PA Superior Court: Judge May Not Announce Defendant's Sentence Prior To Sentencing Hearing

The Superior Court has held that it is reversible error for a sentencing judge to announce prior to a defendant’s sentencing hearing that the judge plans to send the defendant to jail. Under Pennsylvania law, criminal defendants are entitled to individualized sentences based both on the background of the defendant and the nature of the offense. Therefore, the Superior Court reversed the sentence of a man who received 6-12 months in jail for misdemeanor drug possession after the judge told him that he would be going to jail prior to the sentencing hearing.  

In Commonwealth v. Luketic, the defendant pleaded guilty to knowing and intentional possession of a controlled substance. The prosecution alleged that he drove a friend to buy drugs from another gentleman, purchased the crack cocaine himself, and then gave it to his friend, who was a passenger in his vehicle. Under Pennsylvania law, even serving as an intermediary and giving the drugs to a friend immediately after buying them could qualify as Possession with the Intent to Deliver, and Luketic was originally charged with drug delivery. However, given the circumstances, the prosecution permitted Luketic to plead guilty to a misdemeanor count of knowing and intentional possession of a controlled substance instead. The defense and prosecution were unable to reach an agreement as to the recommended sentence, so the defendant entered an “open plea” under which both sides were permitted to make their own sentencing recommendations and leave the final decision up to the judge who accepted the plea.

Both Luketic’s sentencing and the drug seller’s sentencing were listed at the same time, and the judge held the sentencing hearing for the seller first. The judge sentenced the seller to three to six years in state prison. During the sentencing, the judge said to the seller, “You want to sell dope. You have dope fiends like him [indicating Luketic]. He is going to jail, too. He is not walking out of here, either.” The judge reiterated a number of times during the hearing that Luketic would be going to jail. 

The judge then ordered that the defendant be tested for drugs, and while he was being tested, the defendant’s lawyer objected to the judge’s pre-sentencing statement that the defendant would be going to jail. Defense counsel did not actually move for the judge to recuse himself, but he did object multiple times. When Appellant returned from the drug test, the court held the sentencing hearing.

Despite defense counsel’s multiple objections, the court proceeded with the sentencing on the misdemeanor drug charge. The judge heard from both sides, and he permitted defense counsel to introduce evidence of mitigation such as ongoing drug treatment, employment status, and the lack of a significant record. Despite the mitigation evidence and guidelines which typically would have called for probation or a shorter sentence, the judge refused to recuse himself and sentenced the defendant to 6-12 months in jail for the drug possession conviction.

The defendant appealed, and the Superior Court reversed the sentence. On appeal, the defendant raised two grounds: First, he argued that the judge erred in failing to recuse himself. Second, he argued that the trial court violated Pennsylvania law requiring that defendants receive individualized sentences when the judge decided on jail prior to the sentencing hearing.

The Superior Court rejected the first argument, and the Superior Court’s analysis illustrates the dangers of Pennsylvania’s punishing waiver doctrine. Pennsylvania case law requires that issues be clearly raised in the trial court and that motions must be very specific or they are waived on appeal. Despite defense counsel’s repeated objections to the judge, the Superior Court concluded that Luketic waived the recusal issue on appeal because defense counsel failed to use the magic words “recusal” when objecting to the judge’s sentence. This doctrine leads to absurd results in cases like this where the issue was clearly litigated, but appellate courts are often eager to find waiver. The result is that even where a clear error has occurred, the defendant cannot obtain relief on appeal. Instead, the defendant must file a Post Conviction Relief Act Petition once the appeals have been exhausted arguing that counsel was ineffective for failure to object or make a specific motion. 

Despite finding waiver on the recusal issue, the Superior Court found merit in the second issue and reversed the defendant’s sentence. The court noted that “a sentencing court abuses its discretion when it considers the criminal act, but not the criminal himself.” The Sentencing Code prescribes individualized sentencing by requiring the sentencing court to consider the protection of the public, the gravity of the offense in relation to its impact on the victim and the community, and the rehabilitative needs of the defendant. It also prohibits a sentence of total confinement without consideration of “the nature and circumstances of the crime and the history, character, and condition of the defendant.”

Accordingly, the code requires the sentencing court to consider the characteristics of both the defendant and the crime. When a court orders a sentence based solely on the nature of the crime, the sentence must be reversed. The court cannot correct an error by going through the motions and appearances of a full sentencing hearing. Instead, when it is clear from the record that the sentence was pre-determined based only on the nature of the crime, the sentence must be vacated.

In Luketic’s case, the Superior Court found that the court had made its intention to send the defendant to jail clear and unequivocal without hearing any evidence about the defendant. Additionally, the court erred in considering the sentence for the drug seller when sentencing the defendant because it is an abuse of discretion to base one defendant’s sentence on the sentence imposed on another defendant. Finally, the Superior Court was very concerned about the fact that the trial court failed to order and consider a Pre-Sentence Investigation prior to sending the defendant to jail on an open guilty plea for a misdemeanor drug conviction which typically carries probation. Therefore, the Superior Court vacated the sentence and remanded it to the trial court for re-sentencing. The Superior Court did not order that the trial judge recuse himself, but defense counsel would be expected to make a motion for recusal in the lower court.

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