Commonwealth v. Cartrette, PICS Case No. 13-3405 (Pa. Super. Dec. 24, 2013) Bowes, J. (28 pages).

SUPERIOR COURT

The Legal Intelligencer

CRIMINAL LAW

Sentencing • Violation of Probation • Appeal • Discretionary Sentencing

Commonwealth v. Cartrette, PICS Case No. 13-3405 (Pa. Super. Dec. 24, 2013) Bowes, J. (28 pages).

The Superior Court unequivocally held that its scope of review in an appeal from a revocation sentencing includes discretionary sentencing challenges. Affirmed.

In early 2004, defendant pled guilty to two counts of possession with intent to deliver marijuana. Pursuant to the plea agreement, the court imposed a county intermediate punishment (IPP) sentence. On Nov. 17, 2004, the Adams County Probation Office moved to revoke defendant's IPP sentence, alleging that Maryland authorities arrested defendant on new drug charges as well as for assault, disorderly conduct and a violation of a protection from abuse order. Shortly thereafter, the probation department filed an amended revocation report asserting that defendant had been arrested in Maryland for grand theft of a motor vehicle, unauthorized use of a motor vehicle and, inter alia, attempted robbery. In August 2012, after being paroled from serving the Maryland sentence, defendant appeared for his revocation hearing. He admitted to violating his IPP sentence. The court revoked defendant's sentence and re-sentenced him to one-and-one-half to five years incarceration.

Defendant appealed to the Superior Court, which noted that in a long line of decisions, it had reviewed and, in some cases, granted relief to defendants challenging the discretionary aspects of their sentence following revocation of probation.

Nevertheless, both the Superior Court and Supreme Court have stated that the Superior Court's scope of review is limited to the validity of the proceedings and the legality of the sentence, the court observed.

The court determined that the decision in Commonwealth v. Jose Infante, 888 A.2d 783 (Pa. 2005), did not preclude it from considering defendant's sentencing issue on appeal. Moreover, Pa.R.Crim.P. §708 recognizes that defendants may raise discretionary sentencing issues on appeal.

The court found additional support for the proposition that sentencing review after IPP revocation is not limited to whether the sentence is illegal from Chief Justice Castille's concurring opinion in Commonwealth v. Foster, 17 A.3d 332 (Pa. 2011). While the court's scope of review following the revocation of his IPP sentence included discretionary sentencing claims, the court nonetheless find that defendant was not entitled to relief. Accordingly, the court affirmed the judgment of sentence.