Com. v. Lopez, S.
2771 EDA 2016
Pa. Super. Ct.Sep 12, 2017Background
- Salvador Lemus Lopez pled guilty (open pleas) to 25 counts of possession with intent to deliver cocaine, one count of criminal conspiracy, and one count of corrupt organizations.
- Initially sentenced to 27 years, 8 months to 55 years, 4 months with a RRRI minimum ~23 years; granted reconsideration and resentenced to 19 to 38 years with RRRI minimum 15.83 years.
- Court credited approximately 27 months of time served.
- Lopez challenged the discretionary aspects of his sentence as a de facto life term given his age (67) and lack of prior record, and separately challenged $225,000 in fines as imposed without adequate on-the-record findings about his ability to pay.
- The trial court relied on a presentence report, considered 42 Pa.C.S. § 9721(b) factors, noted Lopez led his own drug enterprise and that seized funds ($40,000 cash, $88,000 bank funds) supported ability to pay fines.
- Superior Court affirmed, finding no abuse of discretion on sentencing or fines issues.
Issues
| Issue | Lopez's Argument | Commonwealth's Argument | Held |
|---|---|---|---|
| Whether aggregate 19–38 year sentence (consecutive application) was an abuse of discretion / "de facto life" given Lopez's age and lack of prior record | Sentence is disproportional; consecutive application produced a de facto life sentence, failing to give adequate weight to age and rehabilitative needs | Sentencing was within court's discretion; trial court considered PSR and §9721(b) factors and individualized the sentence | Affirmed — no abuse of discretion; trial court considered factors, had PSR, and need not impose minimum possible term |
| Whether $225,000 in fines were imposed without required on-the-record finding of Lopez's ability to pay under 42 Pa.C.S. §9726(c) | Court failed to make findings on Lopez's financial resources or burden; record lacks evidence of ability to pay aside from seized funds | Trial court had evidence of record: seized $40,000 cash and $88,000 in bank accounts and other indicia of access to funds; fine permissible where defendant derived pecuniary gain | Affirmed — trial court considered financial resources; sufficient evidence of ability to pay existed on the record |
Key Cases Cited
- Commonwealth v. Brown, 982 A.2d 1017 (Pa. Super. 2009) (explains right to appeal discretionary aspects of sentence after open guilty plea)
- Commonwealth v. Moury, 992 A.2d 162 (Pa. Super. 2010) (describes when consecutive sentences ordinarily do not raise a substantial question)
- Commonwealth v. Devers, 546 A.2d 12 (Pa. 1988) (presumption that sentencing judge considered PSR and relevant information)
- Commonwealth v. Bricker, 41 A.3d 872 (Pa. Super. 2012) (appellate review framework for sentences within/outside guidelines)
- Commonwealth v. Boyd, 73 A.3d 1269 (Pa. Super. 2013) (ability-to-pay fine claims: distinguishes categories and when claim is waivable)
- Commonwealth v. Thomas, 879 A.2d 246 (Pa. Super. 2005) (imposition of fine not precluded because defendant cannot immediately pay)