Com. v. Vasilinda, R.
316 WDA 2017
| Pa. Super. Ct. | Sep 12, 2017Background
- In 2010 Robert Vasilinda pled guilty to multiple bad-check and theft-by-deception counts and received 11½ to 23 months’ imprisonment followed by 18 years’ probation and restitution.
- While on probation, new charges alleging embezzlement of his elderly aunt’s funds led to incarceration in July 2014 and a VOP proceeding in August 2014; the VOP was continued pending resolution of the new charges.
- In May 2015 Vasilinda was sentenced on a reduced bad-check charge to 1 year less a day to 2 years less a day in prison; at a subsequent VOP hearing the court found he violated probation and resentenced him to an aggregate 101½ to 216 months (8½ to 18 years).
- Vasilinda filed a post-sentence motion (denied), appealed late (appeal quashed), then obtained PCRA relief for counsel’s failure to file a timely appeal and filed a nunc pro tunc appeal.
- On appeal Vasilinda argued the revocation sentence was excessive because the court failed to consider mitigating factors (first VOP, employment, no substance abuse, current on fines); the Superior Court affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the VOP sentence was excessive / trial court failed to consider mitigating factors | Vasilinda: sentence was manifestly excessive; court ignored mitigating facts (first VOP, employment, sobriety, current payments) | Commonwealth: sentence within proper discretion; court considered record and Vasilinda’s criminal history and propensity to reoffend | Affirmed: no substantial question raised; sentence within statutory limits and court did not abuse discretion |
Key Cases Cited
- Commonwealth v. Cartrette, 83 A.3d 1031 (Pa. Super. 2013) (scope of appellate review for revocation sentences)
- Commonwealth v. Hoover, 909 A.2d 321 (Pa. Super. 2006) (discretionary sentencing after probation revocation)
- Commonwealth v. Ferguson, 893 A.2d 735 (Pa. Super. 2006) (Sentencing Guidelines inapplicable to revocation sentences)
- Commonwealth v. Coolbaugh, 770 A.2d 788 (Pa. Super. 2001) (revocation sentence limited by original maximum)
- Commonwealth v. Crump, 995 A.2d 1280 (Pa. Super. 2010) (record must reflect consideration of facts and offender’s character)
- Commonwealth v. Moury, 992 A.2d 162 (Pa. Super. 2010) (four-part test for appellate review of discretionary sentencing)
- Commonwealth v. Griffin, 65 A.3d 932 (Pa. Super. 2013) (alleged failure to consider factors often goes to weight, not substantial question)
- Commonwealth v. Fisher, 47 A.3d 155 (Pa. Super. 2012) (bald excessiveness assertions do not present a substantial question)
- Commonwealth v. Mobley, 581 A.2d 949 (Pa. Super. 1990) (sentence within guidelines and statutory limits does not necessarily raise substantial question)