Consideration of Arrest Record as Factor in Sentencing; Application of Abuse of Discretion Standard
Com. v. Berry, 2022 WL 4683292 (Pa. Super.) (unreported), allocatur granted Apr. 18, 2023, appeal dockets 16 & 17 EAP 2023
James Berry was convicted of two counts of endangering the welfare of children (“EWOC”) and one count of sexual abuse of children arising from the sexual abuse of Berry’s then seven year old great-nephew (“J.B.”) and Berry’s intellectually disabled younger brother (“J.J.”). Prior to sentencing, the trial court stated that:
The truly sad part of this is the fracturing of this family. Watching both sides, Mr. Berry’s parents on one side and his siblings on the other side. The fact that this family hasn’t figured out a way to come together, it exemplifies the harm that was done to these children. It shows me that not only were [J.B.] and [J.J.] directly harmed by Mr. Berry’s actions, but the victims of his actions extend far beyond these two little boys.
The fact that I’ve been watching and reading that [J.B.] is no longer in his own home and is struggling to stay and become part of [S.B.]’s home, which is admirable, he is moving forward despite this victimization. It’s a testament to [J.B.]’s strength, and I hope that he understands that and hears that. His testimony was not easy to give. He was forced to watch this video multiple times in this courtroom in front of strangers.
I agree that Mr. Berry has a [c]onstitutional right to try his case, sir. I do not hold the fact there was a jury trial against him. However, there was a — in the process, that doesn’t mean we don’t revictimize the victim again. And in this particular case, this Court as well as the civilians had to sit there and watch as [J.B.] reacted to that video.
This Court has balanced Mr. Berry’s prior record score of zero with the acts that the jury found him guilty of, the victim impact statements that have been made on behalf of [J.B.] and [J.J.]. I’m also taking into account that while this is Mr. Berry’s first conviction, there are previous other contacts. This is not the anomaly that the zero would foreshadow for me, and I have concerns about the predatory nature of Mr. Berry’s behavior in taking advantage of these children at a time in which their family was going through the health concerns of their father.
The fact that [J.B.] does suffer from Autism, and [J.J.] was at a very tender age at the time of these events that played a role into the sentencing and given the diminished capacity of the both of these young boys.
Slip op. at 2-3 (quoting trial ct. transcript). The court imposed three consecutive sentences, as summarized by Superior Court:
On the conviction for sexual abuse of children, the court imposed a sentence of 60 to 120 months’ incarceration. This was an upward deviation from the sentencing guidelines, for which the upper end of the aggravate range was a minimum sentence of 48 months. On the conviction for EWOC as a third-degree felony, the court imposed a sentence of 18 to 36 months’ incarceration, which was in the aggravated range of the sentencing guidelines. Finally, on the conviction for EWOC graded as a first-degree misdemeanor, the court sentenced Berry to 12 to 24 months’ incarceration, which also fell in the aggravated range. The aggregate sentence was 90 to 180 months’ (seven and one-half to fifteen years’) incarceration. The court also stated that Berry would be required to register as a sex offender with the Pennsylvania State Police.
Slip op. at 3 (internal record citation omitted). In its Rule 1925(a) opinion, the trial court asserted that it “was clear in its record which aggravating factors were considered” in that the trial court:
emphasized the potential long-term mental health ramifications to the complainants, the lifelong impact these offenses will have within complainants and [Berry’s] family, this court’s “concerns about the predatory nature” of [Berry’s] behavior, that J.B. was particularly vulnerable to this predatory behavior due to his intellectual disabilities and J.J. particularly vulnerable due to his tender age, the victim impact letter written by [S.B.], J.B.’s sister, and the recommendation of both the prosecution and the child advocates.
Slip op. at 4 (quoting Rule 1925(a) op.). Berry appealed, arguing that the court abused its discretion in departing from the Sentencing Guidelines based on the trial court’s reliance on, inter alia, Berry’s prior arrests. Superior Court summarized Berry’s argument regarding his prior record as follows:
…although the court noted his prior record score was zero, it also noted “there are previous other contacts. This is not the anomaly that the zero would foreshadow for me.” Berry’s Br. at 32 (quoting N.T. at 24-25). Berry asserts “any adverse reliance upon mere arrests [by a sentencing court] violates the due process guarantees of the state and federal constitutions.” Id. He argues that a sentencing court must explicitly recognize that a prior arrest is not the equivalent of a conviction beyond reasonable doubt. Id. at 33.
Slip op. at 10-11.
Superior Court affirmed the judgement of sentence, reasoning that:
A court may consider a defendant’s prior arrests, so long as it recognizes those arrests have not resulted in convictions. Commonwealth v. Carr, 262 A.3d 561, 570 (Pa. Super. 2021). Here, the court noted that the previous “contacts” Berry has had with law enforcement did not contribute to the calculation of Berry’s prior record score. The court therefore acknowledged that these were not prior convictions. See 204 Pa. Code § 303.4 (stating that prior record score “is based on the type and number of prior convictions”). Moreover, a record of prior police involvement goes to Berry’s amenability to rehabilitation, a factor the court must consider under 42 Pa.C.S.A. § 9721(b). See Commonwealth v. Goggins, 748 A.2d 721, 732 (Pa. Super. 2000). We discern no abuse of discretion.
Slip op. at 11.
The Pennsylvania Supreme Court granted allocatur, limited to the following issue:
Did it not violate due process and the Sentencing Code for the trial court to consider Petitioner’s bare arrest record as a factor in imposing a more severe sentence, and did not the Superior Court err in reviewing this under an abuse of discretion standard?
For more information, contact Kevin McKeon or Dennis Whitaker.