Consecutive v. Concurrent

In Pennsylvania, a judge can sentence a defendant to a consecutive or a concurrent term of prison. No rule exists governing when a judge can give a consecutive sentence. On review, the appellate courts apply the same appellate principals to concurrent and consecutive sentences. Meaning, no greater scrutiny is given to a consecutive v. concurrent sentence.

Sentencing Considerations

In any sentencing, the sentencing judge must consider the protection of the public, the seriousness of the current offense in relation to the impact on the victim and community, the rehabilitative needs of the defendant, and the Pennsylvania sentencing guidelines.

PA Constitution

The rules for appealing sentences seem wrong to all of my constitutional scholarly readers because the PA Constitution seems pretty clear that you have a right to appeal at least one time:

§ 9. Right of appeal. There shall be a right of appeal in all cases to a court of record from a court not of record; and there shall also be a right of appeal from a court of record or from an administrative agency to a court of record or to an appellate court, the selection of such court to be as provided by law; and there shall be such other rights of appeal as may be provided by law.

The PA constitution doesn’t say anything about the subject matter of the appeal, so logically, the procedural structure of appealing a sentence in Pennsylvania seems unconstitutional.

Discretionary Aspects of Sentencing

To appeal the discretionary aspects of sentencing in Pennsylvania, the person filing the appeal must write a statement asking for permission to appeal the sentence. In the statement, the person appealing must state a “substantial question” to why the sentence is wrong considering the case. If the person appealing does not make the statement, does not follow all of the procedural requirements, and does not raise a substantial question, the Superior Court will not review the sentence.

To comply with the procedural rules for a challenge to discretionary aspect of sentencing, the person appealing must:

  • Make a timely notice of appeal;
  • Preserve the issue at sentencing or in a motion for reconsideration of sentence;
  • The person appealing must have a 2119(f) statement in their brief; and
  • A substantial question must be raised that the sentence is not appropriate under the Pennsylvania Sentencing Code

Substantial Question

The real battle lies with the substantial question issue: whether the sentencing was inconsistent with a specific provision of the Sentencing Code, or whether the sentencing process was contrary to the fundamental norms of how defendants are sentenced in Pennsylvania.

The issue of consecutive versus concurrent is therefore not so important to the analysis on appeal, just a factor. The court’s discretion of giving a consecutive sentence alone is not a substantial question. Commonwealth v. Mastomarino, 2 A.3d 581, 587 (Pa.Super. 2010). If the consecutive sentence creates a sentence that is unduly harsh when adding the nature of the crime and the total length of the sentence, there may be a substantial question. Commonwealth v. Lamonda, 52 A.3d 365, 372 (Pa.Super. 2012).

However, if you make a combined argument that the sentence was was excessive, consecutive, and the court failed to consider mitigation, you have raised a substantial question. Further, if you combine an argument of consecutive excessive sentence with the judge failing to address your need for rehabilitation, a substantial question is also raised. Commonwealth v. Caldwell, 2015 PA Super 128.

Issues for Appeal of Sentencing

In sum, while you can not appeal a consecutive sentence just because its a consecutive sentence, if you point out other deficiencies in the sentencing judge’s rulings, you will raise a substantial question and the appeals court will hear your argument. However, once the court reviews the sentence, because the sentencing rests in the sole discretion of the trial court, you must show on appeal the sentencing judge ignored the law, was partial to one side, prejudice, bias, had ill will, or arrived at a manifestly unreasonable decision. Commonwealth v. Shugars, 895 A.2d 1270, 1275 (Pa.Super. 2006).

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