The Superior Court of PA has decided the companion cases of Commonwealth v. McLaine, No. 213 EDA 2016 and Commonwealth v. Kearns, No. 192 EDA 2016, holding that it was not an abuse of discretion for the trial court to re-sentence defendants in the aggravated range for third-degree misdemeanor theft convictions, even though the original sentences imposed – when the convictions were improperly graded as third-degree felonies – were within the standard sentencing ranges.



Appellants in companion cases, Patrick Joseph McLaine and Robert J. Kearns were arrested on charges of theft by failure to make required disposition of funds received, misapplication of entrusted property, and criminal conspiracy based on them receiving payment from Bethlehem Township in the amount of $832,460.00 to act as an agents for Bethlehem Township to facilitate the purchase of township street lights from PPL. After a jury trial, the appellants were found guilty of theft by failure to make required disposition of funds received, but not guilty of the other two charges.

Appellants were originally convicted of felonies of the third degree on the basis that the value of the theft was in excess of $2,000.00. However, they both filed motions challenging the trial court’s grading of the offense as a third-degree felony because the verdict slip failed to require the jury to determine the value of the property that gave rise to the convictions. The trial court granted their motions, thus reducing the convictions from felonies to misdemeanors of the third degree.

The original sentence imposed by the trial court was appealed and remanded by the Superior Court because the length of the probationary period imposed by the trial court extended Appellants’ sentences beyond the statutory maximum.

On remand, the Commonwealth argued for the reinstatement of the statutory maximum sentences of six to 12-months without a probationary tail. The trial court obliged, and remedied the initial illegal sentences by eliminating the probationary periods while retaining the original sentence of six to twelve months’ incarceration for the third-degree misdemeanor theft charges. In doing so, the court sentenced appellants in the aggravated range for those misdemeanor charges.


Whether, where the trial court found that no aggravating factors existed at the initial sentencing and placed no sentencing factors on the record, it was an abuse of discretion to sentence Appellants outside of the aggravated range of the sentencing guidelines upon re-sentencing?


Sentences were lawful and the trial court did not abuse its discretion in departing from guideline range sentences on the both Appellants’ third-degree misdemeanor convictions.


The Superior Court first outlined the applicable standards for challenges to the discretionary aspects of sentencing. It noted that sentencing is a matter vested in the sound discretion of the sentencing judge, and a sentence will not be disturbed on appeal absent a manifest abuse of discretion. In this context, an abuse of discretion is not shown merely by an error in judgment. Rather, the appellants must establish, by reference to the record, that the sentencing court ignored or misapplied the law, exercised its judgment for reasons of partiality, prejudice, bias or ill will, or arrived at a manifestly unreasonable decision. Additionally, when imposing sentence, a court is required to consider the particular circumstances of the offense and the character of the defendants. In considering these factors, the court should refer to a defendant’s prior criminal record, age, personal characteristics and potential for rehabilitation.

Appellants claimed that they were sentenced outside of the aggravated range of the sentencing guidelines without sufficient justification from the court.

With an offense gravity score of one and a prior record score of zero, the standard range applying to each of the defendants’ third-degree misdemeanors was Restorative Sanctions (“RS”), i.e. – probation, with an aggravated range of RS to three months’ incarceration.

The trial court had downgraded both Appellants’ offenses from a third-degree felonies to third-degree misdemeanors after granting their motions for reconsideration because the verdict slip did not require the jury to determine the value of the property that gave rise to their theft convictions. The Appellants contend the court’s imposition of standard range sentences on the third-degree felony convictions obligated it to sentence them to the standard range sentences on the revised, misdemeanor convictions.

The trial court disagreed.

The Superior Court noted that, advised by a new, corrected sentencing guideline sheet setting ranges of probation, plus-or-minus three months, and operating under a reduced statutory maximum sentence of 12 months’ incarceration applicable to a third-degree misdemeanors, the trial court elected to deviate upward from the guideline ranges by three months in imposing the six to 12 month sentences.

At the resentencing hearing, the trial court imposed the sentences without reiterating the specific reasons that it offered at the original hearing in support of what was now an upward departure sentence. Instead, the court stated that it was incorporating “the previous records made in all respects.”

Among other issues considered by the trial court during the original sentencing was the magnitude of the deception perpetrated and the substantial economic burden assumed by tens of thousands of residents, particularly in the absence of any restitution as of the date of sentencing. Additionally, as of the original sentencing date, Bethlehem Township had paid $214,045.79 in interest payments on the $832,460 loan which the defendants misappropriated and, the township was scheduled to make interest payments on the loan through 2027. What’s more, as a result of Appellants’ actions, the township had cut its workforce and left thirteen open positions vacant through 2012.

The Superior Court ultimately concluded that it was within the sound discretion of the trial court to consider the trial evidence and victim impact statements it had considered at the original sentencing in determining that the circumstances and consequences of the crime, while typical for a third-degree felony offenses, were atypically egregious and damaging for a third-degree misdemeanor offenses.

Accordingly, the Superior Court found no abuse of discretion in the trial court’s decision to depart upward from the guideline range sentences on the Appellants’ third-degree misdemeanor convictions.


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