Com. v. Short, H.
3496 EDA 2015
| Pa. Super. Ct. | Oct 6, 2016Background
- Harvey Patrick Short pleaded nolo contendere to first‑degree robbery on May 9, 2011; sentenced to 18–36 months imprisonment plus 7 years probation.
- Short served his incarceration, was released on probation in February 2014, and later pled guilty in August 2015 to new offenses (criminal attempt, theft from a motor vehicle, criminal mischief) and received time served plus one year probation on that new case.
- Following a Gagnon II hearing on October 20, 2015, the trial court found Short violated probation on the robbery case and sentenced him to 1–4 years’ imprisonment (revocation sentence).
- Short filed a pro se post‑sentence motion and a timely pro se notice of appeal; counsel was appointed later but did not file a counseled post‑sentence motion or amend the Pa.R.A.P. 1925(b) statement.
- On appeal Short contended the trial court failed to consider statutory sentencing criteria (42 Pa.C.S. § 9771) and that his revocation sentence was illegal and excessive.
- The Superior Court affirmed: the revocation sentence was within statutory limits and Short waived his discretionary‑sentencing claim by failing to preserve it properly.
Issues
| Issue | Short's Argument | Commonwealth's Argument | Held |
|---|---|---|---|
| Legality of revocation sentence | Sentence is illegal because court didn’t adequately consider statutory criteria | Sentence did not exceed statutory maximum and was legally authorized on revocation | Held legal — within statutory limits; no error of law |
| Discretionary‑aspects (excessiveness / failure to state reasons) | Sentence was harsh/excessive and court failed to state reasons per § 9771 | Short waived the challenge by not filing a proper counseled post‑sentence motion or raising it at sentencing | Waived for failure to preserve; alternatively meritless based on record and judge’s on‑the‑record reasons |
Key Cases Cited
- Gagnon v. Scarpelli, 411 U.S. 778 (1973) (establishes Gagnon I and II hearing requirements for probation revocation)
- Commonwealth v. Sims, 770 A.2d 346 (Pa. Super. 2001) (describing Gagnon I and II inquiries)
- Commonwealth v. Crump, 995 A.2d 1280 (Pa. Super. 2010) (post‑revocation sentence may not exceed the statutory maximum after credit for time served)
- Commonwealth v. Cartrette, 83 A.3d 1030 (Pa. Super. 2013) (discretionary sentencing challenges are within scope of review after revocation)
- Commonwealth v. Moury, 992 A.2d 162 (Pa. Super. 2010) (four‑part test for invoking review of discretionary aspects of sentence)
- Commonwealth v. Pasture, 107 A.3d 21 (Pa. 2014) (reasons for sentence after revocation need not be as extensive as at initial sentencing)
- Commonwealth v. Jette, 23 A.3d 1032 (Pa. 2011) (pro se filings by represented defendants should be referred to counsel)
- Commonwealth v. Nischan, 928 A.2d 349 (Pa. Super. 2007) (pro se filings while represented by counsel are legal nullities)
- Commonwealth v. Bowers, 25 A.3d 349 (Pa. Super. 2011) (standard of review for legality of sentence)
- Commonwealth v. McNeal, 120 A.3d 313 (Pa. Super. 2015) (revocation and sentencing reviewed for abuse of discretion)