Sentencing court’s pre-disposition to send defendant to jail required resentencing/post-sentence motion raising discretionary aspects of sentencing is optional if those issues are raised during the sentencing proceeding

Commonwelth v Luketic, 2017 PA Super 146 (5/16/2017)

Mr. Luketic and a friend were arrested for possession of drugs after purchasing heroin form a street dealer. Both he and his fiend pled guilty. Sentening immediately followed. The friend was sentenced to 3 to 6 years incarceration followed by 5 years probation, and in its remarks, the court said Mr. Luketic would get jail time too.

Before sentencing Mr Luketic, the court directed that he be taken outside and tested for drugs. In his absence, counsel objected to the court sentencing  Mr. Luketic if, before hearing any evidence, it was determined to put him in jail. The Court deferred any ruling until the defendant returned. He did have opioids in his system, but he had a prescription for them. After hearing evidence of Mr. Luketic’s employment and rehabilitation efforts, the court sentenced his to 6 to12 months incarceration, and consecutive probation. He filed no post-sentence motions, but in his 1925(b) statement raised the court’s failure to recuse itself and the failure to impose an individualized sentence.

The Superior Court found that Mr. Luketic had not fully sought recusal, but found that the judge’s pre-sentencing statement that he was going to put Mr. Luketic in jail deprived him of an individualized sentence, requiring a new sentencing. The Superior Court excused the lack of a post-sentence motion citing the numerous ways Mr. Luketic had raised the issue, but that was nonetheless a risky omission. It cited earlier caselaw that issues challenging the discretionary aspects of a sentence must be raised in a post-sentence motion or by presenting the claim to the trial court during the sentencing proceedings. (The real lesson might be that the Superior Court will not find waiver if a real injustice occurred.) The determination that Mr. Luketic would go to jail before hearing his evidence required a new sentencing.

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