Com. v. Nakutis, D.
Com. v. Nakutis, D. No. 463 WDA 2016
Pa. Super. Ct.Mar 7, 2017Background
- Appellee charged April 28, 2014 with burglary, simple assault, harassment, criminal mischief, and conspiracy counts; guilty-plea later to criminal trespass, conspiracy to commit aggravated assault, conspiracy to commit criminal mischief, and criminal mischief.
- Incident occurred around 2:30 a.m. at the Popielarcheck home when Appellee, her daughter, and an accomplice entered the residence and attacked the occupants; a fight ensued involving Alexis and others; police later recovered items including a phone depicting Appellee and an accomplice.
- Appellee pled guilty May 1, 2015; pre-sentence report prepared; guidelines listed: restorative sanctions for trespass, confinement ranges for conspiracies, and restorative sanctions for mischief offenses; waivers for RRRI and related programs were agreed by Commonwealth.
- Mitigation presented by neighbors and community members; Appellee described as charitable, church-attending, and helpful; she explained actions as a reaction to Alexis’ prior attack on her daughter.
- Sentencing occurred October 28, 2015; court noted Appellee witnessed her daughter assaulted while dining out and that the prior altercation spurred the incident; the court credited mitigation evidence and found Appellee eligible for County Intermediate Punishment (CIP) after DA waiver.
- Judgment imposed: twenty days in county jail followed by 710 days of supervised CIP (total two-year term), plus restorative sanctions; appellant timely post-sentence motions filed and denied; Commonwealth appealed challenging CIP eligibility and deviation from guidelines.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was CIP properly imposed and actually imposed? | Commonwealth: CIP eligibility was waived and the sentence included CIP components; argues CIP not properly imposed. | Nakutis: Waiver valid and sentence included CIP with combined restraints and restorative sanctions; CIP effectively imposed. | CIP properly imposed and operational. |
| Did the court's deviation from guidelines remain reasonable and properly justified? | Commonwealth: Deviation below mitigated range was not properly justified by lawful factors and was unreasonable. | Nakutis: Court weighed §9721 factors and other permissible factors; presence of mitigation and remorse supported below-mitigated sentence; not irrational. | Sentence affirmatively reviewed as reasonable; no abuse of discretion; affirmed. |
Key Cases Cited
- Commonwealth v. Walls, 926 A.2d 957 (Pa. 2007) (deference in reviewing departure sentences; reasons must be stated)
- Commonwealth v. McLaine, 150 A.3d 70 (Pa. Super. 2016) (discretionary review requires four-part test for challenges to sentencing)
- Commonwealth v. Garcia-Rivera, 983 A.2d 777 (Pa. Super. 2009) (reasons for deviation must be on the record)
- Commonwealth v. Devers, 546 A.2d 12 (Pa. 1988) (presence of presentence report implies weighing §9721 factors)
- Commonwealth v. Smith, 673 A.2d 893 (Pa. 1996) (cannot base below-mitigated sentence solely on lack of criminal history when reflected in guidelines)
- Commonwealth v. Darden, 531 A.2d 1144 (Pa. Super. 1987) (cannot rely solely on criterion incorporated into guidelines for departure)