Com. v. Rodriguez, J.
3650 EDA 2016
| Pa. Super. Ct. | Oct 19, 2017Background
- Jose Rodriguez pled guilty to PWID and conspiracy at two separate dockets (May 31, 2011 and June 5, 2012) and received probationary/intermediate-punishment sentences.
- A later conviction for attempted murder (arising from a May 31, 2015 arrest) led to revocation of probation at both prior dockets.
- At the July 21, 2016 VOP hearing the court revoked probation and imposed consecutive 5–10 year terms on each docket, consecutive to the attempted-murder sentence.
- Rodriguez filed a post-VOP motion asserting counsel conflict and that the sentences were manifestly excessive; the court vacated the sentences, appointed new counsel, and resentenced to the same terms on October 13, 2016.
- Rodriguez timely appealed the sentence from docket 14026-2012, raising a discretionary-sentencing claim that the court failed to follow 42 Pa.C.S. § 9721(b).
- The Superior Court held Rodriguez waived his discretionary-sentencing challenge by failing to comply with Pa.R.A.P. 2119(f) and because the Commonwealth objected; the court affirmed the judgment of sentence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether trial court abused discretion by imposing consecutive 5–10 year terms after VOP and failing to consider § 9721(b) factors | Rodriguez: sentence not in accordance with § 9721(b); court did not consider offense-specific circumstances and defendant's character | Commonwealth: discretionary-sentencing claim not properly preserved/complied with Rule 2119(f); objection to waiver | Held: Claim waived for failure to satisfy Pa.R.A.P. 2119(f) and Commonwealth's objection; sentencing claim not reviewed on merits |
Key Cases Cited
- Commonwealth v. Tuladziecki, 522 A.2d 17 (Pa. 1987) (court must determine substantial-question threshold without reaching merits)
- Commonwealth v. Cartrette, 83 A.3d 1030 (Pa. Super. 2013) (discretionary-sentencing claims reviewable after probation revocation; preservation rules apply)
- Commonwealth v. Cook, 941 A.2d 7 (Pa. Super. 2007) (four-part test for reaching discretionary-sentencing issues)
- Commonwealth v. Johnson, 873 A.2d 704 (Pa. Super. 2005) (Rule 2119(f) requires specification of the norm violated and how)
- Commonwealth v. Zirkle, 107 A.3d 127 (Pa. Super. 2014) (minimum content required in Rule 2119(f) statement)