Com. v. Kennedy, T.
1918 WDA 2015
| Pa. Super. Ct. | Dec 7, 2016Background
- Tracy Kennedy was convicted by a jury of sexual offenses against a minor (including indecent assault, statutory sexual assault, and involuntary deviate sexual intercourse).
- On October 21, 2015, the trial court sentenced Kennedy to an aggregate term of 8 to 16 years’ imprisonment (standard-range under the guidelines).
- Kennedy did not file any post-sentence motions but timely filed a notice of appeal and a Pa.R.A.P. 1925(b) concise statement.
- Her sole appellate claim challenged the discretionary aspects of the sentence as excessive and that she needed therapeutic mental-health treatment rather than incarceration.
- The sentencing court had the benefit of a presentence investigation report; Kennedy presented only her own testimony at sentencing about taking medications and provided no medical evidence of a mental-health diagnosis.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the sentence (8–16 years) is an unreasonable abuse of discretion | Kennedy: sentence excessive; harsher than prosecutor’s plea offer; she needs therapeutic treatment for mental-health issues | Commonwealth: sentence within guidelines, court had PSI, Kennedy failed to preserve the discretionary-sentencing challenge and failed to provide evidence of mental-health needs | Court: claim waived for failure to preserve at sentencing and failure to include Pa.R.A.P. 2119(f); on merits, standard-range sentence with PSI is not an abuse of discretion |
Key Cases Cited
- Commonwealth v. Sierra, 752 A.2d 910 (Pa. Super. 2000) (discretionary-sentencing challenges are not reviewable as of right)
- Commonwealth v. Evans, 901 A.2d 528 (Pa. Super. 2006) (four-part test to invoke appellate review of discretionary sentencing)
- Commonwealth v. Mann, 820 A.2d 788 (Pa. Super. 2003) (discretionary-sentencing objections waived if not raised at sentencing or in a post-sentence motion)
- Commonwealth v. Griffin, 65 A.3d 932 (Pa. Super. 2013) (preservation rule for discretionary-sentencing claims)
- Commonwealth v. Anderson, 830 A.2d 1013 (Pa. Super. 2003) (failure to include Pa.R.A.P. 2119(f) statement waives discretionary-sentencing claim if Commonwealth objects)
- Commonwealth v. Moury, 992 A.2d 162 (Pa. Super. 2010) (standard-range sentence with PSI is presumed not excessive)
- Commonwealth v. Devers, 546 A.2d 12 (Pa. 1988) (sentencing court expected to consider defendant’s character and mitigating factors when PSI is available)
- Commonwealth v. Walls, 926 A.2d 957 (Pa. 2007) (appellate reversal of standard-range sentence for unreasonableness should be infrequent; review guided by 42 Pa.C.S. § 9781(d) factors)
- Commonwealth v. Macias, 968 A.2d 773 (Pa. Super. 2009) (reinforcing high deference to standard-range sentences)
- Commonwealth v. Corley, 31 A.3d 293 (Pa. Super. 2011) (discussion of standards for reviewing discretionary sentencing issues)