Com. v. Harvey, S.

• Court: Superior Court of Pennsylvania
• Decided: December 17, 2014
• Docket: 1778 MDA 2013
• Status: Unpublished

Opinion

J-A14012-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

SHERRY LYNN HARVEY

Appellant No. 1778 MDA 2013

Appeal from the Judgment of Sentence August 14, 2013 In the Court of Common Pleas of Wyoming County Criminal Division at No(s): CP-66-CR-0000229-2013

BEFORE: FORD ELLIOTT, P.J.E., OLSON, and STRASSBURGER,* JJ.

DISSENTING MEMORANDUM BY STRASSBURGER, J:FILED DECEMBER 17, 2014

Because the trial court abused its discretion in sentencing Appellant, I

respectfully dissent.

The trial court set forth seven reasons to justify its sentence; however,

five are problematic. For its first two reasons, the trial court relied on the

“serious nature of this offense” and that “the sentence includes a mandatory

minimum.” N.T., 8/14/2013, at 7. Both of these factors are already part of

the sentencing guidelines, and should not have been considered as reasons

to sentence in the aggravated range.

In its next three reasons, the trial court relied on the facts that

Appellant’s actions affected the residents and corrections officers, as well as

the integrity of the drug and alcohol programs at the facility. The same ____________________________________________

* Retired Senior Judge specially assigned to the Superior Court. J-A14012-14

would be true for any individual committing the crime of introducing

contraband into a correctional facility, and is not individualized for this

particular Appellant. Furthermore, the sentencing guidelines take these

factors into account.

Because the trial judge’s sentence beyond the aggravated range

considered five reasons that are already factored into the guidelines, I would

remand for resentencing.

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