Com. v. Clapper, D.
1246 WDA 2016
| Pa. Super. Ct. | Nov 30, 2017Background
- David Clapper was convicted after a bench trial of aggravated indecent assault (and had earlier stipulated to indecent assault and simple assault) for an August 8, 2009 sexual assault; he received 2–4 years’ incarceration followed by seven years’ probation.
- Clapper pursued direct appeal and PCRA proceedings over several years; his PCRA petition was ultimately denied and appellate review concluded in 2017.
- While on probation (which began March 18, 2015), Clapper committed multiple technical violations: failures to comply with sex‑offender treatment, substance use admissions, a new summary conviction, and other supervision failures. A VOP hearing was held July 20, 2016.
- The VOP court revoked probation and imposed a 2–4 year sentence of total confinement (no probation tail) and ordered sex‑offender treatment and participation in a therapeutic community while incarcerated.
- Clapper filed a motion to reconsider arguing the VOP court ignored rehabilitative needs and the mental‑health evaluation; he appealed asserting the sentence was manifestly excessive and the court failed to consider rehabilitation.
Issues
| Issue | Plaintiff's Argument (Clapper) | Defendant's Argument (Commonwealth / VOP court) | Held |
|---|---|---|---|
| Whether the 2–4 year VOP sentence was an abuse of discretion / manifestly excessive | Sentence is excessive, punishment doesn’t fit the non‑violent probation violations; court failed to consider rehabilitative needs and mental‑health report | Court considered record, treatment failures, substance use, supervision failures; total confinement appropriate to vindicate court authority and because supervision was ineffective | Affirmed — no abuse; court considered rehabilitative needs and ordered in‑custody treatment |
| Whether Appellant preserved claim that confinement was unnecessary to protect the public | Argued on appeal that confinement was not needed to protect public | Commonwealth: claim was not preserved; VOP court had discretion to impose any lawful sentence | Court found Clapper failed to preserve the public‑protection argument, so review was limited; only rehabilitation claim reviewed and rejected |
Key Cases Cited
- Commonwealth v. Cartrette, 83 A.3d 1030 (Pa. Super. 2013) (scope of review in revocation sentencing includes discretionary challenges)
- Commonwealth v. Luketic, 162 A.3d 1149 (Pa. Super. 2017) (standards for appellate review of discretionary sentencing claims)
- Commonwealth v. Haynes, 125 A.3d 800 (Pa. Super. 2015) (procedural requirements for appellate consideration of discretionary sentencing challenges)
- Commonwealth v. Zelinski, 573 A.2d 569 (Pa. Super. 1990) (procedural framing for sentencing issues on appeal)
- Commonwealth v. Walls, 926 A.2d 957 (Pa. 2007) (sentencing court must consider protection of the public, gravity of offense, and rehabilitative needs)
- Commonwealth v. Fish, 752 A.2d 921 (Pa. Super. 2000) (sentencing alternatives after probation revocation; total confinement may be appropriate)
- Commonwealth v. Sierra, 752 A.2d 910 (Pa. Super. 2000) (when probation is ineffective, harsher sentence including incarceration may be warranted)
- Commonwealth v. Smith, 669 A.2d 1008 (Pa. Super. 1996) (same principle regarding revocation and incarceration)
- Commonwealth v. Zirkle, 107 A.3d 127 (Pa. Super. 2014) (deferential review of revocation sentencing)
- Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988) (procedures for counsel withdrawal in collateral proceedings)
- Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (Turner/Finley framework for counsel seeking to withdraw)
- Commonwealth v. Tuladziecki, 522 A.2d 17 (Pa. 1987) (procedural requirement for appellate statement of reasons in sentencing challenges)