J-A12005-14
2014 PA Super 187
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
KEITH HARDY,
Appellant No. 1098 EDA 2013
Appeal from the Order Entered April 3, 2013
in the Court of Common Pleas of Philadelphia County
Municipal Court Division at No.: MC-51-CR-0041747-2010
BEFORE: SHOGAN, J., STABILE, J., and PLATT, J.*
CONCURRING OPINION BY PLATT, J.: FILED AUGUST 29, 2014
jurisdiction to review the sentence imposed at docket number MC-51-CR-
0053427-2011. And I concur in the remand for resentencing.1
However, I write separately to express my concern about the learned
Commonwealth v. Jacobs, 900 A.2d 368 (Pa. Super.
2006) (en banc), appeal denied, 917 A.2d 313 (Pa. 2007) to reach its result.
(See Jacobs
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*
Retired Senior Judge assigned to the Superior Court.
1
judgment of sentence is vacated, we need not address his claim of an
excessive sentence.
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The Jacobs Court decided as follows:
Based on the foregoing authorities, we conclude that a
denial of the right of allocution does not create a non-waivable
challenge to the legality of the sentence. The trial court
certainly had the statutory authority to impose the sentence that
it did. Moreover, the sentence does not implicate issues of
merger, or any issues involving Apprendi [v. New Jersey, 530
implicate the authority of the court to impose either the
structure or term of the sentence itself. Rather, allocution is an
underlying process through which the defendant is given the
opportunity to speak, and through which the court may be
inclined to grant leniency. Failure to grant a defendant this
important right undoubtedly constitutes legal error.
[Commonwealth v.] Thomas[, 553 A.2d 918, 919 (Pa. 1989)].
On the other hand, like most legal errors, it is nevertheless
waivable under Pennsylvania law. Accordingly, we hold that
claim is waived because it was not
raised with the trial court.
Jacobs, supra at 376-77 (emphasis added) (footnote omitted) (overruling
Commonwealth v. Newton, 875 A.2d 1088 (Pa. Super. 2005)).
Our Supreme Court has held that statements from a prior decision
nonbinding dicta
analysis. Rendell v. Pa. State Ethics Comm'n, 983 A.2d 708, 714 (Pa.
2009).
We have often repeated the axiom that judicial decisions
are to be read against their facts, so as to prevent the wooden
application of abstract principles to circumstances in which
different considerations may pertain. That axiom recognizes that
decisional law develops incrementally, and that, given the
tension between the narrow focus on the facts of a given case
and the concomitant need to provide broader guidance on the
legal issues at play, we aspire to embrace precision and avoid
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the possibility that words or phrases or sentences may be taken
out of context and treated as doctrines.
Howard ex rel. Estate of Ravert v. A.W. Chesterton Co., 78 A.3d 605,
610 (Pa. 2013) (Todd, J. concurring) (citations and internal quotation marks
omitted).
Applying those principles here, I conclude that the mere mention of
the option of filing a post-sentence motion in Jacobs, which in fact did not
occur, (Jacobs, supra -sentence
Jacobs decision which, after all,
found the allocution issue waived and affirmed the judgment of sentence.
(See id. at 377). Accordingly, I agree with the Commonwealth that the
reference to a post-sentence motion in Jacobs was non-precedential obiter
dictum. (See see also Commonwealth v.
Lee, 935 A.2d 865, 867 n.4 (Pa. 2007) (defining obiter dictum
judicial comment made during the course of delivering a judicial opinion, but
one that is unnecessary to the decision in the case and therefore not
(citation omitted).
Nevertheless, it is apparent that the trial court plainly erred in its
any challenge by [Appellant]
concerning his right to allocution or [Appellant] specifically raising any
concerns (Trial Court Opinion, 7/18/13, at 3) (emphases added).
Counsel for Appellant indisputably raised the issue in a timely post-sentence
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motion to reconsider sentence. (See Petition to Vacate and Reconsider
Sentence, 1/18/13, at 1 ¶ 2).
Even more importantly, in my view, at least by the time of the hearing
on the motion to reconsider, the trial court itself, the prosecutor, and
assuming that the issue would be later raised in a PCRA petition for
ineffective assistance of counsel by failure to object. (See N.T. Hearing,
4/03/13, at 5).
As noted by the learned Majority, our Rules of Criminal Procedure
time of sentencing, the judge shall afford the defendant the opportunity to
make a statement in his or her behalf and shall afford counsel for both
parties the opportunity to present information and argument relative to
(D)(1); (see also Majority, at *6). The rule
reflects the long standing recognition by our Courts that:
The right to allocution is of ancient origin and requires the
court to inform a defendant that he has the right to address the
court prior to sentencing. The failure to afford a criminal
defendant the right to address the court prior to sentencing
requires remand to allow allocution prior to resentencing.
Commonwealth v. Hague, 840 A.2d 1018, 1019 (Pa. Super. 2003)
(citations omitted); see also Commonwealth v. Senauskas, 194 A. 646,
OMMENTARIES, volume 4, page 376).
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Similarly, our Supreme Court has previously stated in Commonwealth v.
Thomas, 553 A.2d 918 (Pa. 1989):
The trial court in this case did not so inform the defendant [of his
right to speak prior to sentencing], and the case, therefore, must
be remanded for resentencing at which time the court will inform
the defendant of his right to speak and will hear the defendant,
should he choose to speak, prior to reimposition of sentence.
Id. at 919.
Our rules of criminal procedure further provide that all requests for
relief from the trial court after sentencing shall be consolidated in a post-
sentence motion:
The defendant in a court case shall have the right to
make a post-sentence motion. All requests for relief from the
trial court shall be stated with specificity and particularity, and
shall be consolidated in the post-sentence motion, which may
include (etc.).
Pa.R.Crim.P. 720(B)(1)(a) (emphasis added).
Here, the trial court plainly erred in concluding there was a waiver by
relying on its inaccurate finding that Appellant made no challenge to the
denial of his allocution rights. (See Trial Ct. Op., at 3). Accordingly, I would
hold that Appellant properly preserved his allocution claim pursuant to
Pa.R.Crim.P. 708(D)(1), in a timely post-sentence motion compliant with
Pa.R.Crim.P. 720(B)(1)(a). In my view, the holding in Jacobs is not
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controlling. I find more compelling authority in Pa.R.Crim.P. 708(D)(1),
Pa.R.Crim.P. 720(B)(1)(a), in Thomas, supra, and in Hague, supra.2
Accordingly, I respectfully concur in the result.
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2
Moreover, in view of the generally conceded error by the trial court, the
timely filed post-sentence motion, and in the interest of judicial economy, I
would find that an immediate remand for resentencing was not only
mandated but also more appropriate and expeditious than the inherent
delay, prolongation of proceedings and opportunity for additional uncertainty
created by deferral to a PCRA petition, as originally suggested by the trial
court.
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