Com. v. Rodriguez, J.
3508 EDA 2016
| Pa. Super. Ct. | Oct 19, 2017Background
- Jose Rodriguez pled guilty to marijuana PWID and conspiracy (docket 9966-2011) and received 4 years probation in Nov 2011.
- He later pled guilty to heroin PWID and conspiracy (docket 14026-2012) and received intermediate punishment plus probation in Jan 2013, which triggered a probation violation at the earlier docket and a resentencing to 5 years probation in Sept 2014.
- Rodriguez was convicted of attempted murder (for conduct in May 2015) and sentenced to 12–25 years plus 5 years probation in May 2016.
- At a July 21, 2016 VOP hearing the court found Rodriguez violated probation on both prior dockets, revoked probation, and imposed consecutive 5–10 year terms on each docket, ordered consecutive to the attempted-murder term.
- Rodriguez filed a timely motion to vacate/reconsider and, after appointment of new counsel, was resentenced on Oct 13, 2016 to the same consecutive terms; he appealed the sentence from docket 9966-2011.
Issues
| Issue | Rodriguez's Argument | Commonwealth's Argument | Held |
|---|---|---|---|
| Whether the aggregate consecutive sentence (10–20 years) was manifestly excessive | Sentence is excessive and more than needed for protection or rehabilitation | Objected that Rodriguez failed to satisfy Pa.R.A.P. 2119(f); claim waived | Waived: 2119(f) boilerplate inadequate and Commonwealth objected |
| Whether the court erred by failing to order a presentence investigation (PSI) under Pa.R.Crim.P. 702 | Trial court failed to consider PSI; abused discretion | Claim not raised in motion to modify sentence; waived | Waived: issue not preserved in post-sentence motion |
Key Cases Cited
- Commonwealth v. Cartrette, 83 A.3d 1030 (Pa. Super. 2013) (scope of review after probation revocation includes discretionary-sentencing claims)
- Commonwealth v. Tuladziecki, 522 A.2d 17 (Pa. 1987) (court must determine substantial question before reaching merits of discretionary-sentencing appeals)
- Commonwealth v. Mouzon, 812 A.2d 617 (Pa. 2002) (Rule 2119(f) must adequately articulate how sentence violates sentencing scheme or fundamental norms)
- Commonwealth v. Zirkle, 107 A.3d 127 (Pa. Super. 2014) (minimum content required in Rule 2119(f) statements)
- Commonwealth v. Johnson, 873 A.2d 704 (Pa. Super. 2005) (Rule 2119(f) must specify what provision or norm is violated)
- Commonwealth v. Cook, 941 A.2d 7 (Pa. Super. 2007) (four-part test to reach merits of discretionary-sentencing issues)