Com. v. Smith, H.
753 EDA 2016
| Pa. Super. Ct. | Oct 21, 2016Background
- Herbert Lee Smith pled nolo contendere to one count of corruption of minors for repeatedly molesting his paramour’s 11‑year‑old daughter.
- Plea entered on September 16, 2015; court ordered a pre‑sentence investigation (PSI) and Sexual Offender Assessment Board (SOAB) report.
- At sentencing (February 16, 2016) court reviewed PSI, SOAB report, victim‑impact letters, and character letters; SOAB did not classify Smith a sexually violent predator.
- Court imposed an aggravated‑range sentence of 24 to 60 months’ imprisonment (standard range was 12–18 months; prior record score 3, offense gravity 6).
- Smith filed a motion to reconsider (denied), timely appealed, and argued the sentence was excessive for failing to consider mitigating factors and being purely retributive.
- Superior Court affirmed, finding the sentencing court considered the relevant materials and did not abuse its discretion.
Issues
| Issue | Appellant's Argument | Commonwealth's Argument | Held |
|---|---|---|---|
| Whether the 24–60 month aggravated sentence is manifestly unreasonable/unduly punitive | Smith: sentence is excessive, retributive, and ignored mitigating factors (no contact or new offenses in 18 months) | Sentencing court considered PSI, SOAB, victim impact, defendant’s history, firearm possession, and potential paraphilic behavior; sentence was appropriate | Affirmed — no abuse of discretion; court considered mitigating and aggravating factors |
Key Cases Cited
- Lutes v. Commonwealth, 793 A.2d 949 (Pa. Super. 2002) (challenge to sentence as manifestly excessive implicates discretionary aspects)
- Roberts v. Commonwealth, 133 A.3d 759 (Pa. Super. 2016) (discretionary sentencing issues are not appealable as of right)
- Carrillo‑Diaz v. Commonwealth, 64 A.3d 722 (Pa. Super. 2013) (four‑part test to invoke appellate review of discretionary sentencing)
- Rush v. Commonwealth, 959 A.2d 945 (Pa. Super. 2008) (appellate court cannot entertain legal theories not presented to trial court)
- Anderson v. Commonwealth, 830 A.2d 1013 (Pa. Super. 2003) (substantial‑question determination is case‑by‑case)
- Griffin v. Commonwealth, 65 A.3d 932 (Pa. Super. 2013) (what constitutes a substantial question for sentencing review)
- Cruz‑Centeno v. Commonwealth, 668 A.2d 536 (Pa. Super. 1995) (mere claim that court failed to consider factors generally does not raise substantial question)
- Felmlee v. Commonwealth, 828 A.2d 1105 (Pa. Super. 2003) (imposition of aggravated range sentence without considering mitigating circumstances can present substantial question)
- Tirado v. Commonwealth, 870 A.2d 362 (Pa. Super. 2005) (when court has PSI, law presumes it considered relevant mitigating information)