Commonwealth v. Derry
150 A.3d 987
| Pa. Super. Ct. | 2016Background
- David Derry was serving probation on two prior cases (CP-51-CR-0001783-2013 and CP-51-CR-0012178-2013) when he committed new offenses in November 2014 (assault, burglary, PFA violation, etc.).
- He pled guilty to the new charges and was found in direct violation of probation (VOP) on October 19, 2015.
- The VOP court imposed 5–10 years’ imprisonment for PWID (case 1783) with a concurrent 10-year probation term for conspiracy, and a separate 10-year probation term on case 12178 to run consecutive to case 1783 — yielding an aggregate of imprisonment plus extended probation.
- Derry moved for reconsideration; the court denied relief and he appealed, raising discretionary-sentencing challenges (failure to consider factors, bias/ill will, and excessiveness/aggregate probation length).
- The Superior Court affirmed the judgment of sentence, found that Derry raised substantial questions for review, rejected his claims on the merits, but remanded to correct an erroneous docket entry that mischaracterized the concurrency/consecutiveness of the probation term in case 1783.
Issues
| Issue | Appellant's Argument | Commonwealth/Respondent's Argument | Held |
|---|---|---|---|
| Whether the VOP court failed to consider 42 Pa.C.S. § 9721(b) factors | Derry: court ignored protection of public, gravity of offense, and rehabilitative needs | Commonwealth: Pasture means §9721(b) does not apply to VOP sentences | Court: §9721(b) factors remain relevant to VOP review (though VOP courts also consider §9771(c)); Derry raised a substantial question but claim lacked merit on facts |
| Whether sentence reflected judicial bias/ill will | Derry: sarcastic courtroom remarks show bias and desire to punish | Commonwealth: remarks do not show partiality; no record evidence of animus | Held: comments did not demonstrate partiality or ill will; no abuse of discretion |
| Whether 10-year probation term at case 1783 was unreasonable or illegal | Derry: aggregate supervision could exceed statutory maximum and is unreasonable | Commonwealth: sentencing order and transcript show probation was concurrent; docket entry was erroneous | Held: probation was imposed concurrently (not consecutively); remand only to correct clerical docket error |
| Whether aggregate VOP sentence was manifestly excessive | Derry: facts (victim’s statements, mutual dispute, prior time served) do not warrant harsh aggregate penalty | Commonwealth: court properly considered violence while on supervision and PFA violation; protection and vindication of court authority justified sentence | Held: sentence not an abuse of discretion; harshness alone insufficient to overturn |
Key Cases Cited
- Commonwealth v. Pasture, 107 A.3d 21 (Pa. 2014) (VOP sentencing context and deference to revocation court explained)
- Commonwealth v. Cartrette, 83 A.3d 1030 (Pa. Super. 2013) (VOP court must consider certain §9721(b) factors and state reasons on the record)
- Commonwealth v. Hoch, 936 A.2d 515 (Pa. Super. 2007) (abuse of discretion standard; bias/ill-will as basis to overturn sentence)
- Commonwealth v. Riggs, 63 A.3d 780 (Pa. Super. 2012) (failure to consider §9721(b) factors can present a substantial question)
- Commonwealth v. Kelly, 33 A.3d 638 (Pa. Super. 2011) (manifest excessiveness of sentence raises a substantial question)