Pennsylvania Supreme Court finds legal error when sentencing court “relied upon prior arrests as a sentencing factor”

A helpful colleague made sure I did not miss an interesting new opinion from the Pennsylvania Supreme Court in Commonwealth v. Berry, No. 16 EAP 2023, J-9A-2024 (Pa. Sept. 26, 2024) (available here).  Here is how the unanimous 24-page ruling gets started:

James Berry was convicted of several crimes arising from his sexual abuse of two young family members. For purposes of tabulating the applicable recommended sentencing range under the under the Pennsylvania Sentencing Guidelines, Berry had no prior convictions or juvenile adjudications, which resulted in a “prior record score” of zero.  The sentencing court ultimately imposed a sentence that deviated significantly upward from the standard sentencing range recommended by the sentencing guidelines.  Explaining its reasons on the record, the court stated that Berry’s arrest record (which the court characterized as “previous other contacts” with the criminal legal system) essentially negated Berry’s absence of a prior criminal record.

Challenging the discretionary aspects of this sentence, Berry appealed to the Superior Court, which affirmed.  Upon allowance of appeal, we must decide whether a sentencing court lawfully may consider Berry’s record of prior arrests, which did not result either in juvenile adjudications or adult convictions, as a factor at sentencing.  Because arrests without conviction “happen[ ] to the innocent as well as the guilty,” they offer nothing probative about a defendant’s background at sentencing.  Thus, the sentencing court misapplied the law by predicating the sentence in part upon Berry’s arrest record. Accordingly, we reverse the order of the Superior Court and we remand for resentencing.

There is considerable nuance in this opinion, as the court avoided reaching the defendant’s constitutional claim based in due process by ruling in his favor as a matter of state stautory law. In addition, the court also avoided addressing prosecutors’ arguement that it would be proper for a sentencing judge to consider conduct underlying an arrest because the “sentencing court provided no indication on the record that, as to Berry’s arrest record, it considered anything other than the fact of prior arrests.”