Commonwealth v. Kearns
150 A.3d 79
| Pa. Super. Ct. | 2016Background
- Kearns and McLaine were principals of Municipal Energy Managers, Inc. (MEM) and contracted with Bethlehem Township to facilitate purchase of streetlights for $1,001,230, requesting a $832,460 advance from the township.
- MEM deposited the $832,460 in its general account and defendants later wrote large checks to themselves; MEM delayed contacting PPL and never completed the transfer, leaving the township paying higher utility costs and interest.
- A jury convicted both of theft by failure to make required disposition of funds received; initial sentencing graded the offense as a 3rd-degree felony but that grading was vacated on Apprendi grounds and the offense was regraded as a 3rd-degree misdemeanor.
- The trial court originally sentenced Kearns to 6–12 months’ incarceration plus 60 months’ probation (later amended to 12 months’ probation); this probation tail made the aggregate sentence exceed the statutory maximum for an M3.
- The Superior Court vacated the illegal probationary tail and remanded for resentencing on probation length; at resentencing the trial court imposed the same 6–12 month incarceration but eliminated probation, prompting Kearns’ appeal challenging the upward departure and discretionary aspects of the sentence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the 6–12 month sentence (M3) is an unreasonable abuse of discretion because it exceeds the guidelines’ aggravated range | Commonwealth: sentence appropriate given egregious conduct, financial harm, lack of restitution | Kearns: sentence manifestly excessive, inconsistent with rehabilitative needs and guideline ranges; original sentencing lacked specific aggravators for upward departure | Court held no abuse: upward departure justified by record facts, trial judge incorporated original reasons and considered victim impact and lack of restitution |
| Whether resentencing failed to state specific reasons for upward departure | Kearns: resentencing did not re-state the specific factual bases supporting prior upward departure | Commonwealth: prior record and sentencing transcript suffice; court incorporated prior record | Court held incorporation of original sentencing record provided the required factual basis and reasons |
| Whether court was bound to impose standard-range sentence after regrading to misdemeanor | Kearns: regrading to M3 required adhering to guideline range applicable to misdemeanor | Commonwealth: court may consider whole record and impose an upward departure when facts are egregious | Court held sentencing court acted within discretion to depart upward given the circumstances |
| Whether appellate court previously required elimination of probation only (versus incarceration) | Kearns: argued resentencing produced an excessive incarceration term rather than merely removing illegal probation | Commonwealth: remand required correcting illegal probation; court not bound to reduce incarceration | Court held remand directive satisfied by eliminating probation; reinstated 6–12 months without probation was lawful |
Key Cases Cited
- Apprendi v. New Jersey, 530 U.S. 466 (2000) (facts increasing penalty must be found by jury)
- Commonwealth v. Antidormi, 84 A.3d 736 (Pa. Super. 2014) (standard of review for sentencing discretion)
- Commonwealth v. Samuel, 102 A.3d 1001 (Pa. Super. 2014) (requirements to invoke appellate review of discretionary aspects of sentence)
- Commonwealth v. Sierra, 752 A.2d 910 (Pa. Super. 2000) (what constitutes a substantial question for sentencing review)
- Commonwealth v. Mouzon, 812 A.2d 617 (Pa. 2002) (when excessiveness may raise a substantial question)
- Commonwealth v. Griffin, 804 A.2d 1 (Pa. Super. 2002) (permissible reasons and record requirements for departure from guidelines)
- Commonwealth v. Eby, 784 A.2d 204 (Pa. Super. 2001) (sentencing judge must state factual basis and specific reasons for guideline departure)