J-A12005-14


                                  2014 PA Super 187

COMMONWEALTH OF PENNSYLVANIA,                           IN THE SUPERIOR COURT OF
                                                              PENNSYLVANIA
                             Appellee

                       v.

KEITH HARDY,

                             Appellant                     No. 1098 EDA 2013


                  Appeal from the Order Entered April 3, 2013
             in the Court of Common Pleas of Philadelphia County
           Municipal Court Division at No.: MC-51-CR-0041747-2010


BEFORE: SHOGAN, J., STABILE, J., and PLATT, J.*

CONCURRING OPINION BY PLATT, J.:                          FILED AUGUST 29, 2014




jurisdiction to review the sentence imposed at docket number MC-51-CR-

0053427-2011. And I concur in the remand for resentencing.1

        However, I write separately to express my concern about the learned

                            Commonwealth v. Jacobs, 900 A.2d 368 (Pa. Super.

2006) (en banc), appeal denied, 917 A.2d 313 (Pa. 2007) to reach its result.

(See                                           Jacobs


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*
    Retired Senior Judge assigned to the Superior Court.
1

judgment of sentence is vacated, we need not address his claim of an
excessive sentence.
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      The Jacobs Court decided as follows:

            Based on the foregoing authorities, we conclude that a
      denial of the right of allocution does not create a non-waivable
      challenge to the legality of the sentence.        The trial court
      certainly had the statutory authority to impose the sentence that
      it did. Moreover, the sentence does not implicate issues of
      merger, or any issues involving Apprendi [v. New Jersey, 530

      implicate the authority of the court to impose either the
      structure or term of the sentence itself. Rather, allocution is an
      underlying process through which the defendant is given the
      opportunity to speak, and through which the court may be
      inclined to grant leniency. Failure to grant a defendant this
      important     right  undoubtedly     constitutes   legal    error.
      [Commonwealth v.] Thomas[, 553 A.2d 918, 919 (Pa. 1989)].
      On the other hand, like most legal errors, it is nevertheless
      waivable under Pennsylvania law. Accordingly, we hold that
                               claim is waived because it was not
      raised with the trial court.

Jacobs, supra at 376-77 (emphasis added) (footnote omitted) (overruling

Commonwealth v. Newton, 875 A.2d 1088 (Pa. Super. 2005)).

      Our Supreme Court has held that statements from a prior decision



nonbinding dicta

analysis.   Rendell v. Pa. State Ethics Comm'n, 983 A.2d 708, 714 (Pa.

2009).

             We have often repeated the axiom that judicial decisions
      are to be read against their facts, so as to prevent the wooden
      application of abstract principles to circumstances in which
      different considerations may pertain. That axiom recognizes that
      decisional law develops incrementally, and that, given the
      tension between the narrow focus on the facts of a given case
      and the concomitant need to provide broader guidance on the
      legal issues at play, we aspire to embrace precision and avoid


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     the possibility that words or phrases or sentences may be taken
     out of context and treated as doctrines.

Howard ex rel. Estate of Ravert v. A.W. Chesterton Co., 78 A.3d 605,

610 (Pa. 2013) (Todd, J. concurring) (citations and internal quotation marks

omitted).

     Applying those principles here, I conclude that the mere mention of

the option of filing a post-sentence motion in Jacobs, which in fact did not

occur, (Jacobs, supra                                              -sentence

                                           Jacobs decision which, after all,

found the allocution issue waived and affirmed the judgment of sentence.

(See id. at 377).    Accordingly, I agree with the Commonwealth that the

reference to a post-sentence motion in Jacobs was non-precedential obiter

dictum. (See                                   see also Commonwealth v.

Lee, 935 A.2d 865, 867 n.4 (Pa. 2007) (defining obiter dictum

judicial comment made during the course of delivering a judicial opinion, but

one that is unnecessary to the decision in the case and therefore not

               (citation omitted).

     Nevertheless, it is apparent that the trial court plainly erred in its

                                            any challenge by [Appellant]

concerning his right to allocution or [Appellant] specifically raising any

concerns              (Trial Court Opinion, 7/18/13, at 3) (emphases added).

Counsel for Appellant indisputably raised the issue in a timely post-sentence




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J-A12005-14


motion to reconsider sentence.      (See Petition to Vacate and Reconsider

Sentence, 1/18/13, at 1 ¶ 2).

      Even more importantly, in my view, at least by the time of the hearing

on the motion to reconsider, the trial court itself, the prosecutor, and



assuming that the issue would be later raised in a PCRA petition for

ineffective assistance of counsel by failure to object.      (See N.T. Hearing,

4/03/13, at 5).

      As noted by the learned Majority, our Rules of Criminal Procedure



time of sentencing, the judge shall afford the defendant the opportunity to

make a statement in his or her behalf and shall afford counsel for both

parties the opportunity to present information and argument relative to

                                (D)(1); (see also Majority, at *6). The rule

reflects the long standing recognition by our Courts that:

            The right to allocution is of ancient origin and requires the
      court to inform a defendant that he has the right to address the
      court prior to sentencing.      The failure to afford a criminal
      defendant the right to address the court prior to sentencing
      requires remand to allow allocution prior to resentencing.

Commonwealth v. Hague, 840 A.2d 1018, 1019 (Pa. Super. 2003)

(citations omitted); see also Commonwealth v. Senauskas, 194 A. 646,

                                         OMMENTARIES,   volume 4, page 376).




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Similarly, our Supreme Court has previously stated in Commonwealth v.

Thomas, 553 A.2d 918 (Pa. 1989):

      The trial court in this case did not so inform the defendant [of his
      right to speak prior to sentencing], and the case, therefore, must
      be remanded for resentencing at which time the court will inform
      the defendant of his right to speak and will hear the defendant,
      should he choose to speak, prior to reimposition of sentence.

Id. at 919.

      Our rules of criminal procedure further provide that all requests for

relief from the trial court after sentencing shall be consolidated in a post-

sentence motion:

             The defendant in a court case shall have the right to
      make a post-sentence motion. All requests for relief from the
      trial court shall be stated with specificity and particularity, and
      shall be consolidated in the post-sentence motion, which may
      include (etc.).

Pa.R.Crim.P. 720(B)(1)(a) (emphasis added).

      Here, the trial court plainly erred in concluding there was a waiver by

relying on its inaccurate finding that Appellant made no challenge to the

denial of his allocution rights. (See Trial Ct. Op., at 3). Accordingly, I would

hold that Appellant properly preserved his allocution claim pursuant to

Pa.R.Crim.P. 708(D)(1), in a timely post-sentence motion compliant with

Pa.R.Crim.P. 720(B)(1)(a).     In my view, the holding in Jacobs is not




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J-A12005-14


controlling.    I find more compelling authority in Pa.R.Crim.P. 708(D)(1),

Pa.R.Crim.P. 720(B)(1)(a), in Thomas, supra, and in Hague, supra.2

       Accordingly, I respectfully concur in the result.




____________________________________________


2
  Moreover, in view of the generally conceded error by the trial court, the
timely filed post-sentence motion, and in the interest of judicial economy, I
would find that an immediate remand for resentencing was not only
mandated but also more appropriate and expeditious than the inherent
delay, prolongation of proceedings and opportunity for additional uncertainty
created by deferral to a PCRA petition, as originally suggested by the trial
court.



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