting to elude.
- Guilty plea form (approved by the Commonwealth) listed a prior record score of 5; the probation office classified Bivens as a Repeat Felon (RFEL) in the PSI.
- At sentencing (after review of the PSI), the court imposed 30–60 months’ incarceration (mid–standard range under RFEL); defendant moved for reconsideration and appealed.
- Bivens argued the court improperly used an RFEL prior record score (raising his sentencing range) contrary to the plea form’s score of 5, rendering the sentence excessive; he did not preserve a voluntariness-of-plea claim.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the sentencing court improperly used an RFEL prior-record classification (rather than the prior score of 5 on the plea form) to increase the sentencing range | Commonwealth: sentencing classification in PSI and court’s consideration of criminal history were proper | Bivens: plea form showed prior score 5; probation later changed score to RFEL, producing higher standard range and excessive sentence | Court: No abuse of discretion — RFEL classification was supported by record, defense did not contest RFEL at sentencing, and court reasonably considered PSI and history |
| Whether the sentence was excessive | Commonwealth: sentence within standard range for RFEL and appropriate given public protection and defendant’s history | Bivens: 30–60 months exceeds the expected 18–36 months under prior score 5; sentence excessive | Court: Sentence within statutory/guide range, court considered 42 Pa.C.S. § 9721(b) factors and PSI; not excessive |
| Whether plea was involuntary because defendant relied on plea form prior score (waiver/preservation) | Commonwealth: voluntariness not preserved for appellate review | Bivens: implied claim that plea was induced by incorrect prior-score representation | Court: Claim not preserved at sentencing or in post-sentence motion; waived and not considered |
| Whether improper prior-record calculation raises a substantial question | Commonwealth: court may decide on the merits where substantial question exists | Bivens: contends miscalculation does raise a substantial question | Court: Improper calculation can raise a substantial question; here court addressed and rejected claim on merits |
Key Cases Cited
- Commonwealth v. Walls, 926 A.2d 957 (Pa. 2007) (standard of review for sentencing and factors to consider)
- Commonwealth v. Janda, 14 A.3d 147 (Pa. Super. 2011) (improper prior record calculation may raise a substantial question)
- Commonwealth v. Devers, 546 A.2d 12 (Pa. 1988) (PSI report presumption that court considered relevant information)
- Commonwealth v. Corley, 31 A.3d 293 (Pa. Super. 2011) (standard-range sentence with PSI generally not excessive)