Com. v. Foster, K.
Com. v. Foster, K. No. 1811 WDA 2015
| Pa. Super. Ct. | Mar 31, 2017Background
- Kevin Foster pleaded guilty in 2012 to "obscene and other sexual materials and performances" (18 Pa.C.S.A. § 5903(a)(1)) as part of a negotiated plea; other more serious charges were withdrawn or reduced and the Commonwealth recommended 2–6 months jail plus 5 years probation.
- While on probation, Foster repeatedly violated conditions (missed reporting, missed sex-offender treatment, alcohol observed in his apartment) and later pled guilty to new offenses including possession of child pornography and multiple burglaries, resulting in additional convictions and sentences.
- At a probation revocation hearing on October 19, 2015, the trial court revoked Foster’s probation on the underlying 2012 conviction and resentenced him to 24–48 months’ imprisonment, consecutive to a 21–42 month sentence he was serving for the child pornography conviction (aggregate 45–90 months), followed by probation.
- Foster filed a timely motion to modify sentence claiming the court failed to consider mitigating factors required by 42 Pa.C.S. § 9721(b): his youth, mental-health history and recent medication stabilization, eligibility for boot camp, a forensic/justice-related services plan, family support, and acceptance of responsibility.
- The trial court denied the motion; Foster appealed raising two discretionary-sentencing challenges: (1) that the sentence was manifestly excessive because the court failed to consider § 9721(b) factors, and (2) that imposing consecutive sentences was an abuse of discretion.
Issues
| Issue | Foster's Argument | Commonwealth/Trial Court Argument | Held |
|---|---|---|---|
| Whether the revocation sentence (24–48 months) was manifestly excessive because the court failed to consider Foster’s personal history, character, and rehabilitative needs under § 9721(b) | Foster: Court ignored his youth (25), mental-illness history and stabilization on medication, forensic/JRS plan, family support, and boot-camp eligibility | Trial court/Commonwealth: Foster raised those mitigating facts at sentencing; court was aware and weighed them when imposing sentence | Court: No abuse of discretion — facts were presented at sentencing so court must be presumed to have considered them; claim fails |
| Whether imposing the sentence consecutively (aggregate 45–90 months) was an abuse of discretion | Foster: Consecutive sentences produce an excessive aggregate term and ignored mitigating factors, including boot-camp eligibility | Trial court/Commonwealth: Sentencing court has discretion to order consecutive sentences; aggregate term is not excessive given conduct | Court: No substantial question to review on consecutivity; aggregate sentence not manifestly excessive; claim denied |
Key Cases Cited
- Gagnon v. Scarpelli, 411 U.S. 778 (1973) (probation revocation due-process framework)
- Commonwealth v. Cartrette, 83 A.3d 1030 (Pa. Super. 2013) (scope of review includes discretionary aspects of sentencing after revocation)
- Commonwealth v. Tuladziecki, 522 A.2d 17 (Pa. 1987) (substantial-question requirement must be determined before merits)
- Commonwealth v. Corley, 31 A.3d 293 (Pa. Super. 2011) (presumption that sentencing court considered facts presented at sentencing)
- Commonwealth v. Zirkle, 107 A.3d 127 (Pa. Super. 2014) (discretion to impose consecutive sentences; aggregate sentence review for facial excessiveness)
- Commonwealth v. Riggs, 63 A.3d 780 (Pa. Super. 2013) (failure to consider protection of public, gravity of offense, and rehabilitative needs raises a substantial question)
- Commonwealth v. Dodge, 77 A.3d 1263 (Pa. Super. 2013) (claims the court disregarded rehabilitation and offense nature can raise a substantial question)