Commonwealth v. Sarvey
199 A.3d 436
| Pa. Super. Ct. | 2018Background
- Melissa Sarvey, an incarcerated person, was recorded attempting to pass 1.5 pills (Oxycodone and Zolpidem) under her cell door to another inmate; officers recovered the pills.
- Commonwealth amended the information on the Friday before trial (and the court granted the amendment the Monday trial began) to add counts for bringing controlled substances into prison and criminal attempt; drug names were also corrected.
- A jury convicted Sarvey of two counts PWID, two counts possession-by-inmate, two counts controlled-substance-to-prison, and two counts criminal attempt (the attempts merged at sentencing).
- Trial court imposed consecutive sentences that produced an aggregate term of 10.5 to 24 years plus probation; Sarvey appealed and lost on the amendment issue on direct appeal.
- Sarvey filed a timely PCRA petition raising claims including prosecutorial vindictiveness, challenge to the amendment, merger of convictions, alleged illegal sentencing on a probation revocation, and multiple ineffective-assistance-of-counsel (IAC) claims.
- The Superior Court reversed the PCRA denial only as to Sarvey’s IAC claim for failure to appeal the discretionary aspects of sentencing, vacated the judgment of sentence, and remanded for resentencing.
Issues
| Issue | Plaintiff's Argument (Sarvey) | Defendant's/Respondent's Argument (Commonwealth / Court) | Held |
|---|---|---|---|
| 1. Prosecutorial vindictiveness / amendment timing | Amendment filed the business day before trial punished Sarvey for going to trial and imposed new mandatory minima; counsel ineffective for not raising it | Pre-trial charging decisions are less likely vindictive; amendment arose from recent investigation and did not evidence invidious motive; counsel testified he did not view it as punitive | Waived on PCRA grounds and, on the merits, no prosecutorial vindictiveness shown |
| 2. Trial court erred in permitting late amendment to add charges | Amendment added four charges that increased penalty and prejudiced defense | Issue was litigated on direct appeal; Superior Court previously rejected prejudice and the claim is barred from collateral review | Previously litigated; PCRA relief denied on this issue |
| 3. Merger of overlapping convictions (PWID, possession-by-inmate, controlled-substance-to-prison) | Several convictions should have merged; failure to merge produced an illegal sentence / double jeopardy | Under 42 Pa.C.S. § 9765 and Baldwin test, merger requires single criminal act and elements of one offense included in the other; statutes have distinct elements and mischiefs (intent to deliver, bringing into prison, inmate status) | Merger not appropriate; convictions may stand separately |
| 4. Illegal sentence for probation revocation (sentenced on two hindering counts though one was nol prossed) | Court revoked probation on two hindering counts though one had been nol prossed, producing illegal sentence | Official sentencing order and Gagnon order reflected revocation on a single count; court’s oral misstatement is not controlling | No illegal sentence; text of orders controls; no prejudice shown |
| 5. IAC — failure to appeal discretionary aspects of sentence (consecutiveness/aggregate length) | Counsel should have appealed consecutive aggregate sentence as excessive | Counsel believed the issue lacked merit and was waived without post-sentence motions; court relied on sentencing discretion and defendant’s record | IAC claim meritorious: counsel had no reasonable basis to forgo post-sentence motion/appeal and prejudice shown because aggregate sentence (10.5–24 yrs for ~1.5 pills) was clearly unreasonable; vacatur and remand for resentencing granted |
Key Cases Cited
- Commonwealth v. Baldwin, 985 A.2d 830 (Pa. 2009) (articulates two-prong merger test requiring single criminal act and element inclusion)
- Commonwealth v. Williams, 579 A.2d 869 (Pa. 1990) (statute prohibiting bringing controlled substances into prison can be satisfied by bringing contraband into the facility)
- Commonwealth v. Bricker, 882 A.2d 1008 (Pa. Super. 2005) (PWID requires possession with intent to deliver)
- Commonwealth v. Sinclair, 897 A.2d 1218 (Pa. Super. 2006) (purpose of amendment rule is to fully apprise defendant and prevent surprise/prejudice)
- Commonwealth v. Chamberlain, 30 A.3d 381 (Pa. 2011) (pre-trial charging decisions less likely motivated by improper vindictiveness)
- Commonwealth v. Martinez, 153 A.3d 1025 (Pa. Super. 2016) (merger analysis comparing statutory elements and mischiefs)
- Commonwealth v. Butler, 533 A.2d 105 (Pa. Super. 1987) (framework for proving prosecutorial vindictiveness)