Com. v. Hollow, G., Jr.
2107 MDA 2016
| Pa. Super. Ct. | Sep 26, 2017Background
- Gary L. Hollow, Jr. pled open guilty to five counts each of burglary, theft by unlawful taking, and criminal mischief for a January 2016 series of burglaries that damaged five homes and resulted in about $10,000 in stolen property.
- At sentencing (after review of a PSI), the court imposed an aggregate term of 10 to 23 years' imprisonment, with probation to follow; individual sentences were within the standard guideline ranges and some were ordered consecutively.
- Hollow filed a post-sentence motion to modify the sentence, which was denied; he then appealed, raising discretionary-sentencing and merger (legality) challenges.
- Hollow argued the aggregate/consecutive sentence was manifestly excessive and that the court failed to consider mitigating factors and his rehabilitation needs.
- Hollow separately argued criminal mischief should merge with burglary for sentencing because the mischief facilitated the burglaries (breaking windows to enter).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the sentence was an abuse of discretion / manifestly excessive | Hollow: consecutive, aggregate sentence was unduly harsh; court failed to adequately consider mitigation and rehabilitation | Commonwealth: court considered PSI, guidelines, victims, counsel; sentences were within guideline ranges and consecutive sentences are permitted under 42 Pa.C.S. § 9721 | No abuse of discretion; discretionary-sentencing claim denied (court reviewed PSI, explained reasons; sentences within standard ranges) |
| Whether criminal mischief merges with burglary for sentencing (legality) | Hollow: criminal mischief was a predicate offense to burglary because he broke windows to gain entry, so sentences should merge | Commonwealth: record shows thefts were treated as predicate to burglary; criminal mischief and burglary have distinct elements (damage vs. entry/intent) | No merger; convictions/sentences for both crimes may stand because each offense contains elements the other does not |
Key Cases Cited
- Commonwealth v. McAfee, 849 A.2d 270 (Pa. Super. 2004) (discusses preservation and review of discretionary-sentencing claims)
- Commonwealth v. Moury, 992 A.2d 162 (Pa. Super. 2010) (PSI and guideline-range sentences indicate the court considered relevant character and offense information)
- Commonwealth v. Baldwin, 985 A.2d 830 (Pa. 2009) (elements-based merger test under 42 Pa.C.S. § 9765)
- Commonwealth v. Orie, 88 A.3d 983 (Pa. Super. 2014) (single-act inquiry for merger: whether multiple distinct criminal acts occurred)
- Commonwealth v. Johnson, 874 A.2d 66 (Pa. Super. 2005) (holding that crimes with distinct statutory elements do not merge)
- Commonwealth v. Dickson, 918 A.2d 95 (Pa. 2007) (legality-of-sentence claims are nonwaivable and may be raised for first time on appeal)