Com. v. Rominger, K.
Com. v. Rominger, K. No. 1710 MDA 2016
| Pa. Super. Ct. | May 11, 2017Background
- Karl Ernst Rominger pled guilty to one count of theft by deception (felony 1) and 18 counts of misapplication of entrusted property (misdemeanor 2); remaining counts were dismissed.
- At plea, restitution referenced was approximately $767,337.05; the sentencing order listed $788,418.95 (to be settled on remand).
- At sentencing the court attempted to structure sentences to allow continued local supervision for restitution collection by imposing probation on Count 10 (the 18 misdemeanors) and aggregating incarceration on Count 7 (the single felony).
- The court announced eighteen separate 3–12 month confinement terms for the misdemeanors and stated an aggregate sentence of 66 months to 18 years on Count 7, explaining this as 12 months + (18 × 3 months) = 66 months; the written record and oral pronouncement contained inconsistencies.
- The court ordered the 18 probationary 12-month terms to run consecutively to each other (totaling 18 years of supervision) but concurrently with the state confinement term; this produced a sentencing structure where probation and state incarceration would run simultaneously.
- The Superior Court found the sentencing calculation unclear and concluded the trial court lacked authority to impose probation to be served concurrently with a state prison term, making the sentence illegal; the matter was vacated and remanded for resentencing.
Issues
| Issue | Rominger's Argument | Commonwealth/Trial Court Argument | Held |
|---|---|---|---|
| Legality of sentence aggregation and supervision scheme | Trial court improperly aggregated multiple intended incarcerative terms onto Count 7 and imposed probation to retain local supervision for restitution — illegal | Court structured sentences to permit local supervision and avoid state supervision under 42 Pa.C.S. § 9762; aggregation reflected guideline application | Sentence illegal: court lacked authority to impose probation concurrently with state incarceration and its aggregation/ computation was unclear; vacated and remanded |
| Whether flat 12‑month jail term was lawful | (Implicit) Any flat jail term outside statutory authority is invalid | Court treated a 12‑month term as part of aggregate | Flat/unclear 12‑month term problematic; flat sentences generally illegal — no authority for a straight 12‑month state term here |
| Concurrent service of county probation with state incarceration | Probation should allow continued local supervision for restitution; concurrent service acceptable | Court intended concurrent service to permit restitution collection | Held that Pennsylvania law does not permit serving probation and a state prison term simultaneously; such a structure is unauthorized |
| Sentencing computation and guideline application | Sentence was manifestly excessive and guideline calculations were mishandled (e.g., 5.5–18 yrs shown on docket) | Court asserted guidelines applied by aggregating minima across counts to reach aggregate term | Court found computation error/unclear explanation; declined to reach discretionary-review issues and remanded for resentencing |
Key Cases Cited
- Commonwealth v. Clarke, 70 A.3d 1281 (Pa. Super. 2013) (legality of sentence is a question of law reviewable de novo)
- Commonwealth v. Mitchell, 986 A.2d 1241 (Pa. Super. 2009) (flat sentences are generally illegal)
- Commonwealth v. Allshouse, 33 A.3d 31 (Pa. Super. 2011) (Pennsylvania statutes do not permit serving probation and state incarceration simultaneously)
- Commonwealth v. Pierce, 441 A.2d 1218 (Pa. 1982) (sentencing court may impose alternatives consecutively or concurrently under predecessor statute)
- Commonwealth v. Prout, 814 A.2d 693 (Pa. Super. 2002) (binding effect of prior panel decisions)