Com. v. Perry, S.
1696 EDA 2016
| Pa. Super. Ct. | Oct 11, 2017Background
- Perry pled guilty to PWID (marijuana) on May 18, 2015 and received two years’ probation.
- While on probation, his PO suspected marijuana use; Perry was sent for a urine test but attempted to substitute a sample and initially failed to return to the PO as instructed, prompting an arrest warrant.
- Perry reported on March 11, 2016 and was detained; at a March 17, 2016 revocation hearing the court revoked probation and sentenced him to 1–4 years’ imprisonment (boot camp eligible).
- Perry filed post-sentence motions and a PCRA petition to restore direct-appeal rights; new counsel appealed.
- Perry challenged only the discretionary aspects of the new sentence, arguing it was excessive for a technical violation and inconsistent with rehabilitation and court authority.
Issues
| Issue | Plaintiff's Argument (Perry) | Defendant's Argument (Commonwealth/Trial Court) | Held |
|---|---|---|---|
| Whether Perry raised a substantial question to permit appellate review of discretionary sentencing | The 1–4 year confinement for a technical marijuana-related probation violation is excessive and raises a substantial question | Sentence was within discretion to protect public and vindicate court authority | Yes; court found a substantial question presented (technical violation yielding total confinement) |
| Whether § 9771(c) requirements were satisfied before imposing total confinement | Perry: Court failed to find conduct showing likelihood of new crimes or conviction of another crime; no individualized justification | Trial court: Stated sentence was necessary to protect society and vindicate authority | No; appellate court found the trial court’s §9771(c) findings unsupported and insufficiently specific |
| Whether the trial court relied on appropriate conduct to predict future dangerousness | Perry: Court relied on prior unconvicted arrests and on conduct predating probation, which is improper | Trial court: Cited prior aggravated-assault arrests and a perceived pattern of conduct | No; reliance on nolle-prossed charges and pre-probation conduct was improper and unsupported by probation-period behavior |
| Whether the maximum term was an appropriate individualized confinement or improperly designed to secure parole supervision | Perry: Lengthy maximum (4 years) was imposed to obtain intense parole supervision, not individualized confinement | Trial court: Argued intense supervision upon release justified sentence structure | No; appellate court held using an inflated maximum to obtain parole supervision is improper (Coulverson rationale) — remanded for resentencing |
Key Cases Cited
- Commonwealth v. Sierra, 752 A.2d 910 (Pa. 2000) (substantial-question standard for discretionary sentencing appeals)
- Commonwealth v. Derry, 150 A.3d 987 (Pa. Super. 2016) (failure to consider Section 9721(b) factors presents a substantial question on probation-revocation sentences)
- Commonwealth v. Allen, 24 A.3d 1058 (Pa. Super. 2011) (abuse-of-discretion standard for review of sentencing)
- Commonwealth v. Carver, 923 A.2d 495 (Pa. Super. 2007) (inappropriate to rely on pre-probation conduct to assess likelihood of reoffending during probation)
- Commonwealth v. Coulverson, 34 A.3d 135 (Pa. Super. 2011) (court cannot impose an inflated maximum solely to obtain parole supervision as a rehabilitation tool)