Com. v. Payne, E.
2427 EDA 2015
| Pa. Super. Ct. | Feb 8, 2017Background
- Eric Payne pleaded nolo contendere to arson in 2008 and was sentenced to time served up to 23 months, followed by 4 years’ probation.
- Before probation expired, Payne committed new crimes (burglary, aggravated assault, etc.) and was convicted after a jury trial; he received 2–4 years’ imprisonment plus 4 years’ probation for those convictions.
- The new convictions triggered a probation revocation for the original arson charge; the revocation court found a direct violation and resentenced Payne to 2–4 years’ imprisonment for the arson violation.
- The revocation sentence was ordered consecutively to the sentence for the new convictions, producing an aggregate term of 4–8 years’ imprisonment.
- Payne filed a post-sentence motion objecting only to the harshness of consecutive sentencing but withdrew that motion at a hearing after the court indicated it would reconsider and potentially increase the sentence.
- Payne appealed the discretionary aspects of his sentence; the Superior Court found waiver and, alternatively, no abuse of discretion in the consecutive sentencing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether discretionary aspects of sentence (consecutive term on probation revocation) were improper | Payne: consecutive 2–4 year revocation sentence is excessive because of its consecutive nature | Commonwealth/Trial court: court had discretion to impose consecutive sentence given separate offenses and victims; no abuse | Waived because Payne withdrew post-sentence motion; even on merits, no abuse — consecutive sentence permissible and not excessive |
Key Cases Cited
- Commonwealth v. Shugars, 895 A.2d 1270 (Pa. Super. 2006) (discretionary-sentencing claims must be raised in post-sentence motion or at sentencing)
- Commonwealth v. Tann, 79 A.3d 1130 (Pa. Super. 2014) (scope of review after probation revocation limited to validity of proceedings and sentencing alternatives available at original sentence)
- Commonwealth v. Cartrette, 83 A.3d 1030 (Pa. Super. 2013) (discretionary sentencing review included in revocation appeals)
- Commonwealth v. Caldwell, 117 A.3d 763 (Pa. Super. 2015) (excessive sentence plus failure to consider mitigating factors raises substantial question)
- Commonwealth v. Swope, 123 A.3d 333 (Pa. Super. 2015) (discussing substantial-question standard for consecutive sentences)
- Commonwealth v. Raven, 97 A.3d 1244 (Pa. Super. 2014) (same)
- Commonwealth v. Moury, 992 A.2d 162 (Pa. Super. 2010) (court not required to impose minimum confinement; consecutive v. concurrent is discretionary)
- Commonwealth v. Hoag, 665 A.2d 1212 (Pa. Super. 1995) (no entitlement to a "volume discount" via concurrent sentences)
- Commonwealth v. Christine, 78 A.3d 1 (Pa. Super. 2013) (Rule 2119(f) statement required to present substantial question on appeal)
- Commonwealth v. Jones, 629 A.2d 133 (Pa. Super. 1993) (appellate court will not look beyond the Rule 2119(f) statement to find a substantial question)